Bancroft and Bancroft (Child support)

[2020] AATA 4283

Bancroft and Bancroft (Child support) [2020] AATA 4283 (11 August 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019176

APPLICANT:  Mr Bancroft

OTHER PARTIES:  Mrs Bancroft

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  11 August 2020

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of the care change – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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. This application relates to a decision by the Department of Human Services – Child Support (the Department) relating to the particulars of assessment, being the care percentages of each parent, in the child support case for their children [named].

2. An administrative assessment of child support was in place for the children, the particulars of which included that Mr Bancroft was recorded as having 21% care of the children and Mrs Bancroft as having 79% care of the children from 23 November 2015.

3. On 22 January 2020 Mrs Bancroft contacted the Department to advise that she had had 100% care of both children from 10 November 2019.

4. On 31 January 2020 a case officer of the Department made a decision to revoke the existing determination of care and to make a new care determination that Mr Bancroft had 0% care of the children and Mrs Bancroft had 100% care of the children from 10 November 2019.

5. Mr Bancroft lodged an objection to this decision on 13 February 2020.

6. On 28 May 2020 an objections officer of the Department allowed the objection and made a decision to revoke the existing determination of care and make a new care determination that Mr Bancroft had 3% care of the children and Mrs Bancroft had 97% care of the children from 10 November 2019. 

7. On 2 June 2020 Mr Bancroft made an application to the Administrative Appeals Tribunal for an independent review of the Department’s decision.  The hearing was held on 16 July 2020, on which date Mr Bancroft spoke to the Tribunal by telephone.  Mrs Bancroft elected not to participate in the hearing and provided written submissions to the Tribunal.  These were provided to Mr Bancroft and he was given 14 days to comment on the information; Mr Bancroft’s response was sent to Mrs Bancroft for her information.  The Tribunal also had before it documents provided by the Department (1 to 85), copies of which were provided to both of the parties prior to the hearing. 

CONSIDERATION

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

2. The legal issues for the Tribunal in this case relate to the percentages of care maintained by the Department in the child support assessment.  The Tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

   Evidence before the Tribunal

3. Mr Bancroft’s oral submissions to the Tribunal at the hearing were that he accepted that the law had been correctly applied but was seeking that the Tribunal change the law relating to this case.  When it was explained to Mr Bancroft that this was beyond the jurisdiction of the Tribunal, he indicated he was, regardless, seeking that the Tribunal proceed to make a decision in this matter.

4. Mrs Bancroft provided written submissions to the Tribunal, stating that Court Orders had been made [in] December 2015, providing for their children [named] to live with Mrs Bancroft and to spend time with Mr Bancroft three nights per fortnight and half of school holidays and special occasions.  Mrs Bancroft stated in her written submissions that the parties’ other daughter had passed away on 10 November 2019, that [the children] had not spent any overnight care with Mr Bancroft since that date, and that Mr Bancroft had consented to this.  The children had been attending counselling and Mr Bancroft had been involved in this and had consulted with the psychologist.  Mrs Bancroft stated that she had continued to facilitate access between the children and Mr Bancroft and that this contact had increased from 12 hours per fortnight to 22 hours per fortnight, but had not included any overnight time. 

5. A copy of these submissions was sent to Mr Bancroft following the hearing and he was given time to comment on this information. 

6. Mr Bancroft responded that he is wanting to abide by the Court Orders which give him 21% care of the children; that the children had not been allowed to stay at his house after his daughter’s death; that he had requested the Department count the hours of care but they had not done this; and that he and the children are wanting them to stay overnight.  Mr Bancroft submitted that it is unfair that the legislation does not count his ‘current care’ as valid.

7. A copy of these submissions was sent to Mrs Bancroft for her information. 

   Findings of the Tribunal

8. The Tribunal first considered section 54F of the Assessment Act, which allows the Registrar (or the Tribunal, standing in the shoes of the Registrar) to revoke an existing care determination.

9. Subsection 54F(1) of the Assessment Act provides that the Registrar must revoke an existing determination of care in the following circumstances:

   (a)  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 responsible person's existing percentage of care for the child; and

   (b)  the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c)  section 54G does not apply; and

(d)  subsection (2) applies in relation to the individual.

1. Subsection 54F(2) then states that the section applies in relation to a responsible person where:

   (a)  disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)  section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)  all of the following apply:

   (i)  section 51 did apply in relation to the responsible person;

   (ii)  the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;

   (iii)  an interim period does not currently apply in relation to the earlier determination;

(iv)  the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

1. The existing percentage of care in this matter provided for Mrs Bancroft to have 79% care of the children and Mr Bancroft to have 21% care of the children from 23 November 2015.  The Tribunal finds from the documents provided by the Department that the Registrar became aware that the care of [the children] did not correspond with the existing percentage of care on 22 January 2020.

