Oldfather and Fountaine (Child support)
[2023] AATA 3301
•14 September 2023
Oldfather and Fountaine (Child support) [2023] AATA 3301 (14 September 2023)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2022/BC025176
APPLICANT: Mr Oldfather
OTHER PARTIES: Child Support Registrar
Ms Fountaine
TRIBUNAL:Senior Member S Trotter
DECISION DATE: 14 September 2023
DECISION:
The decision under review is affirmed.
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 – court orders not complied with – interim period applied – decision under review affirmed
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
PRELIMINARY OVERVIEW
Mr Oldfather and Ms Fountaine are parties to a child support case registered with Services Australia – the Child Support Agency (Child Support) from 12 April 2007 in relation to financial support to be provided for [Child 1] (born March 2007) and [Child 2] (born December 2004) (the children). The application is about the percentages of care to be recorded for each of Mr Oldfather and Ms Fountaine utilised in calculation of the child support payable, in relation to two changes in the care position of the children; the first care change occurring on 6 February 2019 and the second care change occurring on 29 January 2020.
Essentially the factual background in relation to the two changes in care is not in dispute. Rather consideration of the interpretation of the relevant statutory provisions is required as to from when various new percentages of care for each of Mr Oldfather and Ms Fountaine are recorded for the purposes of the child support liability. The statutory provisions are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The provisions of relevance to this application are complex and have been addressed by Child Support in written submissions. A preliminary overview, including the Tribunal’s ultimate conclusions, is provided in those circumstances.
6 February 2019 change in care
At issue is from when percentages of care of 0% to Mr Oldfather and 100% to Ms Fountaine in relation to a change in the actual care of the children from 6 February 2019, notified to Child Support on 9 February 2022, apply, rather than the previously recorded percentages of care of 35% to Mr Oldfather and 65% to Ms Fountaine previously occurring and applying pursuant to a court order dated [in] May 2009.
Consideration is required of whether paragraph 53(1)(c) is to be interpreted as preventing the operation of section 51, which allows an interim period during which care that was to occur under a care arrangement continues to be recorded for a specified period in certain circumstances, despite care no longer actually occurring pursuant to that care arrangement. If the answer to that question is that paragraph 53(1)(c) does not prevent such an interim period applying pursuant to section 51, the question then arises as to whether section 51 can apply when the change in care is notified after the end of the maximum interim period that could possibly apply. Finally, if the answer to that question is that section 51 can still apply (and it does apply), the question arises as to what the dates of application are for the new percentage of care determinations.
The various different submissions of the parties[1] are as follows:
(a) Mr Oldfather submits that he should continue to be recorded with a percentage of care of 35% until 6 August 2019, with 0% then applying for him from 7 August 2019 and that Ms Fountaine should continue to be recorded with a percentage of care of 65% until 8 February 2022 with 100% then applying for Ms Fountaine from 9 February 2022 in relation to the 6 February 2019 change in care;
(b) Child Support’s original decision (on 26 July 2022) was that, following the application of an interim period when care continued to be recorded as previously, from 7 August 2019 a percentage of care of 0% applies for Mr Oldfather and a percentage of care of 100% applies for Ms Fountaine; and
(c) Child Support’s now position (4 August 2023 submissions) is that an interim period cannot apply and that Mr Oldfather’s pre-existing percentage of care determination of 35% is revoked from 5 February 2019 and Ms Fountaine’s pre-existing percentage of care determination of 65% is revoked from 8 February 2022. It is not clear from Child Support’s submissions, but this presumably has the consequential effect that the then new percentage of care determinations of 0% for Mr Oldfather and 100% for Ms Fountaine apply from 6 February 2019 and 9 February 2022 respectively.
[1] Other than Ms Fountaine who chose not to participate in the application process and made no submissions.
For the Reasons that follow, the Tribunal’s conclusion in relation to the questions posed are that 1) paragraph 53(1)(c) does not prevent the possible application of section 51, 2) section 51 can still apply if notification of the change in care occurs after the end of the maximum interim period that could apply and 3) section 54C applies such that percentage of care determinations of 35% for Mr Oldfather and 65% for Ms Fountaine apply until 6 August 2019, with 0% then applying for Mr Oldfather and 100% then applying for Ms Fountaine from 7 August 2019. This accords with the original decision of Child Support.
29 January 2020 change in care
At issue is from when percentages of care of 14% to Mr Oldfather and 86% to Ms Fountaine in relation to a further change in the actual care of the children from 29 January 2020, of which Child Support became aware on 1 December 2021, apply, rather than the previously recorded percentages of care.
The various different submissions of the parties[2] are as follows:
(a) Mr Oldfather had no particular submissions to make as regards the date of effect of the new percentage of care determinations in relation to the 29 January 2020 change in care, other than his overall submission that Ms Fountaine should not be in a better position, via application of the interim care period, than she would have been otherwise with 100% care not applying for her until 9 February 2022;
(b) Child Support’s original decision (on 26 July 2022) was that, following a change to the percentage of care determination of 0% for Mr Oldfather and the percentage of care determination of 100% for Ms Fountaine from 7 August 2019 (in relation to the 6 February 2019 change in care), a further change in care occurred on 29 January 2020 with a new percentage of care determination of 14% applying for Mr Oldfather from 1 December 2021 and a new percentage of care determination of 86% applying for Ms Fountaine from 29 January 2020; and
(c) Child Support’s now position (4 August 2023 submissions) is the same; that is, that a new percentage of care determination of 14% applies for Mr Oldfather from 1 December 2021 and a new percentage of care determination of 86% applies for Ms Fountaine from 29 January 2020.
[2] Ibid.
For the Reasons that follow, the Tribunal’s conclusion is that a percentage of care determination of 14% applies for Mr Oldfather from 1 December 2021 and a percentage of care determination of 86% applies for Ms Fountaine from 29 January 2020. This accords with the original decision of Child Support.
BACKGROUND
From 20 May 2009, the pre-existing percentages of care determinations applying in the child support case for the children were 35% to Mr Oldfather and 65% to Ms Fountaine, care that was occurring pursuant to a court order dated [in] May 2009.
On 1 December 2021,[3] the Family Assistance Office (Centrelink) was notified that from 29 January 2020, the care of:
(a) [Child 1] had changed to 16% care to Mr Oldfather and 84% care to Ms Fountaine; and
(b) [Child 2] had changed to 14% care to Mr Oldfather and 86% care to Ms Fountaine,
with the information then received by Child Support from the Family Assistance Office.
[3] Exhibit C, page 2.
On 2 December 2021,[4] Child Support decided that:
(a) a percentage of care of 16% for [Child 1] for Mr Oldfather applied from 29 January 2020;
(b) a percentage of care of 14% for [Child 2] for Mr Oldfather applied from 29 January 2020;
(c) a percentage of care of 84% for [Child 1] for Ms Fountaine applied from 1 December 2021; and
(d) a percentage of care of 86% for [Child 2] for Ms Fountaine applied from 1 December 2021.
[4] Exhibit 1, pages 89 to 109.
As Child Support became aware of the change of care on 1 December 2021, more than 28 days after it occurred, on 29 January 2020, the recorded reduced percentage of care determinations from 35% for both children (as then recorded) to 16% and 14% for [Child 1] and [Child 2] respectively for Mr Oldfather applied from 29 January 2020 (the date of the care change). However, the recorded increased percentage of care determinations from 65% for both children (as then recorded) to 84% and 86% for [Child 1] and [Child 2] respectively for Ms Fountaine applied from 1 December 2021 (the date of notification).
On 9 February 2022, Ms Fountaine notified Child Support that from 4 January 2019 to 28 January 2020 she had had 100% care of the children.
On 26 July 2022, Child Support decided that:
(a) there was a change to the actual care of the children to 100% care to Ms Fountaine from 6 February 2019;
(b) the pre-existing percentages of care of the children recorded for child support purposes of 35% to Mr Oldfather and 65% to Ms Fountaine continued to apply for the interim care period of 26 weeks from 6 February 2019 until 6 August 2019;
(c) percentages of care for the children of 0% to Mr Oldfather and 100% to Ms Fountaine applied from 7 August 2019;
(d) there was a further change to the actual care of the children to 14% care to Mr Oldfather and 86% care to Ms Fountaine from 29 January 2020;
(e) a percentage of care for the children of 14%[5] to Mr Oldfather then applied from the date of notification of the 29 January 2020 change in care, that is from 1 December 2021; and
(f) a percentage of care for the children of 86%[6] to Ms Fountaine then applied from the date of change of care, 29 January 2020.
[5] Ibid.
[6] The Child Support Registrar in the 13 June 2023 submissions acknowledges that the discrepancy between the percentages of care in the 2 December 2021 decision (16% care to Mr Oldfather and 84% care to Ms Fountaine for [Child 1] and 14% care to Mr Oldfather and 86% care to Ms Fountaine for [Child 2]) and the 26 July 2022 decision (14% care to Mr Oldfather and 86% care to Ms Fountaine for both [Child 1] and [Child 2]) arose from administrative error and the correct percentages are as per the 2 December 2021 decision (being the percentages provided by Centrelink).
