Goodheart and Joplin (Child support)

[2021] AATA 2756

Goodheart and Joplin (Child support) [2021] AATA 2756 (18 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/BC021158 and 2021/BC021165

APPLICANT:  Mr Goodheart

OTHER PARTIES:  Child Support Registrar

Ms Joplin

TRIBUNAL:Member A Byers

DECISION DATE:  18 June 2021

DECISIONS:

The decision under review relating to the children’s care is affirmed.

The decision under review relating to Ms Joplin’s application to have Mr Goodheart’s child support liability enforceable is varied so that:

(1)the application is granted; and

(2)the arrears owing for the opt-in arrears period in relation to the application total $1,596.05.

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

CHILD SUPPORT – registration details – application for collection of the maintenance liability – whether the application for collection and arrears should be accepted – whether conditions to refuse were met – the application for collection should be accepted – opt-in arrears – whether there were unpaid amounts – application for collection of unpaid amounts should be accepted – decision under review varied

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. Mr Goodheart is the parent liable to pay child support to Ms Joplin for their children [Child 1] and [Child 2].  This follows a decision of the Child Support Agency (the CSA) to accept Ms Joplin’ application for an administrative assessment of child support from 10 January 2017.

2. Ms Joplin initially elected not to have Mr Goodheart’s child support liability registered for collection by the CSA and instead had a private collection arrangement with Mr Goodheart.  However, at Ms Joplin’ request the CSA collected child support from Mr Goodheart from 19 January to 31 August 2017.  From 1 September 2017 Ms Joplin again had a private collection arrangement with Mr Goodheart.

3. Prior to 21 July 2020 Mr Goodheart’s child support liability was calculated on the basis that he had 35% and Ms Joplin 65% of the children’s care.  On 21 July 2020 Ms Joplin contacted the CSA to advise that (in her view) Mr Goodheart was not paying his assessed child support liability.  During this contact, Ms Joplin applied to have the CSA again collect child support on her behalf and she also indicated there was a change of care from 31 May 2019, whereby both parents had 50% of the children’s care.       

4. On 21 July 2020 the CSA made two separate decisions.  Firstly, the CSA decided that, from 31 May 2019, the parents each had 50% of the children’s care.  For child support purposes, this decision took effect from 31 May 2019 for Ms Joplin (as the parent with reduced care) and from 21 July 2020 for Mr Goodheart (as the parent with increased care).

5. Secondly, the CSA agreed to collect child support on Ms Joplin’s behalf.  As Ms Joplin indicated that she wanted the CSA to collect arrears of unpaid child support for the period (the opt-in arrears period) of three months prior to her application (21 April to 20 July 2020), the CSA decided Mr Goodheart’s collectable unpaid child support for this period totalled $2,216.81.

6. On 25 March 2021 an objections officer considered Mr Goodheart’s objection to both decisions and varied both.  Regarding the care decision, the objections officer found there was a change of care to equal shared care on 5 August 2019.  For child support purposes, this decision took effect from 5 August 2019 for Ms Joplin (as the parent with reduced care) and from 21 July 2020 for Mr Goodheart (as the parent with increased care).

7. Regarding the decision to collect child support, the objections officer varied the arrears figure said to be unpaid in the opt-in arrears period to $2,456.81.  The decision to collect child support was otherwise unchanged.  It was accepted Mr Goodheart was paying Ms Joplin $240 per week in child support.  The objections officer’s calculated figure differs from the original decision-maker’s by $240.  Comparing the objections officer’s calculations to the bank statements Mr Goodheart has supplied, it is evident they overlooked a payment of $240 Mr Goodheart made to Ms Joplin on 29 May 2020. 

8. Mr Goodheart sought review of these decisions by the Tribunal and the matters were heard by telephone on 3 June 2021.  Ms Joplin elected not to participate and confirmed this on the hearing day.  Mr Goodheart gave sworn evidence by affirmation and the following material was before the Tribunal prior to hearing:

   -     regarding the care percentage decision, the ‘Section 37(1) Statement and Documents’ and supplementary ‘Section 38AA Statement and Documents’ provided by the CSA totalling 478 pages (marked Exhibit 1); 

   -     regarding the child support collection, the ‘Section 37(1) Statement and Documents’ comprising 479 pages (marked Exhibit 2).     