2. The Tribunal must next be satisfied that the cost percentage for the children would change if another percentage of care was determined. The existing percentage of care, from 23 November 2015, provided for a cost percentage for Mrs Bancroft of 76% and for Mr Bancroft of 24% (see: section 55C of the Assessment Act).

3. The Tribunal was satisfied from the consistent information provided by both of the parties that the children had not had any overnight care with Mr Bancroft from 10 November 2019 to the date Mrs Bancroft’s submissions were prepared for the Tribunal.  The Tribunal accepted that Mr Bancroft had been having some daytime care of the children which had more recently increased to 22 hours per fortnight.  The Tribunal finds that, as at 22 January 2020 when Mrs Bancroft contacted the Department about a change to care arrangements, the children had not had overnight care with Mr Bancroft for some two months and that the intention going forward was for them to continue attending counselling and to have some daytime care with Mr Bancroft. 

4. The Tribunal considered Mr Bancroft’s submissions about the hours of care he had had of the children. Subsection 54A of the Assessment Act 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 the Registrar is satisfied that the child was, or is likely to be, in the care of the person during a care period. The Child Support Guide at 2.2.1 provides for Department policy where care is based on hours of care rather than nights of care and states as follows:

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

   Example: Camryn and Capricia have one child Viktor. Camryn works night shifts and so can only provide care for Viktor during the daytime. Camryn cares for Viktor for 45 hours per week while Capricia cares for Viktor every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for Viktor and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for Viktor.

   Example: Albert and Daria have one child, Ahmed. Albert has 98% care of Ahmed and Daria has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, Ahmed stays 7 Saturday nights (from 4pm Saturday to 12 noon on Sunday) with Daria and the rest of the nights with Albert. Daria works night shifts and takes care of Ahmed every weekday from 8am until Albert returns from work at 6pm. This occurs for 40 weeks over 12 months. Daria requests that their care percentage be calculated using hourly care.

   Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

   If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

   Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.

5. The Department has accepted that the hours of care provided by Mr Bancroft should be reflected and the Tribunal accepts that, in the circumstances of this particular case, this approach is appropriate.  The Tribunal accepts the Department’s calculations that from 10 November 2019 Mr Bancroft was having 3% care of the children, taking into account the hours of care he has been providing.  

6. If a new percentage of care was determined, that Mrs Bancroft has had 97% care of the children from 10 November 2019 onwards and Mr Bancroft has had 3% care of the children from 10 November 2019 onwards, the cost percentage for each of the parents would also change to 100% to Mrs Bancroft and 0% to Mr Bancroft.  Paragraph 54F(1)(b) is met.

7. The Tribunal must next consider whether section 54G applies. This section applies where a parent has less than regular care of a child, which is defined in the Assessment Act to be 14% or less. However, in order for section 54G to apply, the Tribunal would need to be satisfied that Mr Bancroft had had less than 14% care of the children despite Mrs Bancroft making the children available to him. The Tribunal is not satisfied that the children were made available to Mr Bancroft. Section 54G therefore does not apply.

8. Finally, the Tribunal must consider whether subsection 54F(2) applies. The Tribunal is satisfied that the circumstances set out in section 51 do not apply, and that there was no interim care arrangement in the circumstances of this case.  Paragraph 54F(1)(d) is also met.

9. As all of the requirements set out in subsection 54F(1) are met, the Tribunal must revoke the existing determination of care and make a new care determination. The Tribunal is satisfied that the new care arrangements form a pattern of ongoing care of the children and that a determination of care is able to be made under section 50 of the Assessment Act, that Mrs Bancroft has had 97% care of the children and Mr Bancroft has had 3% care of the children from 10 November 2019.

10. Subsection 54F(3) of the Assessment Act provides for the date of effect of the change in care and states that:

    (3)  The revocation of the determination takes effect at the end of:

    (a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or

    (b)  if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

    (i)  the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

    (ii)  the responsible person's care of the child has reduced--the day before the change of care day.

11. The change in care occurred on 10 November 2019 and the Department was notified of the change in care on 22 January 2020, which is more than 28 days after the change in care.  In these circumstances, paragraph 54F(3)(b) provides that the existing determination of care for Mrs Bancroft is revoked from 21 January 2020 and from 22 January 2020 Mrs Bancroft is recorded as having 97% care of the children; and the existing determination of care for Mr Bancroft is revoked from 9 November 2019 and from 10 November 2019 Mr Bancroft is recorded as having 3% care of the children.  The Tribunal notes that the Department has given effect to each party’s care determination in line with the Tribunal’s findings (folios 75 and 76) and for this reason the Tribunal finds that the decision is legally correct and this decision is affirmed. 

DECISION

The Tribunal affirms the decision under review.