Notably, as the subsequent notification on 9 February 2022 related to an earlier change of care in 2019 predating 29 January 2020, the 26 July 2022 decision also addressed the changed position for the 29 January 2020 change in care, being a change in the dates of application of the new percentages of care from 29 January 2020. This is because given the decision in relation to the 6 February 2019 change in care, when then assessing the subsequent 29 January 2020 change in care, Mr Oldfather’s care actually increased (from 0% to 16% and 14% respectively) and Ms Fountaine’s care actually reduced (from 100% to 84% and 86% respectively) rather than as had been the position at the time of the 2 December 2021 decision. This meant there were different dates of application in relation to the 29 January 2020 change in care than had previously been decided, with the new percentages of care of 16% and 14% respectively for Mr Oldfather then being increased percentages (from 0%) meaning that they applied from 1 December 2021 (the date of notification) rather than from 29 January 2020 (the date of the care change) and the new percentages of care of 84% and 86% respectively for Ms Fountaine being reduced percentages (from 100%) meaning that they applied from 29 January 2020 (the date of the care change) rather than 1 December 2021 (the date of notification) as had previously been decided on 2 December 2021.
The Child Support Registrar, in submissions of 13 June 2023, acknowledged that an error was made and carried through to the 26 July 2022 decision in relation to subparagraphs (d) and (f) of paragraph 15 of these Reasons and that the correct percentages of care advised following the change on 29 January 2020 were as noted in paragraph 13 of these Reasons.
On 2 September 2022, Mr Oldfather objected to the 26 July 2022 decision and, on 4 November 2022, a Child Support objections officer disallowed the objection.
The current percentages of care for each of Mr Oldfather and Ms Fountaine utilised in the child support assessment based on Child Support’s 26 July 2022 decision (and the subsequent decision of 3 January 2023 of Child Support in relation to a subsequent change of care notification not the subject of this application) are as follows:
| Period | % of care of the children recorded to Mr Oldfather | % of care of the children recorded to Ms Fountaine |
| prior to 6 February 2019 | 35% | 65% |
| 6 February 2019 to 6 August 2019 (the interim period) | 35% | 65% |
| 7 August 2019 to 28 January 2020 | 0% | 100% |
| 29 January 2020 to 30 November 2021 | 0% | 86% |
| 1 December 2021 to 7 May 2022[7] | 14% | 86% |
| 8 May 2022 to 31 October 2022[8] | 0% | 86% |
| from 1 November 2022[9] | 0% | 100% |
[7] See Child Support’s 3 January 2023 decision starting at Exhibit 1, page 385 in relation to a subsequent change of care (not the subject of the current application to the Tribunal).
[8] Ibid.
[9] Ibid.
On 1 December 2022, Mr Oldfather lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating:
1. Objection to Child Support awarding Ms Fountaine 100% care between the 7th of August 2019 and to the 28th of January 2020, because the legislation states 26 weeks is the maximum amount of time an interim period can be applied for a parenting order that dates back to 2019. During that period Ms Fountaine continued to withhold the children without taking reasonable action in participating in a family dispute or applying for a change in parenting orders.
2. Objection to Child Support's inability to apply a fair and just judgment when re-assessing the maintenance between the 7th of August 2019 and the 1st of December 2021 on the 26th of July 2022. i.e. My being processed as determined care between the 29th of January 2020 and to 1st December 2021, because of a technicality, and Child Support not applying the same rule to Ms Fountaine when processing her percentage of care between the 7th of August 2019 and to 28th of January 2020. Ms Fountaine’s care during this period had increased and Child Support was not informed within 28 days yet she is not being processed on determined care. Ms Fountaine didn't inform Child Support until the 9th of February 2022.
A hearing was listed before the Tribunal on 4 May 2023. On 3 May 2023, Ms Fountaine advised the Tribunal that she did not wish to participate in a hearing. The hearing did not proceed on 4 May 2023 as Mr Oldfather advised the Tribunal he was not aware of the hearing date. The Tribunal subsequently issued directions to Child Support, on 23 May 2023 and 20 June 2023, seeking written submissions in relation to various matters raised, and further documents from Child Support’s file as requested by Mr Oldfather. Various extensions of time were sought by Child Support with submissions being provided on 13 June 2023 and 4 August 2023.
A further hearing was listed before the Tribunal on 17 August 2023. Mr Oldfather participated in the hearing by conference telephone and gave evidence on affirmation. Ms Fountaine’s continuing advice was that she did not wish to participate in the hearing and she did not participate nor provide written evidence of submissions as invited. The Child Support Registrar also did not participate.
The documentary materials before the Tribunal are:
(a) documents provided by Child Support pursuant to subsection 37(1) and section 38AA of the Administrative Appeals Tribunal Act 1975 (Exhibit 1, pages 1 to 406); and
(b) written submissions and annexures from Child Support dated 13 June 2023 and 4 August 2023 (Exhibit C, pages 1 to 18).
In considering the application, the Tribunal took into account the oral evidence of Mr Oldfather and the documentary material. Copies of all documents were exchanged with each party.
ISSUES
The issues to be determined by the Tribunal based on the relevant legislative provisions are as follows:
The 6 February 2019 change in care
(i)Are the pre-existing percentage of care determinations for Mr Oldfather and Ms Fountaine to be revoked? And, if so,
(ii)What are the new percentage of care determinations for Mr Oldfather and Ms Fountaine? And,
(iii)What are the dates of application of the new percentage of care determinations?
The 29 January 2020 change in care
(iv)Are the pre-existing percentage of care determinations for Mr Oldfather and Ms Fountaine to be revoked? And, if so,
(v)What are the new percentage of care determinations for Mr Oldfather and Ms Fountaine? And,
(vi)What are the dates of application of the new percentage of care determinations?
In addition to considering the relevant legislative provisions, 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 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.
CONSIDERATION
The 6 February 2019 change in care
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case with the percentages of care usually applying based upon the extent of the actual care that a parent has, or is likely to have. Generally if care subsequently changes, the pre-existing percentage of care determinations are required to be revoked pursuant to section 54F, 54G or 54H and new percentage of care determinations are required to be made pursuant to section 49 or section 50. However, in certain circumstances pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a care arrangement such as a court order, parenting plan or written agreement, rather than the care they are actually providing, for an interim period prior to new percentages of care applying based upon the actual care occurring.
Issue 1: Are the pre-existing percentage of care determinations for Mr Oldfather and Ms Fountaine to be revoked?
Ms Fountaine’s notification of 9 February 2022 to Child Support was that a change in care had occurred on 4 January 2019. Mr Oldfather provided detailed time lines of his care of the children and contended in response that he had been caring for the children, pursuant to the [May] 2009 court order, until 6 February 2019. Based upon the evidence before it, the Tribunal is satisfied that prior to 6 February 2019, care of the children was occurring pursuant to a court order dated [in] May 2009 with Mr Oldfather having 35% care and Ms Fountaine having 65% care of the children. However, from 6 February 2019, Mr Oldfather had no pattern of care of the children and Ms Fountaine had a pattern of care of the children; that is 100% care.
Pre-existing percentages of care must be revoked pursuant to section 54F if:
(a) the Child Support Registrar is notified, or otherwise becomes aware, that the care of the children that is actually taking place does not correspond with the existing percentage of care recorded for a person;
(b) a person’s cost percentage would change if another percentage of care was determined for the person under section 49 or 50;
(c) section 54G does not apply; and
(d) subsection 54F(2) applies in relation to the person.
The Child Support Registrar became aware on 9 February 2022 that the care of the children had changed to 0% to Mr Oldfather and 100% to Ms Fountaine from 6 February 2019, percentages of care which did not correspond with the existing percentages of care recorded for each of Mr Oldfather and Ms Fountaine. Paragraph 54F(1)(a) is met.
Section 55C contains a table that is used to work out a person’s 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%
A change to the new percentage of care determinations for Mr Oldfather (from 35% to 0%) and for Ms Fountaine (from 65% to 100%) would change the cost percentage for each parent pursuant to the table in section 55C. Paragraph 54F(1)(b) is met.
Section 54G provides that a care determination must be revoked if a parent was to have at least regular care[10] pursuant to a pre-existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care despite the other responsible person making care available and the change in care was notified within a reasonable period of time. Ms Fountaine notified the change in care on 9 February 2022, three years after the change occurred. The Tribunal is not satisfied that notification three years later was within a reasonable period of time. Section 54G therefore does not apply. Paragraph 54F(1)(c) is met.
[10] Subsection 5(2) defines regular care as being care between 14% and 35%.
Paragraph 54F(1)(d) requires that subsection 54F(2) applies in relation to the relevant individual. Subsection 54F(2) provides as follows:
(2) This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii)an interim period does not currently apply in relation to the earlier determination;
(iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
The language of subsection 54F(2) is arguably ambiguous as to when it should be assessed that section 51 ‘did not apply’ or ‘did apply’. However, in the Tribunal’s view the references are in the past tense and refer to whether section 51 already applied at the relevant time, the change of care day, rather than whether the requirements of section 51 were satisfied at that time looking forward to whether an interim care period then applied. On that basis, the Tribunal is satisfied that subsection 54F(2) applies in relation to each of Mr Oldfather and Ms Fountaine and paragraph 54F(1)(d) is also met.[11]
[11] See also the Tribunal’s later discussion in these Reasons of when section 51 can apply.
