Chafetz and Child Support Registrar (Child support)

[2021] AATA 1970

Chafetz and Child Support Registrar (Child support) [2021] AATA 1970 (29 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020720

APPLICANT:  Mr Chafetz

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Byers

DECISION DATE:  29 April 2021

DECISION:

The decision under review is varied so that, with effect from 20 August 2020, Mr Chafetz has 42% and [Ms A] 58% of [Child 1]’s care.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review varied

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. Mr Chafetz and [Ms A] are the parents of [Child 1], born [in] December 2019.  This matter concerns [Child 1]’s care, which is not regulated by a court order or written agreement. 

2. On 20 August 2020 [Ms A] lodged an application for a new child support assessment by the Child Support Agency (CSA).  In her application [Ms A] advised she had 21% and Mr Chafetz 79% of Madelaine’s care from 6 December 2019.  This obvious mistake was amended on 28 August 2020 when [Ms A] informed the CSA she had 70% and Mr Chafetz 30% care from 6 December 2019.

3. The CSA noted that Centrelink had already decided that [Ms A] had 100% and Mr Chafetz 0% of [Child 1]’s care from 6 December 2019 and took the view it was obliged to use this assessment under statutory rules relating to the uniformity of care decisions between the CSA and Centrelink.  Accordingly, on 16 September 2020 the CSA formally adopted Centrelink’s care percentage determinations for the purposes of assessing Mr Chafetz’ child support liability from 20 August 2020.

4. On 30 September 2020 Mr Chafetz informed the CSA that, due to a roster change, he had care of [Child 1] for 156 nights per year, or 42% care from 20 August 2020.  According to the file note, Mr Chafetz said he always had [Child 1] for “a couple of nights a fortnight” before this.

5. On 16 October 2020 [Ms A] is recorded as stating that there was not a change of care as Mr Chafetz advised and that since July or August 2020 he had two days per fortnight care and no overnight care.

6. The CSA took the view that there was no change of care on 20 August 2020 and that Mr Chafetz’ actual concern was Centrelink’s decision (as adopted by the CSA) that he had 0% care from [Child 1]’s birth.  Following the CSA’s advice, Mr Chafetz lodged an objection to this decision on 4 November 2020.

7. In his objection Mr Chafetz stated he and [Ms A] remained in a relationship until 16 May 2020 and on this footing claimed equal care of [Child 1] with [Ms A].  After 16 May 2020 Mr Chafetz stated he had care three nights a week, or 42% care.

8. As a response, [Ms A] is recorded on 4 December 2020 as agreeing that, although Mr Chafetz’ care was inconsistent, he would have had around three nights care per week since 20 August 2020.  A CSA officer informed Mr Chafetz that, although the parties agreed to the care position as at 20 August 2020, this could not be implemented because his objection was in progress.

9. On 11 December 2020 [Ms A] is recorded as changing her position again.  On this occasion [Ms A] considered that she had 70% and Mr Chafetz 30% of [Child 1]’s care from 17 May 2020, although she appeared willing to concede the arrangement might have been that Mr Chafetz had 35% care.

10.  An objections officer considered the matter on 24 December 2020.  As part of the objections process Mr Chafetz supplied contact times with [Child 1] in a receipt book, which included days of care as well as overnight care.  The period covered was 30 May to 2 November 2020.  The objections officer added the hours claimed and on this footing decided Mr Chafetz had 17% and [Ms A] 83% of [Child 1]’s care for this period.  In the absence of more specific evidence, the objections officer extrapolated this to 6 December 2019.  However, for child support purposes the date of effect of this decision was said to be 20 August 2020 (when [Ms A] lodged her child support assessment application).

11.  Due to an apparent anomaly in the child support legislation, [Ms A] is not an automatic party to this application.  [Ms A] did not accept the Tribunal’s invitation to be added as a party and has not otherwise provided any evidence to the Tribunal.

12.  At the hearing on 29 April 2021 Mr Chafetz gave sworn evidence by telephone.  I accepted into evidence the subsection 37(1) documents provided by the CSA, comprising folios 1 to 365 (Exhibit 1) and further documentation Mr Chafetz provided (Exhibit A).      

CONSIDERATION

13. As noted, [Ms A] applied for a child support assessment for [Child 1] on 20 August 2020. This was done in accordance with section 23 of the Child Support (Assessment) Act 1989.[1] Section 23 refers (amongst other things) to the requirements under section 25 regarding applications by a parent.

[1]All legislative references are to this Act unless otherwise stated.

14.  Where a parent has applied for an administrative assessment in accordance with section 25 and the CSA is satisfied the application has been properly made, the CSA must accept the application (section 30).

15.  Under section 31, where an application under section 25 is accepted, the CSA is to assess the annual rate of child support payable under Part 5 for the (initial) child support period that starts on the day the application was made.

16.  Section 31 accordingly includes a requirement for the CSA to determine the parents’ respective percentages of care on and from the date of an application under section 25.  The division of care of an eligible child is regulated by Division 4 of Part 5.  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. 

