McKenna and Broom (Child support)

[2024] AATA 380

McKenna and Broom (Child support) [2024] AATA 380 (11 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC026757

APPLICANT:  Mr McKenna

OTHER PARTIES:  Child Support Registrar

Ms Broom

TRIBUNAL:Member F Staden

DECISION DATE:  11 January 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• From 30 January 2023, Mr McKenna’s care percentage for [the child] is 14% and the date of application of this care percentage is 30 January 2023; and

• From 30 January 2023, Ms Broom’s care percentage for [the child] is 86% and the date of application of this care percentage is 26 May 2023.

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. Mr McKenna and Ms Broom are the separated parents of two children. There has been a child support assessment in this case since 30 January 2014. This review is about the care of [the child], born 2008.

2. Since 14 April 2021, Mr McKenna and Ms Broom have been assessed as equally sharing [the child]’s care.

3. On 26 May 2023, Ms Broom informed Services Australia – Child Support (Child Support) that [the child] had been 92% in her care and 8% in Mr McKenna’s care from 28 January 2023 when [the child] commenced at boarding school in Melbourne.

4. On 28 June 2023, Mr McKenna told Child Support that he disputed the care change, arguing that the care of [the child] continued to be equally shared.

5. On 26 July 2023, Child Support rejected Ms Broom’s application for a change to the care percentages for [the child].

6. On 27 July 2023, Ms Broom lodged an objection to the 26 July 2023 decision.

7. On 31 August 2023, an objections officer partly allowed Ms Broom’s objection and found that: Ms Broom’s care percentage for [the child] was 89% and that of Mr McKenna was 11% from 31 January 2023; and that, as Ms Broom’s care change notification was more than 28 days after the change occurred, Ms Broom’s increased care percentage applied from 26 May 2023 while Mr McKenna’s decreased care percentage applied from 31 January 2023.

8. On 13 September 2023, Mr McKenna applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of the objections officer’s decision.

9. A hearing was held on 11 January 2024. Mr McKenna and Ms Broom gave sworn evidence by MS Teams audio. The Tribunal had before it documents provided by Child Support (189 pages), a copy of which was sent to the parents before the hearing. Prior to the hearing, Mr McKenna provided additional material (A1 to A20), a copy of which was given to Ms Broom and Child Support.

10. Relevant evidence before the Tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions relevant to this review are in Child Support (Assessment) Act 1989 (the Assessment Act). The Tribunal also had regard to the Child Support Guide, the Australian government’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require Child Support, here the Tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Centrelink are informed otherwise.

5. The issues which arise in this case are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when?

CONSIDERATION

Issue 1: Should the existing care percentages be revoked?

1. There is no current care arrangement (a written agreement, a parenting plan or a court order) in relation to [the child]’s care. Mr McKenna provided a 28 December 2020 email from Ms Broom to him about care arrangements which relevantly stated that care arrangements would be 50/50 from July 2021. However, the Tribunal was satisfied that this email did not anticipate [the child]’s changed school arrangements from January 2023.

2. The parents agree that: they equally shared [the child]’s care prior to his moving from Darwin to Melbourne to take up a scholarship as a private school boarder in late January 2023; that communication between them broke down in around November 2022; and that, as a rule, they continue to equally share [the child]’s care in the school holidays. They disagree about the level of care each provides for [the child] when he is at boarding school.

3. Ms Broom argued that she alone provides [the child]’s care during school terms, noting that she: is sole guardian and primary and emergency contact for school purposes; approves [the child]’s participation in various events and activities (eg school camp) and pays any extra costs involved; organises [the child]’s ABSTUDY, which goes direct to the school to supplement his scholarship; pays for any school costs not covered by the scholarship and ABSTUDY; makes sure [the child] has a local support person, who for example, cared for him when he was unwell; organises and pays for [the child] to visit his grandfather in Tasmania for non-residential weekends; visits [the child] when he needs support; organises [the child]’s travel to and from Darwin, with costs being met through the scholarship; speaks to [the child] most days; and provides [the child] with pocket money for everyday expenses and phone credit. Ms Broom provided evidence in relation to many of her care-related claims.

