Lind and Child Support Registrar (Child support)

[2021] AATA 4786

Lind and Child Support Registrar (Child support) [2021] AATA 4786 (3 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC022227

APPLICANT:  Mr Lind

OTHER PARTIES:  [Ms A] (removed)

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  3 November 2021

DECISION:

The decision under review is set aside and a new decision is substituted that the care percentages should remain at 65% care to [Ms A] and 35% care to Mr Lind.

The application for review is therefore successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. The following information is taken from the records of the Services Australia – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Lind and [Ms A] (whose name has been wrongly recorded as “[Different spelling]”) are the parents of one child now aged 13.

3. The child support case was registered from 1 October 2011 and has been Registrar Collect since 10 October 2017.

4. Care was previously recorded as 65% care to [Ms A] and 35/% to Mr Lind from 23 January 2018.

5. On 31 March 2021 [Ms A] contacted the CSA and notified a care change. She stated that she had 72% care and Mr Lind had 28% care of the child since 1 February 2021.[1]

   [1] C16

6. Mr Lind did not agree with that notified care change, and the CSA obtained evidence of care from him, but [Ms A] provided no further evidence to them.

7. On 11 June 2021 a delegate made a new care determination, that Mr Lind had 34% of the care of the child and [Ms A] had 66% of care, from 1 February 2021.

8. On 17 June 2021 Mr Lind lodged an objection to the delegate decision.[2]

   [2] C59

9. On 30 August 2021 an objections officer disallowed the objection.

10. On 6 September 2021 Mr Lind sought a further review of that decision by this Tribunal.

11. Mr Lind is currently liable to pay $6,327 p.a. in child support under the terms of the objection decision.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C131.

2. Mr Lind attended the hearing in person and gave evidence and made verbal submissions.

3. He provided updated evidence of care via a care diary for 2021, which was marked A1 to A3.

4. [Ms A] did not wish to participate in the Tribunal proceedings and was removed as a party before the hearing.

ISSUES

16.The principal issues to be decided by the Tribunal are:

·Was there in fact a change in the pattern of care of the child?

·Which of the care provisions of the Child Support (Assessment) Act 1988 (“the Act”) apply to the facts?

·What are the correct care percentages of the parents?

CONSIDERATION

The relevant child support law

1. The law relevant to this review is contained in the Act.

2. The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.

3. The legislative scheme requires a care percentage determination to be made when a new case is registered and following each notification to the CSA of a change of the care arrangements.

4. Where, as here, there were no relevant court orders, or legally binding written care arrangements, at the material time, care percentages are based the pattern of actual care which is occurring between the parents: section 50 of the Act. Such a pattern is usually referable to a “care period”, which is usually of 12 months, but can be less in particular circumstances.

5. If a care percentage is fixed under section 50, it applies for each day in a child support period until the determination which fixed that care percentage is revoked: see subsection 54B(1A) of the Act.

6. The Tribunal’s role in care percentages cases is (unless and until there is any legally binding Court decision to the contrary) that it may only review the legal correctness of the delegate decision made on 11 June 2021, and should do so based on (i) what evidence was available to the delegate; (ii) as supplemented by any further relevant material supplied to the objections officer; and (iii) any further relevant information supplied to the Tribunal.

7. The key issue, then, for the Tribunal is whether a new pattern of care (i.e. a pattern of care different from the previously recorded pattern of care) had come into existence as at 11 June 2021.

8. Mere changes in what care is taking place, or minor interruptions of the previous care pattern, or the fact of some missed care events, or some minor level of erratic or inconsistent care, do not – or at least do not necessarily – add up to a new pattern of care.

9. Ultimately, it is a question of fact in each case.

10. The Child Support Guide states in this regard:

    “Change in pattern of care

    When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.”

11. Care is generally determined based on the number of nights that the child was or is likely to be in the care of the person: section 54A of the Act.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

1. The Tribunal considered all of the information on the CSA file including the verbal and evidence as presented by Mr Lind to the CSA, and the evidence and submissions presented by him to it.

2. [Ms A] provided no further information, at any stage, after the original notification.

3. [Ms A]’s notification stated that Mr Lind had a regular pattern of 4 nights’ care per fortnight, which equals 28% of care.

4. Mr Lind’s argument was that nothing had changed since January 2018. There was no change in the care arrangements earlier this year. He has continued to have a regular pattern of 4 nights’ care per fortnight, plus half of the school holidays, plus care on some public holidays, which fall outside of school holidays, and also some care on nights before “pupil free days”.

5. The care records indicate that Mr Lind had had care of the child for all of the April 2021 school holidays, but his evidence was that, over a full school year, this would work out to half of the school holidays.

6. The Tribunal noted that there were some “missing weekends” where Mr Lind did not have care, but there were some Friday nights where Mr Lind had care. This is not uncommon where there are no court orders. The Tribunal is however satisfied that there was no major interruption to the pattern of regular weekend care.

7. Looking at the matter in terms of what pattern of care was likely to occur over a 12‑month care period, there is simply insufficient evidence to convince the Tribunal that there was in fact any change at all, as at 11 June 2021, in the underlying pattern of Mr LInd’s care of the child.

8. In substance, there was nothing more than an allegation by [Ms A] that his care had reduced to just having fortnightly care, which would be 28% of care, without her providing any supporting evidence.

9. In the circumstances, the Tribunal has concluded that section 50 of the Act (regular pattern of actual care) applies to the facts, and that the former care percentages of the parents, which had been in place since 23 January 2018, should not have been changed.

10. Care should therefore remain at 65% to [Ms A] and 35% to Mr Lind.

11. This means a slightly better outcome for Mr Lind.

12. His child support liability since 1 February 2021 should now be recalculated accordingly.

13. The CSA will notify the parents of the new assessment/s of child support which result from this decision.

DECISION

The decision under review is set aside and a new decision is substituted that care remains at 65% care to [Ms A] and 35% care to Mr Lind.

The application for review is therefore successful.