Jephson and Dowson (Child support)

[2022] AATA 3961

Jephson and Dowson (Child support) [2022] AATA 3961 (6 October 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024336

APPLICANT:  Mr Jephson

OTHER PARTIES:  Ms Dowson

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  6 October 2022

DECISION:

The Tribunal affirms the decision under review.

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 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 application relates to a decision by Services Australia – Child Support Agency (the Agency) relating to the particulars of the assessment, being the care percentage maintained by the Agency for [the child].

2. Mr Jephson and Ms Dowson are the separated parents of [the child].  This matter relates to contact made by Ms Dowson with the Agency on 27 February 2022, advising of a change to the care arrangements for [the child].

3. Following this contact, on 24 May 2022, an employee of the Agency made a decision to revoke the existing determination of care and to make a new care determination that, from 12 November 2021, Ms Dowson had had 100% care of [the child] and Mr Jephson had had 0% care of [the child] and that the care change had been notified to the Agency on 27 February 2022.

4. On 2 June 2022, Mr Jephson objected to this decision.

5. On 15 July 2022, an objections officer of the Agency disallowed the objection to the decision made on 24 May 2022.

6. On 27 July 2022, Mr Jephson made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision. 

7. The Tribunal hearing was held on 6 October 2022, on which date the parties both spoke to the Tribunal by MS Teams audio and gave evidence on affirmation.   At the hearing, the Tribunal had before it documents provided by the Agency (folios 1 to 152), copies of which had been provided to the parties prior to the hearing.  The parties confirmed receipt of the documents with the Tribunal. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act), the Child Support (Registration and Collection) Act 1988, the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the Family Law Act 1975 (the Family Law Act).

2. Mr Jephson has lodged an application for a review of this decision on the basis that he submits an interim care determination should be made, such that the court ordered care arrangements for [the child] should continue to be reflected by the Agency. In making its decision to revoke the existing care determination, the Agency has found that an interim care determination is unable to be made due to the operation of subsection 53(2) of the Assessment Act and that actual care is to be reflected by the Agency. Given these matters, the Tribunal considers that the legal issues before it are:

   (i)Whether an interim care determination can be made under section 51 of the Assessment Act; and if not,

   (ii)Whether the existing determination of care is to be revoked and a new care determination is to be made.

Is an interim care determination able to be made in this matter?

1. The Tribunal notes that care for child support purposes is normally determined according to the actual care of a child provided by each parent. In some limited circumstances, where care is disputed, the Assessment Act recognises that it is appropriate to reflect the care that should be occurring in line with a written agreement, parenting plan or court order. In such circumstances, and providing the requirements set out in the Assessment Act are met, the care that should be occurring is reflected for a period of time in a child support assessment.

2. Subsection 51(1) of the Assessment Act provides that an interim care determination can be made in circumstances where: the Registrar is required under section 49 or 50 of the Assessment Act to determine a responsible person’s percentage of care of a child during a care period; a care arrangement applies in relation to the child; the Registrar is satisfied that the actual care of the child that the responsible person has had during a care period does not comply with the extent of the care they should have had under the care arrangement; and the person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.

3. However, the Note to subsection 51(1) states that this subsection does not apply in some circumstances and refers to section 53 of the Assessment Act.

4. Subsection 53(2) of the Assessment Act is of relevance in this case and provides that:

   (2) Section 51 also does not apply in relation to a responsible person in relation to whom a determination (a later determination) has been made under section 49 or 50 if:

   (a) an earlier determination determined the responsible person's percentage of care for a  child under that section for the purposes of subsections 51(3) and (4); and

   (b) the later determination is made after the end of the maximum interim period for the earlier determination; and

   (c) the later determination relates to the same care arrangement as the earlier determination.

5. The Agency documents indicate, and Mr Jephson did not dispute, that an earlier interim care determination had been made by the Agency for the period 19 October 2018 to 25 January 2019.  The Tribunal accepts that this relates to court ordered care made by a court order dated 13 July 2016 which provided for the parents to have equal shared care of [the child].

