Pope and Pope (Child support)

[2020] AATA 584

Pope and Pope (Child support) [2020] AATA 584 (22 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017716

APPLICANT:  Ms Pope

OTHER PARTIES:  Child Support Registrar

Mr Pope

TRIBUNAL:Member M Baulch

DECISION DATE:  22 January 2020

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the care percentages that are to apply to the child support assessment from 17 April 2019 are those that record Ms Pope as having 72% care of the children and Mr Pope as having 28% 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 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 percentages of care used in the child support assessment to determine the amount of child support paid by Mr Pope to Ms Pope in respect of their 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.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

3. Mr Pope has been assessed as liable by the Department of Human Services – Child Support (the Department) to pay child support to Ms Pope since 3 November 2013.  Since 29 January 2019 that assessment has been calculated on the basis that Mr Pope had 49% care of the children and Ms Pope had 51% care of the children.

4. On 3 May 2019 Ms Pope advised the Department that there had been a change in the care arrangements for the two children.  After considering the matter, a departmental employee decided, on 6 June 2019, that there should be a change to the care percentages applying in the child support assessment with effect from 17 April 2019, such that Ms Pope had 72% care of the children and Mr Pope 28% care.

5. Mr Pope objected to that decision and, on 24 October 2019, that objection was allowed.  The objections officer decided that there should be no change to the care percentages that had applied to the assessment since 29 January 2019 (the decision under review).  Ms Pope has now applied to this tribunal for an independent review of that decision.

6. A hearing into the application for review was held by the tribunal on 22 January 2020. Ms Pope and Mr Pope both participated in the hearing by conference 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 131 pages of documents provided to it, and the parties to the review, by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.

7. The issue to be determined in this application for review is whether or not there should be a change to the care percentages applying in the child support assessment relating to Ms Pope’s and Mr Pope’s two children.

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children.

2. I noted that since at least 29 January 2019 the Department had recorded Ms Pope as having 51% care of both children and Mr Pope having 49% care.

3. On 3 May 2019, Ms Pope contacted the Department and advised that the care arrangements for the children had changed.  She stated that Mr Pope had care of the children each Wednesday night and every second Friday and Saturday night with effect from 17 April 2019.

4. Ms Pope explained at the hearing that she and Mr Pope had trialled a period of 50-50 care; however it had not worked out.  The children had not been able to spend sufficient time with her, as their primary carer, so they reverted to their previous arrangement.

5. Mr Pope disputed that care had changed from 50-50.  He stated that he had care every Wednesday night and up until 3.30 pm on Thursday.  He also had care each Friday from 3.30 pm until 6.30 pm on Sunday every second week, and during the day time on Saturday each other week.  In addition he had care 50-50 over school holidays and on other numerous occasions when Ms Pope was unable to care for the children, such as when she was in hospital for two weeks.  Mr Pope submitted that if care were measured in hours, he had 50% care of both children.

6. Ms Pope agreed that Mr Pope had occasional extra days of care, but denied being in hospital for two weeks or that those extra events of care occurred as frequently as Mr Pope claimed.  Ms Pope’s evidence was that the care during school holidays was the same as it was in term time, and reverted to the pattern that had applied under court orders made in 2018.

7. It was my view that the records of text messages between Ms Pope and Mr Pope dated from 16 April 2019 until 4 May 2019 appear to document Ms Pope and Mr Pope arranging changes of care for some weekends and on Wednesdays.  When I asked Mr Pope whether those messages confirmed Ms Pope’s evidence as to the pattern of care, his responses were vague and evasive.  He referred to his own records of care occurring in 2019, which are not in evidence before me, and revised consent orders which detailed 50-50 care, which were never formally endorsed by either Ms Pope or the court.

8. Having considered the evidence, I considered Ms Pope’s account of the care arrangements that had applied from 17 April 2019 to be the most reliable and consequently preferred her evidence.

9. On the basis that Ms Pope’s evidence was that Mr Pope had care of the children each Wednesday night, and every second Friday and Saturday night, I found that there is a pattern of care from 17 April 2019 under which Ms Pope had care of the children 10 nights per fortnight and Mr Pope had care of the children for four nights per fortnight. 

10. Applying the rounding rules in section 54D of the Act (percentages greater than 50 are rounded up and percentages less than 50 are rounded down), this equates to a percentage of care for two children of 72% for Ms Pope and 28% for Mr Pope.

11. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the actual 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.

12. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

Ms Pope’s care percentage was previously 51% and I have found that it is now 72%.  Mr Pope’s care percentage was previously 49% and I have found it is now 28%.  I was satisfied that these new care percentages would change the cost percentages used in the child support assessment.  Therefore, the existing care percentages must be revoked, according to section 54F of the Act.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If the Department 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.    In this instance, the change in care occurred on 17 April 2019 and the Department was advised on 3 May 2019, which was within 28 days.  Therefore, the existing care percentages are revoked from 16 April 2019.

2. As I have revoked the existing care percentage determinations that apply in respect of Ms Pope’s and Mr Pope’s two 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 Pope’s percentage of care for the children is 72%.

·       Pursuant to section 50 of the Act, I determined that Mr Pope’s percentage of care for the children is 28%.

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 17 April 2019.

1. As I have arrived at a different decision from the objections officer, I set aside that decision and substituted my own.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the care percentages to apply to the child support assessment from 17 April 2019 are those that record Ms Pope as having 72% care of the children and Mr Pope as having 28% care.