Rushforth and McCloud (Child support)

[2022] AATA 2109

Rushforth and McCloud (Child support) [2022] AATA 2109 (26 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023263

APPLICANT:  Mr Rushforth

OTHER PARTIES:  Child Support Registrar

Ms McCloud

TRIBUNAL:Member D Cox

DECISION DATE:  26 May 2022

DECISION:

The objections officer’s decision of 8 February 2022 is affirmed.

This means care will continue to be recorded as 44% to Ms McCloud and 56% to Mr Rushforth from 23 August 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of 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. This case is about the care of [Child 1], born 11 February 2008, and [Child 2], born 6 March 2011.

2. Care of [Child 1] and [Child 2] was reflected as 66% care to Mr Rushforth and 34% care to Ms McCloud from 1 February 2021. 

3. The Federal Circuit Court (the court order) made a consent interim order on 23 August 2021.  Relevantly to this appeal the orders said:

   During School Terms the children would live with their Father and spend time with their Mother each alternate week from the conclusion of school, or 5.00pm if a non-school day or home school day on Tuesday until the commencement of school, or 5.00pm if a non-school day or home school day, on the following Monday, with the mother’s time to commence on Tuesday 31 August 2021.

   The orders also set out the pattern of care for school holidays.

4. On 7 September 2021 Ms McCloud notified a change of care event on 23 August 2021 with new percentages of care of the children corresponding to the court order.

5. On 9 December 2021 the decision under review was made to record the care of [Child 1] and [Child 2] as 44% to Ms McCloud and 56% to Mr Rushforth from 26 October 2021.

6. On 14 December 2021 Ms McCloud lodged an objection to the decision of 9 December 2021.

7. On 8 February 2022 an objections officer allowed the objection and determined that care of [Child 1] and [Child 2] would be recorded as 44% to Ms McCloud and 56% to Mr Rushforth from 23 August 2021.

8. On 10 February 2022 Mr Rushforth made an application to the Tribunal for a review of the objections officer’s decision of 8 February 2022.

CONSIDERATION

1. Mr Rushforth and Ms McCloud attended the hearing, which took place by telephone on 26 May 2022.  Both made affirmations to tell the truth.

2. The only relevant matter in contention is the date from which the change of care took effect.

3. Mr Rushforth provided a diary of actual care, which is at pages 97 and 98 of the hearing papers.  After going carefully through that diary Ms McCloud agreed that it accurately reflected the actual nights of care.

4. The schedule showed variations from the pattern of care specified in the court order because there were two periods where Ms McCloud was required to be in isolation for COVID-19 reasons.  This resulted in Mr Rushforth having extra nights of care and Ms McCloud having extra nights which they negotiated to make up for most, but not all, of the shortfall in the actual number of nights Ms McCloud cared for the children.  Ms McCloud said she offered to have more care than she had but that offer was declined.

5. Mr Rushforth told the Tribunal that the court-ordered care commenced on 31 August 2021, as this was the beginning of Ms McCloud’s first period of care under that new arrangement.  However, he believed the law said care should be determined on the basis of actual care, and that because of the disruptions caused by Ms McCloud’s two periods in COVID-19 isolation and the extra nights they negotiated, care in accordance with the court orders did not commence until 26 October 2021.

6. Ms McCloud took the view that care changed on 23 August 2021 when the court orders were made.  Mr Rushforth had care of the children at that time.  The first handover to her, as noted in the court orders, see paragraph 3 of this Decision, occurred on  31 August 2021. The disruptions to the pattern of care, as a result of her two COVID-19 isolations were unavoidable.

7. When Mr Rushforth made his application to the Tribunal for a review of the objections officer’s decision, he gave his interpretation of the legislation that:

   The registrar has two choices for determining care:

   1/ A determination of the percentage of the ACTUAL care that each person provides

   2/ A determination of the percentage (of) care for an Interim period based on a court order rather than the actual care in certain circumstances.

8. The relevant legislation is subsections 50(2) and 50(3) of the Child Support (Assessment) Act 1989 (the Assessment Act) which says:

   (2)  The Registrar must determine the responsible person’s percentage of care for the child during the care period.

   (3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

9. Section 51 of the Assessment Act, which deals with the percentage of care if action is taken to ensure a court order is complied with, applies the court order for an interim period, and it does not postpone its commencement, as Mr Rushforth has proposed to the Tribunal.

10. The Tribunal is making a de novo decision; that is, making the decision anew, or standing in the shoes of the original decision maker.

11. The court order, which is dated and applies from 23 August 2021, is the change of care event. 

12. The court order sets out a care arrangement that is expected and likely to be applied during the new care period starting on 23 August 2021, and which provides the basis for the correct and preferrable decision in applying subsection 50(3) of the Assessment Act.

13. The pattern of care provided by that court order has been adhered to by the parties to the extent that they have been practically able to, given Ms McCloud’s two periods of COVID-19 isolation, and the agreements between the parties to make further modifications to more closely approximate the percentages of care that reflect the orders.

14. The evidence put to the Tribunal by both Mr Rushforth and Ms McCloud is that absent the impediments of COVID-19 isolation, the court orders have been complied with.

15. The Tribunal finds that the objections officer was correct to:

    ·      Allow the objection;

    · Revoke the previous determination on 22 August 2021, pursuant to section 54F of the Assessment Act; and

    · Make a new determination, pursuant to section 50 of the Assessment Act to record the care of [Child 1] and [Child 2] as 44% to Ms McCloud and 56% to Mr Rushforth from 23 August 2021.

DECISION

The objections officer’s decision of 8 February 2022 is affirmed.

This means care will continue to be recorded as 44% to Ms McCloud and 56% to Mr Rushforth from 23 August 2021.