Frith and Scrubb (Child support)

[2023] AATA 852

Frith and Scrubb (Child support) [2023] AATA 852 (10 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/CC025021

APPLICANT:  Ms Frith

OTHER PARTIES:  Child Support Registrar

Mr Scrubb

TRIBUNAL:Member J Prentice

DECISION DATE:  10 March 2023

DECISION:

The decision under review is affirmed.

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 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

1. As relevant to this application, Ms Frith and Mr Scrubb are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) from 21 December 2012 in relation to financial support to be provided for [Child 1] (born  [December] 2005) and [Child 2] (born June 2008) (the children). This application concerns a single decision by the CSA about the recorded care for [Child 1] only, utilised in calculation of the child support liability.

2. From 12 June 2020 the pre-existing percentages of care applying in the child support case for [Child 1] were 100% to Ms Frith and 0% to Mr Scrubb. On 5 August 2022, Mr Scrubb contacted the CSA and advised a change to the care position of [Child 1] from 5 August 2022 stating that [Child 1] no longer lived with Ms Frith and he was providing 100% care.

3. On 29 September 2022, the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Ms Frith and 100% to Mr Scrubb from 5 August 2022.

4. On 4 October 2022, Ms Frith objected to this decision and, on 26 October 2022, a CSA objections officer disallowed the objection.

1. On 13 November 2022, Ms Frith lodged an application with the Tribunal seeking an independent review of the CSA’s decision, stating:

   I believe that CSA considered my ex-husband’s evidence but did not consider the evidence that I have provided. I also believe that the Child Support Guide 2.2.1 Basics of Care has not been correctly applied.

   Supporting documentation will be provided. All evidence has previously been provided to CSA.

1. The hearing of the application was held on 7 March 2023. Ms Frith and Mr Scrubb both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Frith and Mr Scrubb and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 275), documents provided by Ms Frith prior to hearing (marked Exhibit A, pages A1 to A6) and documents provided by Mr Scrubb prior to hearing (marked Exhibit B, pages B1 to B28). Ms Frith provided additional evidence and submissions after the hearing, marked Exhibit A, pages A7 to A8 which have also been taken into account. Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to Ms Frith which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. 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) (1979) 2 ALD 634. In the recent case of G v MIBP [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. 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.

3. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

1. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

2. Topic 2.1.1 of the Guide provides the following guidance in relation to assessing care based on a measure other than nights of care:

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

3. The term care is not defined in the child support legislation. The decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 provides guidance, which has been adopted in the Guide at Topic 2.2.1 as follows:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d.To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

   f. To what extent is the child financially independent or financially supported from another source?

4. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

   Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

5. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

6. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

7. However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

ISSUES

1. It follows that the issues to be determined by the Tribunal are as follows:

   (a)    Are the pre-existing percentage of care determinations for Ms Frith and Mr Scrubb to be revoked? And, if so,

   (b)    What are the new percentage of care determinations for Ms Frith and Mr Scrubb? And,

   (c)    What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

1. Exhibit 1 records the following relevant conversations between Ms Frith and the CSA and Mr Scrubb and the CSA:

(a)8 August 2022 – Ms Frith contacted the CSA and questioned how Mr Scrubb could have 100% care if [Child 1] is living on his own.

(b)12 August 2022 – Mr Scrubb contacted the CSA and advised he pays the rent for the unit where [Child 1] is living and also pays for utilities (including electricity, gas and the internet) and food and other expenses. Mr Scrubb advised the unit “is just up the road” from his home.

(c)12 August 2022 – Mr Scrubb provided evidence of his correspondence with [Child 1]’s school and advice about his changed circumstances.

(d)On 30 August 2022 – Mr Scrubb confirmed to the CSA that he has purchased furniture for [Child 1]’s unit (as it was unfurnished) and covers all [Child 1]’s costs.

(e)On 30 August 2022 – Mr Scrubb advised the CSA that [Child 1] has commenced a school-based apprenticeship [and] he works one day a week with an employer who is also mentoring him. He advised that [Child 1] does a mix of school subjects and TAFE subjects for his apprenticeship in line with the arrangement struck between the school and TAFE. [Child 1] earns approximately $200 for the work on the Monday and this is his own spending money and Mr Scrubb covers all other costs.

