Luse and Luse (Child support)

[2021] AATA 5194

Luse and Luse (Child support) [2021] AATA 5194 (22 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022337

APPLICANT:  Ms Luse

OTHER PARTIES:  Child Support Registrar

Mr Luse

TRIBUNAL:Member E Kidston

DECISION DATE:  22 November 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the child:

·     the care percentage determination of 22% to Mr Luse is revoked from 28 February 2020 and replaced with a new care percentage determination of 4% with effect from 1 March 2020; and

·     the care percentage determination of 78% to Ms Luse is revoked on 19 January 2021.  As this is a date after the registered child support case ended, the new care percentage of 96% will not come into effect.

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likely pattern of care – existing percentage of care determinations revoked and new determinations made – whether the repealed legislation should apply in relation to dates of revocation – repealed legislation applies - decision under review set aside and substituted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 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 Luse and Mr Luse are the separated parents of [Child 1] (born 2002) (the child). This review application concerns a decision of Services Australia – Child Support Agency (CSA) about the recorded care for the child in relation to a child support case registered with the CSA.

2. From 17 December 2014 to [date] October 2020, the existing levels of care recorded by the CSA for the child were 78% to Ms Luse and 22% to Mr Luse.  The child support case for the child ended upon the child turning 18 years of age, on [date] October 2020. 

3. On 20 January 2021 Ms Luse advised the CSA that care of the child had changed in February 2020, such that she had majority of the care in 2020 and Mr Luse had substantially less than 22%.  It was Ms Luse’s view at that time that the care percentage recorded by the CSA should be changed to 100% to her from the end of February 2020 to the end of October 2020.

4. On 24 June 2021, the CSA determined there was insufficient evidence of a change in care and decided not to record a change in care.  The care recorded remained at 78% to Ms Luse and 22% to Mr Luse (original decision).

5. On 16 July 2021, Ms Luse objected to the original decision and, on 16 September 2021, the CSA disallowed the objection, thereby retaining the levels of care as recorded (objection decision).

6. Ms Luse lodged an application for review of the objection decision with the Child Support Division of the Administrative Appeals Tribunal (Tribunal) on 17 September 2021.

7. The hearing of Ms Luse’s application was held by the Tribunal on 22 November 2021. Mr Luse and Ms Luse both spoke to the Tribunal by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend, however this is customary in first review hearings at the Tribunal.

8. In considering the application, the Tribunal took into account the oral evidence of Mr Luse and Ms Luse, the documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1), and the additional material submitted by Ms Luse prior to the hearing (marked Exhibit A).

RELEVANT LAW

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), together the child support legislation. This legislation sets out the rules for making and revoking care determinations which are then used as part of the child support formula to assess child support payment rates.

2. The Tribunal will also have regard to the Child Support Guide, a departmental policy developed by the CSA to assist decision-makers in interpreting the child support legislation and relevantly, 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]

   [1] 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.

3. Pursuant to Division 4 of Part 5 of the Assessment Act, the Registrar, that is, the CSA, may revoke and make new care determinations to take into account a change in care. In simple terms, existing care percentages generally apply until CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact cost percentage. The decision is made by CSA with reference to a point in time, and usually corresponds with the actual care based on what has happened up until the change in care is notified.

4. It is not without regard that a care pattern may change and, when that is the case, a parent is to notify the CSA and a new care determination may be made from the date of a change. However, 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.  This is further explained in the Child Support Guide at 2.2.2.  

5. The Child Support Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, the decision maker will weigh the evidence and information provided by the parents about past care to determine the pattern of care likely to occur from the relevant date.

ISSUES

14.  The application before the Tribunal is limited to a point in time consideration of the percentages of care determinations to be recorded for Ms Luse and Mr Luse following Ms Luse’s notification to the CSA on 20 January 2021 of the change in care concerning the child for a past period, from 28 February 2020 to [date] October 2020 (the relevant care period).

15.  The Tribunal notes that there are a number of background issues of understandable importance to both Ms Luse and Mr Luse raised in evidence which are not relevant to the decision under review before the Tribunal, and therefore are not necessary to canvass in these Reasons. The only issue to be determined by the Tribunal in this matter is whether there was a change in care of the child for the relevant care period, and the date of effect of any changes to determinations of percentage of care, if relevant. 

CONSIDERATION

1. In opening submissions to the Tribunal, Ms Luse expressed her dissatisfaction of CSA’s administrative processes.  Ms Luse said she considers the CSA had not conducted the matter impartially and did not follow due process in making the original decision and objection decision.  Ms Luse stated that the evidence she had provided to the CSA was disregarded and rejected out of hand, and further some of the specific information she had provided about overnight care was inappropriately released by the CSA to Mr Luse such that he had an unfair advantage and could modify his evidence in response. 

