Gose and Boothe (Child support)

[2022] AATA 2057

Gose and Boothe (Child support) [2022] AATA 2057 (10 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC022847

APPLICANT:  Ms Gose

OTHER PARTIES:  Child Support Registrar

Mr Boothe

TRIBUNAL:Member J Prentice

DECISION DATE:  10 May 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing care percentage determination of 63% to Ms Gose is revoked from 18 July 2021 and replaced with a new care percentage determination of 62% with effect from 19 July 2021; and

2. the existing care percentage determination of 37% to Mr Boothe is revoked from 30 August 2021 and replaced with a new care percentage determination of 38% with effect from 31 August 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 Gose and Mr Boothe are the parents of [Child 1] (born April 2008); [Child 2] (born May 2010); and [Child 3] (born December 2013). The pre-existing care for their children was recorded by the Child Support Agency (CSA) as being 63% to Ms Gose and 37% to Mr Boothe from 12 February 2021.

2. On 31 August 2021 Mr Boothe notified the CSA of a change in the care arrangements such that Ms Gose had 61% and Mr Boothe had 39% care of the children from 19 July 2021.

3. On 3 September 2021 the CSA accepted Mr Boothe’s claim and determined that the care percentage was 61% to Ms Gose and 39% to Mr Boothe effective from 19 July 2021.  However, the CSA then determined that an error had occurred in the calculation of the percentage care of the children and subsequently determined that Ms Gose had 62% care and Mr Boothe had 38% care. As Mr Boothe had notified the change of care on 31 August 2021, more than 28 days after the change occurred on 19 July 2021, the recorded increased percentage of care (from 37%) to 38% to Mr Boothe took effect from 31 August 2021 (the date of notification); however, the decreased percentage (from 63%) to 62% to Ms Gose took effect from 19 July 2021 (the date of the care change).

4. The CSA documents state that on 7 September 2021 Mr Boothe lodged an objection to the care decision and claimed that he had 41% care and Ms Gose had 59% care of their children.

5. On 5 November 2021 the CSA partly allowed the objection and determined that care percentages of 60% for Ms Gose and 40% for Mr Boothe applied in relation to the care of the children from 19 July 2021.  Again, as Mr Boothe had notified the change of care on 31 August 2021, more than 28 days after the change occurred on 19 July 2021, the recorded increased percentage of care (from 37%) to 41% to Mr Boothe took effect from 31 August 2021 (the date of notification); however, the decreased percentage (from 63%) to 60% to Ms Gose took effect from 19 July 2021 (the date of the care change).

6. On 1 December 2021 Ms Gose sought review by the Administrative Appeals Tribunal (the Tribunal).

7. At a hearing on 23 March 2022 the Tribunal heard sworn evidence from Ms Gose and Mr Boothe who both participated by conference telephone. Permission had been given for Ms Gose to have [Ms A] make submissions on her behalf. In reaching its decision, the Tribunal has considered that evidence, together with the statements and comments provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  Ms Gose and Mr Boothe provided additional evidence and submissions before and after the hearing.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That 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 CSA’s Child Support Guide (the Guide) where relevant. The Tribunal is not bound by the CSA’s policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

3. The scheme of the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

4. 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.”

5. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made.

6. Section 50 reflects the view that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified 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 pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

7. Section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

15.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, so that a new care percentage decision or decisions can then be considered and made if appropriate.

16.Generally speaking, if a change of care is notified to the CSA more than 28 days after it occurs, the new percentage of care determination for the person with decreased care applies from the date of the change; however, the new percentage of care determination for the person with increased care only takes effect from the date of notification.

1. 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. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

   Not all changes in care will result in the calculation of a different care percentage. 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.

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)). The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed. The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

4. Once each party’s care is determined, if there has been a relevant change, it can be reflected in the child support assessment by revoking the old percentage under sections 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

5. The Tribunal noted that the application was with respect to the likely pattern of care from the care period commencing 19 July 2021.

