Jessop and Wilmut (Child support)

[2023] AATA 2933

Jessop and Wilmut (Child support) [2023] AATA 2933 (26 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025505

APPLICANT:  Ms Jessop

OTHER PARTIES:  Child Support Registrar

Mr Wilmut

TRIBUNAL:Member E Kidston

DECISION DATE:  26 July 2023

DECISION:

The decisions under review are 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 – decisions 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 Wilmut is the father of [Child 1] (born 2006) and [Child 2] (born 2009), the children. Ms Jessup is the non-biological carer of the children. This review application is about the percentages of care for the children that apply to Ms Jessup and Mr Wilmut in relation to the child support case registered with Services Australia – Child Support (Child Support).

2. As background to this matter, the care arrangements for the children had followed the framework specified in the Court Order made on 19 November 2021 and the pre-existing care percentages were recorded by Child Support pursuant to it as 75% to Ms Jessup and 25% to Mr Wilmut.

3. On 17 June 2022 Mr Wilmut notified Child Support that he would have care of the children for an interim period and the likely change of care ongoing would be 64% to him and 36% to Ms Jessup. Then on 8 July 2022 Mr Wilmut informed Child Support that he had sole care of the children from 8 June 2022.  Ms Jessup disagreed with the reported changes in care.

4. On 3 August 2022 Ms Jessup notified Child Support of a court order made on 1 August 2022 (Final Court Order) that specified care of the children as about 40% to her and 60% to Mr Wilmut.

5. On 9 September 2022, a delegate of Child Support decided that there was a change in care as notified by Mr Wilmut in which he had 100% care of the children from 8 June 2022; and a subsequent change in care on 1 August 2022 as notified by Ms Jessup on 3 August 2022 in which she had 38% care of the children and Mr Wilmut had 62% care.

6. As a subsequent change in care determination was made by Child Support concerning a care event on 1 August 2022, the practical effect of the original decision was limited to a care period from 8 June 2022 to 31 July 2022.

7. On 16 September 2022 Ms Jessup objected in writing to the decisions made by Child Support on 9 September 2022.  On 18 October 2022 an objections officer of Child Support disallowed both objections.

8. On 27 January 2023, albeit more than 28 days after the objection decision, Ms Jessup made an application to the Tribunal for an independent review of Child Support’s decisions. In her application to the Tribunal, Ms Jessup challenges the original decisions on the basis that Child Support did not have regard to the evidence concerning care as she and Mr Wilmut were in the process of having new parenting orders made and in addition, the care subsequent did not follow the Final Court Order.  In effect, Ms Jessup asserted that Child Support’s care determinations from 8 June 2022 to 31 July 2022 and also from 1 August 2022 were incorrect.

9. The application was heard by the Tribunal on 24 July 2023. Ms Jessup and Mr Wilmut 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.

10. In considering the application, the Tribunal took into account the oral evidence of Ms Jessup and Mr Wilmut as well as the documentary material in evidence as provided by Child Support in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 comprising of folios 1 to 369 (marked Exhibit 1) and supplementary documents comprising folios 1 to 19 (marked Exhibit 2). Prior to the hearing Ms Jessup submitted additional material for the Tribunal to accept as her documentary evidence.  Upon consideration, it was determined that the relevant information in the additional material was already in evidence in Exhibit 1.

RELEVANT LEGISLATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). This legislation sets out the rules for the Registrar, that is, Child Support, for making and revoking care percentage determinations which are then used as part of the child support formula to assess child support payment rates.

2. Once each party’s care is determined, if there has been a relevant change, it can be reflected in the child support assessment by revoking the old percentage under sections 54F, 54G or 54H of the Assessment Act, and replacing the revoked care percentage with the new care percentage. The application of new care percentages is determined by Child Support with a point in time reference, and usually corresponds with the actual care based on what has happened up until the change in care as notified and what is the likely pattern of care thereafter. Although the general rule is that a parent or carer’s recorded care will reflect their actual care, there are exceptions to that general rule including when there are court orders.

3. Departmental policy known as the Child Support Guide has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care and it also specifies there is a sensible tolerance for some minor variations to a pattern of care.[1] Although the Tribunal is not bound by departmental policy, it will apply it unless there is a cogent reason to do otherwise.[2]

   [1] The relevant policy appears at 2.2.1 and 2.2.2 of the Child Support Guide.

   [2] 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.

