Mursell and Mursell (Child support)

[2023] AATA 2140

Mursell and Mursell (Child support) [2023] AATA 2140 (7 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025366

APPLICANT:  Ms Mursell

OTHER PARTIES:  Child Support Registrar

Mr Mursell

TRIBUNAL:Member M Baulch

DECISION DATE:  7 June 2023

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the care percentage determinations that are to apply to the child support assessment from 4 March 2022, pursuant to section 54G of the Child Support (Assessment) Act 1989, are to record Ms Mursell as having 91% care of the children and Mr Mursell as having 9% care.

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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children and their percentages of care.

2. Ms Mursell and Mr Mursell are the separated parents of two children.  Since 27 July 2019, Services Australia – Child Support (Child Support) has made administrative assessments of child support under which Mr Mursell has been assessed as liable to pay child support to Ms Mursell.  Since 13 November 2020, those assessments have been based upon Ms Mursell having 75% care of the children and Mr Mursell having 25% care.

3. On 29 July 2022, Ms Mursell contacted Child Support and advised that there had been a change in the care arrangements for the children from 1 December 2021, such that she now had 90% care of the children and Mr Mursell had 10% care.  That information was considered by a Child Support employee who decided, on 5 October 2021, that the child support assessment should be amended to record Ms Mursell as having 87% care from 29 July 2022 and Mr Mursell as having 13% care from 1 December 2021.

4. Mr Mursell objected to that decision and, on 15 December 2022, that objection was allowed.  The objections officer decided that the percentages of care applying in the child support assessment should record Ms Mursell as having 84% care of the children and Mr Mursell as having 16% care from 1 December 2021 (the decision under review).

5. On 5 January 2023, Ms Mursell applied to this tribunal seeking an independent review of Child Support’s decision.

6. A hearing into the application for review was held by the tribunal on 7 June 2023. Ms Mursell and Mr Mursell both participated in the hearing by telephone, and both gave evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (287 pages), copies of which both parties confirmed they had received prior to the tribunal hearing. 

ISSUE

1. The statutory provisions relevant to this review application are found in the Act.

2. The issue which arises in this case is whether there should be a change to the care percentages applying in the child support assessment.

CONSIDERATION

1. Part 5 of the Act provides that the Registrar must make an administrative assessment of child support in accordance with the statutory formula set out in that Part.  The statutory formula requires that there be a determination as to the percentage of care given by each parent in respect of each child to whom the child support assessment relates.

2. Sections 49 and 50 of the Act 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 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.

3. In this instance, there was a subsequent decision made on 3 February 2023 about the care percentages, in which it was decided that Ms Mursell had 100% care of the children, and Mr Mursell 0% care, from 4 September 2022.  I therefore am considering the care that actually took place for the closed period of 1 December 2021 to 3 September 2022.

4. [In] September 2020, the Family Court of Australia made orders in relation to the care of the children.  In summary, those orders essentially provided that Mr Mursell was to have care of the children for each alternate weekend for two nights and half the school holidays.  There is no dispute that care was not occurring in accordance with those orders, although the date from which the orders were departed from is contested.

5. There is no dispute that during the period 1 December 2021 to 3 September 2022 Mr Mursell missed 13 nights of care.  Those nights of care missed that are not in dispute were:

   ·      4 March 2022 to 6 March 2022 – two nights

   ·      9 April 2022 to 16 April 2022 - one night

   ·      10 June 2022 to 12 June 2022 – two nights

   ·      2 July 2022 to 9 July 2022 – seven nights

   ·      2 September 2022 to 4 September 2022 – one night

6. Ms Mursell asserts that there were another 15 nights of care missed by Mr Mursell in this period, but this is contested by Mr Mursell.  The nights in dispute are:

   ·      10 December 2021 to 12 December 2021 - two nights

   ·      18 December 2021 to 25 December 2021 - seven nights

   ·      18 March 2022 to 20 March 2022 - two nights

   ·      1 April 2022 to 3 April 2022 - two nights

   ·      29 April 2022 to 1 May 2022 - two nights

7. Mr Mursell’s evidence was that he and Ms Mursell do not communicate unless via text or email and that any care event he missed should be reflected in such communications.  I noted that Ms Mursell has provided email correspondence to Child Support that seems to indicate that care did not occur on 18 March 2022 to 20 March 2022, and Ms Mursell’s offer of 25 March 2022 to 27 March 2022 as an alternative was not accepted.  I was satisfied that it is more likely than not that care did not occur on 18 March 2022 to 20 March 2022 and two extra nights, in addition to the 13 nights mentioned above, were missed.

