Kingaby and Rixon (Child support)

[2022] AATA 2373

Kingaby and Rixon (Child support) [2022] AATA 2373 (27 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022762

APPLICANT:  Ms Kingaby

OTHER PARTIES:  Child Support Registrar

Mr Rixon    

TRIBUNAL:  Member D Tucker

DECISION DATE:  27 May 2022

DECISION:

The CSA’s first care decision of 28 July 2021

The decision under review is set aside and substituted so that:

·      Ms Kingaby has a care percentage of 58% and Mr Rixon has a care percentage of 42% for [Child 1] from 21 June 2021; and

·      Ms Kingaby has a care percentage of 50% and Mr Rixon has a care percentage of 50% for [Child 2] from 28 June 2021.

The CSA’s second care decision of 11 August 2021

The decision under review is set aside and substituted so that Ms Kingaby has a care percentage of 0% and Mr Rixon has a care percentage of 100% for [Child 1] from 12 July 2021.

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 set aside and substituted

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

BACKGROUND

1. Ms Kingaby and Mr Rixon are the separated parents of [Child 1] and [Child 2]. There are no court orders or written agreements in place.

2. Prior to 29 June 2021, the Child Support Agency (CSA) determined that the respective percentages of care for both children were 100% and 0% to Ms Kingaby and Mr Rixon respectively.

3. On 28 July 2021 and 11 August 2021, in response to notifications from Mr Rixon, the CSA decided there had been changes in the pattern of care for both children and determined new percentages of care.

4. Ms Kingaby objected to the CSA’s decision of 28 July 2021 in relation to both children; and to the CSA’s decision of 11 August 2021 in relation to [Child 1]’s care.

5. On 15 November 2021 the CSA partly allowed both objections.

6. On 18 November 2021 Ms Kingaby applied to this Tribunal for further review. In her application, she refers to the CSA’s decision of 28 July 2021. At the Tribunal’s hearing, she indicated that she also expected the Tribunal to review the CSA’s decision of 11 August 2021 regarding [Child 1]’s care. The Tribunal decided to review both decisions.

7. On 29 March 2022 Ms Kingaby and Mr Rixon gave affirmed evidence at a telephone hearing. The Tribunal also considered relevant documents from the CSA.

LEGISLATION

1. The laws relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Tribunal also considered the Child Support Guide (the Guide) which contains government policy about the application of child support legislation.[1]

   [1] The Tribunal is not bound by such policy, but for the sake of consistency will apply it unless there is a cogent reason not to, in accordance with the rulings of the Federal Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

3. Usually, the CSA makes child support assessments by applying a formula in Part 5 of the Act. The formula includes the method for calculating the “percentage of care” and a “cost percentage” for each parent in relation to each child.

4. Sections 49 and 50 of the Act require the CSA, or this Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

5. Existing care percentages apply until the CSA becomes aware of a change in care which warrants the revocation of the existing care determination. Care percentages must be revoked and new care percentages determined if:

   · a person no longer has a care percentage of at least 14%, the child is made available to the other parent and the CSA is notified of the change within a reasonable time (section 54G of the Act), or

   · section 54G does not apply and the person’s actual care does not correspond with the percentage of care reflected to them, such that, if it was applied, it would change their cost percentage (section 54F of the Act).

6. The date that decisions to revoke and determine new care percentages take effect generally depends on when the CSA was notified of the change in care.

ISSUES

1. The issues for the Tribunal to determine, for both decisions, are:

   ·   Was there a change to the pattern of care for the children such that the existing care percentages should be revoked; and if so,

   ·   What new care percentages should apply and from when?

CONSIDERATION

The CSA’s first care decision

1. On 29 June 2021 Mr Rixon contacted the CSA to give notice that the care of the children had changed, in that the children had been staying at his home on a regular basis, but there was no established pattern. There was no direct communication between him and Ms Kingaby, and the children were free to come and go from his home as they pleased.

2. On 16 July 2021 Mr Rixon told the CSA that since 21 June 2021 the children had stayed with him for three nights per week on average and he expected this to continue.[2]

   [2] Pages 21–23 of the hearing papers

3. On 28 July 2021, after unsuccessfully trying to contact Ms Kingaby, the CSA determined that there had been a change in care from 21 June 2021, and the following care percentages applied for both children from that date:

   ·   57% to Ms Kingaby and 43% to Mr Rixon.

4. The same day, Ms Kingaby agreed there had been a change in care, but disputed the care percentages, telling the CSA that Mr Rixon had 52 nights per year (14%) care for both children.[3]

   [3] Page 44 of the hearing papers

5. On 11 August 2021 Ms Kingaby lodged her objection on the basis that Mr Rixon had care of the children for only two days per week on average (28%), rather than three.[4]

The CSA’s objection decision

[4] Page 85 in the hearing papers

1. The CSA calculated that from July 2021 to September 2021 Mr Rixon had 50 out of a possible 87 nights of care of [Child 1], equivalent to about 57%. The CSA extrapolated this percentage over a 12-month care period from 28 June 2021.

2. The CSA followed the same approach with [Child 2]’s care, finding that Mr Rixon’s actual care of him from July to September 2021 was 24 out of a possible 87 nights, equivalent to 27% care.

3. Accordingly, on 15 November 2021, the CSA partly allowed Ms Kingaby’s objection, determining that the following care percentages applied from 28 June 2021:

   ·   For [Child 1]: 43% to Ms Kingaby and 57% to Mr Rixon.

   ·   For [Child 2]: 73% to Ms Kingaby and 27% to Mr Rixon.

The CSA’s second care decision

1. On 28 July 2021 Mr Rixon notified the CSA that the pattern of care had changed again, in that [Child 1] had stayed with him exclusively since 10 July 2021. He also stated that [Child 2] had stayed with him for two nights per week, rather than three, as previously notified.

2. Ms Kingaby subsequently confirmed these changes in care.

3. On 28 July 2021 the CSA revoked the previous care percentages for [Child 2] and determined that from 10 July 2021 the care percentages for him were 14% and 86% to Ms Kingaby and Mr Rixon respectively. However, there has been no objection to this decision and therefore it is not under review.

4. On 11 August 2021 at 1:18 PM, the CSA revoked the previous care percentages for [Child 1] and determined that from 10 July 2021[5] the care percentages for her were:

   ·   0% to Ms Kingaby and 100% to Mr Rixon.

   [5] Page 87 of the hearing papers

5. On 11 August 2021 at 4:25 PM, Ms Kingaby lodged an objection to the CSA’s decision on the basis that while [Child 1] had stayed with Mr Rixon exclusively since 10 July 2021, she had continued to meet many of [Child 1]’s expenses including school fees, uniforms, medical, insurance, clothes, toiletries, vehicle costs and university application fees.

The CSA’s objection decision

1. On 15 November 2021 the CSA determined there had been a change in [Child 1]’s care from 12 July 2021.

2. The CSA used the actual care Mr Rixon provided from July to September 2021 to calculate an average percentage of care, and extrapolated this over 12 months, thereby determining the percentages of care for [Child 1] to be:

   ·   38% to Ms Kingaby and 62% to Mr Rixon.

Evidence provided by both parties

1. At the invitation of the CSA both parties provided evidence relevant to its review of its decisions of 28 July 2021 and 11 August 2021.

2. Ms Kingaby provided a letter from a third party stating that:

   ·   From March 2019 to 9 July 2021 [Child 1] had lived with Ms Kingaby full-time and “visited her father occasionally”.

   ·   From 10 July 2021 to 12 August 2021 [Child 1] stayed with Mr Rixon while stay-at-home orders were in force.

   ·   From 13 August 2021 [Child 1] stayed with Mr Rixon five nights per fortnight and the balance of time stayed with Ms Kingaby.

3. On 27 September 2021 Mr Rixon made a written submission, that can be relevantly summarised as follows:

   ·   From September 2020 both children stayed with him on average three nights per week, however he did not notify the CSA and continued to pay Ms Kingaby as if she had 100% care.

   ·   By 26 June 2021 [Child 1] was staying with him approximately six nights per fortnight.

   ·   From 10 July 2021 to 12 August 2021 [Child 1] stayed with him exclusively.

   ·   From 13 August 2021 [Child 1] reverted to staying with her mother for nine nights per fortnight, and with him for five nights per fortnight.

4. Mr Rixon also provided a letter from a third party, which relevantly states that:

   ·   From August 2020 to 10 July 2021 both children stayed with Mr Rixon for three nights per week on average.

   ·   From 10 July 2021 until 12 August 2021 [Child 1] stayed with Mr Rixon exclusively.

5. The same day Mr Rixon provided a calendar indicating the nights both children stayed at his home from 1 July 2021 to 22 September 2021.

The CSA’s first objection decision

Was there a change in the pattern of care?

1. The Tribunal notes that on 28 July 2021 Ms Kingaby also told the CSA that the pattern of care for both children was the same. This is at odds with her subsequent statements that [Child 1] had stayed with Mr Rixon exclusively since 10 July 2021.

2. Mr Rixon and Ms Kingaby provided letters from third parties, which make contradictory claims. The Tribunal places little weight upon these statements, as their objectivity cannot be relied upon. However, the Tribunal notes that the statement provided by Mr Rixon is at least consistent with his evidence, while the statement provided by Ms Kingaby appears to be at odds with her evidence, as it seems to suggest Mr Rixon had no care of either child prior to 10 July 2021.

3. The Tribunal finds it likely that Mr Rixon’s notification of 16 July 2021, and the calendar dates he provided to the CSA are reliable and that the actual dates [Child 1] and [Child 2] were in the care of Mr Rixon from 21 June 2021 were:

   For [Child 1]

   June 2021:       21, 22, 24, 28, 29
   July 2021:         2, 3, 6, 10, 12–31
   August 2021:     1–12

   For [Child 2]

   June 2021:       28, 29
   July 2021:        2, 3, 6, 9, 10, 15, 16, 23, 24, 30, 31
   August 2021:     6, 7.

4. The Tribunal finds that there was a change in care for [Child 1] from 21 June 2021, and for [Child 2] from 28 June 2021 and that Mr Rixon advised the CSA of these changes on 16 July 2021.

What new care percentages should apply and from when?

[Child 1]

1. The Tribunal notes that there was another change in [Child 1]’s care from 12 July 2021, which is the subject of the CSA’s second care decision. The Tribunal finds it appropriate to calculate Mr Rixon’s percentage of care prior to that date, based on his actual care.

2. According to the Tribunal’s calculations, between 21 June 2021 and 11 July 2021 Mr Rixon cared for [Child 1] for nine out of a possible 21 nights, equivalent to about 42% (rounded down to the nearest percentage pursuant to section 54D).

3. Accordingly, the Tribunal finds that the existing care percentages (of 100% to Ms Kingaby and 0% to Mr Rixon) for [Child 1] must be revoked pursuant to section 54F of the Act, from 20 June 2021, and from 21 June 2021 the following care percentages apply:

   ·   58% to Ms Kingaby and 42% to Mr Rixon.

   [Child 2]

4. According to Mr Rixon’s calendar, the first date [Child 2] stayed with him was 28 June 2021. Accordingly, the Tribunal finds that there was a change in care from that date.

5. The Tribunal notes that there was another change in [Child 2]’s care from 10 August 2021, which is the subject of another CSA determination, which is not under review. The Tribunal finds it appropriate to calculate Mr Rixon’s percentage of care prior to that date, based on his actual care.

6. According to the Tribunal’s calculations, between 28 June 2021 and 9 July 2021 Mr Rixon cared for [Child 2] for six out of a possible 12 nights, equivalent to about 50%.

7. Accordingly, the Tribunal finds that the existing care percentages (of 100% to Ms Kingaby and 0% to Mr Rixon) for [Child 2] must be revoked pursuant to section 54F of the Act from 27 June 2021 and from 28 June 2021 the following care percentages apply:

   ·   50% to Ms Kingaby and 50% to Mr Rixon.

The CSA’s second objection decision

Was there a change in the pattern of care?

1. It is not in dispute that [Child 1] stayed exclusively with Mr Rixon exclusively from 12 July 2021 to 12 August 2021. Accordingly, the Tribunal finds there was a change in care for [Child 1] from 12 July 2021, and that Mr Rixon advised CSA of this change on 28 July 2021.

What new care percentages should apply and from when?

1. Ms Kingaby told the CSA and the Tribunal that she objected to this decision because it failed to account for her disproportionate share of [Child 1]’s living costs.

2. The Tribunal notes that care percentages are just one element of the legislated formula that determines child support costs. Ms Kingaby is entitled to seek a change of assessment on the grounds that the application of this formula has not adequately accounted for her costs of care, but this is beyond the scope of the current review. As the Tribunal explained to the parties, its review is confined to care determinations – what percentages of care should apply – based on the actual care each parent has or is likely to provide.

3. The Tribunal finds that section 54G of Act is not applicable in this instance, as it is not satisfied [Child 1] was available to Ms Kingaby from 12 July 2021, given that [Child 1] was free to choose where she stayed and was prevented from returning to Ms Kingaby’s home by public health orders.

4. Accordingly, the Tribunal finds that the existing care percentages for [Child 1] must be revoked pursuant to section 54F of the Act from 11 July 2021 and from 12 July 2021 and the following care percentages apply:

   ·   0% to Ms Kingaby and 100% to Mr Rixon.

5. The Tribunal notes that from 13 August 2021 the CSA made new determinations to reflect another change in care from that date, as [Child 1] returned to live with Ms Kingaby for nine nights per fortnight.

DECISION

The CSA’s first care decision of 28 July 2021

The decision under review is set aside and substituted so that:

·   Ms Kingaby has a care percentage of 58% and Mr Rixon has a care percentage of 42% for [Child 1] from 21 June 2021; and

·   Ms Kingaby has a care percentage of 50% and Mr Rixon has a care percentage of 50% for [Child 2] from 28 June 2021.

The CSA’s second care decision of 11 August 2021

The decision under review is set aside and substituted so that Ms Kingaby has a care percentage of 0% and Mr Rixon has a care percentage of 100% for [Child 1] from 12 July 2021.