Reynell and Talbot (Child support)

[2021] AATA 1759

Reynell and Talbot (Child support) [2021] AATA 1759 (13 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020829

APPLICANT:  Mr Reynell

OTHER PARTIES:  Child Support Registrar

Ms Talbot

TRIBUNAL:Member C Breheny

DECISION DATE:  13 April 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether there would be a change to the cost percentage – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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. Ms Talbot and Mr Reynell are the separated parents of [Child 1], born September 2014. Since 21 September 2019 child support has been payable on the basis that Ms Talbot has 79% and Mr Reynell has 21% care of [Child 1], pursuant to court orders made on 11 October 2019. Mr Reynell is the parent liable to pay child support to Ms Talbot.

2. On 14 April 2020, Ms Talbot contacted Services Australia – Child Support (Child Support) to advise that she had 100% care of [Child 1] since 22 February 2020. Mr Reynell disputed the care change. On 24 October 2020 a decision was made that Ms Talbot had 100% and Mr Reynell had 0% care of [Child 1] from 22 February 2020, with a date of effect of 14 April 2020 (date of notification).

3. On 13 January 2021, Mr Reynell objected to the decision and on 16 February 2021 a Child Support objections officer decided to disallow the objection.

4. On 17 February 2021, Mr Reynell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 13 April 2021. Ms Talbot and Mr Reynell attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the Statement and Documents provided by the Department pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 16 March 2021 (documents numbered 1–191).

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The issue for me to consider in this review is whether a care change occurred on 22 February 2020 such that the existing care determination for [Child 1] should be revoked and a new care determination made and, if so, from what date it should apply.

2. 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 [Child 1]. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. 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%

1. In this case, departmental records indicate that Ms Talbot had 79% care of [Child 1] since 21 September 2019, pursuant to court orders made on 11 October 2019. Records also show that Ms Talbot contacted Child Support on 14 April 2020 to advise that she had 100% care of [Child 1] from 22 February 2020.

2. On 24 October 2020 a further care decision was made that Ms Talbot had 79% and Mr Reynell had 21% care of [Child 1] from 28 May 2020, with a date of effect from 7 July 2020 (folio 71).

3. Ms Talbot stated that Mr Reynell contacted her to say that he was moving to a one bedroom unit and he could not have [Child 1] stay overnight. [Child 1] stayed with Mr Reynell for one night on 6 March 2020. Ms Talbot noted that overnight care in accordance with court orders resumed from 28 May 2020, when Mr Reynell moved to different accommodation.

4. Mr Reynell did not dispute that there had been a temporary change in care arrangements from 22 February 2020 to 27 May 2020. His lease had ended and he moved to his partner’s home for some time until he could find suitable accommodation again (folio 60).

5. Mr Reynell submitted that whilst [Child 1] did not want to stay overnight at his partner’s place, he still had [Child 1] in his care during the day and these “hours of care” should be reflected in the assessment.

6. Mr Reynell provided a “care calendar” (folios 136/137) indicating that he had overnight care on 5/6 March 2020 and 20/21 March 2020. He also noted an additional 61 hours care, mostly in two to three hour blocks between 22 February 2020 and 27 May 2020. Mr Reynell contended that he had 6% care of [Child 1] in the period under review.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but may be a shorter period depending on the circumstances of the case.

2. Ms Talbot notified Child Support on 14 April 2020 that care had changed from 22 February 2020 and on 24 October 2020 Child Support made a further care determination for the period from 28 May 2020 onwards. The appropriate care period in this case is thus the period from 22 February 2020 to 27 May 2020 (96 days).

3. Evidence before me indicates that Mr Reynell had [Child 1] in his care for two nights (or 2%) in the period under review.

4. The court orders (folio 97) indicate that an “overnight stay” is from 6pm on one day to 2pm the following day or 20 hours. As noted above the care calendar provided by Mr Reynell indicates that he had 61 hours care, plus two “overnight stays” and this would amount to 101 hours[1] care in the period under review. The 96 day care period equates to 2,304 hours (96 x 24) and this means that Mr Reynell would have 4% care of [Child 1], based on his hours of care.

   [1] 2 x 20 hours, plus 61 hours = 101 hours

5. As stated above, section 54F of the Act provides that an existing care determination must be revoked if the Registrar becomes aware that the person’s actual care does not correspond with the existing care percentage and the Registrar is satisfied that the cost percentage would change if another care percentage were to be determined.

6. The Department initially recorded that Mr Reynell had 21% care of [Child 1] and Ms Talbot had 79% care of [Child 1] and, in accordance with section 55 of the Act; his cost percentage was 24% and Ms Talbot’s cost percentage was 76%. Based on the evidence before me Mr Reynell has 2% care (based on care nights) or 4% care (based on care hours) in the care period from 22 February 2020 to 27 May 2020. In accordance with section 55 of the Act, both of these care percentages result in a cost percentage of “nil”; thus there is no practical impact on the amount of child support payable regardless of how care is calculated.

7. The objections officer determined that Ms Talbot had 100% care of [Child 1] and Mr Reynell had 0% care in the period under review. This also results in a cost percentage of “nil” for Mr Reynell. In accordance with the statutory child support formula Mr Reynell’s child support liability for [Child 1] will remain the same whether his care percentage is recorded as 2%, 4% or 0%, as his cost percentage is the same.

8. On the basis of all the evidence before me I am satisfied that care for [Child 1] changed on 22 February 2020 and the existing care determination is to be revoked. As there is no practical impact, I have decided not to change the care determination reached by the objections officer and this means Ms Talbot has 100% and Mr Reynell has 0% care of [Child 1] from 22 February 2020.

9. For completeness I will note that Mr Reynell submitted that he incurred substantial costs (travel, storage fees) in the period under review and these ought to be taken into account in the assessment of his child support liability. It appears that Mr Reynell is contending that the administrative assessment is not reflective of the high costs he incurred in spending time with [Child 1]. These matters cannot be considered as part of this review, but it is open to Mr Reynell to contact Child Support and lodge an application to change the administrative assessment on the basis of these costs.

DECISION

The decision under review is affirmed.