Mossey and Mossey (Child support)

[2021] AATA 4796

Mossey and Mossey (Child support) [2021] AATA 4796 (4 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021898

APPLICANT:  Ms Mossey

OTHER PARTIES:  Child Support Registrar

Mr Mossey

TRIBUNAL:Member E Kidston, Member S Trotter

DECISION DATE:  4 November 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1] and [Child 2]:

·     the existing care percentage determination of 28% to Mr Mossey is revoked from 24 December 2020 and replaced with a new care percentage determination of 2% with effect from 25 December 2020; and

·     the existing care percentage determination of 72% to Ms Mossey is revoked from 24 December 2020 and replaced with a new care percentage determination of 98% with effect from 25 December 2020.

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 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 Mossey and Mr Mossey are the separated parents of [Child 1] (born 2006), [Child 3] (born 2009) and [Child 2] (born 2011) (the children). On 12 October 2012 a child support assessment was registered with Services Australia – Child Support Agency (CSA) regarding the children. This review application is about the percentages of care for Ms Mossey and Mr Mossey that apply in relation to the child support case registered with the CSA for [Child 1] and [Child 2].

2. On 18 April 2019, Mr Mossey and Ms Mossey signed a parenting agreement. From 19 April 2019 to 16 February 2020 the percentage of care determinations recorded by the CSA were 50% for each of Ms Mossey and Mr Mossey for all three of the children.

3. On 17 February 2020, Ms Mossey contacted the CSA about a change in care concerning [Child 1] and [Child 2] from 16 February 2020. On 22 April 2020 an interim period determination was made by the CSA in which the percentage of care determinations in respect of [Child 1] and [Child 2] continued to be 50% for each of Ms Mossey and Mr Mossey based on the parenting agreement up to 12 April 2020. From 13 April 2020, the CSA recorded percentage of care determinations for [Child 1] and [Child 2] as 72% for Ms Mossey and 28% for Mr Mossey. There was no change in care concerning [Child 3] and the percentage of care determinations for each of Ms Mossey and Mr Mossey remained at 50%.

4. On 20 July 2020, Ms Mossey contacted the CSA to notify a change in care for [Child 1] as 100% to her from 5 June 2020, and then on 12 October 2020 Ms Mossey contacted the CSA to notify a change in care for [Child 2] as 96% to her and 4% to Mr Mossey from 9 July 2020. Mr Mossey disagreed with the changes in care notified concerning both [Child 1] and [Child 2].

5. On 20 November 2020, the CSA decided that there was insufficient evidence available to be satisfied that a change in care had occurred for [Child 1] and [Child 2] as notified by Ms Mossey on 20 July 2020 and 12 October 2020 respectively. Ms Mossey was notified of the CSA’s decision and advised that she had 28 days to object in writing to the 20 November 2020 decision. This was confirmed to Ms Mossey in a phone call of 23 November 2020. CSA’s records show that no written objection to the decision of 20 November 2020 was received.

6. On 19 January 2021, Ms Mossey contacted the CSA and notified that the expected care of [Child 1] and [Child 2] as every second weekend and half the school holidays with Mr Mossey had not happened for most of the previous year and was still not happening, that from 19 January 2021 she was therefore not expecting that Mr Mossey would be having any the pattern of care of [Child 1] and [Child 2] and that she would be having almost 100% care.

7. On 9 April 2021, the CSA decided to refuse to change the recorded care of [Child 1] and [Child 2] to reflect Ms Mossey as having 98% care and Mr Mossey as having 2% care thereby retaining the existing percentage of care determinations as recorded from 13 April 2020 of 72% to Ms Mossey and 28% to Mr Mossey.

8. On 26 April 2021, Ms Mossey made a formal written objection to the decision of 9 April 2021 and, on 23 June 2021, an objections officer of the CSA disallowed the objection (the decision).

9. On 6 July 2021, Ms Mossey made an application to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision.

10. The application was heard by the Tribunal on 11 October 2021. Ms Mossey (as the applicant) and Mr Mossey (as the other party) participated in the hearing by conference telephone and each gave evidence on affirmation. As is customary, the Child Support Registrar did not participate in the hearing and did not attend.