As each of paragraphs (a) to (d) of subsection 54F(1) apply, the pre-existing determinations of each of Mr Oldfather’s and Ms Fountaine’s percentages of care must be revoked and another determination under section 49 or 50 must be made for each parent. Pursuant to paragraph 49(1)(b) and subsections 49(2) and (3), a new percentage of care of 0% must be determined for Mr Oldfather unless section 51 applies. Pursuant to paragraph 50(1)(b) and subsections 50(2), (3) and (4), a new percentage of care corresponding with the actual care of the children that Ms Fountaine had or was likely to have must be determined for Ms Fountaine unless section 51 applies.
Issue 2: What are the new percentage of care determinations for Mr Oldfather and Ms Fountaine?
Preliminary issue – can section 51 apply?
As already noted, if care changes, the pre-existing percentage of care determinations are generally required to be revoked and new percentage of care determinations are required to be made pursuant to section 49 or section 50. The Tribunal first considered whether section 51 applies.
A preliminary issue arises as to whether section 51 can apply in relation to the 6 February 2019 change in care because section 53 provides that section 51 does not apply in certain circumstances. Section 53 states as follows:
(1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c) the Registrar has revoked the determination under section 54F or 54H.
(2)Section 51 also does not apply in relation to a responsible person in relation to whom a determination (a later determination) has been made under section 49 or 50 if:
(a)an earlier determination determined the responsible person’s percentage of care for a child under that section for the purposes of subsections 51(3) and (4); and
(b)the later determination is made after the end of the maximum interim period for the earlier determination; and
(c)the later determination relates to the same care arrangement as the earlier determination.
Child Support, in its original decision of 26 July 2022 and the objection decision of 4 November 2022, applied an interim period. Mr Oldfather does not dispute the application of an interim period. He disputes that by virtue of the application of the interim period, Child Support determined that Ms Fountaine’s percentage of care of 100% applies from the end of the interim period determined by Child Support, that is from 7 August 2019, rather than from when Ms Fountaine’s recorded percentage of care would otherwise have increased pursuant to the legislation, on 9 February 2022, because Ms Fountaine notified the change in care more than 28 days after it occurred.
On 23 May 2023 and 20 June 2023, the Tribunal directed the Child Support Registrar to make written submissions in response to a number of issues that arose for consideration in relation to this application. On 13 June 2023 and 4 August 2023, the Child Support Registrar provided written submissions in response. Copies of the relevant parts of the responses to the Tribunal’s directions are annexed to these Reasons in Attachments A and B. In summary, relevantly to whether section 51 applies, in essence the Child Support Registrar’s written submissions are:
(a) On 13 June 2023, that paragraph 53(1)(c) does not mean that section 51 does not apply when the existing care determination is revoked under section 54F or section 54H. Rather, it prevents the Registrar from making an interim care determination ‘where there has been a revocation of the determination – i.e., the same determination referred to in the chapeau of s 53(1) – under either s 54F or 54H. The provision prevents s 51 applying to a determination that has since been revoked.’ (See in particular paragraph 16 of the Child Support Registrar’s 13 June 2023 submissions.)
(b) On 4 August 2023, that the Child Support Registrar:
2… has further considered her position on some of the questions addressed in the previous submissions. In particular, the Registrar has further considered the correct construction of s 53(1)(c) of the Assessment Act.
…
6.… the Registrar accepts that on a plain reading of the text of s 53(1)(c), the provision operates such that once a determination under s 49 or s 50 has been revoked by the Registrar under s 54F or s 54H (as the case may be), s 51 does not apply in relation to a responsible person in relation to whom a determination is to be made under s 49 or s 50. The effect of this is that s 51 would not apply to the parents in the present case in circumstances where the pre-existing determinations in relation to them were revoked under s 54F or s 54H.
As can be seen, the Child Support Registrar has changed their position in relation to whether section 51 applies to the 6 February 2019 care change. Contrary to the position adopted in the original decision of 26 July 2022, the objection decision of 4 November 2022 and in the submissions dated 13 June 2023, the Child Support Registrar now submits that paragraph 53(1)(c) provides that the section 51 interim period provisions do not apply where ‘pre-existing determinations … were revoked under s 54F or s 54H’.
The Tribunal acknowledges the changing position of the Child Support Registrar in relation to the interpretation of section 51. However, other than stating the Child Support Registrar’s now position, the written submissions provide little if any guidance as to how that position has been reached.
The Tribunal had regard to a number of matters in interpreting paragraph 53(1)(c), including the Child Support Registrar’s submissions, for the purposes of ascertaining whether section 51 can apply in the circumstances of the 6 February 2019 care change.
Relevantly, sections 15AA and 15AB of the Acts Interpretation Act 1901 (the AI Act), ‘a dictionary and manual to use when reading and interpreting Commonwealth Acts and instruments made under Commonwealth Acts’ (section 1A), provide as follows in relation to statutory interpretation:
Section 15AA Interpretation best achieving Act’s purpose or object
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Section 15AB Use of extrinsic material in the interpretation of an Act
(1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
…
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
…
The Tribunal first had regard to the actual wording of paragraph 53(1)(c),[12] which is:
(1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c) the Registrar has revoked the determination under section 54F or 54H.
[12] Tribunal emphasis added.
As has already been noted, the scheme of the Act as it relates to the recording of percentage of care determinations for child support purposes, is that initial percentage of care determinations are made upon initial registration of a child support case and generally then existing percentage of care determinations are required to be revoked before new percentage of care determinations reflecting changed care can apply.
Revocation of pre-existing percentage of care determinations can only occur pursuant to section 54F, 54G or 54H of the Act. Broadly speaking, those provisions provide for revocation in the following circumstances:
(a) Section 54G – requires mandatory revocation of a pre-existing percentage of care determination in relatively narrow circumstances, including when a person was to have at least 14% care of a child and they are having less than 14% care despite the child being made available for care.
(b) Section 54F – requires mandatory revocation of a pre-existing percentage of care determination when section 54G does not apply, the care that is actually taking place does not correspond with the pre-existing percentage of care determination and a change to the percentage of care determination would alter the cost percentage used in the administrative assessment of child support.
(c) Section 54H – allows discretionary revocation of a pre-existing percentage of care determination when sections 54F, 54FA[13] and 54G do not apply, and the care that is actually taking place does not correspond with the pre-existing percentage of care determination (that is, a change to percentage of care determination is not required to have the effect of altering the cost percentage used in the formula for administrative assessment of child support, as is required by section 54F).
[13] Section 54FA prescribes circumstances in which percentage of care determinations may be suspended.
Section 51 generally makes provision for pre-existing percentage of care determinations to continue to be recorded for an interim period when a care arrangement (such as a court order or written parenting plan) is not being complied with and the person who is not having care as they should under the care arrangement is taking reasonable action to have it complied with.
The concept of a maximum interim period, introduced by 2018 amendments to the legislation, is an important concept to understand in the context of how the care provisions operate since the 2018 amendments.
The legislation provides for a maximum interim period (as defined in section 5) and an interim period. A maximum interim period is a set period unaffected by any action or inaction on the part of the parties to a child support case. An interim period will ordinarily have the same duration as a maximum interim period unless it is shortened. The maximum interim period may be shortened if a parent with increased care takes reasonable action to participate in family dispute resolution. However, a further interim period can apply if a shorter interim period has applied, the person with reduced care continues to take reasonable action for compliance with the care arrangement but the person with increased care ceases to take reasonable action to participate in family dispute resolution before the end of the maximum interim period. Therefore, a maximum interim period can comprise more than one interim period, but only if family dispute resolution is involved.
A ‘quick’ reading of paragraph 53(1)(c), that is ‘Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if … the Registrar has revoked the determination under section 54F or 54H’, might suggest that section 51 does not apply in the circumstances of this case because the Tribunal has determined that each of the pre-existing percentage of care determinations as at 6 February 2019, of 35% for Mr Oldfather and 65% for Ms Fountaine, must be revoked pursuant to section 54F. However, more than a ‘quick’ read is warranted. The legislative provisions are complex and understandably so given the intricate nature of the purpose of the provisions. Section 53 cannot be read alone. All of the relevant legislative provisions need to be read together because of the interlinking between them as is necessary given their intricate nature. The interpretation now contended by Child Support is not consistent with the overall scheme of the legislation in relation to care. Section 51 is unlikely, if ever, to apply in relation to a section 54G revocation scenario because section 54G requires that care is being made available,[14] a situation unlikely to exist when a care arrangement is being breached requiring action for compliance, the scenario underpinning section 51. Section 51 will therefore usually only have potential application in relation to section 54F or section 54H revocation situations such that to read paragraph 53(1)(c) as excluding situations where pre-existing percentage of care determinations are revoked pursuant to section 54F or 54H, as is now contended by the Registrar, would lead to the result that an interim period is unlikely, if ever, to apply once a child support case has commenced, an apparent inconsistency if not absurdity.
[14] The only and very limited circumstance in which section 51 is likely to arise for consideration in relation to section 54G is, for example, when care is being made available by a parent however the actions of the child (usually an older child) are preventing the care from occurring, a situation recognised in the Guide at clause 2.2.3.
