Phelps and Phelps (Child support)

[2022] AATA 2368

Phelps and Phelps (Child support) [2022] AATA 2368 (12 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC023303

APPLICANT:  Ms Phelps

OTHER PARTIES:  Child Support Registrar

Mr Phelps

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  12 June 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Phelps provides 11 per cent care and Mr Phelps provides 89 per cent care of [Child 1] from 5 September 2021.

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 review is about a change to the percentage of care determinations for Ms Phelps and Mr Phelps in respect of their child [Child 1] (born October 2004). There has been a child support assessment in place since 10 December 2013.

2. From 23 July 2021 the child support assessment reflected Ms Phelps as having 0 per cent care and Mr Phelps as having 100 per cent care of [Child 1].

3. On 22 September 2021 Ms Phelps advised the Child Support Agency of a change to the care arrangements for [Child 1] stating that she provides 30 per cent care and Mr Phelps provides 70 per cent care from 27 July 2021.  Ms Phelps subsequently stated that the date care changed was from 5 September 2021.

4. On 22 November 2021 the Child Support Agency made the decision to reflect that Ms Phelps provides 16 per cent care and Mr Phelps provides 84 per cent care of [Child 1] from 1 October 2021.

5. On 24 November 2021 Mr Phelps objected to this decision and on 21 January 2022 the Child Support Agency allowed the objection and made the decision to reflect that Ms Phelps provides 11 per cent care and Mr Phelps provides 89 per cent care of [Child 1] from 1 October 2021 (the objection decision).

6. On 15 February 2021 Ms Phelps applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 26 May 2022.  Ms Phelps gave evidence on affirmation by Microsoft Teams audio.  Mr Phelps advised the Tribunal in writing on 2 March 2022 that he did not wish to participate in the hearing.  The Tribunal contacted Mr Phelps by telephone on 26 May 2022 and he confirmed this was still the case.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (175 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.  The task of the Tribunal on review is the same.

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 new care determinations 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] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Ms Phelps told the Tribunal there was no court order or other written agreement in place regarding the care of [Child 1].  She said [Child 1] would decide when he would stay with her in Perth and this was around two to three nights every three weeks.  Ms Phelps said she had initially thought [Child 1] would be able to stay with her more regularly which was why she had picked 30 per cent care but this did not eventuate.

2. Ms Phelps explained that [Child 1] first moved to [City 1] to live with Mr Phelps in mid-July 2021.  Ms Phelps told the Tribunal that [Child 1] had then left school and started working so he was initially only able to stay with her during the days he was not at work.

3. Ms Phelps said [Child 1] did not return home in August but stayed with her on 5 and 6 September 2021.  She said he also stayed for two nights in early October 2021 and a further five nights from 10 to 15 October 2021.  Ms Phelps said the additional care in October was so [Child 1] could attend a funeral.

4. The Tribunal notes in evidence from the Child Support Agency a calendar of care provided by Ms Phelps.  It shows Ms Phelps had care of [Child 1] on 6, 7, 10, 11, 12, 13 and 14 October 2021 as well as 17 and 18 November 2021.

5. Ms Phelps said, upon reflection, she felt her care of [Child 1] was around 11 per cent care but this was likely to increase as he had recently started a new work roster.

6. Although Mr Phelps did not participate in the hearing the Tribunal notes that during a conversation with a child support officer on 24 November 2021 he stated that [Child 1] would stay with Ms Phelps two nights every three weeks.  The Tribunal further notes in evidence from the Child Support Agency a detailed calendar of care provided by Mr Phelps which confirms that Ms Phelps is providing care of [Child 1] every third week on a Wednesday and Thursday night.  This calendar of care also shows that Ms Phelps had a five-night block of care from 10 October 2021 to 15 October 2021.

7. The Tribunal, in making a decision about the care of [Child 1], must take into account evidence of the care each parent had up until the time of the original decision made by the Child Support Agency as well as evidence of the prospective care each parent was likely to have going forward.

8. Ms Phelps has told the Tribunal she believes that her care of [Child 1] is around 11 per cent care based on two nights every three weeks plus a one-off block of care in October 2021.  This is supported by evidence provided by Mr Phelps.

9. The Tribunal finds that a new pattern of care for [Child 1] commenced from 5 September 2021.  Based on the evidence available the Tribunal is satisfied that Ms Phelps provides care of two nights every third week but also had a one-off block of five nights due to a family event.  This equates to approximately 11 per cent care from 5 September 2021.

10. The existing percentages of care reflected in the assessment for [Child 1] were 0 per cent care to Ms Phelps and 100 per cent care to Mr Phelps.  The Tribunal finds that Ms Phelps provides 11 per cent care and Mr Phelps provides 89 per cent care of [Child 1] from 5 September 2021.  This does not result in a change to the cost percentages for [Child 1].

11. Mandatory revocation of care percentages applies under section 54F of the Act where the new care percentage determinations would change the cost percentage.  Mandatory revocation of care percentages also applies under section 54G of the Act where one of the parents who was to have at least regular care of the child under the existing determinations now has no care or less than regular care despite the child being made available by the other parent.  In this case section 54F and section 54G of the Act do not apply.

12. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.

13. In relation to discretionary revocation, section 2.2.2 of the Child Support Guide, a policy guide issued by the Child Support Agency, states:

    Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If a party to an assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have the change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history on a case. However, if a party does not agree that a change has occurred or the readily available evidence is otherwise not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination and conduct no further investigations. This discretion enables the Registrar to decide to not proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

14. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

15. As section 54H of the Act is met, the Tribunal finds the previous determinations can be revoked and replaced with the pattern of care that took place so the records are accurately reflected.

New care percentage decision

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Phelps and Mr Phelps under section 50 of the Act.

2. For the reasons outlined, the Tribunal finds that Ms Phelps provides 11 per cent care and Mr Phelps provides 89 per cent care of [Child 1] from 5 September 2021.

Date of effect of new care percentage decision

1. Ms Phelps notified the Child Support Agency of the change in care on 22 September 2021 which is less than 28 days after the change occurred on 5 September 2021.  Therefore, according to subsection 54H(3) of the Act, the revocation is made from 4 September 2021.

2. The new determinations can be made from 5 September 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Phelps provides 11 per cent care and Mr Phelps provides 89 per cent care of [Child 1] from 5 September 2021.