Novak and Novak (Child support)

[2020] AATA 2031

Novak and Novak (Child support) [2020] AATA 2031 (23 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018587

APPLICANT:  Ms Novak

OTHER PARTIES:  Child Support Registrar

Mr Novak

TRIBUNAL:Member Y Webb

DECISION DATE:  23 April 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the children are 57% to Ms Novak and 43% to Mr Novak from 3 March 2015 applied to the child support assessment from 26 August 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether it is appropriate to consider daytime care – appropriate to consider overnight care only – existing percentage of care determinations revoked and new determinations made – whether the amended law applies – the law that prevailed prior to 23 May 2018 applies – 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. This review is about the percentages of care of Ms Novak and Mr Novak in relation to their two children who are now aged 16 and 12 (“the children”).

2. The child support case was registered on 13 December 2013 and has been collectable by the Department of Human Services (Child Support Agency) since 27 August 2019.

3. There are no court orders or signed written agreements regarding the care of the children.

4. The history of care in relation to the children is that from 2 March 2015 the pre-existing care recorded on the Child Support Agency’s records was that the parents shared the care of the children on a 50/50 basis (administratively recorded as 51% care to Ms Novak and 49% care to Mr Novak).

5. On 26 August 2019 Ms Novak contacted the Child Support Agency and notified that she had eight nights of care per fortnight (and Mr Novak six nights a fortnight) on an ongoing basis throughout the whole year and that this had been the case at least since 3 March 2015. The Child Support Agency calculated that these levels of care would mean that Ms Novak’s care percentage was 57% and Mr Novak’s 43%.

6. The Child Support Agency contacted Mr Novak and he confirmed that the overnight care was eight nights a fortnight to Ms Novak and six nights a fortnight to him but he stated that he and Ms Novak had verbally agreed to the care being recorded as 50/50 because he picks up the children from school every Tuesday afternoon and gives them dinner and packs the children’s lunches for the following day before dropping them at their mother’s at around 7.30 pm.

7. On 27 August 2019 the Child Support Agency decided that the care which was actually occurring for the children was 57% to Ms Novak and 43% to Mr Novak from 3 March 2015.

8. On 13 September 2019 Mr Novak objected to that decision.

9. On 25 February 2020 an objections officer allowed Mr Novak’s objection deciding that there was no change in the pattern of care and therefore that the pre-existing care levels of 51% to Ms Novak and 49% to Mr Novak would remain in place.

10. On 10 March 2020 Ms Novak requested review by the Administrative Appeals Tribunal (the Tribunal).

11. The Child Support Agency provided papers relevant to this matter and these were marked (as a bundle) as Exhibit C1.

12. The parents both attended the hearing on 23 April 2020 by way of a telephone conference.  Ms Novak gave sworn evidence and Mr Novak gave evidence on affirmation.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of the children in the relevant care period?

   b)Should a new determination of a percentage of care for the children be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child(ren) changed and reflect the pattern of care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply unless or until a further care determination is made).

4. In circumstances where there are no court orders or written parenting plans the care is established by considering the actual pattern of care that is taking place.

5. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. Mr Novak contended that while he provided overnight care six nights a fortnight and Ms Novak provided overnight care eight nights a fortnight, the Tribunal should also take into account that on Tuesday afternoons he collects the children from school, gives them dinner, packs their lunches for the following day and drops the children at their mother’s home at 7.30 pm. He asserted that these hours together with the six overnights a fortnight equated to 50/50 care between the parents.

6. Ms Novak did not agree.  She stated that there was no verbal agreement with Mr Novak to 50/50 care but that she had not taken action to correct the care percentages because she felt under duress from Mr Novak to confirm that the care was 50/50.  She stated that she also undertakes additional caring in relation to the children such as taking them to and from their extra-curricular activities, attending parent teacher interviews and running the children around to wherever they need to go.  She stated that she never had any agreement with Mr Novak that the time he spent having dinner with the children on Tuesday evenings had anything to do with child support or the percentages of care.  She stated that she never requested that Mr Novak pack the children’s lunches. She only agreed to the children having dinner with their father on Tuesday evenings as a goodwill gesture.

7. The initial issue which the Tribunal needs to determine is whether the pattern of care that was occurring did not correspond with the pre-existing care determination of 51% to Ms Novak and 49% to Mr Novak.

8. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the pattern of care the person has had, from the date of the asserted change in care and up to the time of the original determination by the Registrar (27 August 2019) and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

9. In relation to the conversion of a pattern of care to a percentage, the Department’s policy is that this will usually be done by reference to nights in care.  As to the circumstances in which a different approach may be applicable the Tribunal had regard to the Explanatory Memorandum in relation to the legislation and the Child Support Guide.

10. The Explanatory Memorandum in relation to the legislation states:

    …if the number of nights in care does not appropriately reflect the actual care or the extent of care the individual has, then the Secretary may use a different method to determine the percentage of care.  An example of where nights in care may be shown not to be appropriate would be where a child does not stay overnight with a parent because the parent works night shifts but the parent does provide significant periods of daytime care.

