Nolan and Nolan (Child support)

[2024] AATA 877

Nolan and Nolan (Child support) [2024] AATA 877 (19 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026652

APPLICANT:  Ms Nolan

OTHER PARTIES:  Child Support Registrar

Mr Nolan

TRIBUNAL:Member S Irvine

DECISION DATE:  19 March 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – no interim care determination can be 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. Ms Nolan and Mr Nolan are the parents of [Child 1], born in March 2017. A child support assessment for [Child 1] commenced on 23 September 2022. Prior to the decision under review the care percentage determinations in place for [Child 1] in the child support assessment were 86% to Mr Nolan and 14% to Ms Nolan.

2. On 29 March 2023 Services Australia – Child Support (Child Support) decided that there had been a change in [Child 1]’s care, and made the following determinations:

   ·interim care determinations of 72% to Mr Nolan and 28% to Ms Nolan from 10 January 2023

   ·actual care determinations of 100% to Mr Nolan and 0% to Ms Nolan from 9 January 2024.

3. On 11 May 2023 Mr Nolan objected to Child Support’s decision, and on 12 July 2023 a Child Support objections officer decided to allow the objection and made a determination that the actual care of [Child 1] should be reflected in the child support assessment from 10 January 2023. The objections officer therefore made care percentage determinations for [Child 1] of 100% to Mr Nolan and 0% to Ms Nolan from 10 January 2023.

4. On 22 August 2023 Ms Nolan applied to this Tribunal for a review of Child Support’s decision. A hearing was held on 26 February 2024, and both Ms Nolan and Mr Nolan attended by telephone and gave sworn evidence. The Tribunal also had before it relevant documents provided by Child Support (287 pages).

5. At the hearing Mr Nolan advised that he had not received a copy of the documents provided by Child Support. Ms Nolan confirmed that she had received a copy of those documents prior to the hearing. Mr Nolan indicated that he was willing to proceed with the hearing on the understanding that a copy of the documents would be provided to him directly after the hearing, and that he would have an opportunity to provide any further response in writing after the hearing. Consequently the matter was adjourned following the hearing on 26 February 2024.

6. A copy of the documents provided by Child Support was provided to Mr Nolan on 1 March 2024. No further submissions were received from Mr Nolan, and consequently the Tribunal reconvened on 19 March 2024 and a decision was made on that date. The Tribunal also had before it further written submissions made by Ms Nolan on 27 February 2024, a copy of which are included with these reasons for 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 care determinations for [Child 1] be revoked; and if so

   ·      Can interim care determinations be made, and

   ·      What new care determinations should be made, and from what date do the new care determinations apply in the child support assessment?

CONSIDERATION

1. Sections 49 and 50 of the Act provide that a determination of a person’s percentage of care for a child must be made in certain circumstances. Relevantly, a determination must be made if an existing care percentage determination is revoked.

2. Section 51 of the Act provides, relevantly, that if a care determination is required to be made under section 49 or section 50 in circumstances where:

   ·a care arrangement applies to the child;

   ·a parent is having less care of the child than they should have according to the care arrangement; and

   ·the person with reduced care is taking reasonable action to ensure the care arrangement is being complied with;

   then 2 care determinations may be made for the parents – the first corresponding with the care that should be occurring according to the care arrangement and the second corresponding with the actual care that is taking place. However, subsection 53(1) of the Act provides that section 51 does not apply if the Registrar has revoked the determination under section 54F or 54H.

3. A care percentage determination can be revoked under section 54F, 54G or 54H of the Act. Section 54G will apply in circumstances where a parent who was to have at least regular care of the child under the existing care determination in fact has had no care or less than regular care despite the child being made available by the other parent. Subsection 5(2) of the Act provides that a person has regular care of a child if the person’s percentage of care for the child is at least 14% but less than 35%.

4. Subsection 54F(1) provides that a person’s existing care determination for a child must be revoked if:

   (a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.

1. Subsection 54F(2) relates to a situation where the existing care determination is an “interim determination” made under section 51 and is not relevant to the current matter.

