Andrews and Northmore (Child support)

[2024] AATA 372

Andrews and Northmore (Child support) [2024] AATA 372 (30 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026718

APPLICANT:  Mr Andrews

OTHER PARTIES:  Child Support Registrar

Ms Northmore

TRIBUNAL:Member J Bakas

DECISION DATE:  30 January 2024

DECISION:

The decision under review is set aside and, in substitution, Mr Andrews is recorded as providing 39% care to [Child 1] with effect from 13 February 2023 and Ms Northmore is recorded as providing 61% care to [Child 1] with effect from 25 November 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – delay in written notice of objection decision to parties – s 95N subsequently not applicable - 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. Mr Andrews and Ms Northmore are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. From 12 March 2021, child support in respect of [Child 1] was calculated on the basis that Ms Northmore had 72% care of [Child 1], and Mr Andrews 28%. This was based on an objections officer’s decision dated 25 November 2022.

3. On 13 February 2023, Mr Andrews contacted Services Australia – Child Support (Child Support) and notified there had been a change to the care arrangements and that he had 40% care of [Child 1] and Ms Northmore had 60% from 23 December 2022.

1. On 26 March 2023, Child Support decided to not accept the care change had taken place. Mr Andrews sought a review of that decision on 27 March 2023. On 3 July 2023 Child Support partly allowed the objection deciding to change the care for [Child 1] to 34% to Mr Andrews and 66% to Ms Northmore from 25 November 2022.

2. Mr Andrews sought a review with the Tribunal on 5 September 2023.

3. The matter was heard on 16 January 2024 and both Mr Andrews and Ms Northmore participated by conference telephone. Both parties gave oral evidence to the Tribunal on affirmation. At hearing both parties confirmed receipt of documents provided by Child Support numbered 1 to 111.

4. The Tribunal deferred making its decision to provide the parties with an opportunity to submit further care details. Upon receipt of the extra documents, the Tribunal proceeded to make its decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are:

   ·      Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

   ·      Should a new determination of a percentage of care be attributed to Mr Andrews and Ms Northmore 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 change?

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of Part 5 of the Act. Upon revocation, a new percentage of care determination must be made.

Issue 1 – Should the existing determination of percentage of care be revoked?

1. 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.

2. Section 54G of the Act provides for the revocation of a determination of a percentage of care if (among other requirements) a responsible person was to have at least regular care for a child under a care determination, but the person has had no care or a pattern of care that is less than regular care.

3. If section 54G of the Act does not apply, section 54F of the Act provides another basis on which a care determination may be revoked. It requires revocation if (among other matters): the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

4. If section 54G or 54F of the Act does not apply then section 54H allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.

5. It can be seen, therefore, that in order to revoke an existing care determination under section 54G, 54F or 54H of the Act, a new pattern of care must be cogently identifiable in order to compare it with the existing percentage of care.

6. The term “pattern of care” is not defined in the legislation. It involves a consideration of actual care that is taking place, and the assessment of care is conducted over the care period. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Australian government policy in this regard, as set out in section 2.2.1 of the Child Support Guide (the Guide) which may be followed by Child Support, 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.

7. Mr Andrews’s evidence and submissions at the hearing included the following:

   ·      He did not receive the decision until 12 September 2023.

   ·      The care of [Child 1] is 50/50 and they change over on Friday. However, as [Child 1] is a teenager they have decided to allow him to decide where he wants to stay. He does stay with Ms Northmore more often as he has a brother there and it is closer to his school.

   ·      He does not understand why the original decision considered care from November 2022 when he had notified Child Support there had been a change of care from 23 December 2022.

   ·      In addition, in the period considered by Child Support there was only a dispute of one night which does not equate to 34% care to him.

   ·      He and Ms Northmore have another son who turned 18 in April 2023 and although he is a full time student, Mr Andrews let that lapse rather than pursuing child support until the end of the school year as he had thought with the 50/50 care for [Child 1], there should not be any child support payable by either party. This son has been staying with Mr Andrews about 90% of the time since August 2023.

   ·      However, due to the decision made regarding the change of care for [Child 1], he is paying about $300 a month in child support.

8. Ms Northmore’s evidence and submissions at the hearing included the following:

   ·      Care is probably 63% to her at the moment and it increases to 65–70% at other times.

   ·      Care has not been 50/50 since COVID-19.

   ·      She agrees that [Child 1] can stay with whichever one of them he likes.

