Morehouse and Morehouse (Child support)

[2023] AATA 3743

Morehouse and Morehouse (Child support) [2023] AATA 3743 (20 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC025793

APPLICANT:  Ms Morehouse

OTHER PARTIES:  Child Support Registrar

Mr Morehouse

TRIBUNAL:Member J Bakas

DECISION DATE:  20 September 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Morehouse provided 80% care and Mr Morehouse provided 20% care of the children from 27 October 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – parents living under same roof – 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 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 Morehouse and Mr Morehouse are the parents of two children, in respect of whom a child support assessment is in place.

2. From 15 November 2021 there has been a case registered for child support for the two children.

3. On 29 October 2022, Ms Morehouse contacted Services Australia – Child Support (Child Support) to advise that from 27 October 2022 the parents had separated but were living under one roof.

4. On 27 November 2022, Child Support decided to record the care of the children as being 50% to Ms Morehouse and 50% to Mr Morehouse.

5. Ms Morehouse sought a review of that decision on 29 November 2022. Her position included that they are separated under one roof and that she is providing all the care for the children and Mr Morehouse is not contributing financially.

6. On 16 February 2023, the objection was disallowed.

7. On 17 March 2023, Ms Morehouse made an application to the Social Security and Child Support Division of this Tribunal (the Tribunal) for a review of that decision.

8. The matter was heard on 9 August 2023 and both Ms Morehouse and Mr Morehouse participated by MS Teams audio. Both parties gave oral evidence to the Tribunal on affirmation. At hearing, both parties confirmed receipt of documents provided by Child Support.

9. The Tribunal deferred its decision for a three-week period to allow both Mr Morehouse and Ms Morehouse an opportunity to make written submissions and provide evidence of their activities with the children from October 2022 while separated under one roof.

10. Mr Morehouse did not submit any further documents in that three-week period. Ms Morehouse’s additional documents were received by 6 September 2023.

11. The Tribunal then sought additional information from Child Support which was received on 14 September 2023 and the Tribunal proceeded to make its decision.

ISSUES

1. 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.

2. The issues which arise in this case are:

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

   ·Should new determinations of percentage of care be attributed to Ms Morehouse and Mr Morehouse in respect of the two children?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the new care percentage determinations apply?

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. Upon revocation, a new percentage of care determination must be made.

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

1. 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.

2. Section 54G of the Act provides for the revocation of a determination of a percentage of care if (among other requirements) a responsible person was to have at least regular care for a child under a care determination, but the person has had no care or a pattern of care that is less than regular care.

3. If section 54G of the Act does not apply, section 54F of the Act provides another basis on which a care determination may be revoked. It requires (among other matters) that the Registrar or Secretary be notified, or otherwise become aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

4. It can be seen, therefore, that in order to revoke an existing care determination under either section 54G or section 54F of the Act, a new pattern of care must be cogently identifiable in order to compare it with the existing percentage of care. If section 54G or 54F does not apply then section 54H allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage, and certain other conditions are met.

5. The term “pattern of care” is not defined in the legislation. It involves a consideration of actual care that is taking place and the assessment of care is conducted over the care period. 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). Australian government policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide) which may be followed by Child Support, 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.

6. There is no dispute that there were existing determinations for Ms Morehouse and Mr Morehouse of percentages of care for the children registered with Child Support, being 100% and 0% respectively, made in accordance with sections 49 and 50 of the Act.

7. I note that the hearing papers include documentation to show that there was a new care event that occurred on 21 January 2023 providing 86% care to Ms Morehouse and 14% care to Mr Morehouse but that this decision is not before the Tribunal. The Tribunal needs to consider what the correct or preferable decision is in regard to the care change that was notified on 29 October 2022 which would stay in place for the care period or until there is a further care change.

8. Mr Morehouse’s evidence and submissions at the hearing included the following:

   ·      During the period of 27 October 2022 to 20 January 2023 he was home every night caring for the girls.

   ·      Most nights he would put one of the children to bed. Ms Morehouse would often go out after the children were in bed. He was also picking the children up from child care every Monday and Wednesday and giving them dinner. Every Sunday he would spend the day with them.

   ·      During this period he paid for all utilities including water, electricity and gas. The mortgage was put on hold.

9. Ms Morehouse’s evidence and submissions at the hearing included the following:

   ·      Even though she notified that they were again separated living under one roof, she is continuing to have 100% care of the children just like she did last time they had separated in the period 7 May 2022 to 25 June 2022.

   ·      She also informed Child Support at this time that there had been a period of reconciliation from 26 June 2022 to 26 October 2022 but had inadvertently omitted to let them know earlier.

   ·      She never discussed care percentages with Child Support during this call on 29 October 2022.

   ·      Whether they are in a relationship or not, she has been the primary care giver.

   ·      She has met all of their expenses for a considerable time.

   ·      She has produced evidence of friends that have observed her involvement with the children.

   ·      Mr Morehouse does have time with the children but nowhere near 50%. It was most probably more like 20% of the time. However she was the one that would take them to appointments and activities about 95% of the time.

   ·      She paid for all of the food and utilities for herself and the children from 27 October 2022. She also paid for the mortgage which was not put on hold as claimed by Mr Morehouse.

   ·      She did go out after the children were asleep between 27 October 2022 and 20 January 2023 about three times.

