Parnell and Bowry (Child support)

[2021] AATA 1282

Parnell and Bowry (Child support) [2021] AATA 1282 (23 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC020575

APPLICANT:  Mr Parnell

OTHER PARTIES:  Child Support Registrar

Miss Bowry

TRIBUNAL:Member C Breheny

DECISION DATE:  23 March 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court ordered 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. Miss Bowry and Mr Parnell are the separated parents of [Child 1], born October 2009 and [Child 2], born June 2013. A child support case has been registered with the (then) Department of Human Services – Child Support (Child Support) since 13 September 2017. Mr Parnell is liable to pay child support to Miss Bowry and since 5 September 2019 this has been on the basis that Miss Bowry had 72% care and Mr Parnell had 28% care of the children.

2. On 9 September 2020, Mr Parnell contacted Child Support and advised that he had 36% care of the children, based on court orders made on 21 August 2020. Miss Bowry did not dispute that there had been a care change and on 17 September 2020, a decision was made that Miss Bowry had 64% care and Mr Parnell had 36% care of the children from 9 September 2020.

3. On 17 September 2020, Miss Bowry contacted Child Support to object to the decision on the basis that she believed Mr Parnell had less than 36% care of the children. On 21 December 2020, a Child Support objections officer decided to allow the objection. The objections officer found that Mr Parnell had 33% care and Miss Bowry had 67% care of the children from 9 September 2020, in accordance with the court orders made on 21 August 2020.

4. On 6 January 2021, Mr Parnell applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 23 March 2021. Miss Bowry and Mr Parnell attended the hearing by conference telephone and gave evidence on affirmation. A representative of the Child Support Registrar did not attend the hearing. I had before me the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 25 January 2021 (documents numbered 1-100). I also considered additional evidence provided by Mr Parnell, marked A1-A8.

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children and on the basis that section 51 does not apply in the particular case. Section 51 of the Act provides that a care determination may be made (known as an ”interim care determination”) if court orders specifying care arrangements are not complied with and the parent with reduced care takes “reasonable action” to have the court order complied with. 

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act 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. In this case, records indicate that child support liability had been calculated on the basis that Miss Bowry had 72% care and Mr Parnell had 28% care of the children since 5 September 2019 (folios 90 and 92). Records also show that Mr Parnell contacted Child Support on 9 September 2020 (folio 15) to advise that he previously had 104 nights per year care of the children, but now had an extra seven nights for each of the four school holiday periods. Mr Parnell told Child Support that the care pattern established by the court orders was that he had care four nights per fortnight throughout the year, plus an additional seven nights for each of the school holidays, a total of 132 nights or 36%.

Mr Parnell’s evidence

1. Mr Parnell stated that he previously had care of the children on a regular basis for four nights each fortnight (i.e. 104 nights or 28%). He always had additional care of the children in the past and the court orders were made to formalise his additional care over the school holiday periods.

2. Mr Parnell submitted that his actual care of the children is much higher than 36%. He provided a calendar record, which indicates that in the 163 day period from 22 August 2020 to 31 January 2021 he had 78 nights (47%) care of [Child 1] and 71 nights (43%) care of [Child 2] (folio A6). Mr Parnell noted that the children are happy to spend a lot of time with him and he encourages this, because it is in the children’s best interest.

3. Mr Parnell said that he was unaware of the different care percentage/cost percentage levels and how they affect child support liability or family tax benefit payments. He agreed that the additional care now probably “puts him in a higher cost percentage bracket”, but he also bears a lot of the costs for the children and he recently applied for family tax benefit payment to assist with his expenses.

Miss Bowry’s evidence

1. Miss Bowry agreed that Mr Parnell had some additional care in the school holidays, but he did not have an additional seven nights for each of the school holidays, only an additional five nights. This meant Mr Parnell would have 33% care[1] of the children as provided for by the court orders.

   [1] 26 fortnights at 4 nights = 104 nights, plus 20 nights school holiday care = 124 nights or 33%

2. Miss Bowry stated that the children like to spend additional time with Mr Parnell and so far she has been supportive of this. She was unaware of how this additional time would be accounted for and she is concerned that Mr Parnell’s care percentage should not be 35% or more, as this affects her family tax benefit payments. She cannot afford to have this payment reduced as she uses the money to pay for the children’s extra-curricular activities.

