Mabey and Child Support Registrar (Child support)

[2018] AATA 1730

Mabey and Child Support Registrar (Child support) [2018] AATA 1730 (19 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013429

APPLICANT:  Ms Mabey

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  19 April 2018

DECISION:

The decision to record Ms Mabey as providing 65% care and Mr Mabey as providing 35% care to [Child 1] and [Child 2] from 27 July 2017 is set aside and, in substitution, the Tribunal decides not to record a change in care from 27 July 2017.

CATCHWORDS
Child support – Percentages of care – Determination of the likely pattern of care – No change to cost percentages - Refusal to revoke existing percentages of care - 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

1. Ms Mabey and Mr Mabey are the parents of [Child 1] and [Child 2]. A child support case was registered with the Department of Humans Services – Child Support (“the CSA”) in 2014. From February 2015, Mr Mabey was recorded as providing 30% care to both children. Ms Mabey has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Mr ’Mabey’s care.

2. On 27 July 2017, Mr Mabey informed the CSA that he was providing an ongoing pattern of care of five nights’ care per fortnight and that he had been doing so for some years. On 12 September 2017 the CSA wrote to Ms Mabey and informed her that Mr Mabey had stated that “the care arrangements for [Child 1] and [Child 2] have changed” and that she would be providing 235 nights of care per year from 27 July 2017.[1] On 19 September 2017, Ms Mabey phoned the CSA and confirmed that Mr Mabey was providing five nights of care per fortnight. The CSA decided to record him as providing 35% care from 27 July 2017.[2] Previously, neither parent had been required to pay child support to the other parent. From 27 July 2017, Ms Mabey was required to pay $4,866 per annum in child support to Mr Mabey.

   [1]9 / 14 x 365 = 234.6.

   [2]5 / 14 = 35.7%.

3. Ms Mabey promptly objected to the care decision. An objections officer disallowed her objection. Ms Mabey promptly sought further review by the Tribunal. Mr Mabey was invited to apply to be made a party to the proceedings but he declined to make that application. I heard the matter on 19 April 2018. I spoke to Ms Mabey by conference phone.

4. Prior to the hearing, Ms Mabey provided written submissions. She also stated that she could provide details of the parents’ actual nights of care if so required. I arranged for the Tribunal registry to ask Ms Mabey to provide those details prior to the hearing for the period from May to September 2017, and she did so, but unfortunately that information was not forwarded to me until after the hearing. Nevertheless, it is reasonably clear that Mr Mabey’s agreed pattern of care involved a recurring two-week pattern of care whereby he provided care on Thursday night of Week 1 and Thursday night, Friday night, Saturday night and Sunday night of Week 2.

5. At the hearing, Ms Mabey stated that in theory Mr Mabey was to provide five nights of care per fortnight but in practice he regularly missed nights of care and he did not subsequently provide additional nights of care in lieu of his missed nights of care. She stated that she contemporaneously recorded Mr Mabey’s nights of care on her wall calendar. In the absence of any further evidence on point, I accept Ms Mabey’s evidence concerning the actual nights on which Mr Mabey provided care. For the period from May to September 2017, the care that he would have provided pursuant to the parents’ agreement, and the care that he actually provided, can be summarised as follows:

Planned  Actual  Difference

May          4  4  0

11, 12, 13, 14               11  -3

18  -1

25, 26, 27, 28               25, 26, 27, 28                0

June          1  1  0

8, 9, 10, 11                 8, 9, 10, 11                  0

15  -1

22, 23, 24, 25               22, 23, 24, 25                0

29  29  0

July           6, 7, 8, 9  6, 7, 8  -1

13  13  0

20, 21, 22, 23               20  -4

27  27  0

August       3, 4, 5, 6  3, 4  -2

10  10  0

17, 18, 19, 20               17, 18, 19, 20                0

24  23 [sic]  0

September   31, 1, 2, 3                   31, 1, 2, 3  0

7  -1

14, 15, 16, 17               13, 14, 15, 16, 17         +1

21  -1

28, 29, 30, 1                28  -3

1. When Mr Mabey notified the CSA of a change in care on 27 July 2017, he had regularly provided less care than his planned care. In the absence of any further evidence on point, that historical evidence suggested that he was likely to continue to provide less care than his planned care, and that is what transpired. Viewing that evidence as a whole, when Mr Mabey notified the CSA of a change in care on 27 July 2017 he had been providing, and was likely to continue to provide, an actual pattern of care that was less than his planned five nights of care per fortnight. From May to September 2017 the shortfall was 16 nights, which equates to 16 days / 5 months x 12 months = 38.4 days per annum. (5 days x 26 fortnights – 38 days) / 365 days = 25.2%.

2. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). A mandatory step in the process of making a care decision is the revocation of the existing care determination, which in this case is the determination to record Mr Mabey as providing 30% care from February 2015. Sections 54F, 54G and 54H of the Act provide for the revocation of existing care determinations.

3. One of the requirements of section 54F is that if a new care determination were made, the parent’s cost percentage would change. The term “cost percentage” is defined in section 55C of the Act. If a person’s care percentage is at least 14% and less than 35%, their cost percentage is 24%. Changing Mr Mabey’s recorded care from 30% to 25% would not change his cost percentage. The existing care determination cannot be revoked pursuant to section 54F.

4. One of the requirements of section 54G is that the parent provides less than 14% care. The existing care determination cannot be revoked pursuant to section 54G.

5. Section 54H provides for the revocation of a care decision even if the parent’s cost percentage would not change. However, even if the requirements of section 54H are satisfied, the decision-maker is not automatically required to revoke the existing care determination. Instead, the decision-maker has a discretion to revoke the existing care determination. The discretion must be exercised fairly. Changing Mr Mabey’s recorded care from 30% to 25% would not affect the rate of child support payable between the parents. Neither parent has submitted that a new care decision should be made for some other reason. Viewing the matter as a whole, I consider it preferable not to revoke the existing care determination pursuant to section 54H.

6. For those reasons, the requirements for making a new care decision are not satisfied. The CSA’s decision to record a change in care will be set aside.

DECISION

The decision to record Ms Mabey as providing 65% care and Mr Mabey as providing 35% care to [Child 1] and [Child 2] from 27 July 2017 is set aside and, in substitution, the Tribunal decides not to record a change in care from 27 July 2017.