Keith and Edge (Child support)

[2024] AATA 784

Keith and Edge (Child support) [2024] AATA 784 (23 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC027268

APPLICANT:  Mr Keith

OTHER PARTIES:  Child Support Registrar

Ms Edge

TRIBUNAL:Member A Ryding

DECISION DATE:  23 February 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

a)    Mr Keith’s care percentage of 0% in respect of the children is revoked on 25 October 2021 and replaced with a new care percentage of 19% from 26 October 2021; and

b)    Ms Edge’s care percentage of 100% in respect of the children is revoked on 25 October 2021 and replaced with a new care percentage of 81% from 26 October 2021.

The Tribunal’s decision has effect from 5 October 2023, the date Mr Keith objected to the original decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review set aside and substituted

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 is an application to the Social Services and Child Support Division of the Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.

2. The applicant, Mr Keith, and one of the other parties to this application, Ms Edge, are the parents of three children:

• [Child 1] (born 12 March 2010)

• [Child 2] (born 25 February 2012) and

• [Child 3] (born 13 April 2015).

1. On 23 February 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Mr Keith and Ms Edge participated, Child Support did not participate and instead relied upon its documents.  Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 131, further documents provided by Child Support that were paginated and marked C1 to C85 after the hearing, and documents provided by the applicant, numbered A1 to A35[1] (together, the hearing papers). Mr Keith and Ms Edge each provided evidence on affirmation at the hearing.

   [1] The documents marked A10 to A35 were duplicates of the documents marked A1 to A9 and were disregarded for the purposes of the hearing.

2. The Tribunal has had regard to all of the documents provided to it and the evidence provided by Mr Keith and Ms Edge. Reference below is made only to the documents and evidence relevant to this decision.

1. Whilst it appears that Mr Keith and Ms Edge separated some years prior, a final parenting order was made by the Federal Circuit Court of Australia on 27 May 2020 (Parenting Order) in respect of the care arrangements for the three children (folio 16 to 25).  

2. The Parenting Order is not particularly clear in its wording, but relevantly provides that the children were to live with their mother. The times to be spent with their father would be by agreement and, failing agreement, Mr Keith was to have care of the children:

• During term time:

  oovernight every second Tuesday and

  ofor three nights over the weekend, for one weekend a month

• For one week each of the school holidays, including the long summer holidays (i.e., 28 days a year)

• For a night over Father’s Day

• For two nights the weekend preceding Christmas.

1. From the documents, the care percentage recorded and relied upon by Child Support was from 3 March 2020 to 30 September 2020, 21% to Mr Keith and 71% to Ms Edge in respect of each of the children.[2] From 1 October 2020 to 30 June 2021, it was 16% to Mr Keith and 84% to Ms Edge in respect of each of the children.[3]

   [2] Refer folio C80, C82 and C84.

   [3] Refer folio C81, C83 and C85.

2. From 10 June 2021 to 25 October 2021, Ms Edge took all three children on an extended holiday around Australia. On 1 July 2021, Ms Edge was determined by Child Support to have 100% care of the children,[4] with 0% care falling to Mr Keith.

   [4] Refer folio 101.

3. On 25 November 2021, Mr Keith contacted Child Support stating that care should “‘revert” to 16% to Mr Keith (and therefore 84% to Ms Edge) in accordance with the Parenting Order, effective from 26 October 2021 (folio 28).

10.  In a call with Child Support (the date of which is unclear from the file note of the call) Ms Edge disagreed with that position (folio 29). The file note records that:

Ms Edge stated Mr Keith from DOE 26.10.2021 has had no regular care pattern for [Children 1-3]

Ms Edge stated Mr Keith's care patreen [sic] for all three children is sporadic

Ms Edge stated he has missed care events he has not made for and on average he has had [the children] for 2 nights per month

Ms Edge stating as a one off event Mr Keith has had additional care during this Xmas Holidays

Ms Edge stating she has a care calendar she has recorded Mr Keith's exact care pattern for chidlren [sic] [1-3] but unable to provide information on it as she was in midst of feeding the children breakfast

11.  Child Support invited both parties to provide documentary evidence of the pattern of care by letters dated 15 February 2022 addressed to each of them (folio 35 to 38). Nothing was provided in response by either party.

