Kasas and Fisher (Child support)

[2018] AATA 4982

Kasas and Fisher (Child support) [2018] AATA 4982 (26 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014975

APPLICANT:  Mr Kasas

OTHER PARTIES:  Child Support Registrar

Miss Fisher

TRIBUNAL:Member M Kennedy

DECISION DATE:  26 November 2018

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 cost percentage - exercised discretion to revoke the existing percentage of care determinations and make new determinations - decision under review affirmed

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.

REASONS FOR DECISION

1. Mr Kasas and Miss Fisher are the parents of [Child 1], [Child 2] and [Child 3], in respect of whom a child support assessment is in place.  Prior to 6 December 2017, and the events the subject of this review, the child support assessment was calculated on the basis of care percentage determinations for the children of 79% care to Miss Fisher and 21% care to Mr Kasas.

2. On 6 December 2018, Mr Kasas notified the Department of Human Services and the Child Support Registrar (the Registrar) to the effect that care was no longer taking place in accordance with that existing care determination. The Registrar subsequently decided to revoke the existing care determination and replace it with a care determination that the children were 100% in the care of Mr Kasas.

3. Miss Fisher objected to that decision on 12 January 2018.  On 7 May 2018 an objections officer allowed the appeal, deciding that the care change to 100% had only been temporary and that court orders made on 12 October 2017 provided for care corresponding with a care determination of 73% for Miss Fisher and 27% for Mr Kasas.

4. Mr Kasas applied to the Tribunal for review on 6 September 2018.

ISSUES

1. The statutory provisions relevant to the revocation and making of care determinations have recently been the subject of reform.  However, the new legislation applies only in circumstances where the ‘change of care day’ is after either 23 May 2018 or 1 July 2018 or if the change of care day that occurs before 1 July 2018 but the Registrar is notified, or otherwise becomes aware, of the change of care more than 26 weeks after 1 July 2018 (depending on the provision applied).  The change of care day in this case predates both those dates and so I proceed on the basis of the legislation before amendment.

2. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

3. Relevantly to the circumstances of this case, section 54H of the Act provides for discretionary revocation of a determination of a percentage of care if (among other requirements):

   ·       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 person’s existing percentage of care; and

   ·       If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

4. The first issue I must decide therefore is whether I am satisfied that as at 6 December 2017 (and the period thereafter) care of the children that was actually taking place did not correspond with the existing care determination.

5. If I am satisfied that is the case, I must then decide whether to revoke the existing care determination, and make a new care determination. I must then  decide what a new care determination should be and when it should apply.

CONSIDERATION

1. It is necessary to first mention that on 12 October 2017, the Federal Circuit Court made orders setting out the care arrangements for the children.  It is apparent that the primary decision maker on behalf of the Registrar made the primary decision unaware of the existence of those orders.

2. The orders commence with a notation to the effect that Miss Fisher will be overseas from 5 December 2017 to 11 January 2018, and the children will be in the care of the father during this period.  The orders then provide for equal shared parental responsibility for the children, but that the children will live with the mother.  The orders provide for the father to then (essentially) spend time with the children each alternate weekend and half the school holidays, with specific provision made for Christmas Day and Father’s Day.

3. When Mr Kasas made contact with the Department to notify of a care change, it was within the period mentioned by the notation.

4. File notes made by Departmental staff indicate that Mr Kasas informed that he had 100% care of the children because Miss Fisher had gone overseas ‘and he  is not sure when she will be back’.

5. Significantly, Mr Kasas was then asked (as is routine) whether there were any written care arrangements such as agreements, court orders or parenting plans.  The answer recorded to this question was that Mr Kasas had indicated there were no such arrangements.

6. It is apparent that Departmental staff were unable to make contact with Miss Fisher (who was [overseas] at the time), and the care change decision was ultimately made on the basis that Mr Kasas had 100% care of the children as he had advised.

7. Documentary evidence before the Tribunal indicates that Miss Fisher subsequently consulted solicitors on her return when the children were not returned to her care in accordance with the orders, and threatened contravention proceedings.  I accept her evidence that the children were returned to her care on 31 January 2018.

8. The objection officer considered that as it was now clear that the period between 5 December 2017 and 11 January 2018 was intended by the court orders to be a discrete and temporary period, and it was not appropriate to view that period as constituting a period where Mr Kasas had 100% care of the children.  Instead, the objection officer calculated  a percentage of care over the course of a 12 month period, on the basis of what was intended by the court orders.  The objection officer rejected the approach that two care determinations should be made, for the period between 5 December 2017 and 11 January 2018, and thereafter.

