Beanland and McGann (Child Support)

[2023] AATA 4458

Beanland and McGann (Child Support) [2023] AATA 4458 (7 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026131

APPLICANT:  Mr Beanland

OTHER PARTIES:  Child Support Registrar

Ms McGann

TRIBUNAL:Member J Prentice

DECISION DATE:  7 December 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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. As relevant to this application, Mr Beanland and Ms McGann are parties to a child support case registered with Services Australia – Child Support (Child Support) from 18 April 2017 in relation to financial support to be provided for [Child 1] (born February 2005) (the child). The application concerns a single decision of Child Support about the recorded care for the child utilised in calculation of the child support liability.

2. From 18 April 2017 the pre-existing percentages of care applying in the child support case for the child were 33% to Beanland and 67% to Ms McGann.

3. On 13 January 2023, Beanland contacted Child Support and advised a change to the care position of the child from 15 November 2022 stating that [Child 1] was in his 100% care.

4. On 27 February 2023, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 100% to Beanland and 0% to Ms McGann from 15 November 2022.  Notably, as Beanland notified the change of care on 13 January 2023, more than 28 days after the change of care was found to have occurred on 15 November 2022, the recorded increased percentage of care determination from 33% to 100% to Beanland applied from 13 January 2023 (the date of notification). However, the recorded decreased percentage of care determination from 67% to 0% to Ms McGann applied from 15 November 2022 (the date of the care change).

5. On 13 March 2023, Ms McGann objected to this decision and, on 12 May 2023, a Child Support objections officer allowed the objection and decided that there was no change to the likely pattern of actual care such that the recorded percentage of care determinations for the child remained at 33% to Beanland and 67% to Ms McGann.

6. On 18 May 2023, Beanland lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking an independent review of Child Support’s decision stating:

   The decision has gone back to the original arrangement times which is incorrect.  My son [Child 1] has reconciled with his mother but has and still does spend more time staying at my home than at his mothers.

   During the period in dispute he spent at least 70% to 80% of his time with me even allowing for time as set out in court orders.

1. The hearing of the application was held on 29 September 2023.  Beanland and Ms McGann both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Beanland and Ms McGann and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 156) and documents provided by Ms McGann prior to hearing (marked Exhibit B, pages B1 to B23).   Subsequent to the hearing Beanland submitted a care diary for the period 15 November 2022 to the end of February 2023. 

3. There are a number of background circumstances of understandable importance to both Beanland and Ms McGann which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

10. 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) Act1988 (the Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  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, whilst 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 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.

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

13.  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 provides 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 of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

14.  Topic 2.1.1 of the Guide recognises that determining the care over a shorter or longer care period may be more appropriate and that the specific circumstances of each case will be considered to determine the appropriate care period.

15.  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.

16.  Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.1.1 of the Guide contains the following guidance in this regard:

Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

17. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

18.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

19.  However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

ISSUES

20.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Beanland and Ms McGann to be revoked? And, if so,

(b)What are the new percentage of care determinations for Beanland and Ms McGann? And,

(c)What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

21.  Exhibit 1 records the following relevant conversations between Beanland and Child Support and Ms McGann and Child Support:

(a)On 17 January 2023 Ms McGann told Child Support that [Child 1] was with her.  She advised that the child had spent half the school holidays with Beanland; that the current court ordered care was still in place and no changes had occurred.

(b)On 24 January 2023 Beanland told Child Support that he had 100% care of the child since 15 November 2023 but had stayed at Ms McGann’s on two occasions.

(c)On 24 January 2023 Ms McGann advised Child Support that the child had been living with her on an ongoing basis.  However he did go away on a holiday with Beanland for a couple of weeks.

(d)On 19 April 2023 Ms McGann advised Child Support that both parties were following the care stipulated in the court order which stated the care of 122 nights (33%) to Beanland and the balance to her.  Ms McGann said that both parents make up the care that is missed.

(e)On 19 April 2023 Beanland told Child Support that the child had only been spending time sporadically with Ms McGann (an average of one night a fortnight).

