Lemer and Downer (Child support)

[2024] ARTA 433

Lemer and Downer (Child support) [2024] ARTA 433 (16 December 2024)

Applicant/s:  Mr Lemer

Respondent:  Child Support Registrar    

Other Parties:       Ms Downer

Tribunal Number:   2024/MC028224

2024/MC028279 

Tribunal:  Senior Member J Longo

Place:Melbourne

Date:16 December 2024

Decision:

The decisions under review are set aside and decisions substituted as follows:

·     That Ms Downer’s percentage of care for [Child 1] and [Child 2] is 90% and Mr Lemer’s percentage of care for [Child 1] and [Child 2] is 10% applying from 25 April 2023 and not 20 January 2022.

· That pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, this decision will have effect from 3 April 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – separated under the one roof – new percentage of care 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 omitted from this decision and replaced with generic information pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.

Statement of Reasons

BACKGROUND

1.Mr Lemer and Ms Downer are the parents of [Child 1] (born 2016) and [Child 2] (born 2018). This application concerns two separate decisions by Services Australia - Child Support (Child Support) about the percentages of care attributed to Mr Lemer and Ms Downer for the children, initially in the registration of the child support liability for the child support case commencing from 1 October 2023 and the date of effect of this decision.

2.From 1 February 2023, Child Support accepted an application for assessment of child support by Ms Downer and determined percentages of care of 100% for Ms Downer and 0% for Mr Lemer of the children from 20 January 2022. At the time of the application, Ms Downer elected for private collect of child support.

3.On 1 February 2024, Ms Downer applied for collection of child support. On 8 March 2024 Child Support notified both Mr Lemer and Ms Downer that Ms Downer’s application for collection of child support for [Child 1] and [Child 2] had been accepted.

4.On 5 April 2024, Mr Lemer objected to the decision of 26 May 2023 to reflect the care of [Child 1] and [Child 2] as 100% for Ms Downer and 0% for Mr Lemer from 20 January 2022. On 18 May 2024, a Child Support objections officer disallowed the objection.

5.On 8 July 2024, Mr Lemer lodged an application with the AAT seeking an independent review of Child Support’s decisions of 8 March 2024, stating that the decisions of Child Support did not reflect the actual care.

6.The hearing of the application was held on 26 November 2024. Mr Lemer attended the hearing in person and Ms Downer participated by conference telephone and both gave evidence on affirmation. [Representative A] appeared on behalf of Ms Downer. In considering the application, I took into account the oral evidence of Mr Lemer and Ms Downer and the documentary material provided by Child Support to the AAT, Ms Downer and Mr Lemer.[1]

[1] Pages 1 to 593 of documents provided by Child Support.

7.From 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This also applies to decisions not finalised before 14 October 2024 being taken to be decisions of the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.

ISSUES

8.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) Act 1988 (the Registration and Collection Act). The legislation provides Child Support with rules for assessing and changing percentage care determinations which are then used as part of the child support formula to assess child support rates.

9.In reviewing this decision, I 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. I acknowledge that, whilst I may be guided by policy, I am not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the 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 me to take into account in performing the 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 I adopt that approach.

10.The issues to be determined are the percentages of care for Ms Downer and Mr Lemer to be recorded at the date the application was registered with Child Support; whether there was a change in the care percentages for each parent; and from when those percentage of care determinations apply based on when Child Support was notified.

CONSIDERATION

What care determination should apply from the date of the application for collection?

11.Section 39 of the Registration and Collection Act provides that if a registered maintenance liability is not enforceable because of an election not to collect child support, the payee may apply to Child Support for the liability to again become enforceable. Ms Downer made such an application to Child Support on 1 February 2024 for collection of child support.

12.Prior to Ms Downer’s election for the collection of child support, Child Support had previously made a decision on 26 May 2023 under section 30 to register a registrable maintenance liability on the Child Support Register. This was registered from 25 April 2023. As part of this decision, one of the particulars that was determined was the care percentages that should apply for Ms Downer and Mr Lemer for the care of [Child 1] and [Child 2], which were recorded as 100% for Ms Downer and 0% for Mr Lemer of the children.

13.Mr Lemer stated that the decision was incorrect because he did not separate from Ms Downer until September 2023 when he was physically required to move downstairs. Mr Lemer stated that he was from September 2023, sleeping downstairs while Ms Downer was sleeping upstairs with the children. He stated that they were sharing some common areas in the house. These arrangments were in place at the time of the request for collection by Ms Downer on 1 February 2024.

14.He stated that even though they were sleeping in separate parts of the house and he was working full-time in his [business], he did offer to take the children to school. However, Ms Downer did not take up this offer. He stated that he was spending time with the children, approximately 2-3 days per week, usually in the home but occasionally at the park. He stated that he made attempts to make the children’s breakfast and other meals but Ms Downer rejected these attempts and that Ms Downer prepared the children’s meals.

