Longley and Amesbury (Child support)

[2018] AATA 1227

Longley and Amesbury (Child support) [2018] AATA 1227 (27 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013330

APPLICANT:  Ms Longley

OTHER PARTIES:  Child Support Registrar

Mr Amesbury

TRIBUNAL:Member W Kennedy

DECISION DATE:  27 March 2018

DECISION:

The decision under review is affirmed.

Catchwords

Child support – Court ordered percentages of care – Change to likely pattern of care – Decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. Ms Longley and Mr Amesbury are the parents of [Child 1], who was born in 2014. This application concerns the percentages of care of [Child 1] used in the child support assessment.

2. A child support assessment has been in effect since 5 May 2014.  From 21 May 2016 the child support assessment was based on Mr Amesbury having 7% care and Ms Longley having 93% care of [Child 1].

3. On 1 September 2017 Mr Amesbury advised the Child Support Agency of the Department of Human Services (the Department) that with effect from 30 August 2017 he had 14% care of [Child 1].  On 19 September 2017 the Department decided, based mainly on a handwritten agreement between the parties, that Mr Amesbury would have 13% care of [Child 1] during the care period.  As this is below regular care the Department decided to not change the care percentage used in the assessment.

4. On 25 September 2017 Mr Amesbury objected to the decision, claiming that court orders made on 25 August 2017 provide for him to have 2 nights care per week and that any care periods that he missed because one of the parents was travelling would be made up.  On 19 January 2018 a Department objections officer determined that Mr Amesbury would have 14% care of [Child 1] in the care period and applied that figure to the child support assessment with effect from 30 August 2017.

5. On 22 January 2018 Ms Longley applied to this Tribunal for a review of that decision, stating that she does not agree with the care percentage.  The Tribunal considered the application and determined the matter on 27 March 2018.  In considering the application the Tribunal took into account the oral evidence of Ms Longley and Mr Amesbury together with the documentary material provided by the Department (folios 1 to 109).  Copies of these documents were provided to both parties prior to the hearing, however Mr Amesbury did not receive copies of the documents because he had moved.  The Tribunal decided to proceed with the hearing and considers that Mr Amesbury did not suffer any disadvantage as a result of not receiving the documents in advance of the hearing.  Ms Longley attended the hearing by conference telephone and gave her evidence under an affirmation.  Mr Amesbury also attended the hearing by conference telephone and gave his evidence under an affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of the children in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act. These provisions require the Department to make determinations of each parents’ percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Ms Longley said that although she accepts that the court orders say that Mr Amesbury has care for two nights each fortnight, he missed fortnights when she and [Child 1] were overseas between 13 December 2017 and 29 December 2017 and then when Mr Amesbury was overseas up to 13 January 2018.  She said that the court orders were “suspended” during the period from 13 December 2017 to 16 January 2018 and that this meant that Mr Amesbury missed five care nights.  She acknowledged that two of these had been “made up” but said that the others were not and that as a result he only had care for 49 nights in the 12 month period.

11.  At the hearing Mr Amesbury said that although he acknowledged that he had missed the care nights while one or the other of the parents were overseas he was more than willing to make up the nights he missed.  He said that when he returned from overseas he was sick with [an infection] and it was therefore not possible for him to make up the nights immediately.  He said that he had suggested to Ms Longley how nights could be made up but she refused his offer.  Ms Longley acknowledged that Mr Amesbury had offered to make up the nights and that she had refused but said that this was because she had to act in the best interests of [Child 1] and she did not consider that the offer Mr Amesbury made was suitable.

12.  The parents agree that the court orders have been followed since the events described above.

13.  Although the court orders are not before the Tribunal the parents agree that they provide that Mr Amesbury has care of [Child 1] for two nights each fortnight.  The case turns on the impact on the care of specific events.  The Tribunal finds that a pattern of care has been established by the court orders and by the behaviour of the parents in following those court orders.  The events referred to by Ms Longley represent a relatively minor departure occasioned by Ms Longley’s travel, Mr Amesbury’s travel and Mr Amesbury’s sickness.  The Tribunal considers that the events are not part of the pattern of care and do not establish a new pattern of care.  The Tribunal finds that in accordance with the court orders and the pattern of behaviour of the parents Mr Amesbury has 14% care of [Child 1].

14. Subsection 54F(1) of the Act provides that the Department may revoke a percentage of care determination if a number of criteria are met:

Determination must be revoked if there is a change to the responsible person's cost percentage

(1)  If:

(a)  a determination of a responsible person's percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)  if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and
(c)  the Registrar or the Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and
(d)  the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

(e)  section 54G does not apply;

the Registrar must revoke the determination.

Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

15. The Tribunal is satisfied that a determination has been made under section 50 of the Act thus satisfying paragraph 54F(1)(a). That determination is that Ms Longley has 93% care and Mr Amesbury has 7% care. Sections 51, 52 and 54G do not apply to this case and thus paragraph 54F(1)(b) and paragraph 54F(1)(e) are not relevant. Through the provision of information by Mr Amesbury the Secretary has become aware that the actual care does not correspond with the existing percentage of care determination, thus satisfying paragraph 54F(1)(c). The change in percentage of care is such that, in accordance with section 55C of the Act, there will be a change in the cost percentages of the parties, thus satisfying paragraph 54F(1)(d). It follows that a determination under section 50 of the Act would not be the same as the existing determination and thus the Registrar must revoke the existing determination.

16. Subsection 54F(2) of the Act determines the date of effect of the revocation of the existing determination:

(2)  The revocation of the determination takes effect at the end of:

(a)  if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

(i)  in a case where that change of care day occurs during the interim period for the determination--the day on which the interim period ends; or

(ii)  otherwise--the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended--the day on which the interim period ends; or
(c)  otherwise--the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

17. As the Department became aware of the change of care within 28 days of the change, in accordance with paragraph 54F(2)(a) of the Act the date of revocation is the day before the change of care day. Thus the existing determination is revoked on 29 August 2017.

18. Section 50 of the Act provides that the Department must determine new percentages of care in the following circumstances:

Determination of percentage of care - responsible person has had etc. a pattern of care for a child

(1)  This section applies if:

….

(b)  the Registrar:

(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

(2)The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

19.  The existing determination has been revoked, thus satisfying subparagraph 50(1)(b)(i).  Subparagraph 50(1)(b)(ii) and subsection 50(2) require the Tribunal to consider the likely pattern of care that Mr Amesbury and Ms Longley will have of the children in a care period. 

20.  The Tribunal has determined that the most appropriate care period is 12 months from the date of the change in care.  Thus the care period is from 30 August 2017 to 29 August 2018.  The Tribunal finds that during that period Mr Amesbury is likely to have 14% care and Ms Longley is likely to have 86% care.

21. Section 54B of the Act provides that the determination will have effect from the day immediately after the date of revocation of the earlier percentage of care determination. Thus the date of effect is 30 August 2017.

22.  The Tribunal’s decision is the same as that of the Department objections officer and, accordingly that decision is affirmed.

DECISION

The decision under review is affirmed.l