Where different possible interpretations are possible, pursuant to section 15AA of the AI Act, the preferred interpretation requires ‘an interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act)’. Section 4 of the Act, states that the principal object of the Act is ‘to ensure that children receive a proper level of financial support from their parents’ with particular objects of the Act also specified. Minimal assistance is provided by recourse to the principal or particular objects of the Act for interpretation of a specific provision such as paragraph 53(1)(c). However, the Tribunal observes that the general purpose of the Act is consistent with an interim period, recognising care that should have occurred pursuant to a breached care arrangement for a limited time, applying in the appropriate circumstances. As already observed, it may be considered absurd if paragraph 53(1)(c) was interpreted in the manner now contended by the Child Support Registrar resulting in an interim period unlikely to ever apply.
The Tribunal also considered the Revised Explanatory Memorandum to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Bill 2017,[15] which led to the replacement of the then section 53, in considering whether it assists in ascertaining the intention of paragraph 53(1)(c), as is permitted by paragraph 15AB(1)(b) (and particularly subparagraph 15AB(1)(b)(ii)) and paragraph 15AB(2)(e) of the AI Act.
[15] The subsequently enacted Family Assistance and Child Support Legislation Amendment (Protecting Children) Act2018 also deleted the previous section 52 and added paragraph 53(1)(c).
The Revised Explanatory Memorandum includes the following of relevance:
Part 1 – Interim periods
This Part amends the Child Support (Assessment) Act 1989 and the A New Tax System (Family Assistance) Act 1999 to extend the interim period that applies for recently-established court-ordered care arrangements and provides incentives for the person with increased care to take reasonable action to participate in family dispute resolution where a care dispute relates to an older court order, a parenting plan or a written agreement.
…
Item 25 inserts a new definition in subsection 5(1) for maximum interim period for the purposes of a determination under section 49 or 50. For a determination of a responsible person’s percentage of care for a child under section 49 or 50, the maximum interim period that can apply begins on the change of care day (as defined in subsection 5(1)) and, for a determination relating to a court order, ends on the later of the period of 52 weeks starting on the day the court order first takes effect, or the end of the period of 26 weeks starting on the change of care day. For a determination relating to a written agreement or parenting plan, the maximum interim period ends at the end of the period of 14 weeks starting on the change of care day. Item 25 also inserts a signpost definition for the phrase takes reasonable action to participate in family dispute resolution.
…
Item 31 repeals section 52 as it is not consistent with the amendments in this Part, which seek to ensure that care arrangements are complied with. Section 52 allows for an interim period to apply where a parent is seeking a new care arrangement that would require less care than that provided in the existing arrangement, but greater than the extent of their actual care. It is not appropriate for the care arrangement to be reflected in a situation where both parties are seeking a different level of care. In such situations, it is more appropriate for actual care to be reflected.
Item 31 also replaces section 53. New section 53 incorporates the concept of a “maximum interim period” rather than the 14‑week interim period that is currently in section 53. Current subsection 53(1) provides that section 51 does not apply if certain events in relation to the determination of a responsible person’s percentage of care for a child occur 14 weeks or more after the change of care day. New subsection 53(1) provides similarly but in relation to those events occurring after the end of the maximum interim period. This recognises that the maximum interim period may be different depending on the time that has elapsed since the change of care day, and the nature of the care arrangement.
New subsection 53(1) also takes the maximum interim period into account, so that section 51 does not apply in cases where the Registrar has revoked a determination of a responsible person’s percentage of care for the child, under section 54F or 54H.[16]
New subsection 53(2) further provides that section 51 does not apply in relation to a responsible person in relation to whom a determination has been made under section 49 or 50, if an earlier determination determined the responsible person’s percentage of care for the purposes of subsections 51(3) and 51(4), the later determination is made after the end of the maximum interim period for the determination, and the later determination relates to the same care arrangement as the earlier determination.
[16] Tribunal emphasis added.
The Revised Explanatory Memorandum does not expressly address how paragraph 53(1)(c) is to be construed. However, as stated in the bolded paragraph in the above extract, the Revised Explanatory Memorandum indicates that for the purposes of paragraph 53(1)(c), the exercise of either section 54F or section 54H is that occurring in the context of the maximum interim period. Further, the Revised Explanatory Memorandum confirms the purpose of section 51, and the importance of its place in ensuring that care arrangements are complied with and the intention of extending, rather than limiting, the application of interim periods. This is consistent with the Tribunal’s earlier observations that the interpretation now being contended by the Child Support Registrar does not appear consistent with the scheme of the legislation in relation to care, and in particular in relation to the stated intention of extending the application of interim care periods. Of further note, the Revised Explanatory Memorandum suggests that the new subsection 53(1) was intended to replicate the old section 53, but taking into account the new concept of a ‘maximum interim period’ rather than the previous effective maximum interim period of 14 weeks that was in place prior to the 2018 amendments. If the amendments to section 53 in 2018 had been intended to preclude the operation of section 51 in any circumstance in which a pre-existing percentage of care determination was revoked under section 54F or section 54H, that would have been a significant change to the operation of the legislation, effectively almost rendering section 51 null and void. The Revised Explanatory Memorandum does not reveal any such intention.
The Tribunal also considered the interpretation of this Tribunal differently constituted on first review in considering a similar factual position (that is, where pre-existing percentage of care determinations were required to be revoked under section 54F and the change in care was notified after expiry of the maximum interim period) in Castle and Jonas (Child support) [2022] AATA 1702 (Castle and Jonas). In that decision the Tribunal ‘read in’ words to paragraph 53(1)(c) so that it read ‘the Registrar has revoked the determination under section 54F or 54H after the end of the maximum interim period for the determination.[17] As recognised in Castle and Jonas, in Taylor v The Owners - Strata Plan No 11564 (2014) 253 CLR 531 (Taylor), the High Court stated that:
The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".
[17] The underlined words are the ‘read in’ words.
In Castle and Jonas, the decision to ‘read in’ the additional words was reached on the basis that to do so would avoid the manifestly absurd result that there would otherwise be ‘no scope, or almost no scope, to ever make interim determinations once a child support case has commenced’ as paragraph 53(1)(c) would prevent interim periods applying pursuant to section 51 if the pre-existing determinations had been revoked pursuant to section 54F or 54H. Further, in Castle and Jonas it was stated that ‘reading in’ the additional words would give effect to the ‘legislative intent as expressed in the Explanatory Memorandum and as can be discerned from a broader reading of the provisions that deal with the making of care decisions’, that is ‘if an interim determination could have been made or was made in respect of the relevant care arrangement but the maximum interim period would have ended or has ended, then section 51 does not apply in respect of the care decision that is currently being made.’
The Tribunal acknowledges the approach in Castle and Jonas but, with respect, considers the ‘reading in’ of the words ‘after the end of the maximum interim period for the determination’ goes beyond what is contemplated by the High Court in Taylor of a case of ‘simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision’.
Further, for the reasons that follow, the Tribunal does not consider that there would be ‘no scope, or almost no scope, to ever make interim determinations once a child support case has commenced’.
The Tribunal notes that the Guide, whilst containing general guidance in relation to various aspects of the interim care provisions, provides no guidance in relation to this particular issue.
Having regard to all of the above matters, the Tribunal considered the actual wording of the whole of paragraph 53(1)(c), noting in particular the use of the word ‘determination’ within the subsection (emphasised by the Tribunal in bold underline) as follows:
(1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c)the Registrar has revoked the determination under section 54F or 54H.
There are a number of ‘determinations’ to which the references to ‘determination’ in section 53 could apply.
Section 53 follows on immediately from section 51. If the requirements of section 51 are met, subsections 49(2) and 50(3) do not apply and, subject to subsection 51(5), subsection 51(2) requires a determination of two percentages of care for the relevant person. Section 53 then immediately follows on in the Act to state that section 51 does not apply in relation to a determination that is to be or has been made if paragraphs 53(1)(a), 53(1)(b) or 53(1)(c) apply. Paragraphs 53(1)(a) and 53(1)(b) relate to initial child support applications and situations where a relevant dependent child is added to a child support case and do not arise for consideration in relation to this application.
Child Support’s now position is that where a percentage of care determination is revoked under section 54F in any circumstances, section 51 cannot apply. However, as is suggested by the Revised Explanatory Memorandum where it states:
New subsection 53(1) also takes the maximum interim period into account, so that section 51 does not apply in cases where the Registrar has revoked a determination of a responsible person’s percentage of care for the child, under section 54F or 54H.
the Tribunal’s concludes that section 51 does not apply only in the restricted situation where revocation under section 54F occurs within a maximum interim period,[18] with the Revised Explanatory Memorandum clarifying that the operation of paragraph 53(1)(c) is linked with the maximum interim period.
[18] The restricted application is found in paragraph 54F(2)(c) in circumstances where section 51 did apply, the interim period has finished however the maximum interim period has not ended and the earlier determination under subsection 51(4) has been suspended under section 54FA.
This position is consistent with and links with other relevant provisions of the legislation including, for example, subsection 53A(4) which provides that there is no interim period in respect of a percentage of care determination made under sections 49 or 50 before the end of the maximum interim period for another determination under those sections, with sections 54FA and 54HA prescribing for that scenario. Subsection 53A(4) relevantly states as follows:
(4)A determination under section 49 or 50 of a responsible person’s percentage of care for a child does not have an interim period if the determination is made under that section before the end of the maximum interim period for another determination under either of those sections of the responsible person’s percentage of care for the child (see sections 54FA and 54HA).
