Chow and Chow (Child support)

[2018] AATA 4161

Chow and Chow (Child support) [2018] AATA 4161 (17 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014413

APPLICANT:  Mr  Chow

OTHER PARTIES:  Child Support Registrar

Mrs Chow

TRIBUNAL:  Member S Cullimore

DECISION DATE:  17 September 2018

DECISION:

The decision under review is set aside and a new decision substituted that Mr Chow’s care percentage is 37% and Mrs Chow’s care percentage is 63% from 1 January 2018.

CATCHWORDS
CHILD SUPPORT – percentage of care – change in the likely pattern of care – interpretation of court orders – decision to revoke the existing determination of percentage of care and make a new determination – 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

1. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Chow and Mrs Chow are the parents of one child, [Child 1], who is now 4.

3. On 12 February 2018 a delegate decided to change the care percentages to 44% to Mr Chow and 56% to Mrs Chow from 1 January 2018.

4. Mrs Chow lodged an objection on 21 February 2018.

5. On 22 June 2018 an objections officer partly allowed the objection and changed the care percentages to 36% to Mr Chow and 64% to Mrs Chow from 1 January 2018.

6. On 25 June 2018 Mr Chow sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C157.

2. Both parties attended the hearing on 30 August 2018 in person and gave evidence and made verbal submissions.

3. The Tribunal deferred the matter 14 days to enable the parties to confer with their legal advisers to see if they could in fact agree upon an interpretation of the Court Orders, which were at the core of the dispute as to care percentages (see below).

4. The Tribunal was advised that no agreement could be reached and it made this decision on 17 September 2018.

ISSUES

11.The principal issues to be decided by the Tribunal in a case such as this are: (1) whether the original decision made on 12 February 2018 was the correct and preferable decision in all of the circumstances, and, (2) if not, what is the correct and preferable decision?

CONSIDERATION

The relevant child support law

12.The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (“the Assessment Act”).

13.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

14.The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of the care arrangements.

15.Under section 54F if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s “cost percentage”, then the Registrar must make a new care determination.

16.Any new care determination takes effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification: subsection 54F(2).

17.Not all changes of care should automatically be reflected in a child support assessment.

18.The Child Support Guide, the CSA’s online policy and legislation resource (“the Guide”) relevantly states as follows on the issues of what constitutes a change of care which should be reflected in the child support assessment:

2.2.2 Care Determinations & Changes in Care

…..

The Registrar will usually determine a percentage of care based on the actual care that each parent or carer has of the child. …..

When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances. ….

Change in pattern of care

When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.

19.Importantly, the Tribunal’s role in care percentages cases is that it may only review the legal correctness of the original care decision, based on what evidence was available to the original decision maker, as supplemented by any further relevant material supplied to the objections officer, and of course any further relevant information supplied to the Tribunal itself.

The relevant facts

20.The Tribunal has considered the documentary evidence and the verbal evidence of the parties and finds the following further facts:

·The child support case was registered on 14 May 2015;

·Before it made the decision under review, the CSA was using care percentages of 28% for Mr Chow and 72% for Mrs Chow;

·Those percentages of care had been in place since 26 September 2015;[1]

[1] C152.

·Court Orders were made regarding care on 5 April 2017;[2]

[2] C42 onwards.

·On 27 January 2018 Mr Chow notified the CSA that there had been a change in care from 1 January 2018 as (he advised) from that date the Court Orders had given him increased care;[3]

[3] C23.

·On 12 February 2018 a delegate decided to change the care percentages to 44% to Mr Chow and 56% to Mrs Chow from 1 January 2018;[4]

[4] C64.

·This decision resulted in Mr Chow paying $7,026pa in child support (in lieu of $10,445pa);[5]

[5] C68 onwards.

·Mrs Chow lodged an objection;

·Mrs Chow told the objections officer (in essence) that under the terms of the Court Orders the level of care of Mr Chow had not increased after 1 January 2018 and the objections officer accepted that argument and reduced the level of care of Mr Chow to 36%;

·That decision increased his child support liability to $9,905pa;[6]

[6] C19.

·The parties have recently applied to the Court for amended Orders.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

Does section 51 or 52 apply?

21.The Tribunal must determine exactly which provisions of the Assessment Act should be applied in the circumstances.

22.The Tribunal considered sections 51 and 52 which apply to some instances of court-ordered care.

23.These provisions (broadly speaking) allow for two care determinations to be made, one to apply on an interim basis, in some circumstances, where one party has acted in contravention of court orders, and the other party takes action to enforce those orders, or to obtain new orders. One care determination is based on the care percentages determined by the Court Orders themselves, the other is based on what actual care is happening.

24.The evidence of the parties was that (i) they were agreed on what care of the child had in fact taken place since 1 January 2018; (ii) they were both prepared to follow the Court Orders, but (iii) they were disagreed on the meaning and interpretation of the Court Orders.

25.In view of this state of affairs, the Tribunal is satisfied that this matter should not be treated as a case of contravention of Court Orders, as such, and therefore these provisions do not apply.

Interpretation of Court Orders

26.The Tribunal has concluded that the outcome of this matter must turn on the interpretation of the Court Orders.

27.The Tribunal has carefully considered the terms of the Court Orders.

28.It seems clear enough that the Court Orders, read as a whole, provide for an agreed, progressively increasing level of care of the child for Mr Chow, evolving over time.

29.The Orders were made 5 April 2017 and provided that from 5 May 2017 Mr Chow would have four nights care of the child in each fortnightly cycle, three nights in week one and one night in week two, and this was irrespective of whether it was “term time” or not (bearing in mind that the child was only three when the Court Orders were made).

30.Then, “as and from term 1 2018” this level of care would increase to five nights care of the child in each fortnightly cycle (paragraph 3(a) subparagraph (iii)). Then, “as and from term 1 2020” this level of care will increase again to six nights care of the child in each fortnightly cycle.

31.The Tribunal considers the expression “as and from term 1 2018” in paragraph 3(a) subparagraph (iii), in its context, and given that it refers to care starting and ending at the conclusion or commencement of the child attending kindergarten, to mean “from the commencement of term 1 2018” i.e. from 29 January 2018.

32.Paragraph 4 relevantly stated:

“THAT for the purposes of school holidays NOTING that the fortnightly rotation of time as referred to in paragraph 3 herein do continue save as otherwise specified herein the child….live with each of his parents as follows:

(a)   With the father:-

i)Commencing in January 2018 for five consecutive nights in the first week of the two weekly cycle;

ii)Commencing in the April 2019 school holiday period for six (6) consecutive nights in the first week of the two weekly cycle…..;”

33.The Tribunal has concluded that the underlying intention of paragraph 4(a) was to give Mr Chow an increased level of care of the child during the January 2018 school holidays. His level of care had been four nights in each fortnightly cycle (see paragraph 31, above) and paragraph 4(a) increased this to six nights in each fortnightly cycle. The intention was not to add an additional five nights in each fortnight to the current four. That finding effectively disposes of Mr Chow’s main argument.[7]

[7] See his letter at C79.

34.As to the “operative date” of this increased level of care for Mr Chow in school holiday periods, the Tribunal has concluded that the expression “[c]ommencing in January 2018” in paragraph 4(a) subparagraph i) means “commencing on 1^st January 2018”. The school holidays were current as at that date and almost all of January 2018 was a “school holiday period” which is the (more accurate) expression in fact used in subparagraph (ii). The evidence is that “Term 1 2018” started on 29 January 2018, when the child restarted at kindergarten.

35.The Tribunal finds therefore, in all the circumstances, that care did change, under the terms of the Court Orders, from what had previously been recorded (28%/72%), and did so in a way that changed the cost percentages. A new care determination must therefore be made.

36.The Tribunal finds that this change did occur from 1 January 2018.

37.The notification of the care change was within 28 days and so the date of effect of any care change is 1 January 2018.

38.The current level of care will continue until the April 2019 school holiday period, but the Tribunal considers that to give an accurate picture of the current care arrangements an appropriate care period would be the 12 months from 1 January 2018 to 31 December 2018.

39.The number of nights care of the child for Mr Chow during calendar year 2018 under the Court Orders, as interpreted above, is as follows:

Term time

5 nights per fortnight x 40 weeks (20 fortnights) = 100 nights

School holiday periods

·1 January 2018 to 29 January 2018 = two fortnights x 6 nights per fortnight = 12 nights;

·April / July / October 2018 = total of 6 weeks = 3 fortnights x 6 nights per fortnight = 18 nights;

·Mid December 2018 to end December 2018 = one fortnight x 6 nights per fortnight = 6 nights.

40.This calculation gives Mr Chow 136 nights of care in calendar year 2018, which, rounded down, is 37% of care. This means that Mrs Chow’s care percentage is 63%.

41.Finally, the Tribunal notes that none of the very specific clauses regarding special days (birthdays, Christmas, [specific]religious festivals, and so on) as provided for in clauses 5 and 6 of the Court Orders impact on the care percentages.

DECISION

The decision under review is set aside and a new decision substituted that Mr Chow’s care percentage is 37% and Mrs Chow’s care percentage is 63% from 1 January 2018.