Corbine and Wichelo (Child support)

[2022] AATA 3047

Corbine and Wichelo (Child support) [2022] AATA 3047 (18 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023779

APPLICANT:  Mr Corbine

OTHER PARTIES:  Child Support Registrar

Ms Wichelo

TRIBUNAL:Member E Kidston

DECISION DATE:  18 July 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

·     the existing care percentage determination of 95% to Ms Wichelo is revoked from 20 December 2021 and replaced with a new care percentage determination of 86% with effect from 21 December 2021; and

·     the existing care percentage determination of 5% to Mr Corbine is revoked from 20 December 2021 and replaced with a new care percentage determination of 14% with effect from 21 December 2021.

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. This review application concerns a decision of Services Australia – Child Support Agency (CSA) about the recorded percentage of care determinations for Mr Corbine and Ms Wichelo in respect of their child [Child 1] (born 2013).

2. From 17 January 2019, the percentages of care concerning [Child 1] recorded by the CSA were 95% to Ms Wichelo and 5% to Mr Corbine.

3. On 14 December 2020, following a telephone mediation conference, Mr Corbine and Ms Wichelo entered into a parenting agreement (Parenting Plan).

4. On 3 December 2021, Mr Corbine contacted the CSA advising that the care of [Child 1] had changed from 11 November 2021 and that he would provide 67 nights care in a year in accordance with the agreed care arrangements that were in place prior to COVID-19 lockdowns and state border closures. Mr Corbine subsequently informed the CSA that the change in care actually occurred on 21 December 2021 when [Child 1] travelled to Melbourne and stayed with him for eight nights. 

5. On 30 January 2022, the CSA accepted Mr Corbine’s evidence and decided to revoke the pre-existing care percentage determinations and recorded new care percentage determinations of 18% to Mr Corbine and 82% to Ms Wichelo to apply from 21 December 2021.

6. On 9 February 2022, Ms Wichelo objected to the CSA’s decision on the basis that Mr Corbine had less than 18% care of [Child 1] in a 12-month period when properly considering the care arrangement set out in the Parenting Plan.

7. On 28 April 2022, the CSA allowed the objection in part and made determinations that Mr Corbine had 13% care and Ms Wichelo had 87% care of [Child 1], both with effect from 21 December 2021.

8. On 29 April 2022, Mr Corbine applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the CSA’s decision. Mr Corbine challenged the CSA’s decision on the basis that the CSA had not properly calculated the care percentage in accordance with the Parenting Plan going forward as evidenced by the actual care that had occurred to date.

9. The hearing of the application was held by the Tribunal on 18 July 2022. Mr Corbine (as applicant) and Ms Wichelo (as the other party) each spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend, as is customary.

10. In considering the application, the Tribunal took into account the oral evidence of Mr Corbine and Ms Wichelo 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), Mr Corbine’s documents to the Tribunal and exchanged before the hearing (marked Exhibit A) and Ms Wichelo’s documents provided to the Tribunal and exchanged before the hearing (marked Exhibit B).

RELEVANT LAW

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That legislation sets out the rules for assessing, revoking and making new care determinations to take into account a change in care which are then used as part of the child support formula to assess child support payment rates.

2. Pursuant to Division 4 of Part 5 of the 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 and what is the likely pattern of care thereafter. To consider whether any existing care percentages should be changed, it is therefore necessary to examine the likely pattern of care by reference to an appropriate care period.

3. In making its decision, the CSA refers to the Child Support Guide, a departmental policy to assist decision-makers 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] Re Drake and 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.

4. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed and generally, the number of nights a person cares for a child will be the best measure of their percentage of care.  These points are explained in the Child Support Guide at 2.2.1.

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, consideration will be given to the information provided and obtained and whether there is some common expectation about future care. It further states that if the information and evidence provided by the parents cannot be reconciled, 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.

ISSUES

1. The first question to consider in this matter is whether the existing care determinations of 95% and 5% should be revoked. Subsection 54F(1) of the Act provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Once revoked the Registrar must make a new care determination. 

