Debaillie and Wragby (Child support) - [2022] AATA 2369

Debaillie and Wragby (Child support) [2022] AATA 2369 (21 June 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/PC023582
APPLICANT:  Mr Debaillie
OTHER PARTIES:  Child Support Registrar
Ms Wragby

TRIBUNAL:Senior Member M Kennedy
DECISION DATE: 21 June 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed and new care determinations made reflecting the children as in Ms Wragby’s 61% care and Mr Debaillie 39% care with effect from 13 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – care based on hours rather than nights – 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

Mr Debaillie and Ms Wragby are the parents of [Child 1] and [Child 2], in respect of whom a child support assessment is in place. Prior to 13 December 2021, the child support liability was calculated on the basis of a care percentage determination reflecting the children in Ms Wragby’s 66% care and 34% in Mr Debaillie’s care.
Consent orders were made in respect of the care of the children [in] December 2021. Mr Debaillie notified Services Australia of a change in care arrangements on 31 December 2021 and contended that the orders produced a pattern of care reflecting that he had 46% care of the children, and Ms Wragby had 54% care. This calculation was made on the basis of hours in care, attributing the hours when the children were at school as hours in his care.
Services Australia revoked the existing care percentage and replaced it with the new one nominated by Ms Debaillie on 10 January 2022 with effect from 13 December 2021. Ms Wragby objected to that decision on 11 January 2022, on the basis that the care percentage should be calculated based on the number of nights in care.
On 9 March 2022 the objection officer decided that the care percentage determination should be calculated by reference to the number of nights in care provided for by the court orders, allowed Ms Wragby’s objection, and put in place a new care percentage determination reflecting 73% care to Ms Wragby and 27% care to Mr Debaillie with effect from 13 December 2021.
Mr Debaillie applied to the Tribunal for review on 29 March 2022.
I have before me the Tribunal papers consisting of 174 pages and a bundle of documents lodged by Mr Debaillie marked as the ‘A’ documents: A1 to A75. Both Mr Debaillie and Ms Wragby participated in a telephone hearing on 21 June 2022.