This interpretation also explains the qualification in paragraph 54F(2)(a), triggering revocation under section 54F only when section 51 did not apply when previous determinations were revoked, section 51 did apply but the maximum interim period has ended or section 51 did apply, the interim period has finished however the maximum interim period has not ended and the earlier determination has been suspended under section 54FA.
The Tribunal’s view therefore is that the determination to which section 53 refers in the introductory words of the section is the determination made after the revocation of the previous determination, that is the determination made pursuant to section 51. Section 53 follows on from section 51 and it is that immediately referred to section 51 determination to which paragraph 53(1)(c) applies, preventing the application of an interim period to that determination. That is, paragraph 53(1)(c) (only) prevents the application of a further interim period if a determination initially made under section 51 is revoked under section 54F or 54H within the maximum interim period. Section 51 does not apply only in the restricted situation where revocation under section 54F occurs within a maximum interim period.
The Tribunal considers this interpretation consistent with the clear intention of the 2018 amending legislation, introducing the central concept of the maximum interim period. Further, as already canvassed, the idea that such an obviously integral part of the scheme as interim periods would apply in only rare cases is nonsensical. This interpretation is also consistent with the emphasis shown in the Revised Explanatory Memorandum of the importance of recently established court-ordered and other care arrangements and the provision of incentives for persons with increased care taking reasonable action to participate in family dispute resolution.
Paragraph 53(1)(c) therefore does not prevent the operation of section 51 in the present case.
The Tribunal therefore concludes that section 51 can apply to the 6 February 2019 change in care (if the necessary requirements are met). The Tribunal observes that its conclusion is consistent with the Child Support Registrar’s initial submissions of 13 June 2023 and Child Support’s original decision in relation to the 6 February 2019 change in care.
What are the new percentage of care determinations for Mr Oldfather and Ms Fountaine?
Having determined that section 51 can apply, the Tribunal considered whether the requirements of section 51 are met.
Section 51 provides:
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1)This section applies if:
(a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b)a care arrangement applies in relation to the child; and
(c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances: see section 53.
2 percentages of care in relation to the responsible person
(2)Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.
(3)The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4) The second percentage of care is to be:
(a)for a determination under section 49—0%; or
(b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
Single percentage of care in relation to the responsible person
(5)If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.
(6) The single percentage of care is to be:
(a) for a determination under section 49—0%; or
(b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
Therefore, unless special circumstances in relation to the children are present pursuant to subsection 51(5), pursuant to section 51, where ‘reasonable action’ is taken by a parent with reduced care to ensure that a formal care arrangement in relation to the children is complied with, two percentages of care are required to be determined for each person under section 49 or 50.
There are four requirements in subsection 51(1) that must be met for section 51 to apply. Those requirements are as follows:
(a) A percentage of care determination is required to be determined pursuant to section 49 or section 50 for a care period;
(b) A care arrangement applies in relation to the child;
(c) The actual care that a person has, or is likely to have, for the care period does not comply with the extent of care they should have had, or are to have, under the care arrangement during that period; and
(d) The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.
At paragraph 36 of these Reasons, the Tribunal has found that percentage of care determinations are required to be made pursuant to section 49 and section 50. Paragraph 51(1)(a) is therefore satisfied.
Ms Fountaine is recorded as advising Child Support, when she contacted on 9 February 2022 (Exhibit 1, page 120), that a court order had been in place prior to the change in care. On 7 April 2022 (Exhibit 1, page 146), Ms Fountaine is recorded as further advising that the court order had been followed until 2019. Mr Oldfather also contends that care was occurring pursuant to the court order until 6 February 2019. The [May] 2009 court order is a care arrangement as defined (section 5 of the Act and section 63C of the Family Law Act 1975). Paragraph 51(1)(b) is therefore satisfied.
The Tribunal has found that from 6 February 2019, Mr Oldfather was having 0% actual care of the children and Ms Fountaine was having 100% actual care of the children. These levels of care did not comply with the extent of care that they each should have been having under the court order. Paragraph 51(1)(c) is therefore satisfied.
In considering whether Mr Oldfather was taking reasonable action to ensure that the care arrangement was complied with, clause 2.2.4 of the Guide provides guidance as follows:
The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:
· negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement
· making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to
· seeking or obtaining legal advice regarding the making of a court order
· filing an application to a court to have an order made or enforced
· attending a hearing at court to seek an order to be made or enforced, or
· notifying the police that the child has been taken without consent.
This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child.
The Tribunal considers the guidance at clause 2.2.4 not inconsistent with paragraph 51(1)(d) and has taken it into account in considering whether Mr Oldfather was taking reasonable action.
Mr Oldfather’s evidence was that following his reduced care of the children from 6 February 2019, he was in contact with Ms Fountaine seeking to have care of the children, seeking to attend counselling and that he arranged to attend family dispute resolution with Relationships Australia and, following Ms Fountaine declining to attend, he instructed solicitors to write to Ms Fountaine prior to filing an application seeking enforcement of the court orders, with him ultimately regaining care (albeit less care) as a result of these actions from 29 January 2020. The Tribunal accepts Mr Oldfather’s evidence and is satisfied that Mr Oldfather was taking reasonable action to ensure the court order was complied with. Paragraph 51(1)(d) is therefore satisfied.
All of paragraphs (a) to (d) of subsection 51(1) having been met and, unless special circumstances apply in relation to the children such that there is a discretion for only one percentage of care to be determined for each parent (effectively meaning that percentage of care determinations for each person are immediately based on the actual care then occurring), two percentages of care are to be determined for each of Mr Oldfather and Ms Fountaine.
The term special circumstances is not defined in the Act. The Guide at clause 2.2.4 particularises the kind of special circumstances that might result in this discretion being exercised and the types of supporting evidence that might be provided as follows:
Special circumstances where an interim period does not apply
The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.
The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological wellbeing of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:
· violence towards the child,
· exposing the child to family violence (within the meaning of section 4AB of the FL Act),
· violence towards the person with increased care,
· directly involving the child in a criminal act,
· exposing the child to alcohol, drugs or substance abuse,
· substantially failing to comply with legal schooling requirements, and/or
· neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.
The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Suitable evidence may include (but is not limited to):
· a police report detailing violent behaviour towards a child or the person with increased care,
· an intervention order preventing contact with the child or person with increased care, or
· statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.
The Tribunal notes that a letter dated 30 September 2022 from a children’s counsellor (Exhibit 1, page 300) states that Ms Fountaine and the children had been supported from 18 May 2022 as a part of a Domestic and Family Violence Program. However, Ms Fountaine chose not to participate in the hearing. Nor did Ms Fountaine provided any written evidence or submissions as invited There is therefore no evidence in relation to this issue from Ms Fountaine. Mr Oldfather’s evidence was that there were no such circumstances existing. Given the lack of evidence of any such special circumstances existing in relation to the children as at 6 February 2019, the Tribunal is not satisfied that the discretion in subsection 51(5) should be exercised to determine a single percentage of care in relation to each parent. Two percentages of care are therefore required to be determined for each of Mr Oldfather and Ms Fountaine pursuant to subsections 51(2), (3) and (4), rather than percentages of care being determined pursuant to subsection 49(2) (Mr Oldfather) and subsection 50(3) (Ms Fountaine) that would otherwise be of application if section 51 did not apply.
The first percentage of care is a percentage that corresponds with the extent of care of the children that each of Mr Oldfather and Ms Fountaine should have had under the court order (subsection 51(3)). The second percentage of care is a percentage that corresponds with the actual care that each of Mr Oldfather and Ms Fountaine would be likely to have for the care period commencing 6 February 2019 if the action taken to ensure compliance with the parenting plan were not to succeed (subsection 51(4)).
Therefore, pursuant to subsections 51(2) and (3), the first percentage of care determination for Mr Oldfather is 35%, the first percentage of care determination for Ms Fountaine is 65%, and, pursuant to subsections 51(2) and (4), the second percentage of care determination for Mr Oldfather is 0% and the second percentage of care determination for Ms Fountaine is 100%.
Issue 3: What are the dates of application of the new percentage of care determinations?
Two provisions in the legislation address the days to which the percentages of care apply: section 54B and section 54C.
Section 54B is reproduced below. Subsection 54B(2) provides for the days to which the percentage of care applies if section 51 did not apply as follows:
(1)This section applies if a determination of a responsible person’s percentage of care for a child is made under section 49 or 50 and:
(a) section 51 did not apply in relation to the responsible person; or
(b) all of the following apply:
(i) section 51 did apply in relation to the responsible person;
(ii)the determination (the later determination) was made while an earlier determination of the responsible person’s percentage of care for the child was suspended under subsection 54FA(2) or 54HA(2);
(iii)the earlier determination is still suspended under that subsection or the earlier determination was revoked under subsection 54FA(4) or 54HA(4);
(iv) the later determination has not been revoked; or
(c)section 51 did apply in relation to the responsible person but the determination made under section 49 or 50 determined a single percentage of care for the child for the purposes of subsection 51(5).
Note: For when section 51 does not apply, see section 53.
(1A)The percentage of care applies to each day in a child support period on and from the application day until the determination is revoked, or the earlier determination ceases to be suspended, under Subdivision C of this Division.
