Medwin and Child Support Registrar (Child support)

[2022] AATA 1706

Medwin and Child Support Registrar (Child support) [2022] AATA 1706 (8 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022657

APPLICANT:  Mr Medwin

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member D Lambden

DECISION DATE:  08 April 2022

DECISION:

The decision under review is affirmed.

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 removed 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 review is about the percentages of care of Mr Medwin and [Ms A] in relation to [Child 1] who is now 18 years old (date of birth [date] 2003).

2. A child support assessment in this case was first registered on 21 January 2020 and child support has been collectable by the Child Support Agency since this date.

3. Since 21 January 2020 the pre-existing percentages of care for [Child 1] were recorded by the Child Support Agency to be 33% care to Mr Medwin and 67% care to [Ms A].

4. On 1 April 2021 Mr Medwin contacted the Child Support Agency and advised that there had been a change in the care of [Child 1]. He advised that since 25 January 2021 [Child 1] was in his care for 183 nights (51% care) and [Ms A]’s care for 182 nights (49% care).

5. On 8 April 2021 [Ms A] was contacted by the Child Support Agency and she disagreed with the care change as reported by Mr Medwin. [Ms A] claimed that there had been an increase in the days that [Child 1] had been in Mr Medwin’s care since the start of February 2021; however, there had not been a regular pattern of care.

6. On 14 May 2021 the Child Support Agency contacted Mr Medwin and advised that [Ms A] had not agreed to the change in care for [Child 1] as reported by Mr Medwin and evidence would be required to support his claim of care.

7. On 18 August 2021 the Child Support Agency made the decision to change the care for [Child 1] to 147 nights (40%) to Mr Medwin and 218 nights (60%) to [Ms A] from 4 February 2021.

8. On 3 September 2021 Mr Medwin objected to the decision and he stated that the care of [Child 1] should be reflected as 50/50 shared care from January 2021.  He advised when he lodged the objection that he would not be providing further evidence as he had already provided third party statements, and a care calendar and a report from a Court Social Worker. [Ms A] had provided a new care calendar up to the date that [Child 1] turned 18 years of age, however this additional care calendar was not required, as it was pertaining to a period after the care decision was made.

9. On 1 November 2021 an objections officer disallowed Mr Medwin’s objection and affirmed the original decision.

10. On 3 November 2021 Mr Medwin requested a review by the Administrative Appeals Tribunal (the tribunal).

11. Mr Medwin attended the hearing by way of a telephone conference via MS Teams on 9 February 2022 and gave sworn evidence.  

12. [Ms A] was invited to participate in the hearing; however, she indicated that she did not want to be added as a party to the appeal and she was removed as a party.

13. The Child Support Agency provided papers relevant to this matter and these were marked (as a bundle) as Exhibit C1 (pages 1 to 329).

14. The tribunal adjourned the matter to research the law.

15. The tribunal considered all of the evidence available to it in the context of the relevant legislation and on 8 April 2022 the tribunal proceeded to determine the matter.

ISSUES

16.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.

17.The issues which arise in this case are:

·Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

·Should a new determination of a percentage of care be attributed to Mr Medwin and [Ms A] in respect of [Child 1]?

·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked.  The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act.

2. The legislative scheme requires a new care percentage determination to be made following notification to the Child Support Agency of a change in care arrangements.  The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. 

3. The tribunal’s task on review is to stand in the shoes of the original decision-maker.  In this respect, when reviewing care percentage decisions, the tribunal must have regard to the actual or likely pattern of care at the point in time of the original decision.  It is not appropriate in undertaking that task to assess care based on what happened from initial notification to the Child Support Agency 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 the Child Support Agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency so that a new primary care percentage decision can be considered, and made if appropriate, as has occurred in this case.

4. The term “pattern of care” is not defined in the legislation.  It involves an examination of a person’s future likely care.  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). The Australian Government’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide) and followed by the Child Support Agency, is that a care period is generally a 12-month period from the day on which the actual care for a child changed.  This policy is not binding on the tribunal and the tribunal can determine a different care period.

1. Section 54A provides that the Registrar may assess the level of care based on the number of nights that a parent has the child during a care period. In this case, neither parent contended that nights were an unsuitable measure of the care of the child and the tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

Issue one – Should the existing determination of percentage of care be revoked?

