Madsen and Child Support Registrar (Child Support)

[2019] AATA 4862

Madsen and Child Support Registrar (Child Support) [2019] AATA 4862 (31 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016784

APPLICANT:  Mr Madsen

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Trotter

DECISION DATE:  31 July 2019

1. The decision of the Tribunal and the reasons for the decision were delivered orally on 31 July 2019.

2. The oral reasons have been transcribed and edited. The following paragraphs are the reasons for the Tribunal’s decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – minor changes to pattern – existing percentage of care determinations not to be revoked – 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

1. The Tribunal’s decision is to set aside the decision under review and in substitution decide that [Ms A] is to be recorded as having 86% care and Mr Madsen is to be recorded as having 14% care of [Child 1] continuing from 27 January 2019.

1. Mr Madsen and [Ms A] are the parents of [Child 1] (born September 2002).

2. This review application concerns a decision of the Department of Human Services - the CSA (the CSA) about the recorded care for [Child 1] in relation to a child support case which is registered with the CSA.

3. As at 22 February 2019, the existing level of care recorded for [Child 1] by the CSA was 86% to [Ms A] and 14% to Mr Madsen, when [Ms A] contacted the CSA on 22 February 2019 and notified the change of care seeking to change the care percentages recorded for [Child 1] to 92% to her and 8% to Mr Madsen from 27 January 2019.

1. On 4 April 2019, the CSA changed the existing level of care recorded to 92% to [Ms A] and 8% to Mr Madsen from 27 January 2019. Mr Madsen objected to that decision seeking to have the recorded care continued at 86/14% respectively.

1. On 6 June 2019, the CSA disallowed Mr Madsen’s objection.

2. Mr Madsen lodged an application for a review of that decision with the Tribunal on 20 June 2019. As a person whose interests might be affected by the Tribunal’s decision, [Ms A] was added as a part to Mr Madsen’s application but declined to participate and was removed as a party.

10.  The hearing of the application took place on 31 July 2019. Mr Madsen spoke to the Tribunal in person and gave evidence on oath. The Child Support Registrar did not participate in the hearing and did not attend.

11.  In considering the application, the Tribunal took into account the oral evidence of Mr Madsen, the documentary material provided by the CSA marked Exhibit 1 and a further bundle of documents provided by Mr Madsen marked Exhibit 2.

12.  The law relevant to this review is contained in the Child Support Assessment Act 1989. The Tribunal has also had regard to the CSA’s Child Support Guide where relevant.

13.  In the usual course of events the CSA acting for the Child support Registrar makes child support assessments using a statutory form under Part 5 of the Act.

14.  The formula contains a number of elements called “particulars of the assessment”, which include parameters such as recorded percentages of care for each parent in relation to each child.

15.  The scheme of the Act is essentially that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

16.  Section 49 of the Act applies relevantly if the parent has had or is likely to have no pattern of care for a child during such care period as the Registrar considers to be appropriate having regard to all the circumstances.

17.  Section 50 applies relevantly if the parent has had or is likely to have a pattern of care for the child during such care period as the Registrar considers to be appropriate to have regard to all the circumstances.

18.  A care period is ordinarily considered to be a period of 12 months from the day on which the actual care of a child began or changed. The same care arrangement will then be assumed to apply for the subsequent 12 month period unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new decision is made.

19.  There are some circumstances where declaring the care over a shorter or longer care period may be applied but a period of 12 months is the usual period.

20.  Both Section 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case a parent can notify the CSA and a new care determination can be made from the date of the change. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based on what has happened until the day of notification and what is likely to happen thereafter.

21.  Any new care determination takes effect from the date the care changed, or if the Registrar is not notified within 28 days of care changing then the date of notification. The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes so that a new child care percentage decision or decisions can then be considered and made if appropriate.

22.  The issue to be determined by the Tribunal is the likely pattern of care of [Child 1] from 27 January 2019. The Tribunal heard evidence from Mr Madsen at hearing including as follows:

(a)Regular care of [Child 1] has been maintained by him for many years, ever since the case was registered with the CSA, probably over a period of eight or nine years.

(b)[Child 1] spent 25 nights of care with him over the holidays immediately prior to 27 January 2019.

(c)He was quite shocked when made aware of the decision that had been made by the CSA because he had not been given an opportunity initially to respond to the notified change of care.

