Digby and Vaughn (Child support)

[2024] AATA 1178

Digby and Vaughn (Child support) [2024] AATA 1178 (5 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026967

APPLICANT:  Ms Digby

OTHER PARTIES:  Child Support Registrar

Mr Vaughn

TRIBUNAL:Member M Martellotta

DECISION DATE:  5 April 2024  

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in relation to the child:

a)The existing care determinations of 93% care to Ms Digby and 7% care to Mr Vaughn is revoked as of 20 January 2023.

b)New care determinations of 87% care to Ms Digby and 13% care to Mr Vaughn applies from 21 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – existing percentage of care determinations revoked – determination of care based upon regular pattern of hours – day care costs – 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 concerns the level of care that is to be recorded for child support purposes.  Ms Digby and Mr Vaughn are the parents of a child. There has been a child support assessment in place for that child since 8 July 2021. The care percentages recorded in relation to the assessment prior the care decision applying from 21 January 2023, was that Ms Digby had 93% care and Mr Vaughn had 7% care.[1]

   [1] Previous care decision dated 22 August 2022

2. On 27 January 2023 Mr Vaughn contacted the Child Support Agency (Child Support). He advised that from 21 January 2023 his care had increased. Ms Digby in response said that she did not agree with some of the hours of care claimed by Mr Vaughn.

3. On 7 August 2023 Child Support decided to change the care recorded in the assessment to reflect 11% care to Mr Vaughn and 89% care to Ms Digby. On 8 August 2023 Mr Vaughn lodged an objection to the original decision. The objection was ‘part allowed’ on 23 October 2023. The decision maker decided that his care was to be assessed as 15% and Ms Digby had 85% care from 21 January 2023.

4. On 27 October 2023 Ms Digby lodged an application with the tribunal.  The tribunal held a hearing on 27 March 2024. Ms Digby and Mr Vaughn attended the hearing by conference telephone to present their submissions and evidence. Following the hearing Mr Vaughn sent emails to provide further information (B1-B4). The Tribunal has noted that information but did not require the other party to make any submissions in response.

5. Other evidence before the tribunal included documents prepared and distributed by Child Support to the parties and to the tribunal.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) the Child Support (Registration and Collection) Act 1988 (the RC Act) and the Administrative Appeals Tribunal Act 1975.

2. The issues which arise in this case include whether:

   ·the existing care determinations are be revoked; and if so,

   ·whether a new determination of care percentages should be made; and if so,

   ·when should the new care percentages apply?

CONSIDERATION OF EVIDENCE AND STATUORY PROVISIONS

Issue 1 – Should the existing care determination be revoked and if so from when?

1. Sections 49 and 50 of the Act require Child Support to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.

2. Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. In this case it is apparent that the care determination made by Child Support has considered both hours and nights of care this was not in contention. The Tribunal notes that a care determination may also consider care that occurs other than in night (for example if one parent has regular care during the day due to working night shifts). In that regard the Tribunal notes that the following guidance set out in the Child Support Guide[2] is consistent with legislation, it provides:

   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… A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

   [2] 2.2.1 of the Guide.  The tribunal is not bound by law to apply the policy as set out in the Guide, but provided the policy is consistent with the legislation, can have regard to it. Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

3. A new percentage of care can be determined by Child Support whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

4. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Child Support of a change of care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.

5. At hearing the parties provided evidence about the care arrangements that have occurred since 21 January 2023. Their evidence is that there was a change from the previous pattern of care and that a new pattern of care was regularly occurring since that time.

6. Ms Digby submitted that Child Support decision was incorrect because whilst she agreed that Mr Vaughn had increased his care, the calculation of the hours undertaken in the objection decision incorrectly double counted one period of care and also miscalculated the total care amount by a further two hours. Her evidence was as follows.

7. Mr Vaughn in week one had care for four hours on a Tuesday, four hours on a Thursday and on a Saturday, he had 10 hours of care. In week two his care consisted of four hours on a Tuesday, then overnight care on a Thursday (4.45pm-7am next day) and then 10 hours on a Saturday.

