Malghum and Allitt (Child support)

[2022] AATA 952

Malghum and Allitt (Child support) [2022] AATA 952 (24 March 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022982

APPLICANT:  Mrs Malghum

OTHER PARTIES:  Mr Allitt

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  24 March 2022

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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 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. This application relates to a decision by Services Australia – Child Support (the Agency) relating to the particulars of the assessment in the child support case for the children [Child 1] and [Child 2].

2. A child support case has been registered with the Agency since 14 October 2010, where Mr Allitt is the payer of child support and Mrs Malghum the payee.  Under the administrative assessment of child support, the particulars of care recorded by the Agency included that Mrs Malghum had 76% care of [Child 1] and Mr Allitt had 24% care of [Child 1], and Mrs Malghum had 16% care of [Child 2] and Mr Allitt had 84% care of [Child 2] from 22 February 2020.

3. On 30 August 2021, Mrs Malghum contacted the Agency to advise she had had the children for 100% of the time from 20 August 2021. 

4. On 20 October 2021, an employee of the Agency made a decision refusing to revoke the existing determination of care.

5. Mrs Malghum lodged an objection to this decision on 20 October 2021.

6. On 14 December 2021, an objections officer of the Agency disallowed the objection.

7. On 20 December 2021, Mrs Malghum made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision. 

8. The Tribunal hearing was conducted on 24 March 2022, on which date Mrs Malghum and her legal representative [Mr A] attended the hearing to speak to the Tribunal in person and Mr Allitt spoke to the Tribunal by conference telephone.  Both parties gave evidence on affirmation.  At the hearing the Tribunal had before it documents provided by the Agency (1 to 211) and documents provided by Mrs Malghum (A1 to A94).  Copies of the documents were provided to the parties prior to the hearing and they confirmed receipt of all documents with the Tribunal.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988.  The legal issues for the Tribunal in this matter are whether the existing determinations of care in respect of the two children are to be revoked, and a new care determination made, arising from Mrs Malghum’s contact with the Agency on 30 August 2021.

2. The relevant provisions for the Tribunal to consider are set out in sections 54F, 54G and 53H of the Assessment Act. Each of these provisions, while phrased differently, requires that the Tribunal consider whether there has been a change to the pattern of care of the children of the assessment.

3. The Child Support Guide (the Guide), at 2.2.2, notes that, when considering whether to make a new care determination, consideration is to be given as to whether there has been a change to the existing pattern of care, an identification of the event that is relevant to the changed care pattern and the percentage of care that is likely to occur in a care period following this event.  The Guide notes that what constitutes a change to the pattern of care will depend upon the individual circumstances of the case and also notes that not all changes in care will result in a change to the care pattern.  For example, minor departures from the normal pattern of care, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care and will not result in a new care determination.  The Guide further notes that, where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that a person has 100% care although they are not expected to continue to have that level of care.  In these circumstances, care may be determined over a short care period and, when care returns to the normal pattern, a party may notify the Agency of the change in care.  The period of unexpected care, though, will generally need to be at least four weeks in length in order for the Agency to make such a determination, although shorter periods can be considered, especially where there is a possibility the period may be extended.[1] 

   [1] Child Support Guide, 2.2.2, at

4. The Tribunal is not bound by the policy of the Agency.  However, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the Tribunal accepted that the policy is consistent with the objects of the Assessment Act and assists the Tribunal in making a determination in accordance with the relevant legislation.

5. Mrs Malghum’s representative submitted on her behalf at the hearing that Mrs Malghum is seeking that a decision be made by the Tribunal that is consistent with the Family Court Order made in 2013 that [Child 2] lives with Mrs Malghum and spends time with Mr Allitt from Thursday to Monday in one week and Wednesday to Thursday on alternate weeks and for half of school holidays and that the care arrangements over a twelve month period, from February 2021 when care had changed to February 2022, should be considered by the Tribunal.

6. Mrs Malghum gave evidence to the Tribunal that care that had been occurring during 2021 was similar to the Court Order and that the children had moved between the two houses together most of the time.  The Tribunal heard from Mrs Malghum that, while [Child 1] had turned 18 in July 2021, an application for an extension of the child support assessment for [Child 1] had been granted by the Agency and that the child support assessment for [Child 1] had been extended to 17 November 2021.  Mrs Malghum was unable to explain to the Tribunal the significant differences that the Agency had maintained for each child about each parent’s level of care, stating to the Tribunal that she had spoken to the Agency many times about the care arrangements and felt that they had not accepted her evidence about the care of the children.  Mrs Malghum gave evidence that during 2021 she had provided around 60% care of [Child 1].  She gave evidence that her care of [Child 1] had been less during the first half of 2021, probably around 40%. 

7. The Tribunal asked about Mrs Malghum’s contact with the Agency on 30 August 2021 and, consistent with what she had described to the Agency and the texts and other evidence she had provided to the Agency, she told the Tribunal that Mr Allitt had been in quarantine and she had requested a reassessment of her care to 100% for the children.  The Tribunal asked why, given her representative’s submissions that care had changed back in February 2021, she had not contacted the Agency earlier and she stated that she had always called about care changes. 

8. Mrs Malghum gave evidence that the children had returned to Mr Allitt on 5 September 2021 and stayed with him until 11 September 2021 and the Tribunal noted that this was consistent with the calendar and notes Mrs Malghum had provided to both the Agency and to the Tribunal.  The Tribunal noted during the hearing that there was a record in the Agency documents of Mrs Malghum telling the Agency that the children had only gone to Mr Allitt’s house during the day on Father’s Day (5 September) and that “the children have only returned to him from 11/9/21, they did not see him for Father’s Day, just a day time visit”.[2]  Mrs Malghum responded no, her calendar says that they had stayed.  When asked again by the Tribunal why she may have indicated this to the Agency, Mrs Malghum then stated that the record may be referring to August. 

