Broomhall and Broomhall (Child support)

[2021] AATA 2292

Broomhall and Broomhall (Child support) [2021] AATA 2292 (27 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020914

APPLICANT:  Ms Broomhall

OTHER PARTIES:  Child Support Registrar

Mr Broomhall

TRIBUNAL:Presiding Member S De Bono and Member R Anderson

DECISION DATE:  27 May 2021

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to pattern of care – 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. Mr Broomhall and Ms Broomhall are the separated parents of [Child 1] and [Child 2]. They registered a child support assessment for [Child 1] and [Child 2] on 11 December 2017 with child support collection by Services Australia – Child Support (the Agency) commencing from 1 November 2018.[1]

   [1] Page 169 of the hearing papers

2. On 30 June 2020, Ms Broomhall informed the child support agency that the care for [Child 1] and [Child 2] changed on 11 December 2019 and reverted back to the registered care on 20 January 2020.  While according to Agency records an initial decision was made on 4 July 2020, prior to letters being distributed to the parties, this decision was withdrawn and the review referred to a specialised care team.  Subsequently, on 15 September 2020, an officer from the Agency made the decision that Ms Broomhall had 100% care of [Child 1] and [Child 2] and Mr Broomhall had no care from 11 December 2019.  Commencing 20 January 2020 the Agency recorded that Ms Broomhall had 49% care of [Child 1] and [Child 2] and Mr Broomhall had 51% care.[2]

   [2] Page 22 of the hearing papers. However, this decision was actually applied to the date of Ms Broomhall’s notification on 30 June 2020 which raised a child support debt for Mr Broomhall.

3. On 30 September 2020 Mr Broomhall lodged an objection to the decision that he did not have care for [Child 1] and [Child 2] from 11 December 2019 submitting that the change of care was a temporary change of care which was planned.

4. On 14 January 2021 the objections officer allowed Mr Broomhall’s objection and determined that Mr Broomhall and Ms Broomhall each had 50% care of [Child 1] and [Child 2] from 11 December 2019. Agency records indicate that this has been recorded as 49% to Mr Broomhall and 51% to Ms Broomhall in respect of [Child 1] and 51% to Mr Broomhall and 49% to Ms Broomhall in respect of [Child 2].

5. On 8 February 2021 a new care determination was made which determined that Ms Broomhall had 35% care of [Child 1] and Mr Broomhall had 65% care. The care for [Child 2] remained the same.[3]

   [3] Page 180 of the hearing papers

6. On 2 March 2021 Ms Broomhall applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 27 May 2021 Ms Broomhall gave sworn evidence to the tribunal via conference telephone. The tribunal had before it a bundle of documents (233 pages – which are the hearing papers and supplementary hearing papers) which had been sent to Ms Broomhall and Mr Broomhall. While Ms Broomhall advised that she was yet to receive the Agency documents numbered 224 to 233, as the information related to a later care decision and was not directly relevant to this review, the tribunal was satisfied that it was appropriate to proceed and to arrange for the documents to be sent to Ms Broomhall for her  information.  Mr Broomhall was unable to attend the hearing but provided a written submission to the tribunal, numbered B1. Relevant aspects of the material and evidence before the tribunal will be referred to in the tribunal’s consideration of the issues to be decided.

7. The issues for the tribunal to determine are:

   ·Should the existing care percentages of 51% to Ms Broomhall and 49% to Mr Broomhall be revoked?

   ·If so, from what date should the existing care percentages be revoked?

   ·What is the correct level of care to be attributed to the parents? And

   ·What is the effective date of the new care determinations?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support.  The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act).  Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. In this case, the tribunal is satisfied that the care period should appropriately commence on11 December 2019.

4. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1] and [Child 2], before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

5. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no 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”. Section 50 applies, relevantly, if the parent “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”. Both sections of the Act reflect the idea that the Agency makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

6. The tribunal's task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Agency – so that a new primary care percentage decision can be considered and made if appropriate. 

