McAllister and Child Support Registrar (Child support)

[2021] AATA 3359

McAllister and Child Support Registrar (Child support) [2021] AATA 3359 (29 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021614

APPLICANT:  Mr McAllister

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Sutherland, Senior Member R Ellis

DECISION DATE:  29 July 2021

DECISION:

The Tribunal affirms the decision. This means that the application is unsuccessful.

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 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 review is about a change to the percentage of care determinations for Mr McAllister and [Ms A] in respect of their daughter [Child 1] (born June 2006).

2. There has been a child support assessment in place since 25 February 2008. Mr McAllister is the liable parent.

3. From 1 January 2011 the child support assessment reflected Mr McAllister as having 22 per cent care and [Ms A] as having 78 per cent care of [Child 1].

4. On 12 November 2020 [Ms A] advised the Child Support Agency of a change to the care arrangements stating that from 1 January 2020 Mr McAllister would have care of [Child 1] for one night, one weekend a month = 3 per cent care.

5. On 28 January 2021 the Child Support Agency made the decision to reflect that Mr McAllister provided 6 per cent care of [Child 1] and [Ms A] provided 94 per cent care from 13 March 2020, but with effect from 13 March 2020 for Mr McAllister and from 12 November 2020 for [Ms A].

6. On 20 March 2021 Mr McAllister objected to this decision and on 1 May 2021 the Child Support Agency disallowed the objection (the objection decision).

7. On 28 May 2021 Mr McAllister applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 29 July 2021. Mr McAllister gave evidence on affirmation by conference telephone. [Ms A] choose not to be joined as a party and did not participate in the hearing. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (98 pages).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

Mr McAllister’s evidence

1. Mr McAllister told the Tribunal that:

   ·      There was no court order or other written agreement for the care of [Child 1]. He and [Ms A] had arranged care between themselves. His care was generally two nights on every second weekend and half of school holidays.

   ·      He disputed that care had changed in January 2020; he was restricted from seeing [Child 1] from the time of the COVID-19 lockdown in March 2020 which prohibited him from travelling from the Perth region to Wagin where [Child 1] lived with her mother. The lockdown continued to the end of June 2020. This was beyond his control.

   ·      He had care of [Child 1] in early July 2020 when he took her to [location] on holiday. He accepts the 6 per cent/94 per cent apportionment from July 2020 but not earlier.

   ·      He believes that it is unfair that he should have to pay child support to [Ms A] based on a change in care from 13 March 2020, as determined by the Child Support Agency, as it was circumstances beyond his control that made it difficult for him to see [Child 1].

2. It is not in dispute that care of [Child 1] changed; it must, however, be determined when the care changed.

   The Tribunal is satisfied that in this case, section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by a new percentage of care determination.

3. In his evidence Mr McAllister said he felt he was being penalised for being restricted from seeing [Child 1] due to the prohibition on travel imposed due to the pandemic in March 2020. He said it was difficult for him to meet his care because of the border closures. Mr McAllister added that whenever he was able to travel he had made arrangements to ensure he had care of [Child 1].

4. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established when Mr McAllister had restricted care due to the travel restrictions imposed in March 2020, the restrictions ended on 29 May 2020.

5. While the Tribunal acknowledges this change occurred through no fault of Mr McAllister , there was nonetheless a change in the pattern of care for [Child 1] from around 13 March 2020.

6. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr McAllister and [Ms A] under sections 50 of the Act.

2. The Tribunal finds that a new pattern of care for [Child 1] commenced from 13 March 2020 with Mr McAllister having 6 per cent care and [Ms A] having 94 per cent care.

Date of effect of new care percentage determinations

1. The Tribunal finds that [Ms A] notified the Child Support Agency of the change in care on 12 November 2020. As this is more than 28 days after the change occurred on 13 March 2020 , according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care; [Ms A], from the day before the date of notification being the 11 November 2020, and for the parent with reduced care, Mr McAllister, from the day before the date the change occurred being the 12 March 2020.

2. The new determinations can be made from 13 March 2020 for Mr McAllister and from 12 November 2020 for [Ms A].

DECISION

The Tribunal affirms the decision. This means that the application is unsuccessful.