Handley and Handley (Child support)

[2023] AATA 4293

Handley and Handley (Child support) [2023] AATA 4293 (26 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026193

APPLICANT:  Mr Handley

OTHER PARTIES:  Child Support Registrar

Ms Handley

TRIBUNAL:Member M King

DECISION DATE:  26 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Handley’s percentage of care be recorded as 86%, and Mr Handley’s percentage of care be recorded as 14%, from 7 February 2022, notified to the Child Support Registrar on 7 October 2022.

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. As relevant to this application, Mr Handley and Ms Handley are parties to a child support case registered with Services Australia – Child Support (Child Support) from 11 January 2022 in relation to financial support to be provided for [Child 1] (born 2004) and [Child 2] (born 2006). This decision relates to the percentages of care recorded in relation to [Child 2].

2. Ms Handley had been recorded as having 88% care of [Child 2], and Mr Handley 12% care of [Child 2], from 11 January 2022, when the child support case commenced.

3. On 7 October 2022, Mr Handley advised Child Support that Ms Handley had 60% care of [Child 2], and he had 40% care of [Child 2], from 3 February 2022.

4. On 27 November 2022, Child Support determined percentages of care of [Child 2] of 85% for Ms Handley and 15% for Mr Handley from 3 February 2022.

1. On 7 December 2022, Mr Handley objected to this decision.

2. On 18 May 2023, a Child Support objections officer partly allowed the objection and determined there should be no change to the original percentages of care of [Child 2], being 88% for Ms Handley and 12% for Mr Handley.

1. On 31 May 2023, Mr Handley lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 26 October 2023. Mr Handley and Ms Handley 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 Mr Handley and Ms Handley and the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 378).

ISSUES

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, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of 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, while 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. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

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

2. The term pattern of care is not defined in the legislation. 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 states 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 Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

3. Both sections 49 and 50 of the Act first require consideration of whether the relevant person has had or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period. Section 54A of the Act 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.

4. The legislative test therefore first requires consideration of whether a person has had or is likely to have a pattern of care of a child for a care period and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

5. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘has had’ or ‘is likely to have’ depending upon when, relative to the care period, the decision is being made.

6. Mr Handley told the Tribunal that the parents participated in mediation after they separated in 2016 and tried to establish a care arrangement. He said Ms Handley wanted to care for [Child 2] for nine nights per fortnight and wanted him to care for [Child 2] for five nights per fortnight. Mr Handley said he wanted each parent to have 50% care of [Child 2] so a written care agreement was not signed.

7. Mr Handley said [Child 2] decided to stay with Ms Handley for nine nights per fortnight, and with him for five nights per fortnight. That arrangement changed as time went on.

8. Mr Handley said Ms Handley applied for a child support assessment at the start of 2022. He said he was unable to provide evidence of his care of [Child 2] to Child Support at that time. He then tried to start collecting evidence and started to keep a record of [Child 2]’s care in his work diary. He said for the whole of 2022 he marked in his diary every day [Child 2] spent with him or his family. Mr Handley submitted that he had 41% care of [Child 2] in 2022.

9. Ms Handley told the Tribunal she believes Child Support’s decision is correct. She provided Child Support with a copy of the calendar diary she kept recording the care of [Child 2] on a daily basis.

10. Ms Handley said that from 2018 [Child 2] was in her care for nine nights per fortnight and in Mr Handley’s care for five nights per fortnight. She said in 2020 [Child 2] stopped spending as much time with Mr Handley. She said during the COVID19 lockdowns of 2021 and 2022 [Child 2] attended school remotely from her home.

11. Ms Handley submitted that Mr Handley’s care diaries are not accurate. She believes Mr Handley printed a copy of the care diaries she provided to Child Support and wrote over them to create his own care diary. She said Mr Handley does not have his own diary.

12. Mr Handley denied those assertions. He told the Tribunal that [Child 2] was still moving between the parents’ homes during COVID19 lockdowns but it may have been less than previously.

13. Both parents have provided a copy of care diaries to Child Support which they told the Tribunal they completed contemporaneously.

14. A copy of the care diary provided by Mr Handley is contained in Exhibit 1 at pages 153–154 and 235. Those diaries record Mr Handley as having care of [Child 2] for nine nights in February 2022, 10 nights in March 2022, 10 nights in April 2022, 11 nights in May 2022, and 16 nights in June 2022. That provides Mr Handley with 56 nights of care over a 150-day period, which equates to 37% care. If June 2022 is excluded from the calculation, Mr Handley had care of [Child 2] for 40 nights during the 120-day period February 2022 to May 2022, which equates to 33% care.

15. A copy of the care diary provided by Ms Handley is contained in Exhibit 1 at pages 146, 219–220 and 256. Those diaries record Mr Handley as having care of [Child 2] for seven nights in February 2022, six nights in March 2022, four nights in April 2022, eight nights in May 2022, and two nights in June 2022. That provides Mr Handley with 27 nights of care over a 150-day period, which equates to 18% care.

16. Both parents have provided evidence to Child Support purporting to show the inaccuracy of the care diaries provided by the other parent including third-party statements, text messages and bank statements. That evidence is also contained in Exhibit 1.

17. At page 145 of Exhibit 1 is a copy of a letter sent to Child Support by Ms Handley and dated 9 November 2022. In that letter Ms Handley states that from January 2022 to July 2022 [Child 2] stayed with Mr Handley for 31 nights out of 212 nights, which equates to 14% of the nights. She states that is the “normal” pattern.

18. The Tribunal notes that regular care is defined in the Act as care of between 14% and 34%. A care percentage anywhere in the regular care band provides for the same rate of child support payable. Similarly, if a parent has between 66% and 86% care, which is known as major care, the same rate of child support will be payable.

19. The Tribunal finds that the pattern of care for [Child 2] changed from 7 February 2022 when, based on both parents’ care diaries, Mr Handley commenced having care of [Child 2] more often.

20. On balance, the Tribunal finds that from 7 February 2022 Ms Handley had major care of [Child 2] and Mr Handley had regular care of [Child 2].

21. In making that finding, the Tribunal notes that Mr Handley’s care diaries from February 2022 to June 2022 record him as having care of [Child 2] for 33% of the nights. Whilst he states he had more nights in July 2022 that does not seem to have been an ongoing pattern. As mentioned, Ms Handley advised Child Support in a letter of 9 November 2022 that the “normal” pattern was for Mr Handley to have 14% care of [Child 2].

22. Both 14% care and 33% care fall within the regular care band. Similarly, for Ms Handley, 86% care and 67% care are both within the major care band. Therefore each set of percentages would provide the same rate of child support payable.

23. The Tribunal finds the preferable decision is to record care percentages of 86% for Ms Handley and 14% for Mr Handley.

24. Subsection 54F(1) of the Act requires the existing care percentages used in an assessment of child support be revoked if: a) the care of a child that is actually taking place does not correspond with the parents’ respective percentages of care for the child; and b) a change to the parents’ percentages of care, so as to reflect the parents’ actual care of the child, would result in a change in the parents’ cost percentages used in the assessment.

25. Accordingly, in accordance with section 54F of the Act, the Tribunal revokes the pre‑existing care percentages and pursuant to section 50 of the Act determines new care percentages of 86% for Ms Handley and 14% for Mr Handley from 7 February 2022, notified to Child Support on 7 October 2022.

26. The Tribunal notes that Child Support made a further care percentage decision on 21 August 2023. This Tribunal decision will not change the effect of that decision.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Handley’s percentage of care be recorded as 86%, and Mr Handley’s percentage of care be recorded as 14%, from 7 February 2022, notified to the Child Support Registrar on 7 October 2022.