Nunn and Clarke (Child support)

[2022] AATA 3971

Nunn and Clarke (Child support) [2022] AATA 3971 (4 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023880 and 2022/BC023924

APPLICANT:  Mr Nunn

OTHER PARTIES:  Child Support Registrar

Ms Clarke

TRIBUNAL:Member J Prentice

DECISION DATE:  04 October 2022

DECISIONS:

2022/BC023880

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations in respect of [Child 2], [Child 3] and [Child 4] are to be recorded as 9% to Mr Nunn and 91% to Ms Clarke from 16 November 2018.

Pursuant to section 87AA of the Child Support (Registration and Collection) Act1988, the date of effect of the Tribunal’s decision is 24 February 2022.

2022/BC023924

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

1. the existing percentage of care determination of 0% to Mr Nunn is revoked from 16 November 2021 and replaced with a new percentage of care determination of 6% applying from 17 November 2021; and

2. the existing percentage of care determination of 100% to Ms Clarke is revoked from 29 July 2021 and replaced with a new percentage of care determination of 94% applying from 30 July 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist

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 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. Mr Nunn and Ms Clarke are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] (born June 2005), [Child 2] (born June 2009), [Child 3] (born February 2011) and [Child 4] (born October 2017). The Tribunal notes that there was originally a child support case in relation to [Child 1] in 2005 however that case seems to have ended in 2008 and a further case in relation to all of the children was registered in November 2018.

2. This review is with respect to two decisions by the CSA about the recorded care for [Child 2], [Child 3] and [Child 4] (the first decision) and [Child 1] (the second decision).

The first decision – 2022/BC023880

1. Upon acceptance of the child support case from 16 November 2018, the CSA applied percentage of care determinations for [Child 2], [Child 3] and [Child 4] of 0% for Mr Nunn and 100% for Ms Clarke. Mr Nunn contacted the CSA on 13 May 2019 and advised that he had been having 52 nights care (one night per week) of [Child 2], [Child 3] and [Child 4] from 10 October 2018, that is care equating to 14% to Mr Nunn and the balance 86% to Ms Clarke.

2. On 10 July 2019 the CSA decided to refuse to change the care percentages recorded in the assessment for [Child 2], [Child 3] and [Child 4].

3. Mr Nunn lodged an objection with the CSA on 24 February 2022. On 14 April 2022,[1] a CSA objections officer disallowed the objection.

   [1] The Tribunal notes that on the face of it the objections decision is dated 14 March 2022 however the Tribunal is satisfied that this date is a typographical error and that the objection decision was made on 14 April 2022 and sent to the parties electronically under cover of a letter dated 14 April 2022.

4. On 12 May 2022 Mr Nunn lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking review of the first decision, stating (unedited):

   CSA state OP has 100% care since 2018. This is incorrect.

The second decision – 2022/BC023924

1. The existing percentage of care determinations applying in the child support case for [Child 1] were 0% for Mr Nunn and 100% for Ms Clarke when Mr Nunn contacted the CSA on 17 November 2021 and advised a change of care from 30 July 2020 of two nights per fortnight of [Child 1] to him, equating to 14% to Mr Nunn and 86% to Ms Clarke. The Tribunal notes that numerous references in the CSA papers suggest that the date of care change notified by Mr Nunn of [Child 1] was 30 July 2021. Other references in the CSA papers suggest the date was 30 July 2020. Of note page 25 of Exhibit 1 records that on 17 November 2021 “PP adv he started having about 2 nights per fortnight for [Child 1] about June/July last year as this was when he moved into his current place” (Tribunal emphasis added). The CSA’s computer records refer to the date as being 30 July 2020 but in all other instances the CSA refers to the date of 30 July 2021. Notably the care diaries provided by both Mr Nunn and Ms Clarke suggest a change in care of [Child 1] occurring from July 2021. Having had regard to all of the evidence, including the evidence at hearing, the Tribunal finds that the care change of [Child 1] notified by Mr Nunn on 17 November 2021 was a change from 30 July 2021.