15.Mr Lemer stated that he was also paying utilities, such as electricity and gas, as well as rates and mortgage payments for the property. In addition, he paid 100% of the school fees for the children in 2022 and 2023. He stated that Ms Downer was not contributing to the household expenses, other than occasionally buying groceries and some toys for the children. He stated that he was giving money to Ms Downer for expenses. He stated that he had attended the occasional medical appointment with the children but predominantly Ms Downer attended these appointments. He stated that he had photographs of his time with the children. Mr Lemer confirmed that Ms Downer travelled to [Country 1] around Christmas in 2022 and 2023. Mr Lemer also stated that he had provided a vehicle for her use in 2022 and 2023.

16.Ms Downer’s evidence was that she was with the children all the time, taking them to school, either walking to school or getting a lift or taxi. She stated that she was making all the children’s meals. She stated that Mr Lemer was hardly at home during the period and that she was taking the children to their extracurricular activities – [activities specified for] [Child 1] and [for] [both children] in 2022 and 2023. She and the children would often be in bed by 7.30pm. Ms Downer confirmed that Mr Lemer paid the school fees for 2022 and 2023, but that in 2024 these were shared equally between the two of them. She also stated that Mr Lemer bought some groceries for the children, but that the utilities were not being paid for approximately 18 months and she was required to renegotiate some of these expenses. She stated that she assisted the children with school activities.

17.[Representative A’s] submissions were that Mr Lemer’s evidence which described Ms Downer as the person predominantly responsible for the preparation of the children’s food, for organising medical appointments, school events and general supervision was indicative of Ms Downer providing care for the children. [Representative A] also noted that Mr Lemer’s lack of awareness of the children’s extracurricular activities and Ms Downer’s travel overseas with the children was evidence of the care she provided and Ms Downer’s statements to her solicitor[2] are contrary to Mr Lemer’s evidence regarding the payment of expenses.

[2] Page 499 of the Child Support Documents.

18.Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case usually based upon the actual care of a child parties to a child support case have. Existing percentage of care determinations are usually required to be revoked pursuant to either section 54G, 54F or 54H when a change of care occurs and new percentages of care apply.

19.While the issue of when the parties separated has been a focus of Mr Lemer’s submissions, such a consideration is only relevant to the decision to accept the registration of the child support case. This is not before me. What I am required to consider is the question as to what care was occurring at the time of registration of the child support case on 25 April 2023.

20.The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The government policy in this regard, as set out in 2.2.1 of the Guide and followed by Child Support, provides that a care period is generally assumed to apply for the subsequent 12-month period from when the actual care of a child began or changed, however a shorter or longer care period may be appropriate depending upon the specific circumstances.

21.The Tribunal’s task on review is to stand in the shoes of the original decision maker, although the Administrative Review Tribunal Act 2024 (the ART Act) makes it clear that the Tribunal makes its decision on review independently of the parties, including the primary decision maker. It is not appropriate in undertaking that task, to consider further changes in the pattern of care between initial notification to Child Support up to the time of the Tribunal’s hearing – and evidence as to care beyond the appropriate care period is not likely to be relevant – save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support for the appropriate care period.

22.In my view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support so that a new primary care percentage decision can be considered and made if appropriate. The term ‘pattern of care’ is not defined in the legislation. Therefore I must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support, but informed by evidence now available.

23.Care is usually determined on the basis of the overnight arrangements in place. However, other factors can also be taken into account. These include such things as:

·To what extent the person has control of the child, including having overall responsibility for the child and making:

omajor decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities; and

oarrangements for others to meet the needs of the child (delegated care).

·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities.

24.Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child for the care period. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care (the) person has had, or is likely to have, during the care period. 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.

25.In this matter, I am satisfied that from 25 April 2023, Ms Downer and Mr Lemer were separated under the one roof. Mr Lemer’s evidence was that he was sleeping downstairs at the property, and would spend some time with the children when he returned from work. While he wanted to assist with school drop off and meals, Ms Downer assumed these duties. He was also paying for household expenses, although Ms Downer’s evidence was that some of these expenses were not paid. I note that the children are not of an age where they are able to provide for their own needs, and are therefore more reliant on the parents for their care needs. Accordingly, I have determined that these other factors, including care other than overnight care, should also be considered in determining the care.

