Parham and Parham (Child support)

[2021] AATA 463

Parham and Parham (Child support) [2021] AATA 463 (14 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019197

APPLICANT:  Mr Parham

OTHER PARTIES:  Child Support Registrar

Ms Parham

TRIBUNAL:Member H Schuster

DECISION DATE:  14 January 2021

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – one off block of 100% care – existing percentage of care determinations revoked and new determinations made – 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

BACKGROUND

1. This is a review of a decision made on 29 May 2020 by Services Australia – Child Support acting for the Child Support Registrar (the Registrar) disallowing an objection to a care percentage decision made on 19 December 2019 under which Mr Parham’s care percentage was reduced from 50% for each child to 0% with effect from 3 November 2019.

2. Mr and Ms Parham are the parents of [Child 1] (born 2001) and [Child 2] (born 2003) in respect of whom a child support assessment was in place at the relevant time, though the assessment for [Child 1] ended in December 2019 when [s/he] turned 18.

3. From 7 June 2019 the child support assessment was based on Mr Parham and Ms Parham each providing 50% care to both [Child 2] and [Child 1].

4. On 18 November 2019 Ms Parham advised the Registrar that Mr Parham had left Australia, had last had care of the children on 27 October 2019 and “may be back first week of December 2019” (Folio 11).

5. On 29 November 2019 Ms Parham advised the Registrar that she had 100% care of the children from 3 November 2019 as Mr Parham had left the country to take care of his sick mother and it was not confirmed when he was returning or whether normal care would resume on his return (Folio 12). Mr Parham was given an opportunity to comment.

6. On 17 December 2019 Mr Parham advised the Registrar that he disagreed with the change in care. An officer noted in the phone call that:

   Mr Parham confirmed he has left the country several times for work. Most recently last week. He has the [children] in his care this week in line with 50/50 care change. When questioned as to the dates he was overseas during 03/011/2019 and now Mr Parham refused to answer the question stating he could not remember. When provided time to get this information together Mr Parham refused to do this saying Ms Parham is lying and that he has not missed any care event and has had the [children] week on week off since the 50/50 care decision was made. (Folio 18)

7. On 18 December 2019 Mr Parham told the Registrar that “he was overseas from the 11/11/2019 to the 16/11/2019 and again 25/11/2019 to the 29/11/2019” (Folio 23).

8. Ms Parham stated the children had been in her care from 3 November 2019 until 15 December 2019 when shared care resumed.

9. The Registrar obtained travel records from the Department of Home Affairs, which showed Mr Parham had left Australia on 5 November 2019 and returned on 6 December 2019.

10. On 19 December 2019 an officer, on behalf of the Registrar, determined that from 3 November 2019 Mr Parham’s care percentage was 0% and Ms Parham’s was 100% for both children.

11. On 7 January 2020 the Registrar determined that a second change of care had taken place on 15 December 2019 and that the parents had resumed a care pattern of 50% each from that date.

12. On 22 February 2020 Mr Parham objected to the decision made on 19 December 2019 to record his care as 0% from 3 November 2019. On 29 May 2020 an objections officer disallowed the objection.

13. Mr Parham applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.

14. A hearing was conducted on 27 July 2020. Mr Parham participated by telephone and gave evidence on affirmation.

15. Ms Parham, at her request, did not participate in the hearing. Ms Parham, after being invited to be made a party to the proceeding, had written to the Tribunal on 24 June 2020 stating that she did not wish to be made a party but wanted to give her ‘opinion’ (Folios B1–B3). The Tribunal understands that, in discussion with the registry, Ms Parham clarified she wished to make submissions but did not wish to participate in the hearing. On 29 June 2020 Senior Member Benk made an order adding Ms Parham as a party, permitting her to make submissions as a person affected by the decision. Although Ms Parham did not participate in the hearing, she remains a party to the application.

16. Mr Parham provided additional information to the Tribunal which was directly relevant to the matters in dispute (Folios A1–A8). As a party to the matter, Ms Parham was entitled to have copies of all the material relied upon by the Tribunal to come to a decision. On that basis Mr Parham’s additional information was forwarded to Ms Parham for her information.