(f)On 4 October 2022 – Ms Frith advised the CSA that she had provided a number of household goods, including a TV, crockery and other items when [Child 1] moved into his unit.

(g)On 6 October 2022 – Mr Scrubb informed the CSA that he:

·Drives [Child 1] to his work on Mondays

·Drives [Child 1] to TAFE on Thursdays

·Provides food and household goods for [Child 1] on a weekly basis (or as needs dictate)

·Drives [Child 1] to his friend’s place

·Pays for [Child 1]’s utilities

·Pays for [Child 1]’s rent

·Occasionally transfers funds directly to [Child 1]’s account (on an ad-hoc basis when needed)

·Has provided a direct debit for [Child 1]’s “My Way” public transport card as a secondary means of travel for [Child 1]

·Pays for [Child 1]’s mobile phone (set up as a direct debit)

·Ensures [Child 1] is up and ready for work on Mondays and TAFE on Thursdays

·Meets each Monday with [Child 1]’s employer and discusses his progress

·Receives advice from [Child 1]’s school about any issues requiring an explanation

·Engages with TAFE to ensure he keeps abreast of [Child 1]’s attendance and progress

·Mentors [Child 1] about the importance of attendance and completing his  apprenticeship.

(h)  On 12 October 2022 Ms Frith informed the CSA that she supports [Child 1] emotionally and as well she is purchasing groceries for [Child 1] (but cannot afford to continue doing this).

1. Relevant documentation and evidence provided to the CSA included as follows:

   (a)    Copy of an email dated 10 August 2022 from [Child 1]’s school confirming the school will liaise with both parents about [Child 1]’s arrangements.

   (b)    Third-party statement from Ms Scrubb supporting Mr Scrubb’s care of [Child 1].

2. Ms Frith’s evidence and submissions at hearing included as follows:

   (a)    [Child 1] had been living 100% in her care until 5 August 2022.

   (b)    Immediately prior to that time Mr Scrubb offered [Child 1] an opportunity to live on his own, whereby Mr Scrubb said he would pay all expenses. Ms Frith notes that this arrangement was made by Mr Scrubb and [Child 1] without consultation with her and at no time was she given any opportunity to contribute to the arrangements.

   (c)    Since 5 August 2022 [Child 1] has been living independently of both parents.

   (d)    Ms Frith said she continued to provide emotional support for [Child 1] and rang him most mornings.

   (e)    From 15 August 2022 to 27 October 2022 Ms Frith paid for [Child 1]’s groceries and took him shopping every Saturday. Every Thursday she took him to TAFE and took him to work on Mondays.

   (f)     Ms Frith noted that [Child 1] now lives 30km away and even the cost of petrol makes it very expensive, but she still visits him most weeks and she is always available if he calls or needs anything.

   (g)    Ms Frith commented that when the CSA made the decision that Mr Scrubb had 100% care of [Child 1] she had to cut back on her financial contribution to [Child 1] as she also had to pay child support.

   (h)    Ms Frith conceded that Mr Scrubb “pays the lion’s share of [Child 1]’s expenses” but notes that she still contributes financially what she can. Ms Frith commented that [Child 1] often asks her for money but he always pays it back.

   (i)   Ms Frith contends that as [Child 1] is living on his own, Mr Scrubb is not providing 100% care and considers it 80% at most.

   (j)   Ms Frith said that she wants to support [Child 1] and be part of his life. She had tried to arrange mediation, but Mr Scrubb refused to participate.

3. Mr Scrubb’s evidence and submissions at hearing included as follows:

   (a)    As [Child 1] is nearing the time when he will leave school and commence employment, Mr Scrubb offered him the opportunity to live independently as he transitions to adulthood.

   (b)    Mr Scrubb advised that [Child 1] “has stumbled from time to time” but Mr Scrubb said he is available for him 100% of the time if he is needed.

   (c)    The unit accommodation he has provided for [Child 1] is close to his own home however he tries not to be in constant contact. Needless to say invariably there is always something happening or that needs to be done – from organising a replacement washing machine to moving his medical files to a clinic nearer to where he now lives.

   (d)    Mr Scrubb told the Tribunal that he does a shop with [Child 1] every Sunday and he is aware that [Child 1] does entertain his friends.

