Lampkin and Butters (Child support)
[2021] AATA 5252
•28 September 2021
Lampkin and Butters (Child support) [2021] AATA 5252 (28 September 2021)
DECISION AND REASONS FOR DECISION
DIVISION: Social Services & Child Support Division REVIEW NUMBERS: 2021/MC022051 and 2021/MC022070
APPLICANT: Ms Lampkin
OTHERPARTIES: Child Support Registrar Mr Butters
TRIBUNAL:Presiding Member D Tucker Member K Dordevic
DECISIONS DATE: 28 September 2021
DECISIONS:
The tribunal decided to set aside the decision under review and to substitute its decision that from 10 August 2018 the percentages of care for [Child 1] and [Child 2] are 74% to Ms Lampkin and 26% to Mr Butters.
The date of effect of this decision is 2 June 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 – date of effect provisions – 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 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 Lampkin and Mr Butters are separated parents who share the care of their two children. These applications for review are about whether their respective percentages of care for the period commencing on 10 August 2018 should change, and if so, from when.
2.There was an administrative assessment registered with Services Australia – Child Support from 18 April 2014. From 4 May 2018 the children were recorded as being in Ms Lampkin’s 79% care and Mr Butters’ 21% care.
3.On 16 November 2018 Mr Butters notified the registrar that he and Ms Lampkin were sharing care according to orders made by the Federal Circuit Court on 10 August 2018. Based on these orders he calculated he had 121 nights care annually, equating to 33% care.
4.On 30 November 2018 the registrar consulted Ms Lampkin who agreed that she and Mr Butters were sharing care in accordance with these orders.
5.On 12 December 2018 the registrar accepted Mr Butters’ notification and decided that Ms Lampkin had 67% care and Mr Butters had 33% care, effective from 16 November 2018, being the date Mr Butters gave notice of the change.
6.On 10 June 2021 Ms Lampkin objected to this decision. She contended she had 74% care and Mr Butters had 26%, reminding Child Support that Mr Butters’ percentage of care varied year to year, in accordance with the care arrangements that alternated the care of the children each year during the long Christmas vacation period. Therefore, Mr Butters’ percentage of care should be calculated as an annual average over 24 months.
7.Mr Butters agreed with this proposition and that he and Ms Lampkin had provided care in accordance with the court orders made on 10 August 2018. Consequently, the registrar used the court orders to construct a calendar and calculate that over 24 months from 10 August 2018 Mr Butters had 240 nights care (32%), and Ms Lampkin had 440 nights (68%). Based on this, the registrar partially allowed Ms Lampkin’s objection by revoking the previous care percentages and making a new care decision that reflected these findings.
8.On 6 August 2021 Ms Lampkin sought review of this decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The matter was heard on 1 October 2021. Ms Lampkin and Mr Butters gave affirmed evidence via MS Teams audio. The Child Support Registrar elected not to attend the hearing. The tribunal also considered relevant documents provided by Child Support.
ISSUES
9.The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act). The tribunal also had regard to the Child Support Guide (the Guide), which sets out Child Support’s policies.
10.The issue is whether a new percentage of care should be determined, and if so, from when should it apply?
CONSIDERATION
What were the care arrangements in the relevant care period?
11.Division 4 of Part 5 of the Act requires Child Support (and the tribunal on review) to determine whether the existing care determination should be revoked in favour of a new care percentage, and if so, from when.
12.Section 49 and section 50 of the Act require decision makers to consider the actual or likely pattern of care within the care period, either by reference to a “care arrangement”, such as court orders, or the actual care that is taking place.
13.Section 5 of the Assessment Act defines “a care arrangement” by reference to the “Family Assistance Act”. Section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975.
14.In this case, there is no dispute that the Federal Circuit Court ordered, by consent, that the children would live with Ms Lampkin and spend time with Mr Butters, as outlined at orders 3 to 14. Ms Lampkin and Mr Butters agreed that they had not departed from these orders and referred the tribunal to calendars they had followed that reflected them1. The tribunal therefore finds that the court orders of 10 August 2018 are a “care arrangement” for the purposes of the Assessment Act.
15.A “care period” is effectively defined in the Assessment Act as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually a care period is 12 months, but in this instance the tribunal finds 24 months more appropriate, given that the care arrangements alternate year to year.
16.Mr Butters and Ms Lampkin also agreed that the tribunal’s determination of their relative care percentages should be based on these court orders and calculated as an annual average based on a 24-month period, given the alternating pattern of care described above.