1. The provisions in Division 4 of Part 5 of the Act require the Child Support Agency (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage decision can be made.

2. Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. 

3. Subsection 54F(1) of the Act provides in relevant part, that where section 54G is not applicable, the Registrar (or the tribunal in the shoes of the Registrar) is satisfied that the level of care no longer corresponds to the existing registered care and that the changed care results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages, then the current care decision must be revoked.  The four conditions set out in subsection 54F(1) are not mutually exclusive and must all be met in order for a decision to be made to revoke the existing care arrangement. In addition, to revoke a care decision under section 54F, section 51 must not apply (pursuant to subsection 54F(2)). Section 51 only applies if there was a care arrangement in place.

4. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for Mr Medwin and [Ms A] of percentages of care for [Child 1] registered with the Child Support Agency, being 33% and 67% respectively, made in accordance with section 50 of the Act. 

5. The tribunal is satisfied that section 54G does not apply as Mr Medwin was previously determined to have at least regular care (14% to 35%) of [Child 1].

6. Mr Medwin contacted the Child Support Agency on 1 April 2021 and stated that [Child 1] made the decision to spend 50/50 care with both parents from 25 January 2021 (C1 pages 8 to 9).

7. The Child Support Agency spoke with [Ms A] via telephone on 8 April 2021 (C1 page 26) and advised that Mr Medwin had advised a change in care for [Child 1] of 50/50 from 25 January 2021. During this call [Ms A] advised that [Child 1] had spent some additional days with Mr Medwin; however, this has not formed a new pattern or enough additional care to equate to 50/50 care. [Ms A] advised that since about 1 February 2021 there had been approximately eight additional nights of care for Mr Medwin but there had been four additional nights where Mr Medwin should have had care of the child when the care has not occurred.  [Ms A] disagreed that there had been a care change.  On 20 April 2021 [Ms A] provided the Child Support Agency with a letter dated 20 April 2021 (C1 page 28), a copy of a care calendar for January to April 2021 (C1 pages 29 to 32) and an interim Federal Circuit Court order dated 14 April 2021 (C1 pages 33 to 35). Her letter stated that the child can be with either parent according to his wishes relying on the care calendar to establish the nights spent with each parent. The tribunal noted that according to the care calendar provided the child spent 42% of the time in the care of Mr Medwin and 58% of the time in the care of [Ms A] in January 2021, 60% of the time in the care of [Ms A] and 40% of the time in Mr Medwin’s care in February 2021 and 64% of the time in the care of [Ms A] and 36% of the time in Mr Medwin’s care in March 2021.  The care calendar included details of the child’s care up to 20 April 2021 and during that month the child had spent 11 days in [Ms A]’s care and nine days in Mr Medwin’s care which included four nights while [Ms A] was away. The court order stated: “Until further order, [Child 1] [will] live with and spend time with each of the parties in accordance with his own wishes.”

8. Mr Medwin spoke with the Child Support Agency on 14 May 2021 and he was advised that [Ms A] had not agreed that the care of the child was shared on a 50/50 basis. He stated that he has the child in his care three nights the first week and four nights the next week. On 26 May 2021 the Child Support Agency received from Mr Medwin a statutory declaration from [a named person] dated 25 May 2021 which stated that he has witnessed the child residing with his father. On 31 May 2021 the Child Support Agency received from Mr Medwin a care calendar for the child for February 2021 to June 2021 which indicated that each month the child spent approximately 50/50 time with both parents.  On 27 July 2021 the Child Support Agency received from Mr Medwin a statutory declaration from Mr Medwin dated 26 July 2021 (C1 page 73) in relation to times he has visited Mr Medwin’s home and witnessed the child there.

9. At the hearing Mr Medwin referred to the Federal Circuit Court order dated 4 August 2021 (C1 pages 117 to 124) and the Child Inclusive Conference Memorandum to Court dated 20 July 2021 (C1 pages 125 to 129) and he stated that these documents indicate that the child’s younger brother’s care should align with the child’s care.  He stated that the child decided that he would live equally with both parents 50/50 from January 2021. 

