Norris and Malegam (Child support)

[2018] AATA 4466

Norris and Malegam (Child support) [2018] AATA 4466 (19 October 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014440 & 2018/MC014475

APPLICANT:  Mr Norris & Mrs Malegam

OTHER PARTIES:  Mrs Malegam & Mr Norris

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  19 October 2018

DECISION:

The Tribunal affirms the decisions under review.

CATCHWORDS
CHILD SUPPORT – percentage of care – no change to the likely pattern of care – refusal to revoke the existing determination of percentage of care – decision under review affirmed

CHILD SUPPORT – percentage of care – change to the likely pattern of care – decision to revoke the existing determination of percentage of care and make a new determination – 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 application relates to decisions by the Department of Human Services – Child Support (the Department) relating to the level of care provided by Mrs Malegam and Mr Norris to their children [Child 1] and [Child 2] for child support purposes.

2. The administrative assessment of child support reflected the particulars of care as 87% to Mrs Malegam and 13% to Mr Norris.

Case MC014440

1. On 8 December 2017, Mr Norris contacted the Department to advise that care had changed from 26 November 2017 and that he was now having 73 nights of care per annum (20% care).

2. On 11 January 2018, an employee of the Department made a decision to refuse to change the care percentage to 20% to Mr Norris and 80% to Mrs Malegam.

3. Mr Norris objected to this decision on 22 May 2018 and on 14 June 2018 an objections officer of the Department disallowed the objection.

4. On 27 June 2018, Mr Norris lodged an application with the Administrative Appeals Tribunal for an independent review of this decision.

Case MC014475

1. Mr Norris contacted the Department again on 29 March 2018 to advise that care had changed from 6 January 2018 and that he was having 71 nights (19%) of care since that time.

2. On 10 May 2018, an employee of the Department made a decision to change the percentage of care reflected in the administrative assessment of child support, to 81% care provided by Mrs Malegam and 19% care provided by Mr Norris from 1 December 2017, with the date of effect of this decision of 29 March 2018.

3. On 11 May 2018, Mrs Malegam objected to this decision and on 29 June 2018 an objections officer of the Department allowed the objection.  The objections officer decided to change the percentage of care to 86% care to Mrs Malegam and 14% care to Mr Norris from 1 December 2017, with the date of effect of this decision of 29 March 2018.

4. On 2 July 2018, Mrs Malegam lodged an application with the Administrative Appeals Tribunal for an independent review of this decision.

The Tribunal hearing

1. The matters were heard together by the Tribunal on 26 September 2018, on which date both Mrs Malegam and Mr Norris attended the hearing in person and gave evidence on affirmation.  The Tribunal had before it two sets of documents provided by the Department (193 pages and 205 pages), copies of which were provided to the parties prior to the hearing.  Both parties confirmed receipt of the documents with the Tribunal.  The Tribunal proceeded to make a decision in this matter on 19 October 2018. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legal issues for the Tribunal in this case relate to an existing determination of care which provided for Mr Norris to provide 13% care and Mrs Malegam to provide 87% care to the children. The Tribunal must consider whether the existing determination of care is to be revoked in response to Mr Norris’ contacts with the Department on 8 December 2017 (case MC014440) and 29 March 2018 (case MC014475).

2018/MC014440

1. The first matter before the Tribunal relates to contact made by Mr Norris on 8 December 2017, advising that he was having 73 nights (20%) of care from 26 November 2017.

2. In determining whether the existing determination of care should be revoked, the Tribunal considered sections 54F, 54G and 54H of the Act. These three provisions all allow for the Registrar (or the Tribunal, standing in the shoes of the Registrar) to revoke an existing care determination of care.

3. Each of the three provisions considered by the Tribunal requires that a change in the care arrangements has taken place.  The existing determination of care provided for Mr Norris to have 13% care of the children and Mrs Malegam to have 87% care of the children. 