8. Ms Digby stated that Child Support have incorrectly calculated the hours in week two by concluding that Mr Vaughn had a total of 34.25 hours of care. She said that they have double counted four hours (by including one of the four hours) she also said that they have added a further two hours. She said that the correct total hours in week two is 24.25 hours.

9. Mr Vaughn in his submissions stated that the hours of his care should also include the hours that the child spends in day-care following the overnight care that he has on a Thursday night. He submits that he drops off the child to day care and collects him to return him to his mother at 4.30 and on that basis, he has 24 hours of care from 4.30 pm Thursday until 4.30 pm Friday. Mr Vaughn referred to a spreadsheet showing his hours of care and to sign in and sign out sheets provided by the day care centre showing dates he collected the child.

10. Mr Vaughn stated that those hours of care should also be considered because if the child is unwell and cannot attend day care he would take care of him. The mother does not actually require the child to be in day care on that Friday and there has been occasions when this has occurred. Post hearing, he also submitted that the Ms Digby has the ability to work from home but often is required to be in the office and in the event of an emergency if she is unable to attend to the child it would be his responsibility to attend.

11. With respect to these submissions the Tribunal notes references in the Guide that indicates that minor departures from the normal care of the child for reasons such as illness or work commitments does not constitute a change to the pattern of care.[3]

    [3] 2.2.1

12. Ms Digby told the Tribunal the hours in day-care should not be taken into consideration. She pays for the service and regardless if she is working on a Friday, she is still utilising the service. She is also the primary contact for the service. She said that Mr Vaughn has been taking the child back to her home on a Friday after day-care because they have been sharing the one car seat.

13. In this matter the Tribunal has reviewed the evidence provided at hearing and as appears in the hearing papers. It concludes that since 21 January 2023 the regular pattern of care each fortnight is that Mr Vaughn has the following care[4]:

    [4] The Tribunal has considered evidence of events occurring after the date of notification and up to the date of decision, Child Support Registrar v BKCZ [2023] FCA 1109

    a)In week one:

    ·Tuesday – four hours

    ·Thursday – four hours

    ·Saturday – 10 hours

    b)In week two

    ·Tuesday – four hours

    ·Thursday (overnight care) 4.45 pm to 7 am (the following morning) a total of 14hours 15 minutes

    ·Saturday 10 hours

14. As noted, care is generally worked out based on the number of nights a child is in a person’s care.  Hours of care can be considered in certain circumstances. In this case, Child Support has based the determination of care based upon the regular pattern of hours Mr Vaughn has of the child which includes day hours and overnight hours. The Tribunal notes that Mr Vaughn care includes a regular pattern of hours which includes a full day every Saturday. It has concluded that on the particular facts of this case it is appropriate to determine care based on hours rather than nights.

15. Based on those hours of care, the Tribunal finds that in week one Mr Vaughn has 18 hours of care and in week two he has 28 hours and 15 minutes. Over a fortnight this is a total of 46 hours and 15 minutes.[5] In reaching this conclusion the Tribunal does not include the hours that the child is in childcare.  In the Tribunal’s assessment inclusion of those hours is not appropriate in the particular circumstances of this case as to do so would not accurately reflect the pattern of care of the child. Ms Digby is the primary carer; the child primarily resides with her. She pays for the childcare sessions. She is the primary contact for the service and is the person who is primarily responsible to respond to that service in the event there is a concern with respect to the child.[6]

    [5] 46.25 hrs in decimal hours

    [6] In the Tribunal’s view this reasoning is also consistent with the Guide at 2.2.1

16. As noted, the provisions require consideration of care over a care period. Generally, the Registrar of Child Support utilises a care period of 12 months commencing from the day actual care changed. The Tribunal is satisfied that in the circumstances of this case a 12 month care period commencing from 21 January 2023 is appropriate.[7]

    [7] The care period is simply a mechanism to enable a pattern of care to be determined.

