Pardoe and Yeates (Child support)

[2023] AATA 1649

Pardoe and Yeates (Child support) [2023] AATA 1649 (8 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC025138

APPLICANT:  Mr Pardoe

OTHER PARTIES:  Child Support Registrar

Ms Yeates

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  8 May 2023

DECISION:

The decision under review is varied so that the existing percentage of care determination of 38% to Mr Pardoe is revoked from 25 October 2021 and replaced with a new percentage of care determination of 44% applying from 26 October 2021.

(This means that the application for review is successful.)

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 – decision under review varied

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Pardoe had previously been recorded by Child Support as having 38% care of [Child 1] for child support liability purposes, with Ms Yeates recorded as having 62%.

2. Child Support decided that care changed on 26 October 2021 with care of [Child 1] changing to 44% to Mr Pardoe and 56% to Ms Yeates. Child Support further concluded that Mr Pardoe notified the change of care on 5 August 2022, more than 28 days after the change of care was found to have occurred on 26 October 2021, and therefore the recorded increased percentage of care determination from 38% to 44% to Mr Pardoe applied from 5 August 2022 (the date of notification). However, the recorded decreased percentage of care determination from 62% to 56% to Ms Yeates applied from 26 October 2021 (the date of the care change); a decision affirmed by a Child Support objections officer on 30 October 2022.

3. At issue is whether Mr Pardoe notified the change of care within 28 days of 26 October 2021 on 18 November 2021, when he provided a copy of a new 26 October 2021 Court Order in relation to care to Child Support or whether the change of care was notified on 5 August 2022.

4. On 25 November 2022, Mr Pardoe lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating:

1. I advised Services Australia of the change in care arrangements by uploading a copy of the Court Order on 18 November 2021. Services Australia acknowledges receipt of that document which specified the change in care.

The mother has acknowledged to Services Australia that the change in care took effect from that date.

I submit that Services Australia has erred in not adjusting the care percentages from that date and claiming that they decide when the Court Order takes effect.

It was only on follow up by me that I discovered that they had not implemented the correct date.

2. The letter dated 30 October 2022 from Services Australia states under Details of Objection Decision that the objection is allowed - this is at variance with page 2 that states the decision has been disallowed.

It also states that the change in care for the mother applies from 26 October 2021 but the change in care for the father from 5 August 2022 as Services Australia was not notified within 28 days of the date the care changed. This is at variance with 1. above (page 3 of the letter dated 30 October 2022) where Services Australia acknowledge receipt of the Court Order effecting the change.

3. The letter dated 30 October from Services Australia on page 3 refers to [Child 1 name variant] - I question the accuracy and competency of the review.

1. The hearing of the application was held on 8 May 2023. Mr Pardoe and Ms Yeates both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Pardoe and Ms Yeates and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 136).

Did Mr Pardoe notify the change of care within 28 days of 26 October 2021 on 18 November 2021, when he provided a copy of a new 26 October 2021 Court Order in relation to care to Child Support or on 5 August 2022?

1. The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H with section 54F, as is relevant to the circumstances of the relevant change of care before the Tribunal, providing in subsection (3) for the date of effect of revocation of pre-existing percentage of care determinations and section 54B providing for the consequential date of application of the new percentage of care determinations. Section 54F relevantly provides as follows:

   54F(1)   The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) for a child made under section 49 or 50 if:

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

   …

   54F(3)   The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)the responsible person's care of the child has reduced--the day before the change of care day.

3. Section 54B then effectively provides that the new percentage of care determinations apply from the day after the revocation dates for the pre-existing percentage of care determinations.

10.  It is not in issue that on 18 November 2021, Mr Pardoe provided Child Support with a copy of a new Court Order dated 26 October 2021 in relation to the care of [Child 1].

11.  On 30 November 2021, Child Support sent an SMS message to Mr Pardoe asking that he call Child Support as it needed to talk to him about his child support details.

12.  On 2 December 2021, Child Support called Mr Pardoe and made contact with him. Mr Pardoe advised that he was in a meeting, couldn’t talk and would call back on the following Monday. Child Support offered to send Mr Pardoe an SMS message with the phone number to call. Mr Pardoe accepted that offer and the SMS was sent.

13.  On 5 August 2022, Mr Pardoe next contacted Child Support and referred Child Support to the Court Order of 26 October 2021 that he provided on 18 November 2021 and confirmed that care of [Child 1] had been occurring in accordance with the Court Order since 26 October 2021.

14.  The question therefore to be determined by the Tribunal is when Child Support was notified or otherwise became aware that the care of [Child 1] that was actually taking place from 26 October 2021 did not correspond with Mr Pardoe’s existing percentage of care of 36% for [Child 1]. Mr Pardoe contends that this occurred on 18 November 2021, within 28 days of 26 October 2021, when he provided Child Support with a copy of the new 26 October 2021 Court Order.

1. The Tribunal discussed with Mr Pardoe and Ms Yeates at hearing that one way of assessing matters was that Child Support became aware on 18 November 2021 that a new Court Order relating to the care of [Child 1] was made on 26 October 2021 but that it was not until 5 August 2022 that Child Support was notified or became aware that the actual care of [Child 1] had changed pursuant to the Court Order. The Tribunal noted that there can be circumstances in which a Court Order in relation to care may be made but actual care does not occur pursuant to that Court Order for whatever reason. At hearing, the Tribunal noted that it had not reached a conclusion either way in relation to such a contention and wished to obtain Mr Pardoe’s and Ms Yeates’s response or comments to such a conclusion prior to reaching a decision.

