Mihalceanu and Erokhin (Child support)

[2024] AATA 3583

Mihalceanu and Erokhin (Child support) [2024] AATA 3583 (27 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/AC027704

APPLICANT:  Ms Mihalceanu

OTHER PARTIES:  Child Support Registrar

Mr Erokhin

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  27 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determinations revoked – new determination made – decision under review affirmed

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 determinations for Ms Mihalceanu and Mr Erokhin in respect of their child [Child 1] (born September 2021).  There has been a child support assessment in place since 9 February 2022.

2. From 9 February 2022 the child support assessment reflected Ms Mihalceanu as having 100 per cent care and Mr Erokhin as having 0 per cent care of [Child 1].

3. On 12 October 2023 Mr Erokhin notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he was providing 14 per cent care of [Child 1] and Ms Mihalceanu was providing 86 per cent care from 10 October 2023.

4. On 25 October 2023 Child Support made the decision to reflect that Ms Mihalceanu provides 86 per cent care of [Child 1] and Mr Erokhin provides 14 per cent care from 10 October 2023.

5. On 22 December 2023 Ms Mihalceanu objected to this decision and on 6 March 2024 Child Support allowed the objection in part and made the decision to reflect that Ms Mihalceanu provides 86 per cent care of [Child 1] and Mr Erokhin provides 14 per cent care from 17 October 2023 (the objection decision).  As Child Support determined there were special circumstances preventing Ms Mihalceanu from lodging her objection within the stipulated timeframe, the objection decision was applied to the assessment from 17 October 2023.

6. On 26 March 2023 Ms Mihalceanu applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 27 August 2024.  Ms Mihalceanu and Mr Erokhin gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (140 pages).

ISSUES

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

2. Child Support 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, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support 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 that 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 apply?

CONSIDERATION

1. Ms Mihalceanu told the Tribunal there were court orders in place relating to the care of [Child 1] but Mr Erokhin was not following the court orders.  Ms Mihalceanu said Mr Erokhin was supposed to have care of one night a week but often missed his court-ordered care.

2. The Tribunal notes in evidence from Child Support a copy of court orders handed down in the Federal Circuit and Family Court of Australia dated [in] October 2023.  The orders state that commencing on 17 October 2023 Mr Erokhin is to have overnight care of [Child 1] on day five of his roster and overnight care on day 14 of his roster.

3. Ms Mihalceanu agreed that Mr Erokhin began having overnight care of [Child 1] on 17 October 2023. Ms Mihalceanu said Mr Erokhin had care on 17 October 2023, 26 October 2023, 2 November 2023, 10 November 2023, 20 November 2023, 27 November 2023 and 4 December 2023 in accordance with the court orders.  Ms Mihalceanu submitted that, due to concerns about the welfare of [Child 1], Mr Erokhin missed his care on 13 December 2023 and 20 December 2023 before the pattern of care resumed again on 29 December 2023 following a court hearing.  Ms Mihalceanu said Mr Erokhin then had his court-ordered care on 5 January 2024, 15 January 2024, 22 January 2024 and 30 January 2024 but had no care in February 2024 because [Child 1] was extremely unwell.  Ms Mihalceanu pointed out that Mr Erokhin did not resume having care of [Child 1] again until 11 March 2024.  Ms Mihalceanu submitted that from 17 October 2023, when his care under the court orders commenced, up to 26 August 2024, Mr Erokhin had care of only 30 nights which was less than his care under the court orders.

4. Mr Erokhin told the Tribunal he was complying with the court-ordered care of [Child 1] from 17 October 2023 until Ms Mihalceanu withheld care.  Mr Erokhin acknowledged he had missed his care on 13 December 2023 and 20 December 2023 but only because Ms Mihalceanu had contravened the court orders.  Mr Erokhin explained that the parents had returned to court around [a day in] December 2023 and his care of [Child 1] recommenced on 29 December 2023.

