Binnick and Binnick (Child support)

[2023] AATA 836

Binnick and Binnick (Child support) [2023] AATA 836 (10 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024870

APPLICANT:  Mr Binnick

OTHER PARTIES:  Child Support Registrar

Ms Binnick

TRIBUNAL:Member J Prentice

DECISION DATE:  10 February 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 – 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. As relevant to this application, Mr Binnick and Ms Binnick are parties to a child support case registered with the Child Support Agency (the CSA) from 27 January 2021 in relation to financial support to be provided for [Child 1] (the child), born February 2009. The application concerns a single decision of the CSA about the recorded care for the child utilised in calculation of the child support liability.

2. From 1 November 2021 the pre-existing percentages of care applying in the child support case for the child were 50% to Mr Binnick and 50% to Ms Binnick.

3. On 16 May 2022, Ms Binnick notified the CSA online that the care of the child had changed from that day (16 May 2022) and she then had 100% care of the child as the child was refusing to go back to Mr Binnick’s care.

4. On 10 June 2022, Ms Binnick lodged another change in care notification online, stating that the child had been in her 100% care since 11 May 2022. The CSA did not proceed to make a separate decision about this reported care change as it was considered to relate to the notification of 16 May 2022.

5. On 1 July 2022 the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 100% to Ms Binnick and 0% to Mr Binnick from 16 May 2022.

1. On 24 July 2022 Mr Binnick objected to this decision and, on 21 September 2022, a CSA objections officer disallowed the objection.

2. On 19 October 2022 Mr Binnick lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating that he wanted to appeal the CSA’s objection decision of 21 September 2022.

3. The hearing of the application was held on 9 February 2023. Mr Binnick and Ms Binnick 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.

1. In considering the application, the Tribunal took into account the oral evidence of Mr Binnick and Ms Binnick and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 329).

2. There are a number of background circumstances of understandable importance to both Mr Binnick and Ms Binnick 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

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains government guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while 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.

3. Sections 49 and 50 of the Act 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.

4. 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 the CSA 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.

5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

1. 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.

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

3. 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.

4. 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

1. The issues to be determined by the Tribunal are as follows:

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

   (b)    What are the new percentage of care determinations for Mr Binnick and Ms Binnick? 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

1. Both parties agreed at hearing that the child has not been in the care of Mr Binnick since 16 May 2022.

2. Exhibit 1 records the following relevant conversations between Mr Binnick and the CSA and Ms Binnick and the CSA:

   (a)    On 25 May 2022 Mr Binnick advised the CSA that the child refused to go back to his care when he went to pick her up on 16 May 2022.

   (b)    On 29 June 2022 Mr Binnick advised he and Ms Binnick had been working on a parenting plan but he was unsure whether it had been signed by both parties.

   (c)    On 3 August 2022 Mr Binnick advised that the child and Ms Binnick had been to his house to collect the child’s belongings.

   (d)    On 4 August 2022 Mr Binnick told the CSA that he was waiting for a mediation appointment.

   (e)    On 15 August 2022 Ms Binnick advised that there was a parenting plan in place, but it is not a court order. The parenting plan sets out care as 50/50 shared care but included a clause that the child can choose where she wants to stay.

   (f)     On 15 August 2022 Ms Binnick advised that prior to May 2022 the care was occurring on a 50/50 shared basis in line with the work rosters of Mr Binnick and Ms Binnick.

3. Relevant documentation and evidence provided to the CSA included as follows:

   (a)    On 3 June 2022 Mr Binnick provided a copy of text messages between Ms Binnick and himself; a copy of his care calendar; and a self-statement.

   (b)    On 10 June 2022 Ms Binnick provided third party statements.

   (c)    On 26 June 2022 Ms Binnick provided a screenshot of text messages between herself and Mr Binnick.

   (d)    On 4 August 2022 Mr Binnick provided a copy of his care calendar and a copy of a draft consent order signed by both parents on 20 April 2022.

   (e)    On 24 August 2022 Mr Binnick provided a copy of a court order made on 1 June 2022.

   (f)     On 30 August 2022 Ms Binnick provided a copy of an unsigned parenting plan from August 2021.

4. Mr Binnick told the Tribunal that he had continued to take reasonable action to try and re-establish care of the child including multiple telephone calls and text messages; attempting to pick her up at the times he would normally have had care; organising mediation to try and resolve issues and restore care; and liaising with his lawyers about re-establishing the parenting plan. Mr Binnick informed the Tribunal that he had turned up for the mediation sessions, however Ms Binnick cancelled and the child never went to a session.

5. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 16 May 2022. Further the Tribunal is satisfied based on the evidence that the pattern of care of the child from 16 May 2022 was 0% care to Mr Binnick and 100% care to Ms Binnick.

