Williams and Child Support Registrar (Child support)

[2018] AATA 221

Williams and Child Support Registrar (Child support) [2018] AATA 221 (4 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012322

APPLICANT:  Miss Williams

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  4 January 2018

DECISION:

The decision under review is varied so that Miss Williams has a care percentage of 79% and Mr Caras has a care percentage of 21% for [Child 1] and [Child 2] affecting the assessment from 15 May 2017.

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.

Catchwords

Child Support – Percentage of care – Determination of the likely pattern of care – Date of change in pattern of care - Decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

1. This review concerns the care percentages used in a child support assessment.

2. Miss  Williams and Mr Caras are the parents of [Child 1] (born 2011) and [Child 2] (born 2013).  Mr Caras applied to the Department of Human Services – Child Support (the Department) for a child support assessment on 5 May 2017 and advised he and Miss Williams had care of the children 50/50. On 11 May 2017 Miss Williams advised the care of the children had been 50/50 but this changed on 10 May 2017 and she had 11 nights care per fortnight and Mr Caras had three nights care per fortnight.

3. On 27 May 2017 the Department decided that the assessment of child support was based on a care percentage of 51% for Miss Williams and 49% for Mr Caras for the period 5 May 2017 to 18 May 2017 and a care percentage of 79% for Miss Williams and 21% for Mr Caras for the care period commencing 19 May 2017 in respect of both children.

4. Miss Williams objected to the decision on 7 June 2017 and stated the change in care occurred on 10 May 2017. On 3 August 2017 an objections officer disallowed her objection.

5. Miss Williams made an application to this Tribunal on 14 August 2017 for a review of that decision.

6. The application was heard on 4 January 2018. Miss Williams attended the hearing by telephone. The Child Support Registrar was not represented at the hearing. Mr Caras did not request to be added as a party to the review. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (folios 1 to 103) copies of which were provided to Miss Williams. Prior to the hearing Miss Williams provided additional documents which were numbered A1 to A22.

ISSUES

1. The issues the Tribunal must decide are:

   ·     whether the care percentages used in the child support assessment for [Child 1] and [Child 2] should be revoked; and if so

   ·    the date from which they have effect.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment, and if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Care percentages must be revoked under section 54G of the Assessment Act if:

   oa parent has had no care of a child or care that is less than regular care, despite the other parent making the child available; and

   othe other parent notifies the Department within a period that is considered reasonable in the circumstances.

4. The term “regular care” is defined in subsection 5(2) of the Assessment Act as a care percentage of at least 14% but less than 35%.

5. If section 54G does not apply care percentages must be revoked under section 54F of the Assessment Act if:

   othe care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child; and

   othe pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

6. Sections 49 and 50 of the Assessment Act require the Department, or this Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

When did the change in the pattern of care for the children occur?

1. Miss Williams and Mr Caras separated in February 2016. Miss Williams stated the care of the children was shared 50/50. In May 2017 she instructed her solicitor to inform Mr Caras that she would no longer facilitate the shared care arrangement and that the children would spend time with Mr Caras on alternate weekends from Friday afternoon until Monday morning. A letter dated 10 May 2017 informed Mr Caras that Miss Williams would “not make the children available to spend time with you this forthcoming Monday for the reasons outlined above”.

2. Miss Williams stated her solicitor received acknowledgment from Mr Caras that he would not pick the children up from school as usual on Monday 15 May 2017. The children were next in the care of Mr Caras in accordance with her letter from Friday 19 May 2017 for three nights and then returned to her care. Mr Caras confirmed on 27 May 2017 that he had care of the children for three nights per fortnight.

3. Miss Williams was of the view that the Department was incorrect to decide that the change in care occurred on 19 May 2017 and submitted that the change occurred from 10 May 2017, the date of her solicitor’s letter, as she had care of both children from 8 May 2017 to 18 May 2017.

4. The Tribunal is of the view that the change to the pattern of care of the children occurred on 15 May 2017 as this was the first day Mr Caras did not have the care of children in accordance with the shared care agreement that had been in place. Mr Caras advised the Department on 27 May 2017 that the change in care had occurred.

5. From 15 May 2017 it was intended that Miss Williams have care of the children for 11 nights per fortnight (78.6%) and Mr Caras have care of the children for three nights per fortnight (21.4%). In accordance with section 54D of the Assessment Act the care percentages are rounded down to 21% for Mr Caras and rounded up to 79% for Miss Williams.

6. Miss Williams notified the Department on 11 May 2017 of the proposed change in care. Mr Caras advised the Department on 27 May 2017 that the change in care had actually occurred. The Tribunal determines that the change to the pattern of care occurred on 15 May 2017.

7. The previous care determination must be revoked under section 54F of the Assessment Act from 14 May 2017 as the pattern of care for [Child 1] and [Child 2] changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

What is the date of effect of the new care determination?

1. The new determination has effect from the day after the revocation of the earlier percentage of care determination, that is, from 15 May 2017 as the Department was notified within 28 days after the change of care day (paragraph 54B(2)(c) of the Assessment Act).

DECISION

The decision under review is varied so that Miss Williams has a care percentage of 79% and Mr Caras has a care percentage of 21% for [Child 1] and [Child 2] affecting the assessment from 15 May 2017.