4. It is not in dispute that there is no restriction on [Child 1] with respect to spending time with Ms Frith and he is free to see her whenever he chooses and they make arrangements to do so.

5. Pursuant to Topic 2.2.1 of the Guide, the Tribunal is satisfied that Mr Scrubb “meets the needs of the child” by paying for and providing independent accommodation, clothing, food, education, health care, transport and emotional support and financial support for [Child 1]. While Mr Scrubb gave evidence that he is encouraging [Child 1] to provide for his own needs, he is clearly still largely reliant on Mr Scrubb. The Tribunal finds that [Child 1] is not financially independent or financially supported from another source.

6. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 5 August 2022. Further the Tribunal finds that the change in care was from 5 August 2022 and the Tribunal is satisfied based on the evidence that the “pattern of care” of [Child 1] from 5 August 2022 was likely to be 100% to Mr Scrubb and 0% to Ms Frith.

7. The Tribunal explained to both parties that in reviewing the CSA decision, the relevant legislation requires the Tribunal to put itself back in the place of the CSA as at 5 August 2022 (when they were advised of the change in care) and work out what the expected pattern of care going forward was likely to be. The Tribunal’s role is to make that assessment as at 5 August 2022 and is not to take into account subsequent changes that were not in contemplation at that time. What was reasonably in contemplation as at 5 August 2022 may be quite different to what has subsequently occurred.

Issue 1 – Are the pre-existing percentage of care determinations for Ms Frith and Mr Scrubb to be revoked?

1. Section 54G provides that if a person was to have at least regular care (that is at least 14%) of a child during a care period under a recorded percentage of care determination and the other parent was to have more than 0% care, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, both recorded percentage of care determinations must be revoked. Mr Scrubb was not to have more than 0% care pursuant to the pre-existing recorded percentages of care. Section 54G therefore does not apply.

2. Section 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.

3. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. As already canvassed by the Tribunal, section 54G does not apply.

1. Care of 0% to Ms Frith and 100% to Mr Scrubb does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at 12 June 2020 of 100% care to Ms Frith and 0% to Mr Scrubb.

2. A change in care percentages to 0% to Ms Frith and 100% to Mr Scrubb would change each parent’s cost percentage pursuant to the table in section 55C.

3. Section 51 does not apply.

4. The existing percentages of care of 100% to Ms Frith and 0% to Mr Scrubb are therefore required to be revoked pursuant to section 54F.

Issue 2 – What are the new percentage of care determinations for Ms Frith and Mr Scrubb?

1. Percentage of care determinations are required pursuant to subsections 49(2) and 50(2). The Tribunal has determined that Ms Frith’s percentage of care for [Child 1] from 5 August 2022 is 0% and Mr Scrubb’s percentage of care is 100% as outlined in the above consideration.

Issue 3 – What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(a) as the change in care was notified by Mr Scrubb on 5 August 2022, the day the Tribunal has found the change occurred, revocation of the pre-existing percentage of care of 0% recorded for Mr Scrubb and the pre-existing percentage of care of 100% recorded for Ms Frith takes effect the day before the change of care day, that is on 4 August 2022.

2. It is then necessary to determine from when new percentage of care determinations are to apply.

3. As a general rule, a parent’s recorded care will reflect their actual care. However, there are exceptions to that general rule.

4. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 100% to Mr Scrubb applies from 5 August 2022 and a new percentage of care determination of 0% for Ms Frith applies from 5 August 2022.

Conclusion

1. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA is then tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

2. On several occasions at hearing Ms Frith raised issues about the financial contribution she continues to make to support [Child 1]. The Tribunal noted that if Ms Frith wishes to challenge the amount of her child support contribution she will need to lodge a Change of Assessment (COA) application with the CSA.

3. The Tribunal acknowledges Ms Frith’s concerns that [Child 1] is missing school and is not always taking his medication, however the Tribunal is bound to apply the legislative provisions as enacted. As discussed with Ms Frith at hearing, the Tribunal on review is limited to reviewing the decision before it and has no role to play in relation to the CSA’s processes. Ms Frith is at liberty to pursue other avenues in that regard if she chooses.

DECISION

The decision under review is affirmed.