Vangalda and Millar (Child support)

[2018] AATA 3796

Vangalda and Millar (Child support) [2018] AATA 3796 (25 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013479

APPLICANT:  Ms Vangalda

OTHER PARTIES:  Child Support Registrar

Mr Millar

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  25 June 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Vangalda be attributed with a care percentage of 65% and Mr Millar 35% of [Child 1] and [Child 2], with effect from 17 October 2017.

CATCHWORDS

Child support - Percentage of care - Likely pattern of care according to a parenting plan - Percentage of care determination applicable from the start date of the child support assessment - 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 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. The applicant mother seeks review of an objection decision dated 13 January 2018 which determined that she should be recorded as having 52% care of the parents’ youngest son and 43% of their eldest son, with effect from 8 May 2017. The father was attributed with care of 48% and 57% respectively.

2. It is useful to detail some relevant background. On 17 October 2017, the mother applied for a child support assessment in respect of the parents’ three children. Care of the oldest child, their daughter, was assessed as 86% to the mother and 14% to the father. There was no objection to this decision. However, care of the boys was the subject of dispute. Eventually, on 15 November 2017, the CSA determined care for the boys as 67% to the mother and 33% to the father. The father was assessed as liable to pay child support of $12,219 per annum on this basis.

3. The father objected, leading to the objection decision of 13 January 2018.   

CONSIDERATION

1. The original care percentage decision relating to the boys was made on 15 November 2017, in the context of an application for child support made on 17 October 2017. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the CSA makes point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the original decision and what was likely to happen thereafter?

2. The evidence shows that the parents signed a parenting plan dated 28 July 2017. In assessing the actual or likely pattern of care, I considered care for the months of August, September and October 2017 was an appropriate starting point for assessing actual or likely care.

3. Both parents had provided copies of care calendars which covered this three month period. The mother’s calendar indicated the father had care of the boys for 10 nights in August, 10 nights in September and 12 nights in October 2017: 32 nights out of 92 = 34.8%. She explained her calendar was based on the father’s work roster; for example, when he started early at 4.15 am or 5 am, he would not have the boys the previous night. The father accepted this was so.  The mother had included his work roster in her September calendar records, and used this as a basis for her claim he had 10 nights of care that month. Her general position was that over any representative period from May 2017, the father’s level of care was about 34%-35%.

4. The father’s initial position was that the parenting plan was followed and this gave him care of the boys for 11 nights in each three week work cycle. He accepted they would actually stay with the mother one of these nights, leaving him with 10 nights of 21: a percentage of 47.6%. In this respect, the father claimed he had care for seven consecutive nights each cycle until October after which his roster changed slightly and he had six consecutive nights each cycle. I noted his calendar at no stage from August to October 2017 indicated six consecutive nights, let alone seven. The father’s calendar indicated he had care of the boys for 17 nights in August, 13 nights in September and 11 nights in October 2017: total 41 nights. However, on closer questioning during the hearing, the father accepted his calendar indicated only 15 and 12 nights of care for August and September 2017 respectively. This produces a total of 38 nights of 92 or 41.3%. Subsequently, the father explained care had not always occurred as provided for in the parenting plan. His final position was that he should be attributed with care of the boys of 40%–47%.    

5. Having heard and considered the parents’ evidence, I was not persuaded that the father’s position was reliable, given the differing bases he asserted. I preferred the mother’s evidence. Accepting there would inevitably be variations in care over time, I concluded it was appropriate to assess the actual or likely pattern of care as 65% to the mother and 35% to the father. The decision under review should be set aside on this basis.  

OTHER MATTERS

1. This case highlights some common problems which arise in the context of CSA decision-making in care matters. Care percentage determinations made by the CSA have the fundamental purpose of informing the appropriate rate of child support payable under a child support liability; the care percentages are critical particulars of a formula-based assessment under Part 5 of the Assessment Act. In this respect, the requirement is to assess the actual or likely pattern of care for an appropriate care period so that the resulting care percentage determined can be applied in the child support assessment.

2. Despite this important context, the CSA seems to place an unfortunate and undue focus on what it refers to as ‘care events’, which focus can lead to misconceived decision-making. Here, the parents separated in May 2017. The mother applied for child support assessment in October 2017. A parenting plan was executed in late July 2017.  Ultimately, the objection decision adopted as its focus care from May to 27 July 2017, the day before the plan was signed. The reasons then detailed that a new ‘event’ (the parenting plan) occurred thereafter so that a new determination of care would be considered, ‘separate to this review’.

3. The result of the objection decision was the care assessment for the period May to July 2017 was then applied to the child support assessment from 17 October 2017, despite it being clear that a parenting plan as to care was on foot from late July 2017. Subsequently, on 21 February 2018, a new care percentage determination foreshadowed in the objection decision was made. It attributed the mother a care percentage for the boys of 53%, with effect from 13 January 2018 (said to be the date of notification of this care change). However, the parenting plan was put before the CSA by November 2017 before the original decision had been made. Indeed, both parents had referred to it in discussions with the CSA at that earlier stage. The date of notification of 13 January 2018 for this subsequent decision is difficult to fathom.

4. The net result is that the objection decision purports to deal with a closed period prior to any child support assessment being in existence. Since the definition of care percentage decision in the Child Support (Registration and Collection) Act 1988 is tied to the ‘particulars’ of the child support assessment, it is difficult to see how an objection decision focusing on a period of no relevance to the child support assessment from October 2017 was considered appropriate to be made.      

5. Due to the alignment of care arrangements in the child support and family assistance computer systems, such misconceived CSA decisions (which have no effect for child support purposes) can lead to significant family tax benefit consequences. This seems to be an unfortunate by-product of current processes. 

6. Finally, the subsequent ‘separate’ decision on 21 February 2018 should have been unnecessary; the objection decision could and should have considered actual and likely care from the time of the parenting plan in late July 2017 to determine the appropriate care percentage to be applied in the child support assessment. Unfortunately, since there is no evidence of an objection decision concerning this later care percentage decision, the Tribunal has no specific jurisdiction in this respect. Had the present objection decision had the proper focus, that decision and any further review process would not have been necessary.            

CONCLUSION

1. For the reasons given, the care of the boys is to be assessed as 65% to the mother and 35% to the father, with effect from 17 October 2017.

2. Should either parent disagree with the care percentage decision of 21 February 2018, they might consider lodging a separate objection to that decision. Should either parent consider there have been material changes to care more recently, this should be reported to the CSA and a new care determination sought.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Vangalda be attributed with a care percentage of 65% and Mr Millar 35% of [Child 1] and [Child 2], with effect from 17 October 2017.