Archer and Child Support Registrar (Child support)
[2022] AATA 636
•9 February 2022
Archer and Child Support Registrar (Child support) [2022] AATA 636 (9 February 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/SC022422
APPLICANT: Ms Archer
OTHER PARTIES: Child Support Registrar
TRIBUNAL:Member J Bakas
DECISION DATE: 09 February 2022
DECISION:
The decision under review is varied such that Ms Archer is recorded as providing 0% care to [Child 1] and [Mr A] is recorded as providing 100% care to [Child 1] with effect from 15 October 2020.
In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the tribunal’s decision has effect from the date on which Ms Archer objected to the original care decision, which was 20 July 2021.
Note: the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.
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 effect provisions – decision under review varied and sent back with direction about date of effect
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
Ms Archer and [Mr A] are the parents of [Child 1], in respect of whom a child support is in place.
From 20 March 2015, child support in respect of [Child 1] was calculated on the basis that Ms Archer had 100% care of [Child 1], and [Mr A] 0%. On 4 November 2020, [Mr A] contacted Services Australia – Child Support (the agency) and notified there had been a change to the care arrangements and that he had 100% care of [Child 1].
On 3 February 2021, the agency decided to reflect the care of [Child 1] as 100% to [Mr A] and 0% to Ms Archer from 27 July 2020. Ms Archer sought a review of that decision on 20 July 2021. On 15 September 2021 the objection was disallowed.
Ms Archer sought a review in the tribunal on 28 September 2021.
[Mr A] was invited by the tribunal to be added as a party to this matter but he declined to do so. As such the hearing proceeded with Ms Archer only.
The matter was heard on 1 February 2022 and Ms Archer participated by MS Teams audio and gave oral evidence to the tribunal on affirmation.
ISSUES
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).
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 Ms Archer and [Mr A] 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
The legislative scheme requires a new care percentage determination to be made following notification to the agency of a change of care arrangements. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.
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 original decision. It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the agency 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 agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the agency so that a new primary care percentage decision can be considered, and made if appropriate, as has occurred in this case.
The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. 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). The agency’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.
Issue one – Should the existing determination of percentage of care be revoked?
The provisions in Division 4 of Part 5 of the Act require the agency (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.
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.
Subsection 54F(1) of the Act provides in relevant part, that where section 54G is not applicable, the Registrar (or the tribunal in the shoes of the Registrar) is satisfied that the level of care no longer corresponds to the existing registered care and that the changed care 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, then the current care decision must be revoked. The four conditions set out in subsection 54F(1) are not mutually exclusive and must all be met in order for a decision to be made to revoke the existing care arrangement. In addition, to revoke under section 54F, section 51 must not apply (pursuant to subsection 54F(2)). Section 51 only applies if there was a care arrangement in place.
In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for Ms Archer and [Mr A] of percentages of care for [Child 1] registered with the agency, being 100% and 0% respectively, made in accordance with section 50 of the Act.
The tribunal is satisfied that section 54G does not apply as [Mr A] was not previously determined to have at least regular care (14 to 35%) of [Child 1].
The agency records indicate that [Mr A] contacted them on 4 November 2020 to notify of a change in the level of care provided to [Child 1]. He stated he had returned from living overseas about mid-October 2019 and that [Child 1] had been living with his mother for the previous three months from August 2020 and then spent two weeks with Ms Archer and has then been living with him in his 100% care from about two weeks ago.
18.As noted earlier in these Reasons for Decision, the tribunal must have regard to the actual or likely pattern of care at the point in time of the original decision which in this case is 3 February 2021.
19.The tribunal discussed the care of [Child 1] with Ms Archer.
20.Ms Archer’s evidence at the hearing included the following:
·She was the one that contacted the agency stating 50% care from that date to her and the other 50% care to [Mr A]’s mother.
·[Child 1] had finished school early and was spending quite a bit of time with [Mr A]’s mother.
·[Mr A] did not actually arrive back in Australia until about late October to early November 2020. When he arrived he also had to quarantine for two weeks.
·There was no court-ordered care as [Mr A] was always able to see his children when he wished. They had a private agreement regarding payment for care. However, she had 100% care of their children as [Mr A] moved overseas for a number of years.
·[Child 1] left her care to stay with his father in January 2021.
·Even though she did not agree with the original decision made by the agency, she did not object until 20 July 2021 when she had a family tax benefit debt of about $7,000 raised against her and during the period affected by the original decision, she had care of her son as well as her daughter. She was not as concerned about the reduction in child support. This is also why she had not provided evidence to the agency.
·She asked the agency to check [Mr A]’s passport because then they would see he was not in Australia at the time he is claiming he had care of [Child 1] but they never did.
