JDTX and Child Support Registrar (Child support second review)

[2023] AATA 3609

JDTX and Child Support Registrar (Child support second review) [2023] AATA 3609 (8 November 2023)

Division:GENERAL DIVISION

File Number(s):      2022/7788

Re:JDTX

APPLICANT

AndChild Support Registrar

RESPONDENT

AndGJXJ

OTHER PARTY

DECISION

Tribunal:Member P. Ranson

Date of Decision:                   8 November 2023

Place:Brisbane

The Tribunal varies the decision under review and decides from 9 January 2022 to 30 January 2023, JDTX has 63% of the child’s care and GJXJ’s has 37% of the child’s care.

........................................................................

Member P. Ranson

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.

CATCHWORDS

CHILD SUPPORT - Percentage of care – does an extra week of school holidays change of the percentage of care - person’s cost percentage - court orders complied with - audit of care - hours of care is not appropriate - the care determination is revoked under s 50(1)(b) - a new care determination made under one of s 54F – care percentage varied.

LEGISLATION

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

CASES

Child Support Registrar v BKCZ [2023] FCA 1109

REASONS FOR DECISION

Member P. Ranson

8 November 2023

BACKGROUND

1. The Applicant JDTX (‘the father’) and the Other Party GJXJ (‘the mother’) are the separated parents of a child, who is now 15. The child is in the care of her father and spends time with her mother in accordance with care orders issued by the Federal Circuit Court of Australia on 24 August 2018. Those orders specify the child lives with her father and spends time with her mother four days per fortnight plus half the school holidays with usual arrangements for Father’s Day, Mother’s Day, birthdays, and Christmas.

2. The child finished primary school in 2020 and then started high school in 2021 and will finish high school at the end of 2026.The parents agree the percentages of care are determined by the days the child has overnight care with them during school terms and school holidays. The father believes there is a case for determining percentage of care based on hours. This does not apply in this case and is discussed below. The care orders have been applied to record the father as having 67% of care from 11 October 2018. That means the mother is recorded as having 33% care from that date.

3. The Queensland government delayed the start of term 1 in 2022 by two weeks. During that time the care of the child was shared between the parents. The mother says that means she had additional care of the child in 2022 and the mother’s care percentage should be increased to reflect that. The mother believes her care percentage increased to 35%, which is significant as it would entitle her to a small amount of Family Tax Benefit ('FTB’). Whereas the father normally receives all the FTB and if the mother’s care percentage increased to 35%, then the father would lose some of that to the mother.

4. Centrelink had formed the view the mother had 34% care in 2022 and the Tribunal on first review found they had 35% care. The mother provided a calendar of care for the 2022 year showing the actual care the mother says she had, and the father didn’t disagree. That calendar revealed the mother had 135 days of the care of the child that year, which equates to 37%.

5. The issues then are:

   (a)Does the decision in Child Support Registrar v BKCZ [2023] FCA 1109 (18-09-2023) have any bearing on this decision?

   (b)Did the extra week of school holidays in January 2022 amount to a change of care?

   (c)If so, should the existing care arrangement be revoked and replaced and from what date?

   PROCEDURAL MATTERS

6. The applicable law is the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988. The Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) points out: ‘[the] Child Support Guide which, while not binding, should generally be applied unless there are compelling reasons not to do so.’

7. The operation of the Assessment Act is such that percentages below 50% are rounded down and percentages above 50% are rounded up. For the mother to have 35% care she must have overnight care of the child for at least 128 nights in a year. If the mother had 127 or fewer nights that would result in a care percentage of 34% or less.

   Were care orders in place?

8. On 24 August 2018, the then Federal Circuit Court of Australia made orders for the care of the child, that provided both parents have equal shared responsibility for major long-term issues. As and from 5 October 2018, the orders provide the child lives with her father and spends time with her mother for four days per fortnight during school terms and half the school holidays, with arrangements for special days such as birthdays and Christmas.[1]

   [1] Centrelink record the start date as 11 October 2028 (Hearing book page 322).

9. The Tribunal finds there were care orders in place for the child from 5 October 2018.

   Were the care orders followed?

10. Both parents agree the orders are being followed and the agreed care percentages up to 2022 were 67% to the father and 33% to the mother.

    Application of ss 49 and 50 of the Assessment Act.

11. The Assessment Act provides the rules for determining a person’s percentage of care in sections 49 and 50. Section 49 applies where the responsible person has no pattern of care for a child and section 50 applies where the responsible person has a pattern of care. As there are care orders in place and they are being followed by the parents such that each has a regular pattern of care, section 49 does not apply, and section 50 does apply in this case.

