Mancebo and Mancebo (Child support)

[2021] AATA 1758

Mancebo and Mancebo (Child support) [2021] AATA 1758 (30 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020787

APPLICANT:  Ms Mancebo

OTHER PARTIES:  Child Support Registrar

Mr Mancebo

TRIBUNAL:Member S Brakespeare

DECISION DATE:  30 April 2021

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. Mr Mancebo is the parent liable to pay child support to Ms Mancebo in respect of their children [Child 1] and [Child 2] who are both aged 13 years.

2. On 29 June 2020 Mr Mancebo advised the Child Support Agency that there had been a change to the care arrangements for the children and, from 24 April 2020, he had 100% care of the children. The existing percentage of care determinations reflected that each parent had 50% care of the children.

3. On 2 October 2020 an officer of the Child Support Agency decided to revoke the existing percentage of care determinations and replace them with percentage of care determinations which reflected that Mr Mancebo had 78% care of the children and Ms Mancebo had 22% care of the children, with effect from 24 April 2020 (the original decision).

4. Ms Mancebo objected to the original decision. On 18 January 2021 an objections officer allowed the objection in part and made the following determinations (the objection decision):

   ·Mr Mancebo has 70% care of the children and Ms Mancebo has 30% care of the children from the change of care day 24 April 2020. The date of effect of the increase in Mr Mancebo’s care percentage was the notification date of 29 June 2020. The date of effect of the reduction to Ms Mancebo’s care percentage was the change of care date of 24 April 2020.

5. Ms Mancebo lodged an application for review of the objection decision with the tribunal. A hearing was held on 30 April 2021. Ms Mancebo and Mr Mancebo both gave evidence on affirmation to the tribunal via conference telephone. Mr Mancebo’s legal representative, Mr [A], also participated in the hearing via conference telephone. The Child Support Agency provided the tribunal and the parties with papers relevant to the review (264 pages). Ms Mancebo provided further documents to the tribunal (folios A1 to A47), a copy of which was exchanged with Mr Mancebo prior to the hearing.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

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

2. The issue which arises in this case is whether the percentage of care determinations are to be revoked and replaced with respect to the change of care notified on 29 June 2020.

3. The tribunal notes that another change of care was notified on 23 September 2020 and a further change of care was notified on 18 February 2021. The determinations that arose from these subsequent care notifications do not form part of the review before the tribunal.

4. The decision in respect of the percentage of care change also resulted in other determinations regarding a Binding Child Support Agreement between the parties. Those determinations are not before the tribunal.

CONSIDERATION

1. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to the Child Support Agency of a change of care arrangements. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

2. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency - so that a new primary care percentage decision can be considered, and made if appropriate.

3. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Child Support Agency.

4. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply[1].

   [1] The tribunal is satisfied that section 54G does not apply to this case.

5. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

6. It is Ms Mancebo’s contention that at all relevant times in the care period commencing 24 April 2020 she had at least 35% care of the children. She said that Mr Mancebo never had 100% care from 24 April 2020 as he claimed. Ms Mancebo said that immediately prior to that change of care day she had sole care of the children due to Mr Mancebo’s health issues and COVID-19. The change in care of 24 April 2020 came about because of the stress caused by her business having to close due to COVID-19 as well as her having the 100% care of the children. Ms Mancebo said that despite placing the children into Mr Mancebo’s care she always intended to have them every second weekend and for the whole of the school holidays.

7. Ms Mancebo also said that there has always been a degree of fluidity in respect of the children’s care and in her view the ongoing arrangement that the children are in the shared care of both parents has not changed and should not be disrupted by the events arising from the change of care of 24 April 2020.

8. Mr Mancebo agreed that prior to 24 April 2020 Ms Mancebo had had 100% care of the children for a short period due to his health concerns. He said that Ms Mancebo unilaterally decided on 24 April 2020 that he would have 100% custody of the children and that she would have them in her care for every second weekend (3 nights per fortnight). Mr Mancebo said that it was always his intention to work toward re-establishing the 50% care arrangement but Ms Mancebo was very resistant to any suggestion of returning to 50% care. He said that although he agreed with her having 100% care of the children for the first lot of school holidays that occurred after the care change (that is, at the end of Term 2), he would never agree to an ongoing arrangement where he would have no care over the school holidays, as claimed by Ms Mancebo.

9. The tribunal finds that on 1 August 2020 Ms Mancebo made the following entry via the Child Support Agency online services:

   1.     I have changed my address…

   2.     That my children reside with me at this address and as agreed with their father I have them every second weekend

   I had them full time last school holidays for 3 weeks and have requested that I have them full time in the next school holidays. However their father has agreed to a 50/50 split for that school holidays.

10. The tribunal takes the view that at the time Mr Mancebo advised the Child Support Agency that there had been a change of care, the established pattern of care from 24 April 2020 was that Ms Mancebo was having three nights per fortnight care. It also appears that at the time there was an agreement for Ms Mancebo to have the children for all of the school holidays at the end of Term 2. However the evidence indicates that the intent of the parents differed as to the arrangements for the school holidays at the end of Term 3 and beyond. Ms Mancebo wanted 100% care during those holidays but Mr Mancebo would only agree to 50%.

11. There was no evidence before the tribunal to suggest that, at that time, the care of the children was likely to revert to 50% for each parent.

12. The tribunal therefore finds that the likely pattern of care (over a 12-month care period commencing 24 April 2020) was for Ms Mancebo to have 113 nights care, taking into account 3 nights per fortnight care during school terms; 7 nights care for 7 weeks of the school holidays, and an additional 7 nights care for the Term 2 school holidays. This means that Ms Mancebo’s care was likely to be 30% and Mr Mancebo’s care was likely to be 70% at the time the Child Support Agency was notified of the change of care.

13. The tribunal notes that Ms Mancebo has provided care calendars which show that her actual nights of care in the 12-month care period was much higher than 30%. However the tribunal notes that there were subsequent changes in care that effect those percentages. It is not appropriate for the tribunal to take into account those subsequent care changes, when deciding what the actual care was at the time the care change was notified.

14. A change to percentages of care reflecting 30% care to Ms Mancebo and 70% care to Mr Mancebo results in a change to the cost percentages, from 50% to 24% for Ms Mancebo and from 50% to 76% for Mr Mancebo.

15. This means that the existing percentage of care determinations must be revoked and replaced with new percentage of care determinations in accordance with section 50 of the Act. As the care change was notified more than 28 days after the change of care day, the percentage of care determinations in respect of Ms Mancebo take effect from the change of care day (24 April 2020) and the percentage of care determinations in respect of Mr Mancebo take effect from the notification day (29 June 2020) (subsections 54B(2) and 54F(3) of the Act).

16. The tribunal therefore determined that the existing percentage of care determinations are to be revoked and replaced by the following percentage of care determinations:

    ·Ms Mancebo has 30% care of the children with effect from 24 April 2020;

    ·Mr Mancebo has 70% care of the children with effect from 29 June 2020.

DECISION

The decision under review is affirmed.