Luse and Newcomen (Child support)

[2023] AATA 2943

Luse and Newcomen (Child support) [2023] AATA 2943 (28 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025652

APPLICANT:  Ms Luse

OTHER PARTIES:  Child Support Registrar

Mr Newcomen

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  28 July 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Luse provides 42 per cent care of [Child 1] and [Child 2] and Mr Newcomen provides 58 per cent care from 10 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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. This review is about a change to the percentage of care determinations for Ms Luse and Mr Newcomen in respect of their children [Child 1] (born September 2006) and [Child 2] (born March 2008).  There has been a child support assessment in place since 31 March 2015.  Ms Luse is currently the parent liable to pay child support.

2. From 1 February 2022 the child support assessment reflected Ms Luse as having 68 per cent care and Mr Newcomen as having 32 per cent care of [Child 1] and Ms Luse as having 67 per cent care and Mr Newcomen as having 33 per cent care of [Child 2].

3. On 29 July 2022 Mr Newcomen notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he provides 86 per cent care and Ms Luse provides 14 per cent care of [Child 1] from 10 July 2022.

4. The Tribunal notes that on 15 August 2022 Mr Newcomen notified Child Support of an error in his initial notification stating that he provides 85 per cent care and Ms Luse provides 15 per cent care of [Child 1] and [Child 2] from 10 July 2022.

5. On 5 November 2022 Child Support made the decision to reflect that Ms Luse provides 14 per cent care and Mr Newcomen provides 86 per cent care of [Child 1] and Ms Luse provides 15 per cent care and Mr Newcomen provides 85 per cent care of [Child 2] from 10 July 2022.

6. On 17 November 2022 Ms Luse objected to this decision and on 1 February 2023 Child Support disallowed the objection (the objection decision).

7. On 22 February 2023 Ms Luse applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 28 July 2023.  Ms Luse and Mr Newcomen gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (115 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Luse told the Tribunal that [Child 1] and [Child 2] generally made up their own minds about where they stayed and would move between homes which she felt was typical for their age.  Ms Luse said the girls went everywhere together and did not stay with the parents separately.

2. Ms Luse said she agreed care changed from around 10 July 2022 as [Child 1] had started an apprenticeship at [TAFE] and the girls decided to spend extra time with their father as it was more convenient.  Ms Luse explained that initially [Child 1] and [Child 2] agreed to spend three nights a week with her from Thursday to Sunday plus at least half the school holidays.  Ms Luse said this pattern of care remained consistent for at least a month and possibly longer.  Ms Luse said care then changed again when she lost Thursday nights and then, later, she lost Friday nights.  She said her holiday care remained about the same.

3. Ms Luse said because she didn’t drive it was usually Mr Newcomen who would transport the girls between their homes although she also sometimes paid for an Uber to her residence. 

4. The Tribunal notes in evidence from Child Support a statement, dated 4 January 2023, from [Mr A] in relation to the care Ms Luse provides for [Child 1] and [Child 2].  [Mr A] states that as a close friend he sees Ms Luse and the children regularly and advises Ms Luse transports the girls in an Uber to her home every Friday.  [Mr A] states that [Child 1] and [Child 2] stay with Ms Luse until Sunday evening as well as school holidays.

5. Mr Newcomen told the Tribunal he agreed that [Child 1] and [Child 2] decided where they stayed.  Mr Newcomen said after care changed on 10 July 2022 Ms Luse was not having very consistent care of the girls and her care had declined quickly over time.  Mr Newcomen said he found it difficult to notify Child Support of these changes as they were so unpredictable.

6. Mr Newcomen explained that while [Child 1] and [Child 2] did stay with Ms Luse initially from Thursday to Sunday night every week they soon stopped going on Thursday nights.  Mr Newcomen said then the girls stopped going on Friday nights because [Child 1] got a job.  Mr Newcomen added that he was uncertain of the exact dates and would rely on the calendar of care he had provided to Child Support.

7. The Tribunal notes in evidence from Child Support a calendar from Mr Newcomen showing the care each parent provided for [Child 1] and [Child 2] during the period from 10 July 2022 to 14 August 2022.  According to the calendar Ms Luse had the following care from 10 July 2022:

   ·      July 2022 – 31 (Sunday)

   ·      August 2022 – 7 (Sunday)

8. Mr Newcomen agreed that Ms Lusehad some care of [Child 1] and [Child 2] during the September 2022 school holidays.  Mr Newcomen said Ms Luse had care on 26, 27 and 30 September as well as 1, 2, 3 and 4 October.  Mr Newcomen said he believed Ms Luse only had care of around two out of the six weeks during the longer summer holiday period.

9. Ms Luse said she disagreed with the calendar of care provided by Mr Newcomen for the months of July and August 2022 and reiterated she was initially having care of three nights a week during school term.  Ms Luse said she agreed with Mr Newcomen in relation to her holiday care.

10. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child or children changed.

11. It is not in dispute and the Tribunal finds that care of [Child 1] and [Child 2] changed from 10 July 2022.  Ms Luse argues she was having care of three nights a week during school term plus holiday care.  Ms Luse acknowledges, however, this pattern of care then changed again.  Mr Newcomen has informed the Tribunal Ms Luse was having care of three nights a week during school term, commencing on a Thursday, but her care dropped to two nights a week soon after and continued to fall.  Mr Newcomen agrees that Ms Luse was having care of around half the mid-term holidays but less care during the longer summer holidays.

12. Mr Newcomen referred the Tribunal to his calendar of care, however, this shows that during the five-week period from 10 July 2022 to 14 August 2022 Ms Luse had care of only two nights.  This is inconsistent with the oral evidence provided by both parents.

13. The Tribunal considers that, on balance, Ms Luse is providing care of [Child 1] and [Child 2] of three nights a week during school term plus half the mid-term school holidays and two weeks during the longer end of year holiday period.  Given there are approximately 40 weeks of school term, two weeks for each of the mid-term holidays and six weeks for the end of year school holidays this is equivalent to care totalling 155 nights a year.

14. The Tribunal is satisfied that Ms Luse provides care of 155 nights of [Child 1] and [Child 2] and Mr Newcomen provides care of 210 nights from 10 July 2022.  This is equal to 42 per cent care to Ms Luse and 58 per cent care to Mr Newcomen.

15. The existing percentages of care reflected in the assessment for [Child 1] were 68 per cent care to Ms Luse and 32 per cent care to Mr Newcomen.  The existing percentages of care reflected in the assessment for [Child 2] were 67 per cent care to Ms Luse and 33 per cent care to Mr Newcomen.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

16. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Luse and Mr Newcomen under section 50 of the Act.

2. The Tribunal finds that Ms Luse provides 42 per cent care and Mr Newcomen provides 58 per cent care of [Child 1] and [Child 2] from 10 July 2022.

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Newcomen notified Child Support of the change in care on 29 July 2022.  As this is less than 28 days after the change occurred on 10 July 2022, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 10 July 2022.

Other care matters

1. Mr Newcomen has told the Tribunal that care of [Child 1] and [Child 2] has changed again on a number of occasions.  Ms Luse does not dispute this is the case.  While Mr Newcomen has expressed frustration at the frequency of care changes it is nonetheless incumbent upon the parents to notify Child Support of such further changes to the pattern of care so that a new care percentage decision can be considered and made if required.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Luse provides 42 per cent care of [Child 1] and [Child 2] and Mr Newcomen provides 58 per cent care from 10 July 2022.