Patrick and Fitzgerald (Child support)

[2020] AATA 585

Patrick and Fitzgerald (Child support) [2020] AATA 585 (15 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017690

APPLICANT:  Ms Patrick

OTHER PARTIES:  Child Support Registrar

Mr Fitzgerald

TRIBUNAL:Member M Baulch

DECISION DATE:  15 January 2020

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the percentages of care that apply to the child support assessment with effect from 31 May 2018 are to record Ms Patrick as having 50% care of the children and Mr Ftizgerald as having 50% care of the children.

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 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 for review is about the child support assessment applying to Ms Patrick and Mr Ftizgerald, who are the separated parents of two children.

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

3. The Department of Human Services – Child Support (the Department) has made child support assessments relating to Ms Patrick and Mr Ftizgerald since 24 October 2017.  Since that date, those assessments were based upon Ms Patrick having 100% of the children.

4. [In] July 2018, the Department decided that the pattern of care to apply to the child support assessment was based upon Ms Patrick having 50% care of the children since 31 May 2018, and Mr Ftizgerald having 50% care.

5. [In] June 2019, Mr Ftizgerald objected to that decision, and [in] August 2016, that objection was partly allowed; although the parents were not sent notification of that decision until [September] 2019.  The objections officer decided that the care percentages applying to the child support assessment since 1 May 2018 should record Ms Patrick as having 41% care of the children and Mr Ftizgerald as having 59% care, and that these percentages should take effect from 13 June 2019 (the decision under review). 

6. On 24 October 2019, Ms Patrick applied to this tribunal for an independent review of the Department’s decision.

7. A hearing into the application for review was held by the tribunal on 15 January 2020.  Ms Patrick and Mr Ftizgerald both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.

8. The tribunal had before it relevant documents provided to it, and the parties to the review, by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 148, copies of which both parties confirmed they had received prior to the tribunal hearing.

ISSUES

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

2. The issue which arises in this case is what should be the care percentages applying to the child support assessment in respect of Ms Patrick’s and Mr Ftizgerald’s children?

CONSIDERATION

1. 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. 

2. Since [October] 2017 the Department had assessed Ms Patrick as having 100% care of the children and Mr Ftizgerald as having 0% care.

3. [In] May 2018, the parents entered into consent orders before the Federal Circuit Court of Australia.  Under those orders, there was to be a pattern of care under which each parent had 50% care of both children.  [In] June 2018, Ms Patrick advised Centrelink of the change in the pattern of care and, [in] July 2018, the Department amended the child support assessment to record both parents as having a pattern of care for both children of 50%.

4. Ms Patrick advised me that it had been her expectation that the orders would be followed.  She stated that Mr Ftizgerald did have more nights of care, but these were occasional instances and care has been shared 50-50.

5. Mr Ftizgerald’s evidence was that he expected care would be 50-50 in accordance with the orders, but in practice it had been more than 50%.  As a consequence, he had kept records of the care that had occurred.  When I suggested to Mr Ftizgerald that a review of an earlier care decision should not be an audit of the care that had occurred, he submitted that he always knew full well that he would end up having the children more than 50% of the time.

6. The task for me is to determine whether a parent “has had, or is likely to have, a pattern of care for the child” (or no pattern of care) – see sections 49 and 50 of the Act.  I am wary of adopting an incorrect approach of reaching findings about a pattern of care solely by reference to an historical audit of what actually happened.  The child support scheme does not provide for a reconciliation or audit of care, but instead care determinations are intended to operate prospectively and indefinitely unless and until the Department is notified of a change to the pattern that will actually affect the assessment.  An objection decision, or a review by this tribunal, should not be used as a means of achieving such an audit.

7. Consequently, my consideration is a point-in-time consideration.  Was the decision, made by the Department [in] July 2018, correct at that point in time, based on all the evidence now available?  The evidence of both parents was that they expected the care to be 50-50, although Mr Ftizgerald backtracked from that position later in the hearing.  I formed the view that Mr Ftizgerald’s initial response, that he had expected the care to be 50-50, was the more reliable response as it was not coloured by my explanation that this process was not an audit of the care that had actually occurred. 

8. Having considered the evidence, I was satisfied, and so found, that as at [July] 2018 both parents expected that the consent orders of [May] 2018 would be complied with and the likely pattern of care would be 50% for each parent. 

9. Section 54F of the Act provides that an existing care percentage determination must be revoked if the Department (or Centrelink) is notified, or otherwise becomes aware, that the care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

10. Having regard to section 55C of the Act I was satisfied that care of both children changing from 100% to 50% for Ms Parrish, and 0% to 50% for Mr Ftizgerald, would alter the cost percentages used for the parents in the administrative assessment of child support.  Therefore the then existing care determinations, which had applied since 24 October 2017, must be revoked.

11. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If the Department (or Centrelink) is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care. The change in care occurred on 31 May 2018, when the orders were made, and [in] June 2018 Ms Patrick advised Centrelink of that change, which was within 28 days.  Therefore, the existing care percentage determinations are revoked from 30 May 2018.

12. 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 current pattern of care.  Accordingly:

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

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

    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 31 May 2018.

13. I have arrived at a decision that is different from the objections officer and therefore, for these reasons, I set aside that decision and substituted my own as set out below.

14. Having concluded that, in essence, Mr Ftizgerald’s objection should have been disallowed, I did not proceed to consider from which date the objection decision should apply.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that that the percentages of care that apply to the child support assessment with effect from 31 May 2018 are to record Ms Patrick as having 50% care of the children and Mr Ftizgerald as having 50% care of the children.