7. The term “pattern of care” is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.

Issue 1 - Should the existing care percentages of 50% to Ms Broomhall and 50% to Mr Broomhall be revoked?

1. The existing care percentages determined by the Agency from 12 August 2019 were 50% to Ms Broomhall and 50% to Mr Broomhall[4]. Ms Broomhall agreed she was away with [Child 1] and [Child 2] visiting her family in [Country 1] from 11 December 2019 and she and the children returned to Australia on [a day in] January 2020.

   [4] For the purposes of the legislation both parties in this instance have 50/50 care, this does not change the cost % for either party, the care of 49% and 51% is a function of the child support computer system which does not record 50/50 care. The effect is the same.

2. Ms Broomhall told the tribunal that she had taken [Child 1] and [Child 2] to visit her family previously both before she and Mr Broomhall separated when he travelled with them and after they separated. Ms Broomhall said she and Mr Broomhall separated on 1 December 2017. She said she did not worry about notifying the Agency of these periods because the last time she travelled to [Country 1] with [Child 1] and [Child 2] in mid-2018 she had the greater percentage of care than Mr Broomhall; she said at this time Mr Broomhall had the care of [Child 1] and [Child 2] every second weekend for two nights; 52 nights out of 365 nights or 14% care to Mr Broomhall and 86% care to Ms Broomhall.

3. The pattern of care prior to Ms Broomhall travelling to [Country 1] on 11 December 2019 was that Ms Broomhall and Mr Broomhall would have the care of [Child 1] and [Child 2] from Monday after school to the following Monday morning as a week on and week off alternating arrangement during school term and 50/50 during school holidays.

4. Ms Broomhall said she and Mr Broomhall discussed her trip and the agreement was that Mr Broomhall would make up the care he missed while the children were overseas upon their return. This was the same arrangement and discussion as occurred prior to her previous trip in mid-2018.  Ms Broomhall thought this would occur before the end of the 2020 financial year. In response to a question from the tribunal, Ms Broomhall stated that there was no fixed arrangement as to when the days would be made up.  However, she assumed it would likely be over the Easter school holidays. She said the reason she contacted the Agency about the change of care for [Child 1] and [Child 2] was that Mr Broomhall did not make up the additional care he said he would make up by 30 June 2020 and due to his missed care over Easter.

5. Mr Broomhall in his written submission said that he had “made up plenty of extra nights” and disagreed with Ms Broomhall’s submission that she had [Child 1] and [Child 2] for extra nights over the Easter break and he had provided additional child support during this period to make up for the missed care.

6. Mr Broomhall’s diary entries before the tribunal show that [Child 1] and [Child 2] stayed with Mr Broomhall for five nights on their return from [Country 1] which was usually Ms Broomhall’s week of care.[5] The tribunal notes that the Easter holiday for 2020 was from Good Friday on 10 April 2020 to Monday 13 April 2020; the Queensland school holidays for this period were from 4 April 2020 to 19 April 2020. Mr Broomhall’s diaries show he paid Ms Broomhall an extra $30 for child support for missed care on 23 April 2020.[6] On 8 May 2020 Mr Broomhall indicates that [Child 1] and [Child 2] spent an extra three nights in addition to their usual seven nights on Monday 22 May 2020 and Tuesday 23 May 2020 and they returned to Ms Broomhall on Wednesday 24 May 2020.[7] By this stage Mr Broomhall’s diary indicates he had made up 8 nights of care and he had paid Ms Broomhall for a night that he missed care which equals 9 nights of care. On 6 July 2020 (after the date Ms Broomhall contacted the Agency) Mr Broomhall submitted he made up an extra night of care on Monday 6 July 2020;[8] by this date Mr Broomhall had made up 11 nights of care. Mr Broomhall indicates he had [Child 1] and [Child 2] for an extra three nights from 19 September 2020 to Monday 21 September 2020. By this date Mr Broomhall had made up 14 nights of care. On 4 October 2020 Mr Broomhall indicates he had made up another extra night of care bringing his total to 15 nights of care.