9. Ms Joplin was provided an opportunity to table written submissions prior to the hearing and in response provided a brief email admitted as Exhibit B.

10.  As the result of Mr Goodheart’s evidence, I asked the CSA for a record of all communications with him from 1 July 2017 to 30 September 2019.  This material, comprising seven pages, is added to Exhibit 1.  The CSA sent copies to the parties.

CONSIDERATION

Change of care

11. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. 

[1] All legislative references are to this Act unless otherwise stated.

12.  Before a determination under section 50 can be made in relation to a person, the care determination in place for that person must be revoked.  As far as is relevant, a revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result.[2] 

[2] Care determinations can also be revoked under sections 54G or 54H.  However, these provisions have no present relevance.

13.  Section 51 applies where the person with reduced (actual) care has taken reasonable action to ensure compliance with a care arrangement.[3]  This provision is not relevant to the present matter.

[3] A care arrangement is a written agreement between parents, a parenting plan, or court order dealing with the care of a child – see section 5 and subsection 3(1) of the A New Tax System (Family Assistance) Act 1999.

14.  In my view, in relation to a current change of care, the wording of subparagraph 50(1)(b)(ii) requires a decision-maker to have regard to the care position at the time they make their determination.  The decision-maker will need to determine if a change of care occurred and, if so, the care that has already occurred since the change of care and the care that is likely to occur in a period after the decision-maker considers the matter.  Setting a care period from the change of care is required as part of this process.    

15.  It is consistent with this position that, where several care changes have occurred before this is brought to the CSA’s attention and the relevant care periods have, as a result, already finished, a decision-maker is only required to consider the actual care pattern in those care periods.  In conducting a merits review, the Tribunal takes the place of the original decision-maker and decides the matter completely afresh.  It therefore adopts the same position as described above for the original decision-maker.

16.  As noted, during her contact on 21 July 2020, Ms Joplin informed the CSA that, from 31 May 2019, the parents each had 50% care of the children.  It is not clear why Ms Joplin chose this date.

17.  Mr Goodheart said the parties confirmed an arrangement already in place regarding the children’s care in mediation with the Family Relationships Centre (FRC) in August 2018.  Mr Goodheart indicated the agreement was in writing, signed by both parties and intended to give equal shared care to the extent possible.  Mr Goodheart has submitted a typed copy of the agreement sent to both parties which is not signed.  As far as is relevant, the agreement provides:

We agree the children will live with [Ms Joplin] and spend time with [Mr Goodheart] 6 nights each fortnight, and 10 /4 days in addition each 16 weeks as per [Mr Goodheart]’s roster.

a. [Mr Goodheart] will aim to have the children in his care for as much of

the school holidays as is possible with his work roster

b. We will plan each school holiday period 1 term in advance

c. We will inform the other parent if we or our family members

will be attending any activity outside our scheduled time- we

can then inform the children in advance. In this situation, we

will facilitate the children saying hello and we will ask our

family to do the same.

d. At other times as agreed between the parents.

18.  On the understanding that “10 /4” means between four and 10 days extra in each 16-week period, this would have provided Mr Goodheart with between 46.4% and 51.7% care in each 52-week period (leaving aside any other times as agreed).  Taken as an average of an extra seven nights in each 16-week period this would give Mr Goodheart 49% care.[4]

[4] Under the administrative formula this is equivalent to 50% care.  As the CSA’s CUBA system apparently cannot perform calculations using a numerical 50% care for each parent, it typically ascribes one parent with 49% care and the other with 51% care.  In the present matter, following the CSA’s care percentage determination Mr Goodheart has in fact been currently ascribed with 49% care.

19.  Mr Goodheart’s evidence that there is (or was) a hand-written copy in existence that the FRC has been unable to locate and that the parties signed is unlikely to be correct.  In this regard there is an email by the mediator, dated 9 August 2018, enclosing the typed agreement.  The mediator asked the parties to read through the document and “sign each other’s copy to make the agreement an official parenting plan”. 

