Dansey and Monfort (Child support)

[2022] AATA 3520

Dansey and Monfort (Child support) [2022] AATA 3520 (22 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023864

APPLICANT:  Ms Dansey

OTHER PARTIES:  Child Support Registrar

Mr Monfort

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  22 August 2022

DECISION:

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

1. the existing percentage of care determination of 62% to Ms Dansey is revoked from 4 November 2021 and replaced with a new percentage of care determination of 67% applying from 5 November 2021; and

2. the existing percentage of care determination of 38% to Mr Monfort is revoked from 18 July 2021 and replaced with a new percentage of care determination of 33% applying from 19 July 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. As relevant to this application, Ms Dansey and Mr Monfort are the parents of [the child] (born November 2008). The application concerns a single decision of Services Australia – Child Support Agency (CSA) about the recorded care for [the child] (only) in relation to a child support case registered with the CSA from 29 October 2013.

2. From 14 October 2019, the pre-existing percentages of care recorded by the CSA for [the child] were 62% to Ms Dansey and 38% to Mr Monfort.

3. On 5 November 2021, Ms Dansey contacted the CSA and advised a change to the care position of [the child] advising that she had 67% care and Mr Monfort had 33% care from 19 July 2021.

4. On 1 February 2022, the CSA decided that there was no change to the pattern of care of [the child] such that the recorded percentage of care determinations for [the child] remained at 62% to Ms Dansey and 38% to Mr Monfort.

5. On 28 February 2022, Ms Dansey objected to this decision and, on 21 April 2022, a CSA objections officer disallowed the objection.

1. On 11 May 2022, Ms Dansey lodged an application with the Tribunal seeking an independent review of the CSA’s decision on the following basis:

   The submitted evidence was received however the objections officer miss the information provided and admitted to fault however he said it was too late as the decision was already submitted. He did apologise and recommended me apply to the AAT for a review since all the information was provided and correct.

1. Following the adjournment of an earlier hearing due to Mr Monfort being unwell, the hearing of the application was held on 28 July 2022. Ms Dansey and Mr Monfort both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Dansey and Mr Monfort and the documentary material provided by the CSA (marked Exhibit 1, pages 1 to 271). Despite Australia Post records showing the documents had been received by Mr Monfort from the CSA on 28 June 2022, as at the date of the hearing Mr Monfort had not received the documents and advised the Tribunal that he had not signed for receipt of any registered mail in the relevant time frame. Mr Monfort indicated that he was agreeable to proceeding with the hearing and was agreeable to the Tribunal making arrangements for the documents to be sent to him following the hearing, with opportunity for him to provide written evidence/submissions after receipt of the documents. The Tribunal therefore allowed further time after the hearing for the documents to be resent to Mr Monfort. As difficulties were experienced with Mr Monfort receiving the documents by post, the Tribunal arranged for the documents to be emailed to Mr Monfort. On 15 August 2022, the Tribunal wrote to Mr Monfort confirming the documents had been sent to him on 12 August 2022 and that the Tribunal had deferred its decision until after close of business on 19 August 2022 to allow Mr Monfort to submit any written submissions/evidence he wished to present after which the Tribunal would move to finalise its decision. The Tribunal also wrote to Ms Dansey on 15 August 2022 updating her as to the progress of the matter and advising that post hearing submissions/evidence from Mr Monfort, if any, would be provided to her for comment.

3. As at the date of this decision, Mr Monfort had not provided any post-hearing written submissions/evidence and the Tribunal proceeded to make its decision on 22 August 2022.

ISSUES

10.  The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA or the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [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. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

12. Sections 49 and 50 require initial percentage of care determinations to be recorded for a care period upon initial registration of a child support case or for new percentage of care determinations to be recorded when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

13.  Existing care percentages generally apply until a change is notified and a new decision is made and requires assessment of the actual or likely pattern of care to determine whether existing percentage of care determinations are to be revoked and new percentage of care determinations are to apply.

14.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances and is generally the 12-month period starting from the date the actual care of the child began or changed.

15.  The term pattern of care is not defined in the legislation. It involves an examination of a person’s future likely care.

16. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

17.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the numbers of nights that a child was, or is likely to be, in the care of a person.

18.  Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Clause 2.2.1 of the Guide contains the following guidance in this regard:

Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

19. The legislation provides for revoking pre-existing percentage of care determinations in the circumstances set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

20.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Should the pre-existing percentage of care determinations recorded by the CSA as at 5 November 2021 in relation to [the child] be revoked pursuant to section 54F, 54G or 54H? And, if so,

(b)What are the new percentage of care determinations to be recorded for Ms Dansey and/or Mr Monfort? And, if so,

(c)What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

CONSIDERATION

21.  Relevant documentation provided to the CSA and the Tribunal included care diaries maintained by Ms Dansey.

22.  Ms Dansey’s evidence and submissions at hearing included as follows:

(a)From 19 July 2021, the care of [the child] should be recorded as 67% to her as since that time Mr Monfort has been having care of [the child] from Friday night to Tuesday morning in the first week of the fortnight but not having care on Monday night in the second week of the fortnight as he previously had done. [The child] is now only wanting to go to Mr Monfort’s three nights per fortnight.

