Scobie and Brickie (Child support)

[2023] AATA 2952

Scobie and Brickie (Child support) [2023] AATA 2952 (8 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025798

APPLICANT:  Miss  Scobie

OTHER PARTIES:  Child Support Registrar

MrBrickie

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Scobie provides 100 per cent care of [Child 1] and Mr Brickie provides 0 per cent care from 12 September 2022 but with effect from 12 October 2022 for Miss Scobie and from 12 September 2022 for Mr Brickie.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely 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. This review is about a change to the percentage of care determinations for Miss  Scobie and Mr  Brickie in respect of their child [Child 1] (born June 2006).  Miss Scobie and Mr Brickie are the parents of two children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place since 19 April 2014.

2. From 14 January 2014 the child support assessment reflected Miss Scobie as having 28 per cent care and Mr Brickie as having 72 per cent care of [Child 1].

3. On 12 October 2022 Miss Scobie notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she was providing 100 per cent care of [Child 1] and Mr Brickie was providing 0 per cent care from 12 September 2022.

4. On 31 October 2022 Child Support made the decision to reflect that Miss Scobie provides 100 per cent care of [Child 1] and Mr Brickie provides 0 per cent care from 12 September 2022.

5. On 27 November 2022 Mr Brickie objected to this decision and on 10 March 2023 Child Support allowed the objection in part and made the decision to reflect that Miss Scobie provides 0 per cent care and Mr Brickie provides 0 per cent care of [Child 1] from 12 September 2022 (the objection decision).

6. On 17 March 2023 Miss Scobie applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 August 2023.  Miss Scobie and Mr Brickie gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (184 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Miss Scobie told the Tribunal that, following a dispute with his father, [Child 1] moved in with her full-time from 12 September 2022.

2. Mr Brickie told the Tribunal he no longer disputed that [Child 1] was living with Miss Scobie.  Mr Brickie said he agreed that [Child 1] had been in the 100 per cent care of Miss Scobie since 12 September 2022 and had informed Child Support accordingly.

3. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

4. It is not in dispute and the Tribunal finds that care of [Child 1] changed on 12 September 2022 with Miss Scobie providing 100 per cent care of [Child 1] from this date.

5. The existing percentages of care reflected in the assessment for [Child 1] were 28 per cent care to Miss Scobie and 72 per cent care to Mr Brickie. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

6. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Miss Scobie and Mr Brickie under sections 49 and 50 of the Act.

2. For the reasons outlined above, the Tribunal finds that Miss Scobie provides 100 per cent care and Mr Brickie provides 0 per cent care of [Child 1] from 12 September 2022.

Date of effect of new care percentage determinations

1. The Tribunal finds that Miss Scobie notified Child Support of the change in care on 12 October 2022.  As this is more than 28 days after the change occurred on 12 September 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 12 October 2022 for Miss Scobie and from 12 September 2022 for Mr Brickie.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Scobie provides 100 per cent care of [Child 1] and Mr Brickie provides 0 per cent care from 12 September 2022 but with effect from 12 October 2022 for Miss Scobie and from 12 September 2022 for Mr Brickie.