Wilbourn and Mollett (Child support)

[2021] AATA 2753

Wilbourn and Mollett (Child support) [2021] AATA 2753 (9 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021220

APPLICANT:  Mr Wilbourn

OTHER PARTIES:  Child Support Registrar 

Ms Mollett  

TRIBUNAL:Member R King

DECISION DATE:  9 June 2021

DECISION:

The tribunal affirms the decision under review.

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. Mr Wilbourn and Ms Mollett are the parents of [Child 1] (age 15 years) and [Child 2] (age 14 years).  This application concerns the percentage of care that each parent was providing to [Child 1] from 1 December 2020.

2. At all relevant times, Mr Wilbourn was paying child support to Ms Mollett under an administrative assessment. From 23 November 2020, the Child Support Agency (CSA) determined that Ms Mollett had 100% of [Child 1]’s care. 

3. On 10 December 2020, Ms Mollett contacted the CSA and advised that, following a recent court order, [Child 1] would be spending half the school holidays with Mr Wilbourn and would also spend three nights with him each fortnight.   The CSA spoke with Mr Wilbourn who confirmed the forthcoming care arrangements as outlined by Ms Mollett.  On 14 December 2020, the CSA decided to record the care percentages as 30% with Mr Wilbourn and 70% with Ms Mollett. 

4. On 21 January 2021 (more than 28 days after receiving the original decision) Mr Wilbourn lodged an objection, stating that he had 50% of [Child 1]’s care.

5. On 23 March 2021, an objections officer disallowed Mr Wilbourn’s objection.  The objections officer found that the current court order in effect reinstated a court order from July 2019.  Under this court order, Mr Wilbourn’s care of [Child 1] had been determined as being 30% as this is the percentage of care he would have over a 12 month period.

6. On 12 April 2021 (within 28 days after receiving the objection decision), Mr Wilbourn applied to the tribunal for review of the care percentage decision. 

7. Ms Mollett applied to be added as a party to Mr Wilbourn’s application.  Her application was accepted.

8. The tribunal conducted a hearing on 9 June 2021.  Both Mr Wilbourn and Ms Mollett participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Mr Wilbourn told the tribunal that the new court order provided that he would have 50% of [Child 1]’s care during the 2020/21 summer holiday period and that it is therefore right and proper that the care percentages for this period be recorded to reflect the court order.

2. Ms Mollett told the tribunal that the court order was clear that once the summer holiday period was over, the care arrangements under the 2019 court order would resume.  Further, she told the tribunal that the pre-existing care court order provided that each parent would have 50% of [Child 1]’s holiday care but because she had a substantially greater amount of term-time care, her care percentage over a 12-month period was 70%.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Mr Wilbourn had 30% of [Child 1]’s care but that this was revoked when Ms Mollett withheld care from 25 May 2020 (see decision in application BC021114). From 23 November 2020, [Child 1]’s care was recorded as 0% with Mr Wilbourn and 100% with Ms Mollett.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked. Under section 54G of the Act, a care percentage determination must also be revoked if the effect of a change of care is such that a parent has less than 14% of the care. If the change is insufficient to require a change to the cost percentage, the original determination may be revoked under section 54H of the Act but this is not mandatory because the change in care percentage does not affect the overall child support assessment. When a care percentage determination is revoked under sections 54F, 54G or 54H but the revocation is not in the context of a terminating event, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent.

4. On 14 December 2020, the CSA revoked the existing care determination because there was a change in care under a new court order.  The tribunal is of the view that this was a lawful decision given the information at hand.  The CSA made a new care determination, which is the subject of this application. 

5. When a responsible person (in this case, Mr Wilbourn) has a pattern of care for a child, a new care determination is made under section 50 of the Act.

6. Under section 50, the tribunal must first determine what is the relevant care period in this matter. A care period will usually commence at the time a change of care is notified or an earlier date if there is evidence that there was an earlier change of care. A care period has to be sufficient in duration to establish a pattern of care. Twelve months is frequently treated as the default duration for the care period, but the duration can be shorter or longer, according to the duration of care required to establish a pattern of care.

7. The CSA found that there was a change of care on 1 December 2020 and has treated a 12-month period from that date as the care period.  This tribunal is satisfied that this is an appropriate period to determine the pattern of care in this case, given that, under the relevant court order care arrangements change between holiday periods and school term periods.  The tribunal does not accept Mr Wilbourn’s submission that the summer holiday period should be treated as a discrete period of care for child support purposes.  Doing so would distort the overall pattern and require frequent and unnecessary changes to care percentages.  The recent court order provides for the resumption of the pre-existing court order beyond the summer holidays and the objections officer reasonably and appropriately looked beyond the summer holiday period to determine the overall pattern of care.

8. Having established the appropriate care period, the tribunal must determine the percentage of care that Mr Wilbourn had or is likely to have during this period.  The tribunal agrees with the objections officer that the applicable court order provides the best guide to this percentage and that over a 12-month period, under this court order, Mr Wilbourn is likely to have 30% of [Child 1]’s care. 

9. The tribunal notes that any percentage of care between 14% and 34% yields the same cost percentage, which is what affects the amount of child support Mr Wilbourn is required to pay to Ms Mollett.

10. It follows that the tribunal is not satisfied that there is any basis for disturbing the decision of the objections officer in this matter.

DECISION

The tribunal affirms the decision under review.