Blakley and Mossey (Child support)

Blakley and Mossey (Child support) [2023] AATA 4000 (3 October 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC026452
APPLICANT:  Ms Blakley
OTHER PARTIES:  Child Support Registrar
Mr Mossey

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 03 October 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Blakley provides 30 per cent care of [Child 1] and Mr Mossey provides 70 per cent care from 24 September 2021 but with effect from 1 September 2022 for Ms Blakley and from 24 September 2021 for Mr Mossey.

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 set aside and substituted

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

This review is about a change to the percentage of care determinations for Ms Blakley and Mr Mossey in respect of their child [Child 1] (born March 2016). There has been a child support assessment in place for [Child 1] since 26 September 2020.
From 26 September 2020 the child support assessment reflected Ms Blakley as having 9 per cent care and Mr Mossey as having 91 per cent care of [Child 1].
On 1 September 2022 the Family Assistance Office was notified of a change to the care arrangements such that Ms Blakley provides 35 per cent care and Mr Mossey provides 65 per cent care of [Child 1] from 24 September 2021.
On 12 February 2023 Services Australia – Child Support (Child Support) made the decision to reflect that Ms Blakley provides 35 per cent care and Mr Mossey provides 65 per cent care of [Child 1] from 24 September 2021.
On 13 March 2023 Mr Mossey objected to this decision and on 20 July 2023 Child Support allowed the objection and made the decision to reflect that Ms Blakley provides 28 per cent care and Mr Mossey provides 72 per cent care of [Child 1] from 24 September 2021 but with effect from 1 September 2022 for Ms Blakley and from 24 September 2021 for Mr Mossey (the objection decision).
On 21 July 2023 Ms Blakley applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 3 October 2023. Ms Blakley and Mr Mossey gave evidence on affirmation by Microsoft Teams audio. At the commencement of the hearing Ms Blakley requested that her legal representative be permitted to attend the hearing and as Mr Mossey did not object the Tribunal agreed to this request. Ms [A] from [a law firm] made representations on behalf of Ms Blakley.
Child Support provided the Tribunal and the parties with papers relevant to the matter (244 pages). The Tribunal also received additional information from Ms Blakley prior to the hearing and a copy was distributed to the parties (A1–A25).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.
Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act). The task of the Tribunal on review is the same.
Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.
The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,
· from what date should the new percentage of care determinations take effect?