(2) The application day is:
(a)if subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day on which the application referred to in that subparagraph is made; or
(b)if subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph; or
(c)if paragraph 49(1)(b) or 50(1)(b) applies in relation to the determination:
(i)in a case where the revocation of the determination referred to in subparagraph 49(1)(b)(i) or 50(1)(b)(i) takes effect at the beginning of the day referred to in paragraph 54G(2)(a)—that day; or
(ii)otherwise—the day that begins immediately after the revocation of the determination referred to in that subparagraph takes effect.
Section 54C provides for the days to which the percentage of care applies if two percentages of care apply under section 51 in relation to a responsible person as follows:
(1) This section applies if:
(a)a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and
(b)2 percentages of care were determined for the purposes of subsection 51(2) in relation to the responsible person; and
(c) the determination is not suspended under subsection 54FA(2) or 54HA(2).
(2) Until the determination is revoked or suspended under Subdivision C of this Division:
(a)the percentage of care referred to in subsection 51(3) applies to each day in a child support period that occurs in the interim period for the determination; and
(b)the percentage of care referred to in subsection 51(4) applies to each day in a child support period that does not occur in the interim period for the determination.
Section 54B links the date of application of new percentages of care with the date of revocation of the previous percentage of care determinations. Section 54C does not have the same link.
Significantly, different days of application for percentage of care determinations can operate depending upon which section applies. In particular this difference becomes apparent when a change in care is notified more than 28 days after it occurs. Relevantly if this occurs and section 54B applies, there is a different date of application for new percentages of care for each parent. Essentially the percentage of care determination for a person with reduced care applies from the date of the change in care. However, the percentage of care determination for a person with increased care does not apply until the date of the notification of the change in care. This situation potentially arises in relation to the 6 February 2019 change in care because the change in care was not notified (by Ms Fountaine on 9 February 2022) until just over three years after it occurred.
If section 54B applies, new percentage of care determinations apply from the ‘application day’, which by definition is linked to the day the previous percentage of care determinations are revoked (which relevantly in this case would be pursuant to section 54F).
However, if section 54C applies rather than section 54B, that is an interim period applies pursuant to section 51, that section clearly specifies the dates of application of the two percentage of care determinations, with sections 54B having no effect in that case.
On one view, section 54B and section 54C could be considered inconsistent because section 54C does not have a similar effect to section 54B if a change in care is notified more than 28 days after it occurred. The Child Support Registrar in the 4 August 2023 submissions submitted that there is no inconsistency between the sections (see paragraphs 11 and 12 of those submissions).
The Tribunal also does not consider there to be an inconsistency between the sections. Rather, subsection 54B(1) excludes the application of section 54B where a revocation under section 54F is linked to new percentage of care determinations pursuant to section 51. The legislation expresses a clear intent that section 54B does not apply in those circumstances. This interpretation is further supported by subsection 54F(2) excluding the operation of that section if section 51 applies, except in the very limited circumstances footnoted in relation to paragraph 64 of these Reasons.
Section 54C applies with the first percentage of care determined under subsection 51(3) applying to ‘each day in a child support period that occurs in the interim period for the determination’ and the second percentage of care determined under subsection 51(4) applying to ‘each day in a child support period that does not occur in the interim period for the determination’.
Subparagraph 53A(1)(a)(i) provides that an interim period will usually begin on the change of care day unless an earlier interim period is also required to be taken into account.
There is no earlier interim period and the interim period therefore begins on 6 February 2019.
Paragraph 53A(1)(b) provides that the end date for an interim period, and therefore the duration of the interim period, depends on a number of factors, including whether or not the previous care arrangement was a court order, parenting plan or written agreement.
As the relevant care arrangement is a court order and the evidence is that Ms Fountaine did not continuously take reasonable action to participate in family dispute resolution, the interim period ends ‘at the end of the period of 26 weeks starting on the change of care day’, that is on 6 August 2019 (Item 2 of the table in paragraph 53A(1)(b)). As discussed with Mr Oldfather at hearing, the maximum interim period allowed by the legislation in the circumstances is 26 weeks and not 52 weeks as might otherwise apply and as might have been advised to him in a conversation with a Child Support services officer at one stage.
Pursuant to paragraph 54C(2)(a), the first percentage of care determination of 35% determined pursuant to sections 51 and 50 for Mr Oldfather applies to each day in the child support period that occurs in the interim period 6 February 2019 to 6 August 2019.
Similarly, pursuant to paragraph 54C(2)(a), the first percentage of care determination of 65% determined pursuant to sections 51 and 50 for Ms Fountaine applies to each day in the child support period that occurs in the interim period 6 February 2019 to 6 August 2019.
Pursuant to paragraph 54C(2)(b), the second percentage of care determination of 0% determined pursuant to sections 51 and 49 for Mr Oldfather applies to each day in a child support period that does not occur in the interim period for the determination. Therefore the second percentage of care determination of 0% for Mr Oldfather applies for each day in the child support period that is not in the period 6 February 2019 to 6 August 2019, that is from 7 August 2019.
Similarly, pursuant to paragraph 54C(2)(b), the second percentage of care determination of 100% determined pursuant to sections 51 and 50 for Ms Fountaine applies to each day in a child support period that does not occur in the interim period for the determination. Therefore the second percentage of care determination of 100% for Ms Fountaine applies for each day in the child support that is not in the period 6 February 2019 to 6 August 2019, that is from 7 August 2019.
Conclusion re 6 February 2019 change in care
104.In summary, therefore, the Tribunal has decided that an interim period applies with:
(a) the first percentage of care determination for the children of 35% applying for Mr Oldfather from 6 February 2019 until the end of the interim period on 6 August 2019;
(b) the second percentage of care determination for the children of 0% applying for Mr Oldfather from 7 August 2019;
(c) the first percentage of care determination for the children of 65% applying for Ms Fountaine from 6 February 2019 until the end of the interim period on 6 August 2019;
(d) the second percentage of care determination for the children of 100% for Ms Fountaine applying from 7 August 2019.
The 29 January 2020 change in care
Issue 4: Are the pre-existing percentage of care determinations as at 29 January 2020 for Mr Oldfather and Ms Fountaine to be revoked?
On 1 December 2021, Child Support was notified of a change in the care of the children on 29 January 2020 (as confirmed by the Child Support Registrar in their submissions of 13 June 2023 – Exhibit C, page 2) to 16% care of [Child 1] and 14% care of [Child 2] to Mr Oldfather and 84% care of [Child 1] and 86% care of [Child 2] to Ms Fountaine. Mr Oldfather’s evidence was that he does not understand the discrepancy in care levels between [Child 1] and [Child 2]. He had the same care of each of [Child 1] and [Child 2] at the same time and says that his care was actually 14% of both children from 29 January 2020. As Ms Fountaine did not elect to participate in the hearing before the Tribunal, the Tribunal was unable to ask her about this discrepancy. The Tribunal accepts the undisputed evidence of Mr Oldfather and finds that care of the children changed on 29 January 2020 with both Mr Oldfather and Ms Fountaine having a pattern of care of the children from that date. Mr Oldfather’s care increased from 0% to 14% for both [Child 1] and [Child 2] and Ms Fountaine’s care reduced from 100% to 86% for both [Child 1] and [Child 2].
106.Paragraph 29 of these Reasons addresses the requirements to be met for pre-existing percentages of care to be revoked pursuant to section 54F. As regards the 29 January 2020 change in care, the Child Support Registrar became aware on 1 December 2021 that the care of the children had changed from 29 January 2020. The Tribunal has found that the change was a change in care of both of the children to 14% to Mr Oldfather and 86% to Ms Fountaine. Those percentages did not correspond with the then existing percentages of care recorded for each of Mr Oldfather (0%) and Ms Fountaine (100%). Paragraph 54F(1)(a) is met.
A change to the percentage of care determination for each of Mr Oldfather (from 0% to 14%) and Ms Fountaine (from 100% to 86%) would change the cost percentage for each pursuant to the table in section 55C. Paragraph 54F(1)(b) is met.
Mr Oldfather was not to have more than 0% care pursuant to the pre-existing percentage of care determination. Section 54G therefore does not apply. Paragraph 54F(1)(c) is met.
Paragraph 54F(1)(d) requires that subsection 54F(2) applies in relation to the relevant individual. As at 29 January 2020, section 51 had applied but the maximum interim period had ended. Paragraph 54F(1)(d) is therefore met.
As each of paragraphs (a) to (d) of subsection 54F(1) apply, the pre-existing determinations of each of Mr Oldfather’s and Ms Fountaine’s percentages of care of 0% and 100% respectively must be revoked. Pursuant to paragraph 50(1)(b) and subsections 50(2), (3) and (4), a new percentage of care corresponding with the actual of the children by each of Mr Oldfather and Ms Fountaine must be made unless section 51 applies.
Issue 5: What are the new percentage of care determinations for Mr Oldfather and Ms Fountaine?
It is not contended that prior to the change in care on 29 January 2020 that care had been occurring pursuant to a care arrangement. Section 51 therefore has no application in relation to the 29 January 2020 change in care.
112.Percentage of care determinations are therefore required pursuant to subsection 50(2) and subsection 50(3). The Tribunal determines that Mr Oldfather’s percentage of care is 14% and determines that Ms Fountaine’s percentage of care for the children is 86% as outlined in the above consideration.
Issue 6: What are the dates of application of the new percentage of care determinations?
113.Unlike in relation to the 6 February 2019 change in care, an interim period does not apply and section 54B is not excluded from application in relation to the 29 January 2020 change in care. The date of application of the new percentage of care determinations is therefore linked to the revocation of the pre-existing percentage of care determinations.
