Reygan and Lancaster (Child support)

[2018] AATA 4899

Reygan and Lancaster (Child support) [2018] AATA 4899 (17 December 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014861

APPLICANT:  Mr Reygan

OTHER PARTIES:  Child Support Registrar

Ms Lancaster

TRIBUNAL:Member A Smith

DECISION DATE:  17 December 2018

DECISION:

The decision under review is set aside and, in substitution, the Tribunal decides that Mr Reygan has 94% and Ms Lancaster has 6% care of [Child 1] and [Child 2] with effect in the child support assessment from 12 June 2018.

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 - date of effect of the care percentage decision - 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. Mr Reygan and Ms Lancaster are the parents of [Child 1] (born [December] 2000) and [Child 2] (born [February] 2004) in respect of whom there is a child support assessment.

2. The existing care determination for [Child 1] and [Child 2] is 76% in Mr Reygan’s care and 24% in Ms Lancaster’s care.

3. On 14 June 2017, Mr Reygan advised the Department of Human Services – Child Support (the Department) that [Child 1] and [Child 2] had been 100% in his care for over two years.

4. On 30 August 2017, the Department made a decision not to the revoke the existing care determination about [Child 1]. A letter was sent to the parties advising there was no change to the child support assessment for [Child 1].

5. On 12 June 2018, Mr Reygan lodged an objection to the decision made on 30 August 2017.

6. On 10 August 2018 an objections officer at the Department disallowed the objection and determined there was insufficient evidence to revoke the existing determination of 76% care of [Child 1] to Mr Reygan.

7. On 22 August 2018, Mr Reygan applied to the Administrative Appeals Tribunal Social Services and Child Support Division (the Tribunal) for an independent review of the objections officer’s decision.

8. On 4 December 2018, the Tribunal conducted a hearing. Mr Reygan and Ms Lancaster attended and gave evidence by conference telephone. Prior to the hearing, the Department sent to the Tribunal and both parties relevant documents and records from the child support file, marked pages1 to 128 (the Department’s documents).

9. The Tribunal adjourned the matter and requested further information from Mr Reygan regarding the children’s attendance at soccer during 2017 and 2018.

10. On 14 December 2018, the Tribunal received advice from Mr Reygan that he was unable to provide the requested information until late January 2019 due to the unavailability of administrative officers for the soccer club.

11. The Tribunal considered the matter could be determined based on the available evidence and proceeded to finalise its decision on 17 December 2018.

ISSUES

1. Mr Reygan maintained he has had 100% care of the children since October 2014 apart from approximately three nights per year they have spent with Ms Lancaster. Ms Lancaster acknowledged that her care of the children was less than 24% from 14 June 2017 but she maintained that Mr Reygan has not had 100% care since that date.

2. The issues to be determined are:

   ·     Did a care arrangement apply?

   ·     Was a care percentage decision also made regarding [Child 2] on 30 August 2017?

   ·     What are the parents’ percentages of care for [Child 1] and [Child 2] from 14 June 2017?

   ·     When does any change to the parents’ care percentages take effect?

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” for the children who are the subject of the child support assessment.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment, and for those determinations to be revoked and new care determinations to be made in specified circumstances.

Did a care arrangement apply?

1. Particular provisions of the Assessment Act can apply in circumstances where a “care arrangement applies in relation to a child”. Ms Lancaster provided a copy of a parenting plan dated 15 August 2013 that provided for care arrangements where [Child 1] lived with Mr Reygan and spent alternate weekends with Ms Lancaster, and where [Child 2] lived with Ms Lancaster and spent alternate weekends with Mr Reygan. The parenting plan stated that a review would take place no later than the end of term 1, 2014.

2. It was agreed between the parties that [Child 2] went to live with Mr Reygan in or around June 2014. Ms Lancaster acknowledged the parenting plan was not relevant for both children from that time. Ms Lancaster testified that she sought information from the family relationship centre because she believed there was a new care arrangement agreed. However, she discovered their file showed she had sought a new parenting plan in November 2015 but Mr Reygan did not respond.

3. The parties agreed that it was initially intended that the children would spend time with Ms Lancaster every alternate weekend and half the school and summer holidays. Mr Reygan said this arrangement occurred for a short period from June 2014 when [Child 2] came to live with him until around October 2014. He gave consistent and clear evidence that he had 100% care of both children since that time. Ms Lancaster maintained that the alternate weekend and half the holidays care arrangement “gradually disintegrated” due to a number of factors, including the children’s soccer commitments, her lack of a car, and other reasons including some occasions when she was not provided access to the children. Ms Lancaster was unable to be specific about dates or time periods but she did not think it happened within a few months.

