Anstey and Kirk (Child support)

[2022] AATA 4093

Anstey and Kirk (Child support) [2022] AATA 4093 (30 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024288

APPLICANT:  Mr Anstey

OTHER PARTIES:  Ms Kirk

Child Support Registrar

TRIBUNAL:  Member J Nalpantidis    

DECISION DATE:  30 September 2022

DECISION:

The tribunal sets aside the decision under review made by the objections officer on 29 June 2022 and, in substitution, decides that a care percentage of 40% for Ms Kirk and a care percentage of 60% for Mr Anstey, applies to the administrative assessment of child support for the child with effect from 24 January 2022, reported on 17 March 2022.

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 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 Anstey and Ms Kirk are the parents of [Child 1] (the child), born April 2017. This review is about the percentages of care for Mr Anstey and Ms Kirk that apply in relation to the administrative assessment of child support for the child.

2. A child support assessment has been in place between Mr Anstey and Ms Kirk since 22 August 2017. Mr Anstey was assessed to pay child support to Ms Kirk for the support of the child.  Services Australia – Child Support (the Agency) had recorded the pre-existing care for the child as 239 nights (66%) to Mr Anstey and 126 nights (34%) to Ms Kirk from 23 May 2020.  

3. On 17 March 2022 Ms Kirk advised the Agency that there was a change in the child’s care from 24 January 2022, and the care of the child should be reflected as 190 nights’ (53%) care to Ms Kirk and 175 nights’ (47%) care to Mr Anstey.

4. On 23 March 2022 Mr Anstey disputed the information provided by Ms Kirk and advised the Agency that Ms Kirk’s care should be reflected as 130 nights (35%) and not 190 nights and stated the court orders are not followed by the parents.  On 23 March 2022, we contacted Mr Anstey to discuss the change in care reported by Ms Kirk.

5. On 20 May 2022, the Agency decided to reflect the care of the child as 201 nights (56%) to Mr Anstey and 164 nights (44%) to Ms Kirk from 24 January 2022, as notified by Ms Kirk on 17 March 2022.

6. On 27 May 2022, Mr Anstey lodged an objection to this care decision, stating his care of the child should read as 220 nights (61%). Mr Anstey stated there is a court order in place, but neither parent is following the court orders.

7. On 31 May 2022, the Agency contacted Ms Kirk who provided a verbal response to Mr Anstey’s objection, stating both parents have been strict on court orders, and her care of the child is pursuant to the court orders.

8. On 8 June 2022, Mr Anstey provided a copy of the court order dated 3 November 2021 (front page only/incomplete), a statement, a copy of text messages between parents. This information was provided to Ms Kirk for response.

9. On 14 June 2022, the Agency contacted Ms Kirk who re-confirmed both parents are following the court orders, and that her care of the child is five nights per fortnight and four weeks during Christmas holidays and during Ester holidays she gets extra nights but was unable to specify how much extra time.

10.On 16 June 2022, Mr Anstey advised the number of nights during school holidays are not accurate and wanted this to be included, and the child has been in his full-time care from 24 August 2021 to 21 January 2022.

11.On 29 June 2022 an Agency objections officer disallowed the objection.  The objections officer stated:

We also have given both parents the opportunity to provide evidence to substantiate their levels of care.  Upon objection, we have received evidence from Mr Anstey, evidence presented from Mr Anstey was inconclusive to the extent that we are unable to determine what care percentage each parent or carer is likely to have over the relevant care period from 24 January 2022.

We have reviewed the verbal statements from both parents during the objection process.  Information provided shows that a different care percentage would be calculated, and there is agreement to a certain point on what the new care arrangements will be, then we will use that ‘point of agreement’ to determine the new care percentage.

During the decision review process, we also have not been able to identify a point of agreement as both parents’ statements contradict to each other.

Based on the information/evidence in hand, we need to assume that the situation known at the time the existing care determination was made is continuing.

In light of this, the existing care determination will not be revoked, and the child support assessment will not be amended. 

On review, we make the decision to reflect the care of [Child 1] as 201 nights (56%) to Mr Anstey and 164 nights (44%) to Ms Kirk from 24 January 2022, as notified on 17 March 2022.

1. On 20 July 2022 Mr Anstey applied to this tribunal for review of the objection decision on 29 June 2022.

2. The tribunal is satisfied that Mr Anstey and Ms Kirk were given appropriate notice of the time and place of the hearing, which was listed to be held on Friday 30 September 2022 at 2.00 pm (EST), and which was to be conducted by Mr Anstey and Ms Kirk participating by telephone via MS Teams audio.