26.I find that Ms Downer was providing the majority of care for the children. She was preparing meals, taking the children to appointments and generally responsible for their needs. She travelled to [Country 1] at Christmas with the children. Mr Lemer was spending some time after work with the children. This is also corroborated by the unsigned statement by Ms Downer’s brother included in the documents. In addition, Mr Lemer was also contributing to the costs associated with the care of the children, such as the school fees for 2023. The care that Mr Lemer contributed, however, was not significant. In taking account of all of the factors, I have determined Ms Downer’s care amounted to at least 90% of the care of the children, and Mr Lemer’s care of the children amounted to not more than approximately 10% of the care. I note that Mr Lemer was unaware of the children’s extracurricular activities, whereas Ms Downer recalled both children’s extracurricular activities.

27.Pursuant to section 30 of the Act, when a parent has applied for an administrative assessment of child support and the application has been properly made, Child Support must accept the application. Section 31 of the Act then requires that Child Support assess the annual rate of child support payable by a parent for the days in the child support period that starts, relevantly to this matter, on the day on which the application is made. One of the variables, or particulars, required to assess the annual rate of child support is the care percentages to apply for each parent (or other responsible person as defined by the Act). Those percentages of care then generally apply for each day in the child support period on and from the application day, unless revoked (section 54B of the Act).

28.As regards to determining a parent’s percentage of care, section 49 of the Act provides for when a parent has no pattern of care of a child and section 50 of the Act provides for when there is a pattern of care. Based upon the evidence, I am satisfied that there was a pattern of care of the children for both Ms Downer and Mr Lemer. Care percentages for each are then to be determined having regard to the actual care a person has had, or is likely to have, during a care period. Section 54A of the Act 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.

29.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 states that a care period is generally the 12-month period with the same care arrangements then assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

30.I consider the appropriate care period in relation to the application to be the period from 25 April 2023 to 1 February 2024. I am satisfied based on the oral evidence of the parties that the pattern of care of the children in that period was 90% care per week to Ms Downer and 10% care per week to Mr Lemer, based on the overall care of Mr Lemer during this period and the care and responsibility attributable to Ms Downer. I therefore find that the percentage of care determinations to apply for each parent are 90% for Ms Downer and 10% for Mr Lee.

From what date should the care determinations on registration of the child support assessment apply?

31.As regards the date of application of those percentage of care determinations, as has already been observed, pursuant to sections 31 and 54B of the Act, the percentages of care apply to each day in a child support period on and from the application day, that is 25 April 2023 in this case.

32.Mr Lemer’s objection, and his subsequent application to the Tribunal, was based upon his submission that the care percentages had been incorrectly calculated. I have found that those calculations were incorrect.

33.The child support legislation requires care percentage determinations to be made to inform the appropriate rate of child support payable. The percentages of care apply to that end from the application day. Child Support’s 25 April 2023 decision was notified to the parents on that basis with letters of that date advising Ms Downer and Mr Lemer that the child support application had been accepted and enclosing the child support assessments.

34.I will therefore vary the decision under review so that a percentage of care of 90% applies for Ms Downer and a percentage of care of 10% applies for Mr Lemer from 25 April 2023, not 20 January 2022.

35.However, the effect of varying the determination to which the care percentages decision relates is also subject to the date of effect provision under section 87AA of the Registration and Collection Act.

36.I am satisfied that Mr Lemer was notified of the decision by letter dated 25 April 2023, and I am satisfied that Mr Lemer did not lodge an objection to that decision within 28 days of receiving notification of it. Child Support has noted that Mr Lemer lodged an objection on 3 April 2024 and I am satisfied that Mr Lemer first contacted Child Support regarding the care percentage recorded on 3 April 2024.

37.If an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to variation to or a new determination is the date of the objection unless there are special circumstances which prevented the person from lodging their objection within 28 days.

38.Mr Lemer objected to Child Support’s 25 April 2023 decision more than 28 days after being notified of the decision on 3 April 2024. However, as Child Support disallowed the objection, the date of effect provisions were not enlivened and consequently not considered. However, in making a decision on review, section 54 of the ART Act provides that “the Tribunal may exercise all the powers and discretions that are conferred on the decision-maker by an Act or an instrument made under an Act”. I have therefore considered the date of effect as I have determined different percentages of care for Mr Lemer and Ms Downer. This requires the consideration of whether there are special circumstances that prevented Mr Lemer from objecting to the care percentage decision within time. I am not satisfied that there were special circumstances that prevented Mr Lemer from objecting within 28 days and consequently will give effect to the decision from the date of objection, that is 3 April 2024.

DECISION

The decisions under review are set aside and decisions substituted as follows:

·     That Ms Downer’s percentage of care for [Child 1] and [Child 2] is 90% and Mr Lemer’s percentage of care for [Child 1] and [Child 2] is 10% applying from 25 April 2023 and not 20 January 2022.

· That pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, this decision will have effect from 3 April 2024.

Date(s) of hearing:	26 November 2024
Representative for the Applicant:	Self-represented