Gorman and Berker (Child support)

[2022] AATA 951

Gorman and Berker (Child support) [2022] AATA 951 (10 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC023037

APPLICANT:  Mr Gorman

OTHER PARTIES:  Child Support Registrar

Ms Berker

TRIBUNAL:Member Y Webb

DECISION DATE:  10 March 2022

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 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. This review is about the percentages of care of Mr Gorman and Ms Berker in relation to their son who is 11 years old (“the child”).

2. A child support assessment has been in place since 25 October 2016 and has been collectable by the Child Support Agency since that date.

3. The pre-existing percentages of care for the child, according to the Child Support Agency records, were 51% care to Mr Gorman (183 nights) and 49% care to Ms Berker (182 nights) from 16 November 2016.

4. Both parents agreed that court orders were made in relation to the care of the child in 2018. 

5. On 2 June 2021 Ms Berker contacted the Child Support Agency and notified that there had been a change in the care of the child from 12 April 2018. She stated that the child was in her care for nine nights a fortnight and half of the school holidays.  Mr Gorman’s response was that his care was six nights per fortnight plus half of the school holidays.

6. Ms Berker later corrected the care stating that she had miscounted and that she had care for eight nights a fortnight plus half of the school holidays and Mr Gorman for six nights a fortnight plus half of the school holidays. 

7. By letter dated 5 July 2021 the Child Support Agency notified the parents that it had decided to reflect the care of the child as 56% care to Ms Berker (202 nights) and 44% care to Mr Gorman (163 nights) from 30 April 2018 and notified on 2 June 2021.

8. Mr Gorman objected to that decision.  The Child Support Agency stated that his objection was lodged on 30 August 2021.  However, the Tribunal is satisfied that Mr Gorman telephoned the Child Support Agency on 5 July 2021 stating that he wanted to lodge an objection.  Even though Mr Gorman provided additional explanation on 30 August 2021 the Tribunal is satisfied that Mr Gorman advised on 5 July 2021 that he was lodging an objection and therefore the objection was lodged within 28 days of notification of the original decision.

9. On 3 December 2021 an objections officer disallowed Mr Gorman’s objection and affirmed the decision of the original decision maker that the care of the child was 56% (202 nights) to Ms Berker and 44% (163 nights) to Mr Gorman from 30 April 2018 with a date of effect of 2 June 2021 for Ms Berker and a date of effect of 30 April 2018 for Mr Gorman.

10. On 31 December 2021 Mr Gorman requested review by the Administrative Appeals Tribunal (“the Tribunal”).

11. Mr Gorman and Ms Berker attended the hearing by way of a telephone conference on 10 March 2022 and both gave sworn evidence.

12.  The Child Support Agency provided papers relevant to this matter and these were marked as a bundle as Exhibit C1.  Mr Gorman provided documents; predominantly copies of text messages and some flight itinerary documents and these were marked as Exhibits A1 to A74.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child(ren). Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a care period commencing from 30 April 2018 to 5 July 2021 was appropriate taking into account the period under consideration in this case.

4. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 49% care to Ms Berker and 51% care to Mr Gorman.

5. The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[1] the AAT stated that:

   …a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based…..The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity.  Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

   [1] [2013] AATA 562; 137 ALD 426

6. The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place.

7. Section 5 of the Assessment Act refers to the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) for its definition of a “care arrangement” and section 3 of the Family Assistance Act provides that a “care arrangement” includes “a parenting order within the meaning of section 64B of the Family Law Act 1975”. The Tribunal is satisfied that court orders were made in April 2018 and these orders satisfy the definition of a “care arrangement”.   

8. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

9. In this case, Mr Gorman and Ms Berker did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

Mr Gorman’s evidence and contentions

1. Mr Gorman told the Tribunal that although there were court orders made in 2018 they weren’t being followed. In any event, he said, the orders permitted he and Ms Berker to make other arrangements as negotiated between them. 

2. He stated that the child spent two weeks of the school holidays in April 2019 and July 2019 with Mr Gorman’s brother and in December/January holidays of 2018/2019 the child spent six weeks of the school holidays with his grandmother (Mr Gorman’s mother). He stated that these visits occurred with the agreement of both parents but he thinks that they should be attributed to his care percentage.  He told the Child Support Agency that he paid for the child’s flights and provided some financial support for the child during these holidays.

3. Mr Gorman also told the Child Support Agency that rather than a total of 12 weeks of school holidays, the school which the child attended had 14 weeks of school holidays per year.[2] Therefore, he had care for seven weeks of the school holidays.

   [2] C1, page 65

4. In addition Mr Gorman contended that he was having seven days per fortnight of care during school terms because he was having, on average, an additional night of care each fortnight due to Ms Berker having to work.

5. He calculated that he was having more than 50% care in 2018/2019 and since July 2019 the care has been approximately 50/50 with Ms Berker.[3]

   [3] C1, page 65

6. Mr Gorman provided copies of multiple text messages in support of his contention that he has had additional care during school terms beyond the six nights a fortnight.

Ms Berker’s evidence and contentions

1. Ms Berker stated that she did not realise until last year that the care on record by the Child Support Agency was less than her care according to the court orders.  She stated that she was trying to purchase a house and her broker mentioned that if she was a single parent with more than 50% care she may be eligible to apply for a special home loan.  She stated that she must have overlooked notifying the Child Support Agency of the court ordered care because she was surprised to discover that Mr Gorman was on record as having 51% care and her care was 49%.  She then told the Child Support Agency that those percentages of care were not correct because she had eight nights of care per fortnight plus half of the school holidays (and Mr Gorman had six nights of care per fortnight and half of the school holidays).

