Canyer and Croasdell (Child support)

[2022] AATA 4996

Canyer and Croasdell (Child support) [2022] AATA 4996 (14 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024828

APPLICANT:  Ms Canyer

OTHER PARTIES:  Child Support Registrar

Mr Croasdell

TRIBUNAL:Member E Kidston

DECISION DATE:  14 December 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     in respect of [Child 1], the care percentage determinations of 49% to Mr Croasdell and 51% to Ms Canyerare revoked on 4 February 2022 and replaced with new care percentage determinations of 0% to Mr Croasdell with effect from 5 February 2022, and 100% to Ms Canyer with effect from 15 June 2022;

·     in respect of [Child 2], the care percentage determinations of 49% to Mr Croasdell and 51% to Ms Canyer are revoked on 4 February 2022 and replaced with new care percentage determinations of 7% to Mr Croasdell with effect from 5 February 2022, and 93% to Ms Canyer with effect from 15 June 2022.

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 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. Ms Canyer and Mr Croasdell are the separated parents of [Child 1] (born 2008) and [Child 2] (born 2011) (the children).

2. This review application concerns a decision of Services Australia – Child Support Agency (CSA) about the recorded care for the children in relation to a registered child support case. The CSA had recorded the care percentage for the children as 51% to Ms Canyer and 49% to Mr Croasdell.

3. On 15 June 2022 Ms Canyer notified the CSA of a change in care for the children from 5 February 2022 as 93% to her and 7% to Mr Croasdell. Mr Croasdell informed the CSA that he disagreed with Ms Canyer’s reported change in care. Ms Canyer provided third party statements and additional material to the CSA to support her position.

4. Based on the evidence before it, a delegate of the CSA made a decision on 31 August 2022 to refuse to change the care percentages recorded for the children.

5. On 6 September 2022 Ms Canyer objected to the decision and on 29 September 2022 an objections officer of the CSA determined that the objection was disallowed. The practical effect was that the care percentages of 51% to Ms Canyer and 49% to Mr Croasdell remained unchanged.

6. On 11 October 2022 Ms Canyer made an application to the Social Security and Child Support Division of the Administrative Appeals Tribunal (Tribunal) to review the CSA’s decisions.

7. The hearing of Ms Canyer’s application was held by the Tribunal on 14 December 2022. Ms Canyer spoke to the Tribunal by telephone conference and gave evidence on affirmation. Mr Croasdell, as the other party, was notified of the hearing, however he did not attend. The Tribunal attempted to contact Mr Croasdell by telephone on three occasions during the scheduled hearing period and was not successful. The Tribunal checked its records and noted that the usual notices of hearing and attendance requirements were issued by the Tribunal Registry to Mr Croasdell and that no information or contact had been received by Mr Croasdell prior to the hearing concerning his inability to attend the hearing as scheduled for 14 December 2022. As the applicant was in attendance and notices were issued to the parties, the Tribunal considered it appropriate in this matter to continue with the hearing as scheduled. The Child Support Registrar also did not participate in the hearing and did not attend, however this is customary in first review hearings at the Tribunal.

EVIDENCE

1. In considering the application, the Tribunal took into account the oral evidence of Ms Canyer as well as the documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1 comprising of 113 pages) and the additional material provided by Ms Canyer prior to the hearing and accepted as her evidence (marked Exhibit A comprising of 4 pages).

2. It is evident from the CSA’s records in Exhibit 1 that the decision to reject a change in care as notified by Ms Canyer was based on “insufficient evidence” received by it to support her assertion. A CSA file note dated 6 September 2022 (folios 57 and 58 of Exhibit 1) states that the documentary evidence of third party statements as provided by Ms Canyer did not specify a care pattern of the children or reference any dates for when a change in care may have occurred, resulting in the CSA not being satisfied that a change to the pattern of care occurred.

3. Notably, a file note of the CSA’s only successful contact with Mr Croasdell was on 27 June 2022, and it revealed that Mr Croasdell accepted a change in care had occurred, however his position was that the change occurred in June 2022 and not February 2022 and his care of the children reduced to 40% and not 7% (Exhibit 1 – folio 12). CSA’s record further noted that Mr Croasdell would provide evidence to support his position, however no documentary evidence was received by the CSA (or by the Tribunal upon review). Relevantly, the same record (folio 12) noted that Mr Croasdell confirmed he was homeless for a part of the relevant care period under review.

