Kerbach and Trustram (Child support)

[2022] AATA 3084

Kerbach and Trustram (Child support) [2022] AATA 3084 (22 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023534

APPLICANT:  Mr Kerbach

OTHER PARTIES:  Child Support Registrar

Ms Trustram

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  22 June 2022

DECISION:

The decision under review is 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 – 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. Ms Trustram (the mother) and Mr Kerbach (the father) are the parents of one child. This application concerns the child’s care from 30 July 2021.

2. The case was registered with Services Australia – Child Support (the Agency) from 7 December 2005. Most recently the care record reflected that the mother had 86% care and the father 14% care.

3. On 27 August 2021 the mother notified the Agency that there was a change to the child’s care arrangements, whereby she had 100% care and the father 0% care.

4. On 8 October 2021 the father notified the Agency that the care arrangements in place prior to 30 July 2021 had resumed from 24 September 2021.

5. On 8 October 2021 the Agency made two care determinations; both the mother and the father’s care notifications were accepted and the care record was amended accordingly. Therefore, the care record reflected that the mother had sole care of the child from 30 July to 23 September 2021 (the relevant period) and had 86% care and the father 14% care from 24 September 2021.

6. On 9 December 2021 the father objected to the first care decision. On 23 February 2022 the objection was disallowed. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 22 March 2022.

7. The matter was heard on 22 June 2022. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The tribunal also considered the documentation provided by Child Support (folios 1 to 190).

8. The tribunal reached its decision on 22 June 2022.

9. Following the hearing the father requested, by email, an extension of time in which to make submissions, explaining that he wished to raise that a document provided by the mother to the Agency, included in the hearing papers, was not admissible and went to natural justice. He stated that he could not elaborate further as he was attending a medical appointment with his partner and so he would provide a written submission by 23 June 2022.

10. On 24 June 2022 the father provided, by email, a written submission stating that a letter that the mother received from her legal representative (at folios 90 to 91) was not admissible as it includes the outcome of an agreement reached at mediation. The father submits that the mother was prohibited from disclosing material from the mediation and that the inclusion of the document in the papers before the tribunal gave rise to an apprehension of bias. He also raised other matters regarding the care arrangements between he and the mother, not relevant to the decision under review.

11. The tribunal carefully considered the father’s written submissions and determined that there was no basis on which to grant his request for a deferral. The Child Support Review Directions, given under section 18B of the Administrative Appeals Tribunal Act 1975 (the AAT Act), state at subsection 30(1) that unless the presiding member has given permission, submissions made after the hearing will not usually be taken into account. Further, the tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate (paragraph 33(1)(c) of the AAT Act). On this point, it is arguable that the correspondence from the mother’s solicitor falls within the exemption categories (based on the unsigned non-disclosure agreement provided by the father) at clause 3.2 of the confidentiality agreement. Nevertheless, the tribunal took the view that the document is not relevant to the matter under review, and so has no probative value and thus gave it no weight.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are:

   ·      Should the existing determination of percentages of care in respect of the child be revoked? If so, from when should they be revoked?

   ·      Should a new determination of percentages of care be attributed to the mother and father in respect of the child?

   ·      If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. Relevant to this matter, sections 49 and 50 of the Act require the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. That is also the task of this tribunal.

2. The tribunal finds that, pursuant to Family Court orders dated 23 April 2014, the father is to care for the child on alternate weekends from Friday to Sunday, weekend care on the Father’s Day weekend and certain dates, alternating biennially, at Easter and Christmas. This care arrangement is reflected in a care percentage of 86% care to the mother and 14% care to the father.

3. The tribunal accepts the uncontested evidence that the father contracted COVID-19 on 26 July 2021 and was required to quarantine in medical accommodation, pursuant to the NSW health directives in place at the time. Following a significant deterioration in his condition he was admitted to hospital. He was discharged to medical accommodation.  He then developed a blood clot and required emergency transportation to another hospital, ultimately being discharged on 20 August 2021. He was readmitted to hospital again on 3 September 2021 for a medical procedure associated with complications arising from COVID-19. Whilst recovering he attended hospital again 11 September 2021 and was discharged on the same day. He requires ongoing assessment and treatment by respiratory and dermatology specialist and ongoing consultations with a psychologist and physiotherapy. He is currently on sick leave from his employer. He has been diagnosed as suffering long COVID, with symptoms including brain fog.

4. Understandably, given the public health orders in place and the father’s diagnosis with COVID-19 and subsequent complications, he was unable to care for the child during the relevant period, consistent with his court ordered care of the child. His care of the child resumed on 24 September 2021 immediately after his convalescence ended. The tribunal finds accordingly.

5. The tribunal understands that the father objects to the care record reflecting the actual care of the child during the relevant period on the basis that he was and remains willing to undertake “make-up care”; that is, he is willing to take the child for additional nights so as to have the equivalent nights of care had he not been diagnosed and suffered complications from COVID-19. However, he states that the mother will not permit this.

6. The mother does not dispute the father’s testimony regarding his COVID-19 diagnosis, complications and the fact that “make-up” care has not taken place. Her position is that the objection decision is correct. She also submits that there is no onus on her to account for the increase in the father’s child support liability during the relevant period.

7. It is evident that the actual care of the child, at the date of notification of the care change, did not reflect the care record. In such circumstances, it would follow that the care record would be amended consistent with the actual care arrangements, being that the mother had 100% care and the father 0% care from 30 July 2021.

