Derrick and Derrick (Child support)

[2024] AATA 369

Derrick and Derrick (Child support) [2024] AATA 369 (15 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC026536

APPLICANT:  Mr Derrick

OTHER PARTIES:  Child Support Registrar

Ms Derrick

TRIBUNAL:Member J Bakas

DECISION DATE:  15 January 2024

DECISION:

The Tribunal varies the decision under review so that:

1. the decision to revoke the pre-existing percentage of care determinations of 28% to Mr Derrick and 72% to Ms Derrick and make new care determinations of 38% to Mr Derrick and 62% to Ms Derrick is not changed.

2. The care percentages of 38% to Mr Derrick and 62% to Ms Derrick are revoked on 28 March 2023 for Mr Derrick and 11 October 2020 for Ms Derrick and new care percentages of 50% for Mr Derrick apply from 29 March 2023 and 50% for Ms Derrick apply from 12 October 2020.

3. Pursuant to subsection 87AA of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from the date on which Mr Derrick objected to the original care decision, which was 29 March 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – late objection under s 87AA – decision under review varied

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 Derrick and Ms Derrick are the parents of two children, in respect of whom a child support assessment is in place.

2. From 12 January 2017 there has been a case registered for child support for the two children.

3. On 17 April 2019, Mr Derrick contacted Services Australia – Child Support (Child Support) to advise of a Court Order dated [in] January 2019 that provided for a change of care.   

4. On 27 April 2019, Child Support decided to record the care of the children as being 38% to Mr Derrick and 62% to Ms Derrick from 31 January 2019. Prior to this, care was recorded as 28% to Mr Derrick and 72% to Ms Derrick.

5. Mr Derrick sought a review of the 27 April 2019 decision on 29 March 2023. His position included that for the best part of five years, from the beginning of 2018, care had been 50% to each parent. Ms Derrick responded to this objection by stating to Child Support that they had a verbal agreement for 50/50 care from 19 October 2020, at which time they had a private collect agreement.

6. On 14 July 2023, the objection was disallowed. Part of the reasoning was that there had been no communication from either party to notify Child Support of a subsequent care change from 19 October 2020, only an application to opt out of collection from 14 September 2020. The previous change of care to 38% care to Mr Derrick, as reported by Mr Derrick, post-dates the date from which Mr Derrick states the care was 50/50. It appears the objections officer could not be satisfied that there was 50% care from 31 January 2019.

7. On 7 August 2023, Mr Derrick made an application to the Social Security and Child Support Division of this Tribunal (the Tribunal) for a review of that decision.

8. The matter was heard on 19 December 2023.  Mr Derrick attended the hearing in person and Ms Derrick participated by MS Teams audio. At hearing, both parties confirmed receipt of documents provided by Child Support.

9. In addition, Ms Derrick provided the Tribunal with additional documents prior to the hearing, copies of which were forwarded to Mr Derrick before the hearing.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are:

   11.1.  Should the existing determinations of percentage of care be revoked? If so, from when should they be revoked?

   11.2.  If the existing percentages of care are revoked, what new determinations of percentage of care should be attributed to Mr Derrick and Ms Derrick in respect of the two children?

   11.3.  If there is a change in the percentage of care attributed to the parents, from what date should the new care percentage determinations apply?

CONSIDERATION

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 Act. Upon revocation, a new percentage of care determination must be made.

Issue one – Should the existing determination of percentage of care be revoked?

1. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked.

2. Section 54G of the Act provides for the revocation of a determination of a percentage of care if (among other requirements) a responsible person was to have at least regular care for a child under a care determination, but the person has had no care or a pattern of care that is less than regular care.

3. If section 54G of the Act does not apply, section 54F of the Act provides another basis on which a care determination may be revoked. It requires revocation if (among other matters): 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 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.

4. If section 54G or 54F does not apply then section 54H allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.

5. It can be seen, therefore, that in order to revoke an existing care determination under either section 54G or section 54F or section 54H of the Act, a new pattern of care must be cogently identifiable in order to compare it with the existing percentage of care.