11. Part way through the hearing on 11 October 2021, Mr Mossey’s teleconference connection dropped out. The Tribunal attempted to reconnect Mr Mossey to the teleconference but was not successful and adjourned the hearing.

12. On 13 October 2021, the Tribunal resumed the hearing by teleconference with Ms Mossey and Mr Mossey. Mr Mossey made an application to provide written submissions to the Tribunal as he was experiencing a high level of anxiety and was not comfortable in continuing with the hearing by teleconference. The Tribunal granted the request and directed both parties to provide any further relevant documentary evidence or written submissions upon which they wished to rely by close of business on 20 October 2021.

13. The Tribunal received written material from Ms Mossey and Mr Mossey by 20 October 2021 (additional material). Upon consideration of the additional material, there was no further relevant factual information contained in the additional material received from either party that needed to be exchanged between the parties.

14. In considering the application, the Tribunal took into account the oral evidence of Ms Mossey and Mr Mossey from 11 October 2021 as well as documentary material in evidence provided by: the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1 – numbered 1 to 300). The Tribunal noted the additional material provided no further relevant factual information additional to that already before the Tribunal, therefore the additional material has not been taken into account.

15. During the hearing, and in submissions made in the additional material from Mr Mossey, he raised concerns regarding certain matters between the parties. As discussed at hearing, the Tribunal is required to consider the issues before it based on the relevant facts and application of the law and it is not the role of the Tribunal to adjudicate on other areas of dispute that may exist between the parties. However, in stating that, the Tribunal does not disregard the issues that can arise where parents are working through challenging issues concerning their children in addition to that, trying to understand how the law applies in child support care matters and the possible difficulties with understanding what information may be relevant in that regard.

RELEVANT LEGISLATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. The legislation sets out the rules for making and revoking percentage of care determinations which are then used as part of the child support formula to assess child support payment rates. In a majority of cases, the percentage of care determination for a parent of the child affects the annual rate of child support assessed and payable in each case.

3. A parent’s percentage of care is determined under section 49 or 50 of the Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether the existing percentage of care determination can be revoked.

4. The legislation requires any new percentage of care determination to be made following notification to the CSA, or the CSA becoming aware, of certain circumstances. As existing care percentages generally apply until the CSA is notified of a change in care, the legislation makes it clear that it is a point in time assessment and it is necessary to assess the actual or likely pattern of care by reference to a care period in order to determine whether there has been a relevant change in the likely pattern of care so as to revoke the existing percentage of care determinations and make new percentage of care determinations.

5. In simple terms, a decision is made with reference to a point in time and usually corresponds with the likely actual pattern of care from a point in time based on what had happened leading up to that time. In this respect it is not appropriate to assess care based on what happened after that point in time up to the time of the Tribunal hearing. Evidence of the care for this period is not likely to be relevant, except to the extent that the evidence may inform the likely actual pattern of care as at that earlier point in time.

6. It is not without regard that what is “projected” as the likely pattern of care may not actually eventuate and, when that is the case, a parent should notify the CSA so that new percentage of care determinations may be made in relation to subsequent changes.

7. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
   …

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the patter of care, and will not result in a new care determination.

   [1] Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

8. The Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, consideration will be given to the information provided and obtained and whether there is some common expectation about future care. It further states that if the information and evidence provided by the parents cannot be reconciled, the decision maker will weigh the evidence and information provided by the parents about past care to determine the pattern of care likely to occur from the relevant date.

ISSUES

1. The application before the Tribunal is limited to a point in time consideration of the likely actual pattern of care of [Child 1] and [Child 2] from 19 January 2021 and, the corresponding percentage of care determinations for Ms Mossey and Mr Mossey concerning [Child 1] and [Child 2].

2. The Tribunal must determine the likely pattern of actual care of [Child 1] and [Child 2] as at 19 January 2021 and whether the existing percentages of care determinations in respect of them should be revoked. If so, the Tribunal must then decide what new care percentages are to be attributed to Ms Mossey and Mr Mossey in respect of [Child 1] and [Child 2], and the dates of effect, if relevant.

