McCoskey and Eckersely (Child support)

[2018] AATA 1240

McCoskey and Eckersely (Child support) [2018] AATA 1240 (23 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013054

APPLICANT:  Ms McCoskey

OTHER PARTIES:  Child Support Registrar

Mr Eckersley

TRIBUNAL:Member J Cuthbert

DECISION DATE:  23 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Percentages of care – Court order – No changes to likely pattern of care – 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. Ms McCoskey and Mr Eckersley are the parents of [Child 1] (born 2011). There has been a child support assessment in place made by the Department of Human Services – Child Support (the Department) since 2012. From 15 March 2017 the assessment was based on Ms McCoskey having a care percentage of 62% for [Child 1] and Mr Eckersley having a care percentage of 38%. Ms McCoskey lodged an objection to that care percentage determination, but her objection was disallowed on 5 July 2017.

2. In her objection to that decision Ms McCoskey notified the Department that the care pattern for [Child 1] had changed from 6 May 2017.

3. A decision was made on 16 August 2017 to vary the care percentages used in the assessment so that from 5 July 2017 Ms McCoskey had a care percentage of 80% for [Child 1] and Mr Eckersley had a care percentage of 20%.

4. Mr Eckersley lodged an objection to that decision on 22 August 2017. His objection was allowed on 8 November 2017. The objections officer decided that there should have been no change made to the care percentages used in the child support assessment for [Child 1]. Notice of the decision was sent to the Ms McCoskey and Mr Eckersley on 10 November 2017.

5. On 5 December 2017 Ms McCoskey made a written application to the tribunal for a review of the objections officer’s decision made in November 2017. She did not seek a review of the objection decision made on 5 July 2017.

6. The application was heard on 22 February 2018. Ms McCoskey attended the hearing by telephone. Mr Eckersley attended the hearing in person. In addition to oral evidence, the tribunal had regard to documents provided by the Department (folios 1 to 440) and documents provided by Mr Eckersley (folios B1 to B148).

7. Following the hearing both parties were given an opportunity to provide further documents to the tribunal by 1 March 2018. Ms McCoskey provided documents (folios A1 to A21). Copies of those documents were sent to Mr Eckersley and he was provided with an opportunity to comment. Comments and other additional information were received from Mr Eckersley on 8 March 2018. The additional documents and comments were taken into account by the tribunal in making its decision.

ISSUES

1. The issues the tribunal must decide are:

   ·       whether there was a change to the care pattern for [Child 1] from May 2017 such that the care percentages used in the child support assessment should be revoked; and if so

   ·       the new care percentages which apply and the date from which they take effect.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). After accepting an application for a child support assessment, the Department (acting for the Child Support Registrar) makes a child support assessment using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment or if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Care percentages must be revoked and new care percentages determined if:

   ·a person no longer has a care percentage of at least 14% and the Department is notified within a reasonable period (section 54G of the Assessment Act); or

   ·the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply (section 54F of the Assessment Act).

4. The date of effect of any revocation of care percentages under section 54F of the Assessment Act and the date of changes to the percentages used depend on when the Department was notified or became aware of the change. If the Department is notified of the change more than 28 days after it occurred, the date of revocation is the day before the Department was notified. Any new care percentages generally take effect from the following day.

5. The tribunal finds that court orders concerning the care of [Child 1] which were made in 2014 continue to be in force. Those orders set out parenting arrangements both before and after [Child 1] “commences her formal education”.  Order 4.4 of the orders provides that for the year after [Child 1] commences her formal education she will spend two nights with Mr Eckersley on each alternate weekend during school terms, one week during each of the three term holidays and for two one week periods in the Christmas school holidays. Order 4.5 provides that from the start of the following school year [Child 1] is to be in Mr Eckersley’s care for four nights each alternate week during school terms and for half of all the school holiday periods.

6. There is a dispute between Ms McCoskey and Mr Eckersley as to when [Child 1] commenced her formal education. Mr Eckersley enrolled [Child 1] at [School 1] to start kindergarten in February 2016. However, [Child 1] was removed from the school by Ms McCoskey. [Child 1] subsequently started kindergarten [in] February 2017.

7. On 4 February 2017 the Family Court ordered that “formal education” in order 4.4 of the 2014 orders refers to [Child 1] begin enrolled in a public school in NSW to commence kindergarten. The court noted that as the orders provide for equal shared parental responsibility [Child 1]’s enrolment at a public school such as [School 1], required the agreement of both parents, as evidenced by the signatures of both parents on an enrolment form.

8. The parents interpret the orders differently. Mr Eckersley considers that order 4.5 applies from the start of the 2017 school year and Ms McCoskey contends that it does not apply until the start of the 2018 school year. The care percentages determined from 15 March 2017 were based on the pattern set out in order 4.5 which was found to be the pattern actually occurring. In addition, Mr Eckersley had care of [Child 1] for an additional night during school terms.

9. Ms McCoskey told the tribunal that there was to be a change from May 2017 so that the arrangements reverted to the pattern set out in order 4.4. She referred to a letter sent to her by her solicitor [in] March 2017 which stated that order 4.4 should apply until the start of the 2018 school year. At the hearing she told the tribunal that a copy of the letter was sent to Mr Eckersley. Mr Eckersley denied he had received the letter. He said he was only aware of the letter as it was contained in the Department’s papers provided for the purpose of the review. Ms McCoskey later acknowledged that she may not have sent a copy to Mr Eckersley. The tribunal finds no evidence that Mr Eckersley agreed to a change to the care pattern.

10. Ms McCoskey acknowledges that from May 2017 Mr Eckersley continued to have care of [Child 1] in accordance with order 4.5, contrary to her interpretation of the orders. However, she states that she had care of [Child 1] for 70% of the nights from 1 January to 31 December 2017. The calendar entries Ms McCoskey provided shows that, apart from two additional nights which [Child 1] spent with Mr Eckersley in April 2017, there was no change to the pattern of care from early 2017 to May 2017. The tribunal finds that there was no change to the care pattern for [Child 1] in May 2017.

DECISION

The decision under review is affirmed.