2. Ms Berker stated that she considers the court orders were being followed.  She agreed that the child spent some time with Mr Gorman’s relatives in 2019 but those arrangements were not made at her instigation and they did not change the general pattern of the care.

3. In relation to Mr Gorman’s claim that his care was seven nights a fortnight during school terms because he was regularly having additional care due to her working, she stated that while Mr Gorman did have an extra night of care on an occasional basis this was not a regular occurrence.  She stated that she did work shift work but she only occasionally worked night shift.  In addition, she stated that there were occasions when she had care of the child for any extra night at Mr Gorman’s request.  She did not agree that there was a change in the usual pattern of six nights a fortnight for Mr Gorman during school terms.

4. In relation to school holidays Ms Berker stated that she wasn’t sure if the holidays added up to 14 weeks per year but she accepted that may be correct.

The Tribunal’s consideration

1. The Tribunal considered all of the available evidence.

2. The Tribunal has found that the court orders of April 2018 are the most recent court orders and both parents agreed. The Tribunal is satisfied that the court orders were being generally followed.  The Tribunal finds that the usual pattern of care was that Ms Berker had care of the child in school terms for eight nights a fortnight and that Mr Gorman had care each fortnight for six nights.  In school holidays the Tribunal finds that the care was 50/50 between the parents.  The Tribunal accepts that there were some fluctuations from time to time with the consent of both parents but these were not sufficient to disrupt the usual pattern.  The Tribunal notes that initially when contacted about a change of care notified by Ms Berker, Mr Gorman advised that his care was six nights a fortnight plus half of the school holidays.  Ms Berker promptly corrected her initial statement that her care was nine nights a fortnight confirming that it was eight nights a fortnight plus half of the school holidays.

3. The Tribunal considered the multiple text messages provided by Mr Gorman in support of his contention that his pattern of care during school terms was seven nights a fortnight on average rather than six nights a fortnight.  However, overwhelmingly the texts tended to indicate that both parents from time to time agreed to or offered care to assist the other parent.  The Tribunal was not persuaded that these arrangements changed the general pattern of care.

4. In relation to the duration of the school holidays the Tribunal accepts that the school holidays in this particular case total 14 weeks per year. This means that the school terms total 38 weeks (19 fortnights). In relation to Mr Gorman’s care therefore the Tribunal finds that he had six nights a fortnight for 19 fortnights (school terms) = 114 nights plus half of the school holidays (+ 49 nights). Therefore his total nights of care = 163 nights = 44%. Hence, Ms Berker’s care is 56% (202 nights) and the Tribunal so finds. In accordance with section 54D of the Assessment Act the lower percentage of care is rounded down and the higher percentage rounded up.

5. In relation to the child holidaying with Mr Gorman’s relatives in 2018/2019 these were “one-off” events to which both parents agreed and no supporting evidence of additional costs (other than some airfares) were provided. The Tribunal finds that these occasional holidays did not disrupt the usual pattern of care.

6. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

7. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the 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. Prior to 2 June 2021, the pre-existing care was that Ms Berker had 49% care of the child and a cost percentage of 50%. Mr Gorman had 51% care and also a cost percentage of 50%. The Tribunal’s determination will mean that Ms Berker will, from 30 April 2018, have a care percentage of 56% and a cost percentage of 57%. Mr Gorman will have a care percentage of 44% and a cost percentage of 43%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and section 54G of the Assessment Act does not apply as the change in care was notified more than 28 days after the care change which is not considered within a reasonable time) the pre-existing determinations of percentage of care must be revoked in accordance with section 54F of the Assessment Act.

2. Subsection 54F(3) of the Assessment Act specifies when the revocation of the existing determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 30 April 2018. The Tribunal also found that Ms Berker notified the Child Support Agency of the change on 2 June 2021. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.

3. Ms Berker’s care of the child has increased and according to subparagraph 54F(3)(b)(i) of the Assessment Act her existing care percentage of 49% will be revoked from 1 June 2021 being the day before the Child Support Agency was notified of the care change.

4. Mr Gorman’s care has decreased and according to subparagraph 54F(3)(b)(ii) his existing care percentage of 51% will be revoked from 29 April 2018 being the day before the change of care day.

5. Having revoked the existing determinations the Tribunal must now make new determinations of Ms Berker’s and Mr Gorman’s percentages of care; that is 56% to Ms Berker and 44% to Mr Gorman pursuant to section 50 of the Assessment Act.

6. Section 54B of the Assessment 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”. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

7. The Tribunal has revoked Ms Berker’s existing determination with effect from 1 June 2021; therefore, the change of care applies from 2 June 2021 for Ms Berker.

8. The Tribunal has revoked Mr Gorman’s existing determination with effect from 29 April 2018; therefore, the change of care applies from 30 April 2018 for Mr Gorman.

9. In the future, if either parent considers that the pattern of care has changed, in that from a specific date there is a change in the pattern of care and the care that is taking place does not correspond with the parent’s existing percentage of care, a new application for a care determination can be made.

10. As the Tribunal agrees with the decision of the objections officer, it affirms the decision under review.   

DECISION

The decision under review is affirmed.