Midgley and Midgley (Child support)
[2019] AATA 5733
•20 November 2019
Midgley and Midgley (Child support) [2019] AATA 5733 (20 November 2019)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2019/HC017277
APPLICANT: Mr Midgley
OTHER PARTIES: Child Support Registrar
Mrs Midgley
TRIBUNAL:Member M Baulch
DECISION DATE: 20 November 2019
DECISION:
The tribunal set aside the decision under review and, in substitution, decided that the percentages of care that apply to the child support assessment from 3 May 2019 are such that:
Mr Midgley has 16% care of [Child 1] and Mrs Midgley has 84% care of [Child 1]; and
Mr Midgley has 12% care of [Child 2] and [Child 3] and Mrs Midgley has 88% care of [Child 2] and [Child 3].
CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – nights versus daytime care - nights in care is the best measure of the care provided - existing percentage of care determinations revoked and new determinations made - decision under review set aside and substituted
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
This is about the child support assessment that applies to [Child 1], [Child 2] and [Child 3], who are the children of separated parents; Mr Midgley and Mrs Midgley.
Since 9 November 2015, the Department has made assessments of child support under which Mr Midgley is liable to pay child support to Mrs Midgley. Those assessments have been based upon Mr Midgley and Mrs Midgley each having 50% care of all three children.
On 29 April 2019 Mrs Midgley advised the Department that Mr Midgley had travelled overseas for a period of time during which she had care of all three children. On 29 May 2019, that information was considered by a departmental employee, who decided that there was no basis to change the care percentages used for the children in the child support assessment.
Mrs Midgley objected to that decision and, on 29 August 2019, that objection was partly allowed. The objections officer decided that the care percentages applying to the child support assessment were such that:
· Mrs Midgley had 87% care of [Child 1], and Mr Midgley had 13% care; and
· Mrs Midgley had 92% care of [Child 2] and [Child 3], and Mr Midgley had 8% care;
(the decision under review).
Mr Midgley has now applied to this tribunal for an independent review of that decision.
A hearing into the application for review was held by the tribunal on 20 November 2019. Mr Midgley discussed the application for review with the tribunal by telephone and Mrs Midgley in person. Both parents gave sworn evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.
The tribunal had before it relevant documents provided to it by:
· The Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 200; and
· Mr Midgley, labelled folios A1 to A9;
copies of which both parties confirmed they had received prior to the tribunal hearing.
ISSUES
The statutory provisions relevant to this review application are found within the child support law, in particular the Child Support (Assessment) Act 1989 (the Act).
The issue which arises in this case is what should be the care percentages applying to the child support assessment in respect of [Child 1], [Child 2] and [Child 3]?
CONSIDERATION
Part 5 of the Act provides for an administrative assessment of the child support payable by one separated parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of children and the percentages of care.
For the purposes of making a child support assessment under Part 5 of the Act, sections 49 and 50 of the Act require the Registrar, or this tribunal standing in the Registrar’s shoes, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).
Since 9 November 2015 the care percentages that have applied to the child support assessment for [Child 1], [Child 2] and [Child 3] have recorded Mr Midgley as having 50% care of the three children and Mrs Midgley as having 50% care.
Section 54F of the Act provides that an existing care percentage determination must be revoked if the Department is notified, or otherwise becomes aware, that the care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:
Cost percentages
Item
Column 1
Percentage of care
Column 2
Cost percentage
1
0 to less than 14%
Nil
2
14% to less than 35%
24%
3
35% to less than 48%
25% plus 2% for each percentage point over 35%
4
48% to 52%
50%
5
more than 52% to 65%
51% plus 2% for each percentage point over 53%
6
more than 65% to 86%
76%
7
more than 86% to 100%
100%
Pursuant to section 54A of the Act, unless an interim care determination applies under section 51 of the Act, the Registrar will determine the pattern of care based upon the extent of the actual care that each parent has, or is likely to have, of their children during a care period.
Care is generally calculated over a care period, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but there are circumstances where a shorter or longer care period might be appropriate.[1]
[1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.44
I am not bound by the Department’s policy, such as that set out in the Guide, but in the interests of consistency in decision making I would generally apply such policy if not inconsistent with the purposes and objects of the Act.[2] I considered the policy unobjectionable and determined that the circumstances of this case are such that a shorter care period is warranted.
[2] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Prior to Mr Midgley’s travel overseas, care was shared on a week-about basis, with change occurring each Friday. The first instance that Mr Midgley missed an event of care was Friday, 3 May 2019. It is undisputed that prior to travelling overseas, Mr Midgley had four days of extra care from 1 April 2019.
It was my view that there was no significant disruption to the care arrangements until 3 May 2019 and the care period that is appropriate in this case should commence from this date.
Mr Midgley returned from overseas [in] August 2019 and all three children were in his care for that night. The following day was a Friday, and Mr Midgley retained care of the children from 23 August 2019 to 29 August 2019. The children returned to Mrs Midgley’s care on Friday, 30 August 2019, for two nights before returning to Mr Midgley’s care on Father’s Day, 1 September 2019, and remaining with him until 4 September 2019, which was the day after [Child 3’s] birthday. The children were in Mrs Midgley’s care for 5 September 2019, before returning to Mr Midgley’s care on Friday, 6 September 2019, from when the care has largely followed the week-about arrangements with care changing on a Friday.
