Bignot and Bignot (Child support)

[2023] AATA 3404

Bignot and Bignot (Child support) [2023] AATA 3404 (29 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025433

APPLICANT:  Ms Bignot

OTHER PARTIES:  Child Support Registrar

Mr Bignot

TRIBUNAL:Member E Kidston

DECISION DATE:  29 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care for the children is 100% to Ms Bignot and 0% to Mr Bignot from 16 June 2015, with effect from the commencement of the registration of the child support case on 3 March 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. This application is about the percentage of care determinations for Ms Bignot and Mr Bignot in respect of their children [Children 1-4] (the children). 

2. On 3 March 2022 Ms Bignot contacted Services Australia – Child Support (Child Support) to register a new child support case concerning care of the children and that she provided 100% care from 1 January 2015.

3. On 15 March 2022, Child Support registered the case and recorded that Ms Bignot had a percentage of care of the children of 100% and Mr Bignot had 0% with effect from the start of liability on 3 March 2022. Mr Bignot is the parent liable to pay child support under the assessment.

4. On 27 October 2022 (more than 28 days from the date of the original decision) Mr Bignot lodged with Child Support an objection.  On 5 January 2023 an objections officer of Child Support allowed the objection, in part.  A determination was made that Ms Bignot had 50% care for the children and Mr Bignot had 50% care for the children from 1 January 2015 with effect from 27 October 2022 for child support purposes as the objections officer did not find special circumstances existed to extend the date of effect.

5. On 17 January 2023, Ms Bignot applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.  The application was heard on 10 July 2023. Ms Bignot and Mr Bignot each spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend, as is customary.

6. In considering the application, the Tribunal took into account the oral evidence of Ms Bignot and Mr Bignot as well as the documentary material provided by Child Support in accordance with subsections 37(1) and 38AA of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1).  A couple of days prior to the hearing Ms Bignot provided documents to the Tribunal that she wished to rely on for her application.  For procedural fairness the Tribunal considered the material relevant for review and accepted the documents provided by Ms Bignot (marked Exhibits A1 to A109) and those documents were exchanged with Mr Bignot and he was afforded time to peruse them and provide a written response.  Mr Bignot provided written submissions and additional documents to the Tribunal which were accepted (marked Exhibits B1 to B6) and exchanged with all parties.  Ms Bignot responded to Mr Bignot’s evidence (Exhibits A110 to A115).

RELEVANT LEGISLATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). This legislation sets out the rules for the Child Support Registrar for making and revoking care percentage determinations which are then used as part of the child support formula to assess child support payment rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.

3. Section 54A of the Assessment Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

   (1) 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 the care period. …

4. In determining a percentage of care, section 49 of the Assessment Act requires a finding of no pattern of care that must equal 0%, whereas section 50 requires a determination of a percentage that corresponds with the actual care of the children and the decision-maker is satisfied the parent or carer “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

5. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless Child Support is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made. This is further explained in the Guide at 2.2.1.

6. The application of care percentages is determined by Child Support with a point in time reference, and when a new child support case is registered, the care period generally starts from the date a parent first contacts Child Support and the care percentage then attributed to the parents as the likely pattern of care projected for a period going forward.  The legislation does not specify a minimum number of nights in a care period as a level of care which must be attained before care percentages are amended, instead it is the likely care pattern projected from the date of notification. It is not without regard that what is “projected” as the likely pattern of care may not actually eventuate and, when that is the case, a parent is to notify Child Support so that a new care determination may be made from the date of a change.

7. The Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents or carers, and in that event, consideration will be given to the information provided and obtained and whether there is some common expectation about future care. It further states that if the information and evidence provided by the parents or carers cannot be reconciled, the decision-maker will weigh the evidence and information provided by the parents or carers about past care to determine the pattern of care likely to occur from the relevant date.

8. It is important to note that the care percentage set by Child Support is not a warranty of perfection and is not intended to account for every single day, but a likely pattern going forward.  Further, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to Child Support of such changes, and Child Support then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

CONSIDERATION

1. The issue for the Tribunal to determine in this case is what percentages of care for the children should be used in the administrative assessment of child support from the commencement of the child support case.

2. As noted above, a determination of a percentage of care for a child is made under sections 49 and 50 of the Assessment Act, if the Registrar is satisfied that a person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care.

3. In this case it appears the objections officer on review determined that as Ms Bignot and Mr Bignot were initially separated under one roof from 1 January 2015, they had equal care of the children and, so recorded under section 50 that Ms Bignot’s pattern of care of the children was 51% and Mr Bignot’s pattern of care of the children was 49%, from separation on 1 January 2015 with effect from Mr Bignot’s objection date of 27 October 2022 (as the objections officer decided not to make a determination under section 87AA(2) of Registration and Collection Act).

4. At the hearing Mr Bignot stated that he agrees with Child Support’s objection decision to record a care percentage of 49% to him, as he and Ms Bignot have equally shared parental responsibilities of the children. Ms Bignot disagrees and considers the original decision was the correct or preferable decision however, the start date ought to be from 1 January 2020 and not 1 January 2015.

5. The Tribunal first had regard to the evidence of Ms Bignot and Mr Bignot as to the care arrangements occurring at the relevant time from separation up until Ms Bignot’s contact with Child Support in order to assess the likely pattern of care at that point in time. This evidence included they separated on or about 1 January 2015 and continued to live under the same roof for a short while.  On 16 June 2015 an apprehended domestic violence order was issued on Mr Bignot. By that stage Mr Bignot had moved out into a separate residence.

6. It is not disputed that from mid-2015 Ms Bignot has had primary care of the children however, here is where the evidence from each parent differed.  Ms Bignot informed Child Support that from 2015 the children have been with her every night, but for a period of about one month around November 2021 where the children stayed with Mr Bignot.  She said the children then returned to her care in December 2021 as Mr Bignot was renovating his home and the children did not want to stay with him. 

