Marler and Marler (Child support)

[2024] AATA 778

Marler and Marler (Child support) [2024] AATA 778 (14 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC027201

APPLICANT:  Ms Marler

OTHER PARTIES:  Child Support Registrar

Mr Marler

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  14 February 2024

DECISION:

The decision under review is varied so that a percentage of care of 61% applies for Ms Marler and a percentage of care of 39% applies for Mr Marler from 13 June 2023, not 1 July 2020.

Subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 10 October 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – new care percentage determinations made – date of effect provisions - decision under review varied

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. As relevant to this application, Ms Marler and Mr Marler are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Children 1 and 2] (the children). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for the children utilised in calculation of the child support liability for the child support case which commenced from 13 June 2023.

2. On 6 July 2023,[1] Child Support decided to accept a 13 June 2023 application for assessment of child support by Mr Marler and determined percentages of care of 61% for Ms Marler and 39% for Mr Marler of the children from 1 July 2020 effective in the child support case from 13 June 2023.

   [1] The Tribunal observes that Child Support, in the heading of its 4 December 2023 objection decision, has referred to the original decision as having been made on 13 June 2023 however it is clear the decision was made on 6 July 2023.

1. On 10 October 2023, Ms Marler objected to this decision and, on 4 December 2023, a Child Support objections officer disallowed the objection.

1. On 15 December 2023, Ms Marler lodged an application with the Tribunal seeking an independent review of Child Support’s decision, stating as follows:

   I have updated care details that have not been recorded.

1. The hearing of the application was held on 12 February 2024. Ms Marler and Mr Marler both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Marler and Mr Marler and the documentary material provided by Child Support to the Tribunal, Ms Marler and Mr Marler (Exhibit 1, pages 1 to 194). The Tribunal also took into account the documents provided by Ms Marler (marked Exhibit A, pages A1 to A36) and Mr Marler (marked Exhibit B, pages B1 to B27).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

3. The issues to be determined by the Tribunal are the percentage of care determinations to apply for each parent and the date from which those percentage of care determinations apply.

CONSIDERATION

1. Ms Marler’s position is that the percentages recorded for child support are incorrect – it should be 65% for her and 35% for Mr Marler. When queried as to how she had calculated the percentages, Ms Marler told the Tribunal that she is not very mathematically minded but when she spoke to someone on the phone at Centrelink, they said it should be 65%/35%.

2. Ms Marler’s evidence was that she and Mr Marler separated in August 2019, initially continuing to live under the same roof with the children until July 2020. The living position then changed and it was decided that she would have 9 nights care of the children per fortnight and Mr Marler would have 5 nights care of the children per fortnight.

3. Mr Marler agreed that Ms Marler’s evidence as to the care of the children each had was correct during school terms but said that during school holidays he had additional overnight care. Ms Marler agreed that Mr Marler did have additional overnight care during school holidays but it wasn’t necessarily every school holidays. Ms Marler said, however, that she had no idea that there could be extra money or extra days for Mr Marler for having care over the school holidays – she thought that he simply wanted to have extra care of the children and did not realise there would be extra money involved or the like. The Tribunal noted that in issue was what the actual care was and not what may have motivated the care that occurred, noting however if a person has extra care they normally would have extra costs associated with the extra care.

4. Ms Marler said that she did not keep any record of what care Mr Marler had, including over school holidays, but she does not think that he had extra care every school holiday period. Ms Marler said that Mr Marler did definitely usually have extra care over the longer school holidays (the Christmas/New Year period).

5. When queried as to how he arrived at the 61%/39% percentages of care he included in his child support application, Mr Marler said that at the time of the application he had calculated he had 145 nights of care in the 12 months leading up to that time and that was what he expected to continue to be the case going forward. The 145 nights calculation was based upon his records: calendar entries and email and text messages. 145 nights then calculates as 39% (rounded down).

6. Mr Marler’s evidence was that there were sometimes variations to him having 5 nights care every fortnight, with additional care over the school holidays. By way of example, in August 2022 he had care of the children for 19 nights straight when Ms Marler was on holidays. However, he did not include those extra nights in his 145-night calculation – he just included what his care would normally be. The Tribunal noted that 145 nights is 15 nights more than the calculation of 5 nights per fortnight for 26 fortnights (130 nights). Mr Marler agreed noting that 15 nights is generally the extra care he has of the children per year on school holidays on top of the fortnightly care.

