Manville and Berker (Child support)

[2024] AATA 475

Manville and Berker (Child support) [2024] AATA 475 (19 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026789

APPLICANT:  Mr Manville

OTHER PARTIES:  Child Support Registrar

Ms Berker

TRIBUNAL:Member P Jensen

DECISION DATE:  19 January 2024

DECISION:

The decision under review is set aside and, in substitution:

• Mr Manville is recorded as providing 100% care and Ms Berker is recorded as providing 0% care for [Child 1] and [Child 2] with effect from 1 February 2023; and

• Mr Manville is recorded as providing 39% care and Ms Berker is recorded as providing 61% care for [Child 1] and [Child 2] with effect from 2 March 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern 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. Mr Manville and Ms Berker are the parents of [Child 1] and [Child 2]. A child support case is registered with Services Australia – Child Support (Child Support). Mr Manville was recorded as providing 39% care for the children from 15 July 2020. Ms Berker has always provided the balance of care and, for convenience, I will predominantly refer to Mr Manville’s care.

2. Court orders were made on 26 October 2021. Mr Manville continued to be recorded as providing 39% care. Broadly, he provides care every second weekend and every Wednesday, plus half of the school holidays. The court orders state that if a parent intends to travel overseas without the children, the other parent is to “be given first preference for the children to remain in their primary care whilst the travelling party is overseas”.

3. Ms Berker travelled overseas in 2022 and Mr Manville provided a block of full-time care from 16 March 2022 to 8 April 2022 inclusive. Child Support recorded Mr Manville as providing 100% care from 16 March 2022 and 39% care from 9 April 2022.

4. On 1 February 2023, Ms Berker travelled overseas and Mr Manville started providing a block of full-time care. Both parents promptly notified Child Support of that event. On 2 March 2023, Ms Berker resumed her provision of care. Both parents promptly notified Child Support of that event.

5. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Relevantly, decision-makers are required to determine the pattern of care that a parent has had, or is likely to have, over the relevant care period: section 50 of the Act. For ongoing patterns of care, the relevant care period is often a 12-month period, but each case must be assessed on its particular facts. Government policy concerning a one-off block of full-time care appears at 2.2.2 of the Child Support Guide. The Tribunal is not bound by that policy but will have regard to it when making its decision. The policy states:

   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

6. On 2 April 2023, Child Support decided to record Ms Berker as providing 56% care with effect from 1 January 2023 and Mr Manville as providing 44% care with effect from 2 February 2023. The different dates of effect were the result of Child Support’s conclusion that a change in care had occurred on 1 January 2023 and neither parent had promptly notified it of that change in care: sections 50, 54B and 54F of the Act. Ms Berker promptly objected to that decision. An objections officer allowed the objection and decided to not record a change in care. It appears that the objections officer’s reasoning was as follows:

   ·   Mr Manville’s usual pattern of weekend, mid-week and holiday care, which equated to 39% care, was provided pursuant to the court orders;

   ·   Mr Manville’s block of full-time care was also provided pursuant to the court orders; and

   ·   since all of Mr Manville’s care was provided pursuant to the court orders, there had been no change in care.

7. With respect, there is an obvious flaw in that line of reasoning.

8. Mr Manville promptly applied to the Tribunal for further review. I heard the matter on 19 January 2024.

9. Mr Manville submitted that Ms Berker’s overseas travel had become a pattern. Ms Berker stated that she travelled overseas in 2022 to visit her father who was in poor health. She travelled overseas in 2023 to attend her brother’s wedding. She did not travel overseas for a number of years prior to 2022. I find that Ms Berker’s overseas travel has not become a pattern, but even if it had, that would not necessarily make it appropriate to calculate the parents’ percentages of care over a one-year period.

10. From time to time, Child Support issued assessment notices which stated the rate of child support payable for specific periods. On 29 August 2023, Child Support issued an assessment notice for the period from 11 December 2022 to 31 December 2023. Mr Manville calculated that he provided 44% care during that period and he submitted that he should be recorded as providing that percentage of care during that period. Ms Berker submitted that Mr Manville should be recorded as providing 100% care from 1 February 2023 to 1 March 2023. Mr Manville submitted that if I did not accept his primary submission, I should accept Ms Berker’s submission.

11. There are a number of reasons why Ms Berker’s submission is the more meritorious, and those reasons were discussed during the hearing. Most importantly, there was no change in care on 11 December 2022 (or 1 January 2023). The first change in care occurred on 1 February 2023. During the period from 1 February 2023 to 1 March 2023, the costs that Mr Manville directly incurred in respect of the children increased and the costs that Ms Berker directly incurred decreased. Child support is intended to assist in meeting the children’s day-to-day costs. Recording changes in care from 1 February 2023 and 2 March 2023 will produce administrative assessments that reflect the reality of the situation.

DECISION

The decision under review is set aside and, in substitution:

• Mr Manville is recorded as providing 100% care and Ms Berker is recorded as providing 0% care for [Child 1] and [Child 2] with effect from 1 February 2023; and

• Mr Manville is recorded as providing 39% care and Ms Berker is recorded as providing 61% care for [Child 1] and [Child 2] with effect from 2 March 2023.