The Child Support Registrar became aware, on 1 December 2021, of the change in care of the children from 29 January 2020, that is, more than 28 days after the change of care day. Paragraph 54F(3)(b) of the Act therefore provides for when revocation takes effect.
Mr Oldfather’s care of the children increased from 0% to 14% on 29 January 2020. Therefore revocation of his (pre-existing) percentage of care determination of 0% takes effect at the end of the day before the Child Support Registrar was notified of the change, that is, at the end of 30 November 2021 (subparagraph 54F(3)(b)(i)).
Ms Fountaine’s care of the children reduced from 100% to 86% on 29 January 2020. Therefore revocation of her then (pre-existing) percentage of care of 100% takes effect at the end of the day before the change of care day, that is, at the end of 28 January 2020 (subparagraph 54F(3)(b)(ii)).
117.Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day that begins immediately after revocation of the previous percentage of care determinations. Therefore, consequential to the Tribunal’s findings in relation to revocation, the new percentage of care determination of 14% to Mr Oldfather applies from 1 December 2021 and the new percentage of care determination of 86% to Ms Fountaine applies from 29 January 2020.
CONCLUSION
The Tribunal has reached the same decision in relation to both the 6 February 2019 and 29 January 2020 changes in care as Child Support did in its 26 July 2022 decision. It follows that the decision under review is affirmed.
The Tribunal observes that Mr Oldfather considers this decision unfair because he does not consider that Ms Fountaine should be in a better position, via application of the interim care period, than she would have been otherwise with 100% care not applying for her until 9 February 2022 because of late notification of the change in care. The Tribunal acknowledges the apparent inconsistency Mr Oldfather has identified with both of the care changes being notified well over 28 days after they occurred, but there being quite different dates from which the new percentages of care for each change in care apply. However, for the reasons given the Tribunal is satisfied that the legislation clearly intended, and provides, that the provisions that would otherwise apply when changes in care are notified more than 28 days after they occur, do not apply when interim periods are applicable. If the interim period did not apply, the position would be different including that Mr Oldfather’s percentage of care would be 0% from 6 February 2019. However, the Tribunal has concluded that the interim period can and does apply.
DECISION
The decision under review is affirmed.
ATTACHMENT A – 13 June 2023 written submissions of the Child Support Registrar (extract) [footnotes omitted by the Tribunal]
Question 3 – whether s 53(1)(c) has an equivalent effect to the prior s 53(2)
9.The Registrar confirms that her position is that the current s 53(1)(c) of the Assessment Act does not have an equivalent effect to s 53(2) as it existed prior to 23 May 2018.
10. The former s 53 relevantly provided as follows:
53 Sections 51 and 52 do not apply in certain circumstances
Initial determination
(1) Sections 51 and 52 do not apply in relation to a responsible person for a child if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies—the day on which the application referred to in that subparagraph is made is 14 weeks or more after the change of care day for the responsible person; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies—the day referred to in that subparagraph is 14 weeks or more after the change of care day for the responsible person.
Later determination
(2) Sections 51 and 52 do not apply in relation to a responsible person for a child if:
(a)the Registrar has revoked, under section 54F or 54H, a determination of the responsible person’s percentage of care for the child; and
(b)the revocation of the determination takes effect at the end of the day referred to in paragraph 54F(2)(c) or 54H(2)(c); and
(c)the day after that day is 14 weeks or more after the change of care day for the responsible person.
Extension of 14 week period
(3)If the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child, the Registrar may determine that subsection (1) or (2) applies as if the reference to 14 weeks in paragraph (1)(a) or (b) or (2)(c) were a reference to such longer period as the Registrar determines to be appropriate.
(4)The period determined under subsection (3) must not be more than 26 weeks.
11.In this way, the former s 53(2) operated to prevent the applicability of s 51 in circumstances where:
(a)the Registrar had revoked (under s 54F or s 54H) a determination of a percentage of care; and
(b)the Registrar was notified or otherwise became aware of a change in the actual care of the child both after 28 days after the change of care day and after the interim period for the determination had ended, such that the revocation had effect from the day before the date of notification pursuant to s 54F(2)(c) or s 54H(2)(c); and
(c)the date of notification was 14 weeks or more after the date of the care change.
12.The current s 53(1) provides as follows:
53 Section 51 does not apply in certain circumstances
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c)the Registrar has revoked the determination under section 54F or 54H.
13.As can be seen, the former s 53(2) and the current s 53(1)(c) are in substantively different terms. Paragraph 53(1)(c) was introduced by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018. Relevantly, that statute replaced the previous concept of a 14-week interim period with that of the ‘maximum interim period’ that now finds expression in the definition of that term in s 5(1) of the Assessment Act.
14.In response to the specific question posed by paragraph [3] of the Tribunal’s Order, the former 53(2)(b) and (c) had the effect set out in paragraph [11](a) and (b) above –a feature of which was that the Registrar is notified of the change in care 14 weeks or more after the change.
15.By contrast, the current version of s 53(1)(c) contains no such provision. It does not disapply s 51 in circumstances where the Registrar is notified or otherwise becomes aware of a change of care on a date later than any maximum interim period. That construction simply finds no support from the plain wording of the provision itself, or elsewhere in the Assessment Act. Indeed, under the current s 53(1), nothing turns on the date of notification of a change in care.
16.Rather, s 53(1)(c) disapplies s 51 in relation to a responsible person in relation to whom a determination has been made under ss 49 or 50 where there has been a revocation of the determination – i.e., the same determination referred to in the chapeau of s 53(1) – under either s 54F or s 54H. The provision prevents s 51 applying to a determination that has since been revoked.
17.For those reasons, the Registrar submits that when given its proper construction, the current s 53(1)(c) does not have an equivalent operation to the former s 53(2).
Question 4 – is there an inconsistency between s 54B and s 54C
18. The Registrar submits that there is no inconsistency between ss 54B and 54C.
19.Section 54B applies if a determination of a percentage of care is made under ss 49 or 50 and, relevantly, if s 51 did not apply in relation to the responsible person. By contrast, s 54C applies where 2 or more percentages of care are determined under s 51.
20.Importantly, both ss 54B and 54C are directed to an existing determination, which in a case such as the present could only apply after the revocation or suspension of the pre-existing determination took effect. This necessarily follows from the scheme of the provisions. In particular, the Registrar notes:
(a)Relevantly, under ss 49(1)(b) and 50(1)(b), the power (and obligation) to make a new determination is enlivened only once the existing determination has been revoked or suspended;
(b)Section 51 can only apply where the Registrar is required by ss 49 or 50 to determine a person’s percentage of care;
(c)Relevantly, ss 54F(3) and 54H(3) dictate when a revocation takes effect. As such, until the point at which a revocation takes effect, the pre-existing determination remains extant and dictates child support liabilities;
(d)In that context, s 54B naturally applies to the period after the revocation of the pre-existing determination (s 54B(2)(c)(ii));
(e)While not specified in the same terms, it is also clear that the 2 percentages of care referred to in s 54C can only apply to the new determination, which in turn can only apply after the pre-existing determination has been revoked. This becomes apparent when the text of s 54C is considered in the context of the scheme as set out above. In particular, s 54C(2)(a) and (b) are directed to “each day in a child support period…for the determination” (emphasis added). The percentages cannot apply to a day in a child support period for an earlier determination.
21.In the present case, because of ss 54F(3) and 54H(3), the revocation of the pre-existing determinations came into effect on 30 November 2021 for Mr Oldfather (with the new determination then applying from 1 December 2021) and from 28 January 2020 for Ms Fountaine (with the new determination applying from 29 January 2020). This means that regardless of the findings of fact made, by operation of ss 54F(3) and 54H(3), the new determinations can only apply to a day in a child support period from 1 December 2021 (for Mr Oldfather) and 29 January 2020 (for Ms Fountaine) respectively.
22.Seen in that light, while the delegate in the present case made findings of fact as to the percentages of care between the parents from 7 August 2019, this did not mean that the new percentages took effect from that date. Rather, as specified in the delegate’s decision, the changes (i.e., the new determination) took effect for Ms Fountaine from 29 January 2020. This means that Ms Fountaine’s effective percentage of care remained 65% until (and including on) 28 January 2020.
ATTACHMENT B – 4 August 2023 written submissions of the Child Support Registrar [footnote as numbered in the original]
[19]…
[19] …
In preparing these submissions, the Registrar has further considered her position on some of the questions addressed in the previous submissions. In particular, the Registrar has further considered the correct construction of s 53(1)(c) of the Assessment Act.
The Registrar continues to rely on paragraphs [1] to [15] of the previous submissions. The Registrar’s updated position is otherwise detailed below. Accordingly, these submissions address questions 3 and 4 of the Tribunal’s Order dated 23 May 2023 and the questions in its Order dated 20 June 2023.
The construction of s 53(1)(c)
In the previous submissions, the Registrar advanced a construction of s 53(1)(c) of the Assessment Act which aligned with the Registrar’s then understanding of the effect of the provision and its policy intent. That construction of s 53(1)(c) was accepted by the Tribunal in [name deidentified by the Tribunal] (2022/SC024886).