12.  Instead, on 22 February 2022, Mr Keith informed Child Support that he did not want to go ahead with the care change for reasons that were not shared with Child Support other than to say they were “personal and complicated” (folio 39). It was explained to Mr Keith that Child Support could reject the claim, which would give both parties the right to object.

13.  Accordingly, on 22 February 2022, the Child Support Officer formally rejected Mr Keith’s application for a change in care (folio 41).

14.  On 5 October 2023, Mr Keith lodged an objection in respect of that decision (folio 86). The grounds of that objection were stated to be:

There is a court order issued on 27 May 2020 which gives me 16% care. The court ordered care for all three children was followed until 10 June 2021 when Ms Edge took all three children away for four months. On 26 October 2021 the court ordered care recommenced.

15.  It was explained to Mr Keith by the Registrar at that time that as he had lodged his application outside the required timeframe, a “special circumstances” application would be required in order to apply the objection decision from an earlier date than 5 October 2023. The file note records that Mr Keith stated:

I am not applying for special circumstances, and I am aware that an allowed objection will only apply from the date the objection was lodged.

16.  On 23 October 2023, Ms Edge wrote to Child Support (folio 90), relevantly stating that:

We do have parenting orders in place which state Mr Keith is supposed to have the kids the first weekend of each month and every second Tuesday. However, this does not aways [sic] occur as Mr Keith is so often away. The children regularly go for weeks and weeks without seeing their father. As an example, this month he was interstate the first weekend of the month and away both Tuesdays he was scheduled to have them.

I am not sure what has prompted Mr Keiths objection, unless the percentage he claims is the cutoff point for him to receive FTB? If he does want to commit to following the parenting orders it would be fabulous for both the children and myself but every indication he has given indicate his work and travel come before any parenting responsibilities and he is therefore unable to do so.  

17.  On 4 December 2023, the Child Support Registrar provided its decision on review (the Objection Decision), disallowing Mr Keith’s objection to the decision made on 22 February 2022 to refuse to reflect the care for the children at 84% to Ms Edge and 16% to Mr Keith from 26 October 2021. Care remained at 100% with Ms Edge and 0% with Mr Keith.

18.  On 28 December 2023 Mr Keith applied to the Tribunal for review of the Objection Decision. His grounds of appeal were as follows:

There are court orders in place that show that I would have over 16% (59 nights care) per annum.  After my ex wife was consulted as to her reasons why she believed that my application was incorrect, the CSA gave me no opportunity to refute her claims.  Based on the 2023 calendar year I have 114 nights of care.  While there are changes made to the court orders (by mutual agreement between the parties), my nights with the children that I need to be changed are always swapped for another night.

ISSUES

19.  The assessment by Child Support and the provision of child support by Child Support are governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

20. Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for a day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which falls to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.

21.  It also involves a consideration of whether, within the “care period”, there is a pattern of “actual care” that the Registrar is satisfied the person responsible has had or is likely to have for the child in question, or no pattern of care.

22.  The issues for consideration in this application are:

• What is the appropriate “care period” and has there been a change in care?

• What are the new percentages of care and when do they apply?

• Should the existing percentages be revoked and if so from when?

• What is the date of effect of the care percentage determinations?

CONSIDERATION

Issue 1: What is the appropriate “care period” and has there been a change in care?

23.  A “care period”[5] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

[5] Defined in s 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).

24.  The Child Support Guide states that it will “generally be a 12-month period from the commencement of that level of care and the same level of care will be assumed to apply for subsequent 12-month periods, unless otherwise advised.”[6]  

[6] Noting that the Child Support Guide does not have legislative effect and is merely persuasive.

