Groves and Child Support Registrar (Child support)

[2021] AATA 3847

Groves and Child Support Registrar (Child support) [2021] AATA 3847 (13 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021422

APPLICANT:  Mr Groves

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member D Lambden, Member Y Webb

DECISION DATE:  13 August 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether an interim period ought to apply – 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. This review relates to a decision of the Child Support Registrar of Services Australia (Child Support Agency) regarding the care of the two children of Mr Groves and [Ms A] (“the children”). The children are now aged 11 and eight.

2. There are Federal Circuit Court of Australia orders in relation to the care of the children: specifically there are court orders dated 25 January 2017. The orders specify that the children are to live with their mother except for the times when they spend time with their father which the court orders specify is, in 2017, two nights per fortnight during school terms; four nights in each of the school holidays at the end of terms one, two and three and nine nights in the summer school holidays. This is a total of 61 nights or 16%. There are also some “special overnights”, such as Christmas Day, which alternate between the parents. The orders also provide that from 2018 Mr Groves’ school holiday care will increase to seven nights in each of the school holidays at the end of terms one, two and three and to half of the summer school holidays in addition to the two nights per fortnight during school terms. The “special overnights” continue to apply. This is a total of 82 nights or 22%.

1. Prior to 17 October 2018 the care of the children was recorded by the Child Support Agency as being 86% to [Ms A] and 14% to Mr Groves from 24 April 2015.

2. On 17 October 2018 [Ms A] contacted the Child Support Agency and advised that her care of the children had changed such that she had had 100% care of the children from 11 April 2018.

3. On 30 October 2018 a delegate of the Registrar decided that from 11 April 2018 the care of the children was 100% to [Ms A] and 0% to Mr Groves – but applied this to the child support assessment from 17 October 2018, being the date of notification.

4. Mr Groves objected to that decision on 15 September 2020. However, on 1 April 2021 the objection was disallowed.

5. On 6 May 2021 Mr Groves requested review by the Tribunal.

6. [Ms A] was invited to be a party to the proceedings but she did not apply and was removed as a party.

7. Mr Groves attended the hearing on 5 August 2021 by way of a telephone hearing and gave sworn evidence.

8. The Tribunal deferred making a decision pending the receipt of further information from Mr Groves.

9. On 13 August 2021 the Tribunal made its decision.

ISSUES

1. The issues for the Tribunal to determine are:

   ·the percentages of care of the children for Mr Groves and [Ms A];

   ·if there has been a change in the level of care, the date of effect of the care change and the extent of the care change;

·does a “care arrangement” apply to the children; and if so,

·whether an interim determination should be made.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (Assessment Act) and the Child Support (Registration and Collection) Act1988 (Registration and Collection Act).

2. Significant amendments to the Assessment Act and the Registration and Collection Act were made effective from 23 May 2018 and 1 July 2018 but this matter predates those amendments and the legislation as it was prior to those dates applies.

3. 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. 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. The percentage determined must be the percentage that corresponds with the care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

4. The pattern can be established either according to a ‘care arrangement’ (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. The Assessment Act at section 5 provides that a ‘care arrangement’ has the same meaning as in the A New Tax System (Family Assistance) Act 1999 (Family Assistance Act). The Family Assistance Act defines a ‘care arrangement’ to include ‘a parenting order within the meaning of section 64B of the Family Law Act 1975’. That Act provides at section 64B that a parenting order is an order that deals with any of the matters listed in subsection 64B(2) of the Act which in summary can be captured in paragraph 64B(2)(i) being ‘any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child’. The Tribunal finds that the Federal Circuit Court orders of 25 January 2017 are a ‘care arrangement’ for the purposes of the Assessment Act.

6. The Child Support Agency decided that the court orders of 25 January 2017 were not being followed and therefore that the actual care of the children should be the determinant. However, the Tribunal’s view is that a care arrangement applies in this case because there was a Federal Circuit Court of Australia order in force (as described above in paragraph 2) whether or not it was being followed by the parents.[1]

   [1] See BMGV and Child Support Registrar [2020] AATA 3449 (8 September 2020) at para 37

7. 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(ren) changed and reflecting the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case commencing from 11 April 2018 (noting that this will apply only unless or until a further care determination is made).