22.  Relevant documentation and evidence provided to Child Support included as follows:

(a)On 2 February 2023 Beanland submitted unsigned and undated third party statements “confirming” that “[Child 1] has been living full-time with Mr Beanland since mid November 2022”.

(b)On 7 February 2023 Ms McGann submitted a third party statement saying that [Child 1] does not see Beanland very often as he is “now working at [Employer 1] and doing work experience”.

(c)Copy of Amended court order dated [in] October 2012.

(d)Ms McGann submitted a statement from a third party who advised that they had stayed at Ms McGann’s home from December 2022 to February 2023 and listed dates in that period when [Child 1] had also stayed at Ms McGann’s home.

(e)On 13 March 2023 Ms McGann provided additional supporting material to Child Support including third party statements and a care diary.

(f)Ms McGann submitted a third party statement which noted that [Child 1] had stayed overnight at Ms McGann’s home on 24 and 25 December 2022.

(g)On 28 April 2023 Beanland provided an unsigned statement from [Brother A] ([Child 1’s] elder brother) stating that [Child 1] “has been residing with our father Mr Beanland since late November to the present”.

1. Beanland’s application to the Tribunal claimed that he had 100% care of [Child 1] from 15 November 2022 until 13 January 2023.  Beanland explained to the Tribunal that he had not notified Child Support of the change in care until 13 January 2023 as he thought things would have been sorted out before then; however, he stated that on 15 November 2022, [Child 1] and Ms McGann had a falling out and [Child 1] had gone to stay with him.  Mr Beanland commented that he understood that as a result of his late notification the date of effect would be from 13 January 2023 and would only be for one month, as [Child 1] turned 18 years of age [in] February 2023.

2. The Tribunal commented that Beanland’s advice about care arrangements was in contradiction to many of the dates provided by Ms McGann in her care diary (pages 54–56 of the hearing papers).  Beanland acknowledged that he had not kept a contemporaneous record but disagreed with some of the dates in Ms McGann’s care diary.  In response to the Tribunal, Beanland agreed to provide a care diary of what he considers were the care arrangements for the period 15 November 2022 to end February 2023.

3. Ms McGann informed the Tribunal that she prepared the care diary she had provided to Child Support and it reflected her record of the nights [Child 1] had stayed at her home, however, she did consult [Child 1] with respect to where he was when he was not with her overnight.

4. Both parents acknowledged that teenage boys largely choose when and where they want to stay, regardless of what the court orders propose, which makes it very difficult to establish a pattern of care.

5. Ms McGann advised the Tribunal that care arrangements for [Child 1] had largely continued in line with the court ordered care of 67% to her and 33% to Beanland, however, as [Child 1] finished grade 12 in November 2022, there was an aberration to the normal pattern as holidays had started early with Schoolies Week.

6. The Tribunal considers that the appropriate care period is the three months from 15 November 2022 until 15 February 2023 (the end of the child support assessment period).

7. The Tribunal notes that despite his advice to Child Support on 13 January 2023 that there had been a change in care arrangements and [Child 1] had been 100% in his care from 15 November 2022, the care diary submitted by Beanland after the hearing reflected [Child 1] as not staying with Beanland until 26 November 2022, which agrees with Ms McGann’s record of events.

8. The Tribunal therefore finds that [Child 1] was not in the 100% care of Beanland from 15 November 2022.

9. Ms McGann provided considered and detailed evidence in the form of a care diary with respect to [Child 1’s] activities.

10. Having had regard to all the evidence the Tribunal is satisfied that a change in the care arrangements for [Child 1] did not occur on 15 November 2022.  The Tribunal also finds that Beanland did not have 100% care of [Child 1] from 15 November 2022 to 15 February 2023. 

11. The Tribunal considers that any subsequent changes to the “pattern” of care reflect the ad hoc arrangements of a 17-year-old teenager on holidays and at the end of his schooling; and are not a new pattern of care.

Issue 1: Are the pre-existing percentage of care determinations for Beanland and Ms McGann to be revoked?

1. As already discussed, the Tribunal is satisfied that there is no change to the pre-existing percentage of care determinations of 67% to Ms McGann and 33% to Beanland.

Conclusion

1. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.