Rushforth and Rushforth (Child support)

[2024] AATA 1886

Rushforth and Rushforth (Child support) [2024] AATA 1886 (22 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/DC027477

APPLICANT:  Mr Rushforth

OTHER PARTIES:  Child Support Registrar

Ms Rushforth

TRIBUNAL:Member I Sheck

DECISION DATE:  22 April 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, determines that Mr Rushforth’s and Ms Rushforth’s percentages of care for [Child 1] and [Child 2] are each 50% effective in the assessment from the start date of liability, 28 August 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – changed pattern of care – ground for departure – altered care arrangements – 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 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. Mr Rushforth and Ms Rushforth are the parents of [Child 1], born [in] August 2008 and [Child 2], born [in] December 2009.  A case was registered with Services Australia – Child Support (Child Support) for the assessment of child support and collection of the liability on 28 August 2023.  On 23 October 2023 a Child Support officer decided to accept the application for assessment and base the assessment of child support on care percentages for [Child 1] and [Child 2] of 100% to Ms Rushforth and 0% to Mr Rushforth. 

2. On 13 November 2023 Mr Rushforth objected to the decision of 23 November 2023 on the basis that he provided 50% care of both of the children.  Both parties provided evidence regarding the care arrangements of the children.  On 30 January 2024 an objections officer of Child Support reviewed the original decisions.  The objections officer affirmed the decision that Mr Rushforth had 0% care of [Child 1] and [Child 2] and Ms Rushforth had 100% care with effect from 4 August 2023, which was reflected in the assessment from 28 August 2023.

3. By application received on 7 February 2024, Mr Rushforth asked this Tribunal to review the decision of the objections officer. On 22 April 2024, the Tribunal conducted a hearing at which Mr Rushforth and Ms Rushforth gave evidence by MS Teams audio.  The Tribunal had before it the relevant documents from Child Support (pages 1 to 308), which had been copied to the parties.  The parties confirmed receipt of these documents.  The Tribunal also received additional documents (pages 309 to 377) from Child Support as well as pages B1 to B10 from Ms Rushforth.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Collection 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 make a care percentage decision where a pattern of care has been established. A person's percentage of care for a child is then used in section 55C of the Act to work out the person's cost percentage for the child and this in turn affects the rate of child support payable by one parent to the other.

What is the care determination that should be made?

1. In order to clarify the background of the matter, the Tribunal took evidence from Mr Rushforth and Ms Rushforth about the care situation prior to the registration of the child support liability on 28 August 2023.  The parties advised that they separated in January 2023.  The separation was not amicable.  They decided that they would share care of the children “week about”.  [Child 1] and [Child 2] remained in the former family home.  Each of their parents would then stay with them in the home for a week, with “changeover” at Sunday lunchtimes.  When he was not in the former family home, Mr Rushforth resided with his parents.  When she was not in the family home, Ms Rushforth was sharing rental accommodation with a friend.  This arrangement came to an end in June 2023 when Ms Rushforth secured her own accommodation and the family home was put on the market and subsequently sold.

2. Mr Rushforth told the Tribunal that from June 2023 the boys came to live with him and their grandparents for a week and then with their mother for a week.  Sometimes in “his week” they would stay with other of his family members.  This situation continued until an incident on 4 August 2023 [when [Child 1] was struck by his grandfather [named]].  Following this incident he was informed by Ms Rushforth that the boys did not want to stay with their grandparents any more.  From September 2023 the 50/50 care resumed.  The dates that [Child 1] and [Child 2] stayed with him are as set