Forster and Joseph (Child support)

[2022] AATA 4981

Forster and Joseph (Child support) [2022] AATA 4981 (22 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024681

APPLICANT:  Ms Forster

OTHER PARTIES:  Child Support Registrar

Mr Joseph

TRIBUNAL:Member J Thomson

DECISION DATE:  22 November 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for the children, [Child 1] and [Child 2], are recorded as 36% to Mr Joseph, with effect in the assessment from the date of notification of the change in care on 11 April 2022, and 64% to Ms Forster, with effect in the assessment from the date of change on 10 December 2021.

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 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. Ms Forster and Mr Joseph are the parents of [Child 1], born 2009, and [Child 2], born 2014 (the children).

2. Ms Forster seeks review of an objection decision made by the Child Support Agency (the Agency) on 9 September 2022. This decision disallowed her objection to an earlier decision made by the Agency on 20 June 2022 to record care percentages for the children, [Child 1] and [Child 2], of 62% to Ms Forster (226 nights of care) and 38% to Mr Joseph notified on 24 May 2022 with effect from 10 December 2021 in the assessment for Ms Forster and from 24 May 2022 for Mr Joseph.

3. The Tribunal heard the matter on 22 November 2022. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency (folios 1 to 210), admitted into evidence and marked Exhibit1. Both parents had copies of these documents with them at the hearing.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. 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 the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

2. The issues which arise in this case are:

   ·      The care percentages to be recorded for the parents for the children from 10 December 2021.

CONSIDERATION

1. In reaching its decision, the Tribunal had considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.

2. Both parents acknowledged and agreed at the hearing that the care pattern they were following from 15 February 2021 was as set out in court orders made in the Family Court of Australia at Adelaide on 15 February 2021 (the Court Orders), before the Tribunal at pages 32 to 46 of Exhibit 1, the relevant provisions of which are set out in paragraphs 24 and 25 of the Court Orders.

3. Mr Joseph notified the Agency of a change in care for the children on 11 April 2022 (see pages 53 to 57 of Exhibit 1) which he said occurred on 10 December 2021. However, on 12 April 2022, the Agency made a decision to delete his change in care notification on 11 April 2022 because he contacted them on 12 April 2022 to advise his care level had changed again, and it was not until he called the Agency again on 24 May 2022 that his change in care event on 10 December 2021 was accepted by the Agency and acted upon.

4. Both notifications were precipitated by the provisions of paragraphs 24(c) and 25(a)(i) of the Court Orders which provided, relevantly, that the children shall live for with the parties as follows:

   24c) On and from the commencement of Term 1, 2022 with the respondent (Mr Joseph) as follows:

   i)Each alternate weekend from the conclusion of school Friday (or 3 PM) until the commencement of school Tuesday (or 9 a.m.); and

   ii)Each intervening week from the conclusion of school Tuesday (or 3 PM) until the commencement of school Wednesday (or 9 AM).

   25a)      That from the last day of Term 4 of school in 2021 until the final day of the 2021/2022 Christmas School holiday period the children shall live with the parties as follows:

   i)For 3 blocks of 6 consecutive nights with the respondent ….

   (1)   From the conclusion of school on the last day of Term 4 to 6 PM on Thursday of the first week of the school holidays; and

   (2)   From 3 PM on the last Friday in December 2021to 6 PM the following Thursday;

   (3)   From 3 PM on the second Friday in January 2022 to 6 PM the following Thursday.

5. Both parents agreed at the hearing that the last day of Term 4 of the school year in 2021 was 10 December 2021, the date on which the change in care Mr Joseph was notifying when he contacted the agency on 11 April 2022 and again on 24 May 2022 occurred.

6. Mr Joseph gave evidence that he had attempted to contact the Agency in late December 2021 and throughout January and February 2022 to notify the change in care on 10 December 2021, but was unable to recall the precise dates of those calls to the Agency, nor did he retain a record of those calls; he said he was engaged in moving to a new residential address at that time, and his father passed away in February 2022, both of which events had preoccupied his attention at that time.

7. Prior to Mr Joseph’ change in care notifications referred to above, the care percentages being assessed by the Agency for the children were 70% to Ms Forster and 30% to Mr Joseph. Both parents acknowledged and agreed at the hearing that these percentages were in accordance with the terms of the Court Orders from 15 February 2021 until 10 December 2021.

8. Both parents acknowledged and agreed at the hearing that the Court Ordered pattern of care Mr Joseph was to have for the children changed from 10 December 2021 when he commenced to have the first of his 3 blocks of 6 consecutive nights of care during the Christmas school holidays, a total of 18 nights of care in that Christmas holiday period, and that from the commencement of Term 1, 2022, his pattern of care increased from each alternate weekend from the conclusion of school on Friday until commencement of school the following Monday, and each intervening week from the conclusion of school Tuesday until the commencement of school Wednesday (effectively 3 nights per fortnight in term time – see paragraph 24b) i) and ii)), to effectively 5 nights per fortnight in term time (each alternate weekend from the conclusion of school Friday until the commencement of school Tuesday, and each intervening week from conclusion of school Tuesday until commencement of school Wednesday – see paragraph 24c) i) and ii)).

