Ahmad and Ahmad (Child support)

[2019] AATA 6410

Ahmad and Ahmad (Child support) [2019] AATA 6410 (10 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017369

APPLICANT:  Mr Ahmad

OTHER PARTIES:  Child Support Registrar

Mrs Ahmad

TRIBUNAL:Member R Anderson

DECISION DATE:  10 December 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

• From 4 January 2019 the level of care attributed to Mr Ahmad and Mrs Ahmad in respect of [Child 1] is 11% and 89% respectively.

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 – date of revocation of previous determination – 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. Mr Ahmad and Mrs Ahmad are the parents of [Child 2] and [Child 1].  The child support assessment was registered with the Department of Human Services – Child Support (the Department) on 25 September 2012. According to departmental records, [Child 2] ceased to be a child of the assessment on 24 June 2018. Prior to 4 January 2019, Mrs Ahmad was registered as having 57% care of [Child 1].  Consequently, Mr Ahmad was attributed with 43% care. The registered care was based on consent orders made in the Federal Circuit Court of Australia at Melbourne on 11 September 2017.

2. Prior to [Child 2] ceasing to be a child of the assessment, no child support was payable by either party.  From 25 June 2018, based on the shared care attributable to Mr Ahmad and Mrs Ahmad of 43% and 57% respectively, neither parent was liable for child support in respect of [Child 1].

3. According to departmental records, Mrs Ahmad contacted the Department of Human Services – Family Assistance Office (FAO) in the first half of 2018 and notified of a change in the care of [Child 1] such that she should be attributed with 100% care from 7 February 2018.  On 21 June 2018, the FAO refused to accept a change in care as no evidence was provided by either party.  Any review of this decision must proceed in accordance with the A New Tax System (Family Assistance) Act 1999 and the A New Tax System (Family Assistance) (Administration) Act 1999. In any event, as there is no evidence of a request for an internal review of the decision, it is not open to the tribunal to consider a change in care prior to 7 February 2018.

4. On 4 January 2019, Mrs Ahmad contacted the Department to notify of a change in care of [Child 1] such that she should be attributed with 95% care from 30 January 2018 and Mr Ahmad with 5% care. 

5. On 26 April 2019, an officer of the Department decided to change the registered care of [Child 1] to 92% attributable to Mrs Ahmad and 8% attributable to Mr Ahmad from 1 November 2018.

6. On 5 May 2019, Mrs Ahmad lodged an objection to the decision of 26 April 2019.  On 29 August 2019, an objections officer of the Department decided to partly allow the objection, attributing 92% care of [Child 1] to Mrs Ahmad and 8% care of [Child 1] to Mr Ahmad from 9 April 2018.

7. On 10 September 2019, Mr Ahmad lodged an application with this tribunal for an independent review of the objections officer’s decision. The matter was heard on 10 December 2019.  Mr Ahmad and Mrs Ahmad both participated by conference telephone and gave oral evidence to the tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by the Department numbered 1 to 131 and further documents provided by Mrs Ahmad, numbered B1 to B33. 

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are as follows:

   ·Should the existing determination of percentages of care in respect of [Child 1] be revoked?  If so, from when should they be revoked?

   ·Should a new determination of percentages of care be attributed to Mr Ahmad and Mrs Ahmad in respect of [Child 1]?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to the Department of a change of care arrangements.  The provisions in Division 4 of Part 5 of the Act require the Department (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage decision can be made.

2. The primary decision maker's essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. 

3. The tribunal's task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Department.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Department up to the time of the tribunal's hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Department. In the tribunal's view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Department - so that a new primary care percentage decision can be considered, and made if appropriate. 

4. The care period is such period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed.  This policy is not binding on the tribunal and the tribunal can determine a different care period.  In the tribunal’s view an appropriate care period in this case is the 12-month period commencing 4 January 2019, being the date of notification to the Department.

Issue 1 - Should the existing determinations of percentage of care in respect of the children be revoked?  If so, from when should they be revoked?

1. In this case it is undisputed that the registered care of [Child 1] in accordance with the consent orders of 11 September 2017 of 43% to Mr Ahmad and 57% to Mrs Ahmad was no longer being adhered to by 9 April 2018. Both parties agreed that since then Mr Ahmad has consistently had care of [Child 1] for 50% of the school holidays. This equates to 42 nights per annum.

2. Subdivisions B and C of Division 4 of the Act were substantially amended to take effect from 23 May 2018 for change of care days that happen on or after 23 May 2018.  As the change in care of [Child 1] commenced prior to 23 May 2018, the amended legislation at 23 May 2018 is not applicable in this case. 

