Lynam and Sandriger (Child support)

[2020] AATA 265

Lynam and Sandriger (Child support) [2020] AATA 265 (9 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017670

APPLICANT:  Mr Lynam

OTHER PARTIES:  Child Support Registrar

Ms Sandriger

TRIBUNAL:Member A Schiwy

DECISION DATE:  09 January 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there was a change in care on 1 January 2019 such that Mr Lynam had 17% care of [Child 1] and Ms Sandriger had 83% care.  The dates of effect are from 3 July 2019 for Mr Lynam and 1 January 2019 for Ms Sandriger. 

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 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. Mr Lynam and Ms Sandriger are the separated parents of [Child 1] who is five years old.  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. In July 2016, court orders were made about the care of [Child 1].  The orders allowed for increasing levels of care for Mr Lynam as [Child 1] became older.  From January 2017, Mr Lynam was to commence having overnight care of [Child 1] once per fortnight.  From January 2019, he was also to commence having [Child 1] in his care for half of all school holidays.  The orders included an interim period in January 2019 where Mr Lynam was to have [Child 1] for two nights and three nights during the two fortnights of January 2019. 

3. In January 2017, the Department of Human Services (‘Child Support’) made a determination that Ms Sandriger had 90% care of [Child 1] and Mr Lynam had 10% care.

4. On 3 July 2019, Mr Lynam applied to Child Support for a change in care from January 2019 in accordance with the court orders.  Mr Lynam explained to the tribunal that he thought the change in care would be automatically applied by Child Support in January 2019 as they had a copy of the Court Orders.

5. Child Support contacted Ms Sandriger on 19 July 2019 and she confirmed that the change in care had occurred.

6. On 19 July 2019, Child Support determined that from 1 January 2019 Mr Lynam had 17% care of [Child 1] and Ms Sandriger had 83% care.

7. On 30 July 2019, Ms Sandriger contacted Child Support about her assessment and noted that there was going to be new court orders and that care arrangements would change.  On 2 August 2019, Ms Sandriger objected to the care decision.  On 4 October 2019, the objections officer decided to partly allow the objection and determined that from 1 January 2019 Mr Lynam had 13% care of [Child 1] and Ms Sandriger had 87% care.

8. On 22 October 2019, Mr Lynam applied to this tribunal for an independent review of the objection officer’s decision.

9. A hearing into the application for review was held by the tribunal on 9 January 2019.  Mr Lynam participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.  Ms Sandriger declined to participate in the hearing. 

10. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  A copy of the papers was provided to the parents prior to the hearing.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations, and therefore also of the new determinations, depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, and to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. The tribunal noted that the ‘costs of the child’ used in the child support formula increases when care is 14% or greater.  It does not increase again until care is 35% or greater.  There is also no impact on family assistance until care is 35% or greater. 

5. Ms Sandriger has objected to the care decision because she planned to take [Child 1] to [Country 1] over the summer holidays and it would not be possible for Mr Lynam to have [Child 1] for half of those holidays.

6. At hearing Mr Lynam stated:

   ·There was a risk that Ms Sandriger would leave Australia with [Child 1] and an Airport Watchlist was put in place on 5 July 2016 (the Court Orders note that the watch list was to remain in force until discharged by the Court).

   ·Ms Sandriger wanted to take [Child 1] to [Country 1] for a holiday in December 2019 but Mr Lynam did not initially agree.

   ·The matter went to Court and it was agreed to remove Ms Sandriger from the watch list and to vary the court orders.

   ·Mr Lynam sent Ms Sandriger an email on 6 August 2019 confirming agreed dates for new consent orders.

   ·On 9 August 2019, Mr Lynam confirmed with Child Support that the parenting orders had been amended however the consent orders were not actually made until around August or September (he had only agreed to the proposed orders by 9 August 2019). 

7. After reviewing the evidence the tribunal was satisfied that the actual care from 1 January 2019 until the date of the original decision was in accordance with the court orders and that this pattern of care was likely to continue indefinitely.  The fact that the actual care may have altered after this date is not relevant; the assessment of the likely pattern of care must be made as at the time of original decision.  (The tribunal noted that even if it had been known by 9 July 2019 that the court orders were going to be varied to allow Ms Sandriger to take [Child 1] overseas on a holiday, this does not impact on the long-term care arrangement.  It is clear that Mr Lynam is to have care of 17% on an ongoing basis and a one-off, short-term holiday does not alter this).

8. For a change in care to be determined there must be a change in costs used in the child support formula.  A change in care from 90%/10% to 83%/17% results in a change in cost percentages and therefore the existing care determinations must be revoked.

9. In this case, neither parent notified Child Support of the change in care within 28 days of the change. For changes in care after 1 July 2018, subclauses 54F(3)(b)(i) and (ii) of the Assessment Act apply in relation to when the revocation of the determinations takes effect. Where a parent has increased care the date of revocation will be the day prior to the date of notification and for the parent with decreased care it will be from the day before the date of change. The date of effect of the change in care is the day after the previous care determination was revoked.

10. In this case the change in care occurred on 1 January 2019 and the change was notified on 3 July 2019.  The date of effect is therefore 1 January 2019 for Ms Sandriger and 3 July 2019 for Mr Lynam.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that there was a change in care on 1 January 2019 such that Mr Lynam had 17% care of [Child 1] and Ms Sandriger had 83% care.  The dates of effect are from 3 July 2019 for Mr Lynam and 1 January 2019 for Ms Sandriger.