Rendell and McCawley (Child support)

[2022] AATA 2117

Rendell and McCawley (Child support) [2022] AATA 2117 (1 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023496

APPLICANT:  Mr Rendell

OTHER PARTIES:  Child Support Registrar

Miss McCawley

TRIBUNAL:Member J Prentice

DECISION DATE:  01 June 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1] and [Child 2]:

• The existing care percentage determination of 0% to Mr Rendell is revoked from 18 January 2022 and replaced with a new care percentage of 100% from 19 January, 2022; and

• The existing care percentage determination of 100% to Miss McCawley is revoked from 18 January 2022 and replaced with a new care percentage of 0% from 19 January 2022.

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 omitted 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. Mr Rendell and Miss McCawley are the parents of [Child 1] (born May 2011) and [Child 2] (born January 2014).  This review application is with respect to a decision by Services Australia – the Child Support Agency (CSA) about the recorded care for the children.

2. The existing percentage of care arrangements for the children were 100% for Miss McCawley and 0% for Mr Rendell; when Mr Rendell contacted the CSA on 19 January 2022 and advised a change of care from 19 January 2022 to 100% to him and 0% to Miss McCawley.

3. On 1 February 2022 the CSA refused to reflect the change of care notified by Mr Rendell and the care percentages recorded continue to be 0% to Mr Rendell and 100% to Miss McCawley.

4. Mr Rendell lodged an objection with the CSA on 9 February 2022 which was disallowed on 16 March 2022

5. On 17 March 2022 Mr Rendell lodged an application for review with the Tribunal.

6. Mr Rendell and Miss McCawley both spoke to the Tribunal by conference telephone at a hearing on 1 June 2022 and gave evidence on affirmation.

7. In considering the application, the Tribunal took into account the oral evidence of Mr Rendell and Miss McCawley and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1). The Tribunal also took into account additional documentation received from Mr Rendell.

ISSUE

1. The issue to be determined by the Tribunal is whether the pre-existing percentage of care determinations are to be revoked and replaced and, if so, the date of effect of the revocation and consequential new percentages of care.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

10.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

1. The scheme of the Child Support legislation is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

2. Where a parent has a pattern of care for a child, the Child Support legislation provides for the determination of 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, care decisions are made at a point in time based on what has happened up until the change in care is considered and what will likely be the care thereafter. What is likely to happen may not eventuate or may subsequently change and when that is the case, a parent can notify the CSA and a new percentage of care determination can be made. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

3. The Child Support legislation provides for revoking of care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and the making of new care determinations to take account of a care change.

14.Any new care determination takes effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification as regards the increased level of care. It follows that as regards the date of effect of revocation of care percentage determinations, there is the possibility of differential dates of effect for the increased care percentage to one parent and the decreased care percentage to the other parent depending upon when the CSA is notified of the change.

15.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can then be considered and made if appropriate.

1. Miss McCawley informed the Tribunal that her personal circumstances had changed in January 2022 such that Mr Rendell had become the primary carer for the children from 19 January 2022.

2. Miss McCawley indicated that their intention was that their previous roles would be reversed and each fortnight she hoped to have a weekend with the children.  This pattern had started in April 2022; however, in February and March 2022 she had only managed to have two nights each month with the children.

3. The Tribunal was impressed that both parties had made decisions in support of the best interests of their children and were in agreement about the care arrangements.  In summary the care arrangements for the children were as follows:

   ·Up until 19 January 2022 Mr Rendell had 0% care and Miss McCawley had 100% care.

   ·From 19 January 2022 to 31 March 2022 Mr Rendell had 100% care of the children and Miss McCawley had 0% care.  It was acknowledged that Miss McCawley did manage to have the children for a couple of nights during this period, but they were one-off events and did not constitute a new pattern of care.

   ·From 1 April 2022 going forward both parents agreed that Mr Rendell continued to be the primary carer with 86% care and Miss McCawley would have one weekend a fortnight caring for the children (the equivalent of 14% care).

4. As a result, the Tribunal is satisfied that the previous percentage of care determinations of 0% to Mr Rendell and 100% to Miss McCawley should be revoked and that new care percentage determinations of 100% to Mr Rendell and 0% to Miss McCawley from 19 January 2022 should apply. As Mr Rendell notified the change of care within 28 days of the change occurring, the date of effect of the increased care of 100% to Mr Rendell and the decreased care of 0% to Miss McCawley is from the date of the change, 19 January 2022.

5. The Tribunal notes that the legislative scheme deals with any subsequent changes of care by requiring further notification to be made, requiring a fresh decision by the CSA.  The subsequent change to the pattern of care of the children that occurred on 1 April 2022 needs to be notified to the CSA so that a decision can be made by the CSA in relation to that change. Alternatively, if that change has already been notified, the parties may wish to follow up with CSA in relation to that subsequent change in care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1] and [Child 2]:

• The existing care percentage determination of 0% to Mr Rendell is revoked from 18 January 2022 and replaced with a new care percentage of 100% from 19 January 2022; and

• The existing care percentage determination of 100% to Miss McCawley is revoked from 18 January 2022 and replaced with a new care percentage of 0% from 19 January 2022;