Pace and Pace (Child support)

[2020] AATA 4774

Pace and Pace (Child support) [2020] AATA 4774 (2 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019672

APPLICANT:  Mr Pace

OTHER PARTIES:  Ms Pace

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  2 October 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

1. Mr Pace and Ms Pace are the parents of [Child 1] and [Child 2] who were born in 2004. In 2013 a child support case was registered with what is commonly called the Child Support Agency, or CSA. Ms Pace was recorded as providing 38% care to both children. Mr Pace has always been recorded as providing the balance of care and, for convenience, I will predominantly refer to Ms Pace’s care.

2. On 4 April 2017 the Federal Circuit Court made new orders concerning the parents’ care of the children (“the Orders”). Broadly speaking, Ms Pace was to provide five nights of care per fortnight during school terms, and during school holidays she was to provide care during the first half of the holidays in odd numbered years and the second half of the holidays in even numbered years.

3. On 22 January 2020, Mr Pace informed the CSA that there had been a change in care on 1 January 2020. He said the change in care occurred pursuant to the Orders. On 3 February 2020 he provided a copy of the Orders to the CSA. Neither parent had previously provided a copy of the Orders. The CSA decided to not record a change in care from 1 January 2020. An objections officer disallowed Mr Pace’s objection to that decision. Mr Pace applied to the Tribunal for further review. I heard the matter on 2 October 2020. Mr Pace and Ms Pace gave sworn evidence by conference phone.

4. Meanwhile, on 1 June 2020, the CSA concluded that there had been a change in care on 4 April 2017 when the Orders were made. It also concluded that, broadly speaking, Ms Pace provides five nights of care per fortnight during school terms as well as providing care during half of the school holidays pursuant to the Orders. It made a care decision based on those conclusions. Mr Pace objected to that decision. An objections officer has not yet made a decision in respect of that objection.

5. At the hearing, Mr Pace said the Orders do not provide for a pattern of care whereby, broadly speaking, Ms Pace provides five nights of care per fortnight during school terms as well as providing care during half the school holidays. He said the Orders result in a different pattern of care each calendar year, depending on who provides care during the second half of the Christmas school holidays (i.e. the start of the calendar year), and the first half of the following Christmas school holidays (i.e. the end of the same calendar year).

6. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Decision-makers are required to determine the pattern of care each parent has had, or is likely to have, during such period (“the care period”) as the decision-maker considers appropriate having regard to all the circumstances: section 50 of the Act. According to departmental policy, a care period is generally a 12-month period commencing on the day on which the actual care of a child began or changed: 2.2.1 of the Child Support Guide. However, the Act requires a decision-maker to determine what is appropriate in any given case. The appropriate care period will be the period that results in a percentage of care that fairly reflects the parents’ general pattern of care.

7. Mr Pace made submissions as to why the appropriate care period would be a 12-month period commencing on 1 January 2020.

8. First, Mr Pace said the parents’ pattern of care had always been assessed on a 12-month period commencing on the start of the calendar year. That is not correct. If it were correct, one or both parents would have contacted the CSA at the start of each calendar year to notify it of a change in care, and a new care decision would have been made in respect of each reported change in care. That did not occur. A child support case was registered in 2013 and, at the time, the CSA was informed of the parents’ pattern of care. Neither parent reported a change in care until Mr Pace claimed that a change in care occurred on 1 January 2020.

9. Second, Mr Pace said he incurs direct costs in respect of the children while they are in his care at the start and the end of 2020, and it is therefore appropriate to record Ms Pace as providing less care during that calendar year, and consequently requiring him to pay less child support to Ms Pace during that calendar year.[1] In my opinion, the better analysis is to observe that, in respect of any given holiday, each parent provides care, and incurs the associated direct costs in respect of the children while they are in their care, during half of the holiday, so that by the end of the holiday, each parent has incurred their respective direct costs.

   [1]Mr Pace provides more care than Ms Pace, but he has a significantly higher income than Ms Pace, and he is the payer of child support.

10. On one view, which appears at times to have been the CSA’s view, the appropriate care period is a 24-month period commencing on 1 January 2020 (or 1 January of some other year). The idea is that by choosing a 24-month period, each parent’s start-of-holiday care and the end-of-holiday care is properly taken into account. In my respectful opinion, that is an unnecessarily complicated methodology. A simpler approach is to choose a 12-month period that does not commence during a school holiday, e.g. the 12‑month period commencing on 1 November 2019. During such a care period, Ms Pace will provide five nights of care per fortnight during school terms as well as half of the school holidays, and Mr Pace will provide the balance of care. In other words, such a care period will fairly reflect the parents’ general pattern of care.

11. As noted earlier, the CSA made a decision on 1 June 2020 which was based on the general pattern of care that has been provided pursuant to the Orders since they were made in April 2017. Mr Pace has objected to that decision. An objections officer will make a decision in due course. If either parent disagrees with that decision, they will have further review rights to this Tribunal.

12. Subject to one qualification, the parents’ pattern of care pursuant to the Orders has not changed since the Orders were made. That qualification is that at the end of 2019, the children started their Christmas holidays two weeks earlier than usual because they were in Year 10. They will start their next Christmas school holidays two weeks earlier than usual, and they will end Year 12 three weeks earlier than usual. Ms Pace’s care during school terms equates to 5 / 14 = 35% (rounded down), and her care during school holidays equates to 50%. It is arguable that a change in care occurred when the children started having more school holidays, and consequently less weeks of school. However, two additional weeks of holidays means that Ms Pace provides seven nights of care rather than five nights of care during those two weeks; it is a difference of two nights. I made those observations during the hearing. I also explained that not every minor variation to an existing pattern of care constitutes a new pattern of care. Ms Pace stated that, in her opinion, a change in care had not occurred as a result of that slight change, and I agree. For those reasons, the decision to not record a change in care from 1 January 2020, or thereabouts, was correct and will be affirmed.

DECISION

The decision under review is affirmed.