Lucey and Lucey (Child support)

[2021] AATA 3675

Lucey and Lucey (Child support) [2021] AATA 3675 (10 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021770

APPLICANT:  Ms Lucey

OTHER PARTIES:  Child Support Registrar

Mr Lucey

TRIBUNAL:Member C Breheny

DECISION DATE:  10 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the 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 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. Ms Lucey and Mr Lucey are the separated parents of [Child 1], born December 2004. There is another child, [Child 2], not subject to this review. Previously, child support was payable on the basis that both children lived with Ms Lucey, but from 4 April 2019 child support has been payable on the basis that Ms Lucey has 0% and Mr Lucey has 100% care of [Child 1]. Ms Lucey retained care of [Child 2] and Mr Lucey was the parent liable to pay child support to Ms Lucey.

2. On 20 November 2020 the child support case for [Child 2] ended and on 12 January 2021 Mr Lucey contacted Services Australia – Child Support (Child Support) to lodge an application for child support payments from Ms Lucey, as he continued to have 100% care of [Child 1]. Ms Lucey stated that [Child 1] also spent time with her, and she would have at least 74 nights (20%) care of [Child 1].

3. On 20 April 2021 a decision was made that Ms Lucey had 13% and Mr Lucey had 87% care of [Child 1] from 21 November 2020. On 23 April 2021, Ms Lucey objected to the decision and on 11 June 2021 a Child Support objections officer decided to disallow the objection.

4. On 17 June 2021, Ms Lucey applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 10 August 2021. Ms Lucey and Mr Lucey attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 8 July 2021 (documents numbered 1–184). I also considered additional evidence provided by Ms Lucey, marked A1–A35.

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The issue for me to consider in this review is whether a care change occurred on 21 November 2020 such that the existing care determination for [Child 1] should be revoked and a new care determination made and, if so, from what date it should apply.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to [Child 1]. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case, departmental records indicate that Ms Lucey had 0% care of [Child 1] since 4 April 2019 (folio 154). Records also show that Ms Lucey told Child Support on 14 January 2021 that she continued to have about 20% (74 nights) care of [Child 1] (folio 20).

2. Ms Lucey stated that [Child 1] is 16 years old, and she chooses where she wants to stay. There is no regular “pattern” of care, so it would be difficult to determine a care percentage for both parents.

3. Ms Lucey said that she had been advised to keep a “care calendar” and mark the nights that [Child 1] is staying with her. Ms Lucey provided a care calendar from January 2019 to July 2021 (folios A1–A32). It indicates that in some months [Child 1] stays with Ms Lucey for up to ten nights (e.g. in August 2020) and in some months [Child 1] is not in Ms Lucey’s care at all (e.g. March 2021).

4. The care calendar indicates that in the 28 months from April 2019 (after the last care change determination) to July 2021 Ms Lucey had 104 nights care of [Child 1] (an average of about 3.7 nights per month). In the nine-month period from 21 November 2020 to 20 July 2021, Ms Lucey had 25 nights care of [Child 1] (about 2.7 nights per month).

5. Mr Lucey acknowledged that [Child 1] chooses where she wants to stay and that there is no regular care pattern. He noted that [Child 1] now has a boyfriend, and she often tries to spend time with him. He does not agree that [Child 1] should stay with her boyfriend, as she is only 16 years old and he will go and look for her, when she does not come home.

6. Mr Lucey also agreed that Ms Lucey has [Child 1] in her care for some nights, but on average she would have no more than four nights per month (about 13%) care of [Child 1].

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed but may be a shorter period depending on the circumstances of the case.

2. In this case, the objections officer assumed a change of care from 21 November 2020 (the date Ms Lucey became liable to pay child support to Mr Lucey). As noted above, in the period 21 November 2020 to 20 July 2021 (a period of 242 days) Ms Lucey had 25 nights or 10% care of [Child 1].

3. Ms Lucey’s care calendar indicates that there is no clear pattern of care for [Child 1] since April 2019, after [Child 1] moved to Mr Lucey’s home. On average Ms Lucey had about four nights care per month, from 4 April 2019, which equates to 13% care.

4. As stated above, section 54F of the Act provides that an existing care determination must be revoked if the Registrar becomes aware that the person’s actual care does not correspond with the existing care percentage and the Registrar is satisfied that the cost percentage would change if another care percentage were to be determined.

5. Child Support initially recorded that Mr Lucey had 100% care of [Child 1] and Ms Lucey had 0% care of [Child 1] and, in accordance with section 55 of the Act, his cost percentage was 100% and Ms Lucey’s cost percentage was 0%. Based on the evidence before me Ms Lucey has 10% care (based on care nights from 21 November 2020) or 13% care (based on average care nights from April 2019). In accordance with section 55 of the Act, both of these care percentages result in a cost percentage of “nil”; thus there is no practical impact on the amount of child support payable regardless of how care is calculated.

6. The objections officer determined that Ms Lucey had 13% care of [Child 1] and Mr Lucey had 87% care in the period from 21 November 2020, which also results in a cost percentage of “nil” for Ms Lucey. In accordance with the statutory child support formula Ms Lucey’s child support liability for [Child 1] will remain the same whether her care percentage is recorded as 0%, 10% or 13%, as her cost percentage is the same.

7. As there is no practical impact, I have decided not to change the care determination reached by the objections officer and this means Ms Lucey has 13% and Mr Lucey has 87% care of [Child 1] from 21 November 2020.

8. For completeness I will note that Ms Lucey submitted that she incurred substantial arrears, as Child Support did not create a child support liability for her as soon as the case for the older child ended. She had also been paying private school fees for both [Child 2] and [Child 1] and these matters ought to be considered in the assessment of her child support liability.

9. I am not able to consider these issues as part of this review, but I note that Ms Lucey has already lodged an application to change the administrative assessment on the basis of these costs.

DECISION

The decision under review is affirmed.