2. On 10 February 2022 the CSA decided to refuse to change the percentage of care determinations such that the percentage of care determinations applying for [Child 1] remained at 0% for Mr Nunn and 100% for Ms Clarke.

3. Mr Nunn lodged an objection with the CSA on 24 February 2022 stating that he had been averaging three nights per fortnight care for [Child 1]. On 14 April 2022,[2] a CSA objections officer disallowed the objection.

   [2] The Tribunal again notes that on the face of it the objections decision is dated 14 March 2022 however the Tribunal is satisfied this date is a typographical error and that the objection decision was made on 14 April 2022 and sent to the parties electronically under cover of a letter dated 14 April 2022.

4. On 12 May 2022 Mr Nunn lodged an application with the Tribunal seeking review of the second decision, stating (unedited):

   Decision 2 - made on 14/03/2022 in regard to the decision made on 10 February 2022 to reject 86% care to [Ms Clarke] and 14% care to [Mr Nunn] for [Child 1] from 30 July 2021. This decision was disallowed.

Hearing

1. The hearing was held on 8 August 2022. Mr Nunn spoke to the Tribunal by conference telephone and Ms Clarke attended the hearing in person. Both gave evidence on affirmation. Ms Clarke was accompanied by a support person who took no part in the hearing.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Nunn and Ms Clarke and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked 2022/BC023880 Exhibit 1 and 2022/BC023924 Exhibit 1). Both parties also submitted additional material which has been taken into account to the extent relevant (Exhibit A pages A1 to A41 and Exhibit B pages B1 to B13).

ISSUES

1. The first issue (2022/BC023880) is the percentage of care determinations to apply in respect of [Child 2], [Child 3] and [Child 4] from the start of the administrative assessment on 16 November 2018.

2. The second issue (2022/BC023924) is whether the existing percentage of care determinations in respect of [Child 1] in relation to Mr Nunn’s notification of 17 November 2021 are to be revoked and new percentage of care determinations are to apply, and if so from what date/s.

RELEVANT LEGISLATION

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) Act1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. 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.

3. Sections 49 and 50 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.

4. Existing care percentages generally apply until they are revoked, which will generally occur when the Child Support Registrar is notified or becomes aware of a change in the pattern of care.

5. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances and is generally the 12-month period starting from the date the actual care of the child began or changed.

6. 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 the CSA 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.

7. 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.

8. 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. Clause 2.2.1 of the Guide contains the following guidance in this regard:

   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 pattern of care, and will not result in a new care determination.

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

10. The legislation provides for revoking of 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.

11. 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.

12. Any new percentage of care determinations usually take effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification as regards the increased level of care. It follows that there is the possibility of different dates of effect for the increased care percentage to one parent and the decreased care percentage to the other parent depending upon when the CSA is notified of the change.

13. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to a variation or new determination is the date of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

14. The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new percentage of care determination decision or decisions can then be considered and made if appropriate.

CONSIDERATION

1. Mr Nunn informed the Tribunal that he had a private arrangement with Ms Clarke which included having care of the children every Wednesday night. Mr Nunn said it was very rare that this did not occur.

2. Mr Nunn told the Tribunal that his recollection is that he first told the CSA of the care arrangements in October 2018. He then waited for the CSA’s determination but did not hear back from them. Mr Nunn explained that the CSA probably tried to contact him by post and by that stage he had moved house.

3. Mr Nunn said that he called the CSA in 2019 to chase up what their response had been to his application. However, they suggested that he start the process again, which he did (in May 2019).

4. The Tribunal noted that on 10 July 2019 the CSA rejected Mr Nunn’s claim; however he did not lodge an objection to that decision until 24 February 2022 – more than two and a half years later. Mr Nunn informed the Tribunal that he had been struggling with mental health issues since his discharge from the army in June 2015.

5. The Tribunal discussed with Mr Nunn that failing the Tribunal being satisfied that special circumstances existed for his late objection, the date of effect of any decision in his favour would therefore be limited to the date of his objection.