9. Following the hearing the Tribunal sought care calendars from both parties for the mid-‍February 2023 to mid-June 2023 period to assist in establishing whether there was a pattern of care.

10. It is clear from all of the evidence that the agreement of 50/50 care is not occurring. There is a discrepancy of about 7 nights that causes Mr Andrews’s percentage of care to shift somewhere between 35.83% and 41.67%. Nevertheless the Tribunal was satisfied there is a pattern of care.

11. The Tribunal considered holding a second hearing to discuss the nights that appear to be in dispute but ultimately decided it is futile to examine to the point of coming up with an exact percentage because the care can change again according to the whim of the child.

12. Having considered all the evidence before it, the Tribunal thinks it is reasonable to apply a percentage of care of 39% to Mr Andrews and 61% to Ms Northmore (which is the midpoint of the discrepancy).

13. The Tribunal is satisfied, based on the evidence of Ms Northmore provided to Child Support as set out in the objection decision on page 75 of the hearing papers, that the level of care no longer corresponds to the existing care determination of Ms Northmore having 72% care of [Child 1], and Mr Andrews 28% from 25 November 2022.

14. 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 percentage of care determinations prior to the change that is the subject of this review, being 28% to Mr Andrews and 72% to Ms Northmore, the cost percentages of each are 24% and 76% respectively. If new determinations were to be made in accordance with the Tribunal’s findings above of a pattern of care provided by Mr Andrews and Ms Northmore of 39% to Mr Andrews and 61% to Ms Northmore, this would result in a cost percentage of 33% to Mr Andrews and 67% to Ms Northmore.

15. The Tribunal is satisfied that the percentage reflecting the actual care, as found by the Tribunal, would affect the cost percentage.

16. The requirements for revoking the existing percentage of care in accordance with section 54F of the Act are satisfied and the Tribunal therefore revokes that existing care percentage determination.

17. The Tribunal finds that Mr Andrews notified Child Support on 13 February 2023 that the care change occurred from 23 December 2022, and the objections officer decided to backdate the change to 25 November 2022 for Ms Northmore and 13 February 2023 for Mr Andrews as the notification was not within 28 days after the change occurred, which the Tribunal agrees with. Therefore, according to paragraph 54F(3)(b) of the Act, the Tribunal revokes the existing determination of percentage of care from 24 November 2022 for Ms Northmore and 12 February 2023 for Mr Andrews.

Issue 2 – Should a new determination of a percentage of care be attributed to Mr Andrews and Ms Northmore in respect of [Child 1]?

1. Having revoked the existing determinations, the Tribunal must make new determinations of the percentages of care attributed to Mr Andrews and Ms Northmore in respect of [Child 1]. As no care agreement is in place, the Tribunal considered section 50 to be the relevant section of the Act. 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 28% care of [Child 1] to Mr Andrews and 72% care to Ms Northmore should be revoked under section 54F of the Act and that during the care period, Mr Andrews and Ms Northmore were each likely to have a pattern of care in respect of [Child 1] of 39% and 61% 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 change?

1. For these reasons the objections officer’s decision will be set aside. However there is a further complication. The Tribunal must next consider the date of effect of its decision. If an application to this Tribunal in respect of a care percentage decision is not lodged within 28 days of notice of the objection decision, and the Tribunal decides to either vary the objection decision or make a new decision, the effective date is the date on which the application for review was made (subsection 95N(1) of the Registration Act). The objection decision under review was dated 3 July 2023. Mr Andrews lodged his application to this Tribunal on 5 September 2023. Ordinarily, this would be the date of effect of the Tribunal’s decision.

2. However, in this case, the Tribunal finds that although the objections officer’s decision was made on 3 July 2023, written notice of the decision was not given to the parties until 12 September 2023. Mr Andrews lodged his application for review with the Tribunal on 5 September 2023 which he says was after he made contact with Child Support on 18 August 2023 and was informed of the objection outcome over the telephone.

3. As he lodged his application to this Tribunal within 28 days of being given notice of the decision, section 95N of the Registration Act does not need to be considered.

4. As such, the objections officer’s decision will be set aside and, in substitution, Mr Andrews will be recorded as providing 39% care with effect from 13 February 2023 and Ms Northmore will be recorded as providing 61% care with effect from 25 November 2022.

DECISION

The decision under review is set aside and, in substitution, Mr Andrews is recorded as providing 39% care to [Child 1] with effect from 13 February 2023 and Ms Northmore is recorded as providing 61% care to [Child 1] with effect from 25 November 2022.