Mitchison and Bradshaw (Child support)
[2024] ARTA 201
•29 October 2024
Mitchison and Bradshaw (Child support) [2024] ARTA 201 (29 October 2024)
Applicant/s: Miss Mitchison
Respondent: Child Support Registrar
Other Parties: Mr Bradshaw
Tribunal Number: 2024/AC028321
Tribunal:Member C Breheny
Place:Hobart
Date:29 October 2024
Decision:The decision under review is varied so that Miss Mitchison has 10% and Mr Bradshaw has 90% care of [the child] from 8 November 2023.
CATCHWORDS
CHILD SUPPORT – change to percentage of care – child living primarily with father and sometimes with mother after argument with mother – child’s age and own decisions – no change to cost percentage – decision under review varied
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Miss Mitchison and Mr Bradshaw are the separated parents of [the child], born January 2008. A child support case has been registered with Services Australia – Child Support (Child Support) since 26 July 2008 and since about September 2016 child support was payable on the basis that Miss Mitchison and Mr Bradshaw had equal shared care of [the child].
On 6 February 2024 Mr Bradshaw notified a care change such that he had 100% care of [the child] from 8 November 2023. Miss Mitchison disagreed, indicating that she also continued to have care of [the child]. On 10 April 2024 a decision was made to refuse to accept the care change.
On 3 May 2024 Mr Bradshaw objected to the decision, stating that Miss Mitchison only had nine nights care of [the child] since 8 November 2023, and on 18 July 2024 a Child Support objections officer allowed the objection and determined that Mr Bradshaw had 100% care of [the child] since 8 November 2023 and that the new care percentages affected the administrative assessment from 6 February 2024.
On 26 July 2024, Miss Mitchison applied to the (then) Social Services and Child Support Division of the Administrative Appeals Tribunal for a review of the objection decision. The application was heard on 29 October 2024. Miss Mitchison attended the hearing by MS Teams video link and gave sworn evidence. Mr Bradshaw attended the hearing by telephone and gave evidence on affirmation.
I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, re-issued on 24 October 2024 (due to an administrative error) and numbered 1–135. Neither Miss Mitchison nor Mr Bradshaw had received the re-issued documents but elected to proceed with the hearing.
ISSUES AND CONSIDERATION
The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.
Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to determine a person’s cost percentage:
| Cost percentages | ||
| Item | Column 1 Percentage of care | Column 2 Cost percentage |
| 1 | 0 to less than 14% | Nil |
| 2 | 14% to less than 35% | 24% |
| 3 | 35% to less than 48% | 25% plus 2% for each percentage point over 35% |
| 4 | 48% to 52% | 50% |
| 5 | more than 52% to 65% | 51% plus 2% for each percentage point over 53% |
| 6 | more than 65% to 86% | 76% |
| 7 | more than 86% to 100% | 100% |
In this case, records indicate that child support liability is being calculated on the basis that Miss Mitchison has 51% care and Mr Bradshaw has 49% care of [the child] from 15 March 2016 (folio 125). Mr Bradshaw contacted Child Support on 6 February 2024 to notify that he had 100% care of [the child] from 8 November 2023 (folio 38).
The issue for me to determine is whether there was a change to [the child]’s care arrangements such that a new care determination ought to be made, and, if so, the date of effect of the new care determination.
Miss Mitchison submitted that the parents had 50% care of [the child] according to Court orders. She was not certain when the orders were made but thought that it would have been in 2018 or earlier. She thought she had provided a copy of the orders to Child Support. I note that Child Support records indicate that the parents had shared care from 15 March 2016. Thus, it appears that Court orders were made on or about that date.
Miss Mitchison agreed that she and [the child] had an argument in late October 2023 and that [the child] wanted to stay with Mr Bradshaw at that time to “cool off”. She noted however that this did not mean that she had no care of [the child]. Whist she did not have 50/50 care, she had [the child] in her care for (at least) two nights, if not four nights per month. She thus could not understand why Child Support state that Mr Bradshaw has 100% care.
Miss Mitchison said that she has entries in her diary from which she could calculate the number of nights [the child] was in her care. She submitted that she had the following care nights:
March 4 nights,
April 3 nights,
May, June, July 4 nights in each month
August, September 3-4 nights in each month.
Miss Mitchison noted that she did not have a record of her care from November 2023 to February 2024. She also noted that care of [the child] may change again in the future. [The child] is 16 years old and generally makes up her own mind where she will stay. Once [the child] gets her driver’s licence care arrangements will probably be even more variable.
Mr Bradshaw said that [the child] contacted him in late October 2023 and asked whether she could stay at his place, as she did not feel safe at Miss Mitchison’s home. He noted that he did not notify the care change immediately (in November 2023) as he was waiting to see whether the situation would change, and [the child] would decide to return to Miss Mitchison’s care. He notified Child Support after a couple of months when the situation remained unchanged.