4. Ms Canyer told the Tribunal that she disagrees with the CSA’s decision because she has had majority, if not sole care of the children since February 2022. Ms Canyer submitted that she had not kept a detailed record of care and was not aware that she had to prove her position of having majority care of the children until she made the notification to the CSA in June 2022. Ms Canyer said that after the CSA refused to change the care percentages, she started keeping a care calendar. Ms Canyer’s care calendars relate to the period from 1 August 2022 to 30 November 2022 (Exhibit A) and depict a care pattern of Mr Croasdell having about 2 nights’ care of [Child 2] a month and some contact with [Child 1] but no overnight care of her. Ms Canyer told the Tribunal that the pattern of care recorded in the care calendars from August to November 2022 started in February 2022.

5. At the hearing, the Tribunal sought further information concerning the care leading up to the change in care in February 2022 and the reason for notification of that change only being made by her to the CSA in June 2022. Ms Canyer provided a carefully considered account of events concerning the increase of care of the children to her from the middle of 2021. The following is a summary of the salient parts of her oral evidence:

   ·    Ms Canyer and Mr Croasdell separated on 1 May 2021. Although separated, they continued to live under the same roof due to financial constraints and they shared care of their two children.

   ·    In September 2021, Mr Croasdell moved out of the residence. Mr Croasdell had no stable accommodation at that time and couch-surfed for a period of time.

   ·    Mr Croasdell was then, and continues to be, unemployed. He sought financial assistance from Ms Canyer at random times, which Ms Canyer alleges supported his gambling addictions.

   ·    From November 2021 to February 2022, Mr Croasdell was in a new relationship, had stable accommodation and other financial support. During that period, Mr Croasdell had some care of children, though sporadic.

   ·    The school term started on 5 February 2022 and, shortly thereafter, Mr Croasdell’s relationship ended and his requests for financial assistance from Ms Canyer recommenced. Ms Canyer stated that Mr Croasdell would appear at her home at random times demanding money and displayed violent behaviour. Ms Canyer said she contacted the police, however there was not much they could do as Mr Croasdell did not enter the house but remained outside on the lawn.

   ·    On 18 April 2022, Ms Canyer made a police report of an incident that involved Mr Croasdell on 17 April 2022 and applied for an intervention order against him (see folios 41 to 43 of Exhibit 1). In that evidence, it records Mr Croasdell gained entry to Ms Canyer’s residence on 17 April 2022 and refused to leave the property without payment from her.

   ·    Ms Canyer’s evidence was that, because of Mr Croasdell’s behaviour towards her after she had contacted Centrelink about family tax benefit payments being paid to her sometime earlier, she did not feel safe enough to report the change in care to the CSA until she had an intervention order in place.

   ·     Ms Canyer stated an intervention order was granted in early June 2022, and a few days later she felt safe to contact the CSA and report the change that had occurred from 5 February 2022 as she could rely on the intervention order should Mr Croasdell approach her or come onto her property.

6. At the hearing, Ms Canyer informed the Tribunal that the children spent less time with Mr Croasdell when his relationship ended and he became homeless for several weeks and living in different shared accommodation until he found stable accommodation in about late May or early June 2022. Ms Canyer said it would be very difficult for Mr Croasdell to have had both children in his care for the period he purported having them from February 2022 onwards because of his limited accommodation and support.

7. Ms Canyer’s notification to the CSA was that care of the children from 5 February 2022 was 93% to her and 7% to Mr Croasdell, however her care calendar and the oral evidence at the hearing differed in that only [Child 2] would stay overnight at Mr Croasdell’s accommodation, averaging out as 2 nights a month, and that [Child 1] had not stayed overnight. Ms Canyer told the Tribunal that [Child 1] would spend some time with Mr Croasdell for a few hours and would have dinner with her father and brother, but she would not stay overnight and preferred to return home. It was Ms Canyer’s evidence that for administrative simplicity she stated the same percentages for both children to the CSA but her actual care position from 5 February 2022 has been and is likely to continue as 100% care of [Child 1] and 93% care of [Child 2].

8. Ms Canyer also explained that when the children spent time with Mr Croasdell, she would give some money to Mr Croasdell to pay for their meals. Ms Canyer told the Tribunal that since separation from Mr Croasdell, she has been financially responsible for the children and has managed all of their activities, medical and specialist appointments. Ms Canyer explained the extent of [Child 1]’s involvement in [Activity] with regular classes, competitions and tournaments. Further information was provided concerning [Child 2]’s diagnosis of autism spectrum disorder (ASD) and Ms Canyer’s involvement with his specialist appointments, therapies and the managing of his access to NDIS supported services. Ms Canyer also asserted that as she is the liable parent to pay child support to Mr Croasdell, he is financially motivated to disagree with her notification of his reduced care.