25.  In the present case, a new care period began on 26 October 2021, when Ms Edge and the children returned from their trip. There does not appear, on the material before the Tribunal, a reason to use a different period than 12 months in particular circumstances where the Parenting Order suggests a pattern of care within a year rather than, say, over a two or three year period.

26.  The Tribunal therefore finds that the care period is 26 October 2021 to 25 October 2022.

27.  On the evidence as to the pattern of care that resumed following the return of Ms Edge and the children, the Tribunal finds that there was on their return on 26 October 2021, a change in care.

28.  The Tribunal notes however that the care period is used for assessing whether there is a pattern of care and, if there is, what that pattern is. It does not set the period over which the care assessment applies.

Issue 2: What are the new percentages of care and when do they apply?

29. The term “care” is not defined in the Assessment Act or the Registration and Collection Act. However subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person (here, Mr Keith) during the care period.

30.  During the care period in this matter (again, 26 October 2021 to 25 October 2022), Mr Keith and Ms Edge’s three children were aged around 6, 9 and 11, and all lived with Ms Edge. Given that the Parenting Order provided for Mr Keith to have overnight care, the Tribunal finds that the number of nights of overnight care provided by Mr Keith are the most appropriate method of determining care.

31.  The evidence before the Tribunal regarding the actual patten of care within the care period (that is, whether Mr Keith and Ms Edge adhered to or deviated from the Parenting Order) was limited. There was no documentary evidence of the actual pattern of care within the care period. The only documentary evidence supplied by Mr Keith was a printout from his Outlook calendar for 2023.

32.  On 16 February 2024, the Tribunal Registry contacted both Mr Keith and Ms Edge by letter and stated:

The presiding Member invites you to provide any material they you wish the Tribunal to consider evidencing actual care provided from 1 October 2021 to date.

33.  Nothing was provided by either party in response. Ms Edge had only received on 22 February 2024 Mr Keith’s documents marked A1 to A9, notwithstanding that the Tribunal’s records indicate that they were posted to her on 9 February 2024, and told the Tribunal that she had not had a chance to review them.  Ms Edge explained at the hearing that she received post sporadically as she lived in a remote area.

34.  However, both Mr Keith and Ms Edge were able to give at least general evidence relevant to the pattern of care during the hearing as follows:

• Mr Keith said that he has the children the first weekend and every second Tuesday in each month and a week in the school holidays. He further stated that this pattern of care began with the court orders in May 2020. He stated, “If I if I ask to change it’s a swap. If Ms Edge asks me to have the kids it’s implied as being additional”.

• Ms Edge said, “most months he has a weekend and if he can’t do Tuesday night I do try to swap it around. I never said he didn't have them, Child Support said that if it was less than 14% they won't change it. It’s usually two Tuesdays, one weekend a month (Friday to Monday) and I do change things around. He never had school holidays for the first seven years, I had it put into the parenting orders and he does mostly have them”.

35.  The Tribunal notes that Ms Edge stated that this would be the maximum amount of time Mr Keith had the children, and that in her view there was “not much of a pattern” and that it was what suited him. She further gave evidence that she would not say that there was a pattern of care for the last few years but he would have them two, three or four days.

36.  Critically, Ms Edge also stated that she was happy for the percentage of care to be in accordance with the Parenting Order if it was only to take effect from 5 December 2023.  The Tribunal is grateful to Ms Edge for this concession.

37.  The Tribunal’s finding as to the pattern of care and care percentages on the available evidence is as follows.

38.  The Tribunal notes again that Ms Edge had not had the opportunity to review the Outlook calendar for 2023 (folio A1 to 9) that Mr Keith had provided. The Tribunal considered whether to provide Ms Edge further time to consider that calendar and provide any comments. However, in circumstances where that calendar was for 2023 and noting the concession from Ms Edge, the Tribunal determined that further evidence as regards the 2023 calendar was not necessary in order for the Tribunal to reach a decision.