4. Ms Lancaster acknowledged that she had “sporadic” care of the children by the middle of 2017 and that the children did not regularly spend alternate weekends or half the holidays with her.

5. The Tribunal finds that the care arrangement set out in the parenting plan dated 15 August 2013 did not apply as at 14 June 2017.

6. Even if the parenting plan care arrangement did apply in relation to [Child 1], sections 51 and 52 of the Assessment Act (as then formulated) would not apply because the Tribunal was satisfied based on Ms Lancaster’s evidence that the maximum interim period of 14 weeks (where care can be determined based on the care arrangement rather than the actual care) would have elapsed since the change of care day.

Was a care percentage decision also made regarding [Child 2] on 30 August 2017?

1. Mr Reygan’s notification on 14 June 2017 about a change to the existing care determination was clearly made in relation to both children (page 16). The potential care change notified to Ms Lancaster specified a change in care from 14 June 2017 regarding both children (page 34). The Department’s file note recording the decision to reject Mr Reygan’s request for a new care percentage determination notes care details regarding [Child 1] only but again refers explicitly to Mr Reygan’s notification about a change in care for both children.

2. The letter sent to the parties dated 30 August 2017 (pages 40, 41) refers to new information about [Child 1]’s care arrangements and the decision made that the new information did not require a change in the child support assessment; no mention is made about [Child 2]’s care in the letter.

3. Nevertheless, the Tribunal was satisfied based on the other records of the Department that the decision made on 30 August 2017 involved a care percentage determination in relation to [Child 2] also.

What are the parents’ percentages of care for [Child 1] and [Child 2] from 14 June 2017?

1. Pursuant to section 50 of the Assessment Act, percentages of care are to correspond with the actual care of [Child 1] and [Child 2] that each parent had, or was likely to have, during a care period. Paragraph 50(1)(b) requires two things before a new care determination can be made:

   ·the revocation of an existing care determination under Subdivision C of Division 4 of Part 5 of the Act; and

   ·satisfaction of an actual or likely pattern of care during such care period as is determined to be appropriate in all the circumstances.

2. Pursuant to section 54F of the Assessment Act, an existing percentage of care must be revoked if it does not correspond with the actual care taking place and the parties' cost percentages would change if they reflect the current care percentage. Alternatively, pursuant to section 54H of the Act, an existing percentage of care may be revoked if it does not correspond with the actual care taking place.

3. Both parties provided third party statutory declarations or statements in support of their care of the children. The Tribunal finds the statements are of limited probative value because they are provided by family or friends and contain no specific evidence that could be tested by questioning the parties.

4. As set out in paragraphs 19 and 20 above, Ms Lancaster acknowledged she had sporadic care of the children and that they did not regularly spend time with her on alternate weekends or half the holidays. Ms Lancaster could recall two occasions where [Child 2] spent a few nights with her in school holidays, and one occasion when [Child 1] stayed for a few nights. Ms Lancaster conceded that in 2017 the children did not stay on weekends with her when they had soccer matches. She believed the soccer was in the winter mainly and that [Child 1] sometimes played out of season and there was a time when [Child 2] was not competing. In the middle of 2017, Ms Lancaster initially responded that the children had soccer commitments pretty much every weekend. It is agreed the children’s soccer commitments were ongoing in 2018.

5. The parties agreed the children played soccer with [Soccer Club 1]. Information available online indicates the [Soccer Club 1] plays in [District 1]. Information available regarding the fixtures for [District 1] indicates the season runs from mid-April to mid-September.

6. Based on the evidence available, the Tribunal finds it reasonable to conclude that [Child 1] and [Child 2] played soccer during the 2017 season and did not spend weekends with Ms Lancaster from mid-April to mid-September. Counting every alternate weekend outside the soccer season (14 nights from January to mid-April, and 14 nights from mid-September to December), plus half of the school holidays (21 nights for term holidays and 21 nights for Christmas holidays) gives a total of 56 nights per year. Based on Ms Lancaster’s evidence, the Tribunal was satisfied that a determination the children were in her care for half of this total number of nights is a generous estimate of the extent of her care: 23 nights per year amounts to 6% care.