9. Ms Canyer submitted that the CSA’s decision to not change the care percentages is unfair and unjust in the circumstances as it was clear by the evidence she provided to the CSA that Mr Croasdell did not have 49% care of the children and there is no other evidence in her possession to provide relevant to the care period under review.

RELEVANT LEGISLATION AND POLICY

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), together the child support legislation. This legislation sets out the rules for making and revoking care determinations which are then used as part of the child support formula to assess child support payment rates.

2. The Tribunal will also have regard to the Child Support Guide, a departmental policy developed by the CSA to assist decision-makers in interpreting the child support legislation and, relevantly, when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[^1]

   [1] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

3. Pursuant to Division 4 of Part 5 of the Assessment Act, the Registrar, that is, the CSA, may revoke and make new care determinations to take into account a change in care. In simple terms, existing care percentages generally apply until the CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact cost percentage. The decision is made by the CSA with reference to a point in time and usually corresponds with the actual care based on what has happened up until the change in care is notified.

4. It is not without regard that a care pattern may change and, when that is the case, a parent is to notify the CSA and a new care determination may be made from the date of a change. However, not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. This is further explained in the Child Support Guide at 2.2.2.

5. The Child Support Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, the decision maker will weigh the evidence and information provided by the parents about past care to determine the pattern of care likely to occur from the relevant date.

CONSIDERATION

1. As noted above, the Tribunal is required to consider the issues before it based on the application of the law regarding the determination of care percentages for when a change in care has been notified to the CSA that differs from the percentages set by the CSA for a registered child support case. That is, the Tribunal must determine in this matter whether there was a change in care concerning the children for a care period, and the date of effect of any changes to determinations of percentage of care, if relevant.

2. The Tribunal considers it unfortunate that Mr Croasdell did not take the opportunity to attend the hearing as scheduled, nevertheless, the Tribunal is still required to make findings of fact based on the evidence before it.

3. In this matter, the Tribunal found there were existing percentage of care determinations made under section 50 in relation to the children, and that the CSA was notified by Ms Canyer in June 2022 that care of the children did not correspond with the percentages of care in the existing care determinations.

4. It is an object of the Assessment Act, set out in paragraph 4(2)(c), that a person who provides ongoing daily care for a child should be able to have the level of financial support to be provided for the child readily determined without the need for court proceedings. As there is no written agreement in place that applied in this matter, the only way to determine the correct care arrangement is to look at the actual care that was provided. In most cases, the extent of the care a person provides for a child (or children) is relatively clear and can usually be calculated based on the number of nights of care (see section 54A of the Assessment Act). The general approach is to use the best evidence to arrive at a reasonable forecast of a pattern, or likely pattern, of care, going forward from the date of notification. Often by the time an application to the Tribunal for review is heard, the majority of the care period will be in the past. The evidence provided to the Tribunal of care that has occurred since the original decision can prove or disprove the likelihood of a pattern of care.

5. Exhibit 1 includes copies of the CSA’s records of various contacts with Ms Canyer and one contact with Mr Croasdell. It shows the claims that they made about the time the children spent in their respective care to the CSA were inconsistent. On various occasions, Ms Canyer provided detailed information to the CSA including written statements from third parties. Those statements and additional documents supported Ms Canyer’s assertion of a change in care of the children. The Tribunal had no reason to doubt the authors of the written statements in evidence and gave some evidentiary weight to them as they contained some factual or detailed information substantiating the basis of their understanding of the care position concerning the children. The Tribunal also placed some evidentiary weight on the statutory applications for divorce and an intervention order. In contrast, no supporting evidence was provided by Mr Croasdell to the CSA or the Tribunal. Further, weight is given to the evidence confirming Mr Croasdell’s changes in accommodation and his statement to the CSA that he was homeless for a period of time during the relevant care period under review.  This evidence is consistent with Ms Canyer’s evidence. On balance, the Tribunal considered Ms Canyer’s oral evidence and her supporting documentary evidence to be reliable and preferred in this matter.