39.  On the evidence before the Tribunal, and in particular the oral evidence provided by Mr Keith and Ms Edge during the hearing, the Tribunal finds that Mr Keith, during the care period, as a general rule had care of the children in accordance with the Parenting Order. That is, Mr Keith ordinarily had overnight care of the children during term time every second Tuesday, the first weekend in each month (comprising three nights’ care), and one week in each of the school holidays. The fact that this program may not be adhered to strictly and noting that any variations appear on the evidence before the Tribunal to be minor, does not detract from the conclusion that there has been a pattern of care in this regard.[7]

[7] The Child Support Guide notes (in 2.2.1) that minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care.

40.  Before considering the percentage of care this pattern of care gives to Mr Keith and to Ms Edge, the Tribunal notes that, for the purposes of calculating the “cost percentage” element of a child support assessment:

• Any percentage of care below 14% leads to a nil cost percentage

• Any percentage of care between 14% to less than 34% leads to a 24% cost percentage.

41.  Whilst it is the actual care that was provided that is relevant, as Mr Keith and Ms Edge’s evidence was that the Parenting Orders were largely complied with, and in the absence of a contemporaneous care diary or similar to determine which nights the children were in each parents’ care, the terms of the parenting order are therefore a useful tool for calculating actual nights of care over the care period.  

42.  The Parenting Order is unhelpfully worded and does not allow for a precise calculation of the number of nights the children are in Mr Keith’s care. Nor, without knowing exactly which dates in the care period Mr Keith had overnight care of the children, can the estimate be anything other than just that, an estimate.

43.  However, the Tribunal has sought to calculate the position as best as it is able, by reference to the actual care period, 26 October 2021 to 25 October 2022, and the Victorian government term times in 2021 and 2022, and assuming it is the first weekend in each month that Mr Keith has overnight care of the children for three nights. The Tribunal has not taken into account the “special days” e.g. Father’s Day. The Tribunal’s estimate of the care percentage that applying the pattern of care on the Parenting Order would give Mr Keith is as follows:

Month

Nights in Mr Keith’s care

Term 4 – 26 October 2021 to 17 December 2021

November

·     Alternate Tuesday nights 2, 16 and 30 November

·     Three night weekend – 5 to 7 November

6

December

·     Alternative Tuesday nights 14 December

·     Three night weekend – 3 to 5 December

4

Long summer holidays – 18 December 2021 to 27 January 2022

January – one week, say 7 to 13 January

7

Term 1 2022: 28 January to 8 April

February

·     Alternative Tuesday nights 1, 15 February

·     Three night weekend 4 to 6 February

5

March

·     Alternative Tuesday nights 1, 15, 29 March

·     Three night weekend 4 to 6 March

6

April

·     Alternative Tuesday nights 5 April

(assumes no three night weekends given school holidays)

1

First school holidays 2022 – 9 April to 25 April 2022

One week, say 15 to 21 April

7

Term 2 2022 – 26 April to 24 June 2022

May 2022

·     Alternative Tuesday nights 3,17, 31 May

·     Three night weekend 6 to 8 May

6

June 2022

·     Alternative Tuesday nights 14 June

·     Three night weekend 3 to 5 June

4

Second school holidays 2022 – 25 June to 10 July 2022

One week, say 1 to 7 July

7

Term 3 2022 – 11 July to 16 September 2022

July

·     Alternative Tuesday nights 2, 26 July

(assumes no three night weekends given school holidays)

2

August

·     Alternative Tuesday nights 9, 23 July

·     Three night weekend 5 to 7 August

5

September

·     Alternative Tuesday nights 6 September

·     Three night weekend 2 to 5 September

4

Third school holidays – 17 September to 2 October 2022

September one week, say 17 to 23 September

7

Total

71 nights

44. A total of 71 nights would give Mr Keith a care percentage of 19.45%. Section 54D of the Assessment Act requires that this be rounded down to 19%. This gives Ms Edge a care percentage of 81%.

Issue 3: Should the Registrar’s decision be revoked and a new care percentage determination applied?