(b)The objections officer admitted that he misread the calendar/care diaries. She keeps a calendar/care diaries which have been provided. This is also kept for the benefit of the children so that they know what is happening from time to time.

(c)Ms Dansey noted that a text message, a copy of which was provided to the CSA and appears at page 133 of Exhibit 1, confirms that [the child] has only been in the care of Mr Monfort on Monday nights since 19 July 2021, when the Monday nights fall on Mr Monfort’s weekend.

23.  Mr Monfort’s evidence at hearing included as follows:

(a)His care of [the child] started as five nights per fortnight plus 50% of the school holidays but his care is now only four nights per fortnight plus 50% of the school holidays.

(b)There have been some changes because of COVID-19. Throughout this time if Ms Dansey had, for example, been away for work, he took over and looked after the children.

(c)[The child] is 13 years of age and his and Ms Dansey’s agreement was four nights (Friday, Saturday, Sunday and Monday nights) care to him one week and Monday night the following week. However, that was becoming quite difficult for [the child] during COVID-19 lockdowns to come to him on the Monday night in the second night of the fortnight. The pattern was more sustainable when not impacted by COVID-19 however the pattern of care was disrupted because of COVID-19. Depending whether the children were going to school or not (because of COVID-19 lockdowns) dictated whether [the child] was coming to him for care on the Monday night in the second week of the fortnight.

(d)When asked whether Mr Monfort agreed that, from 19 July 2021, his care of [the child] had changed from five to four nights per fortnight, Mr Monfort said that he was not making notes at the time but recognises things were up and down during COVID-19. He said that Ms Dansey’s notification to the CSA happened in November 2021 and he hadn’t been making notes. He said that it is now in place that [the child] is in his care four days per fortnight given [the child]’s preferences around practicalities for school etc. Mr Monfort said that he and Ms Dansey had an agreement in place which has been disrupted by [the child], at 13 years of age, having her own opinion about where she wants to be. He said that Ms Dansey and he had never come to another agreement. The care position has just been fluid.

(e)Mr Monfort submitted that the changes that were brought about by COVID-19 and associated lockdowns are minor variations that did not change the agreed pattern of care.

(f)When queried Mr Monfort confirmed that over the last several months of 2022 his care of [the child] had been continuing as four nights in the first week of the fortnight with no overnight care in the second week of the fortnight.

(g)Mr Monfort said that 5 November 2021, when Ms Dansey contacted the CSA, was the first time he was aware that Ms Dansey wanted to change their previous agreement that [the child] would be in his care five nights per fortnight plus 50% of the school holidays. Mr Monfort said that he had previously contacted the CSA to change figures retrospectively and he had been told that cannot be done and that changes can only be done going forward. The notification is required to be within 28 days of the change for the change to be backdated.

(h)The Tribunal discussed with Mr Monfort that as regards changes in care, if a change in care is notified more than 28 days after a change in care occurs, the increased care percentage for the parent with increased care can only take effect from the date of notification. However, the decreased care percentage for the parent with decreased care can takes effect from the date of the change in care. This means that there are differential dates of effect such that the child support assessment for some periods can be calculated based upon care that does not total 100% between both parents.

1. Mr Monfort also asked that it be taken into account that he has been on jobseeker payments since 7 December 2021 and although he knows that is a separate matter, he notified the CSA of that change on 8 December 2021 and the CSA took that notification by phone and were aware of that. However, the CSA has said that they will not reverse the payments between then and now because he did not provide the supporting documentation, namely his separation certificate, within 28 days. The Tribunal discussed with Mr Monfort that whilst accepting his income has changed, it is not a relevant consideration in relation to the care percentage determinations.

(j)Mr Monfort queried at what stage is it reasonable that he was of the understanding that the care position of [the child] was changing on a permanent basis, rather than the temporary variations that occurred because of COVID-19 lockdowns.

1. The Tribunal considered whether the changes to the actual care occurring of [the child] from 19 July 2021 constituted minor variations that did not amount to a change to the pattern of care. Understandably families have had to make many allowances and changes for various COVID-19-related reasons, including when impacted by lockdowns. The Tribunal is satisfied that in some circumstances those changes amount to minor variations that do not continue nor change an existing pattern of care. Further, children as they mature often start to make their own decisions regarding their care. Having had regard to all matters, the Tribunal is satisfied that from 19 July 2021 a change to the pattern of care of [the child], over and above minor variations occurred, with that change continuing after the COVID-19 lockdowns. The Tribunal finds that the actual pattern of care of [the child] from 19 July 2021 was four nights of care per fortnight plus 50% of the school holidays to Mr Monfort, which equates to 33%, with Ms Dansey having the balance of care of 67%. At issue is the actual care that was occurring, not whether that change had been agreed to, or recognised, by one or both parents.

