Feasey and Riggs (Child support)

[2021] AATA 3181

Feasey and Riggs (Child support) [2021] AATA 3181 (21 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021512

APPLICANT:  Mr Feasey

OTHER PARTIES:  Child Support Registrar

Ms Riggs

TRIBUNAL:Member S Brakespeare

DECISION DATE:  21 July 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations are therefore revoked and replaced with percentage of care determinations reflecting that Mr Feasey has 42% care of the children and Ms Riggs has 58% care of the children with effect from 9 November 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - decisions 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. Mr Feasey is the parent liable to pay child support to Ms Riggs in respect of their children [Child 1] and [Child 2].

2. The child support assessment was based on, among other things, percentage of care determinations reflecting that Mr Feasey had 29% care of the children and Ms Riggs had 71% care of the children (the existing percentage of care determinations).

3. On 7 December 2020 Mr Feasey advised the Child Support Agency that there had been a change in the care arrangements from 9 November 2020 which would result in his care increasing to 45%. Ms Riggs disputed that Mr Feasey would have increased care.

4. On 23 December 2020 an officer of the Child Support Agency refused to revoke the existing percentage of care determinations (the original decision). Mr Feasey objected to the original decision. An objections officer disallowed the objection on 16 April 2021 (the objection decision).

5. Mr Feasey lodged an application for review of the objection decision with the tribunal. A hearing was held on 21 July 2021. Mr Feasey gave evidence on affirmation to the tribunal via conference telephone. The tribunal was unable to contact Ms Riggs by telephone at the time fixed for hearing. The tribunal proceeded to hear and decide the application in her absence[1]. The tribunal had before it papers provided by the Child Support Agency (208 pages) and documents submitted by Mr Feasey (folios A1 to A6).

   [1] In accordance with paragraph 29(a) of the Child Support Review Directions.

6. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

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

2. The issue which arises in this case is whether the existing percentage of care determinations are to be revoked and replaced.

CONSIDERATION

1. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to the Child Support Agency of a change of care arrangements. 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. 

2. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency – so that a new primary care percentage decision can be considered, and made if appropriate.

3. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Child Support Agency.

4. Section 50 of the Act provides that where a responsible person (usually a parent) has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Child Support Agency considers to be appropriate having regard to all the circumstances, the Child Support Agency must determine the responsible person’s percentage of care for the child during the care period. The percentage determined under section 50 must be a percentage that corresponds with the actual care of the child that the Child Support Agency is satisfied that the responsible person has had, or is likely to have, during the care period.

5. The existing percentage of care determinations were made in accordance with section 50 of the Act.

6. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency or Centrelink is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children. Section 54F applies if section 54G of the Act does not apply. The tribunal is satisfied that section 54G does not apply in this case.

7. Mr Feasey informed the Child Support Agency that as per a Court Order (the Order) dated 9 November 2020 he expected to have 165 nights care per year (45%).

8. Ms Riggs told the Child Support Agency that her calculations indicated that Mr Feasey would have a maximum of 101 nights care per year (27%).

9. Mr Feasey told the tribunal that he calculated that he had at least 45% care of the children in the care period from 9 November 2020 to 17 April 2021( as Ms Riggs relocated to [Town 1] on 18 April 2021). Mr Feasey said the care should be calculated over that shorter care period, as there was always going to be a change in care once Ms Riggs relocated from Western Australia to Queensland. However, he acknowledged that at the time the Order was made it was envisaged that Ms Riggs and the children may relocate to Queensland on or after 30 June 2021.

10. The tribunal notes that the Order provides at clause 3 that if the children remained living in [Town 2] that they spend the first half of each of the Western Australia term 1, 2 & 3 school holidays with the non-resident parent. Clauses 4-6 provide that in all cases commencing in 2020 the children spend the second half of the term 4 Christmas school holidays with the non-resident parent, alternating in subsequent years. It also provides for any other additional or alternate time as agreed in writing between the mother and father.

