Maurice and Child Support Registrar (Child support)

[2019] AATA 5513

Maurice and Child Support Registrar (Child support) [2019] AATA 5513 (5 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/SC017064

APPLICANT:  Mr Maurice

OTHER PARTIES:  Child Support Registrar 

TRIBUNAL:Member F Hewson

DECISION DATE:  5 November 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision not to revoke the percentage of care determinations.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Maurice and Ms Jacobson are the parents of children, now aged 15 and 17, in respect of whom there is a child support assessment. This application is about the percentages of care for the children used in the child support assessment.

2. From 13 July 2012, the Department of Human Services – Child Support (the Department) recorded that Mr Maurice had a percentage of care of the children of 50% and Ms Jacobson also had a percentage of care of 50%.

3. On 26 October 2018, Mr Maurice advised the Family Assistance Office (FAO) that care of the children had changed, such that he had a percentage of care of the children of 100%. He submitted a calendar showing the care he had. Ms Jacobson disputed the change in care and stated that the parents had week about care of the children, in accordance with Court Orders made in 2007.

4. On 11 March 2019, the FAO made percentage of care determinations that:

   ·from 1 April 2018, Mr Maurice had a percentage of care of the children of 83% and 80% respectively and Ms Jacobson had the remaining care.

   ·from 1 October 2018, Mr Maurice had a percentage of care of the children of 50% and Ms Jacobson had a percentage of care of 50%.

5. On 12 March 2019, Mr Maurice lodged an objection to the care decision in relation to the period from 1 October 2018. The objection was considered by an objections officer who, on 20 July 2019, disallowed the objection.

6. On 1 August 2019, Mr Maurice lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 5 November 2019. Mr Maurice spoke to the tribunal by conference telephone. Ms Jacobson was invited to apply to be added as a party to the review, but did not respond. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr Maurice, the tribunal also had regard to the documents provided by the Department.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. As set out above, the Department recorded that from 13 July 2012 Mr Maurice had a percentage of care of the children of 50% and Ms Jacobson also had a percentage of care of 50%. On 26 October 2018, Mr Maurice advised the FAO that the care of the children had changed, such that he had a percentage of care of the children of 100%. He submitted a calendar showing the care he had. Ms Jacobson disputed the change in care and stated that the parents had week about care of the children, in accordance with Court Orders made in 2007.

3. On 11 March 2019, the FAO made decisions about the percentages of care from 1 April 2018 and 1 October 2018, as set out above. Under alignment of care provisions in the Act, those decisions, made under the family assistance law, have effect under the child support law (section 54K of the Act) as if it were a determination made by the Registrar under the Act.

4. The existing care in this case, as a result of the decision made by the FAO in relation to the period from 1 April 2018, reflects that Mr Maurice had a percentage of care of the children of 83% and 80% respectively and Ms Jacobson had the remaining care.

5. Mr Maurice said he disagreed with the Department’s decision because they misunderstood the information included in the calendars he provided. He said the basis of the care was supposed to be week about, as set out in the 2007 Court Orders, so he marked the calendar with an “[Initial 1]” for his weeks and an “[Initial 2]” for Ms Jacobson’s weeks. He said most of the time Ms Jacobson did not have the care in accordance with the Court Orders. He marked the calendar to indicate when he had care of the children during Ms Jacobson’s weeks. He said where there was nothing marked on the calendar in his weeks, it was because he had care as planned. 

6. Mr Maurice said one of the children [aged 17] went to live with Ms Jacobson in May 2019, but he often comes back to stay overnight and regularly comes there to eat. He said his oldest son [who is over 18] also comes to his home to eat. The tribunal explained that it was reviewing the change of care about which he notified in October 2018, and its decision would not affect the subsequent decision that Ms Jacobson had a percentage of care of the child of 100% from May 2019.

7. Mr Maurice said he notified of the change in care in October 2018 because he didn’t think it was fair that Ms Jacobson was getting half of the “endowment” payments for the children when she had very little of the care. The tribunal noted that the existing care indicated that he was entitled to all of the family tax benefit from April 2018. Mr Maurice said he had raised it time and time again with Centrelink and the Child Support Agency, but he had never been paid more than 50% of the payment, even though he had all of the care. Mr Maurice said he believed he should be assessed to have a percentage of care of 100%, based on the care he has had since 2007. He agreed, however, that Ms Jacobson had some care. The tribunal explained that if Ms Jacobson was assessed as having some care of the children, even a small amount, he could not be assessed as having 100% of the care.

8. The tribunal did not have the opportunity to speak to Ms Jacobson about the care. The documents provided by the Department include her response to Mr Maurice’s notification of a change in the care. She stated that the care was in accordance with Court Orders, which provide for week about care. Ms Jacobson provided statements from third parties to the effect that she shares the care of the children with Mr Maurice, on a week about basis. Ms Jacobson also submitted a copy of a Family Consultant Memorandum, prepared for the Federal Magistrates Court in 2013.

9. Mr Maurice also submitted statements from third parties, which assert that the children are in his care most of the time. The calendars submitted by Mr Maurice for the period from April 2018 indicate that he has most of the care of the children, and that Ms Jacobson has some care on nights that vary.

10. The tribunal considered the pattern of care in this case, taking into account the evidence of Mr Maurice at the hearing and the information in the documents provided by the Department. Although Mr Maurice stated on a number of occasions that he should be assessed to have 100% of the care of the children, he also acknowledged that Ms Jacobson has some care, although he was adamant that it is much less than the 50% in the Court Orders. Both parties have supplied statements from third parties in support of the care they state they have of the children. There is no evidence before the tribunal that either party has taken action to have the Court Orders complied with. The tribunal found the evidence of Mr Maurice to be credible, to the extent that it accepted that the children are in his care more than 50% of the time, but it did not accept that he has a percentage of care of 100%. The existing percentage of care determinations reflect that Mr Maurice has a percentage of care of the children of 83% and 80% respectively from April 2018. Neither party has submitted persuasive evidence that that the existing determinations are not a reasonable reflection of the care that is occurring. In the circumstances I decided not to revoke the existing percentage of care determinations. This means the existing determinations will remain in effect until, as has occurred in relation to one of the children in May 2019, new determinations have been made.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision not to revoke the existing percentage of care determinations.