Ethington and Rudner (Child support)

[2024] AATA 796

Ethington and Rudner (Child support) [2024] AATA 796 (22 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC027157

APPLICANT:  Miss Ethington

OTHER PARTIES:  Child Support Registrar

Mr Rudner

TRIBUNAL:Member H Moreland

DECISION DATE:  22 February 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Ethington had a care percentage of 86% and Mr Rudner had a care percentage of 14% for [Child 1] and [Child 2] from 22 February 2023, with effect from 17 July 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the 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 removed 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. Miss Ethington and Mr Rudner are the parents of [Child 1] and [Child 2].

2. On 20 April 2023, Services Australia – Child Support (Child Support) determined that from 22 February 2023, Miss Ethington had a care percentage of 66% and Mr Rudner had a care percentage of 34% for [Child 1] and [Child 2].

3. On 17 July 2023, Miss Ethington objected to this decision.

4. On 10 November 2023, an objections officer decided to disallow Miss Ethington’s objection.

5. On 5 December 2023, Miss Ethington lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision. The hearing took place on 22 February 2024. Miss Ethington and Mr Rudner participated in the hearing by telephone and both of them gave evidence on affirmation. In making its decision, the Tribunal considered the oral evidence of Miss Ethington and Mr Rudner, as well as documents provided by Child Support (numbered 1–290), which were also sent to Miss Ethington and Mr Rudner.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act), the Child Support (Registration and Collection) Act 1988 (the Registration Act) and the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2. 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).[1] In the case of G v MIBP,[2] 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.

Has there been a change in the care of [Child 1] and [Child 2]?

1. The Tribunal notes that there is no dispute between Miss Ethington and Mr Rudner that a parenting plan that had been agreed some time ago had never been followed.

2. As shown in the Child Support papers, Child Support recorded that from 7 September 2021, Miss Ethington had a care percentage of 35% for [Child 1] and [Child 2] and Mr Rudner had a care percentage of 65%.[3]

   [1] (1979) 2 ALD 634.

   [2] [2018] FCA 1229.

   [3] Child Support papers, pp 251 and 254.

10.Miss Ethington and Mr Rudner both told the Tribunal that prior to Mr Rudner commencing work as a fly-in fly-out worker in February 2023, Mr Rudner had had more care of [Child 1] and [Child 2] than Miss Ethington but from late February 2023, it had changed to a pattern based on Mr Rudner’s work schedule.

11.There is no dispute that from 22 February 2023, the care of [Child 1] and [Child 2] has been based on a 21-day schedule, with Miss Ethington having 18 nights of care and Mr Rudner having 3 nights of care in each 21-day schedule, regardless of school term dates and holidays.

12.The Tribunal finds there are 17.38 21-day cycles in each year and finds that the care percentages for [Child 1] and [Child 2] from 22 February 2023 are as set out in this table:

Parties	Nights of care per 21-day cycle	Nights	Percentage
Miss Ethington	18	312.86	85.72
Mr Rudner	3	52.14	14.28
Total	21	365	100

13.According to section 54D of the Assessment Act, if a responsible person’s percentage of care is not a whole percentage and the person’s percentage of care is greater than 50%, the percentage is rounded up to the nearest whole percentage and if the person’s percentage is less than 50%, the percentage is rounded down to the nearest whole percentage.

14.The Tribunal finds that there has been a change in care with regard to [Child 1] and [Child 2] and that from 22 February 2023, Miss Ethington had a care percentage of 86% and Mr Rudner had a care percentage of 14%.

Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?

15.According to section 54F of the Assessment Act, the Registrar must revoke a care determination if:

·     the existing percentage of care has been determined under either section 49 or section 50 of the Assessment Act;

·     one of the conditions described in paragraphs 54F(2)(a) to (c) of the Assessment Act applies in relation to an interim period;

·     the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the existing determination;

·     if a new percentage were to be determined under either section 49 or 50 of the Assessment Act, it would change the person’s cost percentage; and

·     section 54G of the Assessment Act does not apply. 

16.Section 54G of the Assessment Act applies in circumstances where:

·     a parent was to have at least regular care of the child based on the existing care determination under section 50, but the parent has had no actual care or less than regular care of the child, even though the other parent was making the child available;

·     the other parent must have had their existing percentage of care determined under section 50; and

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

17.As noted above, section 50 applies if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

18.According to the Child Support Guide, at 2.2.1 Basics of care:[4]

[4] definitions for child support assessments

Once a care percentage has been determined (see table below), there are 5 different terms that may be used to describe care.

