Fernandez and Fernandez (Child support)

[2023] AATA 2662

Fernandez and Fernandez (Child support) [2023] AATA 2662 (27 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025522

APPLICANT:  Mr Fernandez

OTHER PARTIES:  Child Support Registrar

Ms Fernandez

TRIBUNAL:Member R Anderson

DECISION DATE:  27 June 2023

DECISION:

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

• The existing care determinations attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2] are revoked at 13 July 2022 and 3 March 2022 respectively, and new care determinations of 53% to Mr Fernandez and 47% to Ms Fernandez apply from 14 July 2022 and 4 March 2022 respectively; and

• The existing care determinations attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2] are revoked at 21 August 2022 and new care determinations of 44% to Mr Fernandez and 56% to Ms Fernandez apply from 22 August 2022.

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. Mr Fernandez and Ms Fernandez are the separated parents of [Child 1] and [Child 2]. The child support assessment was initially registered with Services Australia – Child Support (Child Support) on 22 March 2016. Child Support has been responsible for collection of child support since 20 April 2022.

2. Child Support records indicate that Ms Fernandez contacted Child Support on 14 July 2022 to advise that her care of the children had increased since 29 March 2022 from 51% to 57%, based on four nights per week of care. Mr Fernandez did not agree, maintaining that he has had more than 50% care of the children since March 2022 due to various issues related to COVID-19.

3. On 22 October 2022, a delegate of the Registrar decided to accept that a change in care occurred from 29 March 2022, recording Mr Fernandez as having 45% care of the children and Ms Fernandez as having 55% care. As Ms Fernandez notified of the change in care more than 28 days after the event, her increased care of 55% did not apply to the administrative assessment until 14 July 2022, while the decreased care attributed to Mr Fernandez applied from 29 March 2022.

4. Mr Fernandez lodged a formal objection to the decision of 22 October 2022 by telephone on 16 November 2022. On 14 January 2023, an objections officer disallowed Mr Fernandez’s objection to the decision of 22 October 2022.

5. Mr Fernandez then lodged an application with the Administrative Appeals Tribunal (AAT) on 31 January 2023 for an independent review of the objections officer’s decision.

6. The matter was heard on 27 June 2023. The tribunal received oral evidence on affirmation from Mr Fernandez and Ms Fernandez, who both participated by conference telephone.

7. In considering this matter the tribunal took into account the oral evidence of the parties given at the hearing and the documents provided by Child Support in accordance with the Administrative Appeals Tribunal Act 1975 numbered 1 to 139 and a submission provided by Mr Fernandez numbered A1 to A2. Both parties confirmed receipt of those documents.

ISSUES

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

2. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to Child Support 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.

3. In accordance with sections 49 and 50 of the Act, as at 14 July 2022, when Ms Fernandez contacted Child Support, the registered care of [Child 1] and [Child 2] was recorded as 49% to Mr Fernandez and 51% to Ms Fernandez. According to Child Support records, the registered care was based on actual care.

11.Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. In this case, the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the children before revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

12.Section 49 applies, relevantly, if the parent “has had, or is likely to have, no 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”. Section 50 applies, relevantly, 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”. Both sections reflect the idea that care decisions are made on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

1. The tribunal’s task on review is to stand in the shoes of the original decision maker. In the tribunal’s view, the legislative scheme deals with any subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

2. The issues for determination in this review in respect of the care period are:

   •    Should the existing determinations of the percentages of care in respect of [Child 1] and [Child 2] be revoked? If so, from when should they be revoked? and

   •    Should new determinations of percentages of care be attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2]? If so, from when should they apply?

CONSIDERATION

15.The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. The tribunal must have regard to the actual or likely pattern of care based on the evidence available to the original decision maker.

1. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraphs 49(1)(b)(ii) and 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), 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 and the tribunal can determine a different care period.

2. In this matter it was common ground that the pattern of care changed from 4 March 2022 to 21 August 2022 on account of the impact of COVID-19. It was also undisputed that from 22 August 2022, prior to the original decision maker’s decision, the pattern of care changed again to a more regular pattern whereby Mr Fernandez cared for the children for three nights per week during school terms and had 50% care during school holiday periods.

3. Accordingly, the tribunal is satisfied that it is appropriate to consider two care periods in these circumstances, the first care period from 4 March 2022 until 21 August 2022 and the second care period for the 12-month period commencing 22 August 2022.