4. Mr McKenna said that during school terms he too provided [the child] with pocket money for everyday expenses and phone credit and spoke with him once or twice a week. In essence, his position was that Ms Broom has controlled information flow and otherwise arranged matters such that it is difficult for him to take a more active role in [the child]’s care when he is at boarding school, including visiting. He said that he would be prepared to meet half of all [the child]’s costs but conceded that he was not doing so at present.

5. Ms Broom accepted that Mr McKenna provides [the child] with some spending money but disputed other aspects of his evidence.

6. In the absence of a care agreement between the parents about [the child]’s care, the Tribunal must determine a care percentage on the basis of the actual care a parent is likely to provide in a care period. On the evidence, the Tribunal found that Ms Broom provides almost all of [the child]’s care during school terms, with Mr McKenna providing some emotional and financial support, and that the parents equally share [the child]’s care in the school holidays. A similar conclusion to that reached by the objections officer.

7. The Tribunal noted that in determining the parents’ care percentages the objections officer assumed that [the child]’s school holidays would be 12 weeks a year but such holidays are at least 14 weeks a year at the private school [the child] attends. Using the published 2023 term dates of that school and assuming [the child] to arrive the day before term begins and to leave the day after term ends, [the child] could be expected to spend 256 nights at school in 2023, with his remaining nights being shared equally between the parents.

8. Therefore, taking a care period of a year from 30 January 2023 (the day before the first day of Term 1, 2023), the likely pattern of care was that Ms Broom would provide 86% of [the child]’s care (256 + 55 nights) and Mr McKenna would provide 14% of [the child]’s care (54 nights), with the percentages being rounded in line with section 54D of the Assessment Act.

9. Subsection 54F(1) of the Assessment Act sets out the circumstances in which a determination of care percentage must be revoked if there is a change to cost percentages. The Tribunal is satisfied that those circumstances exist in this case:

   · There are existing care percentages, 51% to Mr McKenna and 49% to Ms Broom, which were determined under section 50 of the Assessment Act;

   ·     Ms Broom informed Child Support on 26 May 2023, that the actual care of [the child] did not correspond to the existing care percentage determinations;

   ·     If the care percentages for [the child] are changed in line with the likely pattern of care finding above, each parent’s cost percentage will change, Mr McKenna’s from 50% to 24% and Ms Broom’s from 50% to 76%;

   · As there is no current care arrangement in relation to [the child]’s care, section 51 of the Assessment Act is not engaged; and

   · The Tribunal was satisfied that section 54G of the Assessment Act does not apply here.

10. As the requirements for revocation in subsection 54F(1) of the Assessment Act were met, the Tribunal revoked the existing care percentage determinations for Mr McKenna and Ms Broom.

11. Subsection 54F(3) of the Assessment Act sets out when the revocation of the determinations takes effect. The date of effect depends on whether Child Support was notified of the care change within 28 days of when it occurred.

12. Ms Broom told Child Support of the change to [the child]’s care on 26 May 2023, more than 28 days after the change occurred. Therefore, under paragraph 54F(3)(b), the date of revocation for Ms Broom, the person with increased care, is 25 May 2023, the day before notification day, and the date of revocation for Mr McKenna, the person with decreased care, is 29 January 2023, the day before the change of care day.

Issue 2: Should new care percentage determinations be made and, if so, from when?

1. If a person’s existing care percentage determination for a child is revoked, there is a requirement under sections 49 and 50 of the Assessment Act that a new care percentage be determined if that person has had or is likely to have a pattern of care in the period the Child Support Registrar (here the Tribunal) considers to be appropriate having regard to all the circumstances.

2. Based on the likely pattern of care finding above, the Tribunal determined that, under section 50 of the Assessment Act, Mr McKenna’s care percentage for [the child] was 14% from 30 January 2023 and that of Ms Broom was 86%.

3. Relevantly here, under subsection 54B(2) of the Assessment Act, the date of effect of the new care percentage determinations is the day after the revocation of the existing determinations. The Tribunal revoked the existing determinations for Mr McKenna from 29 January 2023 and for Ms Broom from 25 May 2023, thus the new determinations apply to Mr McKenna from 30 January 2023 and to Ms Broom from 26 May 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• From 30 January 2023, Mr McKenna’s care percentage for [the child] is 14% and the date of application of this care percentage is 30 January 2023; and

• From 30 January 2023, Ms Broom’s care percentage for [the child] is 86% and the date of application of this care percentage is 26 May 2023.