Ware and Ware (Child support)

[2021] AATA 3607

Ware and Ware (Child support) [2021] AATA 3607 (21 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC021574

APPLICANT:  Ms Ware

OTHER PARTIES:  Child Support Registrar

Mr Ware

TRIBUNAL:Member S Brakespeare

DECISION DATE:  21 July 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations are revoked and replaced with percentage of care determinations reflecting that Ms Ware has 55% care of the children and Mr Ware has 45% care of the children with effect from 27 January 2021.

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 set aside and substituted

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. Ms Ware is the parent liable to pay child support to Mr Ware in respect of their children [named] (the children).

2. Since 7 February 2019 the child support assessment has been based on, among other things, percentage of care determinations reflecting that Ms Ware has 53% care of the children and Mr Ware has 47% care of the children (the existing percentage of care determinations).

3. On 29 January 2021 Ms Ware advised the Child Support Agency that she would be having additional nights of care from 18 December 2020.

4. On 2 February 2021 an officer of the Child Support Agency revoked the existing percentage of care determinations and replaced them with percentage of care determinations reflecting that Ms Ware has 55% care of the children and Mr Ware has 45% care of the children (the original decision).

5. Mr Ware lodged an objection to the original decision. On 13 May 2021 an objections officer allowed the objection and refused to revoke the existing percentage of care determinations (the objection decision).

6. Ms Ware lodged an application for review of the objection decision with the tribunal. A hearing was held on 21 July 2021. Ms Ware and Mr Ware gave evidence on affirmation to the tribunal via conference telephone. The tribunal and the parties had papers provided by the Child Support Agency (149 pages) and extra documents provided by Mr Ware (folios B1 to B11).

7. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is whether the existing percentage of care determinations are to be revoked and replaced.

CONSIDERATION

1. Section 50 of the Act provides that where a responsible person (usually a parent) has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Child Support Agency considers to be appropriate having regard to all the circumstances, the Child Support Agency must determine the responsible person’s percentage of care for the child during the care period. The percentage determined under section 50 must be a percentage that corresponds with the actual care of the child that the Child Support Agency is satisfied that the responsible person has had, or is likely to have, during the care period.

2. The existing percentage of care determinations were made in accordance with section 50 of the Act.

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency or Centrelink 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. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children. Section 54F applies if section 54G of the Act does not apply. The tribunal is satisfied that section 54G does not apply in this case.

4. The care of the children is in accordance with a Court Order dated [in] May 2018 (the Order). Both parties agree that the Order is being complied with. Ms Ware said that due to when her special days fall, as per point 2.(c) of the Order she will have extra care in the calendar year commencing from 18 December 2020.

5. It is Mr Ware’s view that a two-year care period should be used to calculate the care percentages to take into account the odd and even year allowances for both parents in the Order. Ms Ware provided the tribunal with calendars for 2020 through to 2024. He calculated two figures, the first being his nights in care if special days were not counted, and the second being the nights in care if the special days were counted. Mr Ware told the tribunal that the Child Support Agency had advised that the special nights were not counted, as they usually end up with each parent having a similar number of special days.

6. Ms Ware told the tribunal that she agreed with the calendars provided by Mr Ware. However, she said that the special days should be counted as she ends up having the children in care for more nights once they are taken into account and the percentage of care determinations should be based on actual nights in care.

7. The tribunal takes the view that the care period in this case should be a two-year period, as the Order provides for care alternating depending on whether it is an even year or an odd year. The change occurs at the start of Term 1 of each year. Calculating the care on individual calendar years results in quite large variations from year to year; for example Mr Ware was entitled to have 174 nights care in 2020 and 160 nights care in 2021 if the Orders were followed strictly. The 2022 and 2023 calendar years are more uniform; they result in Mr Ware being entitled to 168 nights care and 169 nights care respectively. The tribunal is of the view that the point of alternating care between odd years and even years is to even out the care over the two-year period. It may have been assumed at the time the Order was made that each two-year period results in a standard amount of care days for each parent; however that is not the case.

8. The tribunal notes that the percentage of care determinations that took effect from 7 February 2019 appear to be based on both the 2019 and 2020 calendar years.

9. The tribunal finds that Mr Ware’s actual care from 1 January 2021 is 44.93% (45%) when calculated over a two-year care period encompassing the 2021 and 2022 calendar years. Ms Ware’s care therefore is 55.06 (55% rounded down). Whilst the change to the care percentage is minimal, is does affect the cost percentage. Section 55 of the Act states that a percentage of care between 35% and 48% results in a cost percentage of 25% plus 2% for each percentage point over 35% and a percentage of care more than 52% to 65% results in a cost percentage of 51% plus 2% for each percentage point over 53%.

10. This means that the existing percentage of care determinations must be revoked in accordance with section 54F.

11. If the existing percentage of care determinations are revoked under section 54F another determination must be made under section 49 or 50 to replace the revoked determination.

12. The tribunal finds that the date of the change is the first day of the 2021 school year, being 27 January 2021.

13. The existing percentage of care determinations are therefore revoked and replaced with percentage of care determinations reflecting that Ms Ware has 55% care of the children and Mr Ware has 45% care of the children with effect from 27 January 2021.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations are revoked and replaced with percentage of care determinations reflecting that Ms Ware has 55% care of the children and Mr Ware has 45% care of the children with effect from 27 January 2021.