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

9. In this case, neither parent contended that nights were an unsuitable measure of the care of the children and the Tribunal finds that nights are an appropriate method of ascertaining the actual care of the children.

1. Mr Groves admitted, and the Tribunal finds, that in the period beginning 11 April 2018 he did not have any care of the children. Therefore from 11 April 2018 his care was 0% and [Ms A]’s care was 100%. This was contrary to the court orders dated 25 January 2017.

2. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child 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.

3. 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 11 April 2018 the pre-existing care that was recorded was that Mr Groves had a care percentage of 14% and a cost percentage of 24% and [Ms A] had a care percentage of 86% and a cost percentage of 76%. (The Tribunal notes that if Mr Groves had a care percentage of 22% this would still result in a cost percentage of 24% and if [Ms A] had a care percentage of 78% this would still result in the same cost percentage of 76%.) The Tribunal’s determination will mean that in the care period commencing from 11 April 2018 Mr Groves will have a care percentage of 0% and a cost percentage of nil and [Ms A] will have a care percentage of 100% and a cost percentage of 100%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change and revocation of the existing care determinations would be required.

2. The Tribunal considered whether section 54G of the Assessment Act applied in this case rather than section 54F. Specifically the Tribunal considered whether [Ms A] was making the children available to Mr Groves after he started having no care of the children from 11 April 2018. Mr Groves asserted that [Ms A] was withholding the children and that he was not able therefore to have the care of the children in accordance with the court orders. [Ms A] admitted to the Child Support Agency that she was withholding care because of Mr Groves’ ‘living arrangements’.[2] Hence the Tribunal finds that [Ms A] was not making the children available to Mr Groves.

   [2] C1-page 179

3. In addition, paragraph 54G(1)(d) requires that [Ms A] notify the Child Support Agency that Mr Groves had less than regular care of the children ‘within a period that the Registrar considers is reasonable in the circumstances’. The papers disclose – and it is not disputed by [Ms A] – that she notified the Child Support Agency on 17 October 2018 that the care of the children had not been occurring in accordance with the written care arrangement since 11 April 2018. The Tribunal finds that [Ms A] did not notify the Child Support Agency of the change in care within a period which was reasonable in the circumstances. Normally, a reasonable period is within 28 days. Consequently, section 54G is not applicable. The Tribunal is satisfied that the care percentages which existed prior to 11 April 2018 must be revoked in accordance with section 54F of the Assessment Act.

4. Section 54F states:

   54F Determination must be revoked if there is a change to the responsible person’s cost percentage

   (1)If:

   (a)a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

   (b)if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and

   (c)the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (d)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (e)section 54G does not apply;

   the Registrar must revoke the determination.

   Note:The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

5. Subsection 54F(2) of the Assessment Act specifies when the revocation of the 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 11 April 2018. It also has found that [Ms A] notified the Child Support Agency of the change on 17 October 2018. As the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(2)(c) on 16 October 2018, being the day before the Child Support Agency was notified of the change of care.

6. Before the Tribunal makes new determinations under sections 49 and 50 of the Assessment Act the Tribunal must consider whether it is appropriate to make an interim care determination.

7. In cases where the care arrangement is not being complied with, an exception applies to the way in which a determination is made under either section 49 or section 50 of the Assessment Act. Section 51 may be applicable in this circumstance. However, before applying section 51 the Tribunal must be satisfied that Mr Groves had reduced care of the children from 11 April 2018 and that he has taken reasonable action to ensure that the court-ordered care arrangements were being complied with.

8. The Tribunal finds there is no doubt that Mr Groves had ‘reduced care of a child’ (in relation to both children) as defined in section 54 of the Assessment Act which states:

   54 When a person has reduced care of a child

   A person has reduced care of a child if:

   (a)a care arrangement applies in relation to the child; and

   (b)the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

   (c)the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.