2. Putting the assertions of CSA’s administrative conduct to one side, Ms Luse said the reason for having the matter heard at the Tribunal was to have the evidence concerning the care pattern from 1 March 2020, properly considered.  In her evidence to the Tribunal, Ms Luse said that leading up to March 2020, she and Mr Luse had been following the Court Order and Mr Luse’s pattern of care was, generally speaking, every second weekend and half the holidays.  She told the Tribunal that circumstances changed in early 2020 and from 1 March 2020, the care did not follow the Court Order and the child chose to stay mostly in her care for a number of reasons, including but not limited to:

   ·the child being in her final year of high school with HSC and pre-selection courses for university, she therefore required an environment conducive to study;

   ·the impact of COVID-19 requiring all students to learn from home from March 2020 meant the child required unlimited internet access and this wasn’t available to her at Mr Luse’s residence;

   ·the scheduled driving lessons and commitment to high school social engagements, whether they be online or in person, limited the child’s available time to stay at Mr Luse’s residence on weekends.  

3. Ms Luse said that it was clear by the evidence she provided to the CSA that Mr Luse did not have 22% care of the child as the child had only spent a total of 9 nights in his care in the relevant care period.  Ms Luse’s evidence is that she worked out the calculation of care given to the child during the relevant care period based upon her records as well as the child’s of the actual nights of care Mr Luse had of the child. As such, she wanted the change in care amended because there was no substantive care of the child by Mr Luse from 1 March 2020 onwards.

4. Mr Luse told the Tribunal that he disagreed with Ms Luse’s evidence.  He acknowledged that changes happened in 2020 and conceded that he had no definite record of the dates of overnight care from February 2020, on a calendar or otherwise.  However, his evidence to the Tribunal was that a change in care of the child occurred from about 21 March 2020 due to COVID lockdown restrictions, which took them about a month to work around.  In speaking with the Tribunal, Mr Luse explained that the child, being 17 years of age, was old enough to choose where and when she wanted to stay and that it was effectively her choice. He considered it beneficial to work with the child on her schedule and to limit disruptions during a very stressful final year of high school. Mr Luse said the child would communicate directly with him by mobile phone – whether text message or phone call, as to when she would like to spend time with him.  He acknowledged that the child had her own social life and interests which sometimes meant she chose to not stay overnight at his place, and that he limited her internet access to mobile phone hotspot and would disconnect her internet access from a certain time at night. However, despite the conceded reduced nights’ care, Mr Luse maintained that he still had care of the child as per the Court Order in 2020 as he was available to have the child on agreed weekends, it was simply her choice whether or not she did stay overnight.

5. Relevantly, Mr Luse told the Tribunal that he didn’t agree with the overnight care rules in the child support legislation and guide as there were many occasions where the child would spend the day with him and would then return late to Ms Luse’s place.  On those occasions he would incur the usual expenses of eating out, shopping etc., with the only difference being that the child did not stay overnight.  Mr Luse said he is able to provide evidence of this expenditure, should it be necessary. The Tribunal considered the provision of additional evidence from Mr Luse not necessary in this matter, and further noted that he had ample time to submit evidence either to the CSA or the Tribunal prior to the hearing.

6. The Tribunal further noted the evidence shows that neither party took reasonable action to enforce the Court Order in 2020.

Issue 1 – Did the existing pattern of care change? If so, when did the pattern of care change?

1. Exhibit 1 includes copies of CSA’s records of various contacts with Ms Luse and Mr Luse. It shows the claims that Ms Luse and Mr Luse made about the time the child spent in their care to the CSA were inconsistent.

2. From the evidence to the CSA (at page 33 of Exhibit 1) Ms Luse notified on 20 January 2021 that from the end of February 2020 Mr Luse did not have 22% care of the child and had only around 5% to 6% care. Whereas, Mr Luse informed the CSA on 27 April 2021 that he was still having court ordered care on weekends and school holidays and doesn’t want to involve other parties to provide evidence (at page 59 of Exhibit 1).

3. On various occasions from 27 January 2021, Ms Luse provided detailed information to the CSA including written statements from friends as well as from the child, who was at the time of the declaration over the age of 18 years.  Those statements and declaration supported Ms Luse’s assertion of a change in care from early 2020.