   [5] Phone messages show Mr Broomhall had [Child 1] and [Child 2] from Tuesday 14 January 2020 to Monday 20 January 2020 when the children would be returned to Ms Broomhall; page 43 of the hearing papers

   [6] Page 127 of the hearing papers

   [7] Page 129 of the hearing papers

   [8] Page 130 if the hearing papers

7. Ms Broomhall submitted that the extra nights of care of [Child 1] and [Child 2] that Mr Broomhall had after the Easter period were to make up for missed care during this period. Mr Broomhall was of the view from his submission that he had made up for the missed care for [Child 1] and [Child 2] upon their return from [Country 1] and that any missed care was for personal reasons or due to COVID-19 and these changes were unexpected or unforeseen circumstances. Ms Broomhall submitted that Mr Broomhall did not make up all the missed care for [Child 1] and [Child 2] from their return from [Country 1] to the end of the financial year (that is by 30 June 2020) and this is why she notified the Agency of the change of care on 30 June 2020 and not before.

8. The tribunal notes that the nights required to make up the care of [Child 1] and [Child 2] by Mr Broomhall equalled 16 nights; Ms Broomhall was away with [Child 1] and [Child 2] for 32 nights. The tribunal notes that it seems Mr Broomhall made up 14 nights of care and paid child support for an additional one night of care which he missed but these nights were not made up before the end of the 2020 financial year. Ms Broomhall disagreed that Mr Broomhall made up the care in the manner in which it was expected before she travelled with [Child 1] and [Child 2] to [Country 1] and she said she had [Child 1] and [Child 2] for additional nights over the Easter break when Mr Broomhall was unable to have them due to personal reasons.

9. The Guide states at 2.2.2 that where there is a ‘one off’ block of 100% care:

   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

   Example: Jason and Anita have one child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts Services Australia and the Registrar makes a new care decision based on the ongoing care of each parent.

10. Generally, a new care determination will be made if there is an unexpected change to the pattern of care for a child which is temporary in nature due to unforeseen circumstances. The tribunal is satisfied that the trip to [Country 1] by Ms Broomhall with [Child 1] and [Child 2] was not an unexpected or unforeseen change to the pattern of care and the expectation of both Ms Broomhall and Mr Broomhall at the time was that care would be made up by Mr Broomhall upon the children’s return from their holiday in [Country 1].

11. The tribunal accepts Ms Broomhall’s evidence that Mr Broomhall missed some of his care nights during the Easter period due to personal reasons but these occasions were also unexpected and unforeseen circumstances and the expectation at that point remained that Mr Broomhall would still make up his missed care of the children in respect of their time in [Country 1]. As discussed at hearing, any ongoing change in the expected pattern of care requires advice to the Agency by either parent such that a new care determination can be considered.

12. The tribunal is not satisfied that the expected pattern of care in respect of [Child 1] and [Child 2] changed in the minds of either parent until at least 30 June 2020.  At that time, in accordance with her advice to the Agency on 30 June 2020, Ms Broomhall’s expectation was that the pattern of care would continue to be shared equally, as was the expectation of Mr Broomhall. It is on this basis that the tribunal finds the existing care determination of 50% care to Ms Broomhall and 50% care to Mr Broomhall continues to apply from 11 December 2019.  As noted above, a new care determination was made by the Agency on 8 February 2021 in respect of [Child 1].

13. As the tribunal has found above that there was no change in the expected pattern of care in respect of [Child 1] and [Child 2] in the care period commencing 11 December 2019, no revocation is to take place and it is not necessary to consider the remaining issues. 

14. The tribunal notes that the initial decision to vary the care percentage to 100% to Ms Broomhall from 19 December 2019 resulted in the child support arrears created for Mr Broomhall being intercepted from his tax refund.  The subsequent decision by the objections officer to revert to the existing shared care percentages then resulted in an over-payment by Mr Broomhall.  It is unfortunate that this has created additional hardship as well as a degree of financial and emotional distress for both parties. 

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)