·[Mr A] had 100% care of [Child 1] from the second week of January 2021 until 29 May 2021 at which time [Child 1] showed up at her place because [Mr A] had kicked him out.
·Even when [Child 1] was spending time at her place and at his grandmother’s place, she was still paying for his groceries and telephone and other general expenses of his.
·She is happy to have her care reduced to 50% from about October 2020 to January 2021.
21.The hearing papers contain details of conversation and interactions the agency had with both [Mr A] and Ms Archer. The documents indicate the following:
·[Mr A] reports he returned to live in Australia from overseas in the beginning of October 2020 and that [Child 1] had been living with his mother since August 2020.
·On 4 November 2020 [Mr A] reported that [Child 1] will be living with him from 15 October 2020 and that he will have 100% care from this point.
·On 9 December 2020 [Mr A] reported that [Child 1] has been living with him since he got out of quarantine on 20 October 2020.
·On 1 January 2021 Ms Archer lodged an online care change, stating that from 1 January 2021, her care dropped to 50% and [Mr A]’s was 50%.
·In other conversations with the agency, such as on 6 September 2021, Ms Archer reported that [Mr A] had 100% care of [Child 1] from mid-January 2021 until 29 May 2021 when [Child 1] returned to live with her.
·On 29 May 2021 Ms Archer lodged another online care change, stating that she has 100% care of [Child 1] from 29 May 2021 and the agency made a care decision to implement 100% care to Ms Archer from that date and 0% to [Mr A].
22.The hearing papers also contain a letter from [Ms B], [Mr A]’s mother, dated 11 January 2021 stating that she has had care of [Child 1] since 13 May 2020 and a bank statement of [Mr A]’s showing that he transferred the amount of $8,000 to his mother on 27 July 2020 and $2,000 on 27 August 2020. His conversations with the agency indicate these payments were for care his mother was providing to [Child 1].
23.As [Mr A] chose not to participate in the hearing, the tribunal was not able to ask him questions about the documents contained in the hearing papers. The tribunal finds that a transfer of money to his mother is not conclusive of a finding that [Child 1] was living with her. Also, his mother’s letter stating May 2020 as the start of the care period is contradictory to what [Mr A] had stated to the agency.
24.Ms Archer’s written submissions to the tribunal received on 20 October 2021 and 17 November 2021, state that [Child 1] did spend an increasing amount of time with [Ms B], his grandmother, from late August 2020 when she relocated a few blocks away in [Suburb 1]. During this time [Ms B] paid for [Child 1] to play [sport] and purchased equipment for him to be able to do so. She also purchased a new laptop and other items such as clothes for [Child 1]. When Ms Archer moved to [Suburb 2] in late November 2020, [Child 1] spent more time with [Ms B] but even during this time, Ms Archer would pay for [Child 1]’s day-to-day expenses and also regularly purchase food for him while at [Ms B]’s. Due to this she thought it was only fair to call the agency and reduce her care to 50% even though it was not [Mr A] having care of [Child 1] but his mother.
25.The tribunal also notes that [Child 1] was 15 years of age when [Mr A] first reported a care change on 4 November 2020. As is common with older teenagers, he appears to have been making his own decisions as to with whom and when he would stay with his mother and grandmother. Clearly, his care requirements are very different to that of a young child and he does not need constant supervision or assistance with his daily activities at 15 years of age. The meaning of “provision of care” is not set out in the Act.
26.At 2.2.1 of the Guide it states that in order to determine the extent of care provided by a person, one must consider the following:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
While the tribunal is not bound by policy, in Drake v 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.
In any event, the tribunal notes that these guiding principles are taken from the decision in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959.
The care of an older child was considered in the Federal Court decision Secretary, Department of Social Security v Lowe (1999) 92 FCR 26, where it was noted that in respect of a child being in an adult’s care:
It is wrong to regard these words as requiring the adult’s immediate physical presence at all times over a period of a fortnight, or any other period. After all, most children will be at school for a large part of each year, and a few may board for weeks or months at some institution, such as a hospital, or a boarding school. Children stay at times with relatives. The delegation of daily care involved in such arrangements need not be regarded as denying the enduring role of a caring parent. While a child is at school, or in hospital, or staying with a relative, the child may remain, in a perfectly intelligible sense, “in the ...care” of a parent or parents…
In the tribunal’s view, the provision of care has a different interpretation in respect of older teenagers than when applied to primary school-aged children.
