Richelieu and North (Child support)

[2019] AATA 4348

Richelieu and North (Child support) [2019] AATA 4348 (7 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016634

APPLICANT:  Ms Richelieu

OTHER PARTIES:  Mr North

Child Support Registrar

TRIBUNAL:  Member S Cullimore

DECISION DATE:  7 August 2019

DECISION:

The decision under review is set aside and a new decision is substituted that the Tribunal refuses to make a new care determination.

The previous care percentages of 50/50 in respect of both children will therefore continue to apply until a new care determination is made.

This means that the application for review is not successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed 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. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Ms Richelieu and Mr North are the parents of two children, now aged 11 and 8.

3. The care percentages were previously fixed at 50% to Mr North and 50% to Ms Richelieu for each child. Those percentages had been in place since 15 November 2015 (for one child) and 1 April 2016 (for the other child).

4. On 19 November 2018 Mr North contacted the CSA and notified that a care change had occurred. He advised that he had 46% care of each child from that day.[1]

   [1] C27

5. On 14 February 2019 a delegate decided to change the care percentages:

   ·     To 56% care to Ms Richelieu and 44% to Mr North, that care change occurring on 16 April 2018; and then,

   ·     To 59% care to Ms Richelieu and 41% to Mr North, that care change occurring on 21 September 2018.[2]

   [2] See further below.

6. Mr North lodged an objection to that decision on 28 February 2019.[3]

   [3] C61

7. On 10 May 2019 an objections officer “part allowed” the objection.

8. The objection decision was that (i) care changed from 21 September 2018 (not from any earlier date); and (ii) the care percentages in respect of the children are 49% to Mr North with effect from 21 September 2018 and 51% to Ms Richelieu with effect from 19 November 2018.[4]

   [4] See C10 onwards.

9. On 30 May 2019 Ms Richelieu sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

10.The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C328.

1. The parents attended the hearing on 7 August 2019 via teleconference and gave evidence and made verbal submissions.

ISSUES

12.The principal issues to be decided by the Tribunal are:

·was there a new pattern of care as at the date of the delegate decision, and if so, from when did it occur; and

·what are the correct care percentages of the parents, and from what date or dates should they be effective in the child support assessment?

CONSIDERATION

The relevant child support law

13.The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (“the Act”).

14.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.

15.The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of the care arrangements.

16.Where there are no court orders or other legally binding arrangements, care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Act.

17.Actual care may be worked out based on the number of nights that the child was or is likely to be in the care of the person: section 54A.

18.The key issue with a change of care is whether a new pattern of care has come into existence or is at least emerging. Mere changes in care do not necessarily add up to a new pattern of care.

19.The Child Support Guide states:

Change in pattern of care

When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.

20.If a care percentage is fixed under section 50, based upon actual care, it applies for each day in a child support period until the determination which fixed that care percentage is revoked: see subsection 54B(1A).

21.Changes to the care percentages are not necessarily reflected in the parents’ cost percentages. A cost percentage is the proportion of the costs of care of a child a parent is deemed to meet via providing care. Cost percentages (not care percentages) are added into the formula for the calculation of child support.

22.If a person has between 48% of care and 52% of care, they have a cost percentage of 50%. A change from say 48% to 50% will therefore not affect the cost percentage.

23.However, if they have more than 35% of care but less than 48% of care, then each percentage point increase in the care percentage is “worth” an increase in 2% to the cost percentage.

24.Section 54F states that if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and changing the care percentages would produce a change in the person’s “cost percentage”, then the Registrar must revoke the old care determination and make a new care determination.

25.Importantly, the Tribunal’s role in care percentage cases is that it may only review the legal correctness of the original care decision, here made on 14 February 2019, based on what evidence was available to the original decision maker, as supplemented by any further relevant material supplied to the objections officer, and of course any further relevant information supplied to the Tribunal itself. Subsequent care changes must be disregarded.[5]

[5] The parents were in fact agreed that there was a new pattern of care from February 2019 onwards, but neither had yet notified the CSA of this.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

26.The Tribunal considered all of the information on the CSA file and the documentary and verbal evidence as presented by the parents to the CSA and the evidence and submissions presented by them to it.

27.As stated above, care was previously recorded as 50/50 equal shared care.

28.Mr North made a care change notification on 19 November 2018. Effectively, he told the CSA that he had less care of the children (46% in lieu of 50%), but only from that day onwards.

29.The CSA undertook quite a detailed investigation and the delegate concluded that care had in fact changed twice, originally from 16 April 2018, when Mr North’s care percentage had dropped from 50% to 44%, and then again from 21 September 2018, when it had dropped further to only 41%.[6]

[6] See C233 onwards.