17.Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. As neither Ms Lampkin nor Mr
1 Reproduced at pages 73–74 of the hearing papers.
Butters submitted that nights are an unsuitable measure of their care, the tribunal finds it appropriate to use it in this case.
18.Ms Lampkin told the tribunal that the calendar devised by Child Support did not accurately reflect the court orders because it erroneously counted the time the children spend with Mr Butters on Wednesday afternoons as an overnight stay.
19.Mr Butters was not aware that Child Support had counted his time with the children in this way and agreed that doing so would be an error. He told the tribunal he had reasonably assumed that Child Support had correctly interpreted the court orders.
20.Ms Lampkin and Mr Butters agreed that in 2020 and 2021 they had used a calendar which they devised according to the court orders. They both stated that it was made by allocating Mr Butters’ alternate weekend care, and then overlaying the school holiday care periods. This meant that the parent who had care for the first week of the short school holidays would collect the children from school on the last day of term and have them for seven days, whether or not this coincided with their alternating weekend care.
21.On close examination, the tribunal found that the calendar Mr Butters submitted to Child Support in November 2018 did not reflect the court orders precisely. For example, it indicates he had care on the weekend of 26–28 October, which is out of sync with his pattern of alternating weekends. The tribunal resolved any such small inconsistencies by assuming the court orders were followed, in accordance with the evidence Mr Butters and Ms Lampkin provided at their hearing.
22.On 2 June 2021 Ms Lampkin also submitted calendars, covering the calendar years of 2020 and 2021. At hearing Mr Butters agreed that these were an accurate reflection of the shared care during that period and that they reflected the care orders.
23.Based on the care orders, and the calendars submitted by Mr Butters and Ms Lampkin, the tribunal calculated that Mr Butters had 194 nights of care over the 24-month period from 10 August 2018, as set out in the appended spreadsheet. Mr Butters’ care is therefore equivalent to an annual average of 97 nights, or 26%2.
24.According to subsection 54F(1) of the Act, where the care percentages have changed to the degree that warrants a change in the rate of child support payable, then the existing care decision must be revoked. This subsection is not applicable here because Mr Butters’ cost percentage remains at 24% if his care percentage falls between 14% and 35%.
25.Section 54H of the Act states that the Registrar (or this tribunal) may amend the administrative assessment if the care notification did not correspond to the care registered. In this instance the tribunal finds it is appropriate to revoke the existing care percentages under section 54H given that Child Support incorrectly calculated the court ordered care.
2 Rounded down in accordance with section 54D of the Act.
From when should the new care percentage apply?
26.The tribunal next considered the date of effect of this decision.
27.According to paragraph 54H(3)(b) of the Act, where a change in care is notified outside 28 days of the care change (as in this case), a revocation takes effect from:
the day before the Registrar was notified, for a responsible person whose care has increased (Ms Lampkin in this case), and
the day before the change of care day, for the responsible person whose care has decreased (Mr Butters in this case).
28.Subsection 87AA(1) of the Registration Act provides the general rule that, if a person lodges an objection to a care percentage decision more than 28 days after being given notice of it, and their objection is allowed, the new care percentage determination takes effect from the day their objection was lodged.
29.Section 87AA(2) of the Registration Act provides an exception to this general rule, where special circumstances prevented a responsible person from lodging an objection within 28 days of being given notice of a care percentage decision.
30.Because Ms Lampkin lodged her objection to the care percentage decision of 12 December 2018 approximately 18 months after being given notice of it, the tribunal invited her to make submissions about any special circumstances that prevented her from lodging sooner.
31.Ms Lampkin stated that she found it difficult to communicate with Mr Butters around the time of the care decision and had sought, and was granted, an intervention order against him. She also stated that she had been focused on her job and her children and the paperwork was not her forte.
32.Considering the legislation and the Child Support Guide, which outlines the Department’s policy, the tribunal is not satisfied that Ms Lampkin’s reasons met the threshold for special circumstances that prevented her lodging her objection sooner than 2 June 2021, given that doing so would have required her to communicate with the Registrar rather than with Mr Butters. The tribunal is therefore satisfied that the date of effect of its decision is 2 June 2021.
DECISION
The tribunal decided to set aside the decision under review and to substitute its decision that from 10 August 2018 the percentages of care for [Child 1] and [Child 2] are 74% to Ms Lampkin and 26% to Mr Butters.
The date of effect of this decision is 2 June 2021.
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p.a. 97
26.58%
Key Legal Topics
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Family Law
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Jurisdiction
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