Rothman and Naudain (Child support)

Case •

[2024] ARTA 432

•

14 November 2024

Rothman and Naudain (Child support) [2024] ARTA 432 (14 November 2024)

Applicant/s:  Mr Rothman

Respondent:  Child Support Registrar

Other Parties:  Ms Naudain

Tribunal Number:   2024/MC028324

Tribunal:Member F Brady

Place:Adelaide

Date:14 November 2024

Decision:

The Tribunal sets aside the decision under review and in substitution decides:

1.     The existing percentage of care determination in place as at 4 October 2023 should be revoked and substituted with 100% care to Ms Naudain and 0% care to Mr Rothman for the period from 5 October 2023 to 8 November 2023.

2.     The revocation of that percentage of care determination takes effect from 4 October 2023.

3.     The existing percentage of care in place as at 8 November 2023 should be revoked and substituted with 58% care to Ms Naudain and 42% care to Mr Rothman from 9 November 2023 to 19 February 2024.

4.     The revocation of that percentage of care determination takes effect from 8 November 2023.

CATCHWORDS

SOCIAL SECURITY – percentage of care – previous consistent pattern of care – mother sole carer during father’s five-week overseas holiday – dates of notification and effect – 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 omitted from this decision and replaced with generic information pursuant to subsection 201(1A) of the Social Security (Administration) Act 1999.

Statement of Reasons

BACKGROUND

  1. As relevant to this application, Mr Rothman and Ms Naudain are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to their children [Children 1-3], in respect of whom a child support assessment has been in place since January 2017.

  2. Upon commencement of the Child Support case in January 2017, the care percentage was determined on the basis of care being 58% to Ms Naudain and 42% to Mr Rothman. 

  3. From 5 October 2023 until 8 November 2023, Mr Rothman went on a holiday in Europe for his 60th birthday without the children and Ms Naudain was the sole carer of the children.  This was a period of 35 days (or 5 weeks).

  4. In her objection to the decisions, Ms Naudain wanted to take issue with the date of notification of the change in care arrangements.  Child Support had used a date of notification of 26 February 2024.  Ms Naudain asserted that she had notified both Centrelink and Child Support earlier than this, and in any event within 28 days of the change in care arrangements.

  5. The Child Support file confirms that Child Support made a determination on 8 March 2024 to revoke the existing percentage of care, substituting 100% of care to Ms Naudain and 0% care to Mr Rothman for the period he was in Europe.  Child Support also determined on 8 March 2024 that care reverted to 58% to Ms Naudain and 42% to Mr Rothman from 9 November 2023. The Tribunal is to review those determinations of 8 March 2024.

  6. Whilst Ms Naudain had made the original objection, the Application to this Tribunal was made by Mr Rothman on 29 July 2024, as a party affected by the Objection Decision.  In contrast to Ms Naudain’s objection, Mr Rothman takes issue with the decision to change the care percentage at all for the period from 5 October 2023 to 8 November 2023.

  7. Both Mr Rothman and Ms Naudain participated in the hearing via MS Teams video.

  8. There were two sets of hearing papers provided by Child Support that were page‑numbered 1–245.

  9. Ms Naudain provided papers before the hearing that were numbered B1–B5.  She also provided further documents after the hearing numbered B6–B14.

  10. Mr Rothman provided documents prior the hearing that were numbered A1–A2.

  11. Pursuant to a request from the Tribunal under section 95J of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), a bundle of documents was provided by Child Support that they had sought from Centrelink. These documents were numbered C1–C32.

RELEVANT LEGISLATION

  1. The statutory provisions relevant to this review are contained in Child Support (Assessment) Act 1989 (the Act) and the Registration and Collection Act. Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides Child Support, and the Tribunal on review, with rules for assessing and changing care percentage determinations.

  2. 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 as per Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. 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.

  3. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

  4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

  5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that care decisions are to be made on the basis of what has actually happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify Child Support and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

  6. The Registrar must make a determination of the care a parent or non-parent carer is likely to have, or has had, of the child during the relevant care period. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

  7. The Guide relating to the issue of pattern of care at section 2.2.1 suggests that:

    When an application for a child support assessment is received, or a change in care percentage is being considered, the Registrar will ask for information about the care of the child or children. In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

  8. There is also a section of The Guide (at section 2.2.2) relating to a one-off block of 100% care:

    Where a parent or non-parent 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, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make 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.

  9. The legislation provides for revoking pre-existing percentage of care determinations in certain defined circumstances (as set out in sections 54F, 54G and 54H of the Act). Sections 49 and 50 provide for new care percentage determinations to be made only when existing percentage of care determinations have been revoked under sections 54F, 54G or 54H.

  10. Section 54F 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 the change would alter the cost percentage used for a parent in the administrative assessment.

  11. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. There is no time limit on lodging an objection.