5. Mr Erokhin said he next missed a period of court-ordered care in February 2024 when Ms Mihalceanu again withheld care of [Child 1].  Mr Erokhin said he was forced to return to court with the outcome being a resumption of his court-ordered care on 11 March 2024, however, he disagreed with the level of his care as calculated by Ms Mihalceanu.

6. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  It is not in contention and the Tribunal finds that care of [Child 1] changed from 17 October 2023.  Ms Mihalceanu argues that since he began having care of [Child 1] on 17 October 2023 Mr Erokhin has not complied with the court orders and missed periods of care.  Mr Erokhin has told the Tribunal this was because Ms Mihalceanu was withholding care.  The parents agree that Mr Erokhin missed care on 13 December 2023 and 20 December 2023 after which his court-ordered care resumed.  The parents also agree that Mr Erokhin then missed care again in the month of February 2024 and the beginning of March 2024.

7. The Child Support Guide, at section 2.2.3, provides the following advice in relation to below regular care determinations:

   A parent or non-parent carer will not have established a pattern of care if they never have care in accordance with an expected pattern. The Registrar will generally consider that a pattern was not established if, from the date the pattern of care was to start:

   ·        the parent or non-parent carer

   omissed 3 consecutive expected care events

   omissed 5 care events out of 8 expected, or

   omissed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern), and

   ·        they had not yet had

   o3 consecutive events

   o5 events out of 8, or

   o20% of the expected nights of care over 12 months.

   For the purposes of below regular care determinations, a care event is a night of care or several consecutive nights of care. For example, Friday evening to Sunday afternoon is one event, one night mid-week is an event and 5 consecutive nights is one event.

8. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

9. Mr Erokhin began having care in accordance with the court orders on 17 October 2023 and this pattern of care remained in place until 13 December 2023.  Mr Erokhin then missed two care events before his court-ordered care commenced again on 29 December 2023.  The pattern of care under the court orders then continued until Mr Erokhin missed several care events in February and March 2024.  It is not yet possible to determine the actual care Mr Erokhin has had under the court orders for a 12-month period from 17 October 2023.

10. The Tribunal is not of the view that Mr Erokhin missing two care events in December 2023 constitutes a change to the pattern of care under the court orders.  The Tribunal is satisfied that Ms Mihalceanu provides 86 per cent care and Mr Erokhin provides 14 per cent care of [Child 1] from 17 October 2023 in keeping with the court orders dated [in] October 2023.

11. The existing percentages of care reflected in the assessment for [Child 1] were 100 per cent care to Ms Mihalceanu and 0 per cent care to Mr Erokhin.  The Tribunal is satisfied, in the circumstances of this case, that 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 new percentage of care determinations.

12. 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 is taking place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Mihalceanu and Mr Erokhin under section 50 of the Act.

2. The Tribunal finds that Ms Mihalceanu provides 86 per cent care and Mr Erokhin provides 14 per cent care of [Child 1] from 17 October 2023.

Date of application of new care percentage determinations

1. Mr Erokhin first notified Child Support of a change to the care arrangements for [Child 1] on 12 October 2023.  It is not possible for a change in care to be notified before the change actually takes place.  The Tribunal notes that on 19 October 2023, prior to the original decision being made, Mr Erokhin provided further details to Child Support in relation to the change in care.  As this is less than 28 days after the change occurred on 17 October 2023, according to paragraph 54F(3)(a) of the Act, the existing care determinations for [Child 1] are revoked on the day before the change of care day.

2. The new determinations are made on 17 October 2023.

Other care matters

1. Ms Mihalceanu has informed the Tribunal that Mr Erokhin missed his court-ordered care in February 2024 and his care of [Child 1] did not resume until 11 March 2024.  The Tribunal notes this could provide the basis of a change in care for [Child 1].  The legislative scheme deals with any such potential change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required (the objection decision also references the need for any new care event to be separately reported).

DECISION

The decision under review is affirmed.