16.  Mr Pardoe submitted that it was apparent on the face of the 26 October 2021 Court Order that the order was by consent, reflecting that a change in actual care was occurring by agreement of the parties from that date. Further, as was apparent to Child Support, care of [Child 1] had previously occurred pursuant to previous Court Orders.

17.  When invited to make submissions, Ms Yeates noted that she agreed with Child Support’s decision but otherwise had no submissions to make. She agreed that the actual care of [Child 1] had changed from 26 October 2021 pursuant to the Court Order of that date. Ms Yeates also raised that she found the court processes and the Tribunal process very traumatic. The Tribunal acknowledged Ms Yeates’s position at hearing in this regard but noted that both Mr Pardoe and Ms Yeates had a right to seek review of Child Support’s decision and that there was nothing to suggest that Mr Pardoe’s application was other than a genuine application seeking to exercise his rights to have Child Support’s decision reviewed.

1. Having had regard to all of the evidence, the Tribunal is satisfied that the actual pattern of care of [Child 1] changed on 26 October 2021 and that the appropriate care period is 12 months from 26 October 2021. Further, the Tribunal is satisfied, based on the evidence, that the pattern of care of [Child 1] from 26 October 2021 was pursuant to the Court Order of that date, 162 nights to Mr Pardoe and 203 nights to Ms Yeates. This equates to 44% to Mr Pardoe and 56% to Ms Yeates.

2. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and section 54G does not apply and section 51 does not apply or no longer applies.

3. 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%

1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care 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 (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available, and the change in care was notified within a reasonable period of time. Neither parent’s care reduced to less than 14%. Section 54G therefore does not apply.

2. The percentage of care determinations of 44% to Mr Pardoe and 56% to Ms Yeates do not correspond with the pre-existing percentage of care determinations recorded by Child Support of 38% to Mr Pardoe and 62% to Ms Yeates.

3. A change in care of 44% to Mr Pardoe and 56% to Ms Yeates would change each parent’s cost percentage pursuant to the table in section 55C.

4. Section 51 does not apply.

5. The existing percentages of care of 38% to Mr Pardoe and 62% to Ms Yeates are therefore required to be revoked pursuant to section 54F.

6. Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that Mr Pardoe’s percentage of care for [Child 1] from 26 October 2021 is 44% and Ms Yeates’s percentage of care for [Child 1] from 26 October 2021 is 56% as outlined in the above consideration.

7. As regards the date of effect of the new percentage of care determinations, the date of effect of an increased care percentage depends upon whether the Registrar was notified or otherwise became aware of that change within 28 days of the care actually occurring.

8. Notably, the 26 October 2021 Court Order shows on the face of it that the parties consented to the Order, reflecting that both parties agreed to actual care changing on the basis set out in the Order. Previous care recorded by Child Support for [Child 1] had also been pursuant to a previous Court Order. Further, both parties have confirmed that care has actually been occurring pursuant to the 26 October 2021 Court Order, consistent with their consent order. The Tribunal notes that Child Support attempted to follow up with Mr Pardoe to obtain more information from him following receipt of the Court Order but to no avail as Mr Pardoe did not return the 2 December 2021 call from Child Support. Ideally, in addition to this call, Child Support could have also contacted Ms Yeates to enquire as to the care position and/or pended the care change and sent letters to each party seeking their confirmation of the care change, as is often the practice of Child Support.

9. Having regard to the fact that previous care had been recorded based on a Court Order and that the 26 October 2021 Court Order was clearly by consent, in the circumstances of this particular case, the Tribunal is satisfied that the Registrar was notified of a change in care of [Child 1] on 18 November 2021 when Mr Pardoe provided a copy of Consent Court Orders showing a different care arrangement, by consent, for [Child 1].

10. Pursuant to subparagraph 54F(3)(a), as the change in care was notified by Mr Pardoe on 18 November 2021, within 28 days after the Tribunal has found the change occurred on 26 October 2021, revocation of the pre-existing percentage of care of 38% recorded for Mr Pardoe and the pre-existing percentage of care of 62% recorded for Ms Yeates takes effect the day before the change of care day, that is, on 25 October 2021.

1. Turning then to from when new percentage of care determinations are to apply, pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, new percentage of care determinations of 44% to Mr Pardoe and 56% to Ms Yeates apply from 26 October 2021.

Conclusion

32.  As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

OTHER MATTERS

33.  As discussed with the parties at hearing, the Tribunal in reviewing Child Support’s decision is conducting a fresh review in relation to the change of care notification made by Mr Pardoe and has no role to play in relation to Child Support’s processes. The Tribunal’s decision is made by reference to the relevant legislation and its assessment of the evidence before it. However, the Tribunal acknowledges Mr Pardoe’s concern and confusion because of inaccuracies in the objections officer’s decision; namely, 1) in the 10th paragraph on page 2 of the objections officer’s decision where reference is made to ‘[another name]’ when presumably they are referring to him (Mr Pardoe), 2) in the 6th paragraph on page 3 of the objections officer’s decision where reference is made to ‘[Child 1 name variant]’ rather than ‘[Child 1]’, and 3) in the 9th paragraph on page 3 of the objections officer’s decision where it is stated that the objection is allowed when it was actually disallowed.

DECISION

The decision under review is varied so that the existing percentage of care determination of 38% to Mr Pardoe is revoked from 25 October 2021 and replaced with a new percentage of care determination of 44% applying from 26 October 2021.

(This means that the application for review is successful.)