Trott and Trott (Child support)

[2019] AATA 562

Trott and Trott (Child support) [2019] AATA 562 (14 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015627

APPLICANT:  Mrs Trott

OTHER PARTIES:  Child Support Registrar

Mr Trott

TRIBUNAL:Member A Schiwy

DECISION DATE:  14 February 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly revoked and new determinations made - decision under review affirmed

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. Mrs Trott and Mr Trott are the separated parents of two children, [Child 1] and[Child 2], aged 12 and 14 years.  This application for review is about the respective percentages of care that each parent has for the children.

2. The parents separated in April 2017 and the child support case was registered in October 2017.  The Department of Human Services (Child Support) made a determination that Mrs Trott had 100% care of the children.

3. On 1 August 2018 Mr Trott contacted Child Support requesting a change in care and stated that since June 2018 he had the children for two nights per fortnight.

4. On 20 September 2018 Child Support decided that there had been a change in care and determined that Mrs Trott had 93% care and Mr Trott had 7% care from 9 June 2018 with date of effect being 1 August 2018. 

5. On 24 September 2018 Mr Trott objected to the care decision and on 22 November 2018 the objection was partly allowed.  The objections officer decided that Mr Trott had 21% care from 9 June 2018 with date of effect being 1 August 2018. 

6. On 17 December 2018 Mrs Trott applied to this tribunal for an independent review of the objections officer’s decision.    

7. A hearing into the application for review was held by the tribunal on 14 February 2019 in Hobart.  Mrs Trott and Mr Trott participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 103.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations, and therefore also of the new determinations, depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, and to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.  In this case the tribunal was satisfied that an appropriate care period would be 12 months as no significant changes were anticipated at the time the application was made.

4. In circumstances where many months have passed before the tribunal conducts the review, as in this case, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support, so that a new primary care percentage decision can be considered, and made if appropriate.  

5. The primary decision-maker’s essential task is to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.  It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support.

6. The parents do not dispute the following:

   ·     They separated in April 2017 and Mrs Trott had 100% care of the children.

   ·     Early on Mr Trott saw the children regularly. 

   ·     There was an incident in October 2017 and an apprehended violence order was issued.  Mr Trott did not see much of the children for some time.

   ·     Mr Trott started seeing the children in a café in the afternoons.

   ·     Through their lawyers, the parents agreed to trial a care arrangement.  They agreed that from the June 2018 long weekend Mr Trott would have the children for one night per fortnight for two fortnights.  If that went well he would start having the children for two nights per fortnight and half of the school holidays.

   ·     Mr Trott had the children in his overnight care on 9 June 2018 and 23 June 2018.

   ·     Mr Trott had the children in his overnight care from 5 July 2018 to 15 July 2018; this was longer than planned as Mrs Trott was going away on holiday.

   ·     It was agreed that Mr Trott would have the children for two nights per fortnight and for half the school holidays.

   ·     Mr Trott had the children in his care on 3 and 4 August 2018 and 18 and 19 August 2018.  (Mr Trott also told Child Support he had the children on 20 and 21 July 2018 but this was not discussed at the hearing).  He missed the next fortnight due to being away on holiday and then had them on 15 September 2018 and 25 September for one night only.

   ·     Mr Trott then had the children for the second week of the school holidays.

   ·     Following an incident on 6 October 2018 Mr Trott has been unable to have the children in his care since 6 October 2018.  He has been trying to have them back in his care and he has taken legal action.  He and Mrs Trott attended mediation (separately) and the matter is going to be heard in court on 26 February 2019 after a psychological assessment has been made of the children.

7. Mr Trott told Child Support that the reason he went back to one night per fortnight in September 2018 was because when Mrs Trott found out that a change in care to two nights per fortnight would impact on her rate of payment she only allowed the children to be in his care one night per fortnight.

8. According to both of the parents the initial change in care pattern was a trial only.  It was not until after the second fortnight visit (on 24 June 2018) that the parents agreed to two nights every fortnight and half of the school holidays.  The tribunal therefore decided that there was no change in care on 9 June 2018; it was not possible to determine what the likely pattern of care would be at that time.

9. The tribunal decided that a change in care occurred on or around 24 June 2018 when the parents agreed to an increase in care.  A care percentage based on the agreed pattern of care would be 78%/22% (40 weeks of 2 nights per fortnight and half of the 12 weeks of school holidays = 82 days = 22%).

10. The tribunal therefore decided that when Mr Trott contacted Child Support about a change in care on 1 August 2018 the agreed and likely pattern of care was 78% for Mrs Trott and 22% for Mr Trott commencing from 24 June 2018.

11. Section 54F of the Assessment Act provides that an existing care percentage decision must be revoked if Child Support is notified, or otherwise becomes aware, that the actual 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 of child support.

12. A change in care from 100%/0% to 78%/22% results in a change in cost percentages and therefore the existing care determinations must be revoked.

13. Child Support was notified on 1 August 2018 that the change in care occurred and it has been found that the change occurred on 24 June 2018.  As the notification was not within 28 days from the date the change occurred, the new determination takes effect from 1 August 2018.

14. The decision under review is a care percentage of 79%/21% commencing from 9 June 2018 with date of effect being 1 August 2018.  There is no difference in child support payable for care percentages of 21% and 22%.  The tribunal therefore decided to affirm the decision under review as although the care percentages were arrived at differently, the practical result is the same.

15. The tribunal noted that there is a likely change in care from 6 October 2018 and the Child Support objection officer noted that this will be considered under a separate ‘administrative process’. 

DECISION

The decision under review is affirmed.