12. Section 50(1)(b) applies where the determination of a responsible person’s percentage of care for a child made under section 49 or 50 is revoked or suspended and the responsible person has had, or is likely to have, a pattern of care for the child during the care period as is appropriate having regard to all the circumstances. In that scenario, the Registrar must determine the responsible person’s percentage of care for the child during the care period.[2]

    [2] Child Support (Assessment) Act 1989, s 50(2)

13. Importantly, the percentage so determined must correspond with the actual care of the child the responsible person has had, or is likely to have, during the care period,[3] which is born out in BKCZ as discussed below.

    [3] Child Support (Assessment) Act 1989, s 50(3).

    ISSUE 1: APPLICATION OF CHILD SUPPORT REGISTRAR V BKCZ [2023] FCA 1109

14. On 18 September 2023, the Federal Court of Australia handed down the decision in Child Support Registrar v BKCZ [2023] FCA 1109. Prior to BKCZ, there were two schools of thought about the application of sections 54F, 54G and 54H of the Act, that is, the so called ‘point in time’ approach and the ‘actual care’ approach.

15. The point in time approach relies on the pattern of care prior to the change and the likely pattern of care after the change. As its name suggests, the actual care approach relies on the actual care in the care period, that is, the period after the care changed.

16. BKCZ clarified this by ratifying the actual care approach, which it refers to as ‘audit of care’ and dismissing the point in time approach. Accordingly, this decision will apply the actual care approach.

    ISSUE 2: DID THE EXTRA TWO WEEKS OF SCHOOL HOLIDAYS IN JANUARY 2022 AMOUNT TO A CHANGE OF CARE?

17. On 9 January 2022, the Queensland Government announced additional weeks of school holidays such that term 1 started two weeks later than originally scheduled. There was some conjecture as between the parents as to whether the additional holiday was one week or two, however the media statement confirmed two additional weeks.[4] Term 1 should have started on 24 January 2022[5] and instead started on 7 February 2022 as confirmed by the mother in a telephone call to the Registrar on 13 January 2022.[6] That means there were 35 weeks of school and 17 weeks of holidays for the child in 2022.

    [4] 2022 school year to start on February 7 - Ministerial Media Statements.

    [5] Hearing Book page 307.

    [6] Hearing book page 132.

18. The mother contacted the Child Support Registrar on 13 January 2022 and advised the percentages of care had changed due to the extra two weeks of school holidays. It is uncontroversial the mother’s care percentage goes up when the weeks of school holidays goes up and vice versa when they go down. The mother believes she had 128 nights of care which means her care percentage went up to 35%. The father disagrees and says there was no change of care as an extra seven nights of care in 365 nights makes no difference.

19. The term and holiday weeks from 2022 to 2025 published by the child’s high school are as follows:[7]

    [7] At the time of this decision, the term dates for 2026 have not been published by the child’s school.

2022	2023	2024	2025
Term 1 starts	24-01-2022	23-01-2023	22-01-2024	28-01-2025
Term 4 ends	25-11-2022	24-11-2023	29-11-2024	28-11-2024
Term	37	37	38	37
Holidays	15	15	14	15

1. The additional two weeks added to the school holidays in January 2022 were shared equally between the parents. The mother had care of the child on 24 and 25 January and 1 to 6 February. The father had the other days. That is, the parents applied the care orders to the additional two weeks of school holidays, which the father confirmed in his oral evidence.

2. The parents were asked to provide calendars of care for the years ended 31 December 2021 and 2022 showing the actual care they each had of the child. The mother responded and the father was asked to comment on the mother’s calendar, which he did not do. The Tribunal accepts the calendars provided by the mother.

3. Those calendars of care reveal the mother had 125 nights of care in 2021, which the Tribunal calculates as 34% of care, and 135 nights of care in 2022, which the Tribunal calculates as 37% of care. The Tribunal finds there was a change of care arising from the additional two weeks of school holidays in 2022.

   ISSUE 3: SHOULD THE EXISTING CARE ARRANGEMENT BE REVOKED AND REPLACED AND FROM WHAT DATE?

4. The mother has care of the child for four days per fortnight plus half the school holidays, which means her care percentage increases when the school holidays increase. The child finished primary school at the end of term 4 in 2020 and became part of the high school system the next day.

5. The percentages of care for each parent had been determined as 67% to the father and 33% to the mother based on the term weeks while the child was at primary school. The high school the child has attended from 2021 regularly has 15 weeks of school holidays, which means there was a permanent change in the care percentages at that time, that is, the day after the end of term 4 in 2020.

6. The mother provided a copy of an e-mail from the primary school which states term 4 in 2020 ended on Monday 4 December 2020 and the child completed primary school.[8] In a phone call to Centrelink on 13 January 2022, the mother mentioned the additional school holidays for the child once she started attending high school.[9] The Tribunal finds there was a change of care on that date however as neither parent is agitating that point it is not relevant to this decision.

   [8] Hearing book page 277.

   [9] Hearing book page 132.

