Homewood and Homewood (Child support)

[2021] AATA 4790

Homewood and Homewood (Child support) [2021] AATA 4790 (2 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022042

APPLICANT:  Mr Homewood

OTHER PARTIES:  Child Support Registrar

Ms Homewood

TRIBUNAL:Member J Prentice

DECISION DATE:  2 November 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 – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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. Mr Homewood and Ms Homewood are the parents of [Child 1] (born 2003) and [Child 2] (born 2007).  This review concerns a decision by the Child Support Agency (CSA) about the level of care recorded for child support purposes for [Child 2].

2. There has been a child support case registered with the CSA since 4 May 2020.  On 8 December 2020 the decision was made to reflect the care of [Child 2] as 85% to Mr Homewood and 15% to Ms Homewood (from 6 December 2020). 

3. On 14 April 2021 Mr Homewood reported a change in care for [Child 2].

4. On 18 June 2021 the CSA made the decision to reflect that Mr Homewood had 88% care of [Child 2] and Ms Homewood had 12% care from 9 April 2021 (notified on 14 April 2021).

5. On 25 June 2021, Ms Homewood lodged an objection to this decision on the grounds that she had only missed one care event which she could make up during the calendar year.

6. On 20 July 2021 the CSA allowed Ms Homewood’s objection to the care decision made on 18 June 2021 and reverted to the previous care determination of 85% for Mr Homewood and 15% to Ms Homewood.

7. On 4 August 2021 Mr Homewood sought further review by the Administrative Appeals Tribunal (the Tribunal).

8. At the hearing on 15 October 2021 the Tribunal heard sworn evidence from Mr Homewood and Ms Homewood who participated by conference telephone. In reaching a decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. 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.

   [1] Re Drake and 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. 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. 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 for each parent and each child of the assessment for a care period: section 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 in the care of more than one person at a time.

4. Once a child care percentage is determined, it can be changed by revoking the old percentage and using a new care percentage based on actual care, under either subsection 54F(1) or 54H(1) of the Act.

5. Mr Homewood informed the Tribunal that there is a court order in place which stipulates that [Child 2] spends up to 10 nights with Ms Homewood in each school holidays.  At Christmas, [Child 2] spent 24 nights with Ms Homewood.  However, in Term one school holidays [Child 2] spent no time with Ms Homewood and in the Term two school holidays [Child 2] spent no time with Ms Homewood.  Mr Homewood believes this demonstrates a change in care arrangements from 30 December 2020 which is the grounds for his objection.

6. The Tribunal notes that Ms Homewood resides and works in [Town 1] in far north Queensland and Mr Homewood resides in Brisbane.

7. Mr Homewood commented to the Tribunal that as children get older they have other things in their lives and [Child 2] has recently started a part time job and his social network is important to him.  In addition, Mr Homewood stated that as [Child 2’s] sister is no longer in [Town 1], he no longer wants to go up there.

8. Mr Homewood told the Tribunal that if [Child 2] does go to [Town 1], he only wants to go for five days and he had tried to make those arrangements for the Term one holidays.

9. Ms Homewood informed the Tribunal that she had made arrangements for [Child 2] to spend time with her in the Term one holidays, however with a flight to Cairns and then another flight to [Town 1], five days was not long enough to do anything worthwhile.

10. Ms Homewood advised the Tribunal that she was taking all reasonable action to participate in [Child 2’s] life and spend time with [Child 2].  She had offered extra / catch-up time in the next school holidays but her offer had not met with success. The Tribunal also notes and acknowledges that, as advised by Ms Homewood to the CSA on 24 April 2021, there was a lockdown in Brisbane at the time of the April school holidays, and that Ms Homewood considered the missed days in the April holidays an isolated event and had not otherwise, at that point in time, missed a care event since the court order. The Tribunal also had regard to Mr Homewood’s 1 May 2021 statement and text messages between Ms Homewood and [Child 2] and a statement from Mr Homewood’s partner confirming a short stay by Mr Homewood, his partner and [Child 2] at [Town 2] from 11 to 14 April 2021 before [Child 2] commenced a (part-time) job in Brisbane on 14 April 2021.

11. The Tribunal notes that travel in Queensland throughout 2021 had been impacted by the COVID-19 pandemic and that there was likely uncertainty about travel around this time including because of a lockdown in Brisbane at the beginning of April.

12. Ms Homewood told the Tribunal that as she had not had any success in getting [Child 2] to [Town 1], she was now looking at travelling to Brisbane herself – so she can spend time with him.

13. This application, and objection by Mr Homewood, is with respect to the pattern, or likely pattern of care for [Child 2] as from 9 April 2021.  This is a “point in time” assessment.  The Tribunal is satisfied that leading up to this time Ms Homewood had care of [Child 2] for 24 nights over the Christmas period as contemplated by the court order and attempted to spend time with [Child 2] during the next school holidays.

14. Although it did not transpire that Ms Homewood had care over the April school holidays, and circumstances were starting to change with, for example, [Child 2] starting a part-time job, the Tribunal is satisfied that at that point in time, notwithstanding the variation to the pattern of care for April 2021, it was a minor variation that did not constitute a change to the likely pattern of care at that time.

15. As a result, the Tribunal is satisfied that the percentages of care used in the assessment should not be changed in relation to the 14 April 2021 notification. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. The Tribunal notes that the legislative scheme deals with any subsequent changes of care by requiring further notification to be made, requiring a fresh decision by the CSA.  In this regard, the Tribunal observes that Mr Homewood spoke to the CSA on 19 July 2021, including in relation to the then further missed care by Ms Homewood of [Child 2] for the Term two school holidays. Mr Homewood may wish to follow up with the CSA whether that conversation and notification by Mr Homewood can be treated as a fresh notification at that time requiring a fresh decision.

DECISION

The decision under review is affirmed.