Millane and Dunlop (Child support)

[2023] AATA 2141

Millane and Dunlop (Child support) [2023] AATA 2141 (14 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC025132

APPLICANT:  Mr Millane

OTHER PARTIES:  Child Support Registrar

Ms Dunlop

TRIBUNAL:Member J Prentice

DECISION DATE:  14 June 2023

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 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, Mr Millane and Ms Dunlop are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [the child] (born January 2012) (the child). The application concerns a single decision of Child Support about the recorded care for the child utilised in calculation of the child support liability.

2. From 4 May 2018, the pre-existing percentages of care applying in the child support case for the child were 14% to Mr Millane and 86% to Ms Dunlop.

3. On 11 March 2022, Ms Dunlop contacted Child Support and advised a change to the care position of the child from 10 February 2022 stating that Mr Millane “hardly sees [the child] at all and the care needs to be changed”.

4. On 29 May 2022 Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Mr Millane and 100% to Ms Dunlop from 10 February 2021. Notably, as Ms Dunlop notified the change of care on 11 March 2022 more than 28 days after the change of care was found to have occurred on 10 February 2021, the recorded increased percentage of care determination from 86% to 100% to Ms Dunlop applied from 11 March 2022 (the date of notification). However, the recorded decreased percentage of care determination from 14% to 0% to Mr Millane applied from 10 February 2021 (the date of the care change).

5. On 1 July 2022 Ms Dunlop objected to this decision and stated that the care determination should be from 10 February 2022. On 6 September 2022 a Child Support objections officer allowed the objection and decided to revoke the pre-existing percentage of care determinations and to record percentage of care determinations of 0% to Mr Millane and 100% to Ms Dunlop from 10 February 2022. Notably, as Ms Dunlop notified the change of care on 11 March 2022, more than 28 days after the change of care was found to have occurred on 10 February 2022, the recorded increased percentage of care determination from 86% to 100% to Ms Dunlop applied from 11 March 2022 (the date of notification). However, the recorded decreased percentage of care determination from 14% to 0% to Mr Millane applied from 10 February 2022 (the date of the care change).

6. On 25 November 2022, Mr Millane lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating:

   The mother has gone against a court order and withheld the child.

   There was a breakdown in communication with child support when the mother wrote 2021 on forms and not 2022 and when I tried with her and Child Support to correct this, they misunderstood and thought I was agreeing that she had 100% care from this time when in fact this was the time she started withholding care.

   I have been actively trying to have the correct amount of care of my child and have taken the legal steps to get this sorted.

   I am seeking an interim care period from decision 10 February 2022. Original decision February 10 2022, review of decision 6 September 2022.

1. The hearing of the application was held on 18 April 2023. Mr Millane participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing.

2. Both parties had been advised on 27 March 2023 of the date of hearing, and a reminder was sent on 17 April 2023. On the morning of the hearing the second party, Ms Dunlop, sent an email stating that she could not attend the hearing “due to work commitments and a lawyers appointment”. Ms Dunlop also advised that she “won’t be able to answer the phone” at the time of the hearing. The Member consulted the first party and decided to proceed with the hearing.

3. Subsequent to the hearing, despite advising that she would not be available to answer the phone, the second party called the Tribunal and said she had waited for a call. The Member instructed that the second party be invited to provide a written submission. Ms Dunlop advised that contrary to her email she “could have made time” and:

   Parenting orders in place but as me and Mr Millane were still in a relationship these orders were only made if we were to separate at any stage.

   Time on orders barely ever occurred.

   I have 100% care of [the child]. Mr Millane sees her sometimes and has stayed over night in school holidays. Rest are just day visits.

   Mr Millane since 2018 has changed jobs and these times don’t occur.

4. In considering the application, the Tribunal took into account the oral evidence of Mr Millane and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 203), and documents provided by Mr Millane prior to hearing (marked Exhibit A, pages A1 to A4). Copies of all documents were exchanged with each party.

RELEVANT LEGISLATION

11.  The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and Child Support (Registration and Collection) Act1988 (the Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

12.  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.

13. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

14.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

15.  The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify Child Support and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

16.  Section 54A 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.

17. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

18. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

19.  However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

ISSUES

1. It follows that the issues to be determined by the Tribunal are as follows:

   (a)    Should the pre-existing percentage of care determinations recorded by Child Support as at 4 May 2018 in relation to the child be revoked? And, if so,

   (b)    Does an interim care determination apply and if so, what percentage of care determinations apply for each parent and for what periods? And if not,

   (c)    What are the new percentage of care determinations to be recorded for Mr Millane and Ms Dunlop? And,

   (d)    What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

1. Exhibit 1 records the following relevant conversations between Mr Millane and Child Support and Ms Dunlop and Child Support:

   (a)    On 9 June 2022 Mr Millane called Child Support to discuss his objection to their decision. Child Support noted:

   It was discussed that a court order was made in 2018 according to his employment at the time, however about 3 years ago as he got a new job which was a 8 day working roster, and because of this, the parents had a verbal agreement of an alternate arrangement, in terms of how much time he spends with his child

   Mr Millane advised that the court ordered care arrangements were not being followed prior to Ms Dunlop’s notification of the change in care on 18 April 2022.

   (b)    On 1 July 2022 Ms Dunlop contacted Child Support and advised that she had notified the change in care to be from February 2022 (not 2021). Child Support treated this as a formal objection and not a correction.

   (c)    On 7 September 2022 Mr Millane spoke with Child Support about the arrangements for child support payments.

   (d)    On 23 November 2022 Mr Millane spoke with Child Support and advised that Ms Dunlop was withholding care of the child.

2. Relevant documentation and evidence provided to Child Support included as follows:

   (a)    On 18 April 2022 Ms Dunlop provided third party statements stating she had 100% care of [the child].

   (b)    On 9 May 2022 Ms Dunlop provided a copy of the original care agreement signed by both parents in 2018.

3. Relevant documentation and evidence provided to the Tribunal included:

   (a)    Copy of correspondence from Mr Millane’s lawyers to Ms Dunlop seeking regular care of [the child] for Mr Millane.

   (b)    Copy of the Family Court Orders dated 17 April 2018.

4. Mr Millane’s evidence and submissions at hearing included as follows:

   (a)    Mr Millane said that he is not disputing that Ms Dunlop has had 100% care of [the child] since February 2022, however he claims that she has done this by denying him care of [the child].

   (b)    Mr Millane informed the Tribunal that when Child Support sent out their decision they had “2021” as the date of the change of care and he rang them and said they were incorrect and the date should be 2022; and they took that as his only objection, not a correction, and that he agreed with Ms Dunlop as she had also raised the issue of the incorrect date.

   (c)    Mr Millane told the Tribunal that his objection is that Ms Dunlop is withholding care and he is taking all the necessary legal steps to have the care reinstated and as such he should have interim care arrangements for that period.

   (d)    When the Tribunal questioned whether there was a pattern of care for the child up to February 2022 Mr Millane explained that although Ms Dunlop had her own home, she and [the child] lived with him at his house for approximately 90% of the time. However in February 2022 Mr Millane ended the relationship and asked Ms Dunlop to move out.

   (e)    Mr Millane told the Tribunal that when Ms Dunlop first moved out he didn’t do anything immediately about spending time with [the child], as Ms Dunlop was not happy about being asked to leave and Mr Millane thought that after a couple of weeks things would calm down and then they could sort it out. However when he didn’t get any responses to his messages he initiated court proceedings and sought legal advice and started the process to reclaim his care of [the child].

   (f)     Mr Millane advised that he and Ms Dunlop have had mediation sessions and at times they reach agreements, but Ms Dunlop has not been following the agreements. Mr Millane said that he is currently asking for full custody or 50/50 shared care. At the moment it should be a minimum of two nights a week and then gradually increasing; however Ms Dunlop has not been following the agreement.

   (g)    Mr Millane said that Ms Dunlop has blocked him from contacting [the child] and has changed phone numbers. As [the child] is 11 years of age, [the child]’s arrangements are made by Ms Dunlop so Mr Millane does not contact her directly. However Mr Millane commented that he has spoken to [the child] on a couple of occasions and she said she wants to spend time with him but he knows that Ms Dunlop makes it very difficult.

   (h)    Mr Millane advised that he is currently negotiating future arrangements for care of [the child] and he nominates days that he is available. For example he recently nominated 30 different opportunities but Ms Dunlop has not been cooperative and he has only seen [the child] on a few random occasions since February 2022 (possibly 20 days in total to the present time) but there has been no regular care. Mr Millane said that when they do get a mediated agreement, Ms Dunlop does not honour the agreement. Mr Millane said his legal advice is that he needs to negotiate care arrangements before they go to court which is what he is trying to do.

   (i)   Mr Millane told the Tribunal that up until February 2022 they had a private agreement with respect to child support payments as they were separated but still living under the same roof.

   (j)   When Ms Dunlop moved out and contacted Child Support she initiated formal child support arrangements without consulting him. Mr Millane explained that he is taking whatever action he can to re-establish his care of [the child] and that is why he has objected to the Child Support decision as the only reason Ms Dunlop has 100% care of [the child] is because she is withholding care from him.

Issue 1 – Should the pre-existing percentage of care determinations recorded by Child Support as at 4 May 2018 in relation to the child be revoked?

1. Having regard to all of the evidence the Tribunal is satisfied that:

   ·      The child has been in the 100% care of Ms Dunlop since 10 February 2022.

   ·      Prior to 10 February 2022 there was a court ordered child care arrangement of 14% care to Mr Millane and 86% care to Ms Dunlop since 2018.

   ·      The court ordered care arrangements were not being adhered to prior to the change in care notification by Ms Dunlop.

   ·      Mr Millane took all possible action to seek a new care arrangement.

   ·      Ms Dunlop notified Child Support of the change in care on 11 March 2022.

2. The Tribunal considers that the appropriate care period is 12 months from 10 February 2022. Further the Tribunal is satisfied based on the evidence that the pattern of care of the children from 10 February 2022 was 0% care to Mr Millane and 100% care to Ms Dunlop.

3. As there are pre-existing percentage of care determinations the Tribunal is first required to consider whether these can be or must be revoked.

4. Section 54F therefore requires that the existing care percentages be revoked.[1]

   [1] Section 54G does not apply because the children were not being made available for care by Ms Dunlop.

5. There is an exception to the general rule that a parent’s recorded care will reflect their actual care. Under section 51, the framework for determining when percentage of care determinations apply may be treated differently where a care arrangement is in place, it is not being complied with and the parent with reduced care is taking reasonable action to ensure compliance. Essentially, the application of section 51 results in the care as specified under a breached care arrangement being recorded or continuing to be recorded for child support purposes during an “interim period” and the actual care occurring applying after the interim period ends.

6. Care arrangement in relation to a child means:

   (a)a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

   (b)a parenting plan for the child within the meaning of section 63C of the Family Law Act 1975; or

   (c)any of the following orders relating to the child:

   (i) a family violence order within the meaning of section 4 of the Family Law Act 1975;

   (ii) a parenting order within the meaning of section 64B of the Family Law Act;

   (iii) a State child order registered in accordance with section 70D of that Family Law Act;

   (iv) an overseas child order registered in accordance with section 70G of that Family Law Act.

7. Section 2.2.4 of the Guide provides guidance as follows:

   A written agreement exists between separated parents (or a parent and another person who cares for the child) if:

   ·there is a document in writing

   ·the document signed and dated by both parties, and

   ·both parties agree on the care arrangements for the child, which are specific in the document.

   A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it signed by both parties. The written agreement must indicate that the care arrangement constituted an agreed, ongoing care arrangement for the child.

Issue 2 – Does an interim care determination apply and if so what percentage of care determinations apply for each parent and for what periods?

1. Section 51 has potential application to the circumstances of this case. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

2. The four requirements in subsection 51(1) are as follows:

   (a) Care percentage determinations are required to be made pursuant to section 49 or section 50;

   (b)    A formal care arrangement (Court Order or Parenting Agreement) applies in relation to the children;

   (c)    The actual care of the children that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement; and

   (d)    The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.

1. It is not in dispute that the court ordered care arrangement was not being followed with respect to the care of the child. Mr Millane’s evidence to the Tribunal was that he is seeking a new care arrangement of 50/50 shared care of the child, rather than taking reasonable action to ensure the 14% care in the existing care arrangement is complied with.

2. Therefore the Tribunal finds that paragraph 51(1)(d) is not satisfied and section 51 does not apply. The Tribunal has determined that percentage of care determinations are required to be made under section 49 or section 50 reflecting the parents’ actual care.

3. As already canvassed, section 54G does not apply.

4. Section 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, section 54G does not apply and section 51 does not apply or no longer applies.

5. Section 55C 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 86%	86%

1. Care of 0% to Mr Millane and 100% to Ms Dunlop does not correspond with the pre-existing percentage of care determinations recorded by Child Support as at 4 May 2018 of 14% care to Mr Millane and 86% care to Ms Dunlop.

2. A change in care percentages to 0% to Mr Millane and 100% to Ms Dunlop would change each parent’s cost percentage pursuant to the table in section 55C.

3. Section 51 does not apply.

4. The existing percentages of care of 14% to Mr Millane and 86% to Ms Dunlop are therefore required to be revoked pursuant to section 54F.

Issue 3 – What are the new percentage of care determinations for Mr Millane and Ms Dunlop?

1. Percentage of care determinations are required pursuant to subsections 49(2) and 50(2). The Tribunal has determined that Mr Millane’s new percentage of care for [the child] is 0% and Ms Dunlop’s percentage of care is 100% as outlined in the above consideration.

Issue 4 – What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(b) the change in care was notified by Ms Dunlop on 11 March 2022. The Tribunal has found the change occurred on 10 February 2022. The pre-existing percentage of care of 14% recorded for Mr Millane is revoked the day before the change of care day, that is, on 9 February 2022. The pre-existing percentage of care of 86% recorded for Ms Dunlop is revoked on 10 March 2022 (the day before notification).

2. It is then necessary to determine from when new percentage of care determinations are to apply.

3. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 0% to Mr Millane applies from 10 February 2022. As Ms Dunlop notified the change of care on 11 March 2022, more than 28 days after the change of care was found to have occurred on 10 February 2022, the recorded increased percentage of care determination from 86% to 100% to Ms Dunlop applies from 11 March 2022 (the date of notification).

Conclusion

1. As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to Child Support of such changes, and Child Support then is tasked with making further decisions, with review rights, as appropriate, attached to each further or subsequent decision.

DECISION

The decision under review is affirmed.