2. Accordingly, percentage of care determinations are required to be made under section 50. The general rule is that percentage of care determinations recorded in the Child Support Register reflect actual care.

Issue 1 – Should the pre-existing percentage of care determinations recorded by the CSA as at 5 November 2021 in relation to [the child] be revoked pursuant to section 54F, 54G or 54H?

26.  There is an exception to the general rule that a parent’s recorded care will reflect their actual care. Under section 51, the framework for determining when percentage of care determinations apply may be treated differently where a care arrangement is in place, it is not being complied with and the parent with reduced care is taking reasonable action to ensure compliance. Essentially, the application of section 51 results in the care as specified under a breached care arrangement being recorded or continuing to be recorded for child support purposes during an “interim period” and the actual care occurring applying after the interim period ends.

27.  Care arrangement in relation to a child means:

o   a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

o   a parenting plan for the child within the meaning of section 63C of the Family Law Act 1975; or

o   any of the following orders relating to the child:

(i)a family violence order within the meaning of section 4 of the Family Law Act 1975;

(ii) a parenting order within the meaning of section 64B of the Family Law Act;

(iii) a State child order registered in accordance with section 70D of that Family Law Act;

(iv) an overseas child order registered in accordance with section 70G of that Family Law Act.

28.  Clause 2.2.4 of the Guide provides guidance as follows:

A written agreement exists between separated parents (or a parent and another person who cares for the child) if:

·there is a document in writing

·the document signed and dated by both parties, and

·both parties agree on the care arrangements for the child, which are specific in the document.

A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it signed by both parties. The written agreement must indicated that the care arrangement constituted an agreed, ongoing care arrangement for the child.

1. There is no evidence of a care arrangement as defined being in place between the parents. The Tribunal notes that Mr Monfort referred to an agreement as to the care taking place however there is no evidence that there was a written agreement to that effect, a court order or other care arrangement as defined. Section 51 does not apply and the Tribunal has determined that percentage of care determinations are required to be made under section 50 reflecting the parents’ actual care.

2. As there are pre-existing percentage of care determinations, the Tribunal is first required to consider whether these can be or must be revoked.

3. Relevantly to this application section 54F provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.

4. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination and they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available. Neither Ms Dansey’s nor Mr Monfort’s care reduced to less than 14%. Section 54G does not apply.

2. 67% care to Ms Dansey and 33% care to Mr Monfort does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at the date of Ms Dansey’s notification on 5 November 2021.

3. A change in care from 67% to Ms Dansey and 33% to Mr Monfort would change each parent’s cost percentage having regard to the table in section 55C.

4. The Tribunal has found that section 51 does not apply.

5. The existing percentages of care of 62% to Ms Dansey and 38% to Mr Monfort are therefore required to be revoked pursuant to section 54F.

Issue 2 – What are the new percentage of care determinations to be recorded for Ms Dansey and Mr Monfort?

1. New percentage of care determinations in accordance with the care actually occurring of 67% to Ms Dansey and 33% to Mr Monfort are to be recorded.

Issue 3 – What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(b), as the change in care was notified by Ms Dansey on 5 November 2021, more than 28 days after the Tribunal has found the change occurred on 19 July 2021 there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 62% recorded for Ms Dansey takes effect the day before the notification of the change of care, that is on 4 November 2021 and revocation of the pre-existing percentage of care of 38% recorded for Mr Monfort takes effect the day before the change of care day, that is on 18 July 2021.

2. Pursuant to section 54B, new percentage of care determinations apply from the day after the previous care determinations were revoked. Therefore a new percentage of care determination of 67% to Ms Dansey applies from 5 November 2021 and a new care percentage determination of 33% for Mr Monfort applies from 19 July 2021.

Conclusion

1. As this is different to the decision reached by the objections officer, the decision under review will be set aside and a new decision substituted.

OTHER MATTERS

42.  As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such a change, and the CSA then is tasked with making a further decision, with review rights as appropriate attached to each further or subsequent decision. The Tribunal is confined to considering the change of care notification of 5 November 2021. Subsequent changes of care, if any, are required to be separately notified to the CSA for a further decision by the CSA.

DECISION

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

1. the existing percentage of care determination of 62% to Ms Dansey is revoked from 4 November 2021 and replaced with a new percentage of care determination of 67% applying from 5 November 2021; and

2. the existing percentage of care determination of 38% to Mr Monfort is revoked from 18 July 2021 and replaced with a new percentage of care determination of 33% applying from 19 July 2021.