6. Mr Nunn informed the Tribunal that the arrangement of having the children every Wednesday ceased in June 2021 because he had moved house again – from [City 1] to [an area] of Brisbane – which is a 90-minute drive away – which he felt was unfair to the children.

7. Ms Clarke told the Tribunal that Mr Nunn did not see the children every Wednesday night from October 2018 to June 2021; however she agreed that there was a period of time when the children did see Mr Nunn regularly every Wednesday. Ms Clarke informed the Tribunal that she had kept a record of when the children visited Mr Nunn and according to her records the last time they had visited him was in fact on 14 July 2021.

8. Ms Clarke explained to the Tribunal that there were times when Mr Nunn had health issues or was away that resulted in the children not visiting him. Ms Clarke agreed that there were times when the children would visit Mr Nunn once a week; however she told the Tribunal that if Mr Nunn was not well they might not see him for up to a month.

9. The Tribunal is satisfied that Mr Nunn and Ms Clarke did try and establish a pattern of care where the children would spend every Wednesday with Mr Nunn; however this pattern was disrupted by Mr Nunn’s health issues.

First decision – 2022/BC023880

1. The CSA’s records show the following relevant statements made by Mr Nunn and Ms Clarke in relation to the care of [Child 2], [Child 3] and [Child 4]:

   (a)  On 13 May 2019 Mr Nunn told the CSA that he had been providing care every Wednesday night for [Child 2], [Child 3] and [Child 4] from 10 October 2018 (page 4 of 2022/BC023880 Exhibit 1).

   (b)  On 9 March 2022 Ms Clarke advised the CSA that [Child 2], [Child 3] and [Child 4] had decided to spend every Wednesday night with Mr Nunn, but this did not occur every week as it was dependent on Mr Nunn’s mental health.

2. The CSA’s records also include the following documents relevant to [Child 2]’s, [Child 3]’s and [Child 4]’s care:

   (a)  Statement by Mr Nunn’s father with respect to times he observed the children spent with Mr Nunn.

   (b)  Statement by Mr Nunn’s mother with respect to times she observed the children spent with Mr Nunn.

   (c)   Care diary provided by Ms Clarke for January 2022, February 2022 and March 2022 (pages 242–244 of 2022/BC023880 Exhibit 1).

3. Further, the CSA’s records contain various text messages in relation to [Child 2]’s, [Child 3]’s and [Child 4]’s care. Those messages overall show that Mr Nunn did have some care of [Child 2], [Child 3] and [Child 4] but suggest that no consistent pattern of care was occurring.

4. The Tribunal is satisfied that Mr Nunn did attempt to establish a pattern of care, but the actual care arrangements that occurred seem to have been inconsistent and varied.

5. The additional documents provided by Mr Nunn to the Tribunal (pages 1 to 13 of Exhibit A) relevant to the notification of care change for [Child 2], [Child 3] and [Child 4] include an electronic diary from October 2018 to January 2022 which includes an indication of regular care of [Child 2], [Child 3] and [Child 4] on Wednesday of each week from October 2018 to July 2021. Ms Clarke acknowledges that this was the intended pattern of care, but her evidence was that it did not always occur.

6. Having had regard to all of the evidence the Tribunal is satisfied that it was originally intended that Mr Nunn had weekly care every Wednesday of [Child 2], [Child 3] and [Child 4] with care not expected to occur at times depending upon Mr Nunn’s circumstances from time to time. Whilst ordinarily if a pattern of care was established or intended and minor deviations to the pattern eventuated, including because of the usual exigencies of life, a pattern of care as intended could still be found. However, it is clear to the Tribunal that from the outset it was not likely that the pattern of care of [Child 2], [Child 3] and [Child 4] by Mr Nunn would be once a week every Wednesday but rather something short of that. Having regard to all of the evidence the Tribunal considers that the appropriate care period is the 12 months from the start of the child support case on 16 November 2018 and the likely and actual pattern of care of [Child 2], [Child 3] and [Child 4] by Mr Nunn was approximately three Wednesdays per month, that is 36 nights per year, equating to 9% with the balance 91% care to Ms Clarke.