3. On 30 September 2022, the tribunal commenced the hearing at the scheduled time. Mr Anstey participated at the hearing by Microsoft Teams audio and gave oral evidence on affirmation and made oral submissions at the hearing. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 184 which had been copied to Mr Anstey and Ms Kirk before the hearing.

4. The tribunal contacted Ms Kirk on the (mobile) telephone number she provided to the tribunal.  Ms Kirk did not respond to the tribunal’s call.  The tribunal advised Ms Kirk of the scheduled hearing by written notice dated 30 August 2022 to her email address.  The notice stated:

   …

   We will call you on [number deleted]. Please be near the telephone and ready to answer.

   .

   …

   What will happen if I do not attend the hearing?

   Contact us immediately if you will be unable to attend the hearing. As cancellation of a hearing at short notice incurs costs for us, you will be asked to provide evidence of your inability to attend the hearing at the fixed time. We will not adjourn the hearing unless we are satisfied that you are prevented from appearing at the hearing.

   Please note that if the applicant fails to attend the hearing, the application for review may be dismissed.  If you fail to attend the hearing, we may direct that you cease to be a party to the review.

   .

5. On 27 September 2022, the tribunal sent Mr Anstey and Ms Kirk SMS reminder messages stating:

Party:: ……@sms.aat subject:: Listing Notification - 2022/BC024288 body:: Reminder: Your AAT hearing is set for 14:00, Friday, 30 September 2022. Please check the hearing invitation to confirm details. If your hearing is by telephone, the AAT will call you. Please answer any unknown or private numbers during the time of the hearing. You must be present for the hearing unless the Member has approved a representative to speak on your behalf. Any questions, re-schedule requests or withdrawal of applications, call 1800 228 333. DO NOT REPLY - automated message..

1. In response to the SMS, Mr Anstey contacted the tribunal on 27 September 2022.

2. On 29 September 2022, the day before the hearing, the tribunal sent a further reminder SMS message on similar terms to the message outlined above.  The tribunal is satisfied Ms Kirk was provided appropriate notification of the scheduled hearing time and place of the hearing, and that it was to be conducted with her by telephone, with the tribunal calling her on her advised telephone number.

3. The tribunal commenced the hearing at the scheduled time and made a number of attempts to contact Ms Kirk on the telephone number she advised, and there was no response.  Ms Kirk did not contact the tribunal prior to, or after the scheduled hearing time, to advise that she would not be available or to make alternative arrangements.  The tribunal decided to proceed with the hearing with Mr Anstey and in Ms Kirk’s absence. 

ISSUES

1. The issues for the tribunal to determine are:

   a)    What were the actual care arrangements in relation to the care of the child in the relevant care period?

   b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. In this case, there were court orders dated 6 May 2021 regarding the care arrangements of the child.  Mr Anstey told the tribunal that it is not correct that Ms Kirk has 164 nights care per year, and he cannot understand how this calculation was made.  He submitted that her care is for 149 nights per year as provided for by the court orders.  The court orders provide that the child is in Ms Kirk’s care from Thursday to Saturday (2 nights) on one week and Thursday to Sunday (3 nights) in the second week; this is 100 nights’ care over the year (5 nights multiplied by 20 fortnights, excluding the 12 weeks of school holiday periods).  During the holiday period Ms Kirk has care of the child for seven nights during each of the Easter, June, and September school holidays (21 days).  Ms Kirk had care of the child for four out of the six weeks of the summer holidays (28 nights).   Ms Kirk therefore had care for 149 nights over the year, pursuant to the court orders (100 nights plus 21 nights plus 28 nights). 

5. Mr Anstey noted according to the Agency’s records, when she contacted the Agency on 17 March 2022, Ms Kirk acknowledged that a court order was in place and the care arrangements were in line with the court order.  It appears Ms Kirk may have provided a copy of the court order to the Agency.  In this contact with the Agency, Ms Kirk advised she had 190 nights care and the Agency record lists the various dates.  Mr Anstey disputed the claim of 190 nights care by Ms Kirk and was unable to explain how she reached this calculation.  He submitted the court order provides for Ms Kirk to have 149 nights’ care, as outlined in paragraph 24, and there were many times when she missed having some nights of care particularly on Friday nights when she missed picking up the child from school. 

6. Mr Anstey told the tribunal that recently the child told him that he was being hurt by Ms Kirk’s boyfriend, and Mr Anstey withheld the child from Ms Kirk.  The child is now in his sole care, and he has spoken to the police and child protection who are investigating the matter.

7. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

8. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

9. In this case, there is no contention by the parties that nights were an unsuitable measure of the care of the child and the tribunal finds that nights are an appropriate method of ascertaining the actual care in this case.

10. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

    [1] Paragraph 50(1)(a) of the Assessment Act

The tribunal’s consideration

1. The Agency material shows that Ms Kirk notified of a change in care on 17 March 2022 and acknowledged the care was in line with court orders dated 6 May 2021.  Mr Anstey acknowledged the court orders of 6 May 2021 and accepted a pattern of care between the parents reflected the court orders.  The tribunal has found the court orders of 6 May 2021 provide that Ms Kirk has care of the child for five nights a fortnight for periods outside of school holidays, half the Easter, June and September school holidays, and four weeks out of six weeks in the summer holidays. 

2. On the available evidence, the tribunal finds the court orders of 6 May 2021 reflect the actual pattern of care for the child, which in this case is 40% (149 nights) care to Ms Kirk and 60% (216 nights) care to Mr Anstey.

3. A new percentage of care can be determined whenever the care of a child has changed (sections 54F, 54FA, 54G, 54H and 54HA of the Assessment Act). Effect to future expected care changes cannot occur until either of the parents advise the Registrar that the anticipated change has actually occurred. If neither parent advises the Registrar when the care subsequently changes, a new care percentage determination will not be made. The child support assessment will continue to be based upon the existing care percentage until one or both parents advise the Registrar that the actual care has changed, and the Registrar is able to make a new care percentage determination.

4. The Registrar can only give effect to a new care percentage determination after revoking the existing care percentage determination (subparagraphs 49(1)(b)(i) and 50(1)(b)(i)) of the Assessment Act). The new care percentage determination takes effect the day after the existing determination is revoked. There are several circumstances in which the existing determination can be revoked:

   ·     where a new care percentage determination would affect the cost percentage (section 54F),

   ·     where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other party (section 54G), and

   ·     where a new care percentage determination, if it was to be made, would affect the care percentage (but not the cost percentage) (section 54H).

5. In order to make a decision to change the percentage of care for a child, the tribunal must firstly be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Assessment Act). The tribunal is satisfied that there had been a change in the pattern of care for the child in this period.

6. The tribunal is satisfied that the evidence established that the requirements for the revocation of the existing percentages of care under section 54F of the Assessment Act are met. Therefore, the existing care arrangement that was in place when Ms Kirk contacted the Agency on 17 March 2022 and the pre-existing care percentage, in place at that time, being 126 nights (34%) to Ms Kirk and 239 nights (66%) to Mr Anstey is to be revoked.

7. When considering whether to make a new care determination, consideration must be given as to whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the event that is relevant to the change must be identified. The event is used to determine the commencement of the care period. It must then be determined the percentage of care that is likely to occur in the care period.  In this case Ms Kirk notified the Agency (on 17 March 2022) that there had been a change in care from 24 January 2022. 

8. The existing determinations of Mr Anstey’s and Ms Kirk’s percentages of care for the child when the Registrar was notified of the change in care on 17 March 2022 were 66% for Mr Anstey and 34% for Ms Kirk.

9. The tribunal has found that court orders are in place dated 6 May 2021 and the care of the child is in line with those court orders, which essentially provide Ms Kirk has care of the child for five nights a fortnight during school term and half the Easter, June, and September school holidays, and for four weeks of the summer holidays.  The tribunal has assessed Ms Kirk’s pattern of care of the child under the court orders as 149 nights which applies to the relevant 12-month care period from 24 January 2022, as notified on 17 March 2022.  The tribunal has therefore found that from 24 January 2022 Ms Kirk provides 149 nights’ (40%) care for the child and Mr Anstey provides 216 nights’ (60%) care.  This results in a change to the pre-existing care record and does impact the cost percentage for the child.

10. When the Agency is notified of a care change more than 28 days after it has occurred, the decreased care percentage is applied from the date the care changed and the increased care percentage from the date of notification. This means that Ms Kirk’s new care percentage of 40% applies from 17 March 2022 and Mr Anstey’s new care percentage of 60% applies from 24 January 2022.

DECISION

The tribunal sets aside the decision under review made by the objections officer on 29 June 2022 and, in substitution, decides that a care percentage of 40% for Ms Kirk and a care percentage of 60% for Mr Anstey, applies to the administrative assessment of child support for the child with effect from 24 January 2022, reported on 17 March 2022.