Pether and Jeffress (Child support)
[2024] AATA 4115
•27 September 2024
Pether and Jeffress (Child support) [2024] AATA 4115 (27 September 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/BC028252
APPLICANT: Mr Pether
OTHER PARTIES: Child Support Registrar
Ms Jeffress
TRIBUNAL:Member A Cichy
DECISION DATE: 27 September 2024
DECISION:
The decision under review is affirmed.
CATCHWORDS
CHILD SUPPORT – percentage of care – change of care occurred – children were not made available to father – Tribunal has arrived at the same decision as that of Child Support – decision under review is 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 theChild Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
As relevant to this application, Mr Pether and Ms Jeffress are parties to a care percentage case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009), [Child 2] (born 2010) and [Child 3] (born 2013). This application concerns a single decision of Child Support about the percentage of care determinations for each parent for [Child 1], [Child 2] and [Child 3] used in calculation of the child support liability.
From 9 November 2015, the pre-existing percentages of care applying to the child support assessment for [Child 1], [Child 2] and [Child 3] were 21% to Mr Pether and 79% to Ms Jeffress.
On 1 August 2023, Ms Jeffress contacted Child Support and advised that the care position of [Child 1], [Child 2] and [Child 3] from 31 August 2021 had changed such that she had 100% care of the children.
On 18 January 2024, Child Support decided to revoke the pre-existing percentage of care determinations recorded for each parent for [Child 1], [Child 2] and [Child 3] and record new percentage of care determinations of 100% to Ms Jeffress and 0% to Mr Pether. Notably, as Ms Jeffress notified the change of care on 1 August 2023, more than 28 days after the change of care was found to have occurred on 31 August 2021 (the date of the notification of the change of care), the recorded increased percentage of care from 79% to 100% to Ms Jeffress applied from 1 August 2023. However, the decreased percentage of care from 21% to 0% to Mr Pether applied from 31 August 2021 (the date of the care change).
On 18 January 2024, Mr Pether objected to this decision and, on 18 March 2024, a delegate of the Child Support Registrar disallowed the objection.
On 12 July 2024, Mr Pether lodged an application with the Tribunal seeking an independent review of Child Support’s decision.
A hearing took place on 27 September 2024 with Mr Pether and Ms Jeffress both participating by telephone and giving evidence on affirmation. With Ms Jeffress’s consent, Mr Pether’ partner attended the hearing in order to take notes for Mr Pether, who said he was recovering from shoulder surgery and therefore could not write for himself.
The Tribunal took into account the oral evidence of Mr Pether and Ms Jeffress and the documentary material provided by Child Support to the Tribunal, Mr Pether and Ms Jeffress (pages 1 to 129). Copies of all documents were provided to the parties.
CONSIDERATION
The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and, if so, what new care percentage decision can be made.
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.
The issues to be determined by the Tribunal based on the relevant legislative provisions are as follows:
(a)Has there been a change of care? And, if so,
(b)Should the existing percentage of care determinations be revoked? And, if so,
(c)What are the new percentage of care determinations? And,
(d)What is the date of revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?
Has there been a change in care?
The first issue to be determined is whether the care that was actually taking place from 31 August 2021 corresponded with the recorded percentages of care.
In relation to the facts of the matter as they pertain to the care of the children, the parties are largely in agreement. Mr Pether’ correspondence with Ms Jeffress’s lawyers of 6 December 2021 indicates that (at that time), he had not spent any time with [Child 1] since 29 August 2021, and with [Child 2] and [Child 3] since 27 August 2021. He asserted that Ms Jeffress was withholding the children from spending time with him and not complying with the Orders dated 20 November 2018. In her contact with Child Support on 1 August 2023, Ms Jeffress indicated that the actual care percentages from 31 August 2021 were 100% to her and 0% to Mr Pether.[1] In oral evidence, Mr Pether and Ms Jeffress agreed that Mr Pether had provided overnight care to [Child 1] on 21 August 2021 and at some stage in August 2023, and had seen [Child 1] (but not [Child 2] and [Child 3]) on approximately half a dozen days since 31 August 2021.
[1] Document bundle, page 11
Having taken into account the evidence of Mr Pether and Ms Jeffress, I find that there was a change in the actual care of the children taking place from 31 August 2021 with Mr Pether having no care from that time.