Second decision – 2022/BC023924

1. The CSA’s records show the following relevant statements made by Mr Nunn and Ms Clarke in relation to the care of [Child 1]:

   (a)  On 17 November 2021 Mr Nunn advised that he started having about two nights care per fortnight of [Child 1] from 30 July 2021 (page 25 of 2022/BC023924 Exhibit 1).

   (b)  On 22 November 2021 Mr Nunn advised that he has care of ‘[Child 1] 52 nights’ (page 29 of 2022/BC023924 Exhibit 1).

   (c)   On 1 December 2021 Ms Clarke advised that Mr Nunn’s care of [Child 1] is irregular and would be below two nights a fortnight with [Child 1] going a few months at a time not seeing Mr Nunn and then seeing him for a few nights.

   (d)  On 10 December 2021 Ms Clarke provided detailed calendar dates for when Mr Nunn had care of [Child 1].

   (e)  On 20 December 2021 Mr Nunn advised that care of [Child 1] had not changed and it was still two or three nights per fortnight.

   (f)    On 7 February 2022 Mr Nunn provided a care diary from July 2021 to January 2022 indicating his care of [Child 1]. The Tribunal notes that this does not correspond with Ms Clarke’s evidence.

   (g)  On 24 February 2022 Mr Nunn stated he had been providing care for an average of three nights a fortnight for [Child 1] from 30 July 2021.

   (h)  Mr Nunn provided copies of text messages between the parties.

1. The evidence provided to the CSA by the parties (pages 124 and 125 of the papers) about Mr Nunn’s care arrangements for [Child 1] in 2021 may be summarised as follows:

Mr Nunn’s evidence	Ms Clarke’s evidence
JANUARY	Nil	Nil
FEBRUARY	Nil
MARCH	12, 13, 25, 26, 27
APRIL	Nil
MAY	27, 28, 29, 30	Nil
JUNE	3, 4, 5, 6, 11, 12, 13	Nil
JULY	8, 9, 10, 11, 21, 22, 23 24	22, 23
AUGUST	25, 26, 27, 28, 29	25, 26, 27
SEPTEMBER	25, 26	25
OCTOBER	9, 10	9
NOVEMBER	5, 6, 7, 17, 18	17, 18
DECEMBER	9, 10, 11	9, 10

1. Ms Clarke noted that the dates submitted by Mr Nunn may have been what was intended to occur, but her evidence reflects the actual dates that [Child 1] did stay with his father. Ms Clarke acknowledges that arrangements did change.

2. The Tribunal observes that a pattern of care is often difficult to establish when it involves teenage children who invariably have additional activities and their own circle of friends with whom they want to spend time such that care arrangements may change at the will of the child.

3. The CSA’s records also include the following written statements provided by third parties relevant to [Child 1]’s care:

   (a)  Mr Nunn’s father made a statement on 6 March 2022 stating that:

   ·     between 25 June and 8 July 2019 “the children visited and stayed over”;

   ·     between 15 October and 17 October 2019 “the children were staying with their father”;

   ·     between 20 April and 5 May 2021 “the children stayed for a couple of nights” with their father.

   (b)  Mr Nunn’s mother made a statement on 27 February 2022 advising dates that she and other family members had visited and stayed with Mr Nunn but did not refer to the children also visiting.

4. The Tribunal notes that the care diaries submitted by Mr Nunn (pages 96 to 116 of 2022/BC023924 Exhibit 1) are not consistent with the advice he gave the CSA (as indicated on pages 124 and 125 of the papers) and itemised in paragraph 45 of these Reasons.

5. Further, the CSA’s records contain various text messages between Mr Nunn and [Child 1] in relation to [Child 1]’s care. Those messages overall show that Mr Nunn was attempting to make arrangements for [Child 1] to visit him.