7. Mr Marler said that on another occasion he took the children to the Gold Coast for a 10-day holiday. Mr Marler said on average he has about 3 additional nights care of the children during the 3 non-Christmas/New Year school holidays and an additional 5 nights care over the Christmas/New Year school holidays. In response, Ms Marler said that she and Mr Marler did have a general agreement where if one of them was not able to have care of the children on a particular night, they would swap nights. Mr Marler agreed that as necessary he and Ms Marler did swap nights, for example, to accommodate his work requirements and the like, but no-one was disadvantaged – they worked out the ‘swaps’ between them. As to the overall additional school holiday care of the children that Mr Marler estimated, Ms Marler said that Mr Marler definitely did usually have the extra care indicated over the Christmas/New Year school holidays (other than over the 2023/2024 school holidays) but she does not think that it was 3 nights extra care by Mr Marler every other school holiday period. Ms Marler said that she did not keep actual records but her recollection was that it wasn’t an extra care every non-Christmas/New Year school holiday period.

8. The Tribunal discussed with Ms Marler that third-party statements she had provided supported the fortnightly pattern of 9 nights care per fortnight to Ms Marler and 5 nights care per fortnight to Mr Marler but noted that the statements did not address, and therefore did not assist in relation to, the care position on school holidays.

9. Ms Marler agreed that Mr Marler did and does have at least an extra 5 nights school holiday care on top of the 130 nights care (5 nights for 26 fortnights). The Tribunal noted that even only taking into account an additional 5 nights, Mr Marler’s care would be 135 nights which equates to 36% rounded down. At issue then is whether Mr Marler’s care was and is 135 nights or further additional nights.

10. Ms Marler’s evidence was that she has not kept records because she did not think she needed to keep records. There is no criticism directed to Ms Marler for not keeping records – the Tribunal acknowledges and understands that Ms Marler did not think she needed to keep records. The Tribunal’s query in relation to whether records were kept was simply to assist the Tribunal in the fact-finding exercise it is required to undertake. Where there is inconsistent oral evidence before the Tribunal, evidence based upon the keeping of contemporaneous records may be of assistance to the Tribunal in ascertaining the actual position.

11. Mr Marler’s evidence was that he has calculated the care occurring in the 12 months prior to 13 June 2023 as 145 nights to him based upon calendar and other records he kept, with the general pattern of his overnight care of the children being 5 nights per fortnight, approximately 3 nights additional care each non-Christmas/New Year school holidays and 5 nights additional care each Christmas/New Year school holidays, as then continued from 13 June 2023 (except for the Christmas 2023/New Year 2024 period because he was absent overseas).

12. Pursuant to section 30 of the Act, when a parent has applied for administrative assessment of child support pursuant to section 25 of the Act and the application has been properly made, Child Support must accept the application. Section 31 of the Act then requires that Child Support assess the annual rate of child support payable by a parent for the days in the child support period that starts, relevantly to this matter, on the day on which the application is made. One of the variables, or particulars, required to assess the annual rate of child support is the care percentages to apply for each parent (or other responsible person as defined by the Act). Those percentages of care then generally apply for each day in the child support period on and from the application day, unless revoked (section 54B of the Act).

13. As regards determining a parent’s percentage of care, section 49 of the Act provides for when a parent has no pattern of care of a child and section 50 of the Act provides for when there is a pattern of care.

14. Based upon the evidence, the Tribunal is satisfied that there was a pattern of care of the children by both Ms Marler and Mr Marler. Care percentages for each are then to be determined having regard to the actual care a person has had, or is likely to have, during a care period. Section 54A of the Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

15. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Child Support Guide states that a care period is generally the 12-month period with the same care arrangements then assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

16. The Tribunal observes that subsequent to registration of the child support case from 13 June 2023, notifications of changes in care have been made, with subsequent decisions made or pending in relation to those subsequent notifications. Those subsequent notifications, and decisions or decisions pending, are not the subject of this application to the Tribunal. There are separate review rights in relation to subsequent decisions. However, the Tribunal notes that a subsequent care change to 100% to Ms Marler and 0% to Mr Marler was notified and accepted by Child Support from 2 December 2023. Mr Marler told the Tribunal that this related to him being overseas on holidays in December 2023/January 2024. He further noted that a further change in care notification, with care returning to 61%/39% from 11 January 2024 upon his return from holidays, was made, with a decision pending by Child Support as at the date of the hearing. Neither the 100%/0% care from 2 December 2023 decision nor the pending 61%/39% care decision from 11 January 2024 is before the Tribunal in relation to this application. However, the subsequent change in care on 2 December 2023 informs the appropriate care period for the Tribunal in relation to the decision before it for review. The Tribunal considers the appropriate care period to be the period 13 June 2023, the commencement of the child support case, to 1 December 2023. Absent an exact record of actual care from either parent for that period, the Tribunal is satisfied based on the evidence that, with minor variations,[2] the pattern of care of the children in that period was 9 nights care per fortnight to Ms Marler and 5 nights care to Mr Marler with Mr Marler having an additional 3 nights overnight care of the children during the 2 school holiday periods that occurred during that time. The appropriate calculation is therefore 5 nights per fortnight + 6 nights holiday care by Mr Marler which equates to 39.22%. 39.22% is rounded down to 39% pursuant to paragraph 54D(b) of the Act, with Ms Marler having the balance of care and a corresponding care percentage of 61%.