30.The objection officer decided that Mr North’s care percentage had dropped only 1% – from 50% to 49% – and that this occurred from 21 September 2018, and not from any earlier date.

31.As stated above, the Tribunal must consider and decide whether the delegate’s decision was or was not legally correct as at the time when it was made. Any care changes after the date of the delegate decision should form part of a new decision-making process.

32.The Tribunal considered all of the evidence on the issue of actual care of the children from January 2018 onwards to the date of the delegate decision, which was 14 February 2019.

33.This evidence was in the form of detailed calendars supplied by both parties to the CSA. The calendars supplied by Ms Richelieu are for the period January 2018 to end January 2019 and appear to record what actually occurred. The calendars supplied by Mr North ran from 16 September 2018 to end April 2019, but from 1 March 2019 they are “indicative’ only – they set out anticipated care, and not necessarily what actually occurred.

34.Based upon its own assessment of all of the evidence, in particular the calendar evidence, the Tribunal is not satisfied that any new care regular or consistent pattern of care emerged either in April 2018, or in September 2018, or at all, in the period up to the date of the delegate decision.

35.The parties themselves told the Tribunal that they had been “flexible” in their care arrangements and Ms Richelieu’s evidence was that Mr North’s shift pattern was the reason for this flexibility. The Tribunal accepts that this significant piece of evidence was very likely to be true. The Tribunal noted the evidence that the parents in fact live quite near to each other, but Mr North works for [a company] in a [location] about one hour’s drive from where he lives.

36.The parents and both decision-makers pointed to a four week “cycle” of care arrangements applying in term time, which amounts to some 40 weeks of the year, with Mr North having 3 nights of care for 3 of every 4 weekends in this cycle, and then “making up” for not having the fourth weekend by having two extra nights of care in one of the 4 weeks.

37.That “pattern” (if it existed) would give Mr North 110 nights of care in term time plus 50/50 equal care in school holidays,[7] which would be 42 nights, which would total 152 nights of care, giving him 41% of care.

[7] See below

38.In essence, Ms Richelieu contended that this figure (which would give 59% care to her) was the correct outcome on this review.

39.The calendars show some evidence of such a “four-week cycle” pattern existing (or possibly emerging), but whatever was happening with care throughout 2018, the Tribunal is satisfied that there was not a regular or consistent pattern occurring on any such four week cycle, or on any cycle at all.

40.The actual care that occurred the period January 2018 to February 2019 was that most, but not all, of the care for Mr North was based around weekends or extended weekends, however what occurred in any particular four-week cycle (roughly a calendar month) differs, often markedly, from any other four-week cycle.

41.For example, in May 2018 Mr North had 2 nights of care at the weekend of “week 1” (ie on the nights of 4 May 2018 and 5 May 2018), 2 nights care for the weekend of “week 2”, 1 night of care at the weekend of “week 3”, then he had 4 nights of care starting Thursday 24 May 2018.

42.In June 2018, each parent had equal shared care (15 nights of care each), with no pattern based on any “cycle” at all.

43.In October 2018 Mr North had 5 nights of care from Tuesday 2 October onwards, 2 nights of care during the following week, 3 nights of care at the weekend 19/20/21 October, and then he had another 5 nights of care starting Wednesday 24 October.

44.In November 2018 Mr North had only 1 night of care at the first weekend (ie on the night of 4 November 2018), no care at all for the next weekend, 3 nights of care at the following weekend, then 5 nights of care starting Wednesday 21 November 2018.

45.The Tribunal has concluded that was no regular or consistent new pattern of care, at least in term time, in existence or emerging as at February 2019.

46.As to care during the school holidays, as the Tribunal understood their evidence to the CSA and the calendars, care is about 50/50 if a care period of a school year is used. Each parent had care during half of the January 2018 school holidays and half of the April 2018 school holidays, but Ms Richelieu had care for the whole of the July 2018 and the September 2018 school holidays. To “compensate” Mr North for this, he had care for the bulk of January 2019 school holidays.

47.There is therefore a pattern of care of 50/50 equal care for these periods, based upon a care period of a year; however the lack of a regular and consistent pattern of care in term time means that, in all the circumstances, the Tribunal should refuse to make any new care determination.

48.The result is that the previous care percentages of 50/50 equal shared care should stay in place until any new care determination is made.

DECISION

The decision under review is set aside and a new decision is substituted that the Tribunal refuses to make a new care determination.

The previous care percentages of 50/50 in respect of both children will continue to apply until a new care determination is made.

This means that the application for review is not successful.