Roscoe and Child Support Registrar (Child support)

[2019] AATA 4301

Roscoe and Child Support Registrar (Child support) [2019] AATA 4301 (12 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016588

APPLICANT:  Mr Roscoe

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Baulch

DECISION DATE:  12 August 2019

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 a care arrangement applied - 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. This application for review is about the care percentages used to determine the amount of child support paid to Ms Roscoe by Mr Roscoe.

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent of the children 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 Roscoe and Ms Roscoe are the parents of two children.  Mr Roscoe had been assessed as liable by the Department of Human Services – Child Support (the Department) to pay child support to Ms Roscoe on the basis that Ms Roscoe had 67% care of the children and Mr Roscoe had 33% care of the children.

4. On 2 January 2019 Ms Roscoe advised the Department that there had been a change in the care arrangements for the children since 6 September 2018, such that she had 100% care of the children and Mr Roscoe had 0% care.  After considering the matter, a Departmental employee decided that there would be a change to the care percentage determinations applying in the child support assessment, such that Mr Roscoe was recorded as having 0% care of the children from 6 September 2018 and Ms Roscoe as having 100% care from 2 January 2019 (the decision under review).

5. Mr Roscoe objected to that decision and, on 17 April 2019, that objection was disallowed.  It is from that decision that Mr Roscoe has applied to this tribunal seeking an independent review.

6. A hearing into the application for review was held by the tribunal on 12 August 2019. Mr Roscoe participated in the hearing by telephone and gave evidence during the hearing. A representative of the Child Support Registrar did not participate in the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to subsection 95(3) of the Child Support (Registration and Collection) Act 1988, which were labelled folios 1 to 341. 

ISSUES

1. The statutory provisions relevant to this review are found within the child support law, in particular the Act.

2. The issues to be determined in this application for review are:

   ·       Do the care arrangements for the children accord with the care percentages used in the child support assessment; and if not

   ·       Should new care percentages be applied to the child support assessment, and if so from when should those new care percentages apply?

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. Under the assessment of child support previously applying in this case since 28 February 2017, Mr Roscoe was recorded as having 33% care of the children and Ms Roscoe was recorded as having 67% care of the children. 

3. On 2 January 2019 Ms Roscoe informed the Department that she had 100% care of the children since 6 September 2018 and Mr Roscoe had 0% care of the children.

4. Usually, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has of their child.  Pursuant to section 54A of the Act the actual care a parent has may be worked out on the number of nights that a child is likely to be in that person’s care in a care period. 

5. However, in certain circumstances, if a care arrangement applies and that care arrangement is not being complied with, care percentage determinations can potentially be made which don’t accord with the actual care that is occurring. Section 51 of the Act says that a care determination may be made (known as an “interim determination”) that reflects the care arrangement, if the care arrangement is not being complied with and the parent with reduced care takes “reasonable action” to have that care arrangement complied with.

6. The term care arrangement is defined in section 5 of the Act as having the same meaning as in the A New Tax System (Family Assistance) Act 1999.   Section 3 of that Act defines the term care arrangement to include a Family Court order.

7. In this case, pursuant to an order of the Family Court dated 13 June 2017, Mr Roscoe has care of the children for 33% of the time.  I was satisfied that the Family Court order dated 13 June 2017 constitutes a care arrangement.

8. There is no dispute that since 6 September 2018, Mr Roscoe has not had any care of the children.

9. Mr Roscoe submitted at hearing that a court order relating to the care of the children applied in his case and an “interim determination” ought to be made. 

10. However, section 51 of the Act is only enlivened if a “care arrangement applies in relation to the child” (paragraph 51(1)(b) of the Act). The Department’s decision is based, as I understand it, on the finding that no care arrangement applied as at 6 September 2018.

11. On 6 September 2018 an interim intervention order was made by a Victorian Magistrates’ Court which included, at clause 10, the following:

    Further order that at the time of making this interim intervention order, the court has also made an order under section 68r of the family law act 1975.  the court has ordered that the parenting order made on 13-06-17 is suspended.  this order will end when the interim intervention  order ends, or when the court makes an alternative order.

    Mr Roscoe submitted that the orders made on 6 September 2018 were issued in ex-parte proceedings, were based upon unfounded allegations made by Ms Roscoe against him and were only interim orders which should not affect the application of an order issued by a higher court.  He also submitted that the orders themselves constitute family violence, by means of family alienation, perpetrated against him.