6. Similarly, as the Tribunal has concluded in relation to the care of [Child 2], [Child 3] and [Child 4], the Tribunal is satisfied that it was not likely that the pattern of care by Mr Nunn would be two nights every fortnight but rather something short of that. Mr Nunn’s and Ms Clarke’s evidence is in conflict as to what care Mr Nunn actually had. Notably Mr Nunn’s care diaries seem to be pre-generated with a pattern of care for [Child 1] as he was hoping to have. On the other hand, Ms Clarke’s care diaries show variations and give detail of the variations that occurred, and would be expected to occur given the normal changes that occur in people’s lives, consistent with the evidence of both Mr Nunn and Ms Clarke that Mr Nunn was not always able to have the care he hoped for due to personal reasons. In the circumstances, the Tribunal therefore looked to the point of agreement between their evidence. The point of agreement between Mr Nunn and Ms Clarke in relation to the care of [Child 1] by Mr Nunn leading up to and from 30 July 2021 is as follows:

Mr Nunn’s evidence	Ms Clarke’s evidence
MAY	Nil	Nil
JUNE	Nil	Nil
JULY	22, 23	22, 23
AUGUST	25, 26, 27	25, 26, 27
SEPTEMBER	25	25
OCTOBER	9	9
NOVEMBER	17, 18	17, 18
DECEMBER	9, 10	9, 10

1. The point of agreement is consistent with a pattern of care by Mr Nunn of [Child 1] of approximately two nights per month, that is 24 nights per year equating to 6% with the balance 94% care of [Child 1] to Ms Clarke. Having regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 30 July 2021.

2. Further, the Tribunal has concluded that there was a change of care from 30 July 2021 and the likely and actual pattern of care of [Child 1] by Mr Nunn from 30 July 2021 was approximately two nights per month, that is 24 nights per year, equating to 6% with the balance 94% care to Ms Clarke.

What are the percentage of care determinations to apply in the assessment for [Child 2], [Child 3] and [Child 4] from 16 November 2018?

1. The Tribunal has found that both Mr Nunn and Ms Clarke were likely to have a pattern of care for [Child 2], [Child 3] and [Child 4] during the care period. Percentage of care determinations are therefore required pursuant to subsection 50(2). The Tribunal determines that Mr Nunn’s percentage of care for [Child 2], [Child 3] and [Child 4] is 9% and Ms Clarke’s percentage of care for [Child 2], [Child 3] and [Child 4] is 91% from the start of the case, effective from 16 November 2018.

2. The CSA’s decision of 10 July 2019 was sent to the parties under cover of a letter of the same date. Mr Nunn’s objection was lodged with the CSA on 24 February 2022. The objection was therefore lodged more than 28 days after notice of the care percentage decision was given to Mr Nunn.

3. Had the objection decision by the CSA been to allow the objection in a way that had the effect of varying or substituting the original decision of the CSA in relation to the 13 May 2019 notification of a change in care, a decision under section 87AA of the Registration and Collection Act would have been required. Absent a finding that special circumstances prevented Mr Nunn from objecting within 28 days of being notified of the 10 July 2019 decision, varied or new determinations apply from the date of the objection, that is, 24 February 2022.

4. As Mr Nunn’s objection was disallowed by the CSA, a section 87AA determination was not required to be made by the CSA. However, given the Tribunal’s decision has the effect of varying or substituting the original decision of the CSA, the Tribunal considered whether there were special circumstances that prevented Mr Nunn from objecting to the CSA’s 10 July 2019 decision within 28 days of notification of that decision.

5. The Tribunal notes and acknowledges Mr Nunn’s evidence that he was struggling with mental health issues since his discharge from the army in June 2015 and that he moved houses numerous times but is not satisfied that those matters amount to special circumstances that prevented Mr Nunn from objecting to the decision within 28 days, noting that the objection was ultimately lodged more than two and a half years after the original decision.

6. It follows that the percentage of care determinations of 9% to Mr Nunn and 91% to Ms Clarke for [Child 2], [Child 3] and [Child 4] can only apply from the date of the objection, 24 February 2022.