1. In addition to the documents provided by each party the Tribunal had regard to the documents provided by the Registrar, Folios 1–149.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act), which sets out how percentages of care in relation to children under a child support assessment must be determined.

2. In order to calculate the amount of child support payable under the child support assessment formula in Part 5 of the Assessment Act, the Registrar must turn his or her mind to the percentage of care each parent has for each child. That care percentage is then converted to a ‘cost percentage’ using formulas set out in section 55C of the Assessment Act. At a care percentage of 50% a person’s cost percentage would also reflect 50%. A care percentage of less than 14% results in a cost percentage of 0%. Conversely, a care percentage of 100% translates to a cost percentage of 100%.

3. A child’s care percentage must be based on the actual care each parent has of a particular child in a care period. The care period is not a fixed length but rather, is a period which the Registrar considers to be appropriate to the circumstances. Most commonly, particularly for school age children, a care period is a 12-month period to take into account the variable effect of school holidays during the year. However, the Act does not prevent the Registrar from considering shorter periods that may better reflect circumstances at a particular time.

4. It is a requirement that the Registrar’s consideration of the care percentage must be based on the actual care, worked out by looking at a pattern of care in a period. The pattern is generally determined on the basis of nights a child spends in one or the other parent’s care. No night can be allocated to more than one person: section 54A of the Assessment Act.

5. Once a care percentage has been determined, the assessment is made on that basis until and unless there is a change of care that makes it reasonable or requires the Registrar to revoke the existing percentage and make a new percentage.

6. Relevant to this case, section 54F of the Assessment Act relevantly states:

   (1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) 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 person’s existing percentage of care for the child; and

   (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; …

7. Following the revocation of a care percentage a new percentage must be determined and used in the assessment.

8. The issues which arise in this case are:

   ·      Whether, from 5 November 2019, the existing care percentages of Mr Parham and Ms Parham should be revoked on the basis that the actual care taking place did not correspond with the parents’ existing care percentages of 50% each.

CONSIDERATION

1. Mr Parham told the Tribunal that he and Ms Parham at all relevant times maintained a week-about arrangement, where they each had care of [Child 2] and [Child 1] in alternate weeks, starting on Sundays. That is, it is well established that until 5 November 2019 the pattern reflected a care percentage of 50% each.

2. Mr Parham’s absence from Australia, as confirmed by immigration records, commenced on 5 November 2019 and ended on 6 December 2019. His care periods would ordinarily have occurred in the weeks starting 3 November 2019, 17 November 2019 and 1 December 2019.

3. Mr Parham told the Tribunal that his elderly mother, who lived in [Country], was seriously ill and he decided to travel overseas to visit her for what would likely be the last time. He wished to take [Child 2] and [Child 1] with him, however Ms Parham did not permit the travel and on that basis he was compelled to travel alone.

4. Mr Parham is employed full time and said he had little paid leave left which would run out by early December, though his employer appears to have been somewhat flexible in the circumstances about providing him with unpaid leave if necessary. He did not intend to remain overseas indefinitely. He conceded, however, that his return date was not entirely fixed, as he did not know how his mother’s illness would progress and whether he would be required to extend his stay. In the event, he returned to Australia before she passed away and then travelled again for a short period in January to attend her funeral. Mr Parham stated on previous occasions, when he had to leave Australia briefly for work he and Ms Parham had made changes to the care arrangement to accommodate these circumstances. Travel records show that Mr Parham travelled overseas for short periods in May, June and July 2019.

5. Mr Parham was critical of the Registrar’s decision to revoke the existing care percentage from 3 November 2019 for what he considered to be an unexpected and one-off departure from the care pattern, which resumed after he returned. He said Ms Parham had misled the Registrar when she advised that she was unaware when he would return.

6. Mr Parham conceded that he had not personally told Ms Parham about his travel dates but rather made arrangements directly with his children and relied on them to communicate the information to their mother. A text message exchange shows that he informed one of his sons on 29 October 2019 that he was, “Leaving next week. Either back late Nov or first week Dec”. Mr Parham could not say when or how Ms Parham became aware of his actual return date. Ms Parham in her submission states she found out his actual return date only on 4 December 2019. The Tribunal finds it ultimately not relevant when Ms Parham knew Mr Parham’s precise return date.