11. The Child Support Agency’s policy in relation to calculating care percentage determinations is provided for at The Child Support Guide: 2.2.1 Basics of Care.  In determining an application for review and in the interests of consistency of decision making, the Tribunal would ordinarily apply such policy providing it was not inconsistent with the Act.[2] 

    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.

    Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.

    [2] See Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39

12. As can be seen, the example cited above bears some resemblance to the arrangements in this case.  The Tribunal is not persuaded that the day time care which Mr Novak provides on Tuesday evenings significantly affects the care arrangements.  To calculate part of the care by reference to hours would be inherently problematic and unlikely to accurately reflect the actual care arrangements for the children by the parents.  The Tribunal accepts that both parents undertake additional caring responsibilities in support of their children’s activities and that these are in addition to the overnight arrangements.  However, the measuring of care in hours is far more difficult to calculate and inevitably subject to more variations and anomalies than is the case with counting overnights.

13. Hence the Tribunal is satisfied that measuring care by reference to hours in care is undesirable and unlikely to produce a fair or accurate result.

14. The Tribunal would not therefore accept Mr Novak’s request to undertake the calculation on the basis that some of his care relates to day time hours in addition to the six nights a fortnight.  The Tribunal considers the ordinary approach of the Child Support Agency, in accordance with its policy, is the correct approach to take in all the circumstances of this case and therefore that the care percentages should be determined based on the number of nights of care.

15. There is no dispute between the parents and the Tribunal finds that Ms Novak has eight nights of care a fortnight and Mr Novak has six nights of care per fortnight.  This calculates to 57% care to Ms Novak (26 X 8 = 208 nights/365) and 43% care (157 nights) to Mr Novak.  The Tribunal accepts, and it was not disputed by the parents that this has been the pattern of care for some years and certainly since 3 March 2015.

16. A care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care of a child(ren) that is actually taking place does not correspond with the existing percentage of care for the child(ren) and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.

17. In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the 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%

1. Prior to 3 March 2015, the pre-existing care was that Ms Novak had a care percentage of 51% (and a cost percentage of 50%) in relation to the children. Mr Novak had a care percentage of 49% and a cost percentage of 50%. The Tribunal’s determination will mean that Ms Novak will have a care percentage of 57% and a cost percentage of 59%. Mr Novak will have a care percentage of 43% and a cost percentage of 41%. Accordingly, the Tribunal is satisfied that if new determinations were to be made, both parents’ cost percentages would change. As all of the requirements of subsection 54F(1) of the Assessment Act are met (and as section 54G of the Assessment Act does not apply because the Tribunal’s determination has not resulted in either of the parents having less than regular care), the pre-existing determinations of percentage of care must be revoked in accordance with section 54F.

2. Subsection 54F of the Assessment Act specifies when the revocation of the determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 3 March 2015. It has also found that Ms Novak notified the Child Support Agency of the change on 26 August 2019.

3. The provisions in the Act relating to care were substantially amended to take effect from 23 May 2018 for change of care days that happen on or after 23 May 2018.  As the change in care of the children commenced on 3 March 2015, the amended legislation at 23 May 2018 is not applicable in this case. 

4. However, the Tribunal considered the further amendments to the Act that took effect from 1 July 2018, specifically in relation to revocation days when notification of the change in care occurred more than 28 days after the change in care commenced. The application provisions for the changes from 1 July 2018 state that the changes apply to change of care days that happen on or after 1 July 2018 and also to changes of care days that happen before 1 July 2018 but notified 26 weeks after 1 July 2018.  In this case the change of care occurred prior to 1 July 2018 (on 3 March 2015) and the change was notified on 26 August 2019.

5. The amended legislation of 1 July 2018 repealed the substituted subsection 54F(3) of 23 May 2018. In the Tribunal’s view, if the substituted section 54F of 23 May 2018 did not apply, then it follows that any future replacement legislation in respect of section 54F also does not apply.

6. Hence the Tribunal finds that as the Child Support Agency was not notified within 28 days after the change occurred, the revocation of the existing determination takes effect in accordance with subparagraph 54F(2)(c) (of the old legislation) on 25 August 2019, being the day before the Child Support Agency was notified of the care change.

7. Having revoked the existing determinations, the Tribunal must now make new determinations of Ms Novak’s and Mr Novak’s percentages of care under section 50 of the Assessment Act.

8. Section 54B of the Act sets out the date of effect of the new determinations of percentages of care. The percentage of care applies to each day in a child support period on and from the ‘application day’. In accordance with subparagraph 54B(2)(c)(ii) (of the old legislation) the application day for the new determinations of percentages of care is the day after the revocation of the existing determinations. The Tribunal has revoked the existing determinations with effect from 25 August 2019. Therefore the new determinations apply to the child support assessment from 26 August 2019.

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the children are 57% to Ms Novak and 43% to Mr Novak from 3 March 2015 applied to the child support assessment from 26 August 2019.