8. However, having carefully examined the text and email communications provided by Ms Mursell, I was unable to identify any evidence to suggest that care did not occur on the other times listed above that are disputed.  There is no text or email evidence to support Ms Mursell’s claims that care on these times did not occur.  I therefore found that Mr Mursell did have care on the following nights:

   ·      10 December 2021 to 12 December 2021 - two nights

   ·      18 December 2021 to 25 December 2021 - seven nights

   ·      1 April 2022 to 3 April 2022 - two nights

   ·      29 April 2022 to 1 May 2022 - two nights

   If care was not missed from 10 December 2021 and from 18 December 2021, the first care event missed was the care that was scheduled to occur on 4 March 2022.  I therefore found that the pattern of care was disrupted from 4 March 2022.

9. I determined that Mr Mursell missed care for 15 nights between 4 March 2022 and 3 September 2022.  Having regard to the care that did occur, I further determined that from 4 March 2022 to 3 September 2022 (a total of 184 nights) Ms Mursell had care for 167 nights (or 91%) and Mr Mursell had care for 17 nights (or 9%).  In determining these percentages, I have applied the rounding rules in section 54D of the Act (percentages greater than 50 are rounded up and percentages less than 50 are rounded down).

10. I was further satisfied that for all but two nights, when the children went to Melbourne and care was missed for 10 June 2022 and 11 June 2022, Ms Mursell had made the children available to Mr Mursell.  Had care occurred on 10 June 2022 and 11 June 2022, Mr Mursell would have had 19 nights of care, or care for 10% of the care during the period 4 March 2022 to 3 September 2022.

11. The first provision in the Act that deals with revoking existing percentage of care determinations is section 54F of the Act. However, paragraph 54F(1)(c) of the Act provides that section 54F of the Act does not apply when section 54G of the Act does apply.

12. I had regard to section 54G of the Act. It provides that an existing care percentage determination must be revoked if:

    ·      A parent was to have at least regular care of a child;

    ·      The parent has no care, or less than regular care, despite the other parent making the children available; and

    ·      The other parent advises Child Support about the change in care in a period that is reasonable in the circumstances.

    Regular care is defined in subsection 5(2) of the Act as care that is at least 14%, but less than 35%.

13. Mr Mursell has been assessed as having 25% care since 13 November 2020, and thus was considered to have at least regular care.  From 4 March 2022 to 3 September 2022, I have found that Mr Mursell had less than 14% care despite Ms Mursell making the children available.  Therefore, Mr Mursell had less than regular care from 4 March 2022.

14. Ms Mursell advised Child Support about the disruption in care on 29 July 2022.  By that date, Mr Mursell had missed care on 4 & 5 March 2022 (two nights), 18 & 19 March 2022 (two nights), 15 April 2022 (one night), 10 & 11 April 2022 (two nights) and seven nights in the school holidays from 2 July 2022.  I also noted that the text and email correspondence indicated that Mr Mursell made a number of assurances that he would make up for the care missed, but this ultimately does not have appeared to occur. 

15. Having regard to the evidence, and in light of Mr Mursell claims that care would be made up, I was satisfied that in not advising Child Support about the disruption in care until just after the school holiday care in July 2022 was missed, Ms Mursell advised Child Support about the change in care in a period that was reasonable in the circumstances of this case.

16. Therefore, section 54G of the Act applies and the existing care percentage determinations that had applied from 13 November 2020 (75% care for Ms Mursell and 25% care for Mr Mursell) are to be revoked. Subsection 54G(2) of the Act says that the revocation determination takes effect on the day before the day the previous pattern of care ceased. In this case, the disruption to the previous pattern of care occurred on 4 March 2022 and thus the day before is 3 March 2022.

17. As I have revoked the existing care percentage determinations that apply in respect of the children, I must make new care percentage determinations that reflect the pattern of care applying from 4 March 2022.  Accordingly:

    ·      Pursuant to section 50 of the Act, I determined that Ms Mursell’s percentage of care for the children is 91%.

    ·      Pursuant to section 50 of the Act, I determined that Mr Mursell’s percentage of care for the children is 9%.

    According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked, that is, from 4 March 2022.

18. Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the care percentage determinations that are to apply to the child support assessment from 4 March 2022, pursuant to section 54G of the Child Support (Assessment) Act 1989, are to record Ms Mursell as having 91% care of the children and Mr Mursell as having 9% care.