7. It is indisputable that in the period from 5 November 2019 Ms Parham had 100% care of each child which did not reflect the existing care percentages of 50% each. Ms Parham’s notification of a change of care on 18 November 2019 thus invoked at least a consideration of section 54F of the Assessment Act.

8. To revoke a care percentage merely requires that the decision maker be satisfied that actual care does not reflect the current care percentage and that if new care percentages would be determined the cost percentage would change. If so, for the purpose of this case, the Registrar has no choice but to revoke the old care percentages and make a new determination. Significantly, the section doesn’t require the Registrar to consider the reasons for the change in the pattern of care.

9. Changes to a pattern of care are of course common and may be due to circumstances such as illness of the parents or children, school or extracurricular commitments of the children or family crises. If the Registrar were to make a new determination for each minor departure the assessment process would become unworkable.

10. The Act has no specific provisions regarding deviations from a pattern of care. However, the Child Support Guide at 2.2.2 contains policy meant to guide decision makers in determining which departures from a pattern could reasonably be considered to lead to a revocation of the care percentages. Relevant to this case, it contains the following guidance:

    One-off block of 100% care

    Where a parent or carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, either carer may request a new care percentage determination.

    The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

11. The Tribunal is not bound by the Registrar’s policy where it may conflict with the legislation, but would not ordinarily disregard such policy unless there were good reasons to do so. In this case the policy is not prescriptive but sets out a general guide as to consideration of shorter periods over which a pattern is departed from.

12. Mr Parham asked the Tribunal to consider that he was prevented from having the children in his care because Ms Parham had not permitted their travel. That is, if Ms Parham had given consent for the [children] to travel overseas he would have had 100% care for the entire period. Where a person does not have care because they were deprived of such care against their consent, in very limited circumstances an interim care determination may be made, but only where the losing carer is taking active steps to regain such care. In this case, there are two obstacles to making such a determination: the 50% care arrangement was not based on a written parenting agreement or court order, which is a precondition to making an interim determination, and secondly, such a determination can be made only where the losing carer is actively taking steps to regain care.

13. Thus, the Tribunal is left with the question whether, for the purposes of the child support assessment, the Tribunal should consider that a new care period commenced on 3 November 2019, when Mr Parham first failed to have care of the children during his regular care period.

14. The Tribunal finds that Mr Parham did not have actual care of the children for a period from 5 November 2019 until his return from overseas. The Tribunal also finds that the care percentage that best reflected the actual care of the parties from 3 November 2019 was that Mr Parham had no care and Ms Parham had 100% of both children. Although the change of care was precipitated by a family crisis and the prior care pattern resumed on Mr Parham’s return to Australia, the Tribunal is satisfied that it is reasonable and consistent with the policy to make a determination that there was a one-off block of care during which the care percentages should be adjusted. Mr Parham’s absence was over a number of weeks in which Ms Parham was required to shoulder the cost of the children alone.

15. As a change of care percentages from 50% to 0% and 100%, respectively, also changes the cost percentages, the Tribunal finds that the previous care percentages must be revoked under section 54F of the Assessment Act and, from 3 November 2019 new care percentages must be determined.

16. The Tribunal finds, that pursuant to section 49 of the Assessment Act, Mr Parham’s care percentage was 0% and, under section 50 of the Assessment Act, Ms Parham’s care percentage was 100% from 3 November 2019.

17. That is, the Tribunal agrees with the original decision maker and affirms the objection officer’s decision to disallow an objection to a change of care being assessed from 3 November 2019.

18. As noted above, a decision was made in January 2020 that the pattern of 50% care by Mr Parham for both [Child 2] and [Child 1] resumed from 15 December 2019. In this application the Tribunal’s jurisdiction is limited to the decision reviewed by the objections officer, which concerned only the first care decision, made on 19 December 2019. Thus, the January 2020 care decision, which is not before the Tribunal, limits the effect of the Tribunal’s decision in this matter to the period from 3 November 2019 to 14 December 2019.

19. The Tribunal affirms the decision under review and Mr Parham’s application is thus unsuccessful.

DECISION

The Tribunal affirms the decision under review.