Rowley and Rowley (Child support)

[2018] AATA 4423

Rowley and Rowley (Child support) [2018] AATA 4423 (28 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014415

APPLICANT:  Mr Rowley

OTHER PARTIES:  Child Support Registrar

Ms Rowley

TRIBUNAL:Member M Baulch

DECISION DATE:  28 August 2018

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the care percentages that are to be applied to the child support assessment from 8 February 2018 are ones that record Mr Rowley as having 72% care of [Child 1] and [Child 2] and Ms Rowley as having 28% care of [Child 1] and [Child 2].

CATCHWORDS
CHILD SUPPORT – Percentage of care – Pattern of care – Determination revoked and new determination 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 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a formula set out in the Act which contains variables such as the parents’ adjusted taxable incomes, the number and ages of children and the percentages of care. 

2. Mr Rowley and Ms Rowley are the parents of [Child 1] and [Child 2].  The Department of Human Services – Child Support (the Department) has made administrative assessments of child support under which Mr Rowley has been assessed liable to pay child support to Ms Rowley.  The Department has been collecting that liability on Ms Rowley’s behalf since 9 February 2018.

3. Since at least 20 October 2008 Mr Rowley’s liability to pay child support has been determined on the basis that Ms Rowley had 100% care of [Child 1] and [Child 2].  On 9 February 2018 Ms Rowley advised the Department that there had been a change in care, such that she had care of the children five nights per week.

4. On 19 February 2018 a departmental employee considered the advice and decided that there should be a change to the child care assessment from 8 February 2018 such that Mr Rowley had 28% care of the children and Ms Rowley had 72% care.

5. Mr Rowley objected to that decision, and on 2 May 2018, that objection was allowed.  The objections officer decided that there should be no change to the percentages of care applying to the child support assessment from 8 February 2018 (the decision under review).  Mr Rowley has now applied to this tribunal for an independent review of the Department’s decision.

6. A hearing into the application for review was held by the tribunal on 28 August 2018.  Mr Rowley and Ms Rowley both discussed the application for review with the tribunal by conference telephone and both gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

7. The tribunal had before it relevant documents provided by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which were labelled folios 1 to 305, copies of which Mr Rowley and Ms Rowley each confirmed they had received prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what should be the care percentages applying to the child support assessments in respect of [Child 1] and [Child 2]?

CONSIDERATION

1. Part 5 of the Act provides that the Registrar must make an administrative assessment of child support in accordance with the statutory formula set out in that Part.  The statutory formula requires that there be a determination as to the percentage of care given by each parent in respect of each child to whom the child support assessment relates.

2. Sections 49 and 50 of the Act require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). 

3. Section 54F of the Act provides that an existing care percentage determination must be revoked if the Department is notified, or otherwise becomes aware, that the care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

4. Unless an interim care determination applies under section 51 or 52 of the Act, the Registrar will determine the pattern of care based upon the extent of the actual care that each parent has, or is likely to have, of their child during a care period. 

5. As noted above, a pattern of care is generally determined over a “care period”, which is a period that the Registrar, or this tribunal, considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  In this case, the alleged change in care occurred on 8 February 2018 and a completely new care percentage determination has been applied to the child support assessment from 18 February 2018.  It seems, therefore, appropriate in the circumstances of this case that the “care period” to be considered is 8 February 2018 to 17 February 2018, inclusive.

6. In this case, there is no written agreement, court order or parenting plan in place that pertains to the care arrangements for [Child 1] and [Child 2].  Therefore, care is determined by having regard to the actual care each parent is likely to have.  Pursuant to section 54A of the Act the actual care a parent has of a child 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.  This does not prevent other measures being used to determine a parent’s actual care of their child.

What should be the care percentages applying to the child support assessments in respect of [Child 1] and [Child 2]?

1. I noted that since at least 20 October 2008 the Department has determined the child support liability on the basis that Ms Rowley had 100% care of [Child 1] and [Child 2] and Mr Rowley had 0% care.  On 9 February 2018 Ms Rowley advised the Department she would have care of [Child 1] and [Child 2] for five nights each week from 8 February 2018. 

2. In this matter, it became apparent at the hearing that there is no factual dispute between the parents about the care arrangements that applied from 8 February 2018.  Both parents agreed that from 8 February 2018 Ms Rowley had care of the children for two nights each week and Mr Rowley had care of the children for five nights each week; not the other way around as Ms Rowley had advised the Department.  Applying the rounding rules in section 54D of the Act , I therefore found that for the care period 8 February 2018 to 17 February 2018 Ms Rowley had 28% care of [Child 1] and [Child 2] and Mr Rowley had 72% care. 

3. I was satisfied that the change in care would result in a change to the cost percentage that applies under section 55C of the Act.   Therefore, the existing care determinations (100% to Ms Rowley and 0% to Mr Rowley) must be revoked.

4. Subsection 54F(2) of the Act explains when a revocation of a care percentage determination takes effect.  If the Department was informed 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, if notification occurs more than 28 days after the change in care arrangements, the revocation takes effect on the day before the day the Department was notified of the change in care.

5. In this instance, Ms Rowley advised the Department of the change in care on 9 February 2018, which was within 28 days of the date the change occurred.  Therefore, the existing care determinations must be revoked from the date before the change occurred; that is 7 February 2018.

6. As I have revoked the existing care determinations for [Child 1] and [Child 2], new care determinations must be made reflecting the current pattern of care.  Accordingly:

   ·       Pursuant to section 50 of the Act, I determined that Mr Rowley’s percentage of care for [Child 1] and [Child 2] was 72%. 

   ·       Pursuant to section 50 of the Act, I determined that Ms Rowley’s percentage of care for [Child 1] and [Child 2] was 28%. 

   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 8 February 2018.

7. At hearing, Mr Rowley expressed dissatisfaction with the care percentages that have been applied to the child support assessment from 18 February 2018 and that his liability is being enforced prior to 18 February 2018, as he thought he and Ms Rowley were in a domestic relationship until that date.  However, these are matters that are beyond the scope of this review and Mr Rowley should take those matters up with the Department.

8. Having arrived at care percentage determinations that are different from those determined by the objections officer, I therefore set aside the decision under review and substituted my own decision as set out below.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the care percentages that are to be applied to the child support assessment from 8 February 2018 are ones that record Mr Rowley as having 72% care of [Child 1] and [Child 2] and Ms Rowley as having 28% care of [Child 1] and [Child 2].