Fiacchi and Douaghy (Child support)

[2024] AATA 2306

Fiacchi and Douaghy (Child support) [2024] AATA 2306 (15 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027487

APPLICANT:  Ms Fiacchi

OTHER PARTIES:  Child Support Registrar

Mr Douaghy

TRIBUNAL:Member R Prasad

DECISION DATE:  15 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – court orders – changes due to extended time of care not sufficient to determine a new pattern – minor departures do not constitute change or result in new determination – decision under review affirmed

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. Ms Fiacchi (the mother) and Mr Douaghy (the father) have had a registered child support assessment for [their child], born on 8 August 2018. Since 10 October 2022, Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 86% care and the father 14% care of the child. These percentages denote the existing percentages of care.

2. On 13 June 2023, the mother notified Child Support of a change in the care as a result of a change to court orders made on 6 December 2022, and that the father’s care is 51 nights per year.

3. On 6 September 2023, Child Support rejected the request for a new care determination on the basis that both parents agree that care is occurring in accordance with the court orders (the original decision).

4. On 14 September 2023, the mother objected to the original decision on the basis the father has care of the child for 51 nights not 52 nights each year as court orders allow for care to change from the two nights each fortnight depending on holidays and events.

5. On 24 January 2024, Child Support disallowed the mother’s objection as the information provided by the parents was insufficient to determine a pattern of care (the objection decision).

6. On 8 February 2024, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. On 11 February 2024, the father notified Child Support that the court orders provide a change in the care where from 1 January 2024, he will have care of the child for 106 nights or 29% and the mother will have care for 259 nights or 71% care. The mother largely agreed to this request for a new care determination and on 23 February 2024, Child Support decided to reflect those care percentages.

8. The matter was heard on 26 April 2024. The mother and father appeared by MS Teams audio. The Child Support Registrar elected not to be represented at the hearing, but provided documentation (folios 1 to 275). After the hearing, the father provided documentation (folio B1), and the mother did not provide a response.

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 50 of the Child Support (Assessment) Act 1989 (the Act) provides that if an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order.

3. The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person. 54D provides that a percentage of care must be rounded up to the nearest whole percentage if it is greater than 50% and rounded down to the nearest whole percentage if it is less than 50%.

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if sections 51 and 54G do not apply and there is a change to a person’s cost percentage, which is dependent on a change to the care percentage.

5. Section 54G of the Act is applicable where a person was to have regular care of a child during a care period and has had less than regular care of the child, a determination has been made that the other responsible person had at least regular care of the child, and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.

6. Under section 55C of the Act, a person has a different cost percentage if their care percentage changes. In particular, care percentages below 14% have a cost percentage of 0% and care percentages between 14% and 34% have a cost percentage of 24%.

What information has been provided in relation to the care of the child?

1. The mother advised that Child Support’s decision was made on the basis of recurring fortnightly care, but the orders allow for extended leave which are not temporary disruptions, and Child Support’s decision did not reflect those periods of time. She said that the court orders provide that the child spend time with the father in April and December 2023, and while no dates or time periods are specified, the orders also provide for extended time with her, which she had in August and November 2023. She advised that the usual pattern of care, not including the extended time, was for the father to have care two nights per fortnight, being Friday and Saturday, and the child spend the remaining days of the fortnight with her. She referred to her care calendar which included four days of extended care time with her, being 11 and 12 August 2023 and 3 and 4 November 2023, and that in total, the child spent 51 nights per year with the father. She provided an email and text messages exchanged with the father that confirmed those dates. She considered her care calendar to be correct, but indicated that since pick up and drop offs were pre-arranged, there would not be any evidence unless they communicated by email. The father advised that the objection decision was correct, although he did not tell them he had 85 nights’ care. While he has had some extended holiday time, the mother has also had come extended time which disrupted his usual pattern of care, but he still had regular care.

2. The father asserted that his pattern of care is only increasing so should not be reduced from 14% to 13%. He father advised that his submission to Child Support that the care pattern should be considered over a two year period, like this Tribunal did for the period from 1 January 2021 to 31 December 2022 to accommodate alternating Easter care arrangements for each year, does not need to be relied on and that he was just noting that decision. He asserted the mother’s care calendar did not include the whole of December 2023, and therefore omitted his care nights on Friday 29 December 2023 to Sunday 31 December 2023, which meant he had 53 nights’ care even if her extended time was taken into consideration. After the hearing, he provided an email sent to the mother on Sunday 31 December 2023, advising that the child had told him that they would be staying with him that night, which he agreed to but wanted to confirm the mother’s intention as the orders provide that he has care of the child when he does not have care of his other child. The email does not include a response from the mother.

3. The Court orders that are relevant for the period until 31 December 2023 generally provide that the father has overnight care of the child on Friday and Saturday nights in every alternate week (the father’s time), one extended weekend in December 2023 from Tuesday night to Saturday night (the father’s extended time), up to 28 nights being four block periods of seven nights during school holiday periods, and Friday to Sunday night for Easter and Christmas Eve (the father’s special occasions time). The orders provide, among other things, that the mother can seek to spend extended time with the child during the father’s time as long as it does not encroach on consecutive periods of the father’s time or the father’s special occasions time, and does not exceed 14 consecutive nights. 

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh and am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or was likely to have been, in a parent’s care.

2. Given that a new care percentage decision was made on 23 February 2024 for the period commencing 1 January 2024, the care period that I am considering is from 1 January 2023 to 31 December 2023. The mother asserts that during the care period, the father only had 51 nights’ care or 13% care, as the periods of her extended time with the child should be considered. The father asserts that the mother has not included his care for all of December 2023, and that he instead had 53 nights of care or 14% care during the care period.

3. I must consider whether the pattern of care of the child during the care period should include extended time in accordance with the orders. While the father’s extended time is prescribed in the orders, the mother’s extended time is not and can vary or may not occur at all. While the mother contends that the care percentage should be the care that was undertaken pursuant to the court orders, section 50 requires that I be satisfied of the pattern of care. Accordingly, I do not consider that the changes that occur to the mother and father’s usual care time, such as because of extended time they spend with the child, are sufficient to determine a pattern of care. The operative word is pattern in this regard.

4. Further, while the mother asserts that her care calendar is correct, the father says she has omitted his care from 29 to 31 December 2023. The father has provided an email sent to the mother which indicates that the child was at least in his care from 29 to 30 December 2023. He was seeking the mother’s intention about the child staying with him on 31 December 2023, but as I do not have a response from the mother and as this would be additional time outside the usual pattern of care, I have not taken this day into consideration.

5. I have reached this conclusion after considering the Child Support Guide at 2.2.1, which states that minor departures from the normal care of the child will not constitute a change to the pattern of care, and will not result in a new care determination. The Tribunal can have regard to the Child Support Guide, though it is not bound to follow it.[1] In G v Minister for Immigration and Border Protection [2018] FCA 1229, 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.

   [1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

6. Accordingly, I find that that the requirements of section 50 are met and that the father had two nights care each fortnight or 14% care and the mother had 86% care of the child during the care period. I note that even if I take into account the extended time as asserted by the mother, given I am satisfied the father had care on 29 and 30 December 2023, the father would have 53 nights of care, which is 14% care pursuant to section 54D.

7. I note that there are existing care arrangements but as these are complied with, section 51 of the Act is not applicable. Further, as I am not satisfied that either parent had less than regular care of the child, section 54G does not apply.

8. Given sections 51 and 54G do not apply, and the cost percentages have not changed as the care percentages have not changed, pursuant to section 54F, the determination of the existing care percentage must not be revoked.

DECISION

The decision under review is affirmed.