9. At the hearing, Mr Kasas explained that in order to provide care for the children between 5 December 2017 and 11 January 2018 (albeit he did not return the children to the mother’s care in apparent contravention of the order) he had to stop working.  In this regard, Mr Kasas explained that he needed access to social security and a reduction in child support.  I enquired how this was different to subsequent years where he will have half of the long school holidays for example.  Mr Kasas said that in 2017/2018 he did not have family support that he expected to have in future years.

10. I had difficulty following Mr Kasas’s explanation as to why he had informed the Department’s staff that he did not know when Miss Fisher would be resuming care of the children in circumstances that it was expressly provided for by the orders, and indeed why he had informed the Department’s staff that there were no orders in place when there were detailed orders setting out arrangements for the care of the children.  As best I understand it, Mr Kasas says that he failed to appreciate the nature of the orders and the relevance of the orders for child support and social security purposes.

11. While I understand Mr Kasas’s point that providing care for the children full-time during the school holidays would make it difficult for him to maintain his work, this dilemma does not in my view serve to re-characterise the pattern of care provided for by the orders of 12 October 2017.  Indeed, the notation in the orders in relation to the period 5 December 2017 to 11 January 2017 is not materially different to the ongoing arrangements for care of the children during future long school holidays in terms of time to be spent in Mr Kasas’s care.

12. The identification of a ‘pattern’ of care during a care period is obviously intended to take into account periods where the care of the children will fall to one parent or the other.  It is not intended that each change to the whereabouts of the children will generate a new care determination.  In this case, as mentioned above, on the basis of the pattern set out in the court order I do not view the period 5 December 2017 to 11 January 2017 as a marked departure from the pattern established by the orders generally such that it presents a basis for a different care determination to that otherwise established by the court orders.  As noted by the objection officer, it was an extended but temporary period where the children will be in Mr Kasas’s care.

13. To the extent that the Departmental decision makers were advised by Mr Kasas that there was any uncertainty as to when that period would end, I consider they were misled.  Unfortunately, it appears that Miss Fisher had previously advised Centrelink that she would be departing Australia temporarily (including when she would return) and been assured that it did not constitute a care change.  Miss Fisher, it appears had also provided a copy of the orders of 12 October 2017.  Unfortunately this information was not available to the initial decision maker for the Registrar. Perhaps the officer did not look for that information in light of what they had been told by Mr Kasas.  These circumstances combined to result in a factually incorrect determination being made.

14. The objection officer’s approach, fully informed by relevant evidence, is in my view correct.

15. Therefore, I find that on 6 December 2017, the Registrar was made aware that the care of the children that is actually taking place did not correspond with the person’s existing percentage of care, albeit not to the extent Mr Kasas had advised. 

16. In this situation, as the percentage of care would change from 79% to 73% if a new care determination was made on the basis of the court order, the revocation of the existing care percentage is discretionary because the ‘cost percentage’ (a component of the formula) would not change: section 55C of the Act. 

17. I would exercise the discretion to revoke the care percentage in the circumstances because the court order on which the new percentage determination would be based in plainly intended to regulate care arrangements for the children for a significant time to come.  It is desirable in these circumstances to settle the care determinations as accurately as possible.

18. I would therefore revoke the existing care determination.

19. Having revoked the existing care determination, I must (relevantly, in accordance with section 50 of the Act) make a new care determination.  In this regard, I agree with the calculations of the objection officer and would determine that Miss Fisher has 73% care of the children (and Mr Kasas consequently has 27%).

20. I would therefore determine a new care percentage of 73% for Miss Fisher.  I would do so on the basis of a care period of 12 months.

21. As to when the change should apply, I accept that the Registrar was first notified that the care was not taking place in accordance with the existing determination on 6 December 2018.  This date is more than 28 days from 12 October 2017, when the new care arrangement made by the court order commenced.    In these circumstances, the changes for the purposes of child support will take effect only from the date of notification, 6 December 2018: subsection 54H(2) of the Act   In this regard, the ‘change of care day’ is difficult to identify given the court orders largely formalise (with some adjustment) care arrangements previously in effect. However, little turns on this, and I will proceed on the basis that the change of care day was the day of the court order.

22. Likewise, as I will affirm the decision under review, nothing turns on the delay between the making of the objection decision and the application for review to the Tribunal.

DECISION

The decision under review is affirmed.