3. The Tribunal again points out that there are a number of background issues of importance to both Ms Mossey and Mr Mossey in evidence which are not relevant to the issues before the Tribunal and therefore are not mentioned in these Reasons. By not noting those issues, the Tribunal does not diminish the importance of other matters in any way, merely that the Tribunal is limited to considering the relevant issues concerning the decision under review.

CONSIDERATION

1. In this matter, it is common ground that a parenting agreement concerning the children was in place (with 50% care of each parent) and followed until 16 February 2020 when a change in care for [Child 1] and [Child 2] occurred. The CSA determined on 22 April 2020 that an interim period pursuant to section 51 of the Act concerning [Child 1] and [Child 2] applied until 12 April 2020. From 13 April 2020 the CSA recorded care percentages that reflected the care for [Child 1] and [Child 2] as 72% to Ms Mossey and 28% to Mr Mossey.

2. It is important to note that there was no change to the care percentage for Mr Mossey and Ms Mossey’s middle child, [Child 3], and the Tribunal understands that care for her continued, at all relevant times, in accordance with the parenting agreement dated 18 April 2019.

3. At the hearing Ms Mossey told the Tribunal that she continued to contact the CSA to notify the change in care for [Child 1] and [Child 2] as the parenting agreement was only followed for them for about three months, and despite the intention for Mr Mossey to have care of [Child 1] and [Child 2] every second weekend and half of the school holidays in 2020, it was clear that Mr Mossey did not have 28% care of [Child 1] and [Child 2] as they were choosing not to stay overnight with him and he only had a total of about 10 nights of care for them in 2020. As such, the recorded care percentages did not properly reflect the care that was happening. Ms Mossey’s evidence is that she worked out the calculation of 98% to her and 2% to Mr Mossey based upon the actual nights of care she recorded that Mr Mossey had of [Child 1] and [Child 2] in 2020.

4. Mr Mossey told the Tribunal that he disagreed with Ms Mossey’s evidence and continuously had 50% care of the children for longer than a year. He acknowledged that changes happened in early 2020 and that the CSA recorded reduced percentages of care to him from 13 April 2020 concerning [Child 1] and [Child 2]. Mr Mossey said that he has always wanted 50% care of the children however Ms Mossey refused and was withholding the children from him. Mr Mossey said that he cared for [Child 1] and [Child 2] more than the 10 nights in 2020 as stated by Ms Mossey but conceded that the overnight care for them was inconsistent, there was no set pattern and that [Child 1] and [Child 2] would sometimes be at his home but not stay overnight. Mr Mossey maintained that he still had care of his children as per the determination from April 2020, despite the reduced nights that [Child 1] and [Child 2] had with him. In speaking with the Tribunal, Mr Mossey explained that [Child 2] had sleep issues and preferred to sleep at her mother’s home; and with regard to [Child 1], being 15 years of age, she has a boyfriend and other unexpected interests, and as he imposes stricter rules at his home, [Child 1] preferred to stay over at Ms Mossey’s.

5. Exhibit 1 includes copies of CSA’s records of various contacts with Ms Mossey and Mr Mossey. From that evidence (at page 185 of the Exhibit 1) Ms Mossey’s advice to the CSA on 26 April 2021 was that with regard to [Child 1] and [Child 2] there was no set pattern of care by Mr Mossey but sporadic overnight care. She wanted the change in care as 98% to her to commence from 25 December 2020 because she was not expecting any substantive care of [Child 1] and [Child 2] by Mr Mossey ongoing.

6. CSA’s records shows (at pages 144 and 173 of the Exhibit 1) that Mr Mossey informed the CSA on 12 August 2020 that [Child 1] had stayed at his house for a few nights here and there and it was definitely not 100% to Ms Mossey. Mr Mossey’s advice to the CSA on 22 October 2020 was that he and Ms Mossey live [number of] metres apart and the children get themselves between the homes; and there has been no change, he still sees all his children each week.

