Cloughessy and Cloughessy (Child support)

[2024] AATA 2526

Cloughessy and Cloughessy (Child support) [2024] AATA 2526 (15 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027290

APPLICANT:  Mr Cloughessy

OTHER PARTIES:  Child Support Registrar

Mrs Cloughessy

TRIBUNAL:Member R Prasad

DECISION DATE:  15 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 3 May 2023 and a new care determination is made that Mr Cloughessy had 13% care and Mrs Cloughessy had 87% care of the children from 4 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – relocation for work – existing percentage of care determinations revoked – 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. Mr Cloughessy (the father) and Mrs Cloughessy (the mother) have had a registered child support assessment for their three children since 16 March 2018. Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 65% care and the father 35% care from 7 October 2019. These percentages denote the existing percentages of care.

2. On 17 May 2023, the father notified Child Support of a change in the care on the basis that he had to relocate towns for work and that he will have 60 nights care a year or 16% care from that date.

3. On 31 May 2023, the mother disagreed with the care change, saying that the father will have 49 nights care a year from 4 May 2023.

4. On 7 July 2023, Child Support applied a care decision made by the Family Assistance Office of Services Australia – Centrelink that the mother had 84% care and the father had 16% care from 15 May 2023. The mother lodged an objection to this decision.

5. On 14 December 2023, Child Support allowed the mother’s objection and decided that the father had 13% care from 15 May 2023 (the objection decision). The Child Support records however indicate that care percentages of 88% to the mother and 12% to the father were instead applied.

6. On 4 January 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard on 19 April 2024. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to be represented at the hearing but provided documentation (folios 1 to 207). After the hearing, the father provided documentation to support his claims made at the hearing (folios A1 to A14), as did the mother (folios B1 to B25).

ISSUE

1. The relevant issue before me is whether there was a change to the children’s care arrangements, and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 50 of the Child Support (Assessment) Act 1989 (the Act) provides that if an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order.

3. The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person. 54D provides that a percentage of care must be rounded up to the nearest whole percentage if it is greater than 50% and rounded down to the nearest whole percentage if it is less than 50%.

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if sections 51 and 54G do not apply and there is a change to a person’s cost percentage, which is dependent on a change to the care percentage.

5. Section 54G of the Act is applicable where a person was to have regular care of a child during a care period and has had less than regular care of the child, a determination has been made that the other responsible person had at least regular care of the child and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.

6. Under section 55C of the Act, a person has a different cost percentage if their care percentage changes. In particular, care percentages between 0% and 13% have a costs percentage of 0%, and care percentages between 14% and 34% have a cost percentage of 24%.

What information has been provided in relation to the care of the children?

1. The father advised that there were court orders in place about the care of the children, but this was dismissed as he had relocated for work to provide income to support his family. The parents are currently in mediation in relation to care of the children, but the mother has failed to participate. He asserted that while the court orders were dismissed, they remain active until other parenting plans exist. At minimum, he has care of the children for half of every school holiday and as the children attend private school, the holidays are extended. The parents have changed the terms of the court orders such that instead of having care over the summer school holidays in alternating weeks, because the father does not live in close proximity, they have split the holidays in half. Further, the mother has also altered the terms that holidays commence from the Saturday instead of 3pm on Friday, and end on Sunday instead of 8:30am on Monday, effectively reducing his care by two nights. He agreed to do this for the July 2023 school holidays but it will need to be further discussed. He asserted that the mother was technically withholding care but has not filed a contravention order because of the costs and does not want to go down that path. He provided a care calendar and calculated that he would have care for 55 nights in the year commencing from June/July 2023. In the following year, he would have 51 nights care, and therefore said he would have an average of 53 nights. The father confirmed that he has not had any care outside of the school holidays.

2. The father provided an email exchange with the mother that indicated he had overnight care of the children from 29 June 2023 to 6 July 2023, 1 December 2023 to 26 December 2023 and 28 March 2024 to 5 April 2024. The emails indicate that while alternate dates were proposed for some of the holidays, the above dates were agreed upon by both parents and that is when care actually occurred. At the hearing, the father advised that he also had care from 24 September to 2 October 2023.