11. The Order provides for additional time for the non-residential parent during term time in any event regardless of whether the children are living in [Town 1], [Town 2] or Perth. Relevantly clause 7 provides:

    7. In the event the non-resident is able to spend time with the children in the resident parent’s town during the school term:

    a. They be at liberty to spend up to 10 consecutive days with the children each month subject to them giving the resident parent no less than 14 days written notice:

    …

12. The tribunal finds that the pattern of care should be calculated over a care period of 12 months, commencing from 9 November 2020, and should be based upon the children living in [Town 2] with Ms Riggs. The Order provided that Ms Riggs was at liberty to relocate the residence of the children to [Town 1], Queensland to live there permanently on or after 30 June 2021. The tribunal is of the view that the relocation date was a prospective date at the time the Order was made; and once the relocation did occur, a further change to the pattern of care was likely to occur. (It subsequently transpired that the move to [Town 1] was brought forward to 18 April 2021 and Mr Feasey notified the Child Support Agency of a further change in care at that time).

13. Mr Feasey believes the care period should be limited to the period ending with the actual relocation date, being 9 November 2020 to 17 April 2021. The tribunal does not agree, as at the time the change of care was advised the earlier relocation date was not envisaged. The tribunal’s role is to determine what was likely to be the pattern of care at the time the change of care was notified.

14. The tribunal viewed the Western Australia school holiday dates for 2020 and 2021. Having regard to those dates the tribunal finds that Mr Feasey could have 21 nights care during the term 4 Christmas holidays commencing December 2020 and 24 nights care during the term 1, 2 & 3 school holidays commencing 2021. The extra nights he could have during school terms equate to 110 nights. (The month of January is the only month that is not either wholly or partially within a school term). Therefore, the tribunal finds the maximum nights Mr Feasey could have under the Order would be 155 nights, which equates to 42% (rounded down).

15. Ms Riggs told the Child Support Agency that based on past care patterns it was unlikely that Mr Feasey would be able to take the 10 extra days per month in school terms due to his FIFO work roster.

16. Mr Feasey told the tribunal that at the time the Order was made he was working 8 days on and 6 days off. However, his employer was aware of his intention to spend extra time with the children and was prepared to be flexible. It was envisaged that he would move to a 2 & 2 roster (2 weeks on, 2 weeks off) and that occurred in March 2021. In the interim it was his intention to use his significant annual leave reserves and other arrangements to ensure he could have the 10 extra days. Over the Christmas school holidays he had the children continuously from 27 December 2020 to 25 January 2021. In February his extra days were made up of 2 lots of 5 days. In March he had 10 extra days, consecutively. In April he had school holiday care, and then the children moved to [Town 1]. This move was earlier than anticipated by the Order, and he advised the Child Support Agency of the new pattern of care on 18 April 2021.

17. Mr Feasey said it was always his intention to maximise the amount of care he had in accordance with the Order.

18. The tribunal is satisfied that there was likely to be a change in Mr Feasey’s level of care because of the Order. It is notable that the Order was by consent (apart from the decision as to where the children would reside) and it allowed the parents flexibility to agree in writing on “any other additional or alternative time as agreed between the Mother and Father” (clause 6). The tribunal is satisfied that it was always Mr Feasey’s intention to have the maximum amount of care allowed for in the Order and the Order was flexible enough to allow Mr Feasey to fit that care in with his work arrangements. Emails exchanged between the parents on 23 November 2020 working out the details for the Christmas holidays are proof that both parents were prepared to be flexible with the arrangements.

19. The tribunal therefore finds that there was a change to the actual care that Mr Feasey was likely to have from 9 November 2020 resulting in him having 42% care of the children and Ms Riggs having 58% care of the children. In accordance with section 55 of the Act a percentage of care between 35% and 48% results in a cost percentage of 25% plus 2% for each percentage point over 35%. The existing percentage of care determinations result in a cost percentage of 24%. As the change in care results in a change to the cost percentage the existing percentage of care determinations are to revoked in accordance with section 54F of the Act.

20. If the existing percentage of care determinations are revoked under section 54F the Child Support Agency must make another determination under section 49 or 50 to replace the revoked determination.

21. The existing percentage of care determinations are therefore revoked and replaced with percentage of care determinations reflecting that Mr Feasey has 42% care of the children and Ms Riggs has 58% care of the children with effect from 9 November 2020.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the existing percentage of care determinations are therefore revoked and replaced with percentage of care determinations reflecting that Mr Feasey has 42% care of the children and Ms Riggs has 58% care of the children with effect from 9 November 2020.