RRBK and Child Support Registrar (Child support second review)

[2016] AATA 575

RRBK and Child Support Registrar (Child support second review) [2016] AATA 575 (5 August 2016) 

Division	GENERAL DIVISION
File Number(s)	2015/6811
Re	RRBK
APPLICANT
And	Child Support Registrar
RESPONDENT
And	JXHR
OTHER PARTY

DECISION

Tribunal	Senior Member A Poljak
Date	5 August 2016
Place	Sydney

The decision under review is affirmed.

...............................[sgd].........................................

Senior Member A Poljak

It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

CATCHWORDS

SOCIAL SECURITY – child support – percentage of care – actual care – care period – whether changes to care arrangement affected calculation of nights of care – inconsistent evidence establishing nights of care – no change to cost percentage – decision affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) ss 5(1), 5(2), 50, 54A(1), 54D, 54F, 54G, 54H, 55C

CASES

Parent A and Child Support Registrar and Anor [2013] AATA 562
Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

SECONDARY MATERIALS

The Child Support Guide

REASONS FOR DECISION

Senior Member A Poljak

5 August 2016

1. The applicant and the other party are parents of Child A, who was born in 1999.

2. The applicant seeks review of a decision of the Social Services and Child Support Division of this Tribunal (“SSCSD”) made on 25 November 2015 (“the decision”), setting aside the decision made by an officer of the Department of Human Services (“the Department”) to vary the percentages of care used in the child support assessment for Child A. 

3. The issue before this Tribunal is whether there should be a change to the percentage of care used in the child support assessment and if so, the date of effect of any change.

   BACKGROUND

4. The applicant and the other party arrived at a mediated parenting agreement in respect of Child A in September 2008. The agreement provided for Child A to spend two nights each alternate weekend with the other party during school terms, three weeks in January each year, and one Christmas Eve every alternate year. Although not in the mediated agreement Child A spent a week in each term holiday with the other party. It is not in dispute that this agreement was not always adhered to. There are no court orders in place.

5. The care for Child A was calculated as 276 nights per year with the applicant and 89 nights per year with the other party. The care percentage was therefore calculated as being 76% by the applicant and 24% by the other party.

6. On 19 June 2015, the applicant informed the Department that there had been a change to the care arrangements for Child A in November or December 2014 as a result of changes to the employment of the other party (“the claim”). The care arrangement changed from Child A staying with the other party one weekend a fortnight to one weekend every four weeks.

7. There is dispute between the applicant and the other party about how the changes to the care arrangement affect the calculation of nights of care.

8. On 11 July 2015, the Department decided not to vary the care arrangements on the basis that no evidence had been provided to support the claim.

9. The applicant lodged an objection to the decision on 13 July 2015. An officer of the Department decided on 3 September 2015, that from 19 June 2015 the care percentages of 87% for the applicant and 13% for the other party were to be used in the child assessment for Child A.

10. On 28 September 2015, the other party made an application to the SSCSD for a review of the decision of the Department to vary the care percentages. The SSCSD set aside the decision of the Department. It is the decision of the SSCSD which is under review in these proceedings.

    RELEVANT LEGISLATIVE PROVISIONS AND POLICY

11. Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) includes the formulas used for assessing the annual rate of child support payable by a parent for a child. The respective percentages of care of each parent are necessary when applying the formula for the assessment and calculation of child support under the Act.

12. If a person has a care percentage of at least 14% but less than 35% they have “regular care” as defined by s 5(2) of the Act. Where a parent is assessed to have at least regular care of a child then the child support assessment will reflect that they meet a portion of the cost of the child directly through care. If a parent has regular care of a child then a cost percentage of 24% applies pursuant to s 55C of the Act.

13. If a person’s care percentage is determined to be between 0% and 14% they have below regular care and the cost percentage is taken to be nil.

14. Pursuant to s 50 of the Act, the Registrar is required to determine the responsible person’s percentage of care for a child where they have had, or are likely to have, a pattern of care during a period.

15. Under s 50(3) of the Act, the percentage of care ‘must be a percentage that corresponds with the actual care of the child… that the responsible person has had, or is likely to have, during the care period’.