6. Accordingly, the Tribunal accepts the care calendars in evidence that show a pattern of care from August 2022 to November 2022 (Exhibit A) and considers that they prove the likelihood of the pattern of care that Ms Canyer reported in June 2022 that started earlier in the year. 

7. In the Tribunal’s view, the central focus of the child support law is the obligation of parents to meet the financial needs of their children. In circumstances where children have been living with one parent and provided with continued financial, educational and emotional support by that parent, is a weighty consideration. Taking into account all of the evidence in this matter, the Tribunal considers the preferred conclusion is that care of the children changed from at least 5 February 2022, after the summer holidays and when the new school term started, such that Ms Canyer had sole care of [Child 1] and majority care of [Child 2].

8. Therefore, the Tribunal finds that, as at 5 February 2022, the likely pattern of care for [Child 1] was 100% to Ms Canyer and 0% for Mr Croasdell, and the likely pattern of care for [Child 2] was 93% to Ms Canyer and 7% to Mr Croasdell.

9. Section 54F of the Assessment Act provides that an existing care percentage decision must be revoked if the CSA is notified, or becomes aware, that the actual care taking place does not correspond with the existing percentages of care recorded, and the change of care percentages would alter the cost percentage used for the parent in the administrative assessment. In this case, the change in care percentages would alter the cost percentage used for both parents. Accordingly, the Tribunal finds that the existing determination of 51% to Ms Canyer and 49% to Mr Croasdell must be revoked and the new care percentage determinations are to apply.

Date of effect

1. The Tribunal observes the objections officer concluded that no change to the recorded care percentages could be made because the CSA was not satisfied that there was sufficient evidence that a change in care occurred. As the Tribunal has made a different finding in determining a change in care occurred and the existing percentages must be revoked pursuant to section 54F of the Assessment Act, the date of effect of revocation of the care percentage determinations and the consequential commencement of new care percentage determinations must also be determined by the Tribunal.

2. As regards to the date of effect of revocation of care percentage determinations, there is the possibility of differential dates of effect depending on when the CSA is notified of the change and whether there is an increase or a decrease in the care level. If the CSA is notified of a change in care more than 28 days after the care change occurred, pursuant to subsection 54F(3) of the Assessment Act, the date of revocation for the person with increased care is from the date of notification, and the date of revocation for the person with decreased care is from the change of care day.

1. In summary, the child support legislation imposes an obligation to notify of a change in care, and although there is no limitation on when a responsible person may notify of a change in care, the legislation was amended in 2018 so that where the responsible parties have failed to comply with the obligation within a reasonable period (28 days) then neither party benefits by the date of effect provisions (see the Child Support Guide at 2.2.2).

2. From the evidence, the Tribunal finds that Ms Canyer first notified the CSA of the changed care arrangements on 15 June 2022, which was more than 28 days after the change occurred on and from 5 February 2022. When queried as to the reason for her notification to the CSA being 4 months after it was apparent that a change had occurred, Ms Canyer told the Tribunal that she was waiting for an intervention order to be granted so that she was somewhat protected should Mr Croasdell appear at her residence after being informed by the CSA of her notification and the possible change to his child support payments.

3. Regrettably, there is no discretion to disregard the strict application of subsection 54F(3) of the Assessment Act where circumstances warrant a later notification by a responsible parent. Therefore, the revocation of the existing percentage of care determinations can only take effect: from 5 February 2022 in relation to Mr Croasdell (subparagraph 54F(3)(b)(ii) of the Assessment Act); and from 15 June 2022 in relation to Ms Canyer (subparagraph 54F(3)(b)(i) of the Assessment Act).

4. Accordingly, as the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside.

Other matters

1. The Tribunal acknowledges that there were a number of other background issues raised in evidence which are not relevant to the decision under review before the Tribunal and therefore are not necessary to canvass in these Reasons however, the fact that they are not mentioned herein does not diminish the importance of those issues between the parties.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     in respect of [Child 1], the care percentage determinations of 49% to Mr Croasdell and 51% to Ms Canyer are revoked on 4 February 2022 and replaced with new care percentage determinations of 0% to Mr Croasdell with effect from 5 February 2022, and 100% to Ms Canyer with effect from 15 June 2022;

·     in respect of [Child 2], the care percentage determinations of 49% to Mr Croasdell and 51% to Ms Canyer are revoked on 4 February 2022 and replaced with new care percentage determinations of 7% to Mr Croasdell with effect from 5 February 2022, and 93% to Ms Canyer with effect from 15 June 2022.