CONSIDERATION

Ms [A] told the Tribunal that care of [Child 1] was the subject of final court orders dated 9 May 2022. Ms [A] explained that the final orders reflected the care set out in earlier interim orders of 2021. Ms [A] said her client was following the court-ordered care.
Ms Blakley said under the court orders she was having care of [Child 1] for two nights every fortnight during school term. Ms Blakley said [Child 1] was also in her care for all the school holidays except for the longer end of year holidays which were shared equally with Mr Mossey. Ms Blakley told the Tribunal there was provision in the court orders for Mr Mossey to have additional care of [Child 1] during the mid-term holidays but this had never happened.
Ms Blakley informed the Tribunal that care of [Child 1] changed from 24 September 2021 in line with the interim orders. Ms Blakley said although she lived in Sydney and Mr Mossey lived about a [number of hour] drive away in [City 1] she did have extra care of [Child 1] from time to time. Ms Blakley said, for example, she recently attended a family funeral in [City 1] and had a further two weeks of care of [Child 1].
The Tribunal notes in evidence from Child Support a copy of co-signed and unsealed orders from the Federal Circuit Court dated 2021. In relation to care the orders state that [Child 1] is to live with Mr Mossey and spend each alternate weekend with Ms Blakley during school term with such time to alternate with one weekend in [City 1] and the other weekend in Sydney. Ms Blakley is also to have care during each mid-term school holiday period “from conclusion of school on the last day of term until the Friday prior to school commencing” as well as half the Christmas school holidays. The orders also state that, providing Ms Blakley has notice, Mr Mossey is able to have care of no more than one week during a mid-term school holiday period “no more than once per calendar year”.
The Tribunal further notes in evidence a copy of final sealed orders handed down by the Federal Circuit and Family Court of Australia on 9 May 2022. These final orders set out the same pattern of care for [Child 1] as the unsealed orders.
Ms Blakley said she was happy with the level of care of 35 per cent as originally calculated. Ms Blakley reiterated she was having weeks of extra care which she had never claimed.
The Tribunal notes in evidence from Ms Blakley a third-party statement from [Ms B] dated 29 August 2023. [Ms B] states that “to my knowledge” Ms Blakley has more care of [Child 1] than “is required as per her family agreement”. [Ms B] also confirms that Ms Blakley travels to [City 1] to have extra care of [Child 1] and has recently had two weeks with [Child 1] in [City 1] when a relative passed away.
Mr Mossey told the Tribunal that he agreed the parents were following the court-ordered care and the pattern of care for [Child 1] changed from 24 September 2021.
Mr Mossey said in keeping with the court orders he calculated that Ms Blakley was having care of approximately 108 to 110 nights each year. Mr Mossey explained that because [Child 1] attended a Catholic primary school the school holiday periods were slightly longer and this should be factored into the care Ms Blakley was having. Mr Mossey said during the Christmas holidays, due to travel time, Ms Blakley also had an extra two nights of care. Mr Mossey pointed out that although there was provision in the court orders for him to have an additional week of care during the mid-term school holidays, this had not occurred to date.
Mr Mossey told the Tribunal that he did not dispute Ms Blakley had extra care of [Child 1] from time to time but he believed this flowed both ways. Mr Mossey said he also had more care on occasions but argued this should not be considered as it balanced out across the year.
A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.
It is not in dispute and the Tribunal finds that care of [Child 1] changed from 24 September 2021.
The parents agree that care of [Child 1] is in keeping with court orders with Ms Blakley providing care of two nights per fortnight during school term, all of the mid-term school holidays and half the Christmas holidays. Mr Mossey has said the pattern of care under the court orders is determined in keeping with the Catholic school calendar. Both parents have argued they have occasional additional care of [Child 1], however, the Tribunal will not take into account such minor variations to the ordinary pattern of care under the court orders. The third-party statement from [Ms B] confirms that Ms Blakley has recently had extra care of two weeks but this is not relevant to the care period under consideration.
The Tribunal notes that [City 1] is in the Catholic Diocese of [name]. According to the Catholic Schools Office website the mid-term school holidays are generally approximately 17 days and the end of year holiday period is approximately 42 days.[1]
[1] [Deleted].
The Tribunal is satisfied that a new pattern of care for [Child 1] commenced from 24 September 2021 with Ms Blakley providing care of approximately 110 nights (39 nights during school term and a total of 71 nights during school holidays) and Mr Mossey providing are of 255 nights when calculated in accordance with the court orders. This is equal to 30 per cent care to Ms Blakley and 70 per cent care to Mr Mossey.
The existing percentages of care reflected in the assessment for [Child 1] were 9 per cent care to Ms Blakley and 91 per cent care to Mr Mossey. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.
As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Blakley and Mr Mossey under section 50 of the Act.
For the reasons outlined above, the Tribunal finds that Ms Blakley provides 30 per cent care and Mr Mossey provides 70 per cent care of [Child 1].

Date of effect of new care percentage determinations

The Tribunal is satisfied that the Family Assistance Office was notified of the change in care on 1 September 2022. As this is more than 28 days after the change occurred on 24 September 2021, according to paragraph 54F(3)(b) of the Act the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.
The new determinations can be made from 1 September 2022 for Ms Blakley and from 24 September 2021 for Mr Mossey.

Other care matters

Ms Blakley has told the Tribunal she has been having additional care of [Child 1] and recently had an extra two weeks of care. The legislative scheme deals with any such potential change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required.

DECISION

[2023] AATA 4000

3 October 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness