Knapp and Trenholm (Child support)

[2022] AATA 4002

Knapp and Trenholm (Child support) [2022] AATA 4002 (18 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024172

APPLICANT:  Mr Knapp

OTHER PARTIES:  Child Support Registrar

Ms Trenholm

TRIBUNAL:Member J Prentice

DECISION DATE:  18 October 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. As relevant to this application, Mr Knapp and Ms Trenholm are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] (born February 2010) (the child). The application concerns a single decision of the CSA about the recorded care for [Child 1] used in calculation of the child support liability in respect of the child.

2. From 27 June 2011 the pre-existing percentages of care applying in the child support case for [Child 1] were 28% to Mr Knapp and 72% to Ms Trenholm.

3. On 18 February 2022, Ms Trenholm contacted the CSA and advised a change to the care position of [Child 1] to 100% care to her. She initially advised that the change in care occurred from 1 January 2022[1] but subsequently advised, later on the same day, 18 February 2022, that it had occurred from 11 July 2021.[2]

   [1] See page 33 of Exhibit 1.

   [2] See page 34 of Exhibit 1.

4. On 20 April 2022, the CSA decided to refuse to change the percentage of care determinations in relation to Ms Trenholm’s 18 February 2022 notification such that the percentage of care determinations applying for [Child 1] remained at 28% to Mr Knapp and 78% to Ms Trenholm.[3]

   [3] The Tribunal notes that the 1 June 2022 objection decision refers to the CSA decision of 20 April 2022 decision being to accept the change in care. However, letters to parties on 20 April 2022 (pages 66 and 67 of Exhibit 1), and the CSA’s records show that the original decision was to refuse to accept the change in care notified by Ms Trenholm.

5. On 21 April 2022, Ms Trenholm objected to this decision stating that she had actually had 100% care of [Child 1] since 16 July 2021. The Tribunal notes that the CSA’s records show that on 6 December 2021, Ms Trenholm also notified a change of care of [Child 1] from 13 April 2021. The CSA also rejected this change in care. However, the 21 April 2022 objection by Ms Trenholm was only in relation to the 20 April 2022 decision to refuse to reflect the care for [Child 1] as 100% to Ms Trenholm and 0% to Mr Knapp from 1 January 2022 (see page 70 of Exhibit 1).

6. On 1 June 2022, a CSA objections officer allowed the objection and determined that the percentage of care determinations should be recorded from 16 July 2021.  Notably, as Ms Trenholm notified the change of care on 18 February 2022, more than 28 days after the change of care was found to have occurred on 16 July 2021, the recorded increased percentage of care from 72% to 100% to Ms Trenholm applied from 18 February 2022 (the date of notification). However, the decreased percentage of care from 28% to 0% to Mr Knapp applied from 16 July 2021 (the date of the care change).

7. On 28 June 2022, Mr Knapp lodged an application with the Tribunal seeking an independent review of the CSA’s decision, stating (unedited):

   I am claiming the decision to grant back pay all the way to 16 July 2021 is incorrect due to the other parent didn’t file for a care change until February 2022.
   She stopped me seeing my son [Child 1] in July 2021 firstly due to the statewide COVID lockdown.
   After this more reasons were given so mediation was initiated to which she had agreed to let me see [Child 1] from Friday 10^th of September 2021 which did not happen due to [Ms Trenholm] ([Child 1’s] mother) going against what she had agreed to in mediation.
   I then obtained legal counsel to sort the issues which also gained to change as the lawyers went back and forth with no agreement on me seeing [Child 1].
   I don’t believe she should be entitled to back pay so far back when she was withholding visitation after many attempts by myself to continue as we had been for more than 10 years.
   This had all only changed after her current partner physically assaulted me at an arranged pickup [in] April 2021.

   Since that date [Ms Trenholm] has used many illegitimate excuses to stop me seeing [Child 1] and has used this to unfairly gain more money through child support and also stating through SMS “go get another pay rise, so you cannot for the kid I’m about to pop out to”.

1. The hearing of the application was held on Wednesday, 14 September 2022.  Mr Knapp and Ms Trenholm both participated in the hearing by conference telephone and gave evidence on affirmation.  The Child Support Registrar did not participate in the hearing.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Knapp and Ms Trenholm and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 167) and documents provided by Mr Knapp prior to hearing (marked Exhibit A, pages A1 to A5) which have also been taken into account. Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Mr Knapp and Ms Trenholm which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

1. The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988. Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

3. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there a pattern of care or no pattern of care for a child during a care period.

