Brainsby and Brainsby (Child support)

[2023] AATA 3738

Brainsby and Brainsby (Child support) [2023] AATA 3738 (20 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026238

APPLICANT:  Mr Brainsby

OTHER PARTIES:  Child Support Registrar

Ms Brainsby

TRIBUNAL:Member M King

DECISION DATE:  20 October 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 – 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 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 Brainsby and Ms Brainsby are parties to a child support case registered with Services Australia – Child Support (Child Support) from 8 September 2022 in relation to financial support to be provided for [Child 1] (born 2012) and [Child 2] (born 2015) (the children).

2. Each parent had been recorded as having 50% care of the children from 8 September 2022, when the child support case commenced.

3. On 8 November 2022, Ms Brainsby advised Child Support that she had 100% care of the children from 10 October 2022 and that Mr Brainsby would have care of the children for three nights per fortnight from 25 November 2022.

4. On 15 January 2023, Child Support determined percentages of care of the children of 100% for Ms Brainsby and 0% for Mr Brainsby from 10 October 2022 and 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

1. On 17 January 2023, Mr Brainsby objected to this decision stating that care of the children had remained as 50% for each parent until 7 November 2022.

2. On 18 May 2023, a Child Support objections officer partly allowed the objection and determined percentages of care of the children of 100% for Ms Brainsby and 0% for Mr Brainsby from 11 October 2022 and 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

1. On 12 June 2023, Mr Brainsby lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 20 October 2023. Mr Brainsby and Ms Brainsby 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 Mr Brainsby and Ms Brainsby and the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 278).

ISSUES

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, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of 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 governmental 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. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

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

2. The term pattern of care is not defined in the legislation. 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 states 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 that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

3. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care … (the) person has had, or is likely to have, during the care period. 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.

4. The legislative test therefore first requires consideration of whether a person has had or is likely to have a pattern of care of a child for a care period, and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

5. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘had had’ or ‘is likely to have’ depending upon when relative to the care period the decision is being made.

6. Ms Brainsby’s position is that up until 10 October 2022 she and Mr Brainsby were separated but living under the same roof with the children. She says that she and the children moved out of the home on 10 October 2022 and Mr Brainsby did not then have care of the children until after the parents reached a Family Dispute Resolution Agreement (the agreement) on 7 November 2022. A copy of that agreement is set out from page 200 of Exhibit 1.

7. The agreement provided for Mr Brainsby to have care of the children on the night of 18 November 2022 and then regular fortnightly care from 25 November 2022.

8. Ms Brainsby supports the decision made by Child Support.

9. Mr Brainsby does not dispute the actual care of the children he had, or did not have, from 11 October 2022. He submits though that Ms Brainsby withheld the care of the children from him from 11 October 2022 until the agreement was reached on 7 November 2022.

10. It is therefore clear, and the Tribunal finds, that the actual pattern of care of the children was 100% for Ms Brainsby and 0% for Mr Brainsby from 11 October 2022 and then 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

11. Whilst Mr Brainsby had care of the children for one night on 18 November 2022, it is clear from the terms of the agreement that was a one-off event and regular fortnightly care commenced on 25 November 2022.

12. Usually a pattern of care based upon the actual care that each parent has of their children will be used in the child support assessment. However, this may not apply if a care arrangement applies, and that care arrangement is not being complied with (see section 51 of the Act). A care arrangement is a formal arrangement about the care of a child and includes a written agreement which is signed and dated by both parents, a court order or a parenting plan.

13. Mr Brainsby submits that there was a care arrangement in place whereby each parent would have 50% care of the children.

14. He referred the Tribunal to an email from him to Ms Brainsby dated 12 October 2022, a copy of which is at page 135 of Exhibit 1. That email outlines Mr Brainsby’s proposed arrangements for the care of the children. Exhibit 1 then contains further documents Mr Brainsby submits show that there was no reason for Ms Brainsby to withhold care of the children from him.

15. It is clear that none of the documents, either individually or collectively, meet the requirements of a care arrangement under the Act, as set out above. Therefore section 51 of the Act does not apply and it is the actual pattern of care which has to be reflected in the child support assessment. The reasons for Mr Brainsby not having care of the children during that period are not a relevant consideration for the Tribunal as there was no care arrangement in place.

16. The Tribunal finds that the percentages of care to be recorded for the children is 100% for Ms Brainsby and 0% for Mr Brainsby from 11 October 2022 and 86% for Ms Brainsby and 14% for Mr Brainsby from 25 November 2022.

17. As that is the same decision made by Child Support, the decision under review is affirmed.

DECISION

The decision under review is affirmed.