3. The mother advised that the care change occurred from 4 May 2023, which is when the father stopped his weekend care, being from Thursday to Sunday each alternate week, as he was relocating, and she provided an email exchange to confirm this. In this regard, the father confirmed that this date sounded correct. In relation to the children’s school, she stated that two of the children attended a Catholic school, and they have seven weeks of summer school holidays. However, their other child started attending a public school from February 2024, and therefore the public school holiday calendar should be considered, where there are six weeks of summer holidays, as the children will spend the same time with their father over the holidays. At the hearing, the father confirmed that he would have care of the children at the same time even where the holidays were different, which is what he did for the Easter holidays when he had care for the first half of the holidays. She confirmed the dates as indicated in the email exchange and noted that the father also had care from 24 September 2023 to 1 October 2023. An email exchange the mother provided dated 17 September 2023 indicates that the father had care from 24 September 2023, which is not in dispute, but that the children were dropped back to the mother on 2 October 2023.

Has there been a change to the care of the children?

1. I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the children were, or were likely to have been, in a parent’s care. I note that I understand I am able to consider relevant events that have occurred after the date of notification of the change in care to inform my decision.[1] I must also be satisfied of the pattern of care for the children during the care period as I consider appropriate in the circumstances.

   [1] Child Support Registrar v BKCZ [2023] FCA 1109 at [86]; Child Support Registrar v DQFY [2023] FCA 601 at [94].

2. The facts before me indicate that the existing court orders are not followed as the father relocated and has been unable to undertake alternate weekend care. He asserts that he has had holiday care, and that the court orders should be followed in this respect, despite whether he had care on those days. The information before me indicates that the court orders were not specifically followed for holiday care, and the father has asserted that this is because the mother decided to reduce holiday care by a day on each side of the holidays. While the father says the mother was contravening the court orders by doing this, I understand the parents have agreed to the dates where the father had care, with the father agreeing at times to the reduced hours and other times, not agreeing. The father has also not made an application for contravention of the orders, and I note that other parts of the orders are not complied with such as the father having overnight care of the children from Thursday to Sunday each alternate week. The parents also confirmed that the change in care occurred from 4 May 2023, being when the father relocated and the first week he missed care of the children.

3. Section 50 of the Act requires that I be satisfied of the pattern of care for the children during the care period. Having considered the information before me, I am satisfied that there is a pattern of care where since 4 May 2023, the father has had half the school holiday care, and no school term care. As the father has school holiday care of the children at the same time and as one child has started attending a public school since 2024, from my calculations, the father will have 13% care and the mother 87% care from that date.

4. For completeness, I make the following observations. Situations such as where the parents agree that the school holiday period commences a day later or finishes a day earlier, or any one-off events, would not constitute a change to the pattern of care. The operative word is pattern in this regard. I have reached this conclusion after considering the Child Support Guide at 2.2.1, which states that minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination. The Tribunal can have regard to the Child Support Guide, though it is not bound to follow it.[2] In G v Minister for Immigration and Border Protection [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.

   [2] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

5. I note that even if I were to accept the actual nights of holiday care by the father, which from my understanding of the material before me, as mentioned above, occurred on 29 June 2023 to 6 July 2023, 24 September to 1 October 2023, 1 December 2023 to 26 December 2023 and 28 March 2024 to 5 April 2024. This comprises 51 nights of care, and not 53 or 55 nights as the father claimed, which pursuant to section 54D, is still 13% care.

6. Accordingly, I am satisfied that the requirements of section 50 of the Act are met and the pattern of care, pursuant to section 54D, for the father has been 13% and the mother has been 87% since 4 May 2023.

7. I note that the existing care arrangements are not being complied with and that reasonable action has not been taken to ensure it is complied with, and therefore section 51 of the Act is not applicable. Further, as the mother did not notify of the care change, section 54G does not apply. Accordingly, pursuant to subsection 54F(3) of the Act, as notification was made within 28 days of the change of care, the date of revocation of the determination of the existing percentage of care is 3 May 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 3 May 2023 and a new care determination is made that Mr Cloughessy had 13% care and Mrs Cloughessy had 87% care of the children from 4 May 2023.