Milton and Milton (Child support)

[2022] AATA 4673

Milton and Milton (Child support) [2022] AATA 4673 (15 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024593

APPLICANT:  Mr Milton

OTHER PARTIES:  Child Support Registrar

Ms Milton

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  15 November 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr MIlton provides 30 per cent care and Ms Milton provides 70 per cent care of [the child] from 1 October 2021 but with effect from 31 March 2022 for Mr Milton and from 1 October 2021 for Ms Milton.

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 determinations for Mr Milton and Ms Milton in respect of [their child] (born March 2009).  There has been a child support assessment in place since 22 May 2014 and Mr Milton is the liable parent.

2. From 19 February 2014 the child support assessment reflected Mr Milton as having 0 per cent care and Ms Milton as having 100 per cent care of [the child].

3. On 31 March 2022 Mr Milton notified the Child Support Agency of a change to the care arrangements stating that he provides 21 per cent care and Ms Milton provides 79 per cent care of [the child] from 1 October 2021.

4. On 21 July 2022 the Child Support Agency made the decision to refuse the change of care as advised by Mr Milton.

5. On 26 July 2022 Mr Milton objected to this decision and on 31 August 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 6 September 2022 Mr Milton 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 15 November 2022.  Mr Milton gave evidence on affirmation by Microsoft Teams audio.  The Tribunal wrote to Ms Milton on 21 October 2022 advising her the application for review was to be held on 15 November 2022 at 12:30 pm.  On 12 November 2022 and on 14 November 2022 the Tribunal sent Ms Milton SMS text messages reminding her of the details of the hearing.  The Tribunal attempted to contact Ms Milton on the day of the hearing but was unsuccessful.

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (174 pages).

ISSUES

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

2. The Child Support 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. Where a parent has a pattern of care for a child, the Child Support 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 (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support 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.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [the child] 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. Mr Milton told the Tribunal that care was arranged informally through [the child] based around his needs and then he and Ms Milton would make the appropriate arrangements.  Mr Milton said as a teenage boy [the child] was capable of making up his own mind about where he wanted to stay and this usually depended on his school and sporting commitments.

2. Mr Milton said there was no specific event that led to a change in the pattern of care for [the child], however, his care had evolved over time.  Mr Milton explained that he moved into the area about two and a half years ago to be closer to [the child] and his care had gradually increased since then.  Mr Milton said there was no fixed pattern to his care but [the child] stayed overnight during the week and on weekends on a regular basis.  He added that [the child] usually stayed with him for almost half the school holidays.

3. Mr Milton said [the child] attended a high school which was about half way between the two parents and because he worked primarily from home it was easy for him to arrange his schedule around the times [the child] stayed overnight.  He pointed out that [the child] was currently walking to and from school from his place because he had broken his arm and could not ride his bike.  Mr Milton said his school holiday care was usually at times which suited Ms Milton and so there was a degree of flexibility to these care arrangements.

4. Mr Milton said he had provided the Tribunal with a care diary in the form of a spreadsheet which set out his care of [the child].  Mr Milton reiterated there was no particular reason he had picked 1 October 2021 as the date his care had changed but this had been based on a discussion with the Child Support Agency in relation to a different matter.

5. The Tribunal notes in evidence from the Child Support Agency a spreadsheet provided by Mr Milton outlining his overnight care of [the child].  It shows that Mr Milton had the following overnight care from 1 October 2021:

   ·     October 2021 – 1, 2, and 3 (three nights)

   ·     November 2021 – nil

   ·     December 2021 – 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 (14 nights)

   ·     January 2022 – 1, 3, 4, 5, 6, 7, 8, 9, 22, 23 and 24 (11 nights)

   ·     February 2022 – 5, 6, 7, 9, 10, 11, 12, 14, 15, 25, 26, 27 and 28 (13 nights)

   ·     March 2022 – 11, 13, 15, 16, 17, 18 and 20 (seven nights)

   ·     April 2022 – 1, 14 and 15 (three nights)

   ·     May 2022 – 5, 6, 13, 14, 22, 28 and 29 (seven nights)

   ·     June – 4, 5, 8, 9, 10, 16, 17, 18, 22, 23, 24, 27, 28, 29 and 30 (15 nights)

   ·     July – 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17 and 18 (17 nights).

6. Mr Milton told the Tribunal his extended care in June and July was because Ms Milton had gone to Tasmania.  He said although Ms Milton did not work and was travelling more he was uncertain if this lengthy period of care would be repeated.  Mr Milton said he was simply seeking to have the assessment better reflect his increased care of [the child] and was happy to have this extended care excluded in light of the circumstances.

7. Although Ms Milton did not participate in the hearing the Tribunal notes that during a conversation with a child support officer on 18 May 2022 she is recorded as stating that she could not remember when [the child] last stayed overnight with Mr Milton.  Ms Milton also said she would make sure [the child] was not allowed to stay overnight with Mr Milton.  No other evidence was provided by Ms Milton to the Child Support Agency in relation to the care of [the child].

8. The Tribunal, in making a decision about the care of [the child], must take into account evidence of the care each parent had up until the time of the original decision made by the Child Support Agency as well as evidence of the likely care each parent was to have going forward.  In other words, the Tribunal makes a care determination at the point in time the original decision was made.  Care is generally assessed over a 12-month care period commencing from the day on which a parent notifies that care of the child changed.

9. The Tribunal is satisfied, based on the evidence provided, that Mr Milton is providing a level of care for [the child] that is greater than the existing percentage of care reflected in the assessment.  The Tribunal finds that from 1 October 2021 Mr Milton provided care of 90 nights in the 293-night period up until 21 July 2022.  This is equal to 30 per cent care.

10. While Mr Milton has said he would be satisfied with a decision that does not include his extended care when Ms Milton was away in Tasmania, it is incumbent upon the Tribunal to ensure there is an accurate record of the care history on a case.  If Mr Milton or Ms Milton believes there has since been a further change in the pattern of care for [the child] then either parent may notify the Child Support Agency.

11. The existing percentages of care reflected in the assessment for [the child] were 0 per cent care to Mr Milton and 100 per cent care to Ms Milton. 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 took place.

New care percentage determinations

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

2. The Tribunal finds that Mr Milton provides 30 per cent care and Ms Milton provides 70 per cent care of [the child].

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Milton first notified the Child Support Agency of the change in care on 31 March 2022.  As this is more than 28 days after the change occurred on 1 October 2021, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 31 March 2022 for Mr Milton and from 1 October 2021 for Ms Milton.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Milton provides 30 per cent care and Ms Milton provides 70 per cent care of [the child] from 1 October 2021 but with effect from 31 March 2022 for Mr Milton and from 1 October 2021 for Ms Milton.