6. The Tribunal accepts that a further court order was made in the Federal Circuit and Family Court on 24 November 2021 and that this provided for notification of medical and health appointments, communication between the parties, management of medication, and arrangements around screen time and extracurricular activities.  The court order does not provide for care arrangements for [the child] and states that the order made on 13 July 2016 remains in force, aside from the specific arrangements made under the new order.  The Tribunal accepts that proceedings initiated by Ms Dowson relating to further court ordered care of [the child] were discontinued in May 2022.  The Tribunal finds that there has not been a subsequent court order made relating to the care of [the child] after the order dated 13 July 2016, based on the clear evidence given by Ms Dowson at the hearing about the history of orders between the parties and based on the documents before the Tribunal. 

7. Section 5 of the Assessment Act states that a “care arrangement” has the same meaning as in the Family Assistance Act. This term is defined at section 3 of the Family Assistance Act to include a parenting order within the meaning of section 64B of the Family Law Act. The Tribunal finds from the evidence before it that a court order was made on 13 July 2016 which related to the care of [the child]. The Tribunal finds that the subsequent order dated 24 November 2021 did not alter the care arrangements for [the child] and was not a further “care arrangement” relating to the care of [the child].

8. The Tribunal finds that there has been an earlier determination made under section 51 of the Assessment Act by the Agency, that the later change to care arrangements occurred after the end of the previous interim care determination and that the later change to care arrangements relates to the same court ordered care for [the child]. In these circumstances, subsection 53(2) of the Assessment Act applies and section 51 does not apply. The consequence of this is that a further interim care determination is unable to be made in relation to the altered care arrangements for [the child].

Is the existing determination of care able to be revoked?

1. As an interim care determination is unable to be made in this matter, the Tribunal proceeded to consider whether the existing determination of care is to be revoked, arising from Ms Dowson’s contact with the Agency on 27 February 2022. The relevant provisions to be considered by the Tribunal are sections 54F, 54G and 54H of the Assessment Act. The Tribunal first considered section 54F. Subsection 54F(1) provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:

   (a)     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

   (b)     the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c) section 54G does not apply; and

(d)     subsection (2) applies in relation to the individual.

Note:         The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

1. The Tribunal is satisfied that paragraph 54F(1)(a) is met on the basis that the Agency was notified by Ms Dowson on 27 February 2022 that the care of [the child] that was taking place did not correspond with the existing percentages of care of [the child], which at that time reflected each of the parties as providing 50% care of [the child] from 3 May 2019 onwards.

2. The Tribunal is also satisfied that paragraph 54F(1)(b) is met, on the basis that the parties agree that [the child] has not been in Mr Jephson’s care since November 2021. This change to the care percentage would change the cost percentage from 50% each to 100% to Ms Dowson and 0% to Mr Jephson (see: section 55C of the Assessment Act).

3. The Tribunal must next consider whether section 54G applies. The Tribunal considers it does not on the basis that it does not consider that notification of the care change occurred within a reasonable period, having regard to the change of care in November 2021 and notification of the change of care in late February 2022. Paragraph 54F(1)(c) is met.

4. As to whether subsection 54F(2) applies, the Tribunal finds that it does not on the basis that section 51 did not apply for the reasons set out above. Paragraph 54F(1)(d) is therefore also met.

5. As all of the requirements set out in subsection 54F(1) are established in this case, the Tribunal must revoke the existing determination of care and make another determination under section 49 or 50 to replace the revoked determination. The Tribunal finds that a new determination of care is able to be made under section 50 of the Assessment Act in respect of Ms Dowson, that she has had 100% care of [the child] from 12 November 2021 and that a new determination of care is able to be made under section 49 of the Assessment Act in respect of Mr Jephson, that he has had 0% care of [the child] from 12 November 2021.

6. As notification of the care arrangements did not occur within 28 days of the change to care arrangements, subsection 54F(3) of the Assessment Act provides that the existing determination of care with respect to Mr Jephson is revoked from 11 November 2021, and from 12 November 2021 a new determination of care is made that Mr Jephson has had 0% care of [the child]. The existing determination of care with respect to Ms Dowson is revoked from 26 February 2022 and from 27 February 2022 a new determination of care is made that Ms Dowson has had 100% care of [the child]. As these are correctly reflected in the child support assessments issued to the parties on 24 May 2022 (folios 76 to 81), the Tribunal finds that the Agency’s decision is legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.