Lowe and Tait (Child support)

[2024] AATA 377

Lowe and Tait (Child support) [2024] AATA 377 (1 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026881

APPLICANT:  Mr Lowe

OTHER PARTIES:  Child Support Registrar

Ms Tait

TRIBUNAL:Member I Sheck

DECISION DATE:  1 February 2024

DECISION:

The Tribunal sets aside the decision under review, and, in substitution, decides that:

•Mr Lowe’s care percentage in respect of [Child 1] and [Child 2] is 21% with effect from 12 September 2022; and

•Ms Tait’s care percentage in respect of [Child 1] and [Child 2] is 79% with effect from 12 September 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the care arrangements – when liable parent taken to have notified Child Support – 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 Tait and Mr Lowe are the parents of [Child 1], born [in] July 2002, and [Child 2], born [in] June 2007.  A case was registered with Services Australia – Child Support (“Child Support”) for the assessment of child support on 29 June 2009.  Child Support has been responsible for collection of the liability since 14 September 2010.  The assessment of child support was based on care percentages of 79% to Ms Tait and 21% to Mr Lowe.  These percentages were based on the care arrangements set out in court orders dated 4 January 2011.

2. On 9 August 2022, Ms Tait notified Child Support that from 1 January 2020 the care arrangements had changed, such that she had care of the children 88% of the time and Mr Lowe 12% of the time.  The assessment of child support was amended to reflect this on 26 August 2022.  On 12 September 2022, Mr Lowe objected to this decision.  The objection was disallowed.  On 11 November 2022, Mr Lowe applied to the Tribunal for a review of the decision.  On 19 May 2023, the Tribunal made the decision (in matter 2022/MC025011) that Mr Lowe’s care percentage for the children was 12% with effect from 17 September 2021 (the date of the care change) and Ms Tait’s care percentage for the children was 88% with effect from 9 August 2022 (the date of her notification of the care change).

3. On 8 June 2023, Mr Lowe contacted Child Support regarding the Tribunal’s decision and advised that his care of the children had reverted to 21% from “some point towards the end of [2022]”.  In a further contact on that day, Mr Lowe advised Child Support that the care change had occurred on 9 August 2022.  Child Support contacted Ms Tait and she agreed that the care had indeed reverted to 79% to herself and 21% to Mr Lowe with effect from 12 September 2022.  On 22 June 2023, a determination was made that Ms Tait’s care percentage for the children was 79% with effect from 12 September 2022 (the date of the care change) and Mr Lowe’s care percentage for the children was 21% with effect from 8 June 2023 (the date of his notification of the care change).

4. On 29 June 2023, Mr Lowe objected to the decision on the basis that he had notified of the care change prior to 8 June 2023.  On 5 October 2023, an objections officer of Child Support disallowed the objection on the basis that  “[t]here is no evidence that [Mr Lowe] or [Ms Tait] lodged a change to the care arrangements for [Child 1] and [Child 2] earlier than 8 June 2023”.

5. By application received on 6 October 2023, Mr Lowe asked this Tribunal to review the decision of the objections officer.  On 1 February 2024, I conducted a hearing at which Mr Lowe gave evidence in person and Ms Tait by conference telephone.  I had before me the relevant documents from Child Support (pages 1 to 189), which had been copied to the parties.  I had also obtained from Child Support two audio files (C3 and C4), being the recordings of Mr Lowe’s telephone calls to Child Support on 12 September 2022 and 21 October 2022.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (“the Act”) and the Child Support (Registration and Collection) Act 1988 (“the Collection Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

Has there been a change in care?

1. The background of this matter relating to the care arrangements of the children from 2020 to late 2022 is set out in the comprehensive decision of the differently constituted Tribunal dated 19 May 2023 (application 2022/MC025011).  It is not necessary to replicate the history of the care arrangements here, other than to note the final paragraph in that Tribunal’s reasons for decision:

   36.  For completeness, the Tribunal accepts the parents' consistent testimony that since notification of the care change the parents' care has largely reflected the care as outlined in the court orders. It is open to either parent to lodge a fresh care claim in respect of this subsequent care change.

2. As noted above, the previous Tribunal determined that Mr Lowe’s care of the children was reduced from 21% to 12% with effect from 17 September 2021.  The parties agreed at the May 2013 Tribunal hearing that the care arrangements had reverted to the original 79% to Ms Tait and 21% to Mr Lowe at around the time that Ms Tait notified Child Support of the original change.  In terms of the exact date that the care reverted to 79%/21%, Mr Lowe did not give a date in his initial contact to Child Support of 8 June 2023.  He later that day nominated 9 August 2022; however I consider it unlikely that the care change would take effect on the exact same day that Ms Tait contacted Child Support to advise of the (much) earlier change.  It is more likely that there were arrangements to be made between the children and the parties before [Child 2] and [Child 1] were able to stay with their father in accordance with the court orders.  Both Mr Lowe and Ms Tait provided to Child Support details of the dates that the children were with them: on 20 June 2023, Ms Tait gave the care details from 12 September 2022; on 29 June 2023, Mr Lowe provided care details from 16 September 2022.

3. Child Support has determined that the care change occurred on 12 September 2022 and I am satisfied that this is an appropriate date from which to assess that Ms Tait’s care of the children was 79% and Mr Lowe’s 21%.

Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?

1. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. On the basis of the care arrangements discussed above, I find that Mr Lowe had 21% of the care of [Child 2] and [Child 1] with effect from 12 September 2022. Accordingly, the previous determinations of care, that Mr Lowe had a percentage of care of 12% and Ms Tait had a percentage of care of 88%, must be revoked and new care determinations made.

Date of effect of the decision to revoke the care determination

1. In terms of the date of effect of the new care determinations, if the Child Support Registrar “is notified, or otherwise becomes aware, of” the care change within 28 days of the change, then the new determination takes effect from the date of the change.  If not, then the date of effect of an increase in the care percentage (from, in this case, 12% to 21%) only takes effect from the date of notification.  This is the central point of Mr Lowe’s appeal and the parties agreed at the hearing that it was the only point at issue.

2. Mr Lowe has consistently stated since June 2023 that he was attempting to notify of the further care change from late 2022.  The documents provided by Child Support indicate that there were two phone conversations between Mr Lowe and Child Support officers.  These occurred on 12 September 2022 (officer “[A]”) and 21 October 2022 (officer “[B]”).  I obtained the audio files relating to these conversations.  Copies of these files were posted to the parties on 25 January 2023 but it appeared that they had not been received prior to the hearing.  In any event, I played the relevant part of file C3 to the parties at the hearing.  Ms Tait noted the audio was hard to hear, as she was attending the hearing by telephone, and I acknowledge that this was the case.

3. In the conversation of 12 September 2022, Mr Lowe starts by advising that he has lodged an objection against a recent care decision.  At around 9 minutes into the conversation, Mr Lowe asks whether, “moving forward”, can he change the decision because the care of the children is not correct.  Mr Lowe says that he understands that “the ruling that is getting looked at” goes back some 2 to 3 years, “but what about moving forward?”  He asks: “Can I change ... can I put something in?” [A] responds that the current percentages are 88%/12% going forward, and this is what Mr Lowe has objected to.  “That is what the objection is for”.  [A] assures Mr Lowe that he is doing the right thing and that the objections officer will look at the care arrangements for the past as well as going forward.  Mr Lowe asks if he can speak to the panel that will be considering the objection and is put through.  The audio file ends there.  The conversation of 21 October 2022 starts with Mr Lowe’s complaint that the objections officer did not contact him as scheduled, prior to making their decision.  Again, Mr Lowe states to [B] that the objections officer’s decision was for the last 2.5 years, but “moving forward” the care percentages are still incorrect.

4. In considering whether Mr Lowe had notified Child Support of the care change of 12 September 2022 in either of his telephone calls, I am of the view that there has essentially been a “failure to communicate”.  This may have been resolved, had the objections officer talked to Mr Lowe on 20 October 2022 as scheduled.  In any event, this did not happen.  Returning to the telephone conversations that did occur, while Mr Lowe is at pains to state that the care “going forward” is incorrect, it appears that the Child Support officers, not unreasonably, appear to form the view that he is essentially restating the grounds for his objection and appeal, rather than advising of a second care change from 88%/12% back to 79%/21%.  The point must be made that Mr Lowe does not set out any actual care percentages during either of the calls.  Having said that, Mr Lowe does make all efforts in the conversations to separate the past care arrangements from the arrangements going forward.  He does specifically ask [A] if he can lodge another change of care application and is essentially told he cannot, which is incorrect.  He is told by [A] that the objections officer will look at past care as well as care going forward, and then by [B] that the Tribunal will do so.

5. On balance, I am satisfied that Child Support was notified on 12 September 2022 that the care of the children that was actually taking place did not correspond with Mr Lowe’s and Ms Tait’s existing percentages of care for the children.  On this point, I note the Child Support Guide has this to say about notification of expected care changes:

   When can a new percentage of care be determined?

   A new percentage of care can be determined whenever the care of a child has changed (sections 54F, 54FA, 54G, 54H and 54HA). The Registrar will not give effect to future expected care changes until either of the parents advise the Registrar that the anticipated change has actually occurred. If neither parent advises the Registrar when the care subsequently changes, a new care percentage determination will not be made. The child support assessment will continue to be based upon the existing care percentage until one or both of the parents advise the Registrar that the actual care has changed and the Registrar is able to make a new care percentage determination.

6. Mr Lowe notified of the actual (not expected) care change in his first telephone call, on 12 September 2022.  Although it was open to Child Support to follow up the matter and obtain further evidence from both Mr Lowe and Ms Tait, this was not done as the earlier care change decision was progressing through the objections and then appeal process.  This does not however prevent the clear application of subsection 54F(3) to revoke the existing care determinations:

   (3)  The revocation of the determination takes effect at the end of:

   (a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; …

7. In accordance with subsection 54F(3), the determinations that Mr Lowe had a 12% care percentage and Ms Tait had an 88% care percentage are revoked with effect from 11 September 2022 and new determinations made that the care percentages were 21% and 79% respectively with effect from the following day.

DECISION

The Tribunal sets aside the decision under review, and, in substitution, decides that:

•Mr Lowe’s care percentage in respect of [Child 1] and [Child 2] is 21% with effect from 12 September 2022; and

•Ms Tait’s care percentage in respect of [Child 1] and [Child 2] is 79% with effect from 12 September 2022.