4. The Child Support Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents or carers, and in that event, consideration will be given to the information provided and obtained and whether there is some common expectation about future care. It further states that if the information and evidence provided by the parents or carers cannot be reconciled, the decision-maker will weigh the evidence and information provided by the parents or carers about past care to determine the pattern of care likely to occur from the relevant date.

ISSUES

1. There were a number of background circumstances of understandable importance to both Ms Jessup and Mr Wilmut which were raised in evidence which are not relevant to the issue before the Tribunal and therefore are not necessary to canvass in these Reasons.

2. The first issue to be determined by the Tribunal is limited to whether the existing care percentage determinations of 75% to Ms Jessup and 25% to Mr Wilmut as at 8 June 2022 are to be revoked and new care percentage determinations are to be made, and if so, the date of effect of the new care percentage determinations. 

3. The second issue is whether the subsequent care percentage determination that applied 38% to Ms Jessup and 62% to Mr Wilmut from 1 August 2022 in respect of the Final Court Order is the correct or preferred decision in the circumstances of this matter.

CONSIDERATION

Was there a change in care on 8 June 2022?

1. The first issue the Tribunal must address is whether a change in care event occurred on 8 June 2022 as notified by Mr Wilmut.

2. At the hearing Mr Wilmut submitted that the children came into his sole care from 8 June 2022 as determined unilaterally by Ms Jessup.  He referred to correspondence in evidence between him and Ms Jessup dated 7 June 2022 at folios 71 and 72 of Exhibit 1. Mr Wilmut further submitted that the children were in his care from 8 June 2022 and were mostly in his sole care as was expected and, in effect, does not disagree with Child Support’s determination of 100% care to him from 8 June 2022 to 31 July 2022. 

3. Ms Jessup informed the Tribunal that she and Mr Wilmut were at that time in the process of sorting out new parenting arrangements, first by mediation and then in the Courts.  Their circumstances were further complicated at that time by domestic violence protection orders having to be reinstated. Ms Jessup explained that in early June 2022 she was advised to not confront or attend care changeover of the children until the Court had sealed the final care orders.

4. At the hearing Ms Jessup conceded that her intention was for Mr Wilmut to have sole care as confirmed by correspondence in evidence at folios 71 and 72. However, despite the intention as expressed in her correspondence, Ms Jessup stated the children returned to her residence and she had some overnight care during the period in question.  Ms Jessup told the Tribunal she recorded care of the children in a diary and compiled that information into the care calendar shown in folio 277 of Exhibit 1. 

5. Exhibit 1 includes Child Support’s records of various contacts with Ms Jessup and Mr Wilmut as well as copies of relevant court orders, journal entries between them and, as noted above, Ms Jessup’s care calendar.

6. It is common ground that at the time of Mr Wilmut’s notification to Child Support of a change in care, Mr Wilmut and Ms Jessup were in the process of negotiating a change to the children’s living arrangements with Ms Jessup, reducing her care of them from 75% to about 40%. From the evidence in Exhibit 1, and from the oral evidence given at the hearing, the following is not in dispute and the Tribunal so finds:

   ·     prior to 8 June 2022 care had generally been following the court orders that were then in place as 75% to Ms Jessup and 25% to Mr Wilmut;

   ·     on 7 June 2022 Ms Jessup issued correspondence to Mr Wilmut informing him that he was to have sole care of the children until the Final Court Order was made;

   ·     the children came into Mr Wilmut’s care on 8 June 2022;

   ·     Consent Court Orders made on 24 June 2022 at clauses 7 and 9 provide for living arrangements to be as agreed between the parties but failing that, 5 nights per fortnight and half the school holidays with Ms Jessup;

   ·     Temporary protection orders were made on 27 November 2020 and 28 July 2022 noting the aggrieved as Ms Jessup;

   ·     Final Court Orders reflect the same living arrangements as specified in the Consent Court Orders made on 24 June 2022.