4. It is noteworthy that interim consent orders were made in the Federal Circuit Court and Family Court of Australia in Canberra on 22 December 2022. There is no information before the tribunal in respect of a new care determination. However, if a new care determination were to be made, it would override any decision made by this tribunal from the commencement date of the new care determination.

Care period 4 March 2022 to 21 August 2022

Issue 1 – Should the existing determinations of the percentages of care be revoked? If so, from when should they be revoked?

1. According to the calendars provided by the parties to Child Support, there was no dispute in respect of the care of the children throughout the period 4 March 2022 to 21 August 2022 (171 days). It is noteworthy that Ms Fernandez acknowledged that she had recorded the day the children left her care as the last night of care in error. As such, both calendars aligned. At hearing, both parties agreed that the change in care commenced on 4 March 2022 rather than 29 March 2022, as originally advised to Child Support.

2. It was evident that Mr Fernandez had additional blocks of care from 4 March 2022 to 28 March 2022, 15 July 2022 to 24 July 2022 and 12 August 2022 to 21 August 2022 due to the impact of COVID-19. It was undisputed that during the first care period Mr Fernandez had care of the children for 91 days out of 171 days. Accordingly, the tribunal is satisfied that the actual care of [Child 1] and [Child 2] in the care period 4 March 2022 to 21 August 2022 in respect of Mr Fernandez and Ms Fernandez is 53% and 47% respectively, in accordance with the rounding provisions under section 54D of the Act.

3. Subsection 54F(1) of the Act provides that if an existing determination of care was made under section 49 or 50 of the Act, then the existing care determination must be revoked if all of the four criteria are met. There is no dispute that there were existing determinations for Mr Fernandez and Ms Fernandez of percentages of care for the children, being 49% and 51% respectively, made in accordance with section 50 of the Act.

4. In relation to paragraph 54F(1)(a) of the Act, Ms Fernandez notified Child Support of a change in the level of care that she and Mr Fernandez provided to the children on 14 July 2022. The tribunal found above that a change in care commenced on 4 March 2022. The new care percentages do not correspond to the care registered with Child Support. Therefore, the first criterion is satisfied.

5. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Relevantly, section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

6. Section 55C of the Act contains a table that is used to work out a person’s cost percentage. Under the child support assessment based on the existing percentage of care determinations, the cost percentages of Mr Fernandez and Ms Fernandez were 50% each. If new determinations were to be made in accordance with the tribunal’s findings above of 53% to Mr Fernandez, his cost percentage would be 51%. Consequently, the cost percentage applicable to Ms Fernandez would be 49%. Therefore, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(b) of the Act.

7. As the tribunal has found that both parents have had a percentage of care in respect of the children in the care period 4 March 2022 to 21 August 2022, the tribunal is satisfied that section 54G of the Act is not applicable in this case, thereby satisfying the third criterion under paragraph 54F(1)(c) of the Act. In addition, as the existing care percentages are based on actual care, section 51 does not apply for the purposes of paragraph 54F(1)(d) of the Act. It is evident that the existing registered care of 49% and 51% does not correspond to the interim orders of December 2021.

8. As all of the criteria of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentages of care in respect of [Child 1] and [Child 2].

9. Subsection 54F(3) of the Act sets out when the revocation of the determinations takes effect. The date of effect depends on whether Child Support was notified of the care change within 28 days after it occurred. As discussed above, the tribunal found that the care change advised by Ms Fernandez took effect from 4 March 2022. As the notification was made on 14 July 2022, more than 28 days after the change in care occurred, the revocation of the existing determinations takes effect from different days for each parent. As the parent with the increased care, revocation of the existing percentage of care in respect of Mr Fernandez takes effect on the day before notification to Child Support of the change in care, being 13 July 2022 (subparagraph 54F(3)(b)(i) of the Act). As the parent with the decreased care, revocation of the existing percentage of care in respect of Ms Fernandez takes effect on the day before the change of care day, being 3 March 2022 (subparagraph 54F(3)(b)(ii) of the Act). The tribunal finds accordingly.

Issue 2 – Should new determinations of percentages of care be attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2]? If so, from when should they apply?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Fernandez and Ms Fernandez in respect of the children. As no care agreement is being adhered to, the tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 49% care of [Child 1] and [Child 2] to Mr Fernandez and 51% care to Ms Fernandez should be revoked under section 54F of the Act.