    [2] The Tribunal observes that the Guide recognises that minor variations in care can occur, without effecting care percentages.

17. The Tribunal therefore finds that the percentage of care determinations to apply for each parent are 61% for Ms Marler and 39% for Mr Marler.

18. As regards the date of effect of those percentage of care determinations, as has already been observed, pursuant to sections 31 and 54B of the Act, the percentages of care apply to each day in a child support period on and from the application day, that is 13 June 2023 in this case.

19. Ms Marler’s objection and subsequent application to the Tribunal was based in part upon her concern that the care percentages had been incorrectly calculated as 61% and 39% respectively. The Tribunal has found that those calculations were correct. Ms Marler’s further concern was in relation to Child Support’s decision being expressed as determining those percentages of care ‘from 1 July 2020’ with that information then being transferred and utilised by the Family Assistance Office in ascertaining Ms Marler’s family tax benefit entitlement. Ms Marler’s family tax benefit entitlement is not a matter in relation to which the Tribunal has any jurisdiction in relation to this application. However, the Tribunal acknowledges the relationship between the percentage of care determinations for Child Support purposes and the alignment of care percentages in the child support and family assistance systems, with a possible consequential impact for Ms Marler.

20. The child support legislation requires care percentage determinations to be made to inform the appropriate rate of child support payable. The percentages of care apply to that end from the application day. Child Support’s 6 July 2023 decision was notified to the parents on that basis with letters of that date advising Ms Marler and Mr Marler that the child support application had been accepted and enclosing the child support assessments from 13 June 2023. No mention was made in those letters of the care percentages applying ‘from 1 July 2020’; rather at what is best described as the ‘back end’, Child Support have nominated that those percentages of care applied from 1 July 2020, presumably informed from Mr Marler’s indication of that date in his application, being the date the parents commenced living separately. Although not stated in its 6 July 2023 decision and notification, Child Support has purported to deal with a period prior to any child support assessment being in existence, utilising ‘from 1 July 2020’ at the ‘back end’ resulting in an automatic transfer of that information to the Family Assistance Office. The clear task of Child Support upon receipt of Mr Marler’s application was to determine the percentages of care applying for each of Ms Marler and Mr Marler from the application day, 13 June 2023, and not any earlier date. Child Support acted beyond the legislation in stating that care percentages applied for a date prior to that time.

21. The Tribunal will therefore vary the decision under review so that a percentage of care of 61% applies for Ms Marler and a percentage of care of 39% applies for Mr Marler from 13 June 2023, not 1 July 2020.

22. There will be no practical impact of that varied decision for Ms Marler and Mr Marler for child support purposes. However for completeness, given the Tribunal’s decision does have the effect of varying the determination to which the care percentage decision relates, the Tribunal also considered the effect of section 87AA of the Registration and Collection Act. If an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to variation to or a new determination is the date of the objection unless there are special circumstances which prevented the person from lodging their objection within 28 days. As already canvassed, Ms Marler objected to Child Support’s 6 July 2023 decision more than 28 days after being notified of the decision. Ms Marler’s evidence was that she did not object until outside this time period because she did not appreciate the implication of the decision and because of her not understanding the maths/percentages calculation. The implication of the decision from Ms Marler’s point of view was because of Child Support implementing ‘from 1 July 2020’ in its records with automatic transfer of that information to Centrelink. However, as already noted there was no reference to the 1 July 2020 date in Child Support’s letter of 6 July 2023 such that Ms Marler would have been on notice of that date being utilised for other purposes. In those circumstances, the Tribunal is satisfied that there were special circumstances that prevented Ms Marler from objecting within 28 days such that subsection 87AA(1) of the Registration and Collection Act applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 10 October 2023.

DECISION

The decision under review is varied so that a percentage of care of 61% applies for Ms Marler and a percentage of care of 39% applies for Mr Marler from 13 June 2023, not 1 July 2020.

Subsection 87AA(1) of the Child Support (Registration and Collection) Act 1988 applies as if the reference to 28 days in that subsection were a reference to a longer period extending to 10 October 2023.