45.  As there is a new care percentage, the Tribunal must consider whether to revoke the existing care percentage determination.[8] There are various alternative sections of the Assessment Act that address revocation but, in this case, the applicable section is section 54F. Section 54F applies where the pattern of care has changed, and the cost percentage has as a consequence also changed. If those two elements are satisfied and section 54G of the Assessment Act does not apply,[9] the Tribunal must revoke the earlier percentage of care determination.

[8] Section 50 of the Assessment Act.

[9] Section 54G of the Assessment Act only applies where there is less than regular care, which is not the case here.

46.  Mr Keith’s previous percentage of care was confirmed by the objections officer on 4 December 2023 to be 0% and Ms Edge’s to be 100%. This meant that Mr Keith had a nil cost percentage.

47.  A change in Mr Keith’s care percentage to 19% (and, as discussed above, to anything between 14% and less than 35%) increases his cost percentage to 24%.

48. The Tribunal has determined, pursuant to section 50 of the Act, that Mr Keith has 19% care and Ms Edge 81% care from 26 October 2021. The Tribunal therefore revokes the existing care percentages which are, Mr Keith nil and Ms Edge 100%, pursuant to section 54F of the Assessment Act.

49.  Paragraph 54F(3)(a) of the Act states that, where Child Support is notified within 28 days after the date care changed, the revocation takes effect the day before care changed.  Here, the Tribunal has found that care changed on 26 October 2021. The Tribunal finds that Mr Keith notified Child Support of the change on 25 November 2021, on the 28^th day after the change in care.[10] Thus, the Tribunal revokes the existing care percentages and replaces them with new care percentages of 81% to Ms Edge and 19% to Mr Keith, effective from 26 October 2021.

[10] Refer folio 28.

Issue 4: Late application to the Registrar for review

50.  Whilst there is no time limit to object to or seek a review of a childcare percentage decision, if an objection is lodged more than 28 days after notification of the decision and the objection succeeds (either completely or in part), the decision allowing the objection will take effect from the date on which the objection was lodged.[11]  The Child Support Registrar does however have a discretion to extend the date of effect where there are “special circumstances”.[12]

[11] Subsection 87AA(1) of the Registration and Collection Act.

[12] Subsection 87AA(2) of the Registration and Collection Act.

51.  Mr Keith did not seek a review of the decision of 22 February 2022 until 5 October 2023. The Tribunal therefore finds that Mr Keith’s objection was lodged more than 28 days after the decision. At the time Mr Keith sought a review, Child Support raised with him that the consequence of the delay in seeking review of the decision of 22 February 2022 was that, if his application was accepted, it would only take effect from the date of the objection, i.e. 5 October 2023, unless he could show special circumstances. Mr Keith stated that he was comfortable with it only applying from 5 October 2023.

52.  Ms Edge’s concession as regards the new care percentage applying from 5 December 2023 (refer paragraph ‎35 above) may have been on the basis that this was the date of the review decision. However, the legislation provides that, where there are no special circumstances, the applicable date is the date the objection was lodged,[13] which is 5 October 2023, and this cannot be overridden by agreement.

[13] Section 87AA of the Registration and Collection Act.

53.  This was raised by the Tribunal with Mr Keith during the hearing. Mr Keith stated that there were no special circumstances and that he was comfortable with any decision taking effect from 5 October 2023. Having considered the evidence, the Tribunal finds that there are no special circumstances.

54. The Tribunal therefore finds that its decision takes effect from 5 October 2023, pursuant to section 87AA of the Registration and Collection Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

a)    Mr Keith’s care percentage of 0% in respect of the children is revoked on 25 October 2021 and replaced with a new care percentage of 19% from 26 October 2021; and

b)    Ms Edge’s care percentage of 100% in respect of the children is revoked on 25 October 2021 and replaced with a new care percentage of 81% from 26 October 2021.

The Tribunal’s decision has effect from 5 October 2023, the date Mr Keith objected to the original decision.