   [2] Folio 146.

9. Mrs Malghum stated to the Tribunal that after the two week quarantine period, the children had been with Mr Allitt in accordance with what the Court Order had provided, so she had had 60% care of the children since then.

10. Mr Allitt gave evidence to the Tribunal that the Court Order had not been followed for a number of years and that the percentage of care he had had of each child was what is reflected in the administrative assessments of child support.  Mr Allitt stated that this Tribunal (differently constituted) had looked at the care arrangements and made a decision on 13 July 2021 and that this had been determined on appeal on 7 January 2022, and that in both hearings the calendars and evidence of the parties had been extensively examined and Mrs Malghum’s evidence had been found to be inconsistent. 

11. Mr Allitt gave evidence that he had had to isolate due to being in contact with a COVID-positive patient through his employment and that his employer had required he quarantine from 20 August to 2 September 2021.  He stated that the care of both children returned to the “usual pattern” after that time and that, given this, there was no change in care.  He noted that the care calendar he had provided to the Agency differed from the evidence given by Mrs Malghum to the Agency.

12. Mr Allitt stated to the Tribunal that, since August 2021, there have been another one to two change of care notifications made to the Agency, for which the parties are still awaiting a primary decision to be made by the Agency. He submitted that there had been no change to the pattern of care due to his quarantine requirements, that there had been a decision made by this Tribunal prior to that time and that there were subsequent care decisions pending before the Agency.

13. [Mr A] submitted on behalf of Mrs Malghum, after the parties had given their evidence, that Mrs Malghum is seeking that the care arrangements not be looked at narrowly but rather that the pattern from August 2021 to the present be considered and that his client’s diary shows a consistent pattern.  [Mr A] submitted that Mrs Malghum has been to the Agency a number of times and it is appropriate for the Tribunal to deal with the matter by making a “more substantive decision” to avoid the parties having to continue returning to the Tribunal.  [Mr A] submitted that Mrs Malghum has been frustrated dealing with the Agency and feels that the care is not being looked at in a global fashion by the Agency.  [Mr A] noted that the evidence given by the parties as to what care had been occurring differed according to the calendars they had each provided to the Agency.

14. In weighing up the positions of each of the parties, the Tribunal notes that, at each point the Agency is advised of a change of care and makes a decision whether to revoke an existing determination of care or not (a “care decision”), the parties have a right of internal review within the Agency,[3] and then to this Tribunal.[4]  The Tribunal heard from Mr Allitt, and Mrs Malghum did not dispute, that there has been a previous application to this Tribunal in mid-2021 relating to the care of the children and that there have been further notifications of care changes to the Agency since August 2021, which Mr Allitt submits the parties are still awaiting a primary decision on.

    [3] Child Support (Registration and Collection) Act 1988, section 80A.

    [4] Child Support (Registration and Collection) Act 1988, section 89.

15. The Tribunal does not consider that the law or the circumstances of this particular case make it appropriate for the Tribunal to make broad or global findings about what the care arrangements for the children have been from February 2021 onwards, which [Mr A] has urged the Tribunal to do. The decision under review, that gives the Tribunal its jurisdiction in this matter, relates specifically to Mrs Malghum’s contact with the Agency on 30 August 2021 and whether the provisions in sections 54F, 54G or 54H were enlivened at that point in time. As noted above, this requires the Tribunal to consider whether, as of that date, there was a change in the care arrangements or anticipated care arrangements such that a revocation of the care determination in place at that point should be revoked.

16. Also as noted above, not all changes to care arrangements will lead to the revocation of an existing determination of care.  The 16 day block of care that Mrs Malghum provided while Mr Allitt was isolating is somewhat more than the weekend of missed care discussed in the Guide, but somewhat less than the four weeks the Guide suggests is appropriate for a change in care to be recognised.  In making a decision in this matter, the Guide has therefore been of broad assistance but not decisive. 

17. The Tribunal finds on the evidence before it that the two children of the assessment were in Mrs Malghum’s care from 20 August 2021 to 4 September 2021 due to Mr Allitt being required by his employer to isolate.  The Tribunal finds that the children were in Mr Allitt’s care from 5 to 11 September 2021.  The Tribunal finds that both parents have had a level of care of the children since 11 September 2021, but that specific dates and the pattern of care is disputed.  The Tribunal is prepared to accept Mr Allitt’s evidence that there have been subsequent notifications to the Agency of changes to care arrangements which are currently under consideration by the Agency. 

18. The Tribunal finds that the period of time Mrs Malghum provided care to the children from 20 August 2021 to 4 September 2021 was a temporary change to the care arrangements caused by an unexpected event and that it did not signify a significant or ongoing change of care at that point in time.  The Tribunal finds that the disputed care arrangements that occurred after Mr Allitt resumed spending time with the children do not form part of the decision before this Tribunal in this instance and are more appropriately dealt with within the Agency after full consideration of evidence provided by the parties, and from which separate appeal rights will flow. 

19. For these reasons, the Tribunal has concluded that the Agency’s decision to refuse to revoke the existing determination of care arising from Mrs Malghum’s contact with the Agency on 30 August 2021 is legally correct and this decision is therefore affirmed. 

DECISION

The Tribunal affirms the decision under review.