Term	Description	Percentage of care	Number of nights
Below regular care	The parent is not recognised as meeting any costs of the child through care.	0 to less than 14%	0 to 51
Regular care	The parent is recognised to be meeting 24% of their costs of the child through care.	14% to less than 35%	52 to 127
Shared care	The parent is recognised as contributing to the costs of the child through care. A parent with shared care can be entitled to receive child support, or be required to pay child support. A person who is not a parent, but who provides at least shared care of a child, can be eligible to receive child support as a non-parent carer.	35% to 65%	128 to 237
Primary care	The parent is recognised as meeting 76% of their costs of the child through care. A parent with more than 65% care for a child will not be assessed to pay child support for that child.	More than 65% to 86%	238 to 313
Above primary care	The parent is recognised as meeting 100% of their costs of the child through care.	More than 86% to 100%	314 to 365

19.The Tribunal is satisfied that the previous care determinations (one each for [Child 1] and [Child 2]) were made under section 50 of the Assessment Act because, as noted above, Child Support recorded that from 7 September 2021, Miss Ethington had a care percentage of 35% for [Child 1] and [Child 2] and Mr Rudner had a care percentage of 65%.[5]

[5] Child Support papers, pp 251 and 254.

20.The Tribunal is satisfied that the care that was taking place did not correspond with these levels of care and is also satisfied that section 54G does not apply because Mr Rudner had at least regular care of [Child 1] and [Child 2] from 22 February 2023 because his care percentage was 14% from that date.

21.The Tribunal then considered the remainder of section 54F of the Assessment Act and concluded that there had been an actual change in care for [Child 1] and [Child 2] and that the cost percentage for Miss Ethington and Mr Rudner would change because Miss Ethington went from having regular care to primary care and Mr Rudner went from having primary care to regular care.

1. Paragraph 54F(3)(a) of the Assessment Act provides that, where a notification of a change in care occurs within 28 days after the change of care day, the previous determination is revoked the day before the change of care day.

2. As shown in the Child Support papers, the change in care was reported on 21 March 2023. The Tribunal is satisfied that this is within 28 days of the change in care day. Accordingly, the Tribunal revokes the existing care determinations under section 54F of the Assessment Act from 21 February 2023.

24.As the Tribunal has revoked the previous care percentage determinations that applied in respect of [Child 1] and [Child 2] it must make new care percentage determinations that reflect the current pattern of care.  Accordingly:

·     Pursuant to section 50 of the Assessment Act, the Tribunal determines that from 22 February 2023, Miss Ethington’s care percentage for [Child 1] and [Child 2] was 86%; and

·     Pursuant to section 50 of the Assessment Act, the Tribunal determines that from 22 February 2023, Mr Rudner’s care percentage for [Child 1] and [Child 2] was 14%.

25.The Tribunal notes thatrevi Child Support determined that from 22 February 2023, Miss Ethington had a care percentage of 66% and Mr Rudner had a care percentage of 34% for [Child 1] and [Child 2]. This means that Child Support found that Miss Ethington had primary care and Mr Rudner had regular care of [Child 1] and [Child 2] (see paragraph 18 of these Reasons).

26.This means that the Tribunal’s decision, while it has determined that there was a change in the care percentage, will have no material difference on the outcome, because its decision does not change the cost percentage in relation to [Child 1] and [Child 2] because the Tribunal has also found that Miss Ethington had primary care and Mr Rudner had regular care, from 22 February 2023.

Date of effect of the Tribunal’s decision

27.The Tribunal then considered the date of effect of its decision to set aside the decision of the objections officer. According to subsection 43(6) of the AAT Act, the Tribunal’s decision is taken to be a decision of the decision maker (the objections officer) and, unless otherwise ordered, has effect from the day on which the decision maker’s decision had effect.

28.The objections officer disallowed Miss Ethington’s objection, so there was no date of effect for consideration. However, had the objections officer come to the same conclusions reached by the Tribunal, resulting in the revocation of the existing determinations of care, the date of effect of the decision would be subject to section 87AA of the Registration Act. Subsection 87AA(1) of the Registration Act states that if a person objects to a care percentage decision more than 28 days after the person was served with a notice of the decision, the decision has effect from the date the person lodged the objection. Subsection 87AA(2) of the Registration Act provides an exception to that general rule in that if the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within 28 days, the Registrar may determine that subsection 87AA(1) applies as if the person objected within the required timeframe.

29.Miss Ethington told the Tribunal that she did not object to the original decision within 28 days of being notified of it because she wanted to obtain documentary evidence to support her objection.

30.The Tribunal notes that the special circumstances must have prevented Miss Ethington from lodging an objection to the original decision within 28 days. The Tribunal is not satisfied that the circumstances of Miss Ethington are special such that the application should be considered as if it were in time from 22 February 2023 because it is not satisfied that Miss Ethington was prevented from lodging her objection. Therefore, the appropriate date of effect of the Tribunal’s decision is 17 July 2023, which is when Miss Ethington lodged her objection.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Ethington had a care percentage of 86% and Mr Rudner had a care percentage of 14% for [Child 1] and [Child 2] from 22 February 2023, with effect from 17 July 2023.