8. In this case, the father does not dispute that there was a care change. Rather, he is of the view that the mother’s care change notification should not have been accepted. His submits that there was a discretion available to the Registrar to refuse to accept the care change, as outlined in Chapter 2.2.2 of the Child Support Guide (the Guide):

   One-off block of 100% care

   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

   Example: Jason and Anita have one child, Robyn. Robyn usually lives with Jason 100% of the time. Jason needs to go to hospital for 3 weeks for an operation, and may require a further period of intensive rehabilitation where he will not be able to care for Robyn. Anita will look after Robyn during this time. The Registrar makes a one-off block of 100% care decision. When Robyn returns to Jason's care, Jason contacts Services Australia and the Registrar makes a new care decision based on the ongoing care of each parent.

9. The Guide contains policy guidelines produced by the Australian government and followed by the Agency. The tribunal is not bound by these guidelines. However, in order to promote consistency in decision-making, the tribunal will follow the guidelines unless there is a sound reason in a particular case not to, consistent with the approach outlined in Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179. The tribunal understands from this decision that the policy guides the exercise of a discretionary administrative power, with the balance to be struck between meeting the objective of public significance and the interests of the individual.

10. In this case the tribunal accepts that the policy is consistent with the objects of the Act and that there is no inconsistency between the legislative provisions and the policy.

11. The father contends that there are cogent reasons for the tribunal not to follow the above policy and made the following relevant submissions on this point. The first is that, under public health directives, he was required to isolate upon being diagnosed as COVID positive. He had no choice but to forgo care. Secondly, the mother was not required to notify the care change; this was a discretionary decision she made to notify the Agency of his inability to care for the child. Moreover, there was an increase in his child support liability of $884.33 during the relevant period. He contends that is simply “exorbitant”. He submits that the mother’s costs did not increase consistent with his increased liability; she does not work on weekends, so she did not lose any income in caring for the child. Her only increased cost was in the provision of food for the child. He submits that there was no way that the child’s food cost $884.33 in the eight days that he did not have care. He also testified that the policy should be used as a shield and not a sword or weapon; in this case it has had a punitive and oppressive effect. There has been a recent reduction in his workers’ compensation entitlements. And finally, he is incurring significant travel costs as a consequence of caring for his aged parents, as well as facilitating contact with the child,

12. The tribunal notes that the father raised other issues, such as the mother giving an undertaking that she would make the child available for additional days to “make-up” missed care. The tribunal is not persuaded that any of the documents tendered into evidence substantiate the father’s claim on this point. Nevertheless, the tribunal accepts that the father is of the view that another cogent reason not to amend the care record is on the basis that the mother should have made the child available to him, consistent with the days of care he missed due to his illness. The tribunal finds that the mother is under no legal obligation to provide the father with made-up care. Thus, the tribunal is not satisfied that the reasonableness of her decisio, is not a persuasive factor in determining that the policy should be departed from.  

13. The tribunal also accepts that the father was prevented, through no fault of his own, from caring for the child and but for the contagious nature of the COVID-19 virus and his ill health, not to mention the public health orders in place, he would have had care of the child consistent with the court orders in place. The tribunal is not satisfied, however, that the mother exercising her discretion to lodge a care change is a persuasive factor to justify the tribunal disregarding the policy.

14. As to the father’s submissions regarding the increase in his child support liability not being commensurate with the mother’s actual costs, the tribunal is not persuaded that this would give rise to the policy not being followed. It may well be the case that her costs were not commensurate with the increase in his liability. Equally, it is possible that, after taking into consideration the costs in providing the child with health care, clothing, activities, food and utilities the mother’s costs were equal to or in excess of the father’s liability. Putting aside the difficulty in accurately quantifying the increase to the mother’s costs during the relevant period, the formula assessment takes into account the parents’ respective care, the costs of the child and each parents’ respective financial circumstances, and from these factors determines what contribution a paying parent should make towards the care of the child. The formula has dictated that the father must contribute an additional $110.50 per day for each missed care day. In this context the tribunal is not persuaded that this is “exorbitant” as the father contends.

15. Moreover, whilst the tribunal accepts that the father may incur additional costs associated with his care of his parents and in facilitating contact with the child, these are more appropriately dealt with in a departure application, which is open to the father to lodge. The tribunal is not persuaded that these factors amount to a cogent reason to not follow the policy.

16. And finally, in assessing the totality of the father’s submissions on this point, the tribunal was not persuaded they together amount to a sound reason not to adopt the policy as outlined in the Guide. 

17. Section 54G of the Act states that a care determination must be revoked if the pattern of care is less than regular care, and the parent with reduced care notified the Registrar within a period that is reasonable in the circumstances. The tribunal considers that the mother’s notification made less than 28 days after the change in the care arrangements was reasonable in the circumstances. Thus, the tribunal revokes the mother’s care percentage of 86% and the father’s care percentage of 14% on 29 July 2021.The tribunal is satisfied that from 30 July 2021 the father had no pattern of care. As section 49 applies to the father, his percentage of care must be 0%, unless section 51 of the Act applies (subsection 49(3) of the Act). For section 51 to apply, a parent who has reduced care (as defined in section 54 of the Act) because a care arrangement is not being complied with, must be taking reasonable action to ensure that the care arrangement is complied with. The father raised that he had notified the mother that should she have any questions or issues whilst he was in isolation she should liaise with his legal representative. The tribunal is not persuaded that this is sufficient to give rise to a finding that the father took reasonable action to ensure that the care arrangement is complied with. As a matter of fact he did not take any reasonable action to ensure that the child returned to his care because he was unable to care for the child given his severe illness. The tribunal is satisfied there is no basis on which to find that section 51 of the Act applies.

18. The tribunal is satisfied that from 30 July 2021, pursuant to subsection 50(1) of the Act, that the mother had a pattern of care whereby she has sole care of the child. Her percentage of care is therefore 100%. Consistent with subsection 49(1) of the Act, the father’s percentage of care is 0% from 30 July 2021.

1. Thus, the decision under review is correct.

DECISION

The decision under review is affirmed.