6. The term “pattern of care” is not defined in the legislation. It involves a consideration of actual care that is taking place, and the assessment of care is conducted over the care period. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Australian government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide) which may be followed by Child Support, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the Tribunal and the Tribunal can determine a different care period.

7. I note that the hearing papers indicate there has been a change of care to 50% to each parent from 14 March 2023, notified on 29 March 2023. However, this subsequent care event that changed the percentages of care is not before the Tribunal. The Tribunal needs to consider what the correct or preferable decision is in regard to the care change that was notified on 17 April 2019, which would stay in place until there is a further care change.

8. Mr Derrick’s evidence and submissions at the hearing included the following:

   20.1.  Ms Derrick did not want him to mention anything to Child Support about changes of care because of the impact it would have on her family assistance benefit.

   20.2.  They had a private collect agreement in the past because they had a level of communication. However, Ms Derrick now does not respond to his texts.

   20.3.  He has prepared a spreadsheet to show how much he has paid over the years for the children, which totals about $122,000, and this does not include what he pays to Ms Derrick.

   20.4.  He did not request a review of the 27 April 2019 decision earlier because his father passed away.

   20.5.  He stopped paying child support during their private collect agreement because he did not agree with Ms Derrick allowing their daughter’s boyfriend to sleep over.

   20.6.  He does not wish to continue paying Ms Derrick money. The only financial cost she is responsible for in regard to the children is paying for dance classes, [sport] and feeding them.

   20.7.  It has been 50% care to each of them since 1 January 2019 at the latest. He never notified earlier of the change in care to 50/50 because Ms Derrick would ask him not to.  He also wanted to continue seeing his children.

9. Ms Derrick’s evidence and submissions at the hearing included the following:

   21.1.  She made a mistake when she informed Child Support that the care arrangement had changed to 50/50 to each of the parents from 19 October 2020. Rather, it should have been from 12 October 2020. She does not agree that the change to 50% care occurred prior to 12 October 2020.

10. As detailed above, on 27 April 2019, Child Support decided to record the care of the children as being 38% to Mr Derrick and 62% to Ms Derrick. This was based on a Court Order dated [in] January 2019 detailing a care change from 31 January 2019.

11. I considered all of the evidence before me.  I find that care did change to 50% to each parent from 12 October 2020. I cannot be satisfied on the evidence before me that it occurred any earlier than that. This is the earliest date from which there is a point of agreement between the parents that care changed to 50% to each of them.

24.  I find the original decision correctly changed the percentage of care from 28% to Mr Derrick and 72% to Ms Derrick, to 38% to Mr Derrick and 62% to Ms Derrick.  However, I also find that prior to the objections officer’s decision (dated 14 July 2023), which disallowed Mr Derrick’s objection, there was a care change to 50% care to each parent for both children as of 12 October 2020.

1. As such, I am satisfied that the level of care no longer corresponds to the existing registered care with Child Support.

2. Section 55C of the Act contains a table that is used to work out a person’s cost percentage. Under the child support assessment based on the percentage of care determinations prior to the change that is the subject of this review – 28% to Mr Derrick and 72% to Ms Derrick – the cost percentages of each are 24% and 76% respectively. If new determinations were to be made in accordance with the Tribunal’s findings above of a pattern of care provided by Mr Derrick of 38% and Ms Derrick of 62%, the cost percentages would change to 31% and 69% respectively.

3. Further, the subsequent change in care from 12 October 2020 to 50% care to each parent also has a cost percentage change to 50% each.

4. The Tribunal is satisfied that the percentage reflecting the actual care, as found by the Tribunal, would affect the cost percentage.

5. The requirements for revoking the existing percentage of care in accordance with section 54F of the Act are satisfied and the Tribunal will therefore revoke that existing care percentage determination.

6. I note there was no dispute regarding the initial change of care to 38% to Mr Derrick from 31 January 2019 and 62% to Ms Derrick, as notified by Mr Derrick on 17 April 2019. I find that Child Support correctly revoked the percentage of care. However, I have found a subsequent change of care to 50% to each parent from 12 October 2020.

