Heron and Alden (Child support)

[2021] AATA 3855

Heron and Alden (Child support) [2021] AATA 3855 (6 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021938

APPLICANT:  Ms Heron

OTHER PARTIES:  Child Support Registrar

Mr Alden

TRIBUNAL:Presiding Member S Trotter,

Member E Kidston

DECISION DATE:  6 September 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 – care period – 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 application concerns an objection decision of Services Australia – Child Support Agency (CSA) made on 13 July 2021, which amended the original decision of 8 May 2021, about the recorded care in relation to a child support case registered with the CSA.

2. Ms Heron and Mr Alden are the parents of [Child 1] (born 2007), [Child 2] (born 2009) and [Child 3] (born 2010) (the children).

3. The CSA had recorded the level of care for the children as 100% for Ms Heron and 0% for Mr Alden from 6 June 2018.

4. On 26 December 2020, Mr Alden contacted the CSA and lodged a notification of change of care seeking a change to the recorded percentages of care. He advised that from 18 December 2020 he had been having, and intended to going forward, have care of the children for part of the school holidays pursuant to a court order.

5. On 8 May 2021, the CSA decided to reflect a change of care of the children as follows: [Child 1] and [Child 2 variant] as 86% to Ms Heron and 14% to Mr Alden from 18 December 2020, and [Child 3] as 89% to Ms Heron and 11% to Mr Alden from 18 December 2020.

6. On 10 May 2021, Ms Heron objected to that decision and, on 13 July 2021, the CSA amended the original decision to reflect the care of the children as 86% to Ms Heron and 14% to Mr Alden from 18 December 2020. This had the effect of changing the care percentage concerning [Child 3].

7. On 14 July 2021, Ms Heron made an application for an independent review of the decision by the Administrative Appeals Tribunal (the Tribunal). It is the objection decision made by CSA on 13 July 2021 that is under review.

8. Ms Heron’s application was heard by the Tribunal on 6 September 2021. Ms Heron (as the applicant) and Mr Alden (as the other party) participated in the hearing by conference telephone and each gave evidence on affirmation. As is customary, the Child Support Registrar did not participate in the hearing and did not attend.

9. In considering the application, the Tribunal took into account the oral evidence of Ms Heron and Mr Alden as well as the documentary material in evidence as follows:

   ·provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1);

   ·provided by Ms Heron on 2 August 2021 (marked Exhibit A1 to A6);

   ·provided by Mr Alden on 13 August 2021 (marked Exhibit B1 to B9).

RELEVANT LEGISLATION

10.  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). This legislation sets out the rules for making and revoking care determinations which are then used as part of the child support formula to assess child support payment rates.

11. Pursuant to Division 4 of Part 5 of the Act, the Registrar, that is, the CSA, may revoke and make new care determinations to take into account a change in care. In simple terms, existing care percentages generally apply until CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact cost percentage. The decision is made by CSA with reference to a point in time, and usually corresponds with the actual care based on what has happened up until the change in care is notified and what is the likely pattern of care thereafter.

1. It is not without regard that what is “projected” as the likely pattern of care may not actually eventuate and, when that is the case, a parent is to notify the CSA and a new care determination may be made from the date of a change.

2. It is important to note that not every deviation from an existing pattern of care constitutes a change in care, and depends upon the particular circumstances of the case, as is noted in the Child Support Guide (Guide) at Topic 2.2.2.

3. CSA policy, including the Guide, 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 such policy, however, where the policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.

ISSUES

15.  The application before the Tribunal is limited to a point in time consideration of the percentages of care determinations to be recorded for Ms Heron and Mr Alden at the time of Mr Alden’s notification to the CSA on 26 December 2020 of the change in care concerning the children from 18 December 2020.

16.  Therefore, the issue to be determined by the Tribunal in this matter is the likely pattern of care of the children as at 26 December 2020, and the date of effect of any changes to determinations of percentage of care, if relevant.

17.  The Tribunal notes that there are a number of background issues of importance to both Ms Heron and Mr Alden in evidence which are not relevant to the issue before the Tribunal and therefore are not mentioned in these Reasons.

CONSIDERATION

18.Exhibit 1 includes copies of CSA’s records of various contacts with Ms Heron and Mr Alden. From that evidence, it is not in dispute that Mr Alden had actual care of the children as follows:

[Child 1], [Child 2] and [Child 3]      18 December 2020 to 10 January 2020 (23 nights)

[Child 1] and [Child 2 variant]           3 April 2021 to 17 April 2021              (14 nights)

[Child 3] 3 April 2021 to 8 April 2021                (5 nights)

19.At the hearing Ms Heron spoke of the CSA’s conduct in this matter and her understanding of care percentages based on information she received from the CSA. Ms Heron said she understood it was necessary for a care giver to attain a minimum of 52 nights in a 12 month care period in order for the care percentage to change. Because of this, Ms Heron raised her objection to the level of care determined by the CSA in the calculation of the care percentage from 18 December 2020 on the basis that although Mr Alden had some actual care of the children at and from that date, he did not meet the minimum requirement of 52 nights in a 12‑month care period as the children refused to return to his care after 17 April 2021.