16. The term “actual care” is not given any specific meaning, although s 54A(1) of the Act provides:

    1The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period. (emphasis added)

17. The term “care period” is given meaning under s 5(1) of the Act by reference to the terms of the sections in which it appears; namely, s 49(1)(a) and (b), and s 50(1)(a) and (b). As can be seen under these sections, a “care period” is not of any fixed duration – it is a period “the Registrar considers to be appropriate having regard to all the circumstances”.

18. The Child Support Guide (“the Guide”), Chapter 2.2, provides that “a care period is generally a 12 month period from the day on which the actual care of a child began or changed”.

19. Although I am not bound to strictly apply the Guide, it should be considered and followed unless there are cogent reasons not to do so: Re Drake v Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634.

20. In this matter, the care arrangement changed around November or December 2014 and the Department was notified by the applicant on 19 June 2015. Accordingly, the care period to be considered in the determination of care percentage for Child A is from 1 December 2014 to 30 November 2015 (“the care period”).

21. If there is determined to be a change in the care arrangements of a child then the earlier determination is to be revoked (s 54F and s 54G of the Act). The date of effect of any revocation of care percentages and the date of change to the percentages used in the assessment of child support depends on when the Department was actually notified or otherwise became aware of the change. Where notification of the change takes place more than 28 days after the change, as is the case here, the revocation takes place from the date that the Department was notified, pursuant to s 54H of the Act.

    EVIDENCE

22. At hearing, the applicant provided to the Tribunal a hand written diary of the other party’s nights of care for 2016. A copy of the diary was also attached to the applicant’s statement dated 27 April 2016, filed with the Tribunal 30 March 2016. Although the care diary for 2016 was admitted into evidence at hearing, I have not taken it into account in making my decision. It is not relevant as it falls outside of the care period.  

23. Both the applicant and other party provided to the Tribunal confidential statements. Neither party have been provided with a copy of the confidential statements and have not had a chance to respond to their content. In the interests of procedural fairness, these statements have been disregarded in the making of this decision.

    PATTERN OF CARE

24. Both the applicant and the other party have provided diaries recording the actual number of nights that Child A stayed with the other party. The applicant also relies on a copy of numerous text messages. On the applicant’s evidence, Child A stayed with the other party for a total of 50 nights during the care period. On the other party’s evidence, Child A stayed with him for a total of 53 nights.

25. The importance of having accuracy in the calculation of nights of care is significant. If 50 nights of care during the care period is accepted, the care percentage would fall below 14%, pushing the other party’s care of Child A from regular to below regular care.  This would result in no cost percentage and cause the child support assessment to be revoked. Alternatively, 53 nights of care would result in a 14% care percentage, maintaining a cost percentage of 24%.

26. It is not possible to reconcile the inconsistencies between the evidence to accurately calculate the nights of care. However, a pattern of care emerges from the evidence and can be seen in the arrangement adopted since December 2014 and the actual care of Child A on a regular and predictable basis during the care period.

27. Although not strictly agreed between the applicant and other party, I am satisfied that the care pattern for Child A’s care since 1 December 2014 is for Child A to spend with the other party two nights every four weeks during school terms, one week in each term holiday and two weeks in January, as well as either 24 or 31 December each year (“the care pattern”). The information provided by the applicant and other party at hearing was consistent in this regard.

28. It is important to highlight that minor departures from the normal care of a child, such as missing a weekend of care due to work or illness, will not constitute a change in the pattern of care, and will not result in a new care determination (Chapter 2.2.1 of the Guide).

29. In Parent A and Child Support Registrar and Anor [2013] AATA 562 the Tribunal said at [33]:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care. (emphasis added)

30. As a pattern of care is established for Child A during the care period, it follows that the percentage of care for Child A must be determined under s 50 of the Act.

31. Having regard to the care pattern, I am satisfied that Child A was, or should have been, in the care of the other person for a total of at least 62 nights during the care period. This calculation is based on two nights every four weeks in a period of 52 weeks, five weeks in total over school holidays and one day over Christmas and New Year. Having regard to any overlap in care when weekends may fall during school holidays, I am satisfied that Child A would be in the other party’s care for at least 54 nights a year.

32. This results in a care percentage of 86% for the applicant and 14% for the other party (applying s 54D of the Act). It follows that there is no change to the cost percentage.

    CONCLUSION

33. For the reasons given above, the decision under review is affirmed.

I certify that the preceding 33 (thirty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

..............................[sgd]..........................................

Associate

Dated 5 August 2016

Date(s) of hearing	12 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services
Other Party	In person