23.  There was some discussion at hearing about the history of the matter and the way in which care had been organised in the past. The Tribunal accepts that generally speaking there had been agreement between the parents of [Child 1] in the past and that care continued over an extended period of time pursuant to the percentages of care that were recorded as at 27 January 2019, that is 86% to [Ms A] and 14% to Mr Madsen, consistent with a Court Order in relation to care dated 10 November 2016.

24.  The Tribunal accepts that this pattern of care continued over an extended period despite very significant changes in the parties’ circumstances from time to time, including a period of time when [Ms A] and the children resided in [another country] for a period of approximately two years and when, despite the practical difficulties this raised, regular care was still maintained including because of the efforts of Mr Madsen to ensure that regular care was maintained.

25.  In relation to 27 January 2019, Mr Madsen’s evidence was that he was expecting at that time that care of [Child 1] would continue as regular care and that would stay intact. He told the Tribunal that he was notified by [Ms A] that [Child 1] had started a part-time job. Further he told the Tribunal that consistent with the arrangements that had been happening with [Child 1] as a young teenager, communicating directly with him for the most part, he and she had had discussions when it was generally agreed and accepted that for the first five to six week period of Term 1 of 2019 [Child 1] would probably only stay with him one night per fortnight rather than the two nights per fortnight she normally would. In this regard Mr Madsen told the Tribunal of the sorts of matters that had been taken into account in coming to that decision including because of [Child 1’s] part-time job and her not wanting to jeopardise that position by having to ask for more time off than necessary or to arrange shifts that might put the job in jeopardy.

26.  In any event, Mr Madsen’s evidence was that in that first five to six week period there was about three nights missed and those nights were subsequently made up.

27.  The Tribunal discussed with Mr Madsen that as recorded in the CSA’s objection decision of 6 June 2019, it appears that Ms [A]’s position was there had never been any discussion of any missed nights being made up or of that actually happening. Mr Madsen again noted that by this time most arrangements had been arranged between him and [Child 1] himself, as would be expected of a child of Child 1’s] then age.

28.  In any event Mr Madsen also referred the Tribunal to evidence before it including his statutory declaration which appears at page 161 of Exhibit 1, setting out the actual care that did occur in Term 1 and Term 2 of 2019 and also the table at page 91 of the documents.  

29.  Having had regard to all of the evidence before it, the Tribunal is satisfied that over the course of Term 1 and Term 2, Mr Madsen had 33 nights of care of [Child 1], which is consistent with the 14% care that he was to have pursuant to the court order.

30.  In relation to whether it might be seen that there might be variations with the pattern of care that was occurring and the court order that was being followed, the Tribunal notes that whilst there were variations to the pattern of care, the Tribunal is satisfied that those variations were made up. But in any event, the Tribunal observes that minor variations can and do occur in expected or likely care patterns and in the Tribunal’s view, these types of minor variations in care do not amount to a change of care to the expected pattern of care, particularly when having regard to the normal contingencies of life and further having regard to the normal matters that arise, particularly for children of an age of [Child 1] in terms of sporting and other commitments, including part time job commitments that very ordinarily arise at around this age.

31.  Again, the Tribunal does not view that these types of minor variations in care as amounting to a change to an expected pattern of care, particularly in circumstances where the minor variations are often made up in other ways. In any event, even where changes in care are not necessarily made up in other ways, the Tribunal considers any variations in relation to Mr Madsen’s care of [Child 1] from 27 January2019 were minor and not change the expected or likely pattern of care.

32.  The Tribunal observes for completeness that there has been a subsequent notification of care change by Mr Madsen to the CSA by letter of 29 July 2019 in relation to [Child 1] now being 100% in his care.

33.  As discussed at hearing with Mr Madsen, that matter is a separate matter and not within the power of the Tribunal to consider in relation to this application. It would be expected that that subsequent change of care would now be actioned by the CSA in the usual manner following a subsequent notification of change of care to the pre-existing pattern of care.

34.  In any event, as is clear from these reasons and as has already been indicated, the Tribunal is satisfied that care of care of [Child 1] from 27 January 2019 continued to be 86% care to [Ms A] and 14% to Mr Madsen and as already stated, that has resulted in the Tribunal setting aside the decision under review and substituting the decision that 86% care to [Ms A] and 14% care to Mr Madsen is to continue to be recorded from 27 January 2019. This effectively continues the previously recorded care for [Ms A] and Mr Madsen until such time as the CSA may make a determination to make a subsequent change of care based upon any further notification of change such as Mr Madsen’s notification dated 29 July 2019.