Morton and Lambert (Child support)

[2017] AATA 2900

Morton and Lambert (Child support) [2017] AATA 2900 (14 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/PC012412

APPLICANT:  Mrs Morton

OTHER PARTIES:  Child Support Registrar

Mr Lambert

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  14 November 2017

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support – Percentage of care – Revocation of existing determination – New determination of percentage of care – Decision under review affirmed

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 is about a change to the percentage of care determination for Mrs Morton in respect of the children [Child 1] and [Child 2].

2. Mrs Morton and Mr Lambert are the parents of [Child 1] (born November 2001) and [Child 2] (born October 2002).  From 17 March 2015 the existing percentage of care determinations reflected that for [Child 1], care was 100 per cent care a year to Mrs Morton and zero per cent to Mr Lambert and for [Child 2], care was 57 per cent care a year to Mrs Morton and 43 per cent to Mr Lambert.

3. On 7 February 2017 Mr Lambert advised the Department of Human Services, Child Support (the Child Support Agency) of a change in care arrangements stating that from December 2016 he was providing at least two weeks care of both the children each month.

4. On 1 April 2017 the Child Support Agency made the decision to record that Mrs Morton provided 63 per cent care and Mr Lambert provided 37 per cent care of both children from 1 December 2016 (the original decision).

5. On 5 April 2017 Mr Lambert objected to this decision and on 4 June 2017 the Child Support Agency allowed the objection and made the decision to record Mr Lambert provides 66 per cent care and Mrs Morton provides 34 per cent care of both children from 2 December 2016 (the objection decision).  This change was applied to the assessment from 7 February 2017.

6. On 30 August 2017 Mrs Morton applied for a review of the objection decision by the Administrative Appeals Tribunal (the Tribunal).

7. The Tribunal conducted a hearing into the application on 14 November 2017.  Mrs Morton and Mr Lambert gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (214 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.

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 a new care determination 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 [Child 1] and [Child 2] which require existing percentages of care to be revoked and new care determinations to be made; and, if so;

   ·       From what date should the new percentage of care determination take effect?

CONSIDERATION

1. In this case Mr Lambert first advised the Child Support Agency on 7 February 2017 that care of [Child 1] and [Child 2] had changed from December 2016.  He provided dates set out in a calendar to show when he had care of the children as well as letters from family members as evidence in support of this change from December 2016 to April 2017.

2. Mrs Morton applied to the Tribunal for review of the objection decision because she believes Mr Lambert has never had more than 60 per cent care of [Child 1] and [Child 2] and she has always “been the main carer” and always “had the higher percentage of care”.

3. At hearing Mrs Morton told the Tribunal she did not dispute the evidence Mr Lambert had provided but thought it was unfair she was now the paying parent under the assessment.  She said she was paying child support to Mr Lambert but he had not had care of the children since April.  She disputed Mr Lambert had the same level of care beyond April 2017.

4. The Tribunal notes that in evidence given to the Child Support Agency Mrs Morton agreed with the level of care as advised by Mr Lambert for the months of December 2016 and January, February and March 2017.

5. For the month of April Mrs Morton told the Child Support Agency she was in [a city] until 9 April 2017 and Mr Lambert had the children for two weeks, then she had a week and the children have been with her since.  Mrs Morton reiterated this in evidence to the Tribunal.

6. Mr Lambert told the Tribunal he agreed with Mrs Morton up until the April timeframe.  He said the pattern of care for [Child 1] and [Child 2] changed from 8 August after a family dinner on that date and he advised the Child Support Agency in September 2017.

7. Both parents said the pattern of care prior to December was really up to [Child 1] and [Child 2].  As they got older there were no set dates and the girls would arrange visits with their father as they chose.  Usually it would be alternate weeks with each parent but with nothing fixed.

8. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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 determination must be revoked and replaced by a new percentage of care determination.

9. Both parents agree the pattern of care up to the time Mr Lambert submitted his objection on 5 April 2017 did not correspond with the existing percentage of care.  Both parents also dispute the level of care from this date onwards.  In relation to care change matters, however, the Tribunal must consider the pattern of care based on the actual care to the time of notification and the likely care thereafter.

10. Mrs Morton does not dispute the level of care as advised by Mr Lambert at the time he notified the Child Support Agency on 7 February 2017.  Evidence from both parties show that care had changed from 2 December 2016.  The Tribunal therefore finds that Mr Lambert provides 66 per cent care and Mrs Morton provides 34 per cent care of [Child 1] and [Child 2] from 2 December 2016.

11. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the agreed pattern of care.

12. It is open to either parent to notify of any subsequent change in the pattern of care.  The Tribunal notes Mrs Morton advised the Child Support Agency of a subsequent change of care on 27 June 2017 and on 15 August 2017 this request for a new determination was rejected. These subsequent determinations are not before the Tribunal, as they have not been reviewed by an objections officer.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mrs Morton and Mr Lambert.

2. For the reasons outlined above the Tribunal finds that Mr Lambert provides 66 per cent care and Mrs Morton provides 34 per cent care of [Child 1] and [Child 2].  This means the percentage of care determination set out in the objection decision remains.

Date of effect of new care percentage decision

1. The Tribunal has found that Mr Lambert notified the Child Support Agency of the change in care on 7 February 2017 which is more than 28 days after the change occurred on 2 December 2016.  Therefore, according to subsection 54F(2) of the Act, the date of effect is the date when the Child Support Agency was notified of the change.

2. The new determination can be made from 7 February 2017.

DECISION

The decision under review is affirmed.