Legislative framework

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).
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.
It is not in dispute between the parties that the making of the consent orders [in] December 2021 by [Court 1] amounts to a change to the care arrangements. In terms of the practical application of the new orders, the parties were also agreed as to how they operate in practice.
The orders provide for a two-week cycle of care. In week 1, the children are in the care of Ms Wragby every night, including the weekend. In week 2, the children are in the care of Mr Debaillie on Friday, Saturday and Sunday night.
In week 1, the orders state that Mr Debaillie has care from the commencement of school to the end of school, but if it is a non-school day they are in the care of Ms Wragby. In this way the orders are remarkable in that they state that the children are in Mr Debaillie’s care even though they would be physically present at school, and then provide for the children to be in Ms Wragby’s care immediately before and after school, and to be in Ms Wragby’s care if it is not a school day.
The orders also make provision for circumstances when the children do not attend school. In those circumstances Ms Wragby has the ‘first option’ to provide care for the children when they would have otherwise been at school.
In week 2, the orders are similar, except that they provide for the children to be in Mr Wragby’s care until 7pm each school day. This would encompass the school day when the children are physically at school and a period of a few hours each day when the children are physically with Mr Debaillie, but not overnight.
School holiday care is essentially week-about. Special occasions for Christmas follows a year about arrangement. Mother’s Day and Father’s Day operate as exceptions from noon.
As to purpose and practice of the provision in the orders for the children to be in Mr Debaillie’s care while they are physically at school, Mr Debaillie explained that the arrangements stem from his concerns about the children’s previous poor school attendance. The primary effect of the orders from his perspective is that he must be contacted and consulted if the children are absent from school, and he will be involved in any decision about whether the children are to leave school for the day. Mr Debaillie confirmed in his evidence that he typically would tend not to have any contact with the children during the period that the orders provide for them to be in his care while at school.
As to costs associated with the children being in his care while at school, Mr Debaillie explained that he will provide the children with lunch money in cash if he has had contact with them, and will reimburse Ms Wragby with lunch money electronically if he has not had contact with the children. Ms Wragby pointed out that the electronic transfer of funds really only commenced to coincide with the objection process she had initiated. Exhibit A3 shows transfers from 23 March 2022 to 23 May 2022, with the first transfer narrated to refer to weeks 1 to 7 of Term 1. In that regard, I have not found the evidence of the transfer of nominal amounts to be persuasive as to the ultimate approach I will take.
Mr Debaillie contends that in Week 2, he incurs direct costs in providing care for the children associated with after school care until 7pm, and cogently described in his evidence what those costs would entail. Ms Wragby indicated that she accepted that would be the case and did not take issue with provision being made for that care – but she objected to the school hours when the children were not physically in Mr Debaillie’s care.
If one is to count nights in care as the basis for arriving at a care percentage, then the calculation arrived at by the objections officer is accepted to be accurate: 73% to 27%. If the calculation proceeds by way of hours and treats the school care as Mr Debaillie’s then the calculation is substantially different – at 54% to 46%.
The legislation provides at section 54A of the Act that the actual care of a child may be worked out based on the number of nights that the Registrar is satisfied that the child was or is likely to be in the care of a person.
In Polec and Staker (SSAT Appeal) [2011] FMCAfam959 Hughes FM proposed six factors to be considered when assessing care of a child, and a number of decisions in the second tier of this Tribunal where the Tribunal reflects upon and applies those principles. I have considered carefully the observations and discussion in P v Child Support Registrar [2013] FCA 1312, including the possibility that actual care may be determined other than by the method described in section 54A of the Act.
I cite Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22 (21 January 2-14) as a particularly apt and informative examination of the principles behind a choice to calculate actual care by reference to hours instead of nights, albeit in relation to equivalent provisions of the family assistance law.
I am to take into account the Registrar’s policy in the Child Support Guide. The status of Departmental policy in the Tribunal is well understood. The Tribunal is not bound to apply the policy but should do so unless there are cogent reasons to depart from it: Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 644-5. I respectfully share the observation of the Court in P v Child Support Registrar that the relevant part of the Guide is not particularly helpful or informative in any event.
The Child Support Guide most relevantly provides:
Care other than in nights
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
[Examples]
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
…
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
…
Given the framing and language of section 54A, I am comfortable to proceed on the basis that the nights in care approach might be viewed as a norm, but there is no doubt that the Registrar and or the Tribunal may adopt a different approach if the circumstances of the care arrangements justify doing so to achieve more reasonable accuracy. It is not a binary approach between nights or hours. I am conscious that it is open to me to exclude entirely periods where particular children are in the care of a school (for example), as was the approach ultimately in Vendrell.
Indeed, noting Ms Wragby’s reasonable position in accepting that Mr Debaillie would inevitably incur costs in providing care for the children after school until 7pm in week 2, I am motivated to incorporate that position into my determination. That can really only be done by calculating care in hours.
However, I am also persuaded that to calculate care in its entirety by hours would fail to adequately reflect the costs of providing care to the children carried by Ms Wragby. To put this another way, the scheme of the orders has the effect that Mr Debaillie does not provide any direct physical care of the children for most of a fortnight, with the exception of 3 to 4 hours after school every second week, and every second weekend.

As explained in Vendrell, it is open for me to exclude from the calculation periods when the children are physically at school. If I am to adopt that approach, I have calculated a care percentage of 61% to Ms Wragby and 39% to Mr Debaillie.[1]
[1] METHOD
There are 336 hours in each 14-day period of which 65 hours are school hours. There are therefore 271 non-school hours each fortnight.
Of those, Ms Wragby has 205 hours and Mr Debaillie has 65 each fortnight (rounded to a block of 5). This applies to 40 weeks each year. Ms Wragby therefore has 8200 hours and Mr Debaillie has 2600 hours.
The remaining 12 weeks of school holidays (with special occasions being balanced over a two-year care period) amount to a further 1008 hours for each parent, so 9208 for Ms Wragby and 3608 for Mr Debaillie. This equates to 61% for Ms Wragby and 39% for Mr Debaillie.
Having regard to the evidence provided to me about the practical implementation of the consent orders, and the arguments and concessions put forward by both parents, I am satisfied that the pattern of care put in place by the consent orders equates to a care percentage of 61% for Ms Wragby and 39% for Mr Debaillie, using a method of calculation in hours and excluding time when the children are physically present in school.
It follows therefore that from the care change day of 13 December 2021, care is no longer taking place in accordance with what was then the existing care percentage determination of 66:34%.
A change to the care percentage determination reflecting my findings will change the cost percentage for the child support assessment. Therefore, I must revoke the existing care percentage determination in accordance with section 54F of the Act.
The Department was notified of the change promptly, and the parents have exercised their review rights promptly and within prescribed timeframes. I will therefore revoke the care percentage determination with effect from the day before the care change day.
The new care percentage determination is made in accordance with section 50 of the Act and takes effect from the day after revocation of the previous care percentage determination.
I will set aside the decision under review and allow the objection so as to give effect to this determination.

DECISION