Second decision – 2022/BC023924

Should the pre-existing percentage of care determinations applying as at 30 July 2021 for [Child 1] be revoked?

1. Section 54G has no application as Mr Nunn was not previously to have at least regular care (14%) of [Child 1] under the pre-existing percentage of care determinations.

2. 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.

3. Care of 6% to Mr Nunn and 94% to Ms Clarke does not correspond with the pre-existing percentage of care determinations recorded by the CSA for [Child 1] as at 30 July 2021 of 0% to Mr Nunn and 100% to Ms Clarke. However, a change to the percentages found by the Tribunal would not change each parent’s cost percentage pursuant to the table in section 55C. Section 54F therefore does not apply.

4. Section 54H provides that an existing percentage of care may be revoked if the actual care being provided would change a person’s care percentage recorded even though it would not change the person’s cost percentage in the child support assessment.

5. Changing the percentages of care recorded for [Child 1] from 30 July 2021 to 6% to Mr Nunn and 94% to Ms Clarke would have no impact on the rate of child support payable. However, the Tribunal considers the discretion allowed pursuant to section 54H should be exercised to revoke the pre-existing percentages of care so that the care of [Child 1] that was occurring is more accurately reflected for record purposes.

6. The existing percentages of care for [Child 1] of 0% to Mr Nunn and 100% to Ms Clarke are therefore revoked pursuant to section 54H.

What are the new percentage of care determinations for [Child 1] to apply for Mr Nunn and Ms Clarke?

1. The Tribunal has found pre-existing percentage of care determinations are to be revoked pursuant to section 54H and that Mr Nunn was to have a pattern of care for [Child 1] during the care period commencing 30 July 2021 and Ms Clarke was to have a pattern of care for [Child 1] during the care period commencing 30 July 2021. Percentage of care determinations are therefore required pursuant to subsection 50(2). The Tribunal therefore determines that Mr Nunn’s percentage of care for [Child 1] during the care period is 6% and Ms Clarke’s percentage of care during the care period is 94%.

What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations for [Child 1]?

1. Pursuant to paragraph 54H(3)(b) as the change in care was notified by Mr Nunn on 17 November 2021, more than 28 days after the Tribunal has found the change occurred on 30 July 2021, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 0% applying for Mr Nunn takes effect the day before the notification of the change of care, that is on 16 November 2021 and revocation of the pre-existing percentage of care of 100% applying for Ms Clarke takes effect the day before the change of care day, that is on 29 July 2021.

2. It is then necessary to determine from when the 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 6% to Mr Nunn applies from 17 November 2021 and a new percentage of care determination of 94% for Ms Clarke applies from 30 July 2021.

Conclusion

1. As the decisions reached by the Tribunal are different to the objection decisions, the decisions under review will be set aside and new decisions substituted.

2. For ease of understanding, the Tribunal reiterates that although it is making different decisions to that of the CSA, this is for the record to more accurately reflect the level of care that Mr Nunn was having of [Child 2], [Child 3] and [Child 4], and [Child 1]. However, as already canvassed by the Tribunal there will be no change to the child support liability because the levels of care found by the Tribunal are not sufficient to change the cost percentages utilised in the child support formula.

DECISIONS

2022/BC023880

The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations in respect of [Child 2], [Child 3] and [Child 4] are to be recorded as 9% to Mr Nunn and 91% to Ms Clarke from 16 November 2018.

Pursuant to section 87AA of the Child Support (Registration and Collection) Act1988, the date of effect of the Tribunal’s decision is 24 February 2022.

2022/BC023924

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

1. the existing percentage of care determination of 0% to Mr Nunn is revoked from 16 November 2021 and replaced with a new percentage of care determination of 6% applying from 17 November 2021; and

2. the existing percentage of care determination of 100% to Ms Clarke is revoked from 29 July 2021 and replaced with a new percentage of care determination of 94% applying from 30 July 2021.