6. Both Ms Gose and Mr Boothe made extensive submissions.  However, both parties agree that they share the school holidays (12 weeks ÷ by 2 = 6 weeks x 7 nights = 42 nights).  Both parties agree that Mr Boothe has 5 nights per fortnight of care of the children (40 weeks = 20 fortnights x 5 = 100 nights).  Therefore both parties agree that Mr Boothe has 142 nights’ care each year.  This is the equivalent of 38% care.

7. However, the dispute is over the extra nights’ care and credits for special events – such as Mother’s Day.

8. Mr Boothe told the Tribunal that he believes the care arrangements should be based on a two-year cycle to even out “special” days. 

9. Considerable evidence from both parties was based on the Court Orders (dated 4 February 2022) and events that had occurred this year – 2022); and were likely to occur – e.g. Mother’s Day arrangements.

10. The Tribunal noted that the parties needed to consider the pattern of care likely from July last year.  Both applicants felt the Court Orders reflected the likely pattern of care going forward from July last year – with the benefit of hindsight.

11. The Tribunal notes that the Court Orders detail the treatment of special nights but do not reflect the corresponding percentages care. 

12. On 31 August 2021, both Ms Gose and Mr Boothe agreed that Ms Gose had 61% care of the children and Mr Boothe had 39% care. However in subsequent months both parties changed their position

13. Ms Gose’s calendar evidence indicated she had 221 nights’ care (61%) and Mr Boothe had 144 nights’ care (39%)

14. Both parties agree that nights allocated “will vary slightly from year to year and are also dependent on which time frame is selected”.

15. The Tribunal does not consider that every deviation from an existing pattern of care constitutes a new pattern of care; as stated in paragraphs 17 and 18 of this Decision.

16. Both Ms Gose and Mr Boothe believe the Court Order requires the CSA to take into account the treatment of special days when calculating care percentage. The ‘special days’ related to occasions such as birthdays, Christmas, each parent’s birthdays, and Mother’s Day and Father’s Day. Sometimes the care each parent has for these special days will fall on nights of care they are already exercising. However, sometimes a parent will have care for a ‘special day’ at a time they would not otherwise have care. The position changes depending upon when the date upon which the special occasion falls and depending upon the various time frames for certain dates from time to time. Overall the Tribunal is satisfied that there is a consistent and equitable allocation of these types of special days. The Tribunal considers these variations are in the nature of minor variations in care and, of note, over time any extra special days of care to one parent or the other balance out. As discussed at the hearing it would not be a workable process for a change in care to require notification and a separate care decision each time there is a change for a day here or a day there and that is not what is contemplated by the legislation. Having had regard to all matters, the Tribunal considers the percentages of care determinations to be reflected for CSA purposes should be consistent with the agreed care occurring without additional care for special days to be taken into account.

17. As already noted at paragraph 22 of these Reasons, both parties agree that pursuant to the Court Orders, that from 19 July 2021 the likely pattern of actual care of the children by Mr Boothe was 142 nights per year, that is, 38%, with minor variations for special nights, which are already noted, the Tribunal considers there are minor variations that are balanced out over time between the parties and should not alter the care percentages recorded.

18. It follows that the Tribunal determines that the likely actual care of the children from 19 July 2021 was 62% to Ms Gose and 38% to Mr Boothe from 19 July 2021. 

19. As Mr Boothe had notified the change of care on 31 August 2021, more than 28 days after the change occurred on 19 July 2021, the recorded increased percentage of care (from 37%) to 38% to Mr Boothe takes effect from 31 August 2021 (the date of notification); however, the decreased percentage (from 63%) to 62% to Ms Gose takes effect from 19 July 2021 (the date of the care change). The Tribunal notes that this is the same decision as the original decision of the CSA on 3 September 2021.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing care percentage determination of 63% to Ms Gose is revoked from 18 July 2021 and replaced with a new care percentage determination of 62% with effect from 19 July 2021; and

2. the existing care percentage determination of 37% to Mr Boothe is revoked from 30 August 2021 and replaced with a new care percentage determination of 38% with effect from 31 August 2021.