Eaddy and Eaddy (Child support)

[2020] AATA 5824

Eaddy and Eaddy (Child support) [2020] AATA 5824 (20 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019825

APPLICANT:  Mr Eaddy

OTHER PARTIES:  Child Support Registrar

Ms Eaddy

TRIBUNAL:Member Y Webb

DECISION DATE:  20 November 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages of the parents were:

·     in relation to the child C from 20 October 2019 Ms Eaddy had 73% care (with a date of effect of 20 October 2019) and Mr Eaddy had 27% care (with a date of effect of 11 March 2020); and from 31 January 2020 Ms Eaddy had 50% care (with a date of effect of 31 January 2020) and Mr Eaddy had 50% care (with a date of effect of 11 March 2020).

·     in relation to the child D from 20 October 2019  Ms Eaddy had 44% care (with a date of effect of 20 October 2019) and Mr Eaddy had 56% care (with a date of effect of 11 March 2020); and from 31 January 2020 Ms Eaddy had 50% care (with a date of effect of 11 March 2020) and Mr Eaddy had 50% care (with a date of effect of 31 January 2020).

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. This review is about the percentages of care of Mr Eaddy and Ms Eaddy in relation to their two children: “C” who is 11 years old and “D” who is seven years old. 

2. A child support assessment has been collectable by Services Australia (“Child Support Agency”) since 18 March 2020.

3. Since 19 May 2015 the pre-existing percentages of care for C and D were determined by the Child Support Agency to be 90% care to Ms Eaddy and 10% care to Mr Eaddy.

4. On 11 March 2020 Ms Eaddy contacted the Child Support Agency and advised that there had been a change in the care of the children from 28 February 2020.  She stated that she and Mr Eaddy each had 50% care of the children.[1]  Ms Eaddy later (on 8 April 2020) corrected the date of the asserted care change to 28 January 2020.[2]

   [1] C1- page 33

   [2] C1 - page 43

5. Mr Eaddy was contacted by the Child Support Agency.  He stated the he had 52% care of both children from 1 November 2019.  He also advised that from 28 January 2020 each parent had 50% care of the children as a result of court orders made on that date.[3]

   [3] C1 - page 41

6. On 8 April 2020 Ms Eaddy responded that she and Mr Eaddy had each had 50% care of the child D since 1 November 2020.  However, she asserted that while each of the parents had briefly had 50% care of the child C since 1 November 2019, from approximately 29 November 2019 the child C only stayed with Mr Eaddy on occasions and there was no set pattern of care.[4]  Ms Eaddy denied that Mr Eaddy had had 52% care of either of the children since 28 January 2020 when the court orders were made.  She advised that the care had been occurring in accordance with the court orders and that Mr Eaddy had not had any extra days or nights of care of the children.[5]

   [4] C1 - page 43

   [5] C1 - page 43

7. On 13 April 2020 a Child Support Agency officer decided that Mr Eaddy’s and Ms Eaddy’s care of the child D was 50/50 to each of the parents from 1 November 2019 and in relation to the child C that the care was 50/50 to each of the parents from 28 January 2020.[6]

   [6] C1- page 56

8. On 2 May 2020 Mr Eaddy objected to that decision.  He provided a care diary and Ms Eaddy also provided a care diary.

9. On 12 August 2020 an objections officer partly allowed Mr Eaddy’s objection.  The objections officer decided that two decisions applied to each of the children.  The objections officer decided that in relation to the child D, Mr Eaddy had 55% care and Ms Eaddy 45% care from 20 October 2019 and that in relation to the child C Ms Eaddy had 79% care and Mr Eaddy 21% care from 20 October 2019 and that from 31 January 2020 the parents each had 50/50 care of both children.[7]

   [7] C1 - pages 16-17

10. On 9 September 2020 Mr Eaddy requested review by the Administrative Appeals Tribunal (“the Tribunal”).

11. Mr Eaddy and Ms Eaddy attended the hearing by way of a telephone conference on 29 October and both gave evidence on affirmation. 

12. Mr Eaddy was represented with permission by Ms [A] of counsel. Ms Eaddy was represented with permission at the hearing by Mr [B] of counsel in the place of Ms Eaddy’s lawyer, Ms [C].

13. The Child Support Agency provided papers relevant to this matter and these were marked (as a bundle) as Exhibit C1 (pages 1-193).

14. Prior to the hearing Ms Eaddy provided her updated care diary and this was marked Exhibit B1.  Mr Eaddy provided a written submission and this was marked as Exhibit A1 to A9.  The majority of that Exhibit was redacted because most of the submission did not relate to the care decision under review.  Ms Eaddy responded but her submission was not accepted as it did not relate to the care decision under review.

15. The Tribunal deferred making a decision pending the receipt of closing written submissions from the parties’ legal representatives.  The Tribunal issued directions in relation to the timeline for the closing submissions. 