3. A preliminary issue arose when the tribunal considered the further amendments to the legislation that took effect from 1 July 2018, specifically in relation to revocation days when notification of the change in care occurred more than 28 days after the change in care commenced. The application provisions for the changes from 1 July 2018 state that the changes apply to change of care days that happen on or after 1 July 2018 and also to changes of care days that happen before 1 July 2018 but notified 26 weeks after 1 July 2018. While at first glance one may consider that the amended legislation at 1 July 2018 is therefore applicable because the new care was notified more than 26 weeks after 1 July 2018, upon further examination, the tribunal does not consider this to be the correct view. 

4. The amended legislation of 23 May 2018 repealed section 54F of the Act and substituted a new section 54F in respect to revocation of existing care determinations.  As noted above, this legislation does not apply in this case.  The amended legislation of 1 July 2018 repealed the substituted subsection 54F(3) of 23 May 2018.  As such, in the tribunal’s view, if the substituted section 54F of 23 May 2018 did not apply, then it follows that any future replacement legislation in respect of section 54F also does not apply.  

5. An alternate view to apply section 54F of the amended legislation of 1 July 2018 becomes problematic when one considers the application of section 52 of the Act when determining the new percentages of care under the legislation pre 23 May 2018.  As it was removed by the amended legislation of 23 May 2018, there is no corresponding section of the Act in the amended legislation to apply the outcome of the application of section 52. Therefore, in the circumstances of this case, the tribunal considers that the legislation pre 23 May 2018 is the appropriate law to apply in determining the percentages of care and also the revocation of existing determinations of percentages of care. 

6. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. 

7. Mr Ahmad gave oral evidence that following the consent orders, he moved to the area where [Child 1] was living with Mrs Ahmad and attending school for the purpose of easier access to [Child 1] to enable compliance with the consent orders.  Mr Ahmad further stated that upon sale of the family [home], Mrs Ahmad and [Child 1] commenced residing with her partner.  This resulted in [Child 1] attending [School 1]. The distance meant that Mr Ahmad was not always able to collect [Child 1] from school on his allocated days as he shares his car with his other adult children.

8. In response to a question from the tribunal, Mr Ahmad stated that he contacted his solicitor who wrote to Mrs Ahmad’s solicitor in an attempt to make new care arrangements whereby [Child 1] would spend each weekend with Mr Ahmad throughout school terms and 100% of the school holidays.  Mrs Ahmad would not agree to this suggestion.  Mr Ahmad further stated that mediation did not proceed as Mrs Ahmad was difficult to contact and would not advise of her address. Furthermore, she no longer engaged the services of her solicitor. Mr Ahmad told the tribunal that he is on disability support pension and cannot afford to take the issue to court.

9. Mrs Ahmad confirmed to the tribunal that she has taken no action in regard to reinstating the care arrangements of the consent order of 11 September 2017. 

10. Section 54D of the Act sets out the rounding provisions where the percentage of care determined is not a whole percentage such that if the percentage is greater than 50% the percentage is rounded up to the nearest whole percentage and vice versa. Based on the evidence provided, the tribunal finds that the likely pattern of care in respect of [Child 1] in the care period commencing 4 January 2019 was 42 nights to Mr Ahmad and 323 nights to Mrs Ahmad.  Based on the rounding provisions, this represents 89% care to Mrs Ahmad and 11% care to Mr Ahmad.  The tribunal also finds that the change in care commenced from 9 April 2018, as agreed by the parties.

11. Subsection 54G(1) of the Act provides that if a responsible person was to have had at least regular care of a child under a care determination made under section 50 of the Act and it has since been determined that the responsible person’s care has reduced to less than regular care (despite the child being made available to the responsible person), the other person’s care has been determined under section 50 of the Act and notification of the change in care by the other person occurred within a reasonable period, then both existing determinations of care must be revoked. The four criteria are not mutually exclusive and must all be met before the existing care determination can be revoked under subsection 54G(1) of the Act.

12. Regular care is defined in subsection 5(2) of the Act as care for a child during a care period being at least 14% and less than 35%.  While the distance has made it more difficult for Mr Ahmad to comply with the consent orders, the tribunal is satisfied that Mrs Ahmad has made [Child 1] available to Mr Ahmad. As such, the tribunal is satisfied that the first two criteria are met.  According to departmental records, the existing care determination of 57% attributable to Mrs Ahmad (the other responsible person) was made in accordance with section 50 of the Act, thereby satisfying the third criterion.    

13. Mrs Ahmad notified the Department of the change in care on 4 January 2019, some nine months after the event.  At 2.2.3 of the Guide, a “reasonable period of time” is defined as within 28 days.  While the tribunal is not bound by policy, in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation. Consequently, the tribunal finds that notification by Mrs Ahmad of the change in care to below regular care in respect of Mr Ahmad was not done so in what the tribunal considers to be a reasonable period of time in the circumstances. As the fourth criterion is not satisfied, it is not open to the tribunal to revoke the existing care percentages under section 54G of the Act.

