Harbison and Tutton (Child support)

[2022] AATA 1570

Harbison and Tutton (Child support) [2022] AATA 1570 (29 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023044

APPLICANT:  Ms Harbison

OTHER PARTIES:  Child Support Registrar

Ms Tutton

TRIBUNAL:Member J Prentice (Presiding)

Member S Trotter

DECISION DATE:  29 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 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 Harbison and Ms Tutton are the parents of [Child 1] (born 2010) and [Child 2] (born 2011) (the children). This review application concerns a decision of Services Australia – the Child Support Agency (CSA) about the recorded care for the children in relation to a child support case which is registered with the CSA.

2. The existing percentage of care determinations recorded for the children were 17% for Ms Harbison and 83% for Ms Tutton, when Ms Tutton contacted the CSA on 8 September 2021 and advised a change of care from 3 July 2021 to 100% to her and 0% to Ms Harbison.

3. On 8 October 2021, the CSA decided to revoke the pre-existing percentage of care determinations and for new percentages of care determinations of 0% to Ms Harbison and 100% to Ms Tutton to apply. Notably, as Ms Tutton’s notification of the change of care was not made until 8 September 2021, more than 28 days after the actual change of care, the date of effect of the decreased care of 0% for Ms Harbison was the date of the care change, 3 July 2021 but the date of effect of the increased care of 100% for Ms Tutton was limited to the date of notification, 8 September 2021.

4. Ms Harbison lodged an application for review with the Tribunal on 4 January 2022.

5. Ms Harbison and Ms Tutton both spoke to the Tribunal by conference telephone at a hearing on 29 March 2022 and gave evidence on affirmation.

6. In considering the application, the Tribunal took into account the oral evidence of Ms Harbison and Ms Tutton and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1). The Tribunal also took into account additional documentation received from Ms Harbison. Ms Tutton confirmed that she had only received a copy of the additional documentation on the morning of the hearing but did not require additional time to consider and/or respond to this additional documentation.

ISSUES

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection 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 Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government 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 child support legislation 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. Where a parent has a pattern of care for a child, the child support legislation provides for the determination of care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, care decisions are made at a point in time based on what has happened up until the change in care is considered and what will likely be the care thereafter. What is likely to happen may not eventuate or may subsequently change and when that is the case, a parent can notify the CSA and a new percentage of care determination can be made. 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.

5. The child support legislation provides for revoking of care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and the making of new care determinations to take account of a care change.

12.Any new care determination takes effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification as regards the increased level of care. It follows that as regards the date of effect of revocation of care percentage determinations, there is the possibility of differential dates of effect for the increased care percentage to one parent and the decreased care percentage to the other parent depending upon when the CSA is notified of the change.

13.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.

14.The issue to be determined by the Tribunal is whether the pre-existing percentage of care determinations are to be revoked and replaced and, if so, the date of effect of the revocation and consequential new percentages of care.

CONSIDERATION

15.The evidence before the Tribunal shows that Ms Harbison lives in New South Wales and Ms Tutton lives in Western Australia and that up until July 2021 care had been occurring pursuant to Court Orders of September 2015.

1. Ms Harbison told the Tribunal that she disagrees with the decision that the CSA made in relation to the July 2021 period. The information that she received when she spoke to a CSA officer in relation to that period was that, for the purposes of a 25 June 2021 notification of change of care from 3 July 2021, the CSA was going to treat that as a one-off missed care because school holidays care by her had been occurring pursuant to the Court Orders until COVID-19 had impacted her ability to enter Western Australia from New South Wales and she was unable to have her usual care of the children. However, she had had care for the Easter and Christmas school holidays prior to July 2021. She is not disputing that she did not have care in July 2021. Her objection is not that she has not had care since April 2021, rather that the CSA said that the July 2021 missed school holidays care would be treated as a one-off and there would be no change in the care percentages recorded. It was outside of her control that she could not have care in July 2021. She was doing everything she could to have care of the children pursuant to the Court Orders. She attempted to enter Western Australia. She prepared to quarantine. She provided copies of the Court Orders to the Western Australian police, because they facilitated the COVID-19 border passes, and their response was that her travel was non-essential.

17.Her dispute therefore is that the information she was given by the CSA was different to what has happened. She has been given lots of different information from different CSA officers. She has been told that the CSA in Western Australia was using the wrong legislation and it was impacting others, not just her. She has been getting lots of different information.

18.Ms Harbison said that CSA were initially not going to change the care percentages for the July 2021 period but then when she was not able to have care again in September 2021, again because of the COVID-19 border-related issues, the CSA then went back and took into account her missed care in July 2021, when she understood that had already been dealt with.

19.Ms Tutton told the Tribunal that when she contacted the CSA when Ms Harbison was not able to have care in September 2021, she was also told about the one-off situation and that would have stood had it only been that one period of time during which Ms Harbison had not had care. However, because the September holidays care also did not occur, the July 2021 period of no care was no longer a one-off event and rather was the commencement of a change to the pattern of care.