4. The Tribunal noted that Mr Norris’ contact with the Department appeared to have been precipitated by his plans to take the children to [another country] in January 2018.  The Tribunal considered that this was a one-off event that did not change the overall pattern of care provided by the parties.  Further, the Tribunal accepted Mrs Malegam’s evidence that missed nights of care were not generally made up by Mr Norris.  This was consistent with the calendars in the Department documents showing that, for example, in September and October 2017 care was missed and was not generally made up.

5. The Tribunal was not satisfied on the evidence before it that care had changed as of 26 November 2017, as indicated by Mr Norris to the Department on 8 December 2017. The requirements set out in sections 54F, 54G and 54H of the Act, all of which require that a change to care arrangements has occurred, have not been met in respect of Mr Norris’ contact of 8 December 2017. The decision to refuse to revoke the existing determination of care from 26 November 2017 is legally correct and is affirmed.

2018/MC014475

1. The second matter considered by the Tribunal relates to a contact made by Mr Norris on 29 March 2018, advising that he was having 19% care of the children from 6 January 2018.

Does section 54F of the Act apply?

1. The Tribunal first considered section 54F of the Act which provides for a determination of care to be revoked where there is a change to a responsible person’s pattern of care. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. In applying this provision, the Tribunal must consider both the existing percentage of care under the administrative assessment of child support and what the new percentage of care would be if another percentage of care were determined. The Tribunal applied the provisions as they were in force at the time of the care change in late 2017.

2. Having regard to the requirements set out in subsection 54F(1) of the Act, the Tribunal concluded that a determination of an existing percentage of care had been made under section 50 of the Act, which provides for a determination of care where there is a pattern of care of a child. The existing percentage of care was that Mrs Malegam had 87% care of the children and Mr Norris had 13% care of the children.

3. The Tribunal found on the documents before it that there was no interim determination of care as of March 2018 when the Department was notified of the change to care arrangements and therefore paragraph 54F(1)(b) of the Act is also met in this case.

4. In relation to paragraph 54F(1)(c) of the Act, the Tribunal must consider when the Department was notified of a change to care arrangements. The Tribunal accepted from the Department’s documents that on 29 March 2018 Mr Norris contacted the Department to advise he was having increased care of the children.

5. Paragraph 54F(1)(d) of the Act then requires the Tribunal to consider whether the cost percentage would change if the Tribunal were to determine, under section 49 or 50 of the Act, another percentage of care for the children. Section 49 of the Act applies to determinations of a percentage of care where there is no pattern of care for a child, and section 50 applies to determinations of percentages of care where there has been a pattern of care for a child.

6. Having regard to the calendars contained on the Department documents, the Tribunal found that Mr Norris had commenced, broadly, a one-night-per-week pattern of care in December 2017. He was away with the children in January 2018 and his Friday night pattern of care recommenced in February 2018, with minor variations to this arrangement.  The Tribunal was satisfied from this evidence that that existing pattern of care changed as of December 2017 and that the broad pattern of care represented by the evidence contained on the Department documents was one night per week provided by Mr Norris, or 14% care.  The Tribunal found that this pattern of care changed as of early December 2017, not 6 January 2018 as indicated by Mr Norris to the Department.

7. The Tribunal noted that, if a new care determination was made, Mr Norris’ cost percentage would change from nil to 24% (see section 55C of the Act). The requirements for revocation of the existing percentage of care under section 54F of the Act are met in this case.

8. The Tribunal noted that subsection 54F(2) of the Act provided, at the relevant date, for the revocation of a determination of care to take effect the day before care changed in circumstances where the Registrar is notified within 28 days after the change of care. Where the Registrar was not notified within 28 days, the revocation is to take effect on the date prior to the date that the Department was notified of the change in care.

9. Mr Norris contacted the Department on 29 March 2018 to advise of a change of care and the Tribunal found that care had changed in early December 2017.  As this was outside 28 days after the change in care, the existing determination of care is revoked from 28 March 2018.  From 29 March 2018, Mrs Malegam is to be recorded as having 86% care of the children and Mr Norris as having 14% care of the children.  This decision is legally correct and is also affirmed.

DECISION

The Tribunal affirms the decisions under review.