2. Based on the undisputed evidence of the parties, during the care period 4 March 2022 to 21 August 2022 the tribunal is satisfied that Mr Fernandez and Ms Fernandez each had a pattern of care in respect of [Child 1] and [Child 2] of 53% and 47% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

3. Section 54B of the Act sets out the date of effect of the new determinations of percentages of care. The percentages of care apply to each day in a child support period on and from the “application day”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The tribunal has revoked the existing determinations in respect of Mr Fernandez and Ms Fernandez with effect from 13 July 2022 and 3 March 2022 respectively. Therefore, the new determinations of care for [Child 1] and [Child 2] should apply in respect of Mr Fernandez from 14 July 2022 and in respect of Ms Fernandez, from 4 March 2022. The tribunal finds accordingly.

Care period commencing 22 August 2022

Issue 1 – Should the existing determinations of the percentages of care be revoked? If so, from when should they be revoked?

1. As noted above, it was evident that the pattern of care changed from 22 August 2022. Evidence provided to the original decision maker supports that the care from 22 August 2022 reverted to a fairly regular pattern of Mr Fernandez having care of the children for three nights per week during school terms and 50% of the school holidays. The children attend a private school. The parents agreed that school terms consisted of 36 weeks and school holiday periods in a calendar year were 16 weeks. Therefore, the tribunal calculates that Mr Fernandez’s pattern of care in respect of the children during school terms is 108 days (3 nights x 36 weeks) and during the school holiday periods is 56 days (7 nights x 8 weeks). This number of 164 days out of 365 days equates to 44%, in accordance with the rounding provisions under section 54D of the Act. Consequently, Ms Fernandez’s pattern of care is likely to equate to 56%. The tribunal finds accordingly. This finding is undisputed by the parties.

2. Based on the tribunal’s determinations in respect of the care period ending 21 August 2022, the existing determinations of percentages of care for Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2] at 22 August 2022 are 53% and 47% respectively, made in accordance with section 50 of the Act. This does not correspond to the care as determined by the tribunal for the care period commencing 22 August 2022, thereby satisfying paragraph 54F(1)(a) of the Act.

3. As discussed above, under the child support assessment based on the existing percentage of care determinations at 22 August 2022, the cost percentages of Mr Fernandez and Ms Fernandez were 51% and 49% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of Mr Fernandez and Ms Fernandez would be 43% and 57% respectively. Therefore, paragraph 54F(1)(b) of the Act is satisfied.

4. As noted above, section 51 is not applicable in this case and given that neither parent has less than regular care of the children, section 54G of the Act is also not applicable. Therefore, the last two criteria under subsection 54(1) of the Act are also met. As all four criteria under section 54F of the Act have been met, the tribunal must revoke the existing determinations of percentages of care in respect of [Child 1] and [Child 2].

5. In accordance with subsection 54F(3) of the Act, as notification of the change in pattern of care evident on the calendar provided by Ms Fernandez on 1 September 2022 was within 28 days of when the change in care occurred, the revocation of the existing determinations takes effect for both parties in accordance with paragraph 54F(3)(a) of the Act. That is, the day before the change of care day, being 21 August 2022. The tribunal finds accordingly.

Issue 2 – Should new determinations of percentages of care be attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2]? If so, from when should they apply?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2]. As no care agreement is being adhered to, the tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the tribunal is satisfied that the determinations made under section 50 of the Act to attribute 53% care of the children to Mr Fernandez and 47% care to Mr Fernandez should be revoked under section 54F of the Act and that during the care period commencing 22 August 2022, Mr Fernandez and Ms Fernandez each had a pattern of care in respect of [Child 1] and [Child 2] of 44% and 56% respectively. Accordingly, new care determinations are to be made under section 50 of the Act.

2. Section 54B of the 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”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The tribunal has revoked the existing determinations in respect of Mr Fernandez and Ms Fernandez from 21 August 2022. Therefore, the tribunal finds that the new determinations should apply in respect of the care of [Child 1] and [Child 2] for Mr Fernandez and Ms Fernandez from 22 August 2022.

DECISION

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

• The existing care determinations attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2] are revoked at 13 July 2022 and 3 March 2022 respectively, and new care determinations of 53% to Mr Fernandez and 47% to Ms Fernandez apply from 14 July 2022 and 4 March 2022 respectively; and

• The existing care determinations attributed to Mr Fernandez and Ms Fernandez in respect of [Child 1] and [Child 2] are revoked at 21 August 2022 and new care determinations of 44% to Mr Fernandez and 56% to Ms Fernandez apply from 22 August 2022.