14. Subsection 54F(1) of the Act provides in relevant part, that in circumstances where: the current care decision has been made under section 49 or 50 of the Act, if section 51 or 52 of the Act apply and the interim period has ended, the Registrar (or, tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is not consistent with the existing determination of care and that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and section 54G of the Act is not applicable, then the current care decision must be revoked if all of the five criteria are met.

15. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for Mr Ahmad and Mrs Ahmad of percentages of care for [Child 1], being 43% and 57% respectively, made in accordance with section 50 of the Act.  Therefore, the first criterion is satisfied.

16. The existing determinations were not subject to sections 51 or 52 of the Act.  As such, there was no interim period in place and the criterion under paragraph 54F(1)(b) is therefore satisfied.

17. The tribunal is satisfied that the care as notified by Mrs Ahmad to the Department on 4 January 2019 did not correspond to the care registered with the Department, thereby satisfying the third criteria under paragraph 54F(1)(c) of the Act.

18. In relation to paragraph 54F(1)(d) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Relevantly, section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

19. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.  Under the child support assessment based on the existing percentage of care determinations at 4 January 2019, the cost percentages of Mr Ahmad and Mrs Ahmad are 41% and 59% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of Mr Ahmad and Mrs Ahmad would be 0% and 100% respectively.  Accordingly, the tribunal is satisfied that, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(d) of the Act. 

20. As determined in paragraph 26 of this decision, section 54G is not applicable in this case, thereby satisfying the fifth and final criterion under paragraph 54F(1)(e) of the Act. As all of the criteria of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care in respect of [Child 1].

21. Relevantly, subsection 54F(2) of the Act sets out when the revocation of the determination takes effect.  The date of effect depends on whether the Department was notified of the care change within 28 days after it occurred. As discussed above, the tribunal found that the care change advised by Mrs Ahmad took effect from 9 April 2018.  As the notification was made on 4 January 2019, more than 28 days after the change in care occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) of the Act, being 3 January 2019, the day before Mrs Ahmad notified the Department of the change in care.   

Issue 2 - Should a new determination of percentages of care be attributed to Mr Ahmad and Mrs Ahmad in respect of [Child 1]?

1. Sections 51 and 52 of the Act may be applicable if a care arrangement, such as the consent orders of 11 September 2017, has been in place, the care arrangement is not being complied with and a parent is taking action to enforce that care arrangement (section 51) or make a new care arrangement (section 52).  The tribunal accepts that Mr Ahmad took steps to make a new care arrangement.  However, section 53(2)(c) of the Act has the effect that if the day upon which the revocation would take place under section 54F(2)(c) or 54H(2)(c) of the Act is more than 14 weeks after the change in care for the responsible person took place, then sections 51 and 52 do not apply.  In this case, as found above, as the notification was nine months after the change in care commenced, the revocation day under section 54F(2)(c) would be  3 January 2019.  As this is more than14 weeks after the change in care occurred, neither section 51 nor section 52 of the Act are applicable, regardless of any legal action taken by Mr Ahmad.

2. The tribunal acknowledges that Mr Ahmad suffers from [a medical condition] and that the distance made it difficult to comply with the consent ordered care.  Furthermore, he was involved in a car accident and he was also hospitalised following an [incident].  However, even if the tribunal were satisfied that special circumstances existed in relation to Mr Ahmad, the 14-week period can only be extended under subsection 53(4) of the Act for a maximum of 26 weeks.  As this falls prior to the date of notification on 4 January 2019, clearly sections 51 and/or 52 are not applicable in this case.  

3. The tribunal considered section 50 to be the relevant section of the Act in making a new determination of the percentages of care in respect of [Child 1].   Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for [Child 1].  These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 43% care of [Child 1] to Mr Ahmad and 57% care to Mrs Ahmad should be revoked under section 54F of the Act and that during the care period commencing 4 January 2019, Mr Ahmad and Mrs Ahmad were each likely to have a pattern of care in respect of [Child 1] of 11% and 89% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

Issue 3 - From what date should the administrative assessment be amended to reflect the changes?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care.  The percentage of care applies to each day in a child support period on and from the “application day”.  Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.  The tribunal has revoked the existing determinations with effect from 3 January 2019. Therefore, the tribunal finds that the new determinations apply in respect of [Child 1] from 4 January 2019.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that:

• From 4 January 2019 the level of care attributed to Mr Ahmad and Mrs Ahmad in respect of [Child 1] is 11% and 89% respectively.