3. Miss Bowry stated that she would stick to the care reflected in the court orders in the future to ensure that her family tax benefit payments are not being affected.

The court orders

1. Miss Bowry provided a copy of the court orders made on 21 August 2020, as part of the objections process (folios 42-47). It indicates the following at Order 4:

   The children shall spend time with Father as follows:

   (a)   During school term, each alternate weekend from 5:30pm Friday until 9:00am or the commencement of school on Tuesday;

   (b)   For at least 7 nights of all 4 school holiday periods unless otherwise agreed to in writing by the Mother and Father; and

   (c)   Any alternative or additional arrangements as agreed between the Mother and Father in writing from time to time.

2. The orders also make specific arrangements for Christmas Day, Father’s Day, Mother’s Day and the children’s birthdays with time equally allocated to both parents.  

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the tribunal considers to be appropriate having regard to all the circumstances of the matter. Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Mr Parnell notified Child Support on 9 September 2020 that his care of the children had changed pursuant to court orders made on 21 August 2020. The most relevant care period would thus be the 12-month period from 9 September 2020 to 8 September 2021. Both parties agreed that Mr Parnell previously had four nights per fortnight (28%) care throughout the year and that he now had additional care in the school holidays.

3. Mr Parnell submitted that he would have (at least) 28 additional care nights (i.e. seven night for each of the four school holiday periods) thus he would have (at least) 132 nights or 36% care of the children. He contended that he actually had even more care of the children, as evidenced by his care calendar. Miss Bowry stated that Mr Parnell’s additional holiday care would be less. It would include, not be additional to, the fortnightly care he already had.

4. It appears that neither parent is quite correct in their interpretation of the court orders. The evidence before me indicates that the court orders clearly distinguish between care during school term and holiday care. Order 4(a) states that Mr Parnell has four nights per fortnight care during school term. The children attend public school in Western Australia. There are four school terms, three mid-term school holidays of two weeks each and six weeks holidays over Christmas.[2] Thus, in accordance with the court orders, Mr Parnell has 80 nights care over the school terms (i.e. 4 x 20 fortnight), plus (at least) 28 nights in the school holidays (7 x 4 school holiday periods), a total of 108 nights or 29%.

   [2] This means there are 40 weeks school term or 20 fortnights and 12 weeks school holidays

5. I note that Mr Parnell’s interpretation of the orders (i.e. four nights per fortnight plus an additional seven nights during school holidays) would result in him having care for 11 out of the 14 nights for each of the mid-term school holidays. Indeed, according to Mr Parnell’s calendar record, his level of care (i.e. 43%-47%) is more akin to a pattern of “six nights per fortnight during school term and half of the school holidays”.[3] This level of care is significantly higher than provided for in the court orders. I am of the view that if the intention was for Mr Parnell to have this level of care, it would have been clearly reflected in the orders.

   [3] 20 fortnights x 6 = 120 nights, plus six weeks school holidays = 42 nights, a total of 162 nights per year or 44%

6. Both Miss Bowry and Mr Parnell agreed, however, that there had been some additional care. Mr Parnell told Child Support on 7 December 2020 that both parties agreed that he would have care of the children from 25 December 2020 to 10 January 2021, a period of 16 nights.

7. I note the objections officer accepted that both parties agreed that there would be some additional care over the Christmas school holiday period and thus added an additional 16 nights to the care stipulated in the court orders to arrive at a care percentage of 124 nights 33%. I agreed with that conclusion based on the evidence provided on 7 December 2020.

8. As noted above, section 50 of the Act assumes that care follows the pattern established by a formal care arrangement, such as court orders and if either parent believes that court orders are not followed they will need to take action to have the orders enforced or amended.

9. Based on the evidence before me I am therefore satisfied that Mr Parnell has 33% and Miss Bowry has 67% care of the children from 9 September 2020 and I affirm the decision under review.

DECISION

The decision under review is affirmed.