Marson and Marson (Child support)

[2021] AATA 5202

Marson and Marson (Child support) [2021] AATA 5202 (22 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022332

APPLICANT:  Ms Marson

OTHER PARTIES:  Child Support Registrar

Mr Marson

TRIBUNAL:Member S De Bono

DECISION DATE:  22 December 2021

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

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. Ms Marson and Mr Marson are the separated parents of [Child 1] and [Child 2]. A child support assessment has been in place since 16 April 2018. The care recorded at the start of the assessment was recorded as 86% care to Ms Marson and 14% care to Mr Marson from 3 April 2018 notified on 16 April 2018.

2. On 7 April 2021 Ms Marson notified the Child Support Agency (Child Support) that the care for [Child 1] and [Child 2] had changed to 88% care to her and 12% care to Mr Marson from 1 January 2021. Ms Marson thought the care had actually changed from the start of the assessment on 16 April 2018. An officer of Child Support made the decision to leave the care determination as 86% care to Ms Marson and 14% to Mr Marson.

3. Ms Marson disagreed with this decision and lodged an objection on 13 July 2021. On 9 September 2021 an objections officer made the decision to refuse Ms Marson’s objection and left the care determination of [Child 1] and [Child 2] as 86% care to Ms Marson and 14% care to Mr Marson from the beginning of the registration of child support.

4. On 16 September 2021 Ms Marson applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 22 December 2021 Ms Marson and Mr Marson gave evidence under affirmation via conference telephone. The tribunal had before it a bundle of documents (182 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Relevant aspects will be referred to in the tribunal’s consideration of the issues to be decided.

5. The issues for the tribunal to determine are:

   ·Should the existing care percentages of 86% care to Ms Marson and 14% care to Mr Marson be revoked? If so,

   ·From what date should the existing care percentages be revoked?

   ·What is the correct level of care to be attributed to the parents? And

   ·What is the effective date of the new care determinations?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

4. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the children before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

5. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

6. The tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support. It is not appropriate in undertaking that task to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

7. The term “pattern of care” is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

Should the existing care percentages of 86% care to Ms Marson and 14% care to Mr Marson be revoked?

1. On 7 April 2021 Ms Marson notified Child Support that the care had changed in respect of [Child 1] and [Child 2] to 88% care to her and 12% care to Mr Marson from 1 January 2021. Following initial investigation about the change of care by an officer of Child Support and conversations that Ms Marson had with Child Support it was her view that the care provided by Mr Marson was less than regular care from the date of the registration of the child support assessment for [Child 1] and [Child 2]. Looking back Ms Marson was of the view that the care had been inconsistent from Mr Marson in respect of the pattern of care from the start of the assessment. However, Child Support accepted if a change of care was to be accepted it could only be accepted from 21 September 2018 because there was only a record of care from this date.[1]

   [1] Page 76 of the hearing papers.

2. Ms Marson and Mr Marson both agreed that the arrangement when they separated was that Mr Marson would have care of the boys from Friday through to Sunday every second weekend. There seems to have been no arrangement about what the care would be over the school holidays and summer (Christmas) holidays. Irrespective of the holiday arrangements if Mr Marson maintains a pattern of two nights a fortnight for [Child 1] and [Child 2] then his care percentage will be 14%.

3. Ms Marson accepted the date determined by Child Support that if there was a new care determination made this should apply from 21 September 2018 because this was when Ms Marson’s care diary showed that Mr Marson at times did not have care of [Child 1] and [Child 2] every second weekend. Contained within the hearing papers is an email from Ms Marson to Mr Marson in relation to the reasons given for not being able to have the boys in his care.[2]

   [2] Pages 52-56 of the hearing papers.

4. Mr Marson said that the weekends he was not able to have [Child 1] and [Child 2] stay, which were missed weekends, were missed because of illness; on two occasions one of the boys had chicken pox and Mr Marson did not want the children in his house to become unwell, this was in April 2019 and two weekends had to be cancelled for this reason. There were other missed care occasions in July 2019 and October 2019 but the care calendar shows that Mr Marson had extra care of the boys in December 2019.[3] The tribunal notes that Mr Marson had 43 nights of care out of a possible 365 nights of care during 2019 which is 11.78% care.

   [3] Page 77 of the hearing papers.

5. In 2020 the care calendar shows that Mr Marson missed fortnightly care in March and April 2020 but during the 12-month period from 1 January 2020 to 31 December 2020 Mr Marson had 57 nights of care out of a possible 365 nights of care in 2020 which is 15.61% care.

6. From 1 January 2021 Ms Marson said the expected pattern of care going forward was that Mr Marson would continue to have [Child 1] and [Child 2] every second weekend from Friday night through to Sunday evening. But she said she notified Child Support on 7 April 2021 to confirm that Mr Marson had not been complying with the care arrangements and that the care had changed from 1 January 2021. The tribunal notes that the care calendar shows that Mr Marson had fortnightly care in February 2021, did not have fortnightly care in March or April 2021 and resumed fortnightly weekend care at the end of April 2021 where the care pattern seems to have reverted to fortnightly weekend care by Mr Marson for [Child 1] and [Child 2].

