Siefer and Child Support Registrar (Child support)

[2020] AATA 2026

Siefer and Child Support Registrar (Child support) [2020] AATA 2026 (7 April 2020)

-DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018453

APPLICANT:  Mr Siefer

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  07 April 2020

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.

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 07 April 2020.

2. The oral reasons have been transcribed and edited.  The following paragraphs are the reasons for the Tribunal’s decision:

Reasons for decision

ORAL DECISION OF MEMBER KENNEDY

1. This is decision and oral reasons in the matter of SC018405, Mr Siefer.  The decision that I will be making will be to set aside the decision under review, and in substitution allow your objection, so that I revoke the existing care percentage determination with effect from 12 December 2019 and to make a new care percentage determination reflecting 50 per cent care for [Child 1] and [Child 2] for both you and Ms [A] to take effect from 13 December 2019.

1. Now prior to the events that have led to this review, the child support liability for [Child 1] and [Child 2] was calculated on the basis that you had 35 per cent care of [Child 1] and [Child 2] and Ms [A] had 65 per cent care.  And that was based on some court orders that were made on 26 May 2017 by Judge [B] that provided some fairly complex orders to cover the children as they grew older and provided for an increasing amount of care with you.  You contacted the Child Support Agency on 13 December 2019 and asked for a new care determination to be made.  On 18 December 2019, the Child Support Agency rejected your application.  You objected to that decision on 19 December 2019.

1. An objection officer decided to disallow your objection on 18 February 2020, and you have applied to this tribunal on 20 February 2020.  The significance of all of those dates is you have promptly notified of the care change and you have exercised your objection and appeal rights within the prescribed time frame.  No issue arises as to when the date of effect of any care change should be.

1. Under the scheme for determining percentages of care for use within 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.  Relevantly to this case, section 54F provides for the revocation of a percentage of care determination if the Registrar of child support is notified or otherwise becomes aware that the care of the children that is actually taking place does not correspond with the person’s existing percentage of care, and if the registrar were to determine another percentage of care, that the cost percentage for the child would change.

1. Now, Mr Siefer, there are a few technical details there.  Essentially, that provision is just to ensure that trivial or meaningless changes are not the subject of reports.  The care determination will only be revoked if it actually changes the outcome of the child support calculation.  You have confirmed in your evidence to me today that with the exception of one practical adjustment to reflect the current situation regarding the Covid-19 pandemic, your care for the children is proceeding in accordance with the court orders from 2017.  The adjustment that you have described to me only applies more recently and does not actually affect the percentage of care.

1. But, more specifically, you have confirmed that the care order at item 6(g)(iii) to the effect that for the term 4 Queensland school holidays in the year that [Child 1] commenced Prep, which was 2019, care from that point became week about throughout the school holidays.  And then I also note that in accordance with order 4(f), when [Child 1] commences Grade 1, the care for the children will continue to be week about through the term time with the ordinary adjustments for special dates, like children’s birthdays, Father’s Day, Mother’s Day, et cetera.

1. The Child Support Agency, when they considered your application, considered that the court orders did not support your case that the care changed on 13 December 2019, which was the commencement of the Term 4 Queensland school holidays.  I do not agree with the Child Support Agency’s approach in that regard, and I accept the way that you have construed the orders.  For there to be a change in the pattern of care, it is usually identified by reference to a change of care day.  And that is the first day when the pattern of care no longer reflects the percentage of care that is in existence.  And I accept that situation came about when the children commenced having week about school holiday care with you in accordance with the order at 6(g)(iii).

1. So, the change of care day, in my view, is 13 December 2018. It is not the day that [Child 1] commences her Prep school year, which I understand was 28 January. So, in that sense, I think the decision of the Child Support Agency does need to be set aside and replaced on that basis. For completeness, I am satisfied that the change that reflects the court orders with effect from 13 December 2018 does affect the cost percentage. So I will revoke the existing care percentage that has been in place since 13 December 2018 with effect from the day before the change, which is 12 December 2019. I will make a new care determination in accordance with section 50 of the Child Support Assessment Act, to reflect week about care through the school holidays and into the new school year, although, I understand that has changed a little bit this year to reflect the problems with the pandemic. The percentage and pattern does not change.

1. The new care determination that I will put in place with effect from 13 December 2019, is 50 per cent care to both you and Ms [A].  As I mentioned at the outset, no issue arises as to the date of effect of either the care change or the favourable outcome from this tribunal review.  So, I will set aside the decision under review and allow your objection accordingly.

END OF ORAL DECISION