McGann and Mirams (Child support)

[2023] AATA 1043

McGann and Mirams (Child support) [2023] AATA 1043 (20 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024924

APPLICANT:  Ms McGann

OTHER PARTIES:  Child Support Registrar

Mr Mirams

TRIBUNAL:Member M Sutherland

DECISION DATE:  20 March 2023

DECISION:

The decision under review is affirmed.

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 omitted 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 determination for Ms McGann and Mr Mirams (the parents) in respect of their [children], born in 2013 and 2015 respectively.

2. There has been a child support assessment in place since 22 October 2015. Mr Mirams is the parent liable to pay child support. From 5 December 2019 the child support assessment reflected Ms McGann as having 67% care and Mr Mirams as having 33% care.

3. On 31 August 2022 Mr Mirams notified the Child Support Agency (the Agency) of a change to the care arrangements stating that he provided 35% care and Ms McGann provided 65% of care, from 22 February 2022.

4. On 31 August 2022 the Agency made the decision to grant the change of care as advised by Mr Mirams to be 35% to Mr Mirams 65% to Ms McGann from 22 February 2022, notified on 31 August 2022.

5. On 1 September 2022 Ms McGann objected to this decision and on 18 October 2022 the Agency disallowed the objection (the objection decision).

6. On 27 October 2022 Ms McGann applied to the Tribunal for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 20 March 2023. Ms McGann and Mr Mirams gave evidence on affirmation by conference telephone. The Agency provided the Tribunal and the parties with papers relevant to the matter (149 pages). The Tribunal also received additional information from Ms McGann after the hearing and a copy was distributed to the parties (A1–A10). At the hearing Mr Mirams was invited to provide further submissions but did not do so.

THE LAW

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The 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. The 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.

4. Upon revocation, a new care percentage determination must be made. Usually, where a parent has a pattern of care for a child, the 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 (sections 49 and 50 of the Act). In other words, the Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter. A care percentage determination made by the Agency continues in effect unless and until it is revoked.

5. The child support law regulates when a care determination will be revoked and when a change to a care determination will affect a child support assessment.

THE ISSUES

1. The issues in this matter are:

   ·      has there been a change in the pattern of care for the children 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

1. Ms McGann said:

   ·      That after 22 February 2022 care had stayed the same since the court order in 2019, and there had been no change after new court orders were entered into in February 2021.

   ·      Mr Mirams has not been having the children as per the court order of 2019. Mr Mirams continually tried to make and dictate changes without her consent especially during school holidays.

   ·      In the 2022 April holidays Mr Mirams refused to have his court ordered care from 6 to 12 and 20 to 25 April 2022 (inclusive); he missed 13 nights. She did not report this to the Agency as she believed that it was a one-off event and not a change to the pattern of care.

   ·      Mr Mirams has told her that for the September/October 2022 school holidays he will be having care on different dates to those stated. She agreed to the children going 2 days early on 3 October 2022 but couldn’t accommodate them coming home 3 days early as he requested.

2. Mr Mirams said:

   ·      There had been a change of care since February 2022, and he had 128 nights of care = 35% care. This is what the Agency has recorded.

   ·      Ms McGann does not consult with him as to exactly when the care will take place and she tends to suit herself more than him. She is not happy if he cannot accommodate her precisely, and then she withholds care and phone calls as a form “punishment”. She also monitors his calls and if she chooses cuts him off. The children get upset.

3. When making its decision the Tribunal must consider the information given by a parent regarding the care being provided for a child. The information of one parent may be inconsistent with the information provided by the other parent.

4. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.

5. Where there is a change to the existing pattern of care the Tribunal must determine whether section 54G of the Act applies. This provides for the revocation of an existing percentage of care if a parent is to have at least regular care, but despite the other parent making the child available, the parent has had no care or less than regular care (regular care means care that is at least 14% but less than 35%). The Tribunal is satisfied that in this case section 54G of the Act does not apply.

6. 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.

7. If the Agency is notified, or otherwise becomes aware, within 28 days after the change of care day for the responsible person that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, the revocation takes effect the day before the change of care day: see paragraph 54F(3)(a) of the Act.

8. If the Agency is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   ·      if the responsible person’s care of the child has increased the revocation takes place the day before the Agency is notified, or otherwise becomes aware, of that matter; or

   ·      if the responsible person’s care of the child has reduced the revocation takes place the day before the change of care day: see paragraph 54F(3)(b) of the Act.

9. The Tribunal accepts that in accordance with the court orders made on 22 February 2021:

   ·      Mr Mirams has 4 nights a fortnight outside of school holidays (20 fortnights x 4 = 80 nights), 3 weeks of care during the Christmas holidays and 1 week during each term holidays = 42 days. Total 122 nights;

   ·      that if Mr Mirams has care over a long weekend then care is extended by a night and he would have care for such further times as may be agreed between the parties. Mr Mirams has claimed 6 extra nights due to public holidays, teacher development days etc. as being reasonable over the 12-month period. Once 6 days are added this gives 128 nights of care or 35% care.

10. Ms McGann has worked out the nights of care Mr Mirams has had from 22 February 2022 and those nights he will have up to 21 February 2023: see page A2 of the hearing papers:

    ·      2022 – February 4 nights, March 8 nights, April 13 nights, May 8 nights, June 9 nights, July 15 nights, August 8 nights, September 10 nights, October 12 nights, November 8 nights, December 4 nights = 99 nights.

    ·      2023 – January 12 nights, February 7 nights (to 22 February 2022) = 19 nights.

    Total 118 nights = 32%.

11. The Tribunal accepts the nights of care of 122  as set out in the court orders of February 2021 and believes that adding an extra 6 nights over the year for care over a long weekend and for occasional events is reasonable. The change of care occurred on 22 February 2022. The fact that Mr Mirams missed care in April 2022 of 13 days and that he was given an extra 3 nights of care in October does not constitute changes in care.

Care period

1. The Tribunal finds that as section 54F of the Act is met, the previous care determinations should be revoked and replaced with the pattern of care taking place for the children from 22 February 2022. The change of care was notified by Mr Mirams on 31 August 2022, as this was more than 28 days after the change of care. Mr Mirams’ care is revoked from the day before the notification, namely 30 August 2022, and Ms McGann’s percentage of care is revoked from the day before the change of care day, namely 21 February 2022.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Mirams and Ms McGann under section 50 of the Act. For the reasons outlined above the Tribunal finds that Mr Mirams provides 35% care and Ms McGann provides 65% care of the children.

Date of application of the decision

1. For Mr Mirams the care change takes effect from the day after revocation occurred, 31 August 2022 (in the case of Mr Mirams’ revocation on 30 August 2022), and for Ms McGann 22 February 2022 (revocation occurred on 21 February 2022): see section 54B of the Act.

DECISION

The decision under review is affirmed.