Anderson and Anderson (Child support)

[2024] AATA 787

Anderson and Anderson (Child support) [2024] AATA 787 (5 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026962

APPLICANT:  Mr Anderson

OTHER PARTIES:  Child Support Registrar

Mrs Anderson

TRIBUNAL:Member M King

DECISION DATE:  5 March 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the following care percentages should be recorded in relation to the children [Child 1], [Child 2] and [Child 3]:

·From 2 August 2022, Mrs Anderson 79% and Mr Anderson 21%;

·From 6 February 2023, Mrs Anderson 43% and Mr Anderson 57%; and

·From 4 September 2023, Mrs Anderson 50% and Mr Anderson 50%.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – 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 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. As relevant to this application, Mr Anderson and Mrs Anderson are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2014), [Child 2] (born 2017) and [Child 3] (born 2021).

2. On 17 August 2022, Child Support decided to record Mrs Anderson as having 79% care of the children, and Mr Anderson 21% care of the children, from 17 May 2022, with effect from the start date of the child support assessment on 2 August 2022.

3. On 24 July 2023, Mr Anderson objected to that decision.

4. On 25 October 2023, a Child Support objections officer partly allowed the objection and decided that Mrs Anderson should be recorded as having 65% care of the children, and Mr Anderson 35% care of the children, from 30 July 2022, with effect from 24 July 2023.

1. On 26 October 2023, Mr Anderson lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 9 February 2024. Mr Anderson and Mrs Anderson attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to allow Mr Anderson and Mrs Anderson to provide the Tribunal with any further evidence they wished to have considered.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Anderson and Mrs Anderson, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 132) and additional evidence provided by Mrs Anderson (Exhibit B, pages 1 to 5).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the more recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision, and the Tribunal adopts that approach.

3. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

1. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.

2. The term pattern of care is not defined in the legislation. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentages of care determination and the requirements of the legislation are satisfied for new percentages of care determinations to be made.

3. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

4. The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

5. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘has had’ or ‘is likely to have’ relative to the care period for which the decision is being made.

6. At the hearing, both parents agreed that the pattern of care for the children had been 57% care for Mr Anderson and 43% care for Mrs Anderson from 6 February 2023 and 50% care for each parent from 4 September 2023. That is consistent with what Mrs Anderson is recorded as advising Child Support in a phone call on 28 September 2023.

7. The parents do not agree on the pattern of care for the children from 2 August 2022, when the child support assessment started, until 5 February 2023.

8. Mr Anderson submitted that the care should be recorded as being 50% for each parent from 2 August 2022. Mrs Anderson submitted that the current care percentages of 65% for her and 35% for Mr Anderson were accurate.

9. Mrs Anderson said at that time Mr Anderson cared for the children every Wednesday and every second weekend. She said she was on maternity leave at that time after giving birth to [Child 3]. Mr Anderson was working. She said those arrangements changed when she returned to work in February 2023.

10. Mrs Anderson provided the Tribunal with a copy of a letter from her employer, dated 9 February 2024, which states that Mrs Anderson took extended maternity leave and returned to work on 30 January 2023. The letter further states that Mrs Anderson was originally due back at work in September 2022 but she had to extend her leave due to her family circumstances and having no child care for her youngest child.

11. Mrs Anderson also provided a copy of a letter from a friend, [Ms A], dated 13 February 2024, which states that Mrs Anderson had care of the children for 11 nights per fortnight until she returned to work. A letter from another friend, [Ms B], dated 12 February 2024, states that Mrs Anderson was the primary carer of the children until the end of January 2023.

12. A letter from [Child 2]’s kindergarten teacher during 2022, dated 12 February 2024, states that [Child 2] attended five days per fortnight, being Mondays, Tuesdays and alternate Wednesdays. The letter states that Mrs Anderson would drop [Child 2] off in the mornings and pick him up in the afternoons.

13. Mr Anderson said he was still living in the family home with Mrs Anderson until August 2022. He referred to a statutory declaration sworn by [Mr C], who was his neighbour after he moved out of the family home. In that statement, [Mr C] stated that Mr Anderson moved in as his neighbour on 30 July 2022 and from that time Mr Anderson had care of the children every Sunday, Tuesday and Wednesday and every second Friday and Saturday.

14. The hearing papers record that Mr Anderson spoke with Child Support on 17 August 2022, after Mrs Anderson had applied for a child support assessment. Mrs Anderson had advised Child Support that she had 79% care of the children, and Mr Anderson had 21% care of the children. There is no record that Mr Anderson disputed those care percentages at that time.

15. Letters were subsequently sent to both parents on 17 August 2022 to confirm that a child support assessment had been made with Mrs Anderson recorded as having 79% care of the children, and Mr Anderson recorded as having 29% care of the children.

16. There is no record of Mr Anderson disputing those care percentages until he contacted Child Support on 20 July 2023 and advised that each parent had 50% care of the children.

17. On balance, the Tribunal prefers the evidence of Mrs Anderson as to the pattern of care for the children from 2 August 2022. The Tribunal notes that the evidence provided in [Mr C]’s statement as to the days Mr Anderson had care of the children is inconsistent with the evidence provided by [Child 2]’s kindergarten teacher as to the days Mrs Anderson dropped off and picked up [Child 2] from kindergarten.

18. The Tribunal finds that, from 2 August 2022, Mrs Anderson should be recorded as having 79% care of the children, and Mr Anderson should be recorded as having 21% care of the children. That is what was recorded when the child support assessment commenced and was not disputed for almost 12 months.

19. The Tribunal therefore finds that the following care percentages should be recorded in relation to the children:

    ·From 2 August 2022, Mrs Anderson 79% and Mr Anderson 21%;

    ·From 6 February 2023, Mrs Anderson 43% and Mr Anderson 57%; and

    ·From 4 September 2023, Mrs Anderson 50% and Mr Anderson 50%.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the following care percentages should be recorded in relation to the children [Child 1], [Child 2] and [Child 3]:

·From 2 August 2022, Mrs Anderson 79% and Mr Anderson 21%;

·From 6 February 2023, Mrs Anderson 43% and Mr Anderson 57%; and

·From 4 September 2023, Mrs Anderson 50% and Mr Anderson 50%.