2. It is not in dispute that a change in care event occurred for [Child 1] on 21 December 2021 and it is correct for the CSA to revoke the then existing care percentages.  The issue relevant to this review is what new care determinations ought to be recorded from that date. Relevantly, section 50 of the Act requires consideration of whether a 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.” As noted above, it is a point in time assessment.  Although, what is projected as being the likely care to happen may not actually eventuate, and when that is the case, a parent can notify the CSA and a new care determination can be made. However, the legislative test at first instance (and on review by the Tribunal) requires an assessment of the pattern of care of the child for the care period based upon what had happened leading up to the date of notification (here, 3 December 2021) and what was, at that time, likely to happen with care thereafter.

3. Therefore, the Tribunal will have regard to the likely pattern of care concerning [Child 1] in relation to the notification of change of care made by Mr Corbine, and what new care percentages are to be attributed to Ms Wichelo and Mr Corbine, and the dates of effect, if relevant.

4. It is convenient for the Tribunal to note that a number of background issues of importance to both Mr Corbine and Ms Wichelo were raised in oral submissions at the hearing which are not relevant to the issues before the Tribunal and therefore are not mentioned in these Reasons. As discussed at hearing, the Tribunal is required to consider the issues before it based on the relevant facts and application of the law at a point in time and it is not the role of the Tribunal to adjudicate on other areas of dispute that may exist between the parties or to facilitate a new parenting agreement. However, in stating that, the Tribunal does not disregard the possible difficulties in navigating disputed care review processes.

CONSIDERATION

1. Ms Wichelo and [Child 1] live in Adelaide and Mr Corbine lives in Melbourne.

2. In his opening submissions, Mr Corbine told the Tribunal that COVID-19 and state government travel restrictions in 2020 and 2021 limited [Child 1’s] ability to travel to and spend time with him in Melbourne and was the reason for why the pre-existing care percentages were set as 95% to Ms Wichelo and 5% to him. 

3. Mr Corbine said that in December 2021, he contacted the CSA as he expected a change in care arrangements concerning [Child 1] because the South Australian and Victorian border restrictions had eased, allowing interstate travel.  He expected his care of [Child 1] to increase to the level of care as set out in the Parenting Plan which had been agreed upon at a telephone mediation conference after Ms Wichelo relocated to Adelaide.

4. Mr Corbine said that he agreed with the care percentage determinations made by the CSA on 30 January 2022 as 18% to him and 82% to Ms Wichelo, but does not accept the objection decision to decrease his percentage of care from 18% to 13%, which is based on him having about 50 nights care of [Child 1].

5. Mr Corbine told the Tribunal that over the ensuing months his actual care of [Child 1] was greater than the 13% as calculated by CSA, and has calculated that from 21 December 2021 to the end of this year he will have approximately 65 to 70 nights of care. 

6. Not dissimilarly, Ms Wichelo told the Tribunal that she agreed with Mr Corbine’s evidence in so as far as the intention for care of [Child 1] from December 2021 was to follow the Parenting Plan.  She said the reason for her objection was that she did not agree with the CSA’s initial calculation of care percentages as an accurate record of the care arrangement set out in the Parenting Plan and agreed by them.   On her interpretation of the Parenting Plan, Ms Wichelo considered the care percentage to her should have been set at a percentage of more than 82%, and she provided a calendar to the CSA where she marked out the actual nights of care Mr Corbine had of [Child 1] in 2021 and part of 2022, as well as the nights care she anticipates him to have for the balance of 2022 and 2023.  

7. Ms Wichelo stated that she accepts the objection decision of 24 April 2022 and agrees with the CSA’s recorded care percentage of 87% to her from 21 December 2021. 

8. Ms Wichelo said that actual care followed the Parenting Plan for the first half of the 2022 except for a minor variation in March and April due to COVID-19. However, in July 2022 [Child 1] experienced anxiety with travelling alone and refused to board the plane in Adelaide.  As a result, she has not spent the intended eight nights in Melbourne with Mr Corbine for the July school holidays.  Ms Wichelo stated that she considers it important for [Child 1] to spend time with her father and is willing to facilitate and give effect to the care arrangement set out in the Parenting Plan but stated that consideration must also be given to [Child 1’s] age, school and social commitments and her anxieties with travelling going forward.

