Sumner and Auster (Child support)

[2024] AATA 1889

Sumner and Auster (Child support) [2024] AATA 1889 (24 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026808

APPLICANT:  Mr Sumner

OTHER PARTIES:  Child Support Registrar

Ms Auster

TRIBUNAL:Member F Petrone

DECISION DATE:  24 January 2024

DECISION:

The decision under review is varied so that the care percentage determination in force for each parent on 14 May 2023 is revoked from 13 May 2023 and new care percentage determinations are made in respect of the care of [Child 1] of 50% for Mr Sumner and 50% for Ms Auster with effect from 14 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – care percentage determination in force for each parent is revoked – new care percentage determinations are made – decision under review is varied

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. Mr Sumner and Ms Auster are the parents of [Child 2] and [Child 1] in respect of whom a child support assessment is in place.  This application for review relates to the percentage of care for [Child 1] only.

2. On 26 September 2023 the Child Support Registrar provided Mr Sumner, Ms Auster and the Tribunal with a bundle of documents numbering 280 pages in total (the Tribunal documents).  Those documents indicate the following:

3. From 17 February 2023 Mr Sumner’s child support liability was calculated on the basis that he had 0% care of [Child 1] and Ms Auster had 100% care.  On 1 May 2023, Mr Sumner notified Services Australia – Child Support (Child Support) that there had been a change to the care arrangements from 3 April 2023 (pages 19–20 of the Tribunal documents).

4. On 18 May 2023, Child Support revoked the existing care percentage determination and replaced it with another, reflecting care percentage determinations of 14% to Mr Sumner and 86% to Ms Auster from 14 April 2023 on the basis that the parents agreed that this was the date from which care arrangements for [Child 1] changed to 2 nights per fortnight with Mr Sumner (pages 37–41 of the Tribunal documents).

5. On 24 May 2023, Mr Sumner provided a care details spreadsheet for both children and certain other information and on 26 May 2023 he corrected an error in the spreadsheet and notified that care arrangements for [Child 1] returned to a 50/50 week on/week off arrangement from 12 May 2023 (pages 54–56 and 78 of the Tribunal documents). 

6. On 26 May 2023, Child Support declined to revoke the existing care percentage determination for [Child 1] of 14% to Mr Sumner and 86% to Ms Auster on the basis that statements from the parents were contradictory, evidence was inconclusive and there was insufficient information to be satisfied that a care change had occurred (pages 88–96 of the Tribunal documents).

7. On 4 June 2023, Mr Sumner objected to Child Support’s decisions.  Child Support appears to have treated the objection as an objection to the decision of 18 May 2023 only however, as the objections officer reviewed all information up to the date of the objection decision, I consider the decision of the objections officer to be an internal review of the decision of 18 May 2023 and the decision of 26 May 2023.

8. On 15 September 2023 an objections officer disallowed the objection to the decision to reflect the care of [Child 1] as 86% to Ms Auster and 14% to Mr Sumner from 14 April 2023 and determined through the objections process that the care of [Child 1] resumed to 50/50 care on 21 May 2023 based on Mr Sumner’s calendar and Ms Auster’s confirmation.  The existing care percentage determination was therefore revoked on 20 May 2023 and a new care percentage determination of 50/50 to Mr Sumner and Ms Auster was made from 21 May 2023 effective in Mr Sumner’s assessment from 3 July 2023, the date of notification (according to the objections officer).

9. Mr Sumner applied to the Tribunal for review on 21 September 2023.

10. Mr Sumner and Ms Auster attended a hearing by Microsoft Teams audio on 24 January 2024 and spoke with me regarding the application.  In this decision, I refer only to those matters relevant to the decisions under review.

ISSUES

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 Part 5 of the Child Support (Assessment) Act 1989 (the Act).  Upon revocation, a new percentage of care determination must be made.

2. The issues which arise in this case are:

   ·      Should the care determination that existed prior to each of the decisions under review be revoked?  If so,

   ·      What is the percentage of care for each parent?

