Crichard and Meservie (Child support)

[2022] AATA 3073

Crichard and Meservie (Child support) [2022] AATA 3073 (20 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023741

APPLICANT:  Mr Crichard

OTHER PARTIES:  Child Support Registrar

Miss Meservie

TRIBUNAL:Senior Member M Kennedy

DECISION DATE:  20 July 2022

DECISION:

The decision under review is affirmed.

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 affirmed

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

1. Mr Crichard and Ms Meservie are the parents of [Child 1] and [Child 2], in respect of whom a child support assessment is in place.  From 19 February 2021, the child support liability was calculated on the basis of care percentage determinations of 24% and 76% for Mr Crichard and Ms Meservie respectively.  Under the assessment, Mr Crichard is liable to pay child support to Ms Meservie.

2. Mr Crichard lives in New South Wales.  Ms Meservie lives in Queensland.  In June 2021, in response to the COVID-19 pandemic, the border between New South Wales and Queensland closed.  The children remained in Queensland as it was not legally possible for them to travel to spend time with Mr Crichard in New South Wales.

3. Mr Crichard would normally have had care of the children on 18 and 19 June 2021, but this care did not take place.  Mr Crichard did not have care of the children again until 6 December 2021 when the borders had reopened.

4. Ms Meservie contacted Services Australia on 14 July 2021 as she was unsure what to do about the care arrangements and the uncertainty associated with the border closure.  On 18 July 2021 Ms Meservie asked Services Australia to proceed to make a new care percentage determination.

5. Mr Crichard did not agree with the proposed care change, pointing out it was due to circumstances beyond his control, and predicting that even if the border stayed closed for three months, he would be able to make that care up at a later stage.

6. Services Australia decided to accept that the care had changed, and made a new care percentage determination reflecting the children as 100% in Ms Meservie’s care with effect from 18 June 2021.

7. Mr Crichard lodged an objection to that decision on 31 January 2022.  By then, the border had reopened and the children had spent a substantial amount of time in Mr Crichard’s care over the long school holidays.

8. On 29 March 2022 an objection officer disallowed Mr Crichard’s objection.  The objection officer identified the absence of an agreement between the parents as to when care might be made up as a significant feature of the evidence.

9. Mr Crichard applied to the Tribunal for review on 22 April 2022.  The parties participated in a hearing before the Tribunal on 20 July 2022.

Legislative framework

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

3. It is helpful to emphasise the concept of the care ‘that is actually taking place’.  With a significant but immaterial exception pertaining to care in breach of formal court orders or care arrangements, the scheme purposefully focuses on the care that actually taking place in respect of a child.  It is helpful to remember that the fundamental purpose of child support is to provide for the maintenance of children, and this will usually be served by recognising the realities of the care arrangements actually taking place, even if what is actually happening is not what was intended, expected or desired, and even if it is due to circumstances completely beyond the parents’ control.

Should the existing care percentage determinations be revoked?

1. Mr Crichard and Ms Meservie engaged helpfully with the Tribunal such that there is no doubt as to what was happening with the care of the children, or what should have happened but for the border closure.  Mr Crichard provided a detailed spreadsheet identifying when he would have had care under the arrangement he and Ms Meservie have for the care of their children, where care events were missed due to the border closure, and when the care resumed.  Ms Meservie confirmed the accuracy of Mr Crichard’s records.

2. The only issue I have to decide in this context therefore is what the facts mean in the application of the scheme for care percentage determinations.

3. Mr Crichard points out that he was prevented from caring for his children due to circumstances completely outside his control.  Ms Meservie also acknowledges this to be so.  Mr Crichard also points out that in the December/January school holidays he had substantially more care than he would have otherwise had. 

4. I must first decide whether the evidence demonstrates that care is not taking place in accordance with the existing care percentage determinations: that is, the determination of  24% and 76% for Mr Crichard and Ms Meservie respectively.

5. In the extraordinary context of internal border closures frustrating care arrangements, I am prepared to take a flexible and practical approach to identifying patterns of care for this purpose, which potentially means examining the pattern over a more extended period and being prepared to recognise missed care events being made up at a later date.  In this regard, I proceed on the basis that I may take into account evidence of care that has actually taken place to the extent only that it is probative on the question of what the pattern of care will be at the care change day.  This is conceptually different to a retrospective audit of all care up until the date of the hearing or making one or more additional primary care percentage determination decisions on review.  I do not consider it is open to me to do that.

6. I have considered, for example, whether perhaps when examined over a longer period it might be said that the care arrangements continued to be reflected by the care percentage determinations of 24% and 76% for Mr Crichard and Ms Meservie respectively.  Perhaps, for example, it may be the particular dates of care have been disturbed by the border closure, but over the longer term the same amount of care in aggregate has taken place such the care percentage determinations should not be disturbed.

7. While I have considered this approach carefully, recognising Mr Crichard’s legitimate grievance with the impact on the border closure on his care of his children, I have decided that in this case I cannot adopt that approach.  In my view, the border closure amounted to a significant change to the pattern of care, because in hindsight we can now see that it was prolonged.  The children were in fact in Ms Meservie’s 100% care for 6 months, and it is important that actual care of this extent is recognised in the assessment.  Furthermore, by my calculations on the undisputed evidence of what actually happened between June and December 2021, Mr Crichard lost 38 nights of care due to the border closure, and gained 17 nights of care in the long school holidays that he would not have had under the pattern that pre-existed the border closure. In these circumstances, I must conclude that from 18 June 2021 care was no longer taking place in accordance with the existing care percentage determinations, and was in fact taking place on the basis of Ms Meservie having 100% care.

8. The ‘care period’ I identify for the purpose at identifying a care percentage determination of 100% is a period of 6 months, being essentially the period of the Queensland border closure.  This period is identified given the exceptional nature of that event.

9. A change to the care percentage determinations of 24%/76% to 0%/0% impacts on the cost percentage (a key component of the administrative formula).  Section 54F of the Act requires the care percentage determinations to be revoked in these circumstances.

10. Ms Meservie notified Services Australia of the change within 28 days of the care change day, and it follows pursuant to paragraph 54F(3)(a) of the Act that the revocation takes effect from the day before the care change day:17 June 2021.

New care percentage determinations are made

1. As the care percentage determinations have been revoked, new care percentage determinations must be made.

2. For the reasons given above, I would make new care percentage determinations of 100% for Ms Meservie and 0% for Mr Crichard, by reference to a care period of 6 months.  I make these new determinations pursuant to section 49 (in the case of Mr Crichard) and 50 (in the case of Ms Meservie) of the Act.

3. The new care percentage determinations take effect from the day after the revocations: 18 June 2021.

4. I agree with the objection officer’s decision, and affirm the decision to disallow the objection.

5. I note for completeness that subsequent care percentage determinations have been made by Services Australia following the resumption of the ordinary pattern of care in 2022.

Delay in objecting    

1. At the hearing, the potential consequences of the delay in objecting to Services Australia’s decision were discussed, and Mr Crichard gave evidence as the circumstances of the delay.  However, as the effect of my decision is to affirm the decision under review (to disallow the objection), the issue presented by section 87AA of the Child Support (Registration and Collection) Act 1989 does not arise.

DECISION

The decision under review is affirmed.