Feecham and Lusane (Child support)

Feecham and Lusane (Child support) [2024] AATA 2013 (9 May 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/HC026474
APPLICANT:  Mr Feecham
OTHER PARTIES:  Child Support Registrar
Ms Lusane

TRIBUNAL:Member H Moreland
DECISION DATE: 9 May 2024
DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – whether there has been a change in the pattern of care –pre-existing care percentages revoked – decision under review affirmed

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

Mr Feecham and Ms Lusane are the parents of [Child 1], [Child 2], [Child 3] and [Child 4]. The care of [Child 1] is not a subject of this matter. Mr Feecham is the parent liable to pay child support.
Services Australia – Child Support (Child Support) had the care of [Child 2], [Child 3] and [Child 4] as being 15% with Mr Feecham and 85% with Ms Lusane from 26 August 2020. On 18 November 2022, Child Support was notified that there had been a change in care for [Child 2], [Child 3] and [Child 4] from 24 November 2020 and that at that time, the care had changed so that Mr Feecham had 100% care and Ms Lusane had 0% care from 24 November 2020. On 21 November 2022, Child Support decided to reflect the care as being 100% with Mr Feecham and 0% with Ms Lusane for all three children. On 1 December 2022, Ms Lusane objected to the decision, and on 24 January 2023, an objections officer decided to reflect the care of [Child 2], [Child 3] and [Child 4] as being 14% with Mr Feecham and 86% with Ms Lusane from 24 November 2020.
On 25 July 2023, Mr Feecham lodged an application to 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 9 May 2024. Mr Feecham and Ms Lusane both participated in the hearing by telephone and gave evidence on affirmation. In making its decision, the Tribunal considered the documents provided by Child Support (numbered 1‑65), as well as a document provided by Mr Feecham (numbered A1). These were exchanged with the parties.

CONSIDERATION

The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).
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.
[1] (1979) 2 ALD 634.
[2] [2018] FCA 1229.

Was there a change in the care of [Child 2], [Child 3] and [Child 4]?

As noted above, the care of [Child 2], [Child 3] and [Child 4] was recorded as being 15% with Mr Feecham and 85% with Ms Lusane from 26 August 2020.
It is common ground that Mr Feecham had no care of the children from 26 August 2020 until 24 November 2020, and from this date, the care of the children was as follows:
·Mr Feecham had care for every night from 24 November 2020 to 16 February 2021 (84 nights);
·Mr Feecham had care for every night from 4 November 2022 to 23 November 2022 19 nights); and
·Ms Lusane had care for all other nights during these two periods.
Mr Feecham told the Tribunal that he lives [overseas] due to his work as a [occupation] and that he has blocks of care for the children when he is in Australia. Mr Feecham also told the Tribunal that his care of the children had been affected by travel restrictions caused by the COVID‑19 pandemic.
The Tribunal is satisfied that there was a change in care for [Child 2], [Child 3] and [Child 4] since the care for them was recorded as being 15% with Mr Feecham and 85% with Ms Lusane from 26 August 2020.

Should the existing care determination in relation to [Child 2], [Child 3] and [Child 4] be revoked?

10.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.
11.In this case, the Tribunal finds that a care determination was made under section 50 of the Act from 26 August 2020 with Mr Feecham having a care percentage of 15% and Ms Lusane having a care percentage of 85%. The Tribunal is also satisfied that the care that was taking place did not correspond with that care percentage decision. Therefore, paragraph 54F(1)(a) of the Act is satisfied.
12.Section 50 of the Act provides that if the Tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care for [Child 2], [Child 3] and [Child 4], the Tribunal must determine the care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person.
13.The Tribunal is required to consider the actual care of [Child 2], [Child 3] and [Child 4] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). Child Support’s policy in this regard, as set out in section 2.2.1 of the Child Support Guide,[3] 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 but the Tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter.
[3] type="1">
The Tribunal considers that, having considered all of the circumstances of this case, an appropriate care period is the 24-month period from 24 November 2020 based on the evidence of the care of [Child 2], [Child 3] and [Child 4] as submitted to Child Support and the Tribunal. The Tribunal finds that calculating the care over a 24-month period from 24 November 2020 to 23 November 2022 is reflective of the period from which the care of [Child 2], [Child 3] and [Child 4] changed and a better reflection of the pattern of care for the children than it being calculated over a 12-month period.
15.The Tribunal notes that according to section 54D of the 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.
16.This means the Tribunal finds that the care period is from 24 November 2020 to 23 November 2022, and during that period of 730 nights, Mr Feecham had care for 103 nights (14%) and Ms Lusane had care for 627 nights (86%).
Paragraph 54F(3)(b) of the Act provides that, where a notification of a change in care occurs more than 28 days after the change of care:
(i)Where the responsible person’s care of the child has increased, the revocation of the determination takes effect the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; and
(ii)Where the responsible person’s care of the child has reduced, the revocation of the determination takes effect the day before the change of care day.
In this case, the care percentage changed on 24 November 2020 but Child Support was not notified until 18 November 2022 when Mr Feecham reported that there had been a change in care.[4]
[4] Child Support papers, p 137.
As Mr Feecham’s care reduced, the existing determination of care for Mr Feecham is revoked from 23 November 2020, and from 24 November 2020 a new care determination is made that Mr Feecham had 14% care of the children.
As Ms Lusane’s care increased, the existing determination of care for Ms Lusane is revoked from 17 November 2022, and from 18 November 2022 a new care determination is made that Ms Lusane had 86% care of the children.
DECISION
The decision under review is affirmed.

[2024] AATA 2013

9 May 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness

Judicial Review