   ·      What is the date of effect of any decision?

CONSIDERATION

Should the existing care percentage determination be revoked?

1. Section 54F of the Act provides the Child Support Registrar must revoke a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

2. In order to revoke the existing care percentage determination, I must be satisfied that care is not taking place in accordance with the existing care determination and I must be able to identify another pattern of care and corresponding percentage to assess if the cost percentage would change.

3. The evidence in the Tribunal documents and statements made during the hearing indicate that the parents agree that [Child 1] was spending 2 nights per fortnight in Mr Sumner’s care between 14 April 2023 and 13 May 2023. 

4. It follows that Child Support’s decision of 18 May 2023 to revoke the existing care percentage determination and replace it with another, reflecting care percentage determinations of 14% to Mr Sumner and 86% to Ms Auster from 14 April 2023, is correct.

5. Mr Sumner stated at hearing that from 14 May 2023 the pattern of care for [Child 1] reverted to a week about arrangement commencing with [Child 1] spending the first week with Ms Auster from 14 May 2023 and the second week with Mr Sumner from 21 May 2023.  Ms Auster confirmed that this was the case and stated that for the purposes of the percentage of care determination, she was willing to accept that the pattern of care for [Child 1] changed from 14 May 2023.

6. Based on the evidence contained in the Tribunal documents and provided by Mr Sumner and Ms Auster at hearing, I am satisfied that from 14 May 2023 care was not taking place in accordance with the existing care determination of 86% to Ms Auster and 14% to Mr Sumner as the pattern of care changed from that date.

7. Although there was some dispute as to the extent of time [Child 1] spends at one or the other parent’s house as opposed to time spent at his girlfriend’s house, the parents agreed that the pattern of care from 14 May 2023 onward was in accordance with a week about arrangement. 

8. A new care determination of 50/50 to Mr Sumner and Ms Auster would result in a change to Mr Sumner’s cost percentage for [Child 1].  Under section 54F of the Act I must therefore revoke the existing percentage of care determination.

What is the percentage of care for each parent?

1. Under section 50 of the Act, for the reasons given above, I consider the percentage of care for each parent to be 50% for Mr Sumner and 50% for Ms Auster by reference to a 12‑month care period commencing on 14 May 2023. 

What is the date of effect of any decision?

1. Mr Sumner notified Child Support on 24 May 2023 that he considered [Child 1] to have “resumed normal care arrangements 50/50 week on, week off commencing Friday 12 May” (page 60 of the Tribunal documents).  He provided a care spreadsheet in support.

2. On 26 May 2023, Mr Sumner spoke with a Child Support officer by telephone and clarified that in the spreadsheet, he had made the second column [Child 1] and the third column [Child 2] but that these should be the other way around.  He confirmed that he considered [Child 1] to have returned to a 50/50 arrangement commencing 12 May 2023.  At hearing, Mr Sumner confirmed he was willing to accept that the pattern of care changed on 14 May 2023.

3. Subsection 54F(3) of the Act outlines when a revocation of the existing percentage of care determination takes effect depending on when the Registrar is notified of a change in care.

4. Because Mr Sumner notified Child Support of a change in care within 28 days after the change of care day, under paragraph (a) of subsection 54F(3) of the Act the revocation of the determination takes effect for both parents on the day before the change of care day, namely, 13 May 2023 and the new percentage of care determination takes effect from the day after the revocation of the previous care determination in respect of each parent.

5. Further, as to date of effect, I note that Mr Sumner lodged his objection within 28 days of being notified of the care percentage determination being applied to his child support liability and lodged his application to the Tribunal within 28 days of being notified of his unsuccessful objection.

DECISION

The decision under review is varied so that the care percentage determination in force for each parent on 14 May 2023 is revoked from 13 May 2023 and new care percentage determinations are made in respect of the care of [Child 1] of 50% for Mr Sumner and 50% for Ms Auster with effect from 14 May 2023.