Maher and Crossman (Child support)

[2020] AATA 2680

Maher and Crossman (Child support) [2020] AATA 2680 (11 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018972

APPLICANT:  Mr Maher

OTHER PARTIES:  Child Support Registrar

Ms Crossman

TRIBUNAL:Member J Leonard

DECISION DATE:  11 June 2020

DECISION:

The decision under review is varied so that:

·     from 22 October 2019 Ms Crossman has a care percentage of 40% in respect of [Child 1], and Mr Maher has a care percentage of 39%; and

·     from 21 November 2019 Mr Maher has a care percentage of 60% in respect of [Child 1] and Ms Crossman has a care percentage of 40%.

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 – date of revocation of existing care determinations
- decision under review varied

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. This application for review is about the amount of child support to be paid by Mr Maher to Ms Crossman.

2. Since 22 May 2015, the amount of child support payable by Mr Maher to Ms Crossman has been determined in accordance with a binding child support agreement which had been accepted by the then Department of Human Services; now Services Australia – Child Support (the Department).  The agreement related to two children, [Child 1] and [Child 2].

3. On 21 November 2019, Mr Maher advised the Department that the care arrangements for [Child 1] had changed.  After considering that information a departmental employee decided, on 20 December 2019, that the care percentages used in the child support assessment in respect of [Child 1] were 29% for Ms Crossman from 22 October 2019 and 71% for Mr Maher from 21 November 2019. This meant that the binding child support agreement in respect of [Child 1] had ended as Ms Crossman’s care percentage was not at least 35%.

4. Ms Crossman objected to that decision, stating that the care of [Child 1] had not changed on an ongoing basis and was only a temporary deviation in the care arrangement.

5. On 8 April 2020 that objection was allowed, and Ms Crossman was recorded as having 44% care of [Child 1] and Mr Maher 56% care of [Child 1]. The effect of this decision is that the binding agreement was reinstated from 22 October 2019.  Mr Maher applied to this Tribunal on 4 May 2020 seeking an independent review.

6. A hearing into the application for review was conducted on 11 June 2020.  Ms Crossman and Mr Maher both participated in the hearing by conference telephone and both gave evidence during the hearing.  Mr Maher was represented by [Mr A] who made oral submissions. The Tribunal had before it relevant documents provided to it by the Department (326 pages), and material lodged by Ms Crossman (labelled folios B1 to B30).

ISSUES

1. The statutory provisions relevant to this review are found within the Child Support (Assessment) Act 1989 (the Act). The issues the Tribunal must decide are:

   ·         whether there was a change to the care arrangements for [Child 1]; and if so

   ·         what care percentages should be used in the child support assessment and the date from which they have effect.

CONSIDERATION

1. Part 5 of the Act governs administrative assessment of the child support payable by one separated parent to the other.  Section 35A of the Act provides a simplified outline of Part 5, which prescribes that a statutory formula set out in that Part is used in assessing the annual rate of child support “other than in cases where that rate is worked out in accordance with a child support agreement, a Registrar’s determination under Part 6A or a court order”.

2. Part 6 of the Act deals with child support agreements.  Section 80C of the Act defines binding child support agreements.  A binding child support agreement was signed on 19 May 2015 and this has determined the quantum of Mr Maher’ liability to pay child support to Ms Crossman for their two children.

3. Section 80D of the Act provides the circumstances in which a binding child support agreement may be terminated. Paragraph 80D(1)(d) of the Act provides that an agreement is terminated if the parent entitled to receive child support ceases to be an eligible carer under subsection 80D(2A) of the Act.

4. The term eligible carer is defined in section 7B of the Act to include a parent who has at least shared care of the child.  Subsection 5(3) of the Act defines shared care to be care of at least 35%, but not more than 65%.

Was there a change to the care of [Child 1]?

1. From 4 August 2019 the level of care for [Child 1] was recorded as 61% to Ms Crossman and 39% to Mr Maher.

2. On 21 November 2019 Mr Maher advised the Department that from 22 October 2019 his care of [Child 1] during school terms had increased to 11 nights per fortnight, and he would continue to have 50% care of her during the school holidays. Ms Crossman advised the care was for a temporary period until the end of school term and would then revert to 50/50 care. Mr Maher and Ms Crossman provided consistent information regarding the dates [Child 1] was in their care.