7. Mr Bignot’s statement to Child Support differed somewhat to Ms Bignot’s statement.  Mr Bignot informed he had some overnight care of the children from about September 2017, which included weekend stays, holidays away, and camping trips however, there was no set pattern.  He asserted that he had sole care of the children in October and November 2021, where [Child 2] stayed for about 3 weeks before returning to Ms Bignot and [the other children] stayed a little longer. Since their return to Ms Bignot, Mr Bignot asserted Ms Bignot has been withholding the children from him.

8. It was common ground that by mid-December 2021, all of the children returned to Ms Bignot’s sole care and have since remained in her sole care.

9. Turning to Mr Bignot’s allegation of care being withheld from him.  As there was no written care agreement or court order in place, the allegation of withholding care has no practical effect under the child support legislative scheme as the care percentage to be recorded by Child Support is to reflect the actual care. This is because although parents may have shared parental responsibility concerning their children, that is not necessarily the same as actual responsibility to meet the needs of the children by providing accommodation, clothing, food, health care, transport, emotional support and supervision thus, the reason for a level of financial support fairly contributed through child support.

10. When an application is made to Child Support to register a new case based on actual care, it requires a finding of either no pattern of care that must equal 0% (section 49 of the Assessment Act) or determining a percentage that corresponds with the actual care that parent “has had, or is likely to have, during the care period” (section 50 of the Assessment Act). Often by the time an application to the Tribunal for review of care is heard, the majority of the care period will be in the past and therefore, the evidence provided to the Tribunal from the parties of care that has occurred since the original determination can prove or disprove the likelihood of a pattern of care that was originally determined from the start of the case.

11. In this matter, the Tribunal considers that the approach taken by the objections officer in making determinations under section 50 that Ms Bignot had 51% and Mr Bignot had 49% care of the children does not reflect the statutory scheme which mandates the application of a percentage of care that represents the actual care and expected likely care for the new case under subsection 50(3).

12. From both Ms Bignot and Mr Bignot’s evidence at the hearing and as detailed in the Exhibits, the Tribunal is satisfied that, at the time of Ms Bignot’s request to register on 3 March 2022, she had sole care of the children and it was expected that Ms Bignot would continue to have sole care of the children until matters were resolved between them in formalising a care arrangement. The Tribunal has also taken into account the evidence of what care has transpired since 3 March 2022 which includes evidence not before Child Support at the time of their reviews (see Child Support Registrar v DQFY [2023] FCA 601) and confirms Ms Bignot having sole care children in 2022 and continuing in 2023 up to the date of the hearing (folio A108 of Exhibit A).

13. In reaching this conclusion the Tribunal also had regard to the apprehended domestic violence order issued on 16 June 2015 (Exhibit A1), which marked a change in care as from that date Mr Bignot did not reside in the same residence as Ms Bignot and the children and Mr Bignot had no actual care of the children for a period of about two years.  The Tribunal accepts that Mr Bignot did have some care of the children from September 2017, noting that the evidence from both parents affirmed there was no set pattern to when the children were with Mr Bignot and essentially those visits and holidays are properly considered a minor variation to the care pattern that was then occurring, resulting in there being no pattern of care to Mr Bignot.  The Tribunal also considered the period of time Mr Bignot had care of the children for a few weeks in or about November 2021 was unexpected by Mr Bignot and essentially an aberration to the care pattern, which resumed in mid-December 2021 when the children all returned to Ms Bignot’s sole care and this pattern has since continued.

14. For those reasons, the Tribunal finds that a change in care occurred on 16 June 2015 and the pattern of care was for Ms Bignot to have sole care of the children from that date. As noted above, although the Tribunal accepts Mr Bignot did have some care of the children from September 2017 until December 2021, the Tribunal considers it was inconsistent and sporadic such that he had “no pattern of care” in accordance with section 49 of the Assessment Act.

15. Therefore, the Tribunal determines under section 50 that Ms Bignot’s percentage of care of the children was 100% and under section 49 that Mr Bignot’s percentage of care was 0% from 16 June 2015 with effect from the commencement of the child support assessment on 3 March 2022 and continues from that date (paragraph 54B(2)(a) of the Assessment Act).

16. It follows, that as the Tribunal has reached a different percentage to the objections officer, the decision under review will be set aside.

17. The Tribunal considers it appropriate to note that there were a number of background circumstances of understandable importance to both Ms Bignot and Mr Bignot which were raised in evidence which are not relevant to the issue before the Tribunal and therefore not canvassed in these Reasons. As discussed at hearing, the Tribunal is required to consider the issues before it based on the request for a child support case registered in March 2022 and the application of the law regarding the determination of care percentage set by Child Support for the commencement of the child support case. However, in stating that, the Tribunal does not disregard that issues can arise when care arrangements are under review and the possible difficulties in navigating the review process and subsequent notification of changes particularly when the parties are new to the child support legislative scheme.

Other matters

1. It is convenient to clarify that Child Support’s care percentage determinations made under the child support legislation are treated as a care percentage determination by Centrelink for family tax benefit payments and other family assistance purposes under Centrelink’s family assistance legislation. Both departments decisions are based, in part, on their recorded care of the children.  Difficulties may arise when determinations are made that relate to a period of time prior to the commencement of a child support assessment, as in this case.  Going forward, when a change in care occurs that requires the recording of new care determinations, both legislative schemes contain provisions that allows for the alignment of care percentages between the two departments to ensure the care percentages match.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care for the children is 100% to Ms Bignot and 0% to Mr Bignot from 16 June 2015, with effect from the commencement of the registration of the child support case on 3 March 2022.