20.The Tribunal acknowledges Ms Harbison’s concerns in relation to the differing information she has received from the CSA from time to time. However, as discussed with the parties at hearing, the Tribunal’s role on review does not encapsulate any jurisdiction in relation to the CSA’s conduct or otherwise. Rather, on review the Tribunal is reviewing the matter afresh to determine, based on the law and the facts, what the recorded percentages of care for the children should be. Further, application of the legislation does change with changing circumstances, as has occurred in relation to this matter.

21.The Tribunal discussed with the parties that if a change of care is notified, the law requires that the CSA initially consider whether a different decision as to the percentages of care recorded needs to be made. A change in the pattern of care of the children is required to be notified within 28 days and if a change is notified more than 28 days after a change in the pattern occurs, it can impact upon the date from which any changed care percentage determinations apply.

1. The Tribunal noted that the decision under review before the Tribunal was one made by the CSA, on 8 October 2021, following notification of a change of care by Ms Tutton on 8 September 2021, to record the care of the children as 100% to Ms Tutton and 0% to Ms Harbison from 3 July 2021. The Tribunal noted that although it was accepted by the CSA that care had changed on 3 July 2021, because the notification by Ms Tutton on 8 September 2021 was more than 28 days after 3 July 2021, the 100% percentage of care determination for Ms Tutton only takes effect from the date of notification by Ms Tutton, that is 8 September 2021. However, the changed decreased care percentage for the person with the decreased care, that is 0% for Ms Harbison, takes effect from the date of the change of care, that is 3 July 2021.

23.The Tribunal observes that although the missed care in 3 July 2021 was at that time a one-off event, by the time Ms Tutton contacted the CSA on 8 September 2021, it was more than a one-off event and the CSA was satisfied that the missed care in July 2021 was actually the start of a changed pattern of care to 100% to Ms Tutton and 0% to Ms Harbison, albeit that the reason for the changed care was for circumstances beyond the control of both Ms Harbison and Ms Tutton.

24.Ms Harbison clarified, and the Tribunal confirmed, that the date of effect for Ms Tutton’s increased care percentage of 100% was therefore determined by the CSA to only be from 8 September 2021, whereas the date of effect for her decreased care percentage of 0% was from 3 July 2021.

25.Ms Tutton told the Tribunal that she did not have any queries. She understands the concept of continuing notifications of changes in care as and when care changes.

26.  It is therefore not in dispute that, because of COVID-19 pandemic-related circumstances beyond the control of both parties, from 3 July 2021 Ms Harbison was not able to and did not have care of the children as she would normally do pursuant to the Court Orders in place. Whilst initially unknown as to how long that position might continue, by September 2021, the continuing position was that Ms Harbison was not able to exercise care for the next school holiday period following July 2021 such that a pattern of missed care was occurring, rather than just a one-off missed care event.

27.  Having had regard to all of the evidence, the Tribunal is satisfied that in relation to the change in care notified by Ms Tutton on 8 September 2021, there had been a change to the pattern of care of the children from 3 July 2021 with Ms Tutton having 100% care from 3 July 2021, albeit for reasons outside both parties’ control.

28. As regards revocation of the existing percentage of care determinations and the date of effect of the new percentage of care determinations, pursuant to subsection 54F(3) of the Act, because Ms Tutton notified the change of care more than 28 days after it occurred, the revocation of the existing percentage of care determination of 17% to Ms Harbison and determination of a new percentage of care for her of 0%, takes effect from 3 July 2021, the date of changed care, and the revocation of the existing percentage of care determination of 83% to Ms Tutton and determination of a new percentage of care for her of 100% takes effect from 8 September 2021, the date of notification.

29.  As this decision is the same as that of the CSA, it follows that the decision under review will be affirmed.

OTHER MATTERS

1. Ms Harbison also raised with the Tribunal whether anything would be addressed in relation to the CSA advising that the CSA in Western Australian had not been applying the correct legislation (as referred to by Ms Harbison at page A10 of the written submissions she has provided to the Tribunal). Ms Harbison said she believes that the CSA has made incorrect decisions using wrong legislation based upon what she has been told. As discussed with Ms Harbison at the hearing, the Tribunal is reviewing the matter afresh and will make its own decision according to the relevant law and facts. The Tribunal does not, however, address the CSA’s conduct or whether or not it applied the correct legislation in reaching its decisions. The Tribunal observes that Ms Harbison’s submissions reference her instigating a complaint about the various actions of the CSA in relation to this matter and it is a matter for Ms Harbison whether she follows up that separate complaint procedure separate to the Tribunal proceedings.

31.  The Tribunal also observes that Ms Harbison has raised a number of issues in her written submissions in relation to the impact of the care percentage changes upon child support owing by her and the child support calculations. These issues are not before for the Tribunal for review.

32.  As discussed at the hearing, the legislative scheme deals with any subsequent change of care, including for example a change back to the Court Ordered care, by requiring further notification to be made to the CSA.

DECISION

The decision under review is affirmed.