10. The tribunal noted the Federal Circuit Court Order dated 14 April 2021 included in the tribunal papers (C1 pages 246 to 255) which stated: “Until further order, [Child 1] [will] live with and spend time with each of the parties in accordance with his own wishes.” However, this order was made after Mr Medwin advised the Child Support Agency on 1 April 2021 of a change in the child’s care arrangements and the tribunal therefore considered the actual care of the child.

11. The tribunal carefully considered all of the available relevant information.   It is satisfied that both parents were sharing the care of [Child 1] in the care period.  In relation to the third party statutory declarations provided by Mr Medwin, while the tribunal accepts that the statutory declarations were given in good faith, the tribunal finds that they were non-specific and lacking in detail in relation to the care arrangements. The statements did not assist the tribunal to determine the care percentages from 4 February 2021.

12. Neither party provided particularly compelling evidence as to the care of [Child 1] from February 2021. However, on balance the tribunal is satisfied that [Child 1]’s time in Mr Medwin’s care increased slightly from 4 February 2021 and the tribunal finds that from 4 February 2021, Mr Medwin had 40% care and [Ms A] had 60% care of [Child 1].

35.As such the tribunal is satisfied that the level of care no longer corresponds to the existing registered care with the Child Support Agency of 33% and 67% to Mr Medwin and [Ms A] respectively.  Therefore, the tribunal is satisfied that the first requirement under paragraph 54F(1)(a) of the Act is met.

1. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act.  Section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period. Therefore, the issue for the tribunal to consider is if new care percentages are determined under section 50, whether the parents’ cost percentages change.

2. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.  Under the child support assessment based on the percentage of care determinations prior to the change that is the subject of this review, 67% to [Ms A] and 33% to Mr Medwin, the cost percentages of each are 76% and 24% respectively.  If new determinations were to be made in accordance with the tribunal’s findings above of a pattern of care provided by [Ms A] of 60% and Mr Medwin of 40%, the cost percentages would change to 65% for [Ms A] and 35% to Mr Medwin.  Consequently, the requirement under paragraph 54F(1)(b) of the Act is met.

3. Section 51 of the Act is applicable if a care arrangement is in place and not being adhered to. The tribunal is satisfied there was no written care arrangement in this case. Therefore, the final criterion under subsection 54F(1) of the Act is met.

4. Accordingly, the tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Act are met (and as section 54G of the Act does not apply because the tribunal’s determination has not resulted in either of the parents having less than regular care), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F.

5. Subsection 54F of the Act sets out when the revocation of the determination takes effect.  The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred.  On the evidence before it the tribunal accepts that the change in care occurred from 4 February 2021.  As the notification was made on 1 April 2021, more than 28 days after the change in care occurred, the revocation of the existing determination takes effect in accordance with paragraph 54F(3)(b) of the Act.

6. As the care of [Child 1] attributed to Mr Medwin has increased from 33% to 40%, the existing percentage of care is revoked on 31 March 2021, being the day before notification of the change (subparagraph 54F(3)(b)(i) of the Act). 

7. [Ms A]’s care has decreased and according to subparagraph 54F(3)(b)(ii) of the Act her existing care percentage of 67% will be revoked from 3 February 2021 being the day before the change of care day.

Issue two – Should a new determination of a percentage of care be attributed to Mr Medwin and [Ms A] in respect of [Child 1]?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Medwin and [Ms A] in respect of [Child 1].  As no care agreement is in place, the tribunal considered section 50 to be the relevant section of the Act.  Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for [Child 1].  These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 33% care of [Child 1] to Mr Medwin and 67% care to [Ms A] should be revoked under section 54F of the Act and that during the care period, Mr Medwin and [Ms A] were each likely to have a pattern of care in respect of [Child 1] of 40% to Mr Medwin and 60% to [Ms A]. Accordingly, a new care determination is to be made under section 50 of the Act.

Issue three – From what date should the administrative assessment be amended to reflect the change?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the “application day”. In accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations.

2. The tribunal has revoked Mr Medwin’s existing determination with effect from 31 March 2021; therefore the change of care applies from 1 April 2021 for Mr Medwin.

3. The tribunal has revoked [Ms A]’s existing determination with effect from 3 February 2021; the change of care applies from 4 February 2021 for [Ms A].

4. For these reasons, the objections officer’s decision will be affirmed.

DECISION

The decision under review is affirmed.