Marris and Child Support Registrar (Child support)

[2022] AATA 1181

Marris and Child Support Registrar (Child support) [2022] AATA 1181 (7 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022423

APPLICANT:  Mr Marris

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  7 March 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1], [Child 2] and [Child 3]:

• the existing care percentage determination of 30% to Mr Marris is revoked from 18 September 2019 and replaced with a new care percentage determination of 0% applying from 19 September 2019.

• the existing care percentage determination of 70% to Ms Marris is revoked from 28 September 2020 and replaced with a new care percentage determination of 100% applying from 29 September 2020.

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 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

BACKGROUND

1. Mr Marris and Ms Marris are the parents of [Child 1], born 2011, [Child 2], born 2007 and [Child 3], born 2009 (the children).

2. Mr Marris seeks review of an objection decision made by the Child Support Agency (the Agency) on 15 February 2021. This decision disallowed his objection to an earlier decision dated 9 October 2020 to accept Ms Marris’ notification on 29 September 2020 of a change in care for the children on 18 October 2018’

3. The Tribunal heard the matter on 25 February 2022, Mr Marris attended the hearing via conference telephone and gave affirmed evidence. Ms Marris elected not to attend the hearing. The Tribunal had before it documentation provided by the Agency (Exhibit 1) and documentation provided by Mr Marris (Exhibit A).

4. At the conclusion of the hearing, the Tribunal directed Mr Marris to provide a copy of court orders he asserted at the hearing were current as at 18 September 2019 pursuant to which he submitted he was having at least regular care of the children up until 19 September 2019.

ISSUES

1. The issue which arises in this case is the date on which the change in care for the children notified by Ms Marris on 29 September 2020 occurred.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Marris at the hearing and the documents contained in Exhibits 1 and A before the Tribunal at the hearing.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

3. Prior to Ms Marris’ change in care notification on 29 September 2020, the care percentages being assessed by the Agency were 70% to Ms Marris and 30% to Mr Marris.

4. Mr Marris’ case at the hearing was that up until 19 September 2019, the pattern of care he had been having of the children was substantially in accordance with Court Orders made in the Family Court of Australia [dated] 7 May 2018 (the Court Orders), pursuant to which he was having three nights of care on Friday, Saturday and Sunday each alternate fortnight and half of the school holidays.

5. He provided a copy of the Court Orders in compliance with the Tribunal’s direction at the conclusion of the hearing. These orders have been added to his documents, Exhibit B.

6. Mr Marris gave affirmed evidence at the hearing that the level of care he was having of the children up until Ms Marris obtained an Apprehended Domestic Violence Order (the ADV order in the Local Court of New South Wales [on] 19 September 2019 (see pages 208 to 214 of the Agency’s papers, Exhibit1) was substantially in accordance with the terms of the Court Orders. He acknowledged that there were occasions when he did not have care on the weekends when Ms Marris refused to allow him to have care, or when one or other of the children, (two of whom were approximately 12 and 10 years of age in September 2019) chose not to avail themselves of the opportunity to spend time with him, and he also acknowledged that he did not maintain a calendar diary recording the care he was having up until 19 September 2019.

7. He gave affirmed evidence that he did have care of the children on the weekend prior to the child, [Child 3]’s birthday on [date] August 2019, and was to have had care of the children for the September school holidays, but acknowledged he had no further care of the children after Ms Marris obtained the ADV order on 19 September 2019. He gave affirmed evidence that he engaged legal representation to challenge the ADV order which was withdrawn on 24 September 2020 (see pages 206 to 207 of the Agency’s papers, Exhibit 1), shortly prior to Ms Marris’ notification of the change in care she reported to the Agency on 29 September 2020 as having occurred on 3 October 2018.

8. The Tribunal notes there is no evidence in the Agency papers before it in Exhibit 1, particularly in the Agency file records of Ms Marris’ notification of the change in care on 29 September 2020 at pages 142 to 145 of Exhibit 1, or of the care decision made on 9 October 2020, or the record of the discussions the Agency decision maker, [had] with Mr Marris at the time the care decision was made, reflected at pages to 151 to 153 of Exhibit 1, as to the circumstances in which the care for the children actually changed on the event date 3 October 2018, the change date nominated by Ms Marris, regarding the existence or otherwise of earlier Court Orders regarding the care for the children, nor does it appear any serious attempt was made by the Agency officer to investigate the actual care taking place between 3 October 2018 and 19 September 2019, when Ms Marris obtained the ADV order against Mr Marris, the date he nominated as the date the change in care event occurred.

9. The Tribunal finds the evidence, on balance, is that it was not until Mr Marris provided the Agency with copies of the ADV order and the withdrawal of that order in the course of the objection process that Mr Marris’ challenge to Ms Marris’ nominated date for the change in care event of 3 October 2018 was raised.

10. Ms Marris elected not to attend the Tribunal hearing and Mr Marris’ evidence as to the care he was having from 3 October 2018 to 19 September 2019 when the ADV order came into effect is unchallenged.

11. The Tribunal accepts Mr Marris’ evidence as to the care he said he was having prior to 19 September 2019 and finds that the likely pattern of care he was having for the children from 3 October 2018 up until the ADV order of 19 September came into effect was in accordance with the terms of the Court Orders of 7 May 2018 he provided post hearing, and that the likely date of the change in care for the children was therefore 19 September 2019, and not 3 October 2018.

12. Pursuant to section 54F of the Child Support (Assessment) Act 1989 (the Act), the Registrar must revoke an existing percentage of care for a parent if (in summary):

• The Registrar becomes aware that the actual care of the child does not correspond with the existing percentage of care;

• The Registrar is satisfied that a determination of percentage of care consistent with the care that is actually taking place would cause a change in the parent’s cost percentage in the child support formula;

• Section 54G of the Act does not apply.

1. Section 54G of the Act applies if a parent’s percentage of actual care has reduced to below 15%, despite the child being made available to the parent. In this case the Tribunal is satisfied that section 54G does not apply, and that section 54F does apply.

2. Subsection 54F(3) sets out the dates on which the previous care determination will be revoked. Pursuant to paragraph 54F(3)(b), if the Registrar became aware of the change in the level of care more than 28 days after the care change happened:

   ·     The previous care determination for the parent whose care has increased is revoked from the day before the Registrar became aware of the change; and

·     The previous care determination for the parent whose care has decreased is revoked from the day before the change in care occurred.

1. The Tribunal therefore sets aside the objection decision, and decides that the care for the children [Child 1], [Child 2] and [Child 3] has been 100% to Ms Marris and 0% to Mr Marris from 19 September 2019, notified to the Child Support Registrar on 29 September 2020.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1], [Child 2] and [Child 3]:

• the existing care percentage determination of 30% to Mr Marris is revoked from 18 September 2019 and replaced with a new care percentage determination of 0% applying from 19 September 2019.

• the existing care percentage determination of 70% to Ms Marris is revoked from 28 September 2020 and replaced with a new care percentage determination of 100% applying from 29 September 2020.