Mahjoub and Bolt (Child support)

[2020] AATA 2173

Mahjoub and Bolt (Child support) [2020] AATA 2173 (9 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018258 and

2020/SC018260

APPLICANT:  Mr Mahjoub

OTHER PARTIES:  Child Support Registrar

Ms Bolt

TRIBUNAL:Member F Staden

DECISION DATE:  9 May 2020

DECISIONS:

The tribunal affirms the 20 August 2019 objections officer decision under review whereby the care percentages for the children are 38% to Mr Mahjoub and 62% to Ms Bolt from 21 March 2019.

The tribunal sets aside the 7 January 2020 objections officer decision under review and, in substitution, decides to reject Ms Bolt’s 31 July 2019 application for a change to her percentage of care for the children from 5 July 2019.

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 – first decision under review affirmed – second decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

1. Mr Mahjoub and Ms Bolt are the separated parents of [Child 1], born 2007, and [Child 2] and [Child 3], born 2010 (the children). This review is about the care percentages used for the children in the child support assessment.

2. The care percentages used by the then Department of Human Services – Child Support (Child Support) in the assessment from 27 September 2011 were 58% to Ms Bolt and 42% to Mr Mahjoub.

21 March 2019 care change notification

1. On 21 March 2019, Ms Bolt informed Child Support that the care percentages derived from a 16 January 2012 parenting agreement between herself and Mr Mahjoub had been wrongly calculated and her care percentage was higher than 58%. She said that since 2011 the pattern of care for the children was nine nights a fortnight with Ms Bolt and five nights a fortnight with Mr Mahjoub in school terms, with the school holidays being equally divided.

2. On 10 April 2019, Mr Mahjoub told Child Support that he agreed that the basic care pattern was as described by Ms Bolt but stated that he provided additional nights of care for the children as requested by Ms Bolt.

3. On 16 May 2019, Child Support decided to accept Ms Bolt’s application to change the care percentages used for the children: From 21 March 2019, Ms Bolt’s care percentage was 62% and Mr Mahjoub’s was 38% based on the agreed basic care pattern.

4. On 19 June 2019, Mr Mahjoub lodged an objection to the 16 May 2019 decision. He argued that there was no change to the care pattern which had previously been found by Child Support to be represented by care percentages of 58% for Ms Bolt and 42% for Mr Mahjoub.

5. On 20 August 2019, an objections officer disallowed Mr Mahjoub’s objection on the basis that both parties agreed that the care pattern was nine nights a fortnight with Ms Bolt and five nights a fortnight with Mr Mahjoub during school terms, with the school holidays shared equally, and that that equated to care percentages of 62% for Ms Bolt and 38% for Mr Mahjoub. The officer found that as there was no regular pattern to any extra nights of care provided by Mr Mahjoub, they could not be included in the care percentage calculations.

1 July 2019 care change notification

1. On 1 July 2019, Ms Bolt applied to Child Support to have her care percentage for the children changed to 100% from 25 June 2019, stating that Mr Mahjoub refused to care for the children until a care arrangement was agreed in mediation.

2. On 3 July 2019, Mr Mahjoub disputed that a care change had taken place.

3. On 9 July 2019, Ms Bolt agreed that the care change she thought would happen had not.

4. On 9 July 2019, a Child Support officer rejected Ms Bolt’s application for a change in care as they were not satisfied that such a change had occurred.

31 July 2019 care change notification

1. On 31 July 2019, Ms Bolt applied to Child Support to have her care percentage for the children changed to 100% from 5 July 2019 on the basis that Mr Mahjoub had not provided care for the children since then.

2. On 12 August 2019 and 26 August 2019, Mr Mahjoub disputed Ms Bolt’s claim, arguing that Ms Bolt was withholding care of the children.

3. On 13 September 2019, Child Support decided to accept Ms Bolt’s application to change the care percentages used for the children: From 5 July 2019 Ms Bolt’s care percentage was 100% and Mr Mahjoub’s was 0%.

4. On 16 September 2019, Mr Mahjoub lodged an objection to the 13 September 2019 decision. He stated that there was now a new pattern of care whereby the children were with him three nights a fortnight and half the school holidays. He argued that the delay in putting this arrangement in place was due to Ms Bolt withholding the children.