  12. However, if an objection regarding a care percentage decision is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to the variation of a determination or a new determination is the date of the lodging of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

  13. Similarly, there is no time limit on a person lodging an application for review with the Tribunal of an objection decision by Child Support relating to the determination of a percentage of care. However, if an application to the Tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the Tribunal’s decision is to vary or substitute a decision on that objection, the Tribunal’s decision only takes effect from the day the application for review was made unless there are special circumstances that prevented the application from being made within that 28‑day period (subsection 95N(2) of the Registration and Collection Act).

THE TRIBUNAL’S JURISDICTION

  1. Child Support seems to have misunderstood Ms Naudain’s original objection.  The Objection Decision suggests that Ms Naudain was objecting to decision(s) made on 20 February 2024. 

  2. The Tribunal observes that there were no decisions made in relation to the October–November 2023 period on that date.  It is clear from the documents and the evidence of the parties that the decisions that Ms Naudain was actually objecting to were the Child Support decisions of 8 March 2024.

  3. In addition to the misidentification of the decisions being objected to, Child Support has incorrectly identified the nature of the Child Support decisions in issue.

  4. Specifically, Child Support appears to have misunderstood the nature of the review as being limited to an objection to the date of effect of the change in care percentage. It is observed that it is not open under the legislation for the Agency to limit their decision‑making to the date of effect of a care percentage decision. The Agency is required to review the entirety of the decision(s) (including whether the pre‑existing care decision should have been revoked at all, under sections 54F, 54G or 54H of the Registration and Collection Act).

  5. As a result of the errors identified above, the Tribunal finds that it is open to the Tribunal to review the entirety of the October–November 2023 changes in care determination decisions made on 8 March 2024.

ISSUES ON REVIEW

  1. The issues to be determined by the Tribunal are as follows:

    (a)Should the pre-existing care determination be revoked to reflect changes in care on 5 October 2023 and 9 November 2023? 

    (b)If so, what should the new care determination(s) be?

    (c)If there is a change of care, what is the date of effect of the decision(s)?

EVIDENCE

  1. Mr Rothman’s evidence was as follows:

    ·Mr Rothman and his partner travelled to Europe for his 60th birthday for the period 5 October 2023 to 8 November 2023.

    ·He advised Ms Naudain of his plans to do so via text message on 13 December 2022.

    ·Mr Rothman confirmed that the care of the children has been consistently at 58% to Ms Naudain and 42% to him since 2017.

    ·Mr Rothman would have the children every Thursday and every Friday and every second weekend.  The school holidays were week on, week off throughout the school year.

    ·Mr Rothman claimed that Ms Naudain has been on holidays in the past to Bali.  He conceded that it was only odd nights.  Mr Rothman agreed that he had not had the children on his own during a time when the children would ordinarily be with Ms Naudain for any length of time (but there were odd nights).

    ·Mr Rothman told the Tribunal but that he would not mind taking the children for a period of time if Ms Naudain wanted to have a holiday or Ms Naudain was unwell.

  2. Ms Naudain’s evidence was as follows:

    ·Ms Naudain agreed that she was advised in December 2022 via e-mail that Mr Rothman intended to travel to Europe for 6 weeks in October and November 2023.

    ·In response to that e-mail, Ms Naudain expressed some concerns to Mr Rothman about his assumption of her having sole care and responsibility for the children during that time.

    ·Ms Naudain’s evidence was that she has never had a block of time away by herself without the children.

    ·She claimed to have gone on a cruise once without the children which was one or two days where Mr Rothman had the children – but claimed that those days were taken into account by swapping care days before or after the holiday.

    ·Ms Naudain had been on holidays to Bali twice since 2017 and had taken the children with her – this had resulted in her encroaching on Mr Rothman’s days with the children and she arranged for him to have make-up days.

  3. The documents provided by Child Support and (later) Centrelink showed the following:

    ·The relevant care determination (relating to the October–November 2023 period) was dated 8 March 2024[1] (rather than 20 February 2024 as suggested in the Objection Decision).

    ·Ms Naudain contacted Centrelink by phone on 11 October 2023.  Ms Naudain was reportedly advised that further information would need to be uploaded (prior to 26 October 2023) before an assessment could be made.[2]

    ·Ms Naudain uploaded an e-mail from a third party, [A], to Centrelink (via MyGov) on 22 October 2023.[3]  That e-mail “To whom it may concern” provided confirmation that Ms Naudain had 100% of the care of the children from 2 October 2023 to 9 October 2023.

    ·The documents confirm that Ms Naudain contacted Child Support on 13 November 2023 via the MyGov portal.[4]  The notes indicate that the information provided was discarded and there was no update to the case as “Information already recorded”.[5]

    ·However, Ms Naudain was sent a form “FA012 – Details of your child’s care arrangements” on 13 November 2023. Ms Naudain was advised to return that to Centrelink by 13 December 2023.[6]

    ·Ms Naudain returned the form “FA012 – Details of your child’s care arrangements” on 13 December 2023.[7]

    ·The decisions made by Child Support on 8 March 2024 regarding the October/November 2023 period refer to a date of notification of 26 February 2024.[8]

    ·In the Centrelink file, on 26 February 2024, it refers to a notification of a later change to 50%/50% care from 20 February 2024.  The parties had advised the Tribunal that they had agreed that they have moved to 50%/50% care from 20 February 2024.

CONSIDERATION

[1] Hearing Papers 34 - 35

[2] Hearing Papers C21 – C22

[3] Hearing Papers C3 - C4

[4] Hearing Papers C23–C24.

[5] Hearing Papers C24.

[6] Hearing papers C25.

[7] Hearing Papers C5–C19.

[8] Hearing Papers 31–33.

  1. Given the comments in relation to jurisdiction above, the Tribunal is to consider Child Support’s decisions to change the care percentage determinations that were dated 8 March 2024.

  2. Under the scheme for determining percentages of care for use in the assessment of child support, existing care determinations continue in effect until such time as they are revoked.

  3. Therefore, the Tribunal is to firstly apply the criteria for revocation of the existing care percentage determination. In this case the relevant section regarding revocation is section 54F of the Act.

  4. Section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

    ·      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 person’s existing percentage of care; and

    ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

  5. Having made those observations, the Tribunal will proceed to review the decision as an asserted change to the care percentage determination from 5 October 2023 and, again, on 9 November 2023.

Should the pre-existing care determination be revoked to reflect changes in care on 5 October 2023 and again on 9 November 2023?

  1. The parties are in agreement regarding the following:

    ·     The pre-existing care percentage of 58% to Ms Naudain and 42% to Mr Rothman. 

    ·     Mr Rothman went to Europe for 5 weeks in October/November 2023, leaving the children in the care of Ms Naudain.

    ·     When Mr Rothman returned from Europe, the care reverted to the pre-existing arrangement of 58% to Ms Naudain and 42% to Mr Rothman.

·     On 23 February 2024, Child Support issued a care percentage decision relating to an agreement between the parties that the care be 50% to Ms Naudain and 50% to Mr Rothman from 20 February 2024. This decision is not under review.  

  1. Before any change to the care determination can be applied, a decision needs to be made regarding whether the pre-existing care determination should be revoked.

  2. The parties’ respective cases are relatively straightforward. No clear dispute arises as to any specific period or periods when the children were in the care of one parent or another. The dispute in this case is in relation to characterising the circumstances as a change to the pattern of care and the date of effect of any change in the determination.

  3. In regard to the change in the pattern of care, Mr Rothman has asserted that his once-off five‑week overseas trip is a short-term minor departure from the pattern of care which does not justify a change in the care percentage for that period.

  4. The initial care determination was made in January 2017. Ms Naudain had 58% of the care of the three children and Mr Rothman had 42% care.  In practice, the care arrangements were Mr Rothman having the children every Thursday and Friday and also every second weekend. All school holidays were split 50%/50%.  According to the evidence of the parties, this was a very stable pattern without any significant deviation over almost 7 years. 

  5. The Guide refers to a one-off block of care ordinarily needing to be at least four weeks in length in order for the Registrar to consider it a change in the pattern of care.  Whilst the policy in the Guide is not authoritative, it provided guidance to the Child Support staff in considering what might constitute a change in the pattern of care.

  1. In this case, the period that Ms Naudain had 100% care of the children was 5 weeks from 5 October 2023 to 8 November 2023.

  2. Having regard to the stability and regularity of the care arrangements of the children (in the almost 7 years leading up to Mr Rothman’s trip) and the lack of history of Mr Rothman or Ms Naudain spending periods of time without caring for the children (for more than a day or two at a time), the Tribunal finds that the care that was actually taking place (100% to Ms Naudain and 0% to Mr Rothman) from 5 October 2023 to 8 November 2023 was inconsistent with the existing care percentage of 58% to Ms Naudain and 42% to Mr Rothman and was a change in the pattern of care.

  3. After Mr Rothman returned from Europe on 8 November 2023, the care reverted back to 58% of care to Ms Naudain and 42% of the care of the children to Mr Rothman.

  4. The next task for the Tribunal, under section 54F of the Act, is to consider whether those changes in the care percentages would result in changes to the cost percentage.

  5. 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. As at 5 October 2023, given that Ms Naudain’s care percentage would go from 58% to 100% and Mr Rothman’s care percentage would go from 42% to 0%, the Tribunal finds that there would be a change in the cost percentage (according to the above table).

