Tubbs and Tubbs (Child support)

[2021] AATA 3347

Tubbs and Tubbs (Child support) [2021] AATA 3347 (7 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020616

APPLICANT:  Mr Tubbs

OTHER PARTIES:  Child Support Registrar

Ms Tubbs

TRIBUNAL:Member J Bakas

DECISION DATE:  7 July 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to likely pattern of care – decision under review affirmed

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. Mr Tubbs and Ms Tubbs are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. With effect from 3 November 2014, the child support assessment has been calculated on the basis of a care percentage determination reflecting 58% care to Ms Tubbs and 42% care to Mr Tubbs. It is not in dispute that these care percentages are based on a court order dated [in] August 2017.

3. On 17 March 2020, Mr Tubbs contacted the Child Support Registrar (Registrar or the Department) to advise that care was not taking place in accordance with that existing care percentage determination and had not from 16 March 2020. 

4. On 29 July 2020, the Department decided to not accept the care change had taken place.  Mr Tubbs sought a review of that decision on 4 August 2020.  On 23 December 2020 the objection was disallowed.

5. Mr Tubbs sought a review in the tribunal on 13 January 2021.

6. The matter was heard on 22 June 2021 and both Mr Tubbs and Ms Tubbs participated by conference telephone.  Both parties gave oral evidence to the tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by the Department.

7. No further documentary evidence was provided to the Tribunal by either parent.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are:

   ·Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

   ·Should a new determination of a percentage of care be attributed to Mr Tubbs and Ms Tubbs in respect of [Child 1]?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to the Department of a change of care arrangements.  The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.  The tribunal’s task on review is the same and is to stand in the shoes of the original decision-maker.

2. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal and the tribunal can determine a different care period.

3. The primary decision-maker’s essential task was 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 the Department.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Department 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 the Department. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Department – so that a new primary care percentage decision can be considered, and made if appropriate, as has occurred in this case. 

Existing percentage of care determination is not revoked

1. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of 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. It is apparent that the objections officer was unable to form the necessary state of satisfaction, on the evidence available, so as to revoke the existing care determination but notes that a new event occurred on 3 July 2020 for [Child 1] that would require an original decision to be made with fresh objection rights for both parents.

15.Mr Tubbs’ evidence at the hearing included the following:

·He wants to clarify that child support recognises he has 80% care [Child 1] from 3 July 2020 whereas his care percentage should be backdated to March 2020.

·On 18 March 2020 he informed Ms Tubbs that [Child 1] doesn’t want to stay with her.

·He provided a statutory declaration from a family friend to support his increased care from March 2020 and he also provided a statutory declaration signed by his mother.

16.Ms Tubbs’ evidence at the hearing included the following:

·She was informed in March last year that [Child 1] would like to make changes to the care arrangements. However, this did not actually take place until July 2020.  The reason for this was partly due to COVID-19 restrictions.

·The care arrangements were being followed with a few exceptions until 3 July 2020.

1. I consider the documentary evidence before me and note that the statutory declaration completed by Mr Tubbs’ mother dated 17 July 2020 states that [Child 1] has been living with Mr Tubbs from the beginning of July 2020. The statutory declaration by Mr Tubbs’ friend, [Mr A], dated September 2020, refers to [Child 1] living with her father since 16 April 2020.

2. I also note that there are texts included in the hearing papers dated 24 June 2020 from Mr Tubbs to Ms Tubbs, stating care would effectively change from 3 July 2020. Further a number of text messages between the parties from February to June 2020, that are included in the papers, indicate that an agreed change of care had yet not occurred.

3. Having considered all the evidence available to me, like the objections officer, I am not satisfied to conclude that care was not taking place in accordance with the existing care percentage determination at the time nominated by Mr Tubbs (16 March 2020).

4. I am not satisfied that the care that was taking place at the time Mr Tubbs contacted the Department, or at any material time before then, was not taking place in accordance with the existing pattern of care.

5. The effect of the legislation in these circumstances is that the existing care determination continues in effect, as the criteria for its revocation cannot be established.

DECISION

The Tribunal affirms the decision under review.