Merritt and Child Support Registrar (Child support)

[2020] AATA 1021

Merritt and Child Support Registrar (Child support) [2020] AATA 1021 (10 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017868

APPLICANT:  Ms Merritt

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member T Bubutievski

DECISION DATE:  10 March 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the care percentage for [Child 1] is 10% to Ms Merritt and 90% to [Child 1’s] father from 12 September 2019.

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 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 concerns the care percentages used in a child support assessment.

2. Ms Merritt is the mother of [Child 1]. On 12 September 2019, [Child 1] went to live full-time with his father. Ms Merritt advised the Department of Human Services – Child Support (the Department) of the change in care, and initially said that [Child 1’s] care would be 100% to his father. On the same date the Department made a decision to assess care as 0% to Ms Merritt and 100% to [Child 1’s] father.

3. Ms Merritt lodged an objection to that decision on the basis that she had forgotten that she would be having care of [Child 1] during the school holidays. She indicated that she expected to have 10 nights of care during April, July and September school holidays and 28 nights during the December/January school holidays. The Department was unable to be satisfied that Ms Merritt would have this much care, but her objection was allowed in part, with the Department determining that there was a pattern of care from 12 September 2019 of 2% to Ms Merritt and 98% to [Child 1’s] father.

4. On 19 November 2019 Ms Merritt made an application to the Social Services and Child Support Division of this tribunal for a review of that decision.

5. The application was heard in Sydney on 10 March 2020. Ms Merritt gave sworn evidence by telephone. [Child 1’s] father was invited by the tribunal to become a party to the application, but did not do so. In addition to oral evidence, the tribunal had regard to documents provided by the Department (folios 1 to 86). A copy of those documents had been provided to Ms Merritt.

ISSUES

1. The issues the tribunal must decide are:

   ·whether the care pattern for [Child 1] changed such that the previous care percentages should be revoked; and

   ·the care percentages that should be used and the date from which they should apply.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments 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 various levels of care are defined in section 5 of the Assessment Act. The rate of child support payable by a person is dependent upon both their percentage of care and their cost percentage set out in section 55C of the Assessment Act.

3. 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 and if there is a change to the care pattern which means that an earlier determination should be revoked.

4. Care percentages must be revoked under section 54F of the Assessment Act if:

   ·the care of a child that is actually taking place does not correspond with a person’s existing percentage of care for the child; and

   ·the pattern of care for the child has changed 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.

5. 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). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

6. The date of effect of any revocation of care percentages, or changes to the percentages used, depends on when the Department was notified of or otherwise became aware of the change. A change in care takes effect on the day that it occurred if the Department is notified within 28 days of that change, otherwise it takes effect on the date of notification (subsection 54F(2) of the Assessment Act).

Was there a change to the care pattern for [Child 1]?

1. There is no dispute that there was a change in the pattern of care for [Child 1] on 12 September 2019 when he went from living with his mother in [Town 1] to living with his father in [Town 2], Queensland. The issues before the tribunal are the extent to which Ms Merritt has the care of [Child 1] following this change, and whether or not that care can be considered to be in a pattern.

2. The tribunal noted that since making her application to the tribunal Ms Merritt has relocated to [Town 3], Queensland. She said that she has a new job where she works one week on and one week off, and as a consequence the care arrangements for [Child 1] may change. She also advised that she has had the intervention order in relation to [Child 1’s] father changed so that they can now communicate about [Child 1], and so far this is working well.

3. Ms Merritt said that at the time her son left her care, it was an emotional time for her and she was not thinking clearly when she advised the Department that [Child 1’s] father would have 100% care. She said that since then she has been to [Town 2] to see him three times and they have also gone on a cruise together. There are further plans made for upcoming school holidays. Ms Merritt said that she always expected to have some care of [Child 1] during the school holidays.

4. Ms Merritt confirmed that she had care of her son in [Town 2] for three nights between
   1 November 2019 and 4 November 2019. She said that they attended a wedding, and spent one night in a hotel and two nights with family.

