Rooney and Durant (Child support)

[2024] AATA 799

Rooney and Durant (Child support) [2024] AATA 799 (15 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027324

APPLICANT:  Mr Rooney

OTHER PARTIES:  Child Support Registrar

Ms Durant

TRIBUNAL:Member J Thomson

DECISION DATE:  15 March 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that new care percentage determinations of 93% to Mr Rooney and 7% to Ms Durant are to apply for [Child 2] from 1 January 2023, notified on 31 August 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the 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 Rooney and Ms Durant are the parents of [Child 1], born 2005 and [Child 2], born 2007 (the children), recorded as being in the 49% care of Mr Rooney and the 51% care of Ms Durant. This decision applies to the child, [Child 2], only.

2. Mr Rooney seeks review of an objection decision made by Services Australia (Child Support) on 28 December 2023. This decision disallowed his objection to an earlier Child Support decision dated 4 September 2023, deciding to continue to reflect the care for [Child 2] as 73% to Mr Rooney and 27% to Ms Durant from 1 May 2023, notified on 31 August 2023.

3. The Tribunal heard the matter on 13 March 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 176), admitted into evidence and marked Exhibit 1 and documentation provided by Ms Durant (folios B1 to B10), admitted into evidence and marked Exhibit B.

4. Mr Rooney had copies of these documents with him at the hearing. Ms Durant had copies of her Exhibit B documents with her at the hearing, but not her Child Support documents, Exhibit 1, although she confirmed at the hearing that she had received them and noted their contents. However, she was content for the hearing to proceed, notwithstanding she did not have her Exhibit 1 documents with her.

ISSUES

1. The issues which arise in this case are:

• Has there been a change in the pattern of care for the child, [Child 2], which requires the existing percentages of care to be revoked and a new care percentage determination made? And if so;

  • From what date should the new percentage of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the evidence contained in the documentation provided to the Tribunal by Child Support and the parents in Exhibits 1 and B.

2. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of approximately 12 months to be appropriate.

4. A child support assessment has been in place for the children since 22 February 2010. At the hearing, both parents acknowledged and agreed [Child 1] ceased to be an eligible child in the assessment when he turned 18 on 6 August 2023.

5. Mr Rooney notified Child Support of a change in care for the child, [Child 2], on 31 August 2023.

6. In evidence at the hearing, he said he was invited by the Child Support officer, to whom he made the notification, to nominate the date of the change in care event for [Child 2]. He said he was confused at the time as to the precise date to which the Child Support officer was referring, and nominated 1 January 2022, which he said in his evidence at hearing was the date from which the parents decided they would each have a form of shared care of their two children, [Child 1], then 17-years-old and living predominantly with Ms Durant, and [Child 2], then 15-years-old and living predominantly with Mr Rooney.

7. The care percentages being assessed by Child Support prior to Mr Rooney’s change in care notification on 31 August 2023 were 49% to Mr Rooney and 51% to Ms Durant, effectively 50% shared care to each parent.

8. Mr Rooney gave evidence that the event which precipitated his change in care notification on 31 August 2023 was the child, [Child 1] turning 18-years-old on 6 August 2023 and ceasing to be an eligible child in the assessment from that date, and the need to have an appropriate determination of the parents’ care levels for the remaining child in the assessment, [Child 2] from 6 August 2023.

9. Both parents provided documentary evidence of the care each was having over the period 1 January 2023 to 31 December 2023, in Mr Rooney’s case, in the form of a 2023 calendar on which he circled his nights of care for [Child 2] (see page 18 of Exhibit 1), and in Ms Durant’s case, her summary of her nights of care over the same period (see page B3 of Exhibit B).

10. The Tribunal therefore finds that the change in care event occurred on 1 January 2023 and the 12-month period over which the Tribunal will consider the parents’ care levels will be from 1 January 2023 to 31 December 2023.

11. Both parents acknowledged and agreed that the dates reflected in Ms Durant’s care summary at page B3 of Exhibit B prevailed over the corresponding care dates circled in Mr Rooney’s care calendar at page 18 of Exhibit 1, and that Ms Durant had a total of 27 nights of care over the 365 nights of the 2023 calendar year, equating to a care percentage of 7.39% to Ms Durant, rounded down pursuant to section 54D of the Act as the parent with reduced care to 7%, and 93% to Mr Rooney as the person with increased care.

12. Both parents acknowledged and agreed in their evidence at the hearing that the pattern of care reflected in Mr Rooney’s care calendar at page 18 of Exhibit 1, adjusted to accommodate Ms Durant’s care summary at page B3 of Exhibit 3, was reflected in the care percentages referred to in the preceding paragraph, and was also reflective of the pattern, or likely pattern, of care the parents were to have from 1 January 2023 for the remainder of the care period.

13. Both parents acknowledged and agreed at the hearing that they accepted care percentage determinations of 93% to Mr Rooney and 7% to Ms Durant from 1 January 2023, based on Mr Rooney’s adjusted care calendar and Ms Durant’s care summary referred to above.

14. The Tribunal therefore determines, pursuant to section 50 of the Act, care percentages for [Child 2] of 93% to Mr Rooney and 7% to Ms Durant, from 1 January 2023, notified by Mr Rooney on 31 August 2023, and finds accordingly.

15. The Tribunal is satisfied that the provisions of section 54F of the Act apply in this case. As Mr Rooney notified the Registrar of the change in care more than 28 days after the change in care occurred, pursuant to that section, the Tribunal revokes the earlier care percentages for [Child 2] of 49% to Mr Rooney and 51% to Ms Durant with effect in the assessment in Mr Rooney’s case as the parent with increased care from 30 August, that being the day before his date of notification of the change in care on 31 August 2023 (see subparagraph 54F(3)(b)(i), and in Ms Durant’s case, as the parent with the reduced care, with effect in the assessment for her from 31 December 2022, the day before the change in care date on 1 January 2023 (see subparagraph 54F(3)(b)(ii). The new care percentages of 93% to Mr Rooney applies from 31 August 2023 and 7% to Ms Durant applies from 1 January 2023.

16. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside the objection decision and, in substitution, decides that new care percentage determinations of 93% to Mr Rooney and 7% to Ms Durant are to apply for [Child 2] from 1 January 2023, notified on 31 August 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that new care percentage determinations of 93% to Mr Rooney and 7% to Ms Durant are to apply for [Child 2] from 1 January 2023, notified on 31 August 2023.