7. For this decision, the question is whether a change of care occurred in January 2022 when the school holidays were extended by two weeks. As discussed above, the parents agree the care orders were being followed including during the additional two weeks of holidays.

8. The actual care of the child as shown on the calendars provided by the mother reveal she had 125 days in 2021 and 135 in 2022. The Tribunal has already found that amounts to a change in care. Accordingly, the care determination in place from 2018 must be revoked under s 50(1)(b) and a new care determination made under one of ss 54F, 54G and 54H.

   Care other than in nights

9. The father prepared a spreadsheet showing what he says are the hours of care he provides to the child and asserts that is the correct measure of each parent’s care.[10]

   [10] Hearing book page 308 and continued on page 326.

10. The Guide sums up the correct interpretation of the legislation as follows:

    ‘Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.’[11]

    [11] Hearing book page 64.

11. Whilst drop off and pick up times for the care of the child may mean a ‘night’ of care is not always 24 hours of care, the starting point is nights of care. If this starting point produces an illogical result, then hours of care are the appropriate starting point. The Guide goes on to say:

    ‘Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

    If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.’[12]

    [12] Hearing book page 65.

12. As shown above, a small amount of additional daytime care not associated with an overnight stay does not make hours of care more appropriate than nights of care. That is the situation here. The father may have some additional hours of daytime care due to the times of drop off and pick up at school. When each parent has the child overnight, the child is in their care for most if not the whole of the 24-hour period.

13. The Tribunal finds hours of care is not appropriate to determine percentage of care in this case.

    Role of a person’s cost percentage

14. A person’s cost percentage is determined by reference to their care percentage for the child. For the purposes of s 54F of the Assessment Act this is ascertained in accordance with the table in s 55C of that Act as follows:[13]

    [13] Hearing book, page 340, at [35].

Item	Percentage of care	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. As shown above, moving the mother’s care percentage from 34% to 35% or more increases her cost percentage and her access to FTB. 37% care percentage means a cost percentage of 29% up from 24%.

   Application of s 54F, 54G and 54H of the Assessment Act.

2. The Registrar contends s 54G does not apply in this case because the mother had regular care of the child of between 14% and 35%.[14] The Tribunal agrees. Section 54H, which is discretionary, only applies if the care percentage in place does not correspond with the actual care and the new care percentage does not affect the cost percentage. Section 54H also does not apply here because the cost percentage changes. Therefore, ss 54G and 54H do not apply in this case.

   [14] Hearing book, page 340, at [35]

3. Section 54F only applies if the care percentage in place does not correspond with the actual care and changing the care percentage would change the cost percentage. As discussed below, section 54F applies in this case because the mother’s care percentage went from 34% to 37% and her cost percentage went from 24% to 29%.

   When did the care change and when was that notified?

4. Prior to the announcement of the deferral of commencement of term 1 to 7 February 2022 made on 9 January 2022, the parents were operating under a care arrangement of 67% to the father and 33% to the mother. That changed with the announcement on 9 January 2022, which makes that the date the care changed.

5. The mother notified the Registrar of the change on 13 January 2022.[15] That is within 28 days of the date of change, so the revocation of the existing care arrangement takes effect on the day before the change of care day.[16] That means the existing care arrangement of 33% to the mother is revoked on 8 January 2022 and the new care arrangement of 37% to her takes effect from 9 January 2022.

   [15] Hearing book page 132.

   [16] Child Support (Assessment) Act 1989 ss 5(1) (‘change of care day’), 54F(3)

6. Whilst the extra two weeks of school holidays in 2022 may seem like an aberration to the father, the mother is the paying parent and she provided extra care to the child that year which must be recognised. The Guide at paragraph 2.2.1 confirms the actual care is the determinative factor consistent with BKCZ. The Guide says: ‘A person’s percentage of care for a child will generally be determined according to the actual care that they have of the child.’[17]

   [17] Hearing book page 63.

7. The Tribunal is aware from the Respondent’s cross-examination of the father, and the comments in paragraph 59 of the SFIC, there is a new care arrangement in place from 31 January 2023. That means the care period is from 9 January 2022 to 30 January 2023.

8. The calendar of care the mother provided for 2021, which appears to be a typical year with 15 weeks of school holidays, shows 125 nights of care and a care percentage of 33% and cost percentage of 24%. Unless another aberration occurs in subsequent years, 67% / 33% appears to be the likely future pattern of care each parent can rely on without having to revert to the Registrar and the Tribunal to settle disputes.

   DECISION

9. The Tribunal varies the decision under review and decides from 9 January 2022 to 30 January 2023, the father has 63% of the child’s care and the mother has 37% of the child’s care.

I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member P. Ranson

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Associate

Dated: 8 November 2023

Date of hearing:

22 September 2023

Applicant 

In person

Other Party

By telephone

Solicitor for the Respondent:

Mr Chris West

Services Australia