McNair and Child Support Registrar (Child support)

[2022] AATA 637

McNair and Child Support Registrar (Child support) [2022] AATA 637 (9 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022664

APPLICANT:  Mr McNair

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Staden

DECISION DATE:  9 February 2022

DECISION:

The decision under review is affirmed.

The tribunal notes that on 27 August 2021 Mr McNair informed Services Australia – Child Support of a change in the children’s care arrangements. A decision has not yet been made in relation to this notification.

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 – 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. Mr McNair and [Ms A] are the separated parents of four children, born 2006, 2008, 2009 and 2012. There has been a child support assessment in this case since 8 July 2017. Mr McNair is the parent liable to pay child support.

2. Immediately prior to 12 May 2021, Mr McNair’s care percentage for his oldest child was 14% and that of [Ms A] 86% and Mr McNair’s care percentage for the remaining children was 33% and that of [Ms A] 67%.

3. On 12 May 2021, [Ms A] informed Child Support that her care percentage for all four children was 100% from 12 May 2021.

4. On 24 May 2021, Mr McNair told Child Support that he flew to Darwin for work on 9 May 2021; had not been home since; and was not sure when he would be back.

5. On 24 May 2021, Child Support decided that from 12 May 2021 Mr McNair’s care percentage for all the children was 0% and that of [Ms A] was 100%. The date of effect of this decision was 12 May 2021.

6. On 2 September 2021, Mr McNair lodged an objection to the 24 May 2021 decision, pointing to court orders about the children’s care which took into account his fly-in fly-out (FIFO) work pattern. On 18 October 2021, Mr McNair lodged a copy of those orders plus a care calendar and copies of text messages between himself and [Ms A].

7. On 1 November 2021, an objections officer disallowed Mr McNair’s objection.

8. On 4 November 2021, Mr McNair applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. 

9. A hearing was conducted on 9 February 2022. Mr McNair gave sworn evidence by telephone. [Ms A] chose not to participate in the hearing. The tribunal had before it documents provided by Child Support (171 pages), a copy of which was sent to Mr McNair before the hearing.

10. Relevant aspects of the evidence are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is 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 contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent or non-parent carer in relation to each child.

3. Child Support decides care percentages in line with sections 49 to 54L of the Assessment Act. These provisions require Child Support to decide a care percentage for each parent or non-parent carer when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. 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 Centrelink are informed otherwise.

Context

1. The 25 July 2019 court orders Mr McNair lodged on 18 October 2021 essentially provide that Mr McNair has alternate weekend care of the children in school terms and half of the school holidays subject to Mr McNair providing [Ms A] with 14 days’ notice in writing of the former and 28 days’ notice in writing of the latter.

2. A recital to the orders notes that Mr McNair is a FIFO worker and cannot therefore have a set schedule for care which is why the orders related to the children spending time with Mr McNair are conditional on his giving [Ms A] the specified written notice.

3. The text messages between Mr McNair and [Ms A] are from late May 2021 and are about the care of the children but are not notifications of Mr McNair’s intention to have the children in his care as required by the court orders. Mr McNair’s evidence was that the prescribed systematic pattern of giving notice of intent to provide care for the children has never been followed.

4. Mr McNair reported that he has worked at sea for many years. His broad care pattern for the children is to provide no care for a period of around four weeks while he is working away and then to have at least the three youngest children for five nights a fortnight when he is at home. His oldest child might choose to spend less time with him, say, three nights a fortnight. This pattern of nights of care is not that in the court orders. The tribunal found that the court orders were not being followed prior to 12 May 2021.

5. Mr McNair said that by May 2021 he was in a lot of debt which he wanted to clear. He was offered a contract to work out of Darwin and so he took it, flying to Darwin on 9 May 2021. There was no clear end date when he took up the work, apart from the legally prescribed limit. Mr McNair agreed that he ceased to provide care for the children from 12 May 2021 and that when he spoke to a Child Support officer on 24 May 2021, he was unsure when that situation would change.

6. Mr McNair returned from Darwin and, according to the care calendar he provided on 18 October 2021, recommenced a pattern of providing five nights a fortnight care for the children from 23 July 2021.

7. On 27 August 2021, Mr McNair is recorded as informing Child Support by telephone that [Ms A]’s care percentage of 100% was wrong and that he had had almost equal care of the children in the previous month. He was unable to complete the call.

8. On 2 September 2021, Child Support contacted Mr McNair and determined that he was lodging a late objection to the 24 May 2021 care percentage decision, arguing that court orders were not being followed. However, the tribunal noted that the Child Support records of 2 September 2021 also include “Perhaps this is a new change of care not an objection”.

9. After speaking with Mr McNair, the tribunal found that Mr McNair both informed Child Support of a change in care arrangements for the children on 27 August 2021 and lodged an objection to the 24 May 2021 care percentage decision on 2 September 2021. Child Support has yet to make a decision in response to the care change notification. Here, the tribunal is reviewing the 1 November 2021 decision of the objections officer in relation to Mr McNair’s 2 September 2021 objection.

10. The issues which arise in this case are:

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

    ·     What is the date of effect of any care change?

CONSIDERATION

Issue 1: Should the existing care percentage determinations 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 12 May 2021, [Ms A] informed Child Support that from 12 May 2021 the children’s actual care did not correspond to the existing care percentage determinations. This was confirmed by Mr McNair on 24 May 2021.

   ·     If the care percentages for the children are changed in line with the agreed pattern of care, each parent’s cost percentage for each child will change: Mr McNair from 24% to 0% and [Ms A] from 76% to 100%.

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

   ·     There were court orders in place at the time of the care change but they were not being followed.

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

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

   ·     If the notification is within 28 days of the care change, the date of effect is the day before the care change date; and

   ·     If the notification occurs more than 28 days after the care change, the date of effect for the parent with the increased care is the day before the notification date and for the parent with the reduced care the day before the care change date.

4. [Ms A] informed Child Support of the change to the children’s care on 12 May 2021, the same day as the care change date. The revocation of the existing determination therefore takes effect for both Mr McNair and [Ms A] from 11 May 2021, the day before the care change date.

Issue 2: 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 above, the tribunal determined that:

   · Under section 49 of the Assessment Act, Mr McNair’s care percentage for all the children was 0% from 12 May 2021; and

   · Under section 50 of the Assessment Act, [Ms A]’s care percentage for the children was 100% from 12 May 2021.

3. Relevantly here, under subparagraph 54B(2)(c)(ii) of the Assessment Act, the new care percentage determinations are applied from the day after the revocation of the existing determinations. Thus, both Mr McNair’s new care percentage of 0% and [Ms A]’s new care percentage of 100% apply from 12 May 2021.

DECISION

The decision under review is affirmed.

The tribunal notes that on 27 August 2021 Mr McNair informed Services Australia – Child Support of a change in the children’s care arrangements. A decision has not yet been made in relation to this notification.