7. The Tribunal notes that any percentage of care less than 14% to Ms Lancaster will not change the child support assessment. This is because section 55C of the Assessment Act provides that a care percentage of more than 86% means a parent’s cost percentage is 100% and a care percentage of less than 14% means the parent’s cost percentage in nil.

8. The Tribunal finds that Ms Lancaster had, and was likely to have, a pattern of 6% care of [Child 1] and [Child 2] from 14 June 2017. The Tribunal finds that Mr Reygan had, and was likely to have, 94% care of [Child 1] and [Child 2] from 14 June 2017.

When does any change to the parents’ care percentages take effect?

1. The existing care determination was 76% care to Mr Reygan and 24% care to Ms Lancaster. As a result of Mr Reygan’s notification on 14 June 2017, the Secretary became aware that the actual care did not correspond with the existing percentage of care determination.[1] The change in percentages of care is such that there will be a change in the cost percentage of the parents.[2] It follows that a determination under section 50 of the Assessment Act would not be the same as the existing determination and the Registrar must revoke the existing determination.

   [1] Paragraph 54F(1)(a) of the Assessment Act

   [2] Section 55C and paragraph 54F(1)(b) of the Assessment Act

2. Based on the evidence of both parties, the Tribunal considers the change of care day was more than 28 days before the date of notification on 14 June 2017. Revocation of the existing determination should take effect from the day before the date of notification because the Secretary was notified more than 28 days after the change of care day.[3] However, had the objections officer reached the same conclusion as the Tribunal, that decision would have taken effect on the day Mr Reygan lodged his objection on 12 June 2018 unless special circumstances prevented him from lodging his objection within 28 days of the original decision dated 30 August 2017.[4] In exercising the discretion under subsection 43(6) of the Administrative Appeals Tribunal Act 1975 to specify a date from which the Tribunal’s decision should take effect, the policy of section 87AA of the Registration Act will be applied.

   [3] Subsection 54F(3) of the Assessment Act

   [4] Section 87AA of the Registration Act

3. When lodging his objection with the Department, Mr Reygan indicated he believed there were special circumstances because he did not receive the letter and was not advised that his change in care was rejected. The letter dated 30 August 2017 does not explicitly state that Mr Reygan’s request for a new care determination of 100% from 14 June 2017 had been rejected. The Department’s file note dated 17 August 2017 indicates Mr Reygan was informed he was required to provide evidence by 25 August 2017 or otherwise the care change would be rejected. It is reasonable to infer that Mr Reygan was in a position to understand that the letter dated 30 August 2017 constituted a notice of decision to reject his request for a new care determination. The letter is headed “a change in your care arrangements” and advises of a decision not to change the child support assessment. As far as the Tribunal is aware, the letter was sent to Mr Reygan’s correct address.

4. On 24 January 2018, the Department’s file note (page 42) indicates the care percentage decision was discussed with Mr Reygan. He was advised the care change was rejected in August 2017 and that he could object to that decision but any change would only apply from that date. Mr Reygan did not proceed to lodge his objection for another five months.

5. Unfortunately, the Tribunal neglected to obtain a statement from Mr Reygan regarding any circumstances preventing him from lodging his objection within 28 days of the decision made on 30 August 2017. However, he indicated generally in his evidence that the Department informed him on more than one occasion that a change in care would not be backdated. Mr Reygan also indicated he pursued the objection on the prompting of his daughter whereas he had been prepared to let it go.

6. A decision to give effect to the Tribunal’s findings about the care percentages from 14 June 2017 prejudices Ms Lancaster because it creates a long period of arrears prior to receiving notification of Mr Reygan’s objection. Mr Reygan was advised about the need to object within 28 days in the letter dated 30 August 2017 and was again verbally advised he could object to the decision on 24 January 2018. On balance, the evidence does not suggest there were any circumstances preventing Mr Reygan from lodging his objection within 28 days. For that reason, the revocation of the existing care determination will be deemed to have effect from the day before the date of Mr Reygan’s objection and the new care determination will be deemed to take effect from the date the objection was lodged on 12 June 2018.

DECISION

The decision under review is set aside and, in substitution, the Tribunal decides that Mr Reygan has 94% and Ms Lancaster has 6% care of [Child 1] and [Child 2] with effect in the child support assessment from 12 June 2018.