4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

1. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

2. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or 50 of the Act.

3. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

4. However, in certain circumstances, pursuant to section 51 parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, that is an interim care determination may apply.

ISSUES

1. It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Mr Knapp and Ms Trenholm to be revoked? And, if so,

(b)What are the new percentage of care determinations for Mr Knapp and Ms Trenholm? And,

(c)What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

1. Relevant documentation and evidence provided to the CSA included as follows:

(a)On 18 February 2022 – Ms Trenholm advised the CSA that the last time [Child 1] stayed with Mr Knapp was on 11 July 2021 and he has not had any care since that date.  Ms Trenholm advised that they were going through lawyers regarding care.  Prior to July 2021 Ms Trenholm advised that the pattern of care had been that Mr Knapp would have [Child 1] for two weekends in a row each month (i.e. 4 nights per month).  Ms Trenholm added that Mr Knapp had not had [Child 1] for any extra time during school holidays for the last couple of years.

(b)Ms Trenholm provided copies of:

·text message exchanges between Mr Knapp and herself in June 2021, August 2021, September 2021, October 2021, November 2021 and January 2022;

·a letter from Ms Trenholm’s lawyers dated 7 October 2021 offering to arrange for [Child 1] to spend the weekend with Mr Knapp (the following day) on the condition Mr Knapp “sign the enclosed undertaking and hand it back” to Ms Trenholm and that he participate in “mediation to be organised by [Agency 1]”;

·a letter from Ms Trenholm’s lawyers to Mr Knapp’s lawyers dated 15 December 2021 proposing visitation arrangements for [Child 1] with Mr Knapp’s parents “acting as the father’s agents”;

·a letter from Ms Trenholm’s lawyers to Mr Knapp’s lawyers dated 21 December 2021 proposing that [Child 1] spend some time at Christmas with Mr Knapp, auspiced by Mr Knapp’s parents.

1. Mr Knapp informed the Tribunal that he had lodged an application with the Tribunal as he considered it unreasonable that he should be required to back pay increased child support to July 2021, when Ms Trenholm had not notified a change in the care arrangements until February 2022.

2. Mr Knapp conceded that [Child 1] had been in Ms Trenholm’s 100% care since July 2021 however he advised the Tribunal that from July to mid-August Ms Trenholm had made the decision to keep [Child 1] at her home during the COVID lockdown.

3. Mr Knapp told the Tribunal that in August 2021 they had participated in mediation and his time with [Child 1] was supposed to recommence in September.  However, despite agreement during mediation, he claimed that Ms Trenholm had subsequently withheld [Child 1] from visiting him.

4. When that occurred, Mr Knapp said that he involved his lawyers.  However, he is currently trying to put together more money so he can afford their fees to pursue the issue.

5. Ms Trenholm confirmed that she has had [Child 1] in her 100% care since July 2021.  Ms Trenholm told the Tribunal that she was pregnant at the time of the COVID lockdown and she could not afford to take any chances with anyone contracting COVID, so she had kept all the children at home.

6. Ms Trenholm acknowledged that she had participated in mediation but would not proceed with the visitation arrangements they had made until there was a formal agreement in place.

7. Ms Trenholm noted that she had provided evidence of her situation to the CSA and it was included in the hearing papers.

8. The Tribunal notes that both parties agree that Ms Trenholm has had 100% care of [Child 1] since 16 July 2021.

9. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 16 July 2021.

10. The Tribunal is satisfied based on the evidence that the pattern of care of [Child 1] from 16 July 2021 was 0% to Mr Knapp and 100% to Ms Trenholm. 

Issue 1 – Are the pre-existing percentage of care determinations for Mr Knapp and Ms Trenholm to be revoked?

1. Section 54G of the Act provides if a person was to have at least regular care (that is, more than 14%) of a child during a care period under a recorded percentage of care determination, the child was being made available for care by the other person, the other person has notified the change of care within a period that is reasonable in the circumstances and the first person has no care or a pattern of care less than regular care, both recorded percentage of care determinations must be revoked. Based on the evidence the Tribunal is unable to be satisfied that [Child 1] was being made available to Mr Knapp for care. Section 54G therefore does not apply.

1. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. Neither parent’s care reduced to less than 14%. The Tribunal has found that section 54G does not apply. 0% care to Mr Knapp and 100% care to Ms Trenholm does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at the date of Ms Trenholm’s notification on 18 February 2022 of 28% to Mr Knapp and 72% to Ms Trenholm. A change in care to 0% to Mr Knapp and 100% to Ms Trenholm would change each parent’s cost percentage pursuant to the table in section 55C and section 51 does not apply. The existing percentages of care of 28% to Mr Knapp and 72% to Ms Trenholm are therefore required to be revoked pursuant to section 54F.

Issue 2 – What are the new percentage of care determinations for Mr Knapp and Ms Trenholm?

1. The Tribunal has found pre-existing percentages of care determinations must be revoked pursuant to section 54F and the Tribunal has found that Mr Knapp had no pattern of care for [Child 1] from the commencement of the care period (16 July 2021) and Ms Trenholm did have a pattern of care of [Child 1]. Percentage of care determinations are therefore required to be made pursuant to subsections 49(2) and 50(2). The Tribunal therefore determines that Mr Knapp’s new percentage of care for [Child 1] is 0% and Ms Trenholm’s new percentage of care for [Child 1] is 100%.

Issue 3 – What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to subparagraph 54F(3)(b), as the change in care was notified by Ms Trenholm on 18 February 2022, more than 28 days after the Tribunal has found the change occurred on 16 July 2021, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 72% recorded for Ms Trenholm takes effect the day before the notification of the change of care, that is on 17 February 2022 and revocation of the pre-existing percentage of care of 28% recorded for Mr Knapp takes effect the day before the change of care day, that is on 15 July 2021.

1. It is then necessary to determine from when new percentage of care determinations are to apply.

2. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore a new percentage of care determination of 100% to Ms Trenholm applies from 18 February 2022 and a new percentage of care determination of 0% for Mr Knapp applies from 16 July 2021. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. Mr Knapp queried how the care change can be backdated to July 2021 when Ms Trenholm notified the change much later. As canvassed in the Tribunal’s reasons, because Ms Trenholm notified the change in care more than 28 days after the change occurred, the legislation provides for differential date of application for the new percentage of care determinations. Although Ms Trenholm’s care changed to 100% from 16 July 2021, 100% is only utilised as Ms Trenholm’s care percentage in the child support case from the date she notified the change on 18 February 2022.  However, the legislation provides that the decreased percentage of care of 0% to Mr Knapp applies from the date of change of care, that is 16 July 2021. This means that the actual percentages of care used in the child support assessment are as follows:

Period	Mr Knapp’s % of care applying in the child support assessment	Ms Trenholm’s % of care applying in the child support assessment
Pre-16 July 2021	28%	72%
16 July 2021 to 17 February 2022	0%	72%
From 18 February 2022	0%	100%

1. This shows how the legislation operates because of the late notification such that there is a period of time when the percentages of care utilised for child support do not total 100% because of the late notification of the change in care.

1. Notably the child support liability calculated pursuant to these recorded percentages of care is as follows:

Period	Mr Knapp’s % of care applying in the child support assessment	Ms Trenholm’s % of care applying in the child support assessment	Child support assessed to be payable by Mr Knapp
Immediately prior to July 2021	28%	72%	$1,152.83 per month
16 July 2021 to 31 August 2021 1 September 2021 to 17 February 2022	0%	72%	$1,151.83 per month $1,453.00[4] per month
From 18 February 2022	0%	100%	$1,453.00 per month

[4] Reduced from $1,521.83 for this period because of a reduction in Mr Knapp’s taxable income utilised in the assessment.

1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

2. As can be seen, there is no difference in assessment of the child support liability between when 72% applies for Ms Trenholm and 100% care applies for Ms Trenholm. This is simply because of the mathematical operation of the child support formula. Nonetheless because of the late notification by Ms Trenholm, 100% care does not apply until 18 February 2022. However, the legislation requires the reduced care by Mr Knapp to apply from the date of the change in care. Whilst Mr Knapp queries why he is required to pay backpay when Ms Trenholm has made a late notification of the change in care, this is pursuant to the operation of the law. Further, the Tribunal observes that Mr Knapp as a party to the child support case also had an obligation to notify a change to the care position and did not do so. Ms Trenholm had no greater obligation than Mr Knapp, both being parties to the child support case, to notify the change in care when it occurred.

DECISION

The decision under review is affirmed.