16. Following the hearing Mr Eaddy provided a colour-coded copy of his care diary, a written submission and a letter from Ms Eaddy’s lawyer to his lawyer regarding one care event in March 2020.  These documents were marked as Exhibit A10 to A19.  Ms [A], legal counsel for Mr Eaddy provided her written submission and this was marked Exhibit A20 to A22.  Ms [C], legal counsel for Ms Eaddy provided her written submission and this was marked Exhibit B2 to B4.

17. On 20 November 2020 the Tribunal made its decision.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the children in the relevant care periods?

   b)Should a new determination of a percentage of care for the children be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child(ren). Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child(ren) during the relevant care period, the Registrar must determine that person’s percentage of care for the child(ren) during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child(ren) changed and reflecting the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that in this case there are two care periods: the first from 20 October 2019 to 30 January 2020 and the second commencing from 31 January 2020 when the court orders became operative. The Tribunal notes that while a 12-month care period was appropriate from 31 January 2020 this will apply only unless or until a further care determination is made. (The Tribunal further notes that a subsequent care determination was made on 5 June 2020.)

4. The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place.

5. Section 5 of the Assessment Act refers to the Family Assistance Act for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes “a parenting order within the meaning of section 64B of the Family Law Act 1975”.  The Tribunal is satisfied that the court orders of 28 January 2020 operative from 31 January 2020 satisfy the definition of a “care arrangement”.  Prior to those court orders the Tribunal is satisfied that actual care of the children will be the determinant of the parents’ care percentages.

6. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[8] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care and up to the time of the original determination by the Registrar (20 May 2020) and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [8] Paragraph 50(1)(a) of the Assessment Act

7. The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[9] the AAT stated that:

   …a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity.  Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

   [9] [2013] AATA 562; 137 ALD 426

8. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

9. In this case, Mr Eaddy and Ms Eaddy did not contend that nights were an unsuitable measure of the care of the children and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

10. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the children and whether the care that was occurring did not correspond with the pre-existing care determination of 90% to Ms Eaddy and 10% to Mr Eaddy.

11. Ms Eaddy initiated the contact with the Child Support Agency on 11 March 2020.  She notified that the care of the children changed on 28 February 2020 (which she later corrected to 28 January 2020) and that the children were in the 50/50 care of herself and Mr Eaddy.  However, when Mr Eaddy was contacted by the Child Support Agency their notes record that he asserted that the children had been in the 50/50 care of himself and Ms Eaddy since 1 November 2019. 

12. Both parents provided care calendars commencing from 20 October 2019.

13. The Tribunal has carefully considered the care calendars including the helpful colour-coded calendar from Mr Eaddy and the equally helpful updated table from Ms Eaddy.[10]  There is minimal difference in the care calendars.  The Tribunal considered the period from 20 October 2019 to 30 January 2020 (court orders being applicable from 31 January 2020). There are 103 nights in this period.  Mr Eaddy calculated that in relation to the child C in that period he had 29 nights of care and Ms Eaddy had 74 nights of care; and in relation to the child D in the same period Ms Eaddy had 48 nights of care and he had 55 nights of care. 

    [10] A12-A18 and B1

14. Ms Eaddy’s care calendar states that in this period of 20 October 2019 to 30 January 2020, in relation to the child C she had 75 nights of care and Mr Eaddy 28 nights and in relation to the child D she had 46 nights of care and Mr Eaddy 57 nights.

15. The Tribunal is satisfied that both parents prepared the care calendars conscientiously and this is evident in their close similarity. The Tribunal decided that a fair way of resolving the very slight differences in the percentages of care would be to accept the higher calculation for each child. That means that for the child C, the Tribunal finds that Ms Eaddy’s determination of 75 nights will prevail. This is 73% (75/103 = 72.8). It follows that Mr Eaddy’s care percentage is 27%. In relation to the child D the Tribunal finds that Ms Eaddy’s determination for Mr Eaddy of 57 nights will prevail. That is 56% (57/103 = 55.3). It follows that Ms Eaddy’s care percentage is 44%. In accordance with section 54D of the Assessment Act the lower percentage of care is rounded down and the higher percentage rounded up.

16. In relation to the period when the court order became operative from 31 January 2020 and the court-ordered care was 50/50 to each of the parents, Ms Eaddy contended on 8 April 2020 that the care had been occurring in accordance with the court orders since 28 January 2020 and that Mr Eaddy had not had any extra days or nights of care.[11]  Mr Eaddy contended that he had had an additional night of care on 5 March 2020 and an additional seven nights of care from 13 to 20 March 2020.[12]  While the Tribunal accepts that Mr Eaddy had the care on those nights, the Tribunal is not persuaded that these alter or disrupt the general pattern  of care that was occurring which was normally shared care on a week about basis as the court orders provide.  Despite these minor fluctuations, the Tribunal is satisfied that the usual pattern of care which was occurring was 50% to each of the parents from 31 January 2020 (administratively recorded by the Child Support Agency as 51% to Ms Eaddy and 49% to Mr Eaddy).

