Vann and Foxley (Child support)

[2018] AATA 1726

Vann and Foxley (Child support) [2018] AATA 1726 (10 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/DC013177

APPLICANT:  Mr Vann

OTHER PARTIES:  Ms Foxley

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  10 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentage of care – Determination of the likely pattern of care – Minor change to the pattern of care - No change to the cost percentage - Discretion not exercised to revoke existing percentages 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 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

1. Mr Vann and Ms Foxley are the parents of [Child 1] and [Child 2]. A child support case was registered in 2009. From 2011, Mr Vann was recorded as providing 28% care to both children. Ms Foxley has always been recorded as providing the balance of care and, for convenience, I will only refer to Mr Vann’s provision of care.

2. On 17 June 2017, Ms Foxley moved from [Town 1] to [Town 2]. At all relevant times, Mr Vann has lived in [Town 2]. On 20 July 2017, Ms Foxley applied to have the Department of Humans Services – Child Support (“the CSA”) collect Mr Vann’s child support payable. The payment of child support had previously been a private matter between the parents.

3. On 29 August 2017, Mr Vann informed the CSA that a change in care had occurred on 17 June 2017. The CSA subsequently decided not to record a change in care. Mr Vann objected to that decision and an objections officer disallowed his objection. Mr Vann sought further review by the Tribunal. The matter was listed for hearing on 22 February 2018. On the day of the hearing Mr Vann stated that Ms Foxley was overseas and probably unaware that the matter had been listed for hearing. The matter was relisted for 10 April 2018 and I spoke to both parents by conference phone on that date.

4. According to both parents’ records, Mr Vann provided 15 nights of care during the 44-night period from 17 June 2017 to 30 July 2017. 15 / 44 = 34.1%.

5. At the hearing, both parents agreed that they entered into a written agreement on 31 July 2017 whereby Mr Vann would provide 7 nights of care every 3 weeks. 7 / 21 = 33.3%.

6. At the hearing, both parents agreed that Mr Vann’s general pattern of care from 17 June 2017 would be fairly reflected in a finding that he provided 33% care from 17 June 2017. The evidence supports such a finding and I make that finding.

7. As an aside, the CSA has made a separate decision to record Mr Vann as providing 38% care from 18 September 2017. I am not reviewing that decision.

8. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). So far as is relevant for present purposes, section 50 of the Act effectively provides for the making of a new care decision if:

   (i) the decision-maker revokes an earlier care decision pursuant to section 54F, 54G or 54H of the Act; and

   (ii)     the decision-maker is satisfied that the parent “has had, or is likely to have” a pattern of care during a relevant period that the decision-maker considers appropriate having regard to all the circumstances.[1]

   [1]Paragraph 50(1)(b) of the Act.

9. An earlier care decision can be revoked pursuant to section 54F of the Act if certain requirements are satisfied including a requirement that the parent’s cost percentage would change if a new care decision were made: subsection 54F(1)(d). Mr Vann had been recorded as providing 28% care. If I were to make a new care decision, it would be to record Mr Vann as providing 33% care. The term “cost percentage” is defined in section 55C of the Act. If a parent’s percentage of care is at least 14% and less than 35%, their cost percentage is 24%. If I were to make a new care decision, Mr Vann’s cost percentage would not change. The previous care decision cannot be revoked pursuant to section 54F.

10. The significance of a parent’s cost percentage is that it is one of the variables that is used in the administrative assessment formula which is used to calculate a parent’s rate of child support payable. Not every change in a parent’s pattern of care results in a change in the rate of child support payable. The practical effect of section 54F is that if a parent’s pattern of care has changed but the change in care would not affect the rate of child support payable, the change in care does not result in the making of a new care decision pursuant to sections 54F and 50 of the Act.

11. An earlier care decision can be revoked pursuant to section 54G of the Act if certain requirements are satisfied including a requirement that a parent ceased providing care. That requirement is not satisfied in this case.

12. Section 54H provides a discretion to revoke an earlier care decision if there has been a change in a parent’s pattern of care but sections 54F and 54G are not satisfied. There may be cases where there is some other utility in recording a change in care, even if it will not affect the rate of child support payable, but the current case is not such a case, and for those reasons I decline to revoke the earlier care decision pursuant to section 54H of the Act.

13. For those reasons, Mr Vann’s slight increase in his provision of care from 17 June 2017 from 28% to 33% does not result in a formal care decision to increase his percentage of care from 29 August 2017, i.e. from the date that he belatedly notified the CSA of the change in care: see paragraphs 54H(2)(c) and 54B(2)(c) of the Act.

DECISION

The decision under review is affirmed.