12. Section 68R of the Family Law Act 1975, specifically states:

    Power of court making a family violence order to revive, vary, discharge or suspend an existing order, injunction or arrangement under this Act

    Power

    (1)  In proceedings to make or vary a family violence order, a court of a State or Territory that has jurisdiction in relation to this Part may revive, vary, discharge or suspend:

    (a)    a parenting order, to the extent to which it provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child; or

    (b)    ….

    (2)  The court may do so:

    (a)    on its own initiative; or

    (b)    on application by any person.

    Limits on power

    (3)  The court must not do so unless:

    (a)    it also makes or varies a family violence order in the proceedings (whether or not by interim order); and

    (b)    if the court proposes to revive, vary, discharge or suspend an order or injunction mentioned in paragraph (1)(a), (b) or (c)--the court has before it material that was not before the court that made that order or injunction.

    (4)  The court must not exercise its power under subsection (1) to discharge an order, injunction or arrangement in proceedings to make an interim family violence order or an interim variation of a family violence order.

    Relevant considerations

    (5)  In exercising its power under subsection (1), the court must:

    (a)    have regard to the purposes of this Division (stated in section 68N); and

    (b)    have regard to whether spending time with both parents is in the best interests of the child concerned; and

(c)    if varying, discharging or suspending an order or injunction mentioned in paragraph (1)(a), (b) or (c) that, when made or granted, was inconsistent with an existing family violence order--be satisfied that it is appropriate to do so because a person has been exposed, or is likely to be exposed, to family violence as a result of the operation of that order or injunction.

Note:          Sections 60CB to 60CG deal with how a court determines a child's best interests.

Registration of revival, variation, discharge or suspension of orders and other arrangements

(6)The regulations may require a copy of the court's decision to revive, vary, discharge or suspend an order, injunction or arrangement to be registered in accordance with the regulations. Failure to comply with the requirement does not affect the validity of the court's decision.

1. While the Magistrates’ Court’s power to discharge a Family Court order is limited in interim proceedings, there is nothing to prevent the Magistrates’ Court making an interim intervention order suspending the Family Court orders provided the requirements of subsection 68R(3) of the Family Law Act 1975 are satisfied, and the satisfaction of which is ultimately a matter for the Magistrates’ Court issuing the orders.

2. I therefore found that the Family Court order dated 13 June 2017 was suspended from 6 September 2018 and, as a consequence, no care arrangement applied to the children from 6 September 2018. This means that the power to make an interim care determination prescribed in section 51 of the Act is not enlivened.

3. I acknowledge Mr Roscoe’s submissions that the interim intervention order made on 6 September 2018 was made ex-parte, without him being heard, and that the basis for making the order is contested.  Unfortunately, the child support law gives me no discretion to take those factors into account.

4. As section 51 of the Act does not apply, section 54F of the Act provides that an existing care determination must be revoked if there is a change in care that will result in a change to a parent’s cost percentage used in the assessment of child support.  Section 55C of the Act contains a table that is used to work out a person’s cost percentage.  In this instance, I was satisfied that the change in care from 6 September 2018 would affect the cost percentages applying in the statutory formula, and determined that the existing care percentage determinations (33% care of both children to Mr Roscoe and 67% care to Ms Roscoe) must be revoked.

5. Subsection 54F(2) 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.  However, when a change in care occurs after 1 July 2018[1], if notification occurs more than 28 days after the change in care arrangements, the revocation of the care determinations takes effect for each parent as follows:

   ·       If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·       If the parent’s care of the child has reduced – the day before the change of care occurred.

   [1] See the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018

6. The care occurring for the children changed on 6 September 2018, and Ms Roscoe advised the Department of that change on 2 January 2019, which is more than 28 days later.  As Ms Roscoe had increased care, her care percentage determination is revoked from the day before she advised the Department of the change in care; that is from 1 January 2019.  As Mr Roscoe had reduced care, his care percentages are revoked from the day before the day the change in care occurred; that is from 5 September 2019.

7. As I have revoked the existing care percentage determinations that apply in respect of the children, I must make new care percentage determinations that reflect the current pattern of care.  Accordingly:

   ·       Pursuant to section 49 of the Act, I determined that Mr Roscoe’s care percentage for  the children is 0%; and

   ·       Pursuant to section 50 of the Act, I determined that Ms Roscoe’s care percentage for the children is 100%.

   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 6 September 2018 for Mr Roscoe and from 2 January 2019 for Ms Roscoe.

8. As I have arrived at an identical decision to than made by the Department, I therefore decided to affirm the decision under review.

DECISION

The decision under review is affirmed.