20.  In any event, Mr Goodheart’s assertion is that he has had around 50% care of the children from about 1 July 2017.  Mr Goodheart’s chief concern is that the care is recorded as equal shared care during the opt-in arrears period (commencing 21 April 2020).  From his perspective at least, the exact date he had 50% care of the children is not critical, as he has not received any family assistance payments at any material time due to the level of his adjusted taxable income.

21.  Both Mr Goodheart and Ms Joplin have submitted detailed calendars of their claimed care of the children from 1 July 2017.  The calendars vary significantly and to the extent of any inconsistency I accept Mr Goodheart’s version.  I do so for the reasons that: (1) I accept Mr Goodheart completed his calendars from contemporaneous notes, (2) he is able to support a proportion of the dates claimed with numerous mobile phone texts between himself and Ms Joplin, (3) Ms Joplin’s calendar appears to have been retrospectively completed and based on Mr Goodheart’s work roster, and (4) Ms Joplin’s calendar figures are completely at odds with her advice to the CSA that there was equal shared care from May 2019.  Regarding (3), I accept Mr Goodheart’s evidence that his partner [Ms A] had the children at their residence during periods when he was away with work.  The children are properly considered to be in his care in these periods.

22.  Mr Goodheart’s stated nights of care can be summarised as follows:

Month/Year        TG      NG                 Month/Year               TG      NG

July 2017             15       16                   January 2019             11       20
August 2017        15       16                   February 2019           14       14
September 2017  16       14                   March 2019                13       18
October 2017      14       17                   April 2019                   14       16
November 2017   12       18                   May 2019                   12       19
December 2017   14       17                   June 2019                  14       16
Total:                  86       98                   July 2019  7         24*
  46.7%  53.3%             August 2019               16       15
September 2019        16       14
January 2018      17       14                   October 2019             17       14
February 2018     11       17                   November 2019         18       12
March 2018         15       16                   December 2019         13       18
April 2018            17       13                   Total:  165     200
May 2018            19       12                     45.2%  54.8%
June 2018           15       15  
July 2018             15       16                   January 2020             15       16
August 2018        14       17                   February 2020           12       17
September 2018  15       15                   March 2020                13       18
October 2018      17       14                   April 2020                   16       14
November 2018   18       12                   May 2020                   15       16
December 2018   13       18                   June 2020                  15       15
Total:                  186     179                 July 2020  16       15
  50.9%  49.1%             Total:  102     111

47.9%  52.1%

*   Mr Goodheart’s contact was markedly reduced during this month as he travelled overseas without the children.

23.  At least when Ms Joplin contacted the CSA on 21 July 2020 it could be said the parties were agreed that, at some point well prior to this contact, the children’s care was being shared equally.  Looking at Mr Goodheart’s calendars, it is evident that a specific pattern of care cannot be identified.  Consistent with this, Ms Joplin indicated on 21 July 2020 that the “care changes can vary”. 

24.  In the circumstances, it seems to me that the best signal that a change of care was either envisaged or in place is the mediated terms of the unsigned agreement of 9 August 2018.  Mr Goodheart’s evidence, which I accept in view of the care figures prior to the mediation, was that it was intended to give recognised effect to an overall pattern of equal care already in place.  

25.  For child support purposes, if a person’s care percentage is less than 50% it is rounded down and if it is more than 50% it is rounded up (section 54D).

26.  I consider it fair to say that in the care period from 1 July 2017 to 31 December 2018 the parties had equal shared care.  Mr Goodheart had 272 nights of care (49%) and Ms Joplin 277 nights (51%).  In the care period from 1 January to 4 August 2019 Mr Goodheart had 86 nights care (39%) to Ms Joplin’s 130 nights (61%).  From 5 August 2019 to 21 July 2020 I am satisfied the parties again had equal shared care and, given the length of this arrangement and the agreement that a pattern of equal shared care was in place, that this pattern was likely to continue into the foreseeable future.[5]

[5] A change of care date of 5 August 2019 is apposite on the footing that the care pattern commenced after Mr Goodheart returned from overseas.  To illustrate the care during the period of 331 nights from 5 August 2019 to 30 June 2020, Mr Goodheart had 165 nights of care and Ms Joplin 166 nights.