9. The Tribunal accepts the information provided by Ms Wichelo of care not always following the Parenting Plan and that minor variations to anticipated travel dates occurred due to illness (COVID-19) and [Child 1’s] anxiety about travelling alone. However, as explained during the hearing, settling on a pattern of care to apply to a future period by the CSA is not a warranty of perfection, and is not intended to account for every single day. The general approach is to use the best evidence (here, the Parenting Plan and care calendars of anticipated care) to arrive at a reasonable forecast of a pattern, or likely pattern, of care, going forward from the date of Mr Corbine’s notification.

10. Ultimately, both Mr Corbine’s and Ms Wichelo’s evidence at the hearing and as detailed in the Exhibits was that, at the point in time of Mr Corbine’s notification to the CSA, there was an expected change in care for [Child 1] which occurred on and from 21 December 2021 and the parties intended to follow the care arrangements as they understood it under the Parenting Plan. 

11. The Tribunal had regard to the Parenting Plan in Exhibit 1. The relevant provision concerning allocation of care between the parties states that [Child 1] will spend time with Mr Corbine as may be agreed.  Failing agreement between them, it sets out the following care framework:

    ·     For one long weekend (minimum two nights) in Melbourne during each school term (with it being no later than six weeks between time spent with Mr Corbine);

    ·     For at least seven nights in each school holiday period; and

    ·     For the entire Christmas period in odd-numbered years.

12. The Tribunal calculated the minimum nights set out under the Parenting Plan amounts to approximately 42 nights[2] in a 12-month period.  This is an amount much less than what has been calculated by the CSA and the expected care explained by the parties at the hearing as their understanding of the Parenting Plan.

    [2] School holidays (4 x 7 nights); Mid Term weekend (4 x 3 nights); and Christmas period (2 nights)

13. From the evidence before it, the Tribunal considers that both Mr Corbine and Ms Wichelo agree the Parenting Plan sets out a minimum care arrangement for [Child 1] failing agreement; however, they had intended for Mr Corbine to have more than the stipulated minimum in the school holidays, as follows:

    (1)Reference to school holidays in the Parenting Plan was that it would be at least seven nights care to Mr Corbine in each school holiday period. 

    In evidence, Mr Corbine and Ms Wichelo agreed that [Child 1] would spend more than seven nights in each school holiday period with Mr Corbine. Mr Corbine stated that he wanted more than seven nights in the school holidays and Ms Wichelo stated that she had agreed to slightly more than seven nights being: nine nights in the longer end-year school holidays (December/January); and eight nights during the shorter school term holidays (April, July and October). 

    From the care calendars in evidence in Exhibits A and B, the actual pattern of care in December 2021 onwards showed that Mr Corbine had: eight nights in December 2021; nine nights in January 2022; nine nights in April 2022; and anticipated eight nights in July 2022.

    The Tribunal considers Ms Wichelo’s explanation of the expected number of nights during school holidays is closer to what actually eventuated and it was therefore used by the Tribunal in its calculations. 

    (2)Notably, there are four school holiday periods: summer break (December/January), Easter break (March/April), winter break (June/July) and spring break (September/October).

    The period from the end of school in December through to the commencement of a new school year in January is considered “one” school holiday period.  The Parenting Plan specified a minimum of seven nights in that period (excluding the Christmas period).  However, it is clear from the evidence that the pattern of care intended by both Ms Wichelo and Mr Corbine for the December/January school holiday period was for Mr Corbine to have slightly more than the minimum care of seven days in December and again in January, and so finds.

    (3)Further clarification was given as to the intended care of [Child 1] over the Christmas period.  It was raised at the hearing that [Child 1’s] birthday is in December and that Mr Corbine and Ms Wichelo had agreed, and a pattern had emerged, where one parent has care of [Child 1] the first part of the December school holidays to include [Child 1’s] birthday and the other parent has care of [Child 1] for the second part of the December school holidays to include the Christmas period and that this arrangement would alternate each year. The Tribunal has accepted this explanation as what was intended by the parties.