9. Mr Groves had nil care from 11 April 2018 and the court orders in force at that time granted him 22% care (as described above in paragraph 2). However, at the hearing Mr Groves emphasised that, while he admitted he had had no care of the children since 11 April 2018, he was taking reasonable action to restore his court-ordered care of the children.

10. Mr Groves told the Tribunal that he had provided evidence of the reasonable actions which he took to restore his care of the children. He referred to the orders of the Federal Circuit Court of Australia dated 5 November 2019 which detailed 25 counts of contraventions in relation to the court orders of 25 January 2017 (which specified the care of the children) to which the mother admitted and which the court found were serious contraventions dating from 14 April 2018 to 24 December 2018.[3] Mr Groves also referred to the orders of 7 August 2020 which also dealt with contraventions by the mother of the court orders of 25 January 2017.

    [3] C1-pages 137-140

11. At the hearing the Tribunal asked Mr Groves about the reasonable action which he took following the change of care on 11 April 2018. Mr Groves stated that he took a number of steps including that he wrote to [Ms A] seeking that his care be restored and that he obtained legal advice and undertook court proceedings in relation to the contraventions of the court orders. He stated that he would provide further information regarding the steps he took. He provided copies of the material already within the C1 papers regarding the contravention decisions of 5 November 2019 and 7 August 2020. The documents showed that Mr Groves’ application to the court for contravention orders were filed on 29 April 2019. The Tribunal accepts that Mr Groves took this action, attended the court hearings and that he obtained legal advice prior to the filing (although no verification of taking legal advice has been provided). It also accepts that he wrote to [Ms A] about his care being withheld.

12. The term ‘reasonable action’ is not defined in the Assessment Act but at the time the Child Support Guide suggested that the following actions may constitute reasonable action to have care restored to the care detailed in an agreement, plan or order:

    ·Initiating court action for contravention of a court order

    ·Initiating mediation through a Family Relationships Centre or other service, to re-establish the care arrangement;

    ·Negotiating with the other parent with a view to re-establishing the care arrangement

13. The Tribunal is satisfied that Mr Groves took reasonable action to restore his care.

14. The Tribunal then considered whether an interim determination should be made. An interim determination in these circumstances would normally apply for a period of 14 weeks from the date that the care changed: that is, 14 weeks from 11 April 2018 which is until 17 July 2018. In special circumstances the interim period may be extended to up to 26 weeks. The Child Support Guide provides that special circumstances may apply for instance where a child is taken overseas without the consent of the parent or where there is something unusual or out of the ordinary which could be described as ‘special’. In this case, the Tribunal does not consider that there are special circumstances justifying an interim period of 26 weeks. Hence, the interim period may apply for a 14-week period from 11 April 2018 to 17 July 2018 after which the care percentages would reflect the actual care of the children: that is, 100% to [Ms A] and 0% to Mr Groves.

15. However, an interim determination in this case is affected by the change in care not being notified to the Child Support Agency until 17 October 2018.

16. Section 53 of the Assessment Act provides that the interim care provisions do not apply in circumstances where the revocation of the existing determinations under section 54F is 14 weeks or more after the change of care day. In this case the revocation of the existing determinations was made on 16 October 2018 which is more than 14 weeks after the change of care day on 11 April 2018. (Even if the Tribunal had found that there were special circumstances justifying an interim care determination for 26 weeks, the revocation on 16 October 2018 is more than 26 weeks after the change of care day on 11 April 2018.) Therefore the interim care provisions are not applicable in this case.

17. Having revoked the existing determinations the Tribunal must now make new determinations of [Ms A]’s and Mr Groves’ percentages of care of 0% to Mr Groves under section 49 and 100% to [Ms A] under section 50 of the Assessment Act. 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. The Tribunal has revoked the pre-existing determinations with effect from 16 October 2018. Therefore, the new determinations of 100% care to [Ms A] and 0% care to Mr Groves apply from 17 October 2018.

18. While the Tribunal’s reasoning differs from the objections officer’s the outcome is the same. Hence the Tribunal affirms the decision under review.

DECISION

The decision under review is affirmed.