7. Despite the common evidence and basis for Mr Wilmut to have temporary sole care on and from 8 June 2022, they each told the Tribunal the children returned to Ms Jessup’s care after that date. On Mr Wilmut’s evidence, he stated the children were in Ms Jessup’s care for about 2 nights from 8 June to the end of July 2022; and on Ms Jessup’s differing evidence it was about 20 nights or 50% of the time in June and July 2022 (referring to the table at folio 277). Notwithstanding the stark difference of each parties’ recollection of actual care, at the time of Mr Wilmut’s notifications to Child Support in June 2022, the intended care arrangement was for Mr Wilmut to have sole care of children until the Final Court Order was made. In reaching this conclusion the Tribunal also had regard to the temporary protection order made on 28 July 2022 for Ms Jessup. However, turning to the provisions of the Assessment Act, in determining a percentage of care section 49 requires a finding of no pattern of care that must equal 0%, whereas section 50 requires a determination of a percentage that corresponds with the actual care of the children and the decision-maker is satisfied the parent or carer “has had, or is likely to have, during the care period”. Often by the time an application to the Tribunal for review is heard, the majority of the care period will be in the past and the evidence provided to the Tribunal of care that has occurred since the original decision by Child Support can prove or disprove the pattern of care. In determining actual care of the children in this matter, the Tribunal accepts the Our Family Wizard journal entries as contemporaneous records of actual care however, on Ms Jessup’s oral evidence there was some hesitation and queries regarding the accuracy of nights recorded in the care calendar for the June/July period. With that in mind, the Tribunal is satisfied Ms Jessup did have some overnight care of the children from 8 June 2022, however the care she did have was unplanned and essentially an unintended variation to the temporary care pattern that was then occurring until the Final Court Order was made, resulting in there being no pattern of care to Ms Jessup from 8 June 2022.

8. For those reasons, the Tribunal finds that a change in care occurred on 8 June 2022 and the pattern of care was for Mr Wilmut to have sole care of the children from that date. As noted above, although the Tribunal accepts Ms Jessup did have some care of the children from 8 June 2022 until the Final Court Order, the Tribunal finds she had no pattern of care in accordance with section 49 of the Assessment Act.

9. As the care did not correspond with the existing care percentages of 75% to Ms Jessup and 25% to Mr Wilmut as recorded by Child Support, a change in care percentage determination would result in a change to Mr Wilmut’s and Ms Jessup’s respective cost percentages. It follows that section 54F of the Assessment Act applied, and the Tribunal finds it was correct to revoke the existing care percentages.

Interim care

27. The date of effect provisions concerning revocation of care percentage determinations in the Assessment Act (including section 54F) were amended in 2018 to essentially create an incentive for parents and carers to notify of changes within a timely manner (within 28 days) and, is largely in their control.

1. Child Support was first notified of a change in care by Mr Wilmut on 17 June 2022, as this was within 28 days from the date change occurred on 8 June 2022, the revocation of the existing percentages of care of 75% to Ms Jessup and 25% to Mr Wilmut are revoked from 7 June 2022 (the day before the change in care occurs – pursuant to paragraph 54F(3)(b)) and replaced with a new care percentage determination of 0% to Ms Jessup and 100% to Mr Wilmut with effect from 8 June 2022 (the date of actual change).

2. As a general rule, a parent’s or carer’s new care percentage determination will reflect their actual care on and from the day it occurs. However, there are exceptions to that general rule, and the potentially relevant exception in this matter is in section 51 of the Assessment Act – when change in care is in contravention of a care arrangement (which includes a breached court order), the old care percentages continue for a limited period of time irrespective of actual care.

3. For section 51 to apply, it must be found that the parent or carer with reduced care takes action to have the breached care arrangement complied with. Put simply, an interim care determination can only be considered in this matter if Ms Jessup had sought reasonable action to reinstate care as per the existing court order before the deviation from the care pattern. Here, Ms Jessup and Mr Wilmut were renegotiating the care arrangement and although the then existing Court Order was not, in effect, being observed, Ms Jessup was not seeking to recover care of the children pursuant to it. Therefore paragraph 51(1)(d) is not satisfied and the Tribunal finds that an interim care determination in this matter cannot apply.

31. Having determined that an interim period does not apply in this matter, the Tribunal considered the application of the new care percentages as 100% and 0% from 8 June 2022 is correct in accordance with the relevant provisions of the Assessment Act.

Change in care – 1 August 2022

1. As already noted, a notification was made by Ms Jessup to Child Support on 3 August 2022 regarding the Final Court Order which resulted in new care percentage determinations (also made on 9 September 2022) as 62% to Mr Wilmut and 38% to Ms Jessup with effect from 1 August 2022 to follow the Final Court Order.

2. Mr Wilmut and Ms Jessup each testified at the hearing that they had expected care of the children to follow the framework set out in the Final Court Order and had encouraged the children to follow it from 1 August 2022.  They each accepted Child Support’s interpretation of the care framework under the Final Court Order as 62% and 38%. 