7. Ms Marson said as at the date of the hearing Mr Marson has cancelled other weekends of care in 2021 which is not shown in the care diary because the care diary is competed to 1 July 2021[4]. Mr Marson said he has offered to make up nights of care but states that Ms Marson has refused this. Ms Marson said she has never refused care and has offered alternative nights to Mr Marson to make up care but said these nights did not suit him.

   [4] Page 79 of the hearing papers.

8. In terms of considering changes to the existing pattern of care the Guide at 2.2.2 provides:

   When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period (2.2.1[5]). The Registrar will need to determine the percentage of care that is likely to occur in the care period.

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. In cases where a person's care percentage would drop below 14%, the Registrar may make a below regular care determination (see 2.2.3 for more information).The Registrar will consider all the information provided to determine if there has been a change in the pattern of care.

   Example: Marissa and Ryan are the parents of 2 children. The children live mainly with Marissa. Ryan has care every Saturday night, some Friday nights and some holiday care, totalling 92 nights (or 25%) over the course of a year.

   Ryan calls Services Australia on 22 March advising he now has more care of the children, as the children are spending every Friday night with him. Marissa confirms the children are staying with Ryan every Friday night so they can attend Little Athletics on Saturday mornings. The change happened about 6 weeks ago and is likely to continue for the rest of the school year.

   The Registrar is satisfied there has been a change in the pattern of care from the first Friday when Ryan began to consistently have more care.

   Not all changes in care will result in a change to the care percentage. Minor departures from the normal pattern of care for the child, 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.

   Example: Jane and Gary are the parents of 3 children. The children live mainly with Jane. Gary has care every second Saturday night, some Friday nights and some holiday care, totalling 52 nights. This is a care percentage of 14%.

   Jane calls Services Australia advising Gary did not have care as expected last Friday and Saturday. Jane states the parents have not made an agreement about the care, but, rather, the arrangements had evolved in line with their habits. Jane requests that the assessment be amended.

   Gary advises he did not have care of the children due to an unexpected family situation. He anticipates the usual arrangements will resume with his next scheduled care. Jane advises she is uncertain of future care arrangements. She confirms the care arrangements have followed the same pattern for the last 2 years.

   The Registrar determines that the pattern of care that was used to determine the current care percentages is likely to continue. The Registrar determines that Gary is likely to have a care percentage of 14% for the care period. As the care percentage has not changed, the assessment is not amended.

   [5] The guide provides at 2.2.1 that the care period is “the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised”.

9. While the tribunal accepts the written material and oral evidence that the actual care might have changed from time to time as shown by the care calendar, there is insufficient evidence to show a clear departure from the consistent pattern of care of Mr Marson having 14% care and Ms Marson having 86% care from 21 September 2018. The tribunal notes that minor variations from the care percentage do not necessarily mean that the care pattern has changed to a new care pattern for an existing care determination to be revoked.

10. The tribunal considered whether a pattern of care had never been established in relation to Mr Marson’s care of [Child 1] and [Child 2]. The Guide at 2.2.3 provides:

    If a parent or non-parent carer notifies the Registrar within a reasonable period of time that another party never established a pattern of regular care, despite the child being made available, the new care percentages resulting from the below regular care determination will have effect from the first day that the care percentage of 14% or over was used in the assessment. Where the parent who never established a pattern of care has a liability to the other parent or non-parent carer, arrears will generally result.

    A parent or non-parent carer will not have established a pattern of care if they never have care in accordance with an expected pattern. The Registrar will generally consider that a pattern was not established if, from the date the pattern of care was to start:

    ·the parent or non-parent carer

    omissed 3 consecutive expected care events

    omissed 5 care events out of 8 expected, or

    omissed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern), and

    ·they have not year had

    o3 consecutive events

    o5 events out of 8, or

    o20% of the expected nights of care over 12 months.

11. In viewing the care calendars provided by Ms Marson the tribunal is satisfied that a below care determination cannot be made for the period for Mr Marson because while it is evident that Mr Marson has missed some care events the pattern of care resumed after these missed events. The tribunal notes that there was only one occasion from September to October 2018 and another one in April 2020 where Mr Marson missed 3 consecutive care events but it does not seem he has missed 5 care events out of an expected 8 care events at any time from 21 September 2018. The tribunal also notes that Mr Marson has made up care for his missed care in 2021 (see paragraph 17).

12. It is the tribunal’s view that variations to the care pattern due to illness or other reasons such as stress or holidays are minor variations to the expected pattern of care and not a change to the pattern of care. In coming to this conclusion the tribunal is consistent with the policy set out in the Guide. It is for these reasons that the tribunal is satisfied that the care determination of Ms Marson having 86% care and Mr Marson having 14% care of [Child 1] and [Child 2] from 21 September 2018 is correct and should not be revoked.

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)