17. The Tribunal concludes that based on these hours of care, Mr Vaughn’s percentage of care[8] is 13.7% and Ms Digby’s percentage of care is 86.2%. Where a percentage is not a whole percentage section 54D of the Act provides that if the percentage is less than 50% it is rounded down to the nearest whole percentage and if the percentage is greater than 50% it is rounded up to the nearest whole percentage. This means the percentage of care form Ms Digby is 87% and for Mr Vaughn it is 13% (total 100%).

    [8] 46.15/336 =13.7% and 289.8/336=86.2% (the same percentages are reached using decimal hours).

18. This means that from 21 January 2023 Ms Digby’s care decreased from the determination in place at the time 93% to 87% and Mr Vaughn’s care increased from the determination in place at the time from 7% to 13%.

19. The tribunal is required first to consider if revocation of the existing care determination is to be made pursuant to section 54G of the Act. The conditions for revocation are as follows:

    ·a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

    ·the other parent’s existing percentage of care was determined under section 50; and

    ·the other parent notified the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.

20. In this case the tribunal is satisfied that the conditions of section 54G are not met. Mr Vaughn did not have at least regular care based upon the existing care determination made under section 50 of the Act (as noted his care was 7%).

21. Section 54F of the Act provides for mandatory revocation where section 54G does not apply. It requires that certain conditions are met. Subsection 54F(1):

    (1)   The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

    (a)   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 responsible person’s existing percentage of care for the child; and

    (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

    (c) section 54G does not apply; and

    (d) subsection (2) applies in relation to the individual.

22. In this case there is an existing determination that was made under section 50. On 27 January 2023 the Registrar was notified that actual care was not taking place in accordance with that determination. However, the change in actual care as found by the Tribunal (an increase from 7% to 13%) does not result in a change in the cost percentage because Mr Vaughn continues to be assessed as having less than regular care. Further a decrease in care from 93% to 87% also does not result in a change in the cost percentage. Section 55C of the Act provides that where a person’s percentage of care is 0 to less than 14% the cost percentage is nil and where a person’s percentage of care is more than 86% to 100% the cost percentage is 100%.

23. This means that as the conditions in section 54F are not met, then there is no basis for mandatory revocation under that provision. This leaves revocation under section 54H of the Act. This provision only applies where an existing determination cannot be revoked under either section 54F or 54F of the Act. Revocation under this provision is discretionary and will only apply if the change does not have any material impact on the child support assessment. In effect the discretion allows accurate records of change in care to be maintained and to ensure that accurate records are kept for family assistance and child support purposes.

24. The Guide[9] notes:

    Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If a party to an assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have the change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history on a case.

    [9] 2.2.2

25. The Tribunal is satisfied that application of this policy is consistent with the legislative intent of the provision. Mr Vaughn notified Child Support seeking to have the change of care reflected in the Register and the Tribunal concludes that it is appropriate to exercise the discretion and to revoke the existing care determination pursuant to section 54H to ensure accuracy of the records.

26. The date of revocation is determined by subsection 54H(3). In this case the Tribunal finds notification of the change in care was made on 27 January 2023 and this is within 28 days of the change in care event (21 January 2023). As such the existing care determinations of 93% to Ms Digby and 7% to Mr Vaughn is revoked the day before that change date, namely 20 January 2023 pursuant to subparagraph 54H(3)(a).

Issue 2 – Should a new determination of care percentage be made and, if so, from what date?

1. The tribunal is satisfied that this is not a case in which an interim care determination (section 51 of the Act) is to be made. Subsection 54B(2)(c) of the Act provides where a care determination is made because a previous care determination has been revoked, then the new care determination takes effect the day after the revocation of the previous determination. This means the new care determinations of 87% care to Ms Digby and 13% care to Mr Vaughn[10]  commences from 21 January 2023.

   [10] Section 50 of the Act

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

a)The existing care determinations of 93% care to Ms Digby and 7% care to Mr Vaughn is revoked as of 20 January 2023.

b)New care determinations of 87% care to Ms Digby and 13% care to Mr Vaughn applies from 21 January 2023.