Having regard to this evidence, I was satisfied that the previous week-about care arrangements resumed on Friday 23 August 2019. After this date there was only one event lasting four nights when Mr Midgley had care he would not otherwise have had; and this included Father’s Day and [Child 1’s] birthday. I was satisfied that those four nights are only a minor aberration from the usual week-about care arrangements, and consequently the usual week-about care arrangement resumed from 23 August 2019.
I therefore found that the care period appropriate in the particular circumstances of this case is 3 May 2019 to 22 August 2019 (112 nights).
For the purposes of determining the pattern of care that applied during this care period, I noted that Mr Midgley returned to Australia for a visit during his absence, and between 3 May 2019 to 22 August 2019 he or, in his place, his parents had care of:
· [Child 1] only from 1 June 2019 to 3 June 2019, 6 June 2019 and 7 June 2019 (five nights);
· All three children for 20 June 2019, 21 June 2019 and from 27 June 2019 to 30 June 2019 (six nights);
· All three children from 1 July 2019 to 5 July 2019 and for 17 July 2019 and 18 July 2019 (seven nights); and
· All three children for 22 August 2019 (one night).
The total care undertaken by Mr Midgley, or his parents, during this care period was 19 nights for [Child 1] and 14 nights for [Child 2] and [Child 3].
While Mr Midgley was overseas his parents had care of all three children during the daytime over the school holidays. Mr Midgley stated that this arrangement resulted from Mrs Midgley’s request that his parents travel to [a location] earlier than they had planned to, and because of this and [Child 2’s] issues with [a medical illness] precluding overnight care at that time, the hours his parents provided care during the day should be taken into account.
While section 54A of the Act says that care may be determined by the number of nights a person has care of a child during a care period, the Act does not preclude care being determined by a method other than nights in care. The Department’s policy on when determining care by other than by nights is appropriate states, in the Guide at 2.2.1:
Care other than in nights
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
…
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
…
Mr Midgley submitted that hours of care accounting for the time the children were in his parents’ care during the daytime is more appropriate because his parents incurred expenses during this time, whereas Mrs Midgley did not did incur those expenses but collected child support anyway.
Ultimately, the determining of a percentage of care does not have to be attended with precision or by accounting for expenses incurred. In the case of Watanabe & Watanabe (SSAT Appeal) [2010] FMCAfam 94, Federal Magistrate Slack, as he then was, stated at paragraph [22]:
The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care. The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act). I do not though consider that this exercise should become an exercise in mathematical accounting. The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).
I determined that nights in care is the best measure of the care provided in this case and there is no compelling reason to contemplate a different approach.
I therefore found that during the care period I have identified (3 May 2019 to 22 August 2019) there was a pattern of care under which Mr Midgley had care of [Child 1] for 19 nights and [Child 2] and [Child 3] for 14 nights. Applying the rounding rules prescribed by section 54D of the Act, where percentages less than 50 are rounded down and those greater than 50 are rounded up, I determined Mr Midgley’s percentage of care were 16% for [Child 1][3] and 12% for [Child 2] and [Child 3][4]. Mrs Midgley’s percentages of care were 84% for [Child 1] and 88% for [Child 2] and [Child 3].
[3] 19 ÷ 112 = 16.96
[4] 14 ÷ 112 = 12.5
Having regard to the table in section 55C of the Act, I was satisfied that these percentages of care, when compared with those that have applied from 9 November 2015 (50% care for Mr Midgley and 50% for Mrs Midgley), would change the cost percentages applying in the child support assessment. Therefore, the existing care percentages must be revoked.
Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect. If the Department is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care. Ms Midgley advised the Department of the change of care on 29 April 2019, which was within 28 days of the change occurring. Therefore, the existing care determinations are revoked from 2 May 2019.
As I have revoked the existing care percentage determinations that apply in respect of [Child 1], [Child 2] and [Child 3], I must make new care percentage determinations that reflect the pattern of care for the children since 3 May 2019. Accordingly:
· Pursuant to section 50 of the Act, I determined that Mr Midgley’s percentage of care for [Child 1] was 16% and for [Child 2] and [Child 3] it was 12%.
· Pursuant to section 50 of the Act, I determined that Mrs Midgley’s percentage of care for [Child 1] was 84% and for [Child 2] and [Child 3] it was 88%.
According to section 54B of the Act, the new care determinations apply to the child support assessment from the day after the previous care determinations were revoked, which is from 3 May 2019.
Having arrived at a decision that is different to that made by the objections officer, I consequently set aside the decision under review and substituted my own decision, as is detailed below.
DECISION
The tribunal set aside the decision under review and, in substitution, decided that the percentages of care that apply to the child support assessment from 3 May 2019 are such that:
Mr Midgley has 16% care of [Child 1] and Mrs Midgley has 84% care of [Child 1]; and
Mr Midgley has 12% care of [Child 2] and [Child 3] and Mrs Midgley has 88% care of [Child 2] and [Child 3].
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