9. The Court Orders also made specific provision for him to have a 4-night block of care from Maundy Thursday to 5PM Easter Monday (see paragraph 25 i) i) and ii)  and 1 block of 6 consecutive nights of care during the mid-year short term school holidays June/July and September/October at times to be agreed between the parties, and in default of agreement, from the conclusion of school on the last day of term to 6PM on the Thursday of the first week of short term school holidays (see paragraph d) i) and ii), a total of 12 nights of care in those holiday periods.

10. Ms Forster’s case at the hearing was that Mr Joseph’ care from the change in care date on 10 December 2021 should be calculated over a period of 12 months from that date in accordance with the provisions of the Court Orders for that period which she submitted amounted to a total of 129 nights of care as reflected in the care spread sheets she provided at pages 12 to14 of Exhibit 1. She gave evidence that this spread sheet was compiled strictly in accordance with the nights of care each parent would have had in accordance with the Court Orders, and not in accordance with the care the parents were having or might have had during that period.

11. In response to questioning by the Tribunal as to his comments on Ms Forster’s spread sheet calendar, Mr Joseph said his interpretation of the Court Ordered care pattern reflected him having increased care of 5 nights (Friday to Monday per fortnight and Tuesday night in the intervening week) during the 20 fortnightly care periods in school term time, 18 nights during the Christmas 2021/22 holiday period and a total of 10 nights during the two mid-year holiday periods in June/July and September/October, a total of 132 nights of care in the 10 December 2021 to 9 December 2022 period, a care pattern he was prepared to accept.

12. To consider whether the existing care percentages should be changed, it is necessary to examine the actual and likely pattern of care by reference to an appropriate care period. The Agency generally considers a care period of 12 months to be appropriate, an approach the Tribunal intends to adopt here.

13. At the hearing, both parents focused on the period 10 December 2021 to 9 December 2022. Both parents tended to speak to what had actually happened in that period. However, given the scheme of the Act (existing care percentages generally apply until the changes notified and a new decision, with mostly prospective effect, is made), the real test is to consider the actual and likely pattern of care from the date the care pattern changed. This involves an assessment of past care to notification in May 2022 and the likely future care (the extent of past and future assessment depending on the care period Identified as appropriate to use). It is not the Tribunal’s task here to assess care in retrospect by taking exact account of actual care to the date of hearing.

14. At the hearing, Ms Forster contended that the terms of the Court Orders should be followed without regard to the actual care which occurred from 10 December 2021. She gave evidence that there were periods when she had care outside her specified care periods in the Court Orders but insisted that the terms of the Court Orders should prevail. Mr Joseph contended for the implementation of the pattern of care reflected in the Court Orders from 10 December 2021. Both parents insisted that they were committed to following the provisions of the Court Orders.

15. It was not disputed that the care pattern reflected in the Court Orders changed from 10 December 2021 when Mr Joseph was due to have his 3 blocks of 6 nights of Christmas holiday care (3 x 6 = 18 nights of care), followed by the increased 5 nights per fortnight of 20 weeks school term time care (5 x 20 = 100 nights of care), the prescribed 4 nights of Easter care, and 12 nights of mid-school term holiday care as set out in the Court Orders referred to above until 9 December 2022, a total of 134 nights of care for Mr Joseph.

16. The Tribunal finds that this was the pattern of care Mr Joseph was likely to have from 10 December 2021 to 24 May 2022 when he made his fresh notification to the Agency of the change in care which occurred on 10 December 2021, and the likely pattern of care he expected to have from 24 May 2022. As noted in the legislative analysis set out above, if the likely pattern of care does not eventuate, it is open to the parents to notify the Agency of a further change in care and a new care determination can be made.

17. The Tribunal therefore finds Ms Forster’s care percentage will be 64% (231 nights / 365 x 100 = 63.28% rounded up pursuant to section 54D of the Act to 64%), and Mr Joseph’ care percentage will be 36% (134 / 365 x 100 = 36.71% rounded down pursuant to section 54D of the Act to 36%).

18. As the Tribunal has reached a different conclusion to that reached in the objection decision, the Tribunal sets aside the decision under review and, in substitution, decides that Ms Forster is recorded as having 231 nights of care (64%) and Mr Joseph is recorded as having 134 nights of care (36%).

19. As noted in paragraph 8 above, Mr Joseph notified the Agency on 11 April 2022 that there had been a change in care for the children. The Tribunal finds that this was the date upon which the Registrar was notified or otherwise became aware that the care percentages being applied were not accurate and therefore the more appropriate notification date. As that date was more than 28 days after the date of the change in care event on 10 December 2021, the change in care percentage for Mr Joseph as the responsible person with increased care will be effective from the date of notification on 11 April 2022, and from the date of change on 10 December 2021 for Ms Forster as the responsible person with reduced care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages for the children, [Child 1] and [Child 2], are recorded as 36% to Mr Joseph, with effect in the assessment from the date of notification of the change in care on 11 April 2022, and 64% to Ms Forster, with effect in the assessment from the date of change on 10 December 2021.