7. The claims that Ms Mossey and Mr Mossey made about the time [Child 1] and [Child 2] spent in their care were inconsistent. Mr Mossey was unable to provide a chronology of the overnight care he had of [Child 1] and [Child 2] leading up to Ms Mossey’s notification in January 2021, other than to generally state as has been recorded in the preceding paragraph. In evidence is a calendar of events concerning the children for February 2021 which Mr Mossey had provided to the CSA in March 2021 (at page 169 of the Exhibit 1). As this evidence concerns the record of care after the likely pattern of actual care at the point of time, 19 January 2021, under consideration, it has minimal evidentiary value in relation to the matter in issue. Mr Mossey had also provided copies of SMS communications between him and Ms Mossey to the CSA in May 2021 (at pages 205 and 206 of the Exhibit 1). Again, the SMS communications are of minimal evidentiary value given they relate to plans after the point in time under consideration. Further, Mr Mossey had not provided third party written statements to the CSA or the Tribunal in relation to the relevant point in time, and the time leading up to then, despite opportunity to do so.

8. Dissimilarly, Ms Mossey provided calendar diary entries which showed the nights she recorded [Child 1] and [Child 2] had in Mr Mossey’s care in 2020 (to the CSA) and in 2021 (to the Tribunal), as well as written statements from a friend and her employer (to the CSA). The Tribunal had no reason to doubt that the authors of the written statements provided by Ms Mossey believed that they knew what care Ms Mossey and Mr Mossey provided for [Child 1] and [Child 2]. However, the Tribunal gave minimal evidentiary weight to the statements as they contained limited factual or detailed information substantiating the basis of their understanding of the care position.

9. The Tribunal notes that as Mr Mossey and Ms Mossey reside in close proximity, it was understood by the Tribunal the children move between the two homes independently. It is not in dispute that Mr Mossey’s access to their other daughter, [Child 3], had gone uninterrupted during the relevant period. Consequently, the Tribunal does not put any weight on Mr Mossey’s allegation that Ms Mossey was withholding access, and the Tribunal considers that access to the children during the relevant care period was made available by Ms Mossey.

10. While the evidence Mr Mossey and Ms Mossey gave was mostly conflicting, there was some common factual evidence in terms of there being reduced overnight care for [Child 1] and [Child 2] in 2020 as their statements were consistent that the overnight care Mr Mossey provided [Child 1] and [Child 2] was sporadic and differed to that provided to [Child 3].

Issue 1 – Did the existing pattern of care for [Child 1] and [Child 2] change? If so, when did the pattern of care change and when was it notified?

1. As conveyed at the hearing to Mr Mossey and Ms Mossey, the legislation requires the Tribunal to assess what is the likely pattern of care as at 19 January 2021 going forward for [Child 1] and [Child 2] for a care period.

2. Section 54A provides for care to usually be based on the number of nights of care a person has for a child.

3. The Tribunal accepts Mr Mossey’s evidence; that he is involved in his children’s lives and saw them each week, however, the Tribunal considers the circumstances are such that the usual rule that care follows the nights in care should be applied.

1. Ultimately both Ms Mossey’s and Mr Mossey’s evidence at the hearing and as detailed in Exhibit 1 was that, at the point in time of Ms Mossey’s notification, Mr Mossey had reduced overnight care of [Child 2] and [Child 1] in the year prior, despite the intention of both parties for Mr Mossey to have regular ongoing care, whilst shared care of [Child 3] continued in accordance with the parenting agreement at 50%.

2. The Tribunal considers from the evidence that it was the parties’ intention for Mr Mossey to have regular ongoing care of [Child 1] and [Child 2] from 13 April 2020 of 28%. On the evidence it seems there were a number of minor variations in the actual care of [Child 1] and [Child 2] from 13 April 2020. There are a number of inconsistencies in the evidence as to what care was actually happening throughout 2020 and whether changes in care were minor variations or otherwise. Having regard to all of the evidence, the Tribunal is satisfied that by the time of notification by Ms Mossey on 19 January 2021, Mr Mossey was having a pattern of care that was less than regular care of [Child 1] and [Child 2].

