Launchbury and Forstater (Child support)

[2021] AATA 5185

Launchbury and Forstater (Child support) [2021] AATA 5185 (9 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022201

APPLICANT:  Ms Launchbury

OTHER PARTIES:  Child Support Registrar

Mr Forstater

TRIBUNAL:Member J Prentice

DECISION DATE:  09 December 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1]:

• The existing care percentage determination of 51% to Ms Launchbury is revoked from 10 March 2021 and replaced with a new care percentage of 34% from 11 March 2021; and

• The existing care percentage determination of 49% to Mr Forstater is revoked from 26 April 2021 and replaced with a new care percentage determination of 66% from 27 April 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likely pattern of care – existing percentage of care determinations revoked and new determinations made – whether the repealed legislation should apply in relation to dates of revocation – repealed legislation applies - decision under review set aside and substituted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. Ms Launchbury and Mr Forstater are the parents of [Child 1] (born 2007).

2. The pre-existing care for their son was recorded by the Child Support Agency (CSA) as being 49% to Mr Forstater and 51% to Ms Launchbury since 2 July 2015.

3. On 27 April 2021 Mr Forstater notified the CSA of a change in the care arrangements such that [Child 1] had moved in with him and he had 100% care from 11 March 2021.

4. The CSA decided on 20 May 2021 that the recorded care percentages for [Child 1] were 100% to Mr Forstater and 0% to Ms Launchbury from 11 March 2021. The date of effect of the decreased percentage of care of 0% to Ms Launchbury was from the date of the accepted change in care, 11 March 2021.  However, as Mr Forstater had notified the change of care more than 28 days after it occurred, the date of effect of the increased care of 100% to him was from the date of notification, 27 April 2021.

5. On 9 June 2021 Ms Launchbury lodged an objection to the care decision on the grounds that she claimed she still had care of [Child 1] and disputed Mr Forstater’s claim of 100% care.

6. On 4 August 2021 the CSA partly allowed Ms Launchbury’s objection and found that Ms Launchbury had 13% care of [Child 1] and Mr Forstater had 87% care from 11 March 2021. Again, the date of effect of the decreased percentage of care of 13% to Ms Launchbury was from the date of the accepted change in care, 11 March 2021.  However, as Mr Forstater had notified the change of care more than 28 days after it occurred, the date of effect of the increased care of 87% to him was again from the date of notification, 27 April 2021.

7. On 3 September 2021 Ms Launchbury sought further review by the Administrative Appeals Tribunal (the Tribunal).

8. At a hearing on 1 December 2021 the Tribunal heard sworn evidence from Ms Launchbury and Mr Forstater who participated by conference telephone.  In reaching its decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

ISSUE

1. The issue is whether the existing care percentage determinations as at 11 March 2021 are to be revoked and new care percentage determinations are to be made.

CONSIDERATION

1. Ms Launchbury informed the Tribunal that the CSA failed to make an adequate attempt to contact her before they made the decision to change the care percentage.  She has since tried to lodge another change of care but CSA advised her that they were not prepared to look at it until her objection application was finalised with the Tribunal.

2. Ms Launchbury said the CSA failed to take into account any of the third party evidence she provided and it is only since she lodged the objection application with the Tribunal that she found out it was because she did not nominate the relationship between her and the third parties, whose evidence she submitted.  Ms Launchbury told the Tribunal that the change in care decision by the CSA has been wrong since the start and she has always had more than 0% care of her son.

3. Ms Launchbury told the Tribunal that before 11 March 2021 she had 50% care of her son and he stayed with her seven nights a fortnight – week and week about with Mr Forstater.  However, her son had been requesting longer rotations.  Then mid-March he asked for a less formal arrangement – more flexible – without the rigidity of changing every Friday night – where he could float between their homes without a set routine.  Subsequent to that he stayed approximately ten nights with Mr Forstater.  However, in consultation with Ms Launchbury, her son decided that he wanted to spend a flexible four days and four nights a fortnight and then the majority of school holidays with her.  Ms Launchbury submitted that in a year it made a very slight difference.  Ms Launchbury said she expected a small change in care percentage – but definitely not 0%.

4. Ms Launchbury told the Tribunal that in the Easter holidays she and her son went to [City 1] for ten days; during the next holidays in June/July she and her son again went to [City 1] for ten days; and in the September/October holidays she and her son flew to [a town] and he spent the majority of the holidays with her.  Ms Launchbury told the Tribunal that the four days per fortnight have continued as a pattern since March 2021.

5. Mr Forstater told the Tribunal that he agrees that at the beginning of March the pattern of care had been week and week about.

6. However, Mr Forstater disputed Ms Launchbury’s evidence about the subsequent “pattern of care”.  He advised that he had provided detailed calendar dates to the CSA including evidence that [Child 1] stayed with him continuously from 11 March to 1 April 2021; [Child 1] spent 2 April to 8 April with Ms Launchbury; 9 April to 7 May inclusive with Mr Forstater; 9 May to 21 May inclusive with Mr Forstater; and 22 and 28 May with Ms Launchbury.  Mr Forstater also claimed that [Child 1] did not spend a majority of the holiday periods with Ms Launchbury and disagreed with her evidence of where they spent the holidays.

7. Ms Launchbury told the Tribunal that, while the four days per fortnight are not always the same four nights, this is the way [Child 1] wants it to be.

8. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   …

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

   …

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

9. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

10. Once each party’s care is determined, it can be reflected in the child support assessment by revoking the old percentage under either subsections 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

11. While there is conflicting evidence from Ms Launchbury and Mr Forstater, the Tribunal is satisfied that Ms Launchbury did have more than 0% care of [Child 1].

12. Mr Forstater did agree with the Tribunal that, while he does not consider the care arrangements to represent a pattern, he does concede that Ms Launchbury would average four nights a fortnight of care. However, the evidence was inconsistent in relation to Ms Launchbury’s care during holidays. Having had regard to all of the evidence, the Tribunal is satisfied that Ms Launchbury’s care should be calculated on the basis of her having a pattern of care of four nights per fortnight generally and four weeks holiday care per year. This amounts to 34%. In reaching this conclusion, the Tribunal notes that the Guide at Topic 2.2.2 recognises that minor departures from the normal pattern of care do occur and, further, the normal exigencies of life mean that minor departures can and do occur, particularly with teenage children.

13. The Tribunal is therefore satisfied that the previous percentage of care determinations should be revoked and that the new care percentage determinations are 34% to Ms Launchbury and 66% to Mr Forstater. The date of effect of the decreased percentage of care of 34% to Ms Launchbury is the date of the change in care, 11 March 2021. However, as Mr Forstater notified the change of care more than 28 days after it occurred, the date of effect of the increased care of 66% to him is from the date of notification, 27 April 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1]:

• The existing care percentage determination of 51% to Ms Launchbury is revoked from 10 March 2021 and replaced with a new care percentage of 34% from 11 March 2021; and

• The existing care percentage determination of 49% to Mr Forstater is revoked from 26 April 2021 and replaced with a new care percentage determination of 66% from 27 April 2021.