Maguire and Maguire (Child support)

[2022] AATA 4000

Maguire and Maguire (Child support) [2022] AATA 4000 (2 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024547

APPLICANT:  Ms Maguire

OTHER PARTIES:  Child Support Registrar

Mr Maguire

TRIBUNAL:Member A Schiwy

DECISION DATE:  2 November 2022

DECISION:

The decision under review is affirmed.

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

2. A child support case has been registered since late 2020.  Services Australia (Child Support) made a determination that Ms Maguire had 64% care of [Child 1] and Mr Maguire had 36% care.

3. On 12 April 2022 Mr Maguire applied for a change in care stating that he had 39% care from 2 April 2022.

4. On 19 June 2022 Child Support determined that Ms Maguire had 61% care of [Child 1] and Mr Maguire had 39% care from 2 April 2022.

5. On 26 July 2022 Ms Maguire objected to the care decision and on 8 August 2022 a Child Support objections officer decided to disallow the objection. 

6. On 8 August 2022 Ms Maguire applied to this tribunal for an independent review of the objections officer’s decision.

7. A hearing into the application for review was held by the tribunal on 2 November 2022.  Both parents participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.

8. The tribunal had before it relevant documents provided to it by Child Support and further evidence from Ms Maguire (A1 to A4) and Mr Maguire (B1 to B5).  A copy of the papers were 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 (normally 12 months), 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 parents entered into a written parenting plan in 2020.  From April 2022 it allows for Mr Maguire to have care of [Child 1] for five nights per fortnight during school term; three nights one week and two nights the next; and half of each of the four school holidays.  The plan also allows for [Child 1] to be with a parent if it is their birthday and on alternating Christmases.  The parents have since agreed to have [Child 1] for half of each Christmas Day.

5. The school that [Child 1] attends has 13 weeks of holidays each year.

6. The parents have provided calendars for the period April 2022 to March 2023 to show what days of care each of them will have over that 12-month period.  There are some differences in how the parents have interpreted the parenting plan, resulting in small differences over the 12‑month period.

7. The tribunal noted that the exact number of days per year of care for each parent will depend on where the holidays fall in relation to the weeks Mr Maguire has either two or three days per fortnight.  However, it is clearly the intention of the parents that over time, Mr Maguire has the child for five nights per fortnight during term and half of all holidays.

8. The tribunal decided that an appropriate care period in this case would be two years as there are slight differences in odd years and even years.  This results in a likely care pattern of 222 days per year for Ms Maguire and 143 days for Mr Maguire (five days per fortnight over 78 weeks of term and half of the 26 weeks of holidays averaged over two years).  This results in care percentages of 61% to Ms Maguire and 39% to Mr Maguire.

9. As this change in care percentages results in a change in cost percentages, the previous care determination of 64%/36% must be revoked (the costs of the child increase by 2% every percentage point of care over 35%).

10. Mr Maguire applied for the change in care on 12 April 2022 for a change in care that occurred from 2 April 2022. As this is less than 28 days after the care changed, the date of effect for the change in care will therefore be from 2 April 2022.

11. The tribunal therefore decided to affirm the decision under review.

DECISION

The decision under review is affirmed.