  2. Similarly, as at 9 November 2023, given that Ms Naudain’s care percentage would revert back to 58% from 100% and Mr Rothman’s care percentage would go from 0% back to 42%, the Tribunal finds that there would be a change in the cost percentage (according to the above table).

  3. Accordingly, the Tribunal finds that the existing percentage of care determination in place at 4 October 2023 should be revoked as a result of a change in the actual care taking place (and a resultant change in the cost percentage).  Further, the Tribunal finds that the percentage of care determination should be substituted with 100% care to Ms Naudain and 0% care to Mr Rothman from 5 October 2023 to 8 November 2023.

  4. Furthermore, the Tribunal finds that the existing percentage of care in place as at 8 November 2023 should be revoked as a result of a change in the actual care taking place (and a resultant change in the cost percentage) and substituted with 58% care to Ms Naudain and 42% care to Mr Rothman from 9 November 2023 to 19 February 2024.

  5. Under subsection 54F(3) of the Act, the date of effect of the revocation also needs to be determined by the Tribunal.

  6. Documents received from Centrelink after the hearing confirm that Centrelink received a phone call from Ms Naudain on 11 October 2023 regarding a change in care arrangements.[9]  Upon Centrelink’s request, Ms Naudain sent supporting information (on 22 October 2023)[10] in the form of an e-mail where a third party ([A]) had confirmed the changed care arrangements. 

    [9] Hearing Papers C21 – C22

    [10] Hearing Papers C3 – C4

  7. On 13 November 2023, Centrelink did not take updated details provided by Ms Naudain regarding the care change because “Information already recorded”.[11]

    [11] Hearing Papers C23

  8. The Tribunal finds that the Registrar became aware of the change in the care arrangements on 22 October 2023.

  9. Specifically, the Tribunal finds that (pursuant to subsection 54F(3)(a) of the Act) the date of effect of the respective revocations (outlined in paragraphs 52 and 53 above) is the day before the change to the respective care arrangements (i.e. on 4 October 2023 and 8 November 2024).

Given the care determinations are to be revoked, what should the new care determination(s) be?

  1. As the care determination has been revoked, the Tribunal considered section 50 to be the relevant section of the Act to determine the appropriate new care percentage. Under section 50, to make a new determination the Tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for the children.

  2. As the Tribunal is satisfied that the existing determination made under section 50 of the Act to attribute care at 58% with Ms Naudain and 42% with Mr Rothman should be revoked under section 54F of the Act, the Tribunal changes the care percentage determination to be as follows:

    ·Ms Naudain with 100% care and Mr Rothman with 0% care from 5 October 2023 to 8 November 2023.

  3. As the Tribunal is satisfied that the existing determination made under section 50 of the Act to attribute care at 100% with Ms Naudain and 0% with Mr Rothman should be revoked under section 54F of the Act, the Tribunal changes the care percentage determination to be as follows:

    ·Ms Naudain with 58% care and Mr Rothman 42% care from 9 November to 19 February 2024.

DATE OF EFFECT OF THE OUTCOME OF THIS REVIEW

Date of Effect – Section 95N

  1. Under subsection 95N(1) of the Registration and Collection Act, if an application for review to the Tribunal is made more than 28 days after notice of the objection decision and a decision is made by the Tribunal to vary or substitute the care percentage decision, that decision takes effect on and from the date the application for review was made.

  2. However, the Tribunal may, if there are special circumstances that prevented the application for review being made within the relevant period, make a determination under subsection 95N(2) of the Registration and Collection Act that paragraph 95N(1)(b) applies as if the reference to 28 days is a reference to such longer period as the Tribunal determines to be appropriate.

  3. The Objection Decision was made on 11 July 2024.

  4. Mr Rothman lodged his application for a review by the Tribunal on 29 July 2024.

  5. Accordingly, the application was lodged within the 28 days allowed under the Registration and Collection Act.

67. Thus, the date of effect of the Tribunal’s decision is unaffected by the application to the Tribunal as per paragraph 95N(1)(b) of the Registration and Collection Act.

OTHER MATTERS

  1. The Tribunal noted that there has been a subsequent care notification made in February 2024 which is subject to separate review rights.

DECISION

The Tribunal sets aside the decision under review and in substitution decides:

1.   The existing percentage of care determination in place as at 4 October 2023 should be revoked and substituted with 100% care to Ms Naudain and 0% care to Mr Rothman for the period from 5 October 2023 to 8 November 2023. 

2.   The revocation of that percentage of care determination takes effect from 4 October 2023.

3.   The existing percentage of care in place as at 8 November 2023 should be revoked and substituted with 58% care to Ms Naudain and 42% care to Mr Rothman from 9 November 2023 to 19 February 2024.

4.   The revocation of that percentage of care determination takes effect from 8 November 2023.

Date(s) of hearing: Thursday, 3 October 2024
Representative for the Applicant: Not Applicable
Representative for the Other party:

Not Applicable

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