4. The Tribunal had no reason to doubt that the authors of the written statements provided by Ms Luse’s friends believed that they knew what care Ms Luse and Mr Luse provided for the child.  The Tribunal gave some evidentiary weight to those written statements as they contained some factual or detailed information substantiating the basis of their understanding of the care position.  The Tribunal also placed some evidentiary weight on the statutory declaration from the child (at page 37 of Exhibit 1) which notably was made after the registered child support case had ended when she turned 18.

5. The Tribunal notes that Mr Luse had direct communication with the child, and it was understood by the Tribunal that the child would inform Mr Luse as to what night(s) she was available to stay in his care. It is not in dispute that Mr Luse’s access to the child had gone uninterrupted during the relevant period, save for the COVID lockdown restrictions imposed by state government. Consequently, the Tribunal considers that access to the child during the relevant care period was made available by Ms Luse.

6. The Tribunal had regard to Mr Luse’s argument that he had care of the child during the day on most of the weekends that were scheduled as his care weekends in accordance with the Court Order however, not necessarily an overnight stay. Section 54A of the Assessment Act provides that the actual care of a child a person has had, or is likely to have, may be worked out based on the number of nights of care a person has for a child. The Child Support Guide recognises that there may be some occasions where only counting nights in care does not accurately reflect the caring arrangements for a child. In this regard, the Tribunal notes the evidence is that Mr Luse did have some care of the child, but that the pattern was sporadic and designated by the child. There were reasons given by both parents as to why, in that year, the child had chosen not to stay overnight at Mr Luse’s residence as she had in the past, and although accepting Mr Luse’s evidence of spending time with the child on certain days, the Tribunal considers in the circumstances of this matter that the usual rule that care follows nights in care should be applied.

7. While the evidence Mr Luse and Ms Luse gave the Tribunal was mostly conflicting, there was some common factual evidence in terms of there being reduced overnight care for the child in 2020 as their statements were consistent that the overnight care Mr Luse provided had changed in March 2020. 

8. The Tribunal considers that it was originally the parties’ intention for Mr Luse to have regular ongoing care of the child of 22% in accordance with the Court Order until the child turned 18.  However, it seems there were a number of variations in the actual care from February 2020. In the Tribunal’s assessment, it is not correct to consider the allocation of care to Ms Luse after 28 February 2020 as “missed care events” or minor variations to the Court Order, rather the overnight care provided by Mr Luse to the child establishes a percentage of care that is less than 22%. This is because when taking either party’s reported dates of overnight care into account, both calculations show that Mr Luse had significantly reduced overnight care from 22% to less than 11%, therefore less than regular care.[^2] 

   [^2] Mr Luse’s evidence of 24 nights out of 238-day care period x 365 days = 37 nights in a 12 month care period = 10%

9. In considering the evidence, including the points of consistency in the evidence presented, the Tribunal finds that the pattern of actual care for the relevant period is to be regarded. Ms Luse has provided a detailed and carefully considered account of the provision of care in 2020 and on balance, the Tribunal considered her oral and documentary evidence to be reliable and preferred in this matter. 

10. Having regard to all of the evidence and, despite the number of inconsistencies in the evidence as to what care was actually being provided throughout 2020 and whether changes in care were minor variations or otherwise, the Tribunal is satisfied that, with minor variations, the pattern of care between 1 March 2020 and [date] October 2020 was that Ms Luse had majority of care of the child and Mr Luse had less than regular care of only 9 nights. That equates to care percentages of 4% to Mr Luse and 96% to Ms Luse from 1 March 2020 to [date] October 2020, and the Tribunal so finds. These care percentages would lead to different cost percentages if they were applied to the child support case and therefore a change in percentage of care determinations is necessary.

Issue 2 – Should the existing percentage of care determination be revoked?

1. The child support legislation requires that before new percentage of care determinations can be made, the existing percentage of care determinations must be revoked. The provisions relating to the revocation of a determination of a person’s percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Assessment Act.

2. Care determinations can be revoked pursuant to section 54F, 54G or 54H. One of the requirements of section 54F is that section 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G.

3. Subsection 54G(1) of the Assessment Act provides for the mandatory revocation of an existing care percentage determination in specified situations where there is less than regular care for a parent and the change in care was notified to the Agency within a reasonable period. Each criterion of subsection 54G(1) as set out in paragraphs (a) to (d) must be satisfied in order for an existing care percentage determination to be revoked under the provision.

4. In considering the evidence, the Tribunal finds that the requirements of paragraphs 54G(1)(a), (b) and (c) were satisfied, as follows:

   (a) The Tribunal has found that there were existing percentage of care determinations made under section 50 of the Assessment Act for Ms Luse and Mr Luse for the child pursuant to which Mr Luse was recorded as having 22% care, that is at least regular care, from 18 November 2014 – paragraph 54G(1)(a).