Issue 1 – Are the pre-existing percentage of care determinations for Mr Binnick and Ms Binnick to be revoked?

1. Section 54G provides if a person was to have at least regular care (that is at least 14%) of a child during a care period under a recorded percentage of care determination, but was having less than regular care or no care, despite the child being made available for care by another person who has care of the child, and the other person has notified the change of care within a period that is reasonable in the circumstances, both recorded percentage of care determinations must be revoked.

2. As regards whether a child is being made available for care, topic 2.2.3 of the Guide includes the following guidance:

   The Registrar will be satisfied that a child is being made available if both parties confirm that the child was made available. When this is disputed the Registrar will need to consider many factors, including:

   ·whether the parent/non-parent carer with increased care is making the child available

   ·whether the parent/non-parent carer with reduced care is genuinely seeking care, and

   ·if both parties are genuinely attempting to facilitate care, whether the child is refusing to have the planned care.

   A parent or non-parent carer should make a child available for care to take place. The parent or non-parent carer with more care should be encouraging the contact and requiring the child to see the other party. They should be facilitating the care by providing reasonable transport and communication options (for example, phone and internet), and not be organising or encouraging alternative activities that would prevent or hinder the care. Their actions should include:

   ·dropping the child off as agreed

   ·having the child ready to be picked up as agreed

   ·taking the child to the agreed exchange location, and

   ·not making conflicting appointments or arrangements for the child, for example, booking swimming or music lessons that limit the other party's ability to have care.

   Evidence of a parent or non-parent carer's action could include a written account of the steps they have taken to make the child available.

   A parent or non-parent carer will be considered to be genuinely seeking care if they:

   ·are available to receive the child at the planned time and place, and

   ·have participated in necessary communication to facilitate the planned care arrangements.

   Generally, in the absence of a parent or non-parent carer genuinely seeking care, the other parent or non-parent carer will be considered to be making the child available.

   The Registrar will consider that care is not taking place despite the genuine attempts of both parties to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).

   In these circumstances, the Registrar will generally consider that the parent or non-parent carer is making the child available, and a below regular care determination can be made.

3. It was not in dispute that it was the child refusing to be in Mr Binnick’s care. Although the child was not yet 15 years of age, the Tribunal is satisfied in those circumstances that Ms Binnick was making care available.

4. Having regard to all of the evidence, the Tribunal is satisfied that despite Ms Binnick making the child available for care by Mr Binnick, Mr Binnick had 0% care from 16 May 2022, that is, he had no care, and Ms Binnick notified the change in care within a reasonable period of time in the circumstances. Section 54G therefore applies and the existing percentages of care of 50% to Ms Binnick and 50% to Mr Binnick are therefore required to be revoked.

Issue 2 – What are the new percentage of care determinations for Mr Binnick and Ms Binnick?

1. Percentage of care determinations are required pursuant to subsections 49(2) and 50(2). The Tribunal determines that Mr Binnick’s percentage of care for the child from 16 May 2022 is 0% and Ms Binnick’s percentage of care from 16 May 2022 is 100% as outlined in the above consideration.

Issue 3 – 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?

1. Pursuant to subsection 54G(2), the revocation of each percentage of care determination takes effect at the end of the day before the day on which Mr Binnick ceased the previously established pattern of care, that is 15 May 2022.

1. It is then necessary to determine from when new percentage of care determinations are to apply.

2. As a general rule, a parent’s recorded care will reflect their actual care. However, there are exceptions to that general rule

3. Under section 51, the framework for determining when the new percentage of care determinations apply is treated differently where action is taken by the parent with reduced care to ensure that a formal care arrangement (which includes a court order) in relation to the child is complied with. Essentially, the application of section 51 for child support assessment purposes, results in the care arrangement as specified under a breached court order staying in place during an “interim period” and the actual care occurring applying after the interim period ends. Section 51 has no application to the circumstances of this case as there is no evidence that care prior to 16 May 2022 was occurring pursuant to a formal care arrangement such as a court order or signed parenting plan. As noted in paragraphs 22 and 23 of these Reasons, while a parenting plan had been discussed and drafted, it had not been signed.

4. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore new percentage of care determinations of 0% to Mr Binnick and 100% to Ms Binnick apply from 16 May 2022.

Conclusion

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

OTHER MATTERS

1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

2. The Tribunal acknowledges Mr Binnick’s concerns about having care of the child, however, the Tribunal is bound to apply the legislative provisions as enacted. As discussed with Mr Binnick at hearing, the Tribunal on review is limited to reviewing the decision before it and has no role to play in relation to the CSA’s processes.

DECISION

The decision under review is affirmed.