Tyson and Fields (Child support)

[2020] AATA 1398

Tyson and Fields (Child support) [2020] AATA 1398 (20 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC018057

APPLICANT:  Ms Tyson

OTHER PARTIES:  Child Support Registrar

Mr Fields

TRIBUNAL:Member Y Webb

DECISION DATE:  20 February 2020

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 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. This review is about the percentages of care of Ms Tyson and Mr Fields in relation to the care of their child who is 14 years old (“the child”). 

2. There are no court orders or written parenting plans in relation to the care of the child.

3. On 25 March 2019 Mr Fields contacted the Department of Human Services (“Child Support Agency”) and asserted that he had 100% care of the child and that that had been the situation since 18 March 2019.

4. At the date that Mr Fields contacted the existing care percentages were 69% care to Mr Fields and 31% care to Ms Tyson.

5. The Child Support Agency contacted Ms Tyson and the notes record that she stated that there had been no change in the percentages of care for the child.  However, she stated that Mr Fields was withholding care and she confirmed that since 18 March 2019 she had not had any care of the child.

6. On 3 May 2019 an officer of the Child Support Agency decided that Mr Fields had 100% care and Ms Tyson 0% care since 18 March 2019.

7. On 13 May 2019 Ms Tyson objected to that decision on the grounds that she would be having some school holiday and weekend care.

8. On 26 November 2019 an objections officer decided that the objection should be disallowed.

9. On 17 December 2019 Ms Tyson requested review by the Administrative Appeals Tribunal (“the Tribunal”).

10. She attended the hearing in person on 20 February 2020 and gave sworn evidence.

11. Mr Fields attended the hearing by way of a telephone conference and gave evidence on affirmation.

12. The Child Support Agency provided a bundle of documents relevant to this matter and this was marked Exhibit C1.  Prior to the hearing Ms Tyson provided evidence of flight itineraries for flights taken by her or the child in June 2019, July 2019, August 2019, October 2019 and January 2020.  These were marked Exhibits A1 to A6.

ISSUES

1. The issues for the Tribunal to determine are:

   a)    What were the care arrangements in relation to the care of the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply unless or until a further change of care is notified and accepted).

4. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

5. In this case, Ms Tyson and Mr Fields did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

6. Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked. Relevant to this matter, section 54F of the Assessment 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; and

   · section 54G of the Assessment Act does not apply; and

   ·     one of the conditions described in paragraphs 54F(2)(a)–(c) applies in relation to an interim period.

7. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the existing care determination.

8. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

9. In this case Mr Fields asserted that he had had 100% care of the child since 18 March 2019 and that there were no firm arrangements at that time about Ms Tyson’s care going forward.  Ms Tyson conceded that she had had no overnight care of the child in the period between 18 March 2019 and 3 May 2019 when the original decision was made.  She stated that she was hoping to have care over Easter in April 2019 but she could not afford the funds for that trip. She contended that Mr Fields was withholding care of the child.  Ms Tyson told the Tribunal that she moved to [another city] for health reasons in March 2019 and that she has had significant care of the child since mid-2019.  However, she confirmed that she did not have any care of the child between 18 March 2019 and May 2019.

10. The Tribunal considered all of the available information and it is satisfied, based on the statements of both parents, that Mr Fields had 100% care of the child from 18 March 2019 and that Ms Tyson had had nil care of the child from that date and at least up until 3 May 2019 when the original decision was made.  The Tribunal finds therefore that the percentages of care of the parents from 18 March 2019 were 100% to Mr Fields and 0% to Ms Tyson.

11. The Tribunal finds that pursuant to section 54F of the Assessment Act, the pre-existing percentage of care determinations (of 69% to Mr Fields and 31% to Ms Tyson) for the parents should be revoked. The Tribunal is satisfied that the notification of the change of care was made by Mr Fields on 25 March 2019 which was within 28 days of the change of care day on 18 March 2019. Therefore the revocation of the pre-existing care percentages for the parents will occur on 17 March 2019 and new percentages of 100% to Mr Fields and 0% to Ms Tyson are made under sections 50 and 49 respectively of the Assessment Act for Mr Fields and Ms Tyson applicable from 18 March 2019.

12. As the Tribunal agrees with the decision of the objections officer, the decision under review is affirmed.

DECISION

The decision under review is affirmed.