Pollard and Pearson (Child support)
[2024] ARTA 213
•22 October 2024
Pollard and Pearson (Child support) [2024] ARTA 213 (22 October 2024)
Applicant/s: Mr Pollard
Respondent: Child Support Registrar
Other Parties: Ms Pearson
Tribunal Number: 2024/BC028185
Tribunal: General Member F Petrone
Place:Adelaide
Date:22 October 2024
Decision:The Tribunal varies the decision under review so that the care determinations in force in relation to [Child 1] are revoked from 19 September 2023 for Mr Pollard and from 19 November 2023 for Ms Pearson. New care determinations of 12% to Mr Pollard and 88% to Ms Pearson are made with effect on the day after the respective dates of revocation.
CATCHWORDS
CHILD SUPPORT – change to the pattern of care – existing percentage of care determinations revoked – new determinations made – date of effect – decision under review varied
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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
Mr Pollard and Ms Pearson are the parents of [Child 1] and [Child 2] in respect of whom a child support assessment is in place. This application for review relates the to the percentage of care for [Child 1] only.
Prior to the hearing, the Child Support Registrar provided Mr Pollard, Ms Pearson and the Tribunal with a bundle of documents numbering 243 pages in total (the Tribunal documents). Those documents indicate the following.
From 3 March 2023 Mr Pollard’s child support liability was calculated on the basis that he had 42% care of [Child 1] and Ms Pearson had 58% care (the existing care determination).
On 20 November 2023, Ms Pearson notified Services Australia – Child Support (Child Support) that there had been a change to the care arrangements from 20 September 2023 and that [Child 1] was now in her sole care. Mr Pollard disputed the change.
On 8 April 2024, Child Support revoked the existing care determination and replaced it with another, reflecting care determinations of 0% to Mr Pollard and 100% to Ms Pearson from 20 September 2023.
On 11 April 2024, Mr Pollard objected to Child Support’s decision.
On 30 June 2024 an objections officer disallowed the objection to the decision to reflect the care of [Child 1] as 0% to Mr Pollard and 100% to Ms Pearson from 20 September 2023 stating that there was insufficient information to make a contrary decision.
Mr Pollard applied to the Tribunal for review on 3 July 2024.
Mr Pollard and Ms Pearson attended a hearing by Microsoft Teams audio on 22 October 2024 and spoke with me regarding the application. In this decision, I refer only to those matters relevant to the decision under review.
ISSUES
Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Part 5, Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act). Upon revocation, a new percentage of care determination must be made.
The issues which arise in this case are:
· Should the existing care determination be revoked? If so,
· What is the percentage of care for each parent?
· What is the date of effect of any decision?
CONSIDERATION
Should the existing care determination be revoked?
Section 54F of the Act provides the Child Support Registrar must revoke a determination of a percentage of care if (among other requirements):
· the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and
· the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.
In order to revoke the existing care determination, I must be satisfied that care is not taking place in accordance with the existing care determination and I must be able to identify another pattern of care and corresponding percentage to assess if the cost percentage would change.
The evidence in the Tribunal documents and statements made during the hearing indicate that the parents agree that there was a change to the pattern of care in or around late September 2023.
Mr Pollard states that he did not keep a calendar of when [Child 1] was in his care until December 2023 but he agrees that from around late September or October 2023 [Child 1] was mainly with Ms Pearson whilst he completed his school exams. Mr Pollard stated he believed this was a temporary change and that care changed again in December 2023 with his care of [Child 1] increasing at that time.
Ms Pearson states that [Child 1] has been primarily in her care since 20 September 2023 and that he chooses when he will stay with Mr Pollard. She states that [Child 1’s] preference is to stay with her during his exam periods. Ms Pearson states that the pattern of care is inconsistent and dependent on [Child 1’s] wishes. I am satisfied that is the case.
Based on the evidence referred to above, I am satisfied that from 20 September 2023, care was not taking place in accordance with the existing care determination of 42% to Mr Pollard and 58% to Ms Pearson as the pattern of care changed from that date.
I must now consider whether the cost percentage for [Child 1] would change if I were to determine another percentage to be Mr Pollard’s percentage of care for [Child 1].
The Act provides for a percentage of care to be identified by reference to a ‘care period’. The care period is not necessarily the period in respect of which the care determination will operate, rather it is a mechanism by which a pattern of care may be examined in order to identify and convert the pattern to a percentage, usually by reference to nights in care.
I am satisfied that it is reasonable to consider the period from 20 September 2023 to 19 September 2024. Although [Child 1] turned 18 on 29 July 2024 both parents indicated that he is still at school until the end of the school year and so I consider it reasonable to use a period of 12 months from the date of the change in care for the purpose of determining a percentage of care.
There was some dispute between the parents as to the number of nights [Child 1] spends at Mr Pollard’s home. Ms Pearson believes [Child 1] spends no more than 3 nights/month on average at Mr Pollard’s home whereas Mr Pollard believes it is more than this.
The calendar and other evidence in the Tribunal documents was discussed with both parents at the hearing. Mr Pollard did not dispute that [Child 1] was not in his care from 20-30 September 2023 or in October or November 2023. As indicated at page 108 of the Tribunal documents and clarified in the hearing, Mr Pollard states that [Child 1] was in his care as follows:
·4 nights in December 2023
·8 nights in January 2024
·6 nights in February 2024
·4 nights in March 2024
·5 nights in April 2024
Ms Pearson agreed with the above except for January 2024, which she states was 7 nights and February 2024, which she states was 4 nights.
Both parents agreed that [Child 1’s] preference is to stay with Ms Pearson during exam periods.
Although there is variation in care arrangements such that there is no clear pattern of care, there is nevertheless agreement between the parents to a certain point. Doing the best I can with the information available to me, I am satisfied that [Child 1] was in Mr Pollard’s care for 44 out of 365 nights during the care period, which equates to a care percentage of 12%.
A new care determination of 12% to Mr Pollard and 88% to Ms Pearson would result in a change to Mr Pollard’s cost percentage for [Child 1]. Under section 54F of the Act I must therefore revoke the existing care determination.
What is the percentage of care for each parent?
Under section 50 of the Act, for the reasons given above, I consider the percentage of care for each parent to be 12% for Mr Pollard and 88% for Ms Pearson by reference to a 12‑month care period commencing on 20 September 2023.
What is the date of effect of any decision?
Ms Pearson notified Child Support on 20 November 2023 that she considered that from 20 September 2023 her care of [Child 1] did not correspond with the existing care determinations.
Subsection 54F(3) of the Act outlines when a revocation of the existing percentage of care determinations take effect depending on when the Registrar is notified of a change in care.
Because Ms Pearson notified the Registrar of a change more than 28 days after the change of care day and her percentage of care increased, the revocation of the existing care determinations take effect as follows:
-For Ms Pearson, from the day before the date of notification of the care change, namely 19 November 2023; and
-For Mr Pollard, from the day before the change of care day, namely 19 September 2023.
The new percentage of care determinations for each parent take effect from the day after the respective dates of revocation for each parent.
DECISION
The Tribunal varies the decision under review so that the care determinations in force in relation to [Child 1] are revoked from 19 September 2023 for Mr Pollard and from 19 November 2023 for Ms Pearson. New care determinations of 12% to Mr Pollard and 88% to Ms Pearson are made with effect on the day after the respective dates of revocation.
| Date(s) of hearing: | Tuesday, 22 October 2024 |
| Representative for the Applicant: | Self |
| Representative for the Other party: | Self |
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