However, on further consideration in the course of preparing these submissions, the Registrar accepts that on a plain reading of the text of s 53(1)(c), the provision operates such that once a determination under s 49 or s 50 has been revoked by the Registrar under s 54F or s 54H (as the case may be), s 51 does not apply in relation to a responsible person in relation to whom a determination is to be made under s 49 or s 50. The effect of this is that s 51 would not apply to the parents in the present case in circumstances where the pre-existing determinations in relation to them were revoked under s 54F or s 54H.
In light of the Registrar’s updated position on how s 53(1)(c) applies to this case, the Registrar’s response to the questions asked in the Tribunal’s Orders is as follows.[20]
[20] For the avoidance of doubt, the Registrar continues to rely upon her answers given to questions 1 and 2 asked in the Tribunal’s Order dated 23 May 2023, as set out in the previous submissions.
Tribunal’s Order dated 23 May 2023
Question 3
As detailed in paragraphs [9] to [15] of the previous submissions, the current s 53(1)(c) is in substantively different terms to the former s 53(2). Unlike the former s 53(2), the operation of s 53(1)(c) is not dependent on the Registrar being notified of a change of care on a particular date.
However as addressed at paragraph [6] above, the Registrar accepts that the effect of s 53(1)(c) is that, once a determination under s 49 or s 50 has been revoked by the Registrar under either s 54F or s 54H in relation to a responsible person, s 51 does not apply in relation to that person.
Question 4
Question four is asked on the basis that s 53(1)(c) does not prevent the application of s 51 in relation to a responsible person. If the Tribunal agrees with the factual findings made by the delegate, the Registrar accepts that on its face, s 53(1)(c) does prevent the application of s 51 in relation to both Ms Fountaine and Mr Oldfather. That is because the Tribunal would need to revoke the determinations in respect of the change of care notified to the Registrar by Ms Fountaine on 9 February 2022 under s 54F. As such, s 53(1)(c) would apply.
In any event, the Registrar submits that there is no inconsistency between s 54B and s 54C. Section 54B applies if a determination of a responsible person’s percentage of care for a child is made under s 49 or s 50 and, relevantly, s 51 did not apply in relation to the responsible person (s 54B(1)(a)). Where s 54B applies, the percentage of care applies to each day in a child support period on and from the “application day” until, relevantly, the determination is revoked under Subdivision C (s 54B(1A)). The “application day” is, relevantly, the day that begins immediately after the revocation of the determination referred to in s 49(1)(b)(i) or s 50(1)(b)(i) (s 54B(2)(c)(ii)). Thus, s 54B applies to a child support period commencing immediately after a child support period covered by a determination that has since been revoked.
Section 54C applies where a determination of a responsible person’s percentage of care for a child is made under s 49 or s 50, two percentages of care are determined for the purposes of s 51(2) in relation to a responsible person, and the determination is not suspended (s 54C(1)). Where s 54C applies, until the determination has been revoked or suspended the percentage of care referred to in s 51(3) applies to each day in a child support period that occurs in the interim period for the determination and the percentage of care referred to in s 51(4) applies to each day in a child support period that does not occur in the interim period for the determination (s 54C(2)). Section 54C applies in respect of a child support period covered by a determination to be made.
Tribunal’s Order dated 20 June 2023
Question 1(a)(i)
[Does the Registrar agree that the pre-existing care percentages of 65% to Ms Fountaine for each of the children continue to apply in the assessment, by virtue of s 54B of the Child Support (Assessment) Act 1989 (the Act), until they are revoked (which, based on the findings in the objection decision, will be on 28 January 2020?)]
The Registrar agrees that the pre-existing care percentage of 65% to Ms Fountaine for each of the children continued to apply in the assessment, by virtue of s 54B of the Assessment Act, until the determination of that care percentage was revoked – that is, until the date on which revocation took effect.
In respect of the change of care that was found to have occurred on 29 January 2020 (notified to the Registrar on 1 December 2021), this led to a revocation of the pre-existing determination of 65% for Ms Fountaine which was given effect from 28 January 2020 by virtue of s 54F(3)(b)(ii).
Question 1(b)(i)
[Is the Tribunal required to make new determinations of Mr Oldfather’s and Ms Fountaine’s percentages of care for [Child 2] and [Child 1] in respect of the change in care that occurred on 6 February 2019?]
15.The Registrar submits that if the Tribunal agrees with the findings of fact made by the delegate in the objection decision (delegate) regarding the change of care that occurred on 6 February 2019, then it is required to revoke the determinations in respect of the care percentages of both Mr Oldfather and Ms Fountaine under s 54F(1). It will then be required to make new care determinations under either ss 49 or 50. The date of effect of the revocations will be dictated by s 54F(3). The determination for Ms Fountaine will be revoked from 8 February 2022: s 54F(3)(b)(i). The determination for Mr Oldfather will be revoked from 5 February 2019: s 54F(3)(b)(ii).
Question 1(b)(ii)
[Does section 51 of the Act apply in respect of the new determinations for both parents?]
If the Tribunal agrees with the factual finding of the delegate, the Registrar accepts that based on the construction of s 53(1)(c) detailed at paragraph [6] above, s 51 does not apply in respect of either of the new determinations for the parents.
Question 1(b)(iii) – (iv)
[Is the Tribunal required to determine two percentages of care in respect of those determinations, pursuant to subsections 51(3) and 51(4) of the Act?
In respect of determinations made under subsection 51(4) of the Act, does the Registrar agree that, applying the findings made in the objection decision, those determinations would be that Mr Oldfather has 0% care and Ms Fountaine has 100% care of both children?]
17.The Registrar submits that these questions do not arise given the effect of s 53(1)(c).
Question 1(b)(v)
(If the answer to any of these questions (1(b)(i) to (iv)) is no, please explain the legislative basis for that answer.)
The legislative basis for the Registrar’s acceptance that s 51 would not apply in respect of either parent is the plain reading of the text of s 53(1)(c), as detailed at paragraph [6] above.
Question 1(c)(i)
[Does the Registrar agree that s 54C of the Act applies?]
For the reasons given above, the Registrar accepts that s 51 would not apply in the circumstances of this case. It follows that s 54C would not apply in relation to either parent.
In a different scenario where s 51 could apply and the Tribunal was consequently required to determine two percentages of care pursuant to s 51(3) and s 51(4), then s 54C would apply.
Question 1(c)(ii)
[Does the Registrar agree that, pursuant to s 53A of the Act, the “interim period for the determination” is the period from 6 February 2019 to 6 August 2019, if the findings of fact in the objection decision are accepted?]
If s 51 could apply and the Tribunal agrees with the delegate’s factual findings, then the interim period for the determination would be the period from 6 February 2019 to 6 August 2019 pursuant to s 53A.
Question 1(c)(iii)
[Is it the Registrar’s view that the effect of section 54C of the Act is that the care determinations made pursuant to subsection 51(3) of the Act apply in the assessment during the “interim period for the determination”, and if so, is that the period defined in s 53A of the Act?]
The Registrar submits that the effect of s 54C(2)(a) (in a case in which s 51 applies) is that the care determination made pursuant to s 51(3) will apply to each day in the interim period for the determination. The interim period for the determination is the period defined in s 53A.
Question 1(c)(iv)
[Is it the Registrar’s view that the effect of section 54C of the Act is that the care determinations made pursuant to subsection 51(4) of the Act – i.e. 100% to Ms Fountaine and 0% to Mr Oldfather – will apply to the assessment for each day that does not occur within the “interim period for the determination”?]
The Registrar submits that the effect of s 54C(2)(b) (in a case in which s 51 applies) is that the care determination made pursuant to s 51(4) would apply to each day in the child support period that does not occur within the interim period for the determination.
Question 1(c)(v)
[Is it therefore the case that, applying subparagraph 54C(2)(b) of the Act, the care determinations of 100% to Ms Fountaine for each of the children will apply in the assessment from 7 August 2019, since that appears to be the first day in the child support period that does not occur within the interim period for the determination?]
The Registrar does not consider this question to arise given the Registrar’s acceptance that s 51 would not apply and therefore s 54C would not apply in relation to Ms Fountaine.
Question 1(c)(vi)
[If the answer to any of these questions (1(c)(i) to (v)) is no, please explain the legislative basis for that answer.]
25.The Registrar has provided the legislative basis for her position in relation to questions 1(c)(i)-(v) above.
Question 1(d)
[If the Registrar’s answers to questions (1)(a)(i) and (1)(c)(v) are both yes, what, in the Registrar’s view, is the percentage of care that should apply for Ms Fountaine in respect of the two children in the period from 7 August 2019 to 28 January 2020, and why?]
This question is asked on the basis that the Registrar’s answer to question 1(c)(v) is “yes”. As detailed above, the Registrar accepts that s 54C would not apply to Ms Fountaine.
However, if the Tribunal agrees with the findings of fact made by the delegate then the Registrar submits that percentage of care that should apply for Ms Fountaine in the period from 7 August 2019 to 28 January 2020 is 65% for both children. That is because the pre-existing determination of 65% care for both children was not revoked until 28 January 2020. Ms Fountaine’s percentage of care reduced from 100% to 86% on 29 January 2020. Accordingly, pursuant to s 54F(3)(b)(ii), the revocation of the determination took effect from the day before the change of care day, which was 28 January 2020. The pre-existing determination of 65% therefore remained in effect until 28 January 2020 pursuant to s 54B(1A).
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