Rossiter and Rossiter (Child support)

[2020] AATA 3647

Rossiter and Rossiter (Child support) [2020] AATA 3647 (13 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC019223

APPLICANT:  Mr Rossiter

OTHER PARTIES:  Child Support Registrar

Ms Rossiter

TRIBUNAL:Member M Kennedy

DECISION DATE:  13 July 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to:

1. Accept the child support assessment with an initial care percentage determination of 76% to Ms Rossiter and 34% to Mr Rossiter from 1 October 2019.

2. Revoke that existing care percentage determination with effect from 23 January 2020 and make a new care percentage determination reflection 21% care to Mr Rossiter and 79% care to Ms Rossiter with effect from 24 January 2020.

3. Revoke that existing care percentage determination with effect from 20 March 2020 and make a new care percentage determination reflection 50% care to Mr Rossiter and 50% care to Ms Rossiter with effect from 21 March 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – pattern of care from beginning of child support case – 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

1. Mr Rossiter and Ms Rossiter are the parents of [Child 1] and [Child 2], in respect of whom a child support assessment commenced on 24 January 2020.  At that time, a care percentage determination was already in force in respect of family assistance with 100% care to Ms Rossiter.  For reasons not apparent to the objections officer, or to me, the existing care percentage determination was not identified when the child support case commenced.

2. The application for the child support assessment identified a care percentage of 21% to Mr Rossiter and 79% to Ms Rossiter (as at 24 January 2020).  From 21 March 2020, care arrangements changed to a pattern reflected in a care percentage determination of 50% for each parent.  Those matters are not in dispute.

3. As a result of the pre-existing care percentage determination being notified to the Registrar by the ‘Family Assistance Office’ on 21 April 2020, those non-disputed care arrangements appear to have been over-ridden, and the situation became confusing and complex.

4. On objection, the objections officer allowed the objection so as to clarify that the care percentage determination was 100% to Ms Rossiter from 1 October 2019, 79% / 21% from 24 January 2020 to 20 March 2020 and then 50% / 50% from 21 March 2020.

5. It is recognised by all parties that the decision reflecting 100% care to Ms Rossiter from 1 October 2019 has no effect on the child support liability, because there was no child support liability prior to 24 January 2020.  Nonetheless, Mr Rossiter is aggrieved that the Department’s records indicate that he had 0% care of his children when this was not factually correct.

6. During the hearing, Mr Rossiter was unable to be more specific as to the pattern of care he had for the children between 1 October 2019 and 24 January 2020.  Although there was generally a pattern in place, the pattern was significantly disrupted. 

7. Ms Rossiter also agreed that it was not factually correct to say that Mr Rossiter had no care of the children between 1 October 2019 and 24 January 2020.  Ms Rossiter was able to refer to her diary during the hearing and identified 87 nights of care for each child in the period consisting of 114 nights.  Mr Rossiter agreed with that information.  I have calculated that this equates to 34% care of the children during that period.

8. In this way, the factual circumstances are not in dispute between the parties, and I proceed accordingly.

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

2. For child support purposes, an initial care percentage determination is required.  In this matter, that initial determination ought to have been put in place by section 54K of the Act. Section 54K essentially provides that if the Child Support Registrar is to make a care percentage determination at a time when such a determination is already in effect for family assistance purposes, then that determination has effect as if it had been made under the child support legislation.  As can be seen from the background above however, that was not in fact done administratively until many months of the assessment had passed, and its subsequent interposition has created confusion and conflict.

3. In substance therefore, the review before the Tribunal engages with the care percentage determination in place for family assistance purposes before the child support case commenced, rather than any care percentage determination decision that affects the child support assessment.  Nonetheless,  I am satisfied that the definition of ‘care percentage decision at section 4 of the Child Support (Registration and Collection ) Act 1989 is broad enough to capture a determination having effect under section 54K of the Act, and as that matter was the subject of an objection decision it is open for me to review that pre-existing care percentage determination.

4. For the reasons outlined above, it is accepted by the parties that a care percentage determination of 34% for Mr Rossiter reflects the pattern of care that was actually taking place from 1 October 2019. 

5. I will therefore set aside the objection decision, and allow the objection decision so as to accept the child support assessment with care reflected at 76% for Ms Rossiter and 34% for Mr Rossiter from 1 October 2019. During the hearing, the relationship between care percentage determinations for child support and family assistance purposes was discussed, as was the effect of section 25 of the A New Tax System (Family Assistance) Act 1999 which essentially prevents a proportion of family assistance being paid to a parent who has less than 35% care of a child.

6. It is not in dispute that this existing care percentage determination is then revoked and replaced with a new care percentage determination of 79% to Ms Rossiter and 21% to Mr Rossiter from 24 January 2020.  This change was notified to the Registrar within 28 days, so should be applied to the child support assessment from 24 January 2020.

7. It is also not in dispute that the care percentage determination was then further revoked and replaced with care percentage determinations of 50% for each parent from 21 March 2020.

8. I note that these latter two decisions were made in accordance with section 54F and/or 54H of the Act., but as they are not in dispute it is unnecessary to elaborate.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to:

1. Accept the child support assessment with an initial care percentage determination of 76% to Ms Rossiter and 34% to Mr Rossiter from 1 October 2019.

2. Revoke that existing care percentage determination with effect from 23 January 2020 and make a new care percentage determination reflection 21% care to Mr Rossiter and 79% care to Ms Rossiter with effect from 24 January 2020.

3. Revoke that existing care percentage determination with effect from 20 March 2019 and make a new care percentage determination reflection 50% care to Mr Rossiter and 50% care to Ms Rossiter with effect from 21 March 2020.