5. On 7 January 2020, an objections officer disallowed Mr Mahjoub’s objection on the basis that it was agreed that Mr Mahjoub had not had care of the children from at least 5 July 2019 to the care change on 16 August 2019.

16 August 2019 care change notification

1. On 17 August 2019, Mr Mahjoub informed Child Support that since 16 August 2019 the pattern of care for the children was 11 nights a fortnight with Ms Bolt and three nights a fortnight with Mr Mahjoub during school terms, with the school holidays equally shared.

2. On 17 September 2019, Ms Bolt agreed that this was the pattern of care taking place. Therefore, on 17 September 2019, Child Support changed the care percentages accordingly, 73% for Ms Bolt and 27% for Mr Mahjoub from 16 August 2019.

Application for review

1. On 20 January 2020, Mr Mahjoub applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the 20 August 2019 and the 7 January 2020 objections officer decisions. 

2. A hearing was held on 22 April 2020. Mr Mahjoub and Ms Bolt gave sworn evidence by telephone. The tribunal had before it documents provided by Child Support (251 pages regarding 20 August 2019 objections officer decision and 280 pages regarding 7 January 2020 objections officer decision), a copy of which was sent to the parties before the hearing.

3. Relevant evidence before the tribunal is referred to in the consideration below.

ISSUES

1. The statutory provisions most relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, Child Support’s online technical and policy guide to the administration of the child support scheme.

2. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula includes a care percentage and an associated cost percentage for each parent in relation to each child. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

3. Sections 49 and 50 of the Assessment Act require Child Support, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless Child Support or Services Australia – Centrelink are otherwise advised.

4. There are two objections officer decisions under review here, that of 20 August 2019 and that of 7 January 2020. The issues which arise in both are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when?

CONSIDERATION

21 March 2019 care change notification

Care arrangements

1. Mr Mahjoub and Ms Bolt had a long-standing care arrangement based on a 16 January 2012 parenting agreement (the agreement) whereby Ms Bolt cared for the children for nine days a fortnight and Mr Mahjoub for five days a fortnight in school terms, with the school holidays equally shared. Mr Mahjoub argued that he cared for the children for several extra nights over a year as requested by Ms Bolt. Ms Bolt denied that any extra days occurred sufficiently regularly to be considered in the assessment.

2. Relevantly here, the agreement provides that:

   ·     The children live with Ms Bolt;

   ·     Each fortnight the children spend time with Mr Mahjoub as follows:

   o   Friday, Saturday, Sunday, Monday and Tuesday including overnight in week one; and

   o   On week two, from after school to 7-30pm on Monday and/or Tuesday.

   ·     Holidays to be shared on a rotating basis as mutually agreed.

3. It would appear that the original care percentage calculations incorrectly interpreted “On week two, from after school to 7-30pm on Monday and/or Tuesday” to mean that Mr Mahjoub would have one night of care in week two and did not allow for school holidays. This was understandable as the younger children were then under two. Care of six nights a fortnight (five nights one week plus one night the next) equates to a care percentage of 42% (156 nights), the care percentage initially attributed to Mr Mahjoub.

4. Careful reading of the agreement indicates that the pattern of care outside of holidays is five nights, not six, a fortnight with Mr Mahjoub, with no overnight care in week two and the rest of the time with Ms Bolt. This accords with the evidence about care of both parties, with both parties also agreeing that school holidays are equally shared.

5. Thus, Mr Mahjoub’s care percentage, both under the agreement and in practice, is 38% (142 nights – (5x20 fortnights) + (7x6 fortnights) nights), with Ms Bolt’s care percentage being 62%. The tribunal was not persuaded on the evidence that Mr Mahjoub provided a significant number of additional care nights over a year or that there was any regularity to any additional nights that he did provide.

Should the existing care percentages be revoked?

1. Subsection 54F(1) of the Assessment Act sets out the circumstances in which a determination of care percentage must be revoked if there is a change to cost percentages. The tribunal is satisfied that those circumstances exist in this case:

   ·     On 21 March 2019, Ms Bolt informed Child Support that the actual care of the children did not correspond to the existing care percentage determinations.

   ·     If the care percentages for the children are changed in line with the pattern of care finding above, each parent’s cost percentage will change: Mr Mahjoub from 39% to 31% and Ms Bolt from 61% to 69%.