27.  Although Mr Goodheart indicated he informed the CSA of the care in place around August 2017 and August 2018, he was less certain whether he did so at any point in 2019.  The additional material requested from the CSA indicates Mr Goodheart contacted on 11 September 2017 and 17 October 2018.  As file noted, the first of these contacts concerned Ms Joplin’s decision to change back to a private collection arrangement and the second contact involves a query about the effect on his child support liability of a situation where Ms Joplin had a further child. 

28.  I am satisfied Mr Goodheart did not discuss the care situation in these contacts and accordingly that the changes on 1 July 2017, 1 January 2019 and 5 August 2019 were not brought to the CSA’s attention until after Ms Joplin contacted on 21 July 2020.  As the care periods in respect of the first two changes expired prior to 21 July 2020, I am satisfied subsection 54F(1) does not require revocations corresponding to these changes, as it applies only to an existing change.

29.  In any event, as noted, for the purposes of this review, Mr Goodheart’s concern is with the change to equal shared care that is relevant to the opt-in arrears period (21 April to 20 July 2020).  Based on the above findings, the relevant change of care is that occurring on 5 August 2019.

30.  To give effect to the equal shared care arrangement, a revocation of the care percentage determinations in place immediately prior to the change is required under section 54F and determinations made under section 50 to reflect the new care percentages.  This has been done by the objections officer as part of their review. 

31.  The date of effect of the revocation is set by subsection 54F(3), as Ms Joplin notified the CSA of the change outside 28 days.  Because Mr Goodheart is particularly concerned with the date of effect of the care determinations due to the impact on his child support liability during the opt-in period, subsection 54(3) is set out in full:

(3)  The revocation of the determination takes effect at the end of:

(a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

(b)  if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

(i)  the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

(ii)  the responsible person’s care of the child has reduced—the day before the change of care day.

32.  Accordingly, as the person with reduced care, Ms Joplin is taken to have 50% care from 5 August 2019.  As the person with increased care, Mr Goodheart is taken to have 35% care until 21 July 2020.  Revocations on this footing are already in place in accordance with the objections officer’s decision. 

Enforceable maintenance liability and application for arrears

33.  The legislation relevant to this matter is contained in the Child Support (Registration and Collection) Act 1988.  Further references are to this Act unless otherwise stated. 

34.  In general terms Division 3 of Part III sets out a regime whereby a person may again elect to have collection of a payer’s child support liability enforced by the CSA and in limited circumstances to have arrears collected.  Section 39 provides, as far as is relevant:

39Application for variation to enable liability to again become enforceable under Act

(1)If a registered maintenance liability is not enforceable under this Act because of an election made under section 38A or a decision by the Registrar under section 38B, the payee may apply to the Registrar for the liability to again become enforceable under this Act.

…

(5)The Registrar must grant the application unless the Registrar is satisfied that:

(a)the payer of the liability has been complying with his or her child support obligations in relation to the payee; or

(b)the payer of the liability has satisfactorily explained and rectified a failure to comply with his or her child support obligations in relation to a payee; or

(c)there are special circumstances that exist in relation to the liability that make it appropriate to refuse the application.

35.  Subsection 39(6) requires the CSA to specify a date (not later than 60 days after the payee’s application) on which the payer’s liability again becomes enforceable.  The date specified will (as in the present case) typically be the date of the application.

36.  Section 38A provides for a joint or unilateral election by a payee that the payer’s child support liability no longer be enforced.  Where the CSA reverses an election under section 38A, section 39A provides for the limited collection of arrears.  In particular subsection 39A(5) allows for the collection of arrears owing for a period not exceeding three months before the application date. 

37.  As there is no enforceable maintenance liability during the opt-in arrears period, my view is that there does not need to be an express agreement between parents that monies paid either to a parent or third party during this period is child support.  However, as a minimum there should be an understanding that the payments are to cover a financial burden in respect of the children that the parent entitled to child support would otherwise have to meet or share.  