14. In evidence, the care calendars provided by Mr Corbine in Exhibit A and Ms Wichelo in Exhibit B differed slightly in relation to their respective interpretation of [Child 1’s] long weekend visitations to Melbourne during the school terms, specifically that as calculated by Mr Corbine for August and September 2022.  Mr Corbine gave an explanation for how he calculated those anticipated weekend visits.  He said he based his calculations on the words in the Parenting Plan of “not more than six weeks” interval between visits.  In contrast, Ms Wichelo said she based her calculations on the statement that [Child 1] would only travel to Melbourne “one long weekend” and “during each school term”.  In reading the Parenting Plan, it is not unsurprising that issues have arisen over the drafting of that provision.  When issues arise from different interpretations of a provision in an agreement, an appropriate approach is for the Tribunal to consider the purpose of the provision as a relevant factor in deciding how to give effect to the text and determine its meaning.  Here, the Tribunal considers the clear meaning from the words “one long weekend” and “each school term” outweighs the duration of intervals and finds that the proper intention of the provision is that: during each school term, [Child 1] is to travel to Melbourne once, for a long weekend. Therefore, the expected care for Mr Corbine during each school term would be a long weekend, comprising of three nights.

15. After reading the care terms set out the Parenting Plan and taking into account the care calendars and explanations given by Mr Corbine and Ms Wichelo, the Tribunal is satisfied that at the time of Mr Corbine’s notification, there was an intention for him to have care of [Child 1] for more than the minimum set in the Parenting Plan and considers the proper construction of the care framework from the evidence establishes a slightly different percentage of care in Mr Corbine’s favour. 

16. The Tribunal calculates that in a 12-month care period from the start of the December school holiday period in 2021, the care arrangement was expected to be 54 nights to Mr Corbine, detailed as follows:

Period	Date	Actual Nights	Expected Nights
December period School holidays	21 to 28 December 2021 (inclusive)	8 nights	9 nights
January period School holidays	21 to 29 January 2022 (inclusive)	9 nights	9 nights
Mid Term 1 Long weekend	8 and 9 April 2022	2 nights	3 nights
End of Term 1 School Holidays	21 to 29 April 2022 (inclusive)	9 nights	8 nights
Mid Term 2 Long weekend	11 to 13 June 2022 (inclusive)	3 nights	3 nights
End of Term 2 School Holidays	July 2022	8 anticipated	8 nights
Mid Term 3 Long weekend	August 2022	-	3 nights
End of Term 3 School holidays	October 2022	-	8 nights
Mid Term 4 Long weekend	November 2022	-	3 nights
TOTAL	54 nights

1. As a result, the percentages of care determinations recorded by the CSA from when actual care changed on 21 December 2021 should be recorded as 54 nights to Mr Corbine (14%) and 311 nights to Ms Wichelo (86%) as intended by the Parenting Plan and calculated by this Tribunal.

1. That leads to different care percentages that ought to be applied to the child support case for [Child 1].

2. Therefore, pursuant to section 54F of the Act the existing percentages of care of 95% to Ms Wichelo and 5% to Mr Corbine are revoked before new determinations of percentages of care of 86% to Ms Wichelo and 14% to Mr Corbine are applied for the relevant care period from 21 December 2021, as a result of Mr Corbine’s notification to the CSA in December 2021.

OTHER MATTERS

1. As already noted, the legislative scheme deals with any subsequent changes of care by requiring further notification to be made, requiring a fresh decision by the CSA.

2. To the issue raised by Ms Wichelo that Mr Corbine did not have care of [Child 1] in the recent July school holidays, as already canvassed, the Tribunal does not have jurisdiction to review care determinations for a change in care event that subsequently occurs.  If either party regards a possible change in the pattern of care has occurred (other than a minor variation) and the change would result in different care percentages from that as determined by this Tribunal as 86% and 14% from December 2021, then it is open for Ms Wichelo or Mr Corbine to notify the CSA for a new care percentage determination assessment.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

·     the existing care percentage determination of 95% to Ms Wichelo is revoked from 20 December 2021 and replaced with a new care percentage determination of 86% with effect from 21 December 2021; and

·     the existing care percentage determination of 5% to Mr Corbine is revoked from 20 December 2021 and replaced with a new care percentage determination of 14% with effect from 21 December 2021.