   (b)  The Tribunal has found that Mr Luse has had less than regular care from February 2020 despite the finding that Ms Luse made the child available to Mr Luse at all relevant times – paragraph 54G(1)(b).

   (c) A percentage of care determination for the child had been made under section 50 for Ms Luse – paragraph 54G(1)(c).

5. As regards to paragraph 54G(1)(d), Ms Luse notified the CSA on 20 January 2021 of Mr Luse’s less than regular care of 22% from February 2020. The Tribunal acknowledges Ms Luse’s stated frustration with CSA’s administrative process however, the evidence shows that she did not notify the change of care until 3 months after the child support case had ended, such that the Tribunal does not consider the notification on 20 January 2021 was within a period that was reasonable in the circumstances. Consequently, in the Tribunal’s view, paragraph 54G(1)(d) is not satisfied and therefore section 54G does not apply to this matter.

6. Turning therefore to section 54F of the Assessment Act, it provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

1. The Tribunal observes that the objections officer concluded that no change to the recorded care percentages could be made because they were not satisfied that there was sufficient evidence that a change in care occurred. However, section 54F of the Assessment Act provides for revocation of existing percentages of care and the determination of new percentages of care if the CSA is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care.

2. Notwithstanding Ms Luse’s belated notification, it had the result that the CSA became aware that the actual care did not correspond with the care recorded for a certain past period. In those circumstances and in light of section 51 of the Assessment Act not applying in this matter, the existing percentages of care of 22% to Mr Luse and 78% to Ms Luse are to be revoked before new determinations of percentages of care of 4% to Mr Luse and 96% to Ms Luse for the relevant care period are made.

3. In summary, the Tribunal has found that from 1 March 2020 until the end of the child support case (238 days), Mr Luse had the child in his care for 4% of the time and Ms Luse had the child in her care for 96% of the time. This did not correspond with the existing percentages of care determinations of 78% to Ms Luse and 22% to Mr Luse. Based on the above finding pursuant to section 54F, the Tribunal must revoke the existing percentage of care determinations.

Issue 3 – What is the date of effect of change of care percentage determinations?

41.The date of effect of revocation of care percentage determinations, and the consequential commencement of new care percentage determinations, depends on when the CSA is notified or otherwise becomes aware of the change of care. 

42.As regards to the date of effect of revocation of care percentage determinations, there is the possibility of differential dates of effect depending on when the CSA is notified of the change and whether there is an increase or a decrease in the care level. If the CSA is notified of a change in care more than 28 days after the care change occurred, pursuant to subsection 54F(3) of the Assessment Act the date of revocation for the person with increased care is from the date of notification and the date of revocation for the person with decreased care is from the change of care day.

1. From the evidence, the Tribunal finds that Ms Luse first notified the CSA of the changed care arrangements on 20 January 2021, which was more than 28 days after the change occurred on and from 1 March 2020. This matter is somewhat unusual in that Ms Luse’s notification was some time after the child support case had closed.  When queried as to the reason for her notification to the CSA being 3 months after the child support case had ended, Ms Luse told the Tribunal that her application to the Tribunal was a culmination of her response to the letter she received from CSA dated 18 January 2021 concerning child support assessment adjustments for earlier financial years and her request that the care percentages for a certain period in 2020 be recorded accurately by the CSA as a different care percentage would have a notable effect on the child support cost assessment for that relevant care period.

44.The child support legislation imposes an obligation to notify of a change in care and although there is no limitation on when a responsible person may notify of a change in care, the legislation was amended in 2018 so that where the responsible parties have failed to comply with the obligation within a reasonable period (28 days), then neither party benefits by the date of effect provisions (see the Child Support Guide at 2.2.2). Therefore, the revocation of the existing percentage of care determinations can only take effect: from 28 February 2020 in relation to Mr Luse (subparagraph 54F(3)(b)(ii)); and from 19 January 2021 in relation to Ms Luse (subparagraph 54F(3)(b)(i) of the Assessment Act).

1. It follows that the decision of the CSA of 24 June 2021 will be set aside and the Tribunal will substitute a new decision. 

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the child:

·     the care percentage determination of 22% to Mr Luse is revoked from 28 February 2020 and replaced with a new care percentage determination of 4% with effect from 1 March 2020; and

·     the care percentage determination of 78% to Ms Luse is revoked on 19 January 2021.  As this is a date after the registered child support case ended, the new care percentage of 96% will not come into effect.

Ms Luse’s evidence of 9 nights out of 238-day care period x 365 days = 14 nights in a 12 month care period = 4%