Mr Bradshaw stated that he never claimed to have 100% care of [the child] and agreed that Miss Mitchison had some care. He contended that the care percentage used by Child Support probably had something to do with cost percentage limits set by the legislation.
He said that his records indicate that Miss Mitchison only had about two nights of care per month between November 2023 and February 2024, a total of nine nights in that period. He did not dispute the care nights indicated by Miss Mitchison from March 2024 onwards, as [the child] decided to spend more time with Miss Mitchison again.
Conclusion
Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter. Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.
Mr Bradshaw notified Child Support on 6 February 2024 that a care change had occurred on 8 November 2023. Mr Bradshaw indicated that he had 100% care of [the child]. In this case I consider that the 12-month care period from 8 November 2023 to 7 November 2024 is appropriate.
The evidence provided by Miss Mitchison and Mr Bradshaw indicates that they are essentially in agreement about the actual number of nights [the child] spent in Miss Mitchison’s care. Based on the number of nights provided by the parties I have calculated that Miss Mitchison had 40 nights (or 10%)[1] care from the beginning of November 2023 to the end of October 2024.
[1] 9 nights November 2023 to February 2024 + 3 nights in April 2024 + 4 nights each for March 2024 and May to October 2024 (7 months x 4 nights = 28) = 40 nights.
I am thus persuaded that the correct and preferable decision to be made in this case is that Mr Bradshaw has 90% and Miss Mitchison has 10% care of [the child] from 8 November 2023.
In accordance with section 55C of the Act, this changes Miss Mitchison’s cost percentage from 50% to nil and Mr Bradshaw’s cost percentage from 50% to 100%; thus the existing care percentage for [the child] must be revoked.
Subsection 54F(1) of the Act provides (among other things) that in circumstances where the current care decision has been made under sections 49 or 50 of the Act, the Registrar (or Tribunal) is satisfied a) that the new level of care is not consistent with the existing determination of care, b) that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and c) section 54G of the Act is not applicable, then the current care decision must be revoked.
I therefore first considered whether section 54G of the Act applies in this case and revocation of the existing care determination is to be made pursuant to this provision. The conditions for revocation are as follows:
·a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;
·the other parent’s existing percentage of care was determined under section 50 (the person had an established pattern of care); and
·the other parent notified the Registrar or the Secretary within a reasonable time[2] that the parent with the reduced care has no care or less than regular care.
[2] Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment(Budget and Other Measures) Act 2010 states that: “Generally, a reasonable period will be if the Registrar or Family Assistance Secretary is notified within 28 days of the other responsible person becoming aware that the first responsible person never established the pattern of at least regular care, or that that person ceased their the previously established pattern of care.”
In this case I am not satisfied that the conditions of section 54G are met. Miss Mitchison was to have at least regular care based upon the existing care determination made under section 50 of the Act; however, from 8 November 2023 she had below regular care of [the child] despite [the child] being available and the established pattern of care (i.e. 50% shared care) ceased.
Mr Bradshaw notified the care change that occurred on 8 November 2023 more than 28 days later, on 6 February 2024. Mr Bradshaw’s evidence was that he was aware that a care change had occurred, but he was waiting to see whether [the child] would change her mind and return to Miss Mitchison’s care. Whilst I appreciate Mr Bradshaw’s argument, I am not satisfied that this was a reasonable time, and this means section 54G of the Act does not apply in this case and the date of revocation of the existing care percentages is provided for in section 54F.
Paragraph 54F(3)(b) of the Act provides that the revocation of the existing determination takes effect on the day before the notification day for the parent with increased care and on the day before the care change for the parent with decreased care, if (as in this case) notification was made more than 28 days after the change of care day.
In this case, Mr Bradshaw notified Child Support on 6 February 2024 that the care changed from 8 November 2023. This means the existing care determination is revoked on 7 November 2023 for Miss Mitchison and on 5 February 2024 for Mr Bradshaw. The new care determination impacts the child support assessment from 6 February 2024.
For completeness I note that the increase in care percentage for Miss Mitchison that I have determined in this review results in the same cost percentage in accordance with section 55C of the Act. Both care percentages (that is, 0% and 10%) result in a cost percentage of “nil” and this means that there is no practical change to the decision reached by the objections officer. For the sake of correcting the record however I have decided that the objections officer’s decision should be varied.
DECISION
The decision under review is varied so that Miss Mitchison has 10% and Mr Bradshaw has 90% care of [the child] from 8 November 2023.
| Date of hearing: | Tuesday, 29 October 2024 |
| Representative for the Applicant: | Self |
| Representative for the Other party: | Self |
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