Neither party provided particularly compelling evidence as to the care of [Child 1] from the latter part of 2020. However, on balance the tribunal is satisfied that Ms Archer continued to have 100% care of [Child 1] up to 15 October 2020 as she had overall responsibility for [Child 1] and was making the major decisions in relation to his care. The tribunal finds that from 15 October 2020, [Mr A] had 100% care until a new care arrangement was put in place on 29 May 2021.
32.As such the tribunal is satisfied that the level of care no longer corresponds to the existing registered care with the agency of 100% and 0% to Ms Archer and [Mr A] respectively. Therefore, the tribunal is satisfied that the first requirement under paragraph 54F(1)(a) of the Act is met.
In relation to paragraph 54F(1)(b) 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. 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. Therefore, the issue for the tribunal to consider is if new care percentages are determined under section 50, whether the parents’ cost percentages change.
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 subject of this review, were 100% to Ms Archer and 0% to [Mr A], the cost percentages of each are 100% and 0% respectively. If new determinations were to be made in accordance with the tribunal’s findings above of a pattern of care provided by Ms Archer of 0% and [Mr A] of 100%, the cost percentages would change to 0% for Ms Archer and 100% to [Mr A]. Consequently, the requirement under paragraph 54F(1)(b) of the Act is met.
As detailed above, as [Mr A] was not assessed as having at least regular care, section 54G is not applicable, thereby satisfying the third criterion under paragraph 54F(1)(c) of the Act.
Pursuant to section 54F(1)(d), the tribunal is satisfied because there was no care arrangement in place.
Section 51 of the Act is applicable if a care arrangement (as defined in subsection 3(1) of the A New Tax System (Family Assistance) Act 1999) is in place and not being adhered to. The tribunal is satisfied there was no written care arrangement in this case, although there was a binding financial agreement. Therefore, the final criterion under subsection 54F(1) of the Act is met.
As all of the requirements of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care.
Subsection 54F of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Agency was notified of the care change within 28 days after it occurred. On the evidence before it the tribunal accepts that the change in care occurred from 15 October 2020. As the notification was made on 4 November 2020, less than 28 days after the change in care occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Act.
As the care of [Child 1] attributed to [Mr A] has increased from 0% to 100%, the existing percentage of care is revoked on 14 October 2020, being the day before notification of the change (subparagraph 54F(3)(b) of the Act).
Issue two – Should a new determination of a percentage of care be attributed to Ms Archer and [Mr A] in respect of [Child 1]?
Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Ms Archer and [Mr A] 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 100% care of [Child 1] to [Mr A] and 0% care to [Mr A] should be revoked under section 54F of the Act and that during the care period, Ms Archer and [Mr A] were each likely to have a pattern of care in respect of [Child 1] of 0% to Ms Archer and 100% to [Mr A]. Accordingly, a new care determination is to be made under section 50 of the Act.
Issue three – From what date should the administrative assessment be amended to reflect the change?
For these reasons, the objections officer’s decision will be set aside and, in substitution, Ms Archer will be recorded as providing 0% care with effect from 15 October 2020 and [Mr A] will be recorded as providing 100% care with effect from 15 October 2020.
However, there is a further complication. Section 87AA of the Registration Act relevantly states:
Date of effect of objections relating to care percentage decisions that are allowed
(1)If:
(a)a person lodges …an objection to a care percentage decision; and
(b)the objection is lodged more than 28 days … after notice of the care percentage decision was served; and
(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2)If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
…
(b)… the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
The Agency notified Ms Archer of its original decision via a letter dated 3 February 2021. The tribunal is satisfied from the hearing papers and from Ms Archer’s evidence at hearing that Ms Archer was notified of the decision.
On 20 July 2021, Ms Archer lodged a written objection to the original care decision. The tribunal finds that she first objected to that decision on 20 July 2021. It follows that my decision, which will apply in substitution of the objections officer’s decision, will have effect from 20 July 2021: subsection 87AA(1) of the Registration Act. The Agency will then need to make an original decision as to whether to make a subsection 87AA(2) determination. If either parent disagrees with that decision, they will have further review rights. Importantly, the tribunal cannot make that original decision in the current review proceedings. It is clear that an objections officer’s care decision and an objections officer’s section 87AA decision (if one is made) are separate decisions with separate review rights: sections 80 and 80A and items 2 and 3 of section 89 of the Registration Act.
The tribunal also notes that the hearing papers show the agency made a care decision to implement 100% care to Ms Archer again from 29 May 2021.
DECISION
The decision under review is varied such that Ms Archer is recorded as providing 0% care to [Child 1] and [Mr A] is recorded as providing 100% care to [Child 1] with effect from 15 October 2020.
In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the tribunal’s decision has effect from the date on which Ms Archer objected to the original care decision, which was 20 July 2021.
Note: the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988.
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