3. The Tribunal considers that Mr Maher’ increased care was not substitute care arising from previous missed care events. Rather, it was as a result of [Child 1] wishing to spend extra time with Mr Maher.

4. In text messages between Ms Crossman and Mr Maher on 21 October 2019 it was discussed that [Child 1] was keen to spend additional time with Mr Maher while she undertakes a 90-day health challenge with her stepmother and sits her exams. It is agreed that [Child 1] will stay Mr Maher for 11 nights per fortnight. Ms Crossman states in part:

   So it should all be OK for the remainder of term 4 – i.e. 4th December when [Child 1] finishes school for the year and we go to 50/50 for the school holidays. After that we will discuss what we will do next year when school goes back.

5. On 17 December 2019 Ms Crossman texted Mr Maher to arrange a time to meet to discuss whether [Child 1] will stay more frequently than her sister when school resumes.

6. On 27 December 2019 Mr Maher proposed a meeting in mid-January 2020 to discuss care and schooling arrangements for [Child 1]. Mr Maher advised Ms Crossman on 14 January 2020 that he was unable to attend their meeting as arranged and recommended sticking with the current arrangements agreed from 22 October 2019. Ms Crossman replied that previous arrangements were for a temporary period until 4 December 2019.

7. Ms Crossman told the Tribunal she was open to having a discussion regarding [Child 1] staying more than four to five nights a fortnight with Mr Maher, but no agreement had been reached. She sought legal advice, and on 22 January 2020 her lawyers wrote to Mr Maher’ legal representatives advising him that the arrangements agreed to in August 2019 were to continue in relation to the children whereby they spend five nights per fortnight in his care.

8. On 23 April 2020 Ms Crossman advised the Department that they had agreed that the care of [Child 1] would be shared 50/50 and this arrangement had continued from the end of the school holidays.

9. [Mr A] drew the Tribunal’s attention to section 80D of the Act. He submitted that the change of care occurred on 22 October 2019 which resulted in Ms Crossman ceasing to be an eligible carer from that date. He submitted that as she did not satisfy the definition of an eligible carer within 28 days of 22 October 2019, the binding child support agreement was terminated.

10. When reviewing a decision relating to a care percentage, the Tribunal must determine the percentage of care during the care period. A care period is defined in subparagraph 50(1)(b)(ii) of the Act. The Tribunal must choose a care period that is appropriate in the circumstances of each case.

11. In this case the Tribunal determines that the appropriate care period extends from 22 October 2019 until the end of the school holidays, 31 January 2020, as the pattern of care for [Child 1] was agreed to and decided on for this period. The care of [Child 1] beyond this date was not agreed to by the parents on 21 October 2019 and was to be subsequently discussed and determined.

12. The Tribunal determines that for the care period 22 October 2019 to 31 January 2020 inclusive, (a period of 102 days), [Child 1] was in the care of Mr Maher for 61 nights, resulting in a care percentage of 60% (rounded up). Ms Crossman had a care percentage of 40% in respect of [Child 1] for this care period.

13. The existing care determination is revoked as the actual care of [Child 1] from 22 October 2019 does not correspond with the existing percentage of care for her, and the change in the percentage of care results in a change in the relevant cost percentages used in the assessment.

When does the new care percentage take effect from?

1. The existing care determination is revoked under subsection 54F(1) of the Act as the cost percentage used in the assessment would change as a result of the change in care. As the change of care was notified more than 28 days after the change of care day, the information is applied to the assessment in different ways.

2. For Ms Crossman, the date of effect of the reduced care percentage is from the change of care day; 22 October 2019. For Mr Maher, the date of effect of the increased care percentage is the date of notification; 21 November 2019.

DECISION

The decision under review is varied so that:

·     from 22 October 2019 Ms Crossman has a care percentage of 40% in respect of [Child 1], and Mr Maher has a care percentage of 39%; and

·     from 21 November 2019 Mr Maher has a care percentage of 60% in respect of [Child 1] and Ms Crossman has a care percentage of 40%.