3. Ms Jessup told the Tribunal that although she notified Child Support of the Final Court Order with the expectation that it would be followed and encouraged the children to follow it, she suspected the children would not and time has proven the proposed care framework to be untenable as recorded in her care calendar at folio 277.

4. Mr Wilmut told the Tribunal that although he does not keep a record of care and cannot dispute Ms Jessup’s care calendar with any certainty, in his opinion the Final Court Order was not being complied with, beyond minor variations, when [Child 2] started staying mostly in his care and [Child 1] started staying mostly in Ms Jessup’s care, from unspecified dates in October 2022.

5. Relevantly, Ms Jessup’s and Mr Wilmut’s respective accounts of care from 1 August 2022 is not dissimilar and accords with the evidence of Ms Jessup’s contact with Child Support on 16 November 2022 to report a change in care concerning [Child 1] from 20 October 2022 resulting in a subsequent change of care.  That notification was supported by a third party statement at folio 259 that [Child 1] was in Ms Jessup’s sole care from 20 October 2022 and [Child 2] was generally following the Final Court Order.   

6. It is clear from the testimonies given at the hearing and evidence in Exhibit 1 that actual care deviated from the framework set under the Final Court Order at different times for each child.  Regard is had by the Tribunal to further changes in care determinations recorded by Child Support:

   ·     on 28 January 2023 regarding Ms Jessup’s sole care of [Child 1] from 20 October 2022 (see notices of decision at folios 337 and 339 of Exhibit 1); and

   ·     on 24 April 2023 regarding Mr Wilmut’s sole care of [Child 2] from 23 February 2023 (see notices of decision at folios 373 and 375 of Exhibit 2). 

7. However, in terms of the decision under review made on 9 September 2022 regarding Ms Jessup’s notification to Child Support on 3 August 2022 of the Final Court Order, in determining a care percentage, the Tribunal considered evidence provided of actual care that included Ms Jessup’s care calendar at folio 277. The care calendar recorded [Child 1] as being in Ms Jessup’s care for 28 nights out of 80 nights (1 August 2022 to 19 October 2022) resulting in 35% and, [Child 2] being in Ms Jessup’s care for 49 nights out of 153 nights (1 August 2022 to 31 December 2022) resulting in 32%. As noted above, reservations were made at the hearing in relation to the care calendar and the Tribunal considers the best evidence remains the contemporaneous records in Child Support’s evidence that care of the children generally followed the Final Court Order of 62% to Mr Wilmut and 38% to Ms Jessup, and so finds. 

8. Accordingly, the Tribunal is satisfied that from 1 August 2022 actual care generally followed the Final Court Order (with a tolerance for minor variations) and Child Support was notified when it was clear that care would no longer be following the Final Court Order, ultimately resulting in the decisions of 28 January 2023 and 24 April 2023.   The application of the new care percentages as 62% to Mr Wilmut and 38% to Ms Jessup from 1 August 2022 is correct.

9. As the Tribunal has reached the same conclusion as the objections officer, the decisions under review will be affirmed.

Other matters

1. In light of the Tribunal’s findings, it is not necessary to make a determination under section 95N of the Registration and Collection Act, however the Tribunal considered it relevant to note that in bringing this application, Ms Jessup did not apply to the Tribunal within 28 days of when she is deemed to have received the objection decision (in evidence noted as “read online” at folio 24 of Exhibit 1). Therefore, unless satisfied there are special circumstances that prevented an application being made within 28 days, any subsequent change to the care percentage determination upon review by the Tribunal can only take effect from the date Ms Jessup applied to the Tribunal (recorded as 27 January 2023), which may have no practical effect in light of the subsequent change in care determinations noted in paragraph 37.

2. Of course, should either Ms Jessup or Mr Wilmut disagree with the care percentages and/or dates of effect as determined under the subsequent decisions of 28 January 2023 for [Child 1] and 24 April 2023 for [Child 2], then it is open to either or both of them to contact Child Support regarding their respective options and review rights.  For the avoidance of doubt, those subsequent decisions are not under review in this application. 

3. The Tribunal also acknowledges that Ms Jessup raised concern that care may not have been correctly recorded since the start of 2022, however, there was no objection decision made in relation to the decision as to the care percentage determinations at that time and the Tribunal has no jurisdiction to consider earlier determinations.

DECISION

The decisions under review are affirmed.