17.  Subsection 50(1) requires that, following an application under section 25, the CSA must determine a parent’s percentage of care for a child during a care period.  Taken in conjunction with section 31, this provision requires a decision-maker to have regard to the care position at the time the application is made.  The care period to be ascertained will therefore commence on this date.      

18.  As [Ms A] lodged her application under section 25 on 20 August 2020, it follows from the provisions outlined that the care position for a care period commencing on this date is to be determined.

19.  Mr Chafetz’ consistent position is that, as at 20 August 2020, [Child 1] was in his care for an average of three nights a week.  This amounts to 42% care rounded down under section 54D.  As noted, [Ms A] is recorded on 4 December 2020 as concurring, although on 11 December 2020 she is recorded as saying it was difficult to establish a pattern.  On this occasion [Ms A] estimated Mr Chafetz’ care at 30% or 35%. 

20.  [Ms A] has not at any point supplied evidence of the care taking place.  Mr Chafetz has supplied several referee statements, although I consider these are vague in detail and therefore of little present utility.  As noted, Mr Chafetz has also supplied a record of his contacts from 30 May to 2 November 2020, which the objections officer used to conclude that he had 17% care as at 20 August 2020.

21.  Mr Chafetz indicated he never intended the record provided to be the sole determinant of his care percentage.  Mr Chafetz said this information was only what he could prove because it was backed by (automatically dated) text messages between himself and [Ms A].  However, he indicated it was not exhaustive because of lot of his care was also arranged by phone.   

22.  Mr Chafetz and [Ms A] agree that there was no set pattern of care in place as at 20 August 2020.  Nevertheless, I am satisfied on the available evidence from both parents that Mr Chafetz was averaging three nights care per week as at 20 August 2020, which results in 42% care for him and 58% care for [Ms A].  I also consider this was the likely care arrangement going forward (and note in this regard that the CSA has accepted this was the care arrangement as at 3 November 2020).  Accordingly, I make care determinations under section 50 to this effect.

23.  Mr Chafetz challenged the CSA’s decision (of 16 September 2020) relating to [Child 1]’s care in writing on 30 September 2020 together with his reasons.  I am satisfied this amounted to an objection to the care percentage determinations then in place.  As the objection was within 28 days, the date of effect of my care percentage determinations would ordinarily be 20 August 2020.[2] 

[2] The relevant provisions relating to internal reviews are found in Part VII of the Child Support (Registration and Collection) Act 1988.

24.  However, as there is said to be a Centrelink care decision in place as at 20 August 2020, the effect of section 54K falls to be considered.  As far as is relevant, section 54K provides that, if Centrelink has determined a parent’s percentage of care under the family assistance law and the care determination has not ceased to apply or been revoked, then the care determination has effect for child support purposes as if it was a determination made by the CSA under corresponding provisions in the child support law.  Centrelink’s care determination may cease to apply, or be revoked, under the child support law in the same way a determination under section 50 may cease to apply, or be revoked.

25.  The CSA has not provided any information about Centrelink’s care determination apart from the fact it took effect from 6 December 2019.  Accordingly, I am unaware of when the decision was made, or what information Centrelink considered.  Mr Chafetz said he only became aware of the existence of family tax benefit this year and so it seems he was not consulted.

26.  In any event, section 54K appears to have the effect that the CSA is taken to have decided under section 49 in Mr Chafetz’ case and section 50 in [Ms A]’s case that that their care percentages from 6 December 2019 were 0% and 100% respectively (irrespective of the fact there was no child support assessment in place at the time).  Thus, a determination that different care percentages apply at the time a parent applies for a child support assessment would require the revocation of Centrelink’s care percentage determinations.

27.  In the present matter the revocation is given effect under section 54F (as there will be a change in the cost percentages for [Child 1]).  Subsection 54F(3) regulates the date of effect of the revocation.  If the CSA or Centrelink is notified of the care change within 28 days of the change, the date of effect is the day before the change.  Otherwise, for the parent whose care percentage has increased, the date of effect is the date the CSA or Centrelink is notified.  For the parent whose care has reduced, the date of effect is the day before the change of care day.

28.  Thus, the existence of a Centrelink care determination at the time of a parent’s application under section 25 appears to oblige the CSA to look at the care position prior to the application.  This appears the case even though a date of effect under subsection 54F(3) that is earlier than the application date has no substantive effect for child support purposes.  In this regard, as noted, section 50 is triggered by a parent’s application under section 25.  Subsections 50(2) and (3) then require a determination of the care percentage “that corresponds with the actual care of the child” during the care period (which commences on the date of the application). 

29.  As discussed, I have found there was a different care pattern at the time of [Ms A]’s application to that determined by Centrelink.  Although the change of care as found has occurred, I am satisfied it cannot be said with any confidence exactly when it occurred.  Accordingly, I find the change occurred on or about 20 August 2020.  As [Ms A] notified a change in care in her application, the date of effect under subsection 54F(3) is 20 August 2020. 

30.  As this outcome differs from that reached by the objections officer, I will vary the decision under review.  For completeness, this decision does not affect any determination the CSA may make about a subsequent change of care for [Child 1].

DECISION

The decision under review is varied so that, with effect from 20 August 2020, Mr Chafetz has 42% and [Ms A] 58% of [Child 1]’s care.