3. In considering the evidence, including the points of consistency in the evidence that Mr Mossey and Ms Mossey presented, the Tribunal finds that the pattern of actual care for [Child 1] and [Child 2] from 19 January 2021, was likely to be 98% to Ms Mossey and 2% to Mr Mossey.

Issue 2 – Do new percentage of care determinations apply for [Child 1] and [Child 2]?

1. The provisions relating to the revocation of a determination of a person's percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Act.

2. Care determinations can be revoked pursuant to section 54F, 54G or 54H. One of the requirements of section 54F is that 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G.

3. Subsection 54G(1) of the Act provides for the mandatory revocation of an existing care percentage determination in specified situations where there is less than regular care for a parent and the change in care was notified to the Agency within a reasonable period. Each criterion of subsection 54G(1) as set out in paragraphs (a) to (d) must be satisfied in order for an existing care percentage determination to be revoked under the provision.

4. In considering the evidence, the Tribunal finds that the requirements of subsection 54G(1) were satisfied, as follows:

(a)The Tribunal has found that there were existing percentage of care determinations made under section 50 of the Act for Ms Mossey and Mr Mossey for [Child 1] and [Child 2] in which Mr Mossey was to have 28% care, that is at least regular care, from 13 April 2020 – paragraph 54G(1)(a).

(b)The Tribunal has found that Mr Mossey has had less than regular care of [Child 1] and [Child 2] despite Ms Mossey making them available to Mr Mossey from 25 December 2020 – paragraph 54G(1)(b).

(c)A percentage of care determination for each of [Child 1] and [Child 2] had been made under section 50 for Ms Mossey – paragraph 54G(1)(c).

(d)Ms Mossey contacted the CSA on 19 January 2021 and advised that the actual care of [Child 1] and [Child 2] did not correspond with the percentages of care in the existing care determinations and that the care she was expecting from 19 January 2021 was almost 100% care of [Child 1] and [Child 2] from that date. Notably, Ms Mossey’s later advice to the CSA showed that her position was based upon Mr Mossey, by 19 January 2021, having last had overnight care of [Child 1] and [Child 2] on 24 December 2020. Although Ms Mossey made other notifications to the CSA in July 2020 and October 2020 which resulted in the CSA’s decision to refuse change in care for [Child 1] and [Child 2] dated 20 November 2020, the Tribunal has found that it is not until 25 December 2020 that it is satisfied that Mr Mossey had a pattern of care that was less than regular care. In light of all of the variations in care that had taken place throughout 2020, the Tribunal considers it reasonable that Ms Mossey waited a few weeks after Mr Mossey’s last overnight care on 24 December 2020 and then, absent further overnight care by him, notified on 19 January 2021. It follows that the Tribunal is satisfied that Ms Mossey notified within a period that was reasonable in the circumstances – paragraph 54G(1)(d).

1. In summary, the Tribunal has found that from 19 January 2021, the likely pattern of actual care by Mr Mossey of [Child 1] and [Child 2] was 2% and by Ms Mossey was 98%. This did not correspond with the existing percentages of care of 72% to Ms Mossey and 28% to Mr Mossey. Based on the above finding that the provisions of subsection 54G(1) are met, the Tribunal must revoke the existing determinations of the percentages of care for [Child 1] and [Child 2].

2. Subsection 54G(2) of the Act sets out when the revocation of the existing determinations of care percentages takes effect. The date of effect of the revocation depends on whether the parent; never established a pattern of care or when they ceased to have a pattern of regular care, in accordance with the then existing care determinations.

3. In considering the evidence, the Tribunal finds the revocation of the existing determinations of percentages of care for [Child 1] and [Child 2] takes effect from 24 December 2020 (paragraph 54G(2)(b)).

Issue 3 – What is the date of effect of the new care percentage determinations?

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”.

2. Relevantly, and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is 25 December 2020.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1] and [Child 2]:

·     the existing care percentage determination of 28% to Mr Mossey is revoked from 24 December 2020 and replaced with a new care percentage determination of 2% with effect from 25 December 2020; and

·     the existing care percentage determination of 72% to Ms Mossey is revoked from 24 December 2020 and replaced with a new care percentage determination of 98% with effect from 25 December 2020.