20.  Notably, the CSA’s records (Exhibit 1 – folios 87–88) show the CSA informed Ms Heron that it is not that Mr Alden had to have 52 nights care first, rather that it was expected he would be having 52 nights care in the 12-month period. The CSA also informed Ms Heron that it does not wait for a parent to have 365 days straight care before accepting 100% care, as had occurred.

1. The Tribunal acknowledges Ms Heron’s concerns regarding her understanding of when and how care percentages change based upon her interactions with the CSA. As discussed with Ms Heron at hearing, the Tribunal is required to consider the issue before it based on the facts and application of the law and it is not the role of the Tribunal to adjudicate on how the CSA has conducted itself or what advice or information the CSA may have provided. However, in stating that, the Tribunal does not disregard the issues that can arise where a person tries to understand how the law applies in child support care matters and the possible difficulties with understanding information that may be received in that regard.

22.As conveyed by the Tribunal to Ms Heron, a change in care percentage assessment is a point in time assessment, and the period of time considered as the care period is usually 12 months but may be more or less than 12 months depending upon the circumstances. The starting point of the care period usually corresponds with what has happened when the change in care is notified to the CSA and what is likely to happen thereafter. The legislation does not specify a minimum number of nights in a care period as a level of care which must be attained before care percentages are amended, instead it is the likely care pattern projected from the date of notification. If there is a subsequent change in the likely pattern of care (a care event) occurs at a future point in time, a subsequent and separate notification is required. Any reference by the CSA to 52 nights in a 12-month period is a guide for where there is a 12-month care period that goes towards cost percentages.

23.In this matter a further change in the likely pattern of care did subsequently occur on 18 April 2021 as notified by Ms Heron to the CSA on 10 May 2021. The Act requires the Tribunal to assess what is the likely care as at 26 December 2020 going forward for that period.

1. Ms Heron told the Tribunal that despite the court order made in 2017 for Mr Alden to have care of the children for part of the school holidays, it was not until 18 December 2020 that Mr Alden followed through with care of children and eventually only had care of them for 34 nights in the three years from when the court order came into effect. Ms Heron said that because of what had been happening previously, she was not certain he would provide care at that time, or going forward despite his intentions, but conceded that the intention as at 26 December 2020 was for Mr Alden to have care of the children in accordance with the court order.

25.The Tribunal notes that the court order was obtained in 2017 at a time when Ms Heron and Mr Alden resided in [Town 1]. It established a formal agreement between them concerning Mr Alden’s access to, and provision of care for, the children as Ms Heron and the children were then about to relocate from Queensland to Victoria. Mr Alden then relocated from Queensland to Western Australia. It was Mr Alden’s evidence that he intended to restart care in March 2020 and on some weekends, however, restrictions imposed by governing authorities on interstate travel due to the COVID-19 pandemic impacted his ability to do so. Notably, the CSA recorded Mr Alden’s explanation for the change of care notified on 26 December 2020 as resuming the parental arrangement following the easing of COVID-19 restrictions.

26.  Ultimately both Ms Heron’s and Mr Alden’s evidence at the hearing and as detailed in the Exhibits was that, at the point in time of Mr Alden’s notification, Mr Alden had overnight care of the children from 18 December 2020 and the intention was for regular ongoing care of the children in the school holidays in accordance with the court order.

1. The Tribunal accepts the past care information provided by Ms Heron as a relevant consideration, however notwithstanding that low care in the years leading up to the date of notification of change of care, the Tribunal is satisfied that at that time, there was an intention for Mr Alden to have care of the children in accordance with the court order dated [in] May 2018 and their agreement to resume his care as 14% over a 12-month period from 18 December 2020.

2. To the issue raised by Ms Heron that the intended and actual care of the children changed after 17 April 2021, as already canvassed, the Tribunal regards this as a new event notifiable to the CSA for a new care determination. The Tribunal notes from the CSA’s material in Exhibit 1 that this indeed occurred as the CSA was notified of the change in care on 10 May 2021 and a new care decision was thereafter made in which care of the children is 100% to Ms Heron and 0% to Mr Alden, with effect from 18 April 2021.

29.  The Tribunal notes that the CSA’s decision of 8 May 2021 concerning [Child 3] was set at different care percentages to that of [Child 1] and [Child 2 variant] based on the shorter period of actual care Mr Alden had of [Child 3] in the April 2021 school holidays. The Tribunal considers from the evidence that it was the parties’ intention for Mr Alden to have regular ongoing care of all three children at the same time in the school holidays, as detailed in the court order, from 18 December 2020, and so finds. The different actual care for [Child 3] in April 2021 to that of her siblings is considered a minor variation from the likely pattern of care which has no effect on the care percentage.

30.  The Tribunal finds the pattern of care at the time of Mr Alden’s notification to CSA on 26 December 2020 was likely to be half of the school holidays as per the court order, and in fact did continue from that date for part of the December/January 2020/21 school holidays as per the court order, as well as the April 2021 school holidays. As a result, the percentages of care determinations recorded from 18 December 2020 are in accordance with the likely care as at 26 December 2020, that is the care contemplated by the court order of 29 [May] 2018, that is 86% to Ms Heron and 14% to Mr Alden.

31.  Therefore, it follows that the decision under review is affirmed.

DECISION

The decision under review is affirmed.