Mayo and Leckner (Child support)

[2020] AATA 1749

Mayo and Leckner (Child support) [2020] AATA 1749 (21 April 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018500

APPLICANT:  Mr Mayo

OTHER PARTIES:  Ms Leckner

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  21 April 2020

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked – the correct new percentages of care determined - decision under review affirmed

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 relates to a decision by the Department of Human Services – Child Support (the Department) relating to the level of care provided by Mr Mayo and Ms Leckner to their children [Child 1] and [Child 2] for child support purposes.

2. Under the administrative assessment of child support, the particulars of the assessment included that Mr Mayo had 21% care of the children and Ms Leckner had 79% care of the children.

3. On 6 August 2019 Mr Mayo contacted the Department to advise that he had had five nights per fortnight care of the children since 21 July 2019.

4. On 9 August 2019, an employee of the Department made a decision to change the particulars of the assessment to reflect Mr Mayo as having 72% care of the children and Ms Leckner as having 28% care of the children from 21 July 2019.

5. Ms Leckner objected to this decision on 14 August 2019.

6. On 12 February 2020, an objections officer of the Department allowed the objection. The objections officer made a decision to change the particulars of the assessment to reflect Mr Mayo as having 62% care of the children and Ms Leckner as having 38% care of the children from 21 July 2019.

7. On 27 February 2020 Mr Mayo made an application to the Administrative Appeals Tribunal for an independent review of the Department’s decision.  The hearing was held on 21 April   2020, on which date both parties spoke to the Tribunal by conference telephone and gave evidence on affirmation. At the hearing the Tribunal had before it documents provided by the Department, copies of which were provided to the parties prior to the hearing. Further documents provided by Mr Mayo were also exchanged between the parties prior to the hearing.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.  The legal issues for the Tribunal in this case relate to the percentages of care maintained by the Department in the child support assessment.  The Tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

2. The relevant provisions considered by the Tribunal were sections 54F, 54G and 54H of the Assessment Act, all of which allow for the Registrar (or the Tribunal, standing in the shoes of the Registrar) to revoke an existing care determination.

3. The Tribunal first considered section 54F of the Assessment Act which provides for a determination of care to be revoked where there is a change to a responsible person’s pattern of care. Subsection 54F(1) of the Assessment Act sets out certain circumstances in which a determination of a percentage of care must be revoked. In applying this provision, the Tribunal must consider both the existing percentage of care under the administrative assessment of child support and what the new percentage of care would be if another percentage of care were determined.

4. On the evidence before it, the Tribunal was satisfied that an existing determination of care had been made, reflecting that Mr Mayo provided 21% care of the children and Ms Leckner provided 79% care of the children.  The Tribunal was satisfied on the evidence before it that Mr Mayo notified the Department of a change to care arrangements on 6 August 2019, in particular, that from 21 July 2019 he had had five nights per week care of the children.

5. The Tribunal must then consider whether the cost percentage would change if the Tribunal were to determine another percentage of care for the children.

6. The Tribunal was satisfied from the evidence given by both of the parties that care for the children changed from 21 July 2019.  The parties were in agreement that, at that point in time when a new care arrangement was negotiated between them, the intention of both of the parties going forward was for Mr Mayo to have five nights a week care of the children and Ms Leckner to have care of the children on the weekend, and that this was to be reversed in the school holidays.

7. Mr Mayo stated to the Tribunal that his reasons for the application were that care should have been reflected as 62% to him and 38% to Ms Leckner.  When the Tribunal observed that this was, in fact, the decision that the Department had made that was before the Tribunal, Mr Mayo stated that there had been a typographical error in the correspondence sent to the parties, reflecting the wrong care percentage.  This had, be believes, been rectified. 

8. Based on the agreed evidence of the parties, the Tribunal finds that, as of 6 August 2019 when Mr Mayo contacted the Department, the changed care arrangements were that Mr Mayo would have five nights of care and Ms Leckner two nights of care, during term time; and that this would be reversed during school holidays.  The Department has provided calculations based on this pattern of care, set out in the objections officer’s decision, which was not disputed by the parties.  The Tribunal finds that as of 6 August 2019 the changed care arrangements provided for Mr Mayo to have 62% care of the children and for Ms Leckner to have 38% care of the children.

9. Ms Leckner told the Tribunal that this pattern did not continue and that she increasingly had additional care of the children.  She stated to the Tribunal that she had contacted the Department when care further changed and the Tribunal considered that, at each point care changed, there was a separate care decision that should have been made by the Department and which does not form the basis for this decision. 

10. The Tribunal is satisfied that if the Tribunal was to make a new determination of care of Mr Mayo having 62% care of the children, his cost percentage would change from 24% care of the children to 65% (see: section 55C of the Assessment Act).

11. The Tribunal must next consider whether section 54G applies. This section applies where one parent was to have at least regular care of a child during a care period and has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another person making the child available to them. The Tribunal is satisfied that section 54G does not apply in this case.

12. Finally, the Tribunal must consider whether subsection 54F(2) applies.  The Tribunal is satisfied that it does on the basis that section 51 did not apply to the circumstances of this case.

13. The requirements set out in section 54F of the Assessment Act are therefore all established and the Tribunal must, in consequence, revoke the existing care determination. Paragraph 54F(3)(a) is the relevant provision in this case and provides that, where the Department is notified or otherwise becomes aware of the change within 28 days after the change of care day, the revocation takes effect the day before care changed. The existing determination of care providing for Mr Mayo to have 21% care of the children and Ms Leckner to have 79% care of the children is revoked from 20 July 2019. From 21 July 2019 a new determination of care is made that Mr Mayo has 62% care of the children and Ms Leckner has 38% care of the children. For this reason, the Department decision is legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.