2. A person’s cost percentage for a child is determined under section 55C of the Act. Section 55C sets out a table showing how a person’s care percentage (determined under section 49 or 50 of the Act) equates to a cost percentage which is used in the child support formula as follows:

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%

1. Subsection 54H(1) provides that a person’s existing care determination for a child may be revoked if neither section 54G nor section 54F apply and, relevantly:

   (a) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b) the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child;

2. If a person’s existing percentage of care for a child is revoked under any of sections 54F, 54G or 54H, a new care determination must be made under section 49 of the Act (if the person has no pattern of care) or section 50 of the Act (if the person has a pattern of care). Pursuant to those sections, it is necessary to determine the pattern of care of the child the person has had or is likely to have during such period (the care period) as the Registrar (or the Tribunal standing in place of the Registrar) considers to be appropriate having regard to all the circumstances. Where the person has a pattern of care for the child, subsection 50(2) of the Act requires that the responsible person’s percentage of care for the child during the care period must be determined, and subsection 50(3) requires that the percentage must be a percentage that corresponds with the actual care of the child that the person has had or is likely to have during the care period.

3. Subsection 54A(1) of the Act 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 the child was, or is likely to be, in the care of the person. Section 54D of the Act provides that if a person’s percentage of care is not a whole percentage, then if the percentage is greater than 50% the percentage is rounded up to the nearest whole percentage and if the percentage is less than 50% the percentage is rounded down to the nearest whole percentage.

Should the parents’ existing percentages of care for [Child 1] be revoked?

1. It is not in dispute that prior to the decision under review the existing care determinations for [Child 1] in the child support assessment reflected care of 72% to Mr Nolan and 18% to Ms Nolan.

2. On 10 January 2023 interim orders were made in the Magistrates Court of Western Australia. Under the terms of those orders, [Child 1] was to spend time with Ms Nolan initially for 2 nights per fortnight, increasing to 3 nights per fortnight from 21 April 2023 and then to 4 nights per fortnight from 14 July 2023. That time was to be supervised by a third party named in the orders or a different third party agreed between the parents. The interim orders also provided that:

   ·Ms Nolan was to attend a clinical psychologist for the purpose of a mental health assessment, and thereafter provide to Mr Nolan and any independent children’s lawyer any mental health care plans or reports with respect to her mental health.

   ·Both parents were to submit to hair strand testing for alcohol and illicit drug use for a period of no less than 12 months.

3. Ms Nolan’s evidence is that she complied with the conditions in the interim orders. She completed her hair strand testing and provided a copy of the result to Mr Nolan’s lawyers as soon as the results came through. She also provided a copy of her mental health plan to Mr Nolan’s lawyers. Despite that, Ms Nolan said Mr Nolan would not allow her to have the care provided for in the interim orders. Initially she was not able to have any care, but starting on 11 February 2023 she was able to have care of [Child 1] between 10am and 5pm on Saturdays and Sundays.

4. Although Ms Nolan was of the view that she had complied with the requirements in the interim orders and so should have had overnight care, she said that she was afraid to assert her rights because of the legal processes. Ms Nolan said that while Mr Nolan was represented by his lawyers, she did not have legal representation.

5. Ms Nolan’s evidence is that she communicated with Mr Nolan’s lawyers in an attempt to resolve the issues but they wouldn’t budge other than to allow the visits from 10am to 5pm on Saturdays and Sundays. She attempted to lodge a new court application on 20 March 2023 but it was rejected because an independent children’s lawyer hadn’t been appointed. It wasn’t until further court orders were made on 28 April 2023 that she was able to have overnight care of [Child 1] again.

6. Mr Nolan’s evidence was initially that Ms Nolan had no care at all of [Child 1] from 10 January 2023 until May 2023. He said this was primarily because there was no agreed person to supervise the care. He denied that Ms Nolan had any daytime care of [Child 1] on weekends through that period, except that she had him for a couple of hours on his birthday in March.

7. In respect of the question as to what care Ms Nolan actually had of [Child 1] during the period from 10 January 2023 to May 2023, Ms Nolan’s evidence is that she first had day-time care of [Child 1] on 11 February 2023 when she picked [Child 1] up from a [location], and at the end of the day dropped him back to the train station, where Mr Nolan’s partner met them and took [Child 1] home. Arrangements were always with Mr Nolan’s partner; Mr Nolan wasn’t there at any of the handovers. Mr Nolan’s oral evidence was that no weekend care occurred at all.

8. The documents provided by Child Support contain a number of letters between Mr Nolan’s solicitors, [a named] Family Lawyers, and Ms Nolan. In particular I note there is a copy of a letter from [the lawyer] to Ms Nolan dated 10 February 2023, which says in part:

   In the meantime our client is prepared to facilitate [Child 1] spending unsupervised time with you each alternate weekend from 10:00am until 5:00pm on Saturday and Sunday, commencing 11 February 2023. Handover will occur in accordance with the orders dated 10 January 2023.