Should the existing percentage of care determinations be revoked?
On the face of it, it would appear that from 31 August 2021 Ms Jeffress’s care percentage for [Child 1], [Child 2] and [Child 3] should be increased to 100% consistent with Ms Jeffress’s actual care of the children from that time.
Existing percentage of care determinations are usually required to be revoked when a change of care occurs and new percentages of care apply. The circumstances in which an existing percentage of care determination may be revoked are set out in sections 54F, 54G and 54H of the Act.
There are, however, provisions of the legislation that allow for the child support assessment to continue to be based on the care that a person should have, but does not. These legislative requirements are set out at section 51 of the Act. At the time of the care change (31 August 2021), the relevant parts of this provision read as follows:
51(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.
If section 51 applies, an “interim care determination” may be made, which essentially assesses the child support based on the care percentages as set out in the care arrangement for an interim period. The Child Support Registrar’s letter to Mr Pether of 18 January 2024 acknowledges his request for such a determination to be made.
Section 53, however, sets out the circumstances in which section 51 may not apply (again, as at 31 August 2021):
Section 51 does not apply in certain circumstances
53(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:
...(c)the Registrar has revoked the determination under section 54F or 54H.
The interpretation of paragraph 53(1)(c) was considered by the Federal Court in the matter of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), and a decision was made on 1 February 2024.
The Court found that ultimately paragraph 53(1)(c), if properly construed, meant that if existing percentage of care determinations are revoked under section 54F or 54H, an interim period under section 51 cannot apply. This means that an interim period will only apply in very limited circumstances, including where it is the first care percentage determination in relation to a responsible person’s care of a particular child (the start of the child support case) or where the previous care determinations are revoked under section 54G of the Act.
Does section 54G apply in this case?
Section 54G will apply where a person is supposed to have care of a child but has no or minimal care despite the other parent making the child available to them, and Child Support is notified of this in a reasonable time:
Determination must be revoked if there is less than regular care etc.
54G(1) If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination ) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)a determination of the other responsible person's percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
In his oral evidence, Mr Pether contended that Ms Jeffress had not made the children available to him since 31 August 2021. Ms Jeffress agreed that she had ceased taking the children to their agreed drop-off location immediately after an incident on 27 August 2021. She further contended that she had notified Mr Pether of the steps he would need to take in order to reestablish relationships with [Child 2] and [Child 3].
Mr Pether gave evidence that although he sought legal advice after his children ceased being made available to him, he did not notify the Registrar or the Secretary of these matters until Child Support contacted him with respect to Ms Jeffress’s report of a change in care, which she made on 1 August 2023.[2]
[2] Document bundle, page 11
Taking into account the submissions and evidence of both parties, the Tribunal is satisfied that the children were not made available by Ms Jeffress to Mr Pether. However, the Tribunal is not satisfied that the change in care was notified to the Registrar, on 1 August 2023, within a reasonable time of the change occurring on 31 August 2021. The requirements of paragraph 54G(1)(d) and therefore section 54G overall are not met.
The Tribunal concludes that section 54G does not apply.
Does section 54F apply in this case?
Subsection 54F(1) provides that the Registrar must revoke a determination of a responsible person’s percentage of care in the following circumstances:
(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; and
(c) section 54G does not apply; and
(d) subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
In circumstances where the Tribunal is required to make a new care determination, this is required to be made under section 49 of the Act where there is no pattern of care of a child or under section 50 of the Act where there is a pattern of care of a child. Both sections 49 and 50 of the Act require the Tribunal to consider the care that a parent or non-parent carer has had, or is likely to have, during a care period. The Child Support Guide at 2.2.1 states that a care period is generally a 12-month period from the day on which the care began or changed, but can be a shorter or longer period in the specific circumstances of some cases. While the Tribunal is not bound by the Guide, it considered that this commentary provides useful guidance in the period of time to be considered by the Tribunal in this matter.
As at 31 August 2021, the care determinations in place were that Mr Pether’ percentage of care for [Child 1], [Child 2] and [Child 3] was 21% and Ms Jeffress’s was 79%. Section 54F of the Act provides that the determinations must be revoked if 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 the responsible person's cost percentage for the child would change if the actual care arrangements were to be taken into account. As Ms Jeffress had 100% care of [Child 1], [Child 2] and [Child 3] from 31 August 2021 and Mr Pether had 0%, and the cost percentages would change if these percentages of care were determined (under section 55C of the Act, the cost percentages would change from 24% to nil for Mr Pether, and from 76% to 100% for Ms Jeffress), paragraphs 54F(1)(a) and (b) of the Act are therefore met.