   · The tribunal was satisfied that section 54G of the Assessment Act does not apply here.

   ·     The tribunal found that the care percentages used in the assessment did not reflect the care arrangements under the agreement and had not done so since 16 January 2012.

2. As the requirements for revocation in subsection 54F(1) of the Assessment Act were met, the tribunal revoked the existing care percentage determinations for Mr Mahjoub and Ms Bolt.

3. Subsection 54F(3) of the Assessment Act sets out when the revocation of the determinations takes effect. The date of effect depends on whether Child Support was notified of the care change within 28 days of when it occurred.

4. Ms Bolt informed Child Support that the care percentages for the children were incorrectly calculated on 21 March 2019. As this was many more than 28 days after the incorrect care percentages were determined, under paragraph 54F(2)(c), the revocation of the existing determinations takes effect on 20 March 2019, the day before the day of the notification.

Should new care percentage determinations be made and, if so, from when?

1. If a person’s existing care percentage determination for a child is revoked, there is a requirement under sections 49 and 50 of the Assessment Act that a new care percentage be determined if that person has had or is likely to have a pattern of care in the period the Child Support Registrar (here the tribunal) considers to be appropriate having regard to all the circumstances.

2. Based on the likely pattern of care finding derived from the agreement above, the tribunal determined that:

   · Under section 50 of the Assessment Act, Mr Mahjoub’s care percentage for the children is 38% and that of Ms Bolt is 62% from 21 March 2019.

3. The tribunal therefore affirmed the 20 August 2019 objections officer decision under review.

31 July 2019 care change notification

Care arrangements

1. Mr Mahjoub and Ms Bolt agree that a new care arrangement began from 16 August 2019. The question here is whether there was another change in care between 21 March 2019 and 16 August 2019.

2. The tribunal noted that between 21 June 2019 to 16 August 2019 there were three periods in which Mr Mahjoub was expected to provide care for the children under the agreement and as identified in the 2019 care calendar Ms Bolt provided to Child Support: the five nights of 21 June 2019 to 25 June 2019; the nine nights of 1 July 2019 to 9 July 2019 (school holidays); and the five nights of 2 August 2016 to 6 August 2019.

3. There is some confusion about the dates on which care by Mr Mahjoub actually occurred. The tribunal preferred the parties’ evidence to Child Support closest in time to the projected care dates.

4. In her 1 July 2019 care change application (see above), Ms Bolt is recorded as stating that she was the sole carer of the children from 25 June 2019. She is further recorded as stating on 9 July 2019 that the care change she thought would happen had not occurred. However, on 31 July 2019, Ms Bolt made a care change application on the basis that she had had 100% care of the children from 5 July 2019.

5. Mr Mahjoub disputed that there was any substantive change in care pattern in the period 5 July 2019 to 16 August 2019. He argued that during this time he was trying to negotiate a new care arrangement which took account of changes to his employment. There is email evidence from this period of attempts by both Mr Mahjoub and Ms Bolt to make care arrangements such that both their needs could be met. All were unsuccessful until the 16 August 2019 care change occurred.

6. After consideration of the evidence before it, the tribunal found that there was not a new likely pattern of care established from 5 July 2019. Rather there was a temporary disruption to the existing pattern of care which was resolved in the new care arrangements which commenced from 16 August 2019.

Should the existing care percentages be revoked?

1. For an existing care percentage to be revoked, it must first be found that there has been a change in the pattern of care. A temporary departure from an established pattern of care will not generally be considered to constitute a change to that pattern of care.

2. The tribunal found above that a change to the likely pattern of care did not occur in the period between 21 June 2019 and 16 August 2019. Therefore, the existing care percentages of 38% to Mr Mahjoub and 62% to Ms Bolt should not be revoked.

3. The tribunal therefore set aside the 7 January 2020 objections officer decision under review and rejected Ms Bolt’s 31 July 2019 application for a change to her percentage of care for the children from 5 July 2019.

DECISIONS:

The tribunal affirms the 20 August 2019 objections officer decision under review whereby the care percentages for the children are 38% to Mr Mahjoub and 62% to Ms Bolt from 21 March 2019.

The tribunal sets aside the 7 January 2020 objections officer decision under review and, in substitution, decides to reject Ms Bolt’s 31 July 2019 application for a change to her percentage of care for the children from 5 July 2019.