5. The tribunal referred Ms Merritt to flight and cruise bookings for December 2019 and January 2020. These bookings had been made in July 2019, before [Child 1] left her care, and were for Ms Merritt and [Child 1] to fly from [Town 1] to Sydney and then go on a cruise. Ms Merritt confirmed that this had still occurred, although [Child 1] had flown down from Queensland. She said they met in Sydney on 17 December 2019, and stayed with family prior to embarking on a cruise on [a specified date]. They then stayed in Sydney after the cruise, and [Child 1] returned home on 3 January 2020, a total of 17 nights.

6. Ms Merritt said that on 4 January 2020 she then drove from [Town 1, interstate] to Queensland to commence her new job. On the way, she stayed with family near [Child 1] and saw him every day between 4 and 12 January 2020, although she did not have overnight care. She picked him up whenever he wanted, and they spent time together, going to the movies and to other activities. The tribunal explained that for the purpose of child support law care usually means overnight care unless there is particular reason why hours of care should be considered.

7. Ms Merritt said that she was also in [Town 4] between 28 January 2020 and 23 February 2020, and that during this time she saw [Child 1] twice, but did not have him overnight as she had no transport.

8. She said that she is planning for [Child 1] to come up and spend time with her in the April school holidays, but that he is starting a traineeship and they are not yet sure how that will impact on that plan. She said that at a minimum, she and [Child 1] will spend a couple of nights going down the coast.

9. Ms Merritt has flights booked for [Child 1] to come to [Town 3] on 26 June 2020, returning on 10 July 2020, 14 nights. They are going on a road trip to cultural activities in [Queensland].

10. For the September school holidays she is planning to have [Child 1] for one week only, as he is involved in [a specified Queensland event] with his father. Ms Merritt said having care of [Child 1] for a week at a time is achievable due to her new work roster.

11. The tribunal explained that for the amount of child support payable by Ms Merritt to reduce she would need to have at least 14% care of [Child 1]. Ms Merritt said that this was not a concern – her issue is that the care percentages say that she has 2% care of [Child 1], when she is much more involved in her son’s life than this would indicate.

12. To make a decision about whether or not the pattern of care for [Child 1] changed, the Department, and the tribunal, must determine what the likely pattern of care is going to be in a care period. A care period is usually 12 months which commences from the date that the care of a child changes. On the basis of the evidence before it the tribunal finds that there is a pattern of care for [Child 1], as Ms Merritt reliably has care of [Child 1] during school holidays and there are concrete plans for her to continue to do so. In addition, she may have other periods of care outside school holidays, as she did in November 2019.

13. Since 12 September 2019 Ms Merritt has had care of [Child 1] for 20 nights and has also spent time with him without having overnight care. There are plans for her to have at least a couple of nights of care in the Easter school holidays, 14 nights in the July holidays, and seven nights in the September holidays (which will be just outside the relevant 12 month period). Between 12 September 2019 and 12 September 2020 Ms Merritt has had care for 20 nights, has further care planned for 14 nights in June/July 2020 and also is likely to have some additional care at Easter 2020. On balance, the tribunal is satisfied that Ms Merritt will have care of [Child 1] for at least 38 nights per year, or 10% of the time under the rounding rules contained in section 54D of the Assessment Act.

Must the care percentages be changed?

1. The tribunal finds that as there was a change of care on 12 September 2019 the care percentages could be changed from this date. Under section 54F of the Assessment Act, the Registrar must revoke a previous determination of a responsible person’s care percentage if they are notified or otherwise become aware that the care of a child that is actually taking place does not correspond with a person’s care percentage, and the new percentage of care would change the person’s cost percentage, and therefore the amount of child support that is payable.

2. In this case, Ms Merritt still has less than 14% care of [Child 1], so her cost percentage doesn’t change and previous determination does not have to be revoked. Given Ms Merritt’s reason for making her application, and for the sake of correctness, the tribunal decided to revoke the previous determination from 12 September 2019, and to replace it with a new determination under section 50 of the Assessment Act. The care percentage for [Child 1] is therefore to be 10% to Ms Merritt and 90% to [Child 1’s] father from 12 September 2019.

3. The evidence given by Ms Merritt indicates that due to the change in her work situation she may be in a position to have additional care of [Child 1] in the future. The tribunal suggested that Ms Merritt keep a record of her overnight care of [Child 1], in case the care percentage needs to be changed in future.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the care percentage for [Child 1] is 10% to Ms Merritt and 90% to [Child 1’s] father from 12 September 2019.