9. The documents also contain copies of emails between Ms Nolan and a lawyer at [a] Community Legal Centre. In one of those emails, dated 28 February 2023, Ms Nolan has said in part:

   Luckily, I did get to see [Child 1] over the weekend from 10 to 5 on both Saturday and Sunday …

10. The documents also contain a copy of an affidavit made by Ms Nolan and dated 17 March 2023. At paragraph 44 of that affidavit Ms Nolan has said:

    For the weekend of 10 February 2023 the Father only agreed to facilitate unsupervised spend time on Saturday 11 February 2023 from 10am to 5pm and Sunday 12 February 2023 10am to 5pm.

11. I accept on the basis of that evidence and Ms Nolan’s oral evidence at the hearing that there was an arrangement commencing on 11 February 2023 that Ms Nolan had care of [Child 1] from 10am to 5pm every second Saturday and Sunday. I do not accept Mr Nolan’s oral evidence on this point.

12. As set out above, subsection 54(1) of the Act provides that the actual care of a child may be worked out based on the number of nights a child is in the care of a parent. It is recognised that a calculation based on the number of nights a child spends in a parent’s care will not be an accurate reflection of the care arrangements for the child, however I am not satisfied that this is a situation where a calculation based on nights in care is inappropriate. While I accept that it was not Ms Nolan’s preference, the evidence is that she provided no actual care for [Child 1] from 10 January 2023 until 10 February 2023, and then from 11 February 2023 she provided a total period of 10 hours per fortnight until care changed again on 5 May 2023.

13. I find that from 10 January 2023 Ms Nolan’s actual care of [Child 1] was 0%, and Mr Nolan’s care was 100%. As this is different from the existing care determinations that were in place prior to 10 January 2023, I find that the existing care determinations must be revoked. Mr Nolan was not making [Child 1] available for Ms Nolan to have care, and the change in the care percentages will affect the parents’ cost percentages for [Child 1] in the child support assessment. I therefore find that the existing care determinations must be revoked pursuant to section 54F of the Act.

Can interim care determinations be made?

1. As set out above, section 51 of the Act provides that a care determination that corresponds with the care that should be occurring under a court order or other care arrangement can be made in certain circumstances.

2. However, paragraph 53(1)(c) of the Act provides that section 51 does not apply if the Registrar has revoked the determination under section 54F or 54H. The recent Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109 found that paragraph 53(1)(c), if properly construed, means that once existing percentage of care determinations are revoked under section 54F of the Act, an interim period under section 51 cannot apply to the new care percentage determinations that must be made. In this case, I am satisfied that this means that section 51 cannot apply, and therefore interim care determinations cannot be made. This is in spite of the fact that there is substantial evidence that Ms Nolan took reasonable action to ensure that the parenting orders made on 10 January 2023 were complied with.

What new care determinations should be made?

1. As section 51 of the Act does not apply, sections 49 and 50 of the Act provide that new care determinations must be made in accordance with the actual care that was occurring. Accordingly I find that the new care determinations are that Mr Nolan had 100% care of [Child 1] and Ms Nolan had 0% care of [Child 1].

2. Section 54B of the Act provides, relevantly, that the new percentages of care apply from the day after the previous percentages of care are revoked.

3. I have found that the care for [Child 1] changed on 10 January 2023. It is not disputed that Mr Nolan advised Child Support of the change on 20 February 2023. Paragraph 54F(3)(b) of the Act provides that if Child Support is notified of a change in care more than 28 days after the change in care occurs, the existing care determination for the parent with increased care is revoked at the end of the day before the date of notification, and the existing care determination for the parent with decreased care is revoked at the end of the day before the change of care day.

4. I therefore find that Mr Nolan has a new care determination for [Child 1] of 100%, which applies in the child support assessment from 20 February 2023. Ms Nolan has a new care determination for [Child 1] of 0%, which applies in the child support assessment from 10 January 2023. This is the same as the decision made by Child Support, although for different reasons, and therefore the decision under review is affirmed.

5. I note that further care percentage decisions have been made by Child Support with effect from 5 May 2023. For clarity, I note that these decisions are unaffected by the decision of the Tribunal.

DECISION

The decision under review is affirmed.