The Tribunal has already determined that section 54G does not apply in this case, such that paragraph 54F(1)(c) of the Act is also satisfied.
Mr Pether gave evidence that he has not taken legal action to ensure compliance with the prior care arrangement for reasons of expense. There is no evidence before the Tribunal of any other reasonable action that Mr Pether has taken to ensure compliance with the prior care arrangement, such that subsection 54F(2) also applies to him.
The Tribunal concludes that the revocation of the existing care arrangement must therefore be made under section 54F.
What is the effect, if any, of amending legislation enacted in March 2024?
Considering the legislation as it stands today, as a result of the Federal Court decision in CMU23, the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (the amending Act) was enacted. This has repealed paragraph 53(1)(c) of the Act. The commencement date of the amending Act was 29 March 2024. On the face of it, it would seem that this is not of assistance to Mr Pether, as generally the Tribunal must apply the legislation in place at the time that the original decision is made or when the care change occurred.
In considering whether the amending Act may be applied in Mr Pether’ case to provide for an interim care determination, in general the new provisions will only apply to care changes that occurred on or after its commencement on 29 March 2024:
11 Application of amendments—child support
The amendments of the Child Support Act made by this Schedule apply in relation to a determination that is to be or has been made under section 49 or 50 of that Act on or after the commencement of this item if the change of care day for the responsible person, and the child, concerned occurs on or after that commencement.
There are, however, provisions in the amending Act that relate to assessments made prior to its commencement. On this point, the Explanatory Memorandum to the Bill stated, in part:
The Bill will also protect the validity of certain interim period determinations that were made between the commencement of the Protecting Children Act amendments[3] and the commencement of the amendments to be made by this Bill. This is intended to address the risk to past interim period determinations arising from CMU23. This aspect of the Bill minimises the impact on parents and caregivers of children who may otherwise be disadvantaged by having past decisions disrupted.
[3] These were amendments made in 2018
The relevant provision is at section 13 of the amending Act, as follows:
13 Validation of percentage of care determinations—child support
(1) If:
(a) a determination that was made, or purportedly made, in relation to a responsible person for a child in the relevant period under section 49 or 50 of the Child Support Act for the purposes of section 51 of that Act would, apart from this item, be wholly or partly invalid or ineffective only because of the operation of paragraph 53(1)(c) of that Act, as in force in that period; and
(b) the change of care day for the responsible person for the child occurred in the relevant period;
then the determination, and any other decision covered by subitem (2), is as valid and effective, and is taken always to have been as valid and effective, as it would have been had section 53 of the Child Support Act, as amended by this Act, been in force during that period.
The Tribunal interprets this section as providing that, if an interim care determination was in place prior to the change in legislation in March 2024, then it could remain in place and is still preserved even though it was affected by error. That is not, however, the situation here. As the objections officer made the decision that an interim care determination did not apply, there was no such determination in place prior to the change in the legislation.
What are the new percentage of care determinations?
I have found that the actual care of the children occurring from 31 August 2021 corresponds with 0% care to Mr Pether and 100% care to Ms Jeffress and the new percentage of care determinations are therefore 0% and 100% respectively.
What is the date of revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?
In terms of the date of application of the new percentage of care determinations, paragraph 54F(3)(b) provides that if the Registrar or Secretary is notified of the care change more than 28 days after the change of care day, then the determination that increases the care percentage (in this case Ms Jeffress’s care percentage increasing from 79% to 100%) is revoked from the day before the notification and, pursuant to section 54B, application of the new percentage of care determination is from the date of notification, which was 1 August 2023. The determination that reduces the care percentage (Mr Jeffress’s care percentage reducing from 21% to 0%) is revoked from the day before the care change and applies from the date of care change, which was 31 August 2021.
It follows that a new percentage of care determination of 0% to Mr Pether applies from 31 August 2021 and a new percentage of care determination of 100% to Ms Jeffress applies from 1 August 2023.
As the Tribunal has arrived at the same decision as that of Child Support, the decision under review is affirmed.
DECISION
The decision under review is affirmed.
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