31. As the care of the children attributed to Mr Derrick has increased from 38% to 50%, the existing percentage of care is revoked on 28 March 2023, being the day before notification of the change (subparagraph 54F(3)(b)(i) of the Act). In contrast, as the care of the children attributed to Ms Derrick has decreased from 62% to 50%, the existing percentage of care is revoked on 11 October 2020, being the day before the care change took place (subparagraph 54F(3)(b)(ii) of the Act).

Issue 2 - Should a new determination of a percentage of care be attributed to Mr Derrick and Ms Derrick in respect of the children?

1. Having revoked the existing determinations, the Tribunal must make new determinations of the percentages of care attributed to Mr Derrick and Ms Derrick in respect of the children.

2. The Tribunal considered section 50 to be the relevant section of the Act in relation to determining a percentage of care. Under section 50, to make a new determination the Tribunal must be satisfied that an existing care determination made under sections 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the Tribunal is satisfied that the determination made under sections 49 and 50 of the Act to attribute 28% care of the children to Mr Derrick and 78% care to Ms Derrick should be revoked under section 54F of the Act and that during the care period, Mr Derrick had a pattern of care in respect of the children of 38% and Ms Derrick had a pattern of care in respect of the children of 62% from 31 January 2019 until the care change to 50% .

3. Accordingly, new care determinations are to be made under section 50 of the Act.

4. As detailed above, Mr Derrick notified Child Support that care was no longer taking place in accordance with the pattern of care they had recorded and stated that the care had changed to 50% care to him and 50% to Ms Derrick from January 2019. For the reasons outlined, the Tribunal finds that Mr Derrick actually provided 50% care and Ms Derrick provided 50% care of the children from 12 October 2020.

Issue three – From what date should the administrative assessment be amended to reflect the change?

36.  For these reasons, the objections officer’s decision will be set aside and, in substitution, Mr Derrick and Ms Derrick will be recorded as providing 38% care and 62% care respectively with effect from 31 January 2019, but that there is a subsequent revocation and further care percentages applied in relation to the 50% care, which I have found occurred on 12 October 2020.

37. However, there is a further complication in relation to the subsequent revocation. Section 87AA of the Registration Act relevantly states:

Date of effect of objections relating to care percentage decisions that are allowed

(1)If: 

(a)a person lodges …an objection to a care percentage decision; and 

(b)the objection is lodged more than 28 days … after notice of the care percentage decision was served; and 

(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination; 

the date of effect of the review decision is the day on which the person lodged the objection. 

(2)If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if: 

…

(b)… the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.

38.  Child Support notified Mr Derrick of its original decision via a letter dated 27 April 2019. The Tribunal is satisfied from the hearing papers and from Mr Derrick’s evidence at hearing that Mr Derrick was notified of the decision. 

1. As detailed above, Mr Derrick sought review of Child Support’s decision on 29 March 2023, which is not within 28 days of the original decision.

2. It follows that my decision, which will apply in substitution of the objections officer’s decision, will have effect from 29 March 2023: subsection 87AA(1) of the Registration Act.

41.  At the hearing I sought submissions from Mr Derrick as to why he lodged such a late objection and I considered his submission as detailed above.  In the circumstances, I am not satisfied that there are special circumstances that prevented Mr Derrick from lodging the objection within time. 

DECISION

The Tribunal varies the decision under review so that:

1. the decision to revoke the pre-existing percentage of care determinations of 28% to Mr Derrick and 72% to Ms Derrick and make new care determinations of 38% to Mr Derrick and 62% to Ms Derrick is not changed.

2. The care percentages of 38% to Mr Derrick and 62% to Ms Derrick are revoked on 28 March 2023 for Mr Derrick and 11 October 2020 for Ms Derrick and new care percentages of 50% for Mr Derrick apply from 29 March 2023 and 50% for Ms Derrick apply from 12 October 2020.

3. Pursuant to subsection 87AA of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from the date on which Mr Derrick objected to the original care decision, which was 29 March 2023.