    [11] C1 - page 43

    [12] C1- page 51

17. Hence the Tribunal finds that from 20 October 2019 Ms Eaddy’s care of the child C was 73% and Mr Eaddy’s was 27% and that from 31 January 2020 the parents each had 50% care.  In relation to the child D the Tribunal finds that from 20 October 2019 Mr Eaddy’s care was 56% and Ms Eaddy’s care was 44% and that from 31 January 2020 the parents each had 50% care.

18. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the children and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

19. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the 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. Prior to 20 October 2020, the pre-existing care was that Ms Eaddy had 90% care of the children and a cost percentage of 100%. Mr Eaddy had 10% care and a cost percentage of nil. The Tribunal’s determination will mean that Ms Eaddy will, from 20 October 2019, have a care percentage of 73% and a cost percentage of 76% in relation to the child C and Mr Eaddy will have a care percentage of 27% and a cost percentage of 24%. In relation to the child D Mr Eaddy will have a care percentage of 56% and a cost percentage of 57%. Ms Eaddy will have a care percentage of 44% and a cost percentage of 43%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parents having less than regular care), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F of the Assessment Act.

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 20 October 2019. The Tribunal also found that Ms Eaddy notified the Child Support Agency of the change on 11 March 2020. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

3. Mr Eaddy’s care of both children has increased and according to subparagraph 54F(3)(b)(i) his existing care percentage of 10% will be revoked from 10 March 2020, being the day before the Child Support Agency was notified of the care change.

4. Ms Eaddy’s care of both children has decreased and according to subparagraph 54F(3)(b)(ii) her existing care percentage of 90% will be revoked from 19 October 2019, being the day before the change of care day.

5. Having revoked the existing determinations, the Tribunal must now make new determinations of Ms Eaddy and Mr Eaddy’s percentages of care under section 50 of the Assessment Act.

6. Section 54B of the Assessment Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

7. Hence, the change of care being 73% for Ms Eaddy in relation to the child C and 44% to Ms Eaddy in relation to the child D applies from 20 October 2020. The change of care being 27% for Mr Eaddy in relation to the child C and 56% in relation to the child D applies from 11 March 2020.

8. In relation to the change in care from 31 January 2020 the same process of revocation and new determinations under section 50 of the Assessment Act applies because the change to 50% to each of the parents will change the cost percentages. Ms Eaddy’s care of the child C of 73% will reduce to 50% and her care of the child D will increase from 44% to 50% resulting in a cost percentage of 50% in relation to both children. Mr Eaddy’s care of the child C will increase from 27% to 50% and his care of the child D will decrease from 56% to 50% resulting in a cost percentage of 50% for both children. As the change in care from 31 January 2020 was not notified within 28 days, differing dates of effect for each parent will again apply. In relation to child C, Mr Eaddy’s care has increased from 27% to 50% and therefore the existing care determination will be revoked from the day before the Child Support Agency was notified: that is, from 10 March 2020. Ms Eaddy’s care of the child C decreased from 73% to 50% and the existing care determination of 73% is revoked from the day before the change of care day; that is, from 30 January 2020. In relation to the child D, Ms Eaddy’s care increased from the existing 44% to 50% and therefore the existing care determination will be revoked from the day before the Child Support Agency was notified; that is, from 10 March 2020. Mr Eaddy’s care of the child D decreased from 56% to 50% and therefore the existing care determination of 56% will be revoked from the day before the change of care day; that is, from 30 January 2020.

1. It follows, as described above that having revoked the existing percentages of care, the new care percentages under section 50 of the Assessment Act will apply from the day after revocations.

2. The Tribunal notes that Mr Eaddy and his representative have urged the Tribunal to make a broader decision encompassing not only the care of the child D and the child C but also other matters such as non-agency payments and a change to the administrative assessment.  However, the Tribunal only has jurisdiction to review decisions made by objections officers of the Child Support Agency.  If an objections officer of the Child Support Agency has made a decision in relation to a matter other than the care percentage objection decision of 12 August 2020, Mr Eaddy can seek separate review of that other objection decision by the Tribunal.  If a primary decision has been made about another matter, Mr Eaddy may object to it (or seek an extension of time to object to it) and once an objection officer’s decision has been made, he may seek review of that objection decision by the Tribunal. 

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages of the parents were:

·     in relation to the child C from 20 October 2019 Ms Eaddy had 73% care (with a date of effect of 20 October 2019) and Mr Eaddy had 27% care (with a date of effect of 11 March 2020); and from 31 January 2020 Ms Eaddy had 50% care (with a date of effect of 31 January 2020) and Mr Eaddy had 50% care (with a date of effect of 11 March 2020).

·     in relation to the child D from 20 October 2019  Ms Eaddy had 44% care (with a date of effect of 20 October 2019) and Mr Eaddy had 56% care (with a date of effect of 11 March 2020); and from 31 January 2020 Ms Eaddy had 50% care (with a date of effect of 11 March 2020) and Mr Eaddy had 50% care (with a date of effect of 31 January 2020).