38.  As noted, on 21 July 2020 Ms Joplin applied to have the CSA again collect Mr Goodheart’s child support liability.  Ms Joplin also asked the CSA to collect arrears of unpaid child support for the opt-in arrears period of three months prior to her application (21 April to 20 July 2020). 

39.  The CSA agreed to collect child support on Ms Joplin’s behalf and to collect arrears owing for the opt-in period.  I have already indicated the objections officer has overlooked one payment of $240 that the parties agree was child support. 

40.  Although the parties had equal care of the children during the opt-in arrears period, for the reasons already provided, Mr Goodheart’s child support liability must be assessed during this period on the footing that he had 35% care and Ms Joplin 50% care of the children.  According to the CSA’s assessment records, during the opt-in arrears period Mr Goodheart’s liability was $55.7269 per day.  Accordingly, in the aggregate period of 91 days his collectable liability totalled $5,344.14.[6] 

[6] Were Mr Goodheart’s child support liability calculable on the basis of the actual equal care in place, using the CSA’s assessment from 21 July 2020 his liability during the opt-in arrears period ($274.05 per week) would have totalled $3,562.76.

41.  As it was agreed between the parties that Mr Goodheart’s weekly payments of $240 were child support and I am satisfied from bank transaction records that 13 instalments were duly paid in the opt-in arrears period, it follows that agreed child support of $3,120 was paid.  This leaves a shortfall of $2,224.14.  Mr Goodheart’s case is that he has met his child support obligations under an understanding with Ms Joplin that, as the major income earner, he would meet the majority of the children’s costs.  In this regard, Mr Goodheart’s 2018/19 adjusted taxable income was $156,806 and Ms Joplin’s was $17,107.

42.  Mr Goodheart has supplied a number of receipts of payments made ostensibly for the children.  However, only one of these, a payment of $183 made on 16 June 2020 to [School 1], falls in the opt-in arrears period.  Although Mr Goodheart might contend that the remaining payments show an overall pattern of payments made for the children, I do not think they establish anything more than payments ordinarily made commensurate with his level of care. 

43.  However, there is a text message from Ms Joplin, dated 29 July 2019, where (admittedly with an element of exasperation) she indicated that, as Mr Goodheart was paying child support of $240 per week and his liability was $270 per week, there was an agreement that [the] private health premiums for the children could be added to their private arrangement.  Ms Joplin’s exasperation was that Mr Goodheart had not provided her with the [private health insurance] card to cover [Child 1]’s dental check.

44.  I accept Mr Goodheart’s assurance that he has made a [private health insurance] card available to Ms Joplin at all relevant times.  I also accept there was an arrangement whereby the [private health insurance] premiums covering the children were child support.  Mr Goodheart has supplied evidence from [private health insurance] showing the premiums increased to $193.26 per fortnight on 1 April 2020.  As Mr Goodheart and his partner were also in the family package, it is fair in the absence of specific details to the contrary to assume half the cost concerned the two children.  This amounts to a child support contribution of $628.09 during the opt-in arrears period (i.e., ($193.26/(2 x14) x 91)).  

45.  This increases the child support paid by Mr Goodheart during the opt-in arrears period to $3,748.09 and leaves a shortfall of $1,596.05. On the material before me, I do not see any basis upon which this shortfall can be further reduced.   

46.  I am accordingly not satisfied that the requirements of paragraphs 39(5)(a) and (b) have been met.  I am also not satisfied that there are special circumstances in the terms of paragraph 39(5)(c).  Accordingly, Ms Joplin’s application for collection by the CSA must be granted and child support arrears of $1,596.05 paid by Mr Goodheart.  I understand Mr Goodheart has already paid an amount exceeding this sum and leave it to the CSA to account for the difference.

DECISION

The decision under review relating to the children’s care is affirmed.

The decision under review relating to Ms Joplin’s application to have Mr Goodheart’s child support liability enforceable is varied so that:

(1)the application is granted; and

(2)the arrears owing for the opt-in arrears period in relation to the application total $1,596.05.