   ·      Mr Morehouse did pick up the children on Mondays and Wednesdays until November 2022. She agrees he took the children out on Sundays. However there were two weekends where he went to Victoria. He just left without telling her. It was simply expected that she would care for the children.

   ·      Mr Morehouse was quite angry during this period and was not communicating with her.

   ·      She pays for [Activity 1] for the older child at a cost of $600 a semester as well as for swimming for both children at $110 a month for both children.

10. In relation to care determinations during periods of being separated under one roof, chapter 2.2.1 of the Guide states:

    In most cases, it will be relatively clear whether and to what extent a person is caring for a child and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

    ·person has control of the child, including having overall responsibility for the child and making

    omajor decisions relating to who the child spends time with, and the child’s health, education, discipline, recreational and/or social activities, and

    oarrangements for others to meet the needs of the child (delegated care)

    ·person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities

    ·person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child

    ·child provides for his or her own needs or has those needs met from another source

    ·child is financially independent or financially supported from another source.

    Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

11. Although not bound by policy as set out in the Guide, the Federal Court has held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

12. In this case the Tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.

13. In addition, the Tribunal notes the term “care” is not defined in the legislation. The Federal Magistrates Court of Australia, in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, discusses the meaning of “care” in detail including the factors that should be taken into account when deciding if a person is providing care for a child. These are:

    ·      to what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

    ·      to what extent does the person make arrangements for others to meet the needs of the child?

    ·      to what extent does the person pay for the costs of meeting the needs of the child?

    ·      to what extent does the person otherwise provide financial support for the child?

    ·      to what extent does the child provide for his or her own needs or have those needs met from another source?

    ·      to what extent is the child financially independent or financially supported from another source?

14. The Tribunal also notes that the objections officer did not have enough information to quantify the level of care provided by Ms or Mr Morehouse during the period of being separated under one roof beyond 50/50.

15. The Tribunal finds that the additional documents provided by Ms Morehouse, along with the documents she had provided to the Tribunal, support her submissions that she was the parent that would pay for the children’s expenses and arrange their care and activities.

16. The Tribunal is satisfied that for the period of 27 October 2022 to 20 January 2023, Ms Morehouse was the parent responsible for meeting the needs of the children including their food, child care, education, emotional support and extracurricular activities. The reason this short care period is being considered is that the hearing papers show that a further care change occurred on 21 January 2023, as detailed above.

17. However, the Tribunal also accepts that Mr Morehouse would spend Sundays with the children and would assist with some of the transport and bedtime requirements while Mr and Ms Morehouse were living separated under one roof.

18. The Tribunal finds that Ms Morehouse’s estimation of a pattern of care of 80% care of the children by her and 20% care by Mr Morehouse from 27 October 2022 is correct. Prior to this date, when the parents were previously separated (from 7 May 2022 to 25 June 2022) the care percentage was 100% care by Ms Morehouse and 0% by Mr Morehouse. As such the Tribunal is satisfied that the level of care no longer corresponds to the existing registered care with Child Support.

19. 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 – 0% to Mr Morehouse and 100% to Ms Morehouse – the cost percentages of each are 0% and 100% respectively. If new determinations were to be made in accordance with the Tribunal’s findings above of a pattern of care provided by Mr Morehouse of 20% and Ms Morehouse of 80%, the cost percentages would change to 24% and 76% respectively.

20. The Tribunal is satisfied that the percentage reflecting the actual care as found by the Tribunal, would affect the cost percentage.

21. The requirements for revoking the existing percentage of care in accordance with section 54F of the Act are satisfied and the Tribunal would therefore revoke that existing care percentage determination.

22. Ms Morehouse notified Child Support of the change in care on 29 October 2022 which is within 28 days after the change occurred on 27 October 2022. Therefore, according to subsection 54F(3) of the Act, the revocation is made from 26 October 2022.

Should a new determination of a percentage of care be attributed to Mr Morehouse and Ms Morehouse in respect of the children?

1. Having revoked the existing determinations, the Tribunal must make new determinations of the percentages of care attributed to Mr Morehouse and Ms Morehouse in respect of the children.

2. The Tribunal considered section 50 to be the relevant section of the Act in relation to determining a percentage of care. Under section 50, to make a new determination the Tribunal must be satisfied that an existing care determination made under sections 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children. These matters have been discussed above and the Tribunal is satisfied that the determination made under sections 49 and 50 of the Act to attribute 0% care of the children to Mr Morehouse and 100% care to Ms Morehouse should be revoked under section 54F of the Act and that during the care period, Mr Morehouse had a pattern of care in respect of the children of 20% and Ms Morehouse had a pattern of care in respect of the children of 80%. Accordingly, new care determinations are to be made under section 50 of the Act.

3. As detailed above, Ms Morehouse notified Child Support that care was no longer taking place in accordance with the pattern of care they had recorded and stated that the care had changed to 100% care to her and 0% to Mr Morehouse from 27 October 2022. For the reasons outlined, the Tribunal finds that Ms Morehouse actually provided 80% care and Mr Morehouse provided 20% care of the children from 27 October 2022.

Date of application of new care percentage determinations

1. As detailed above, Ms Morehouse notified Child Support of the change in care on 29 October 2022 which is within 28 days after the change occurred on 27 October 2022. Therefore, according to subsection 54F(3) of the Act, the revocation is made from 26 October 2022.

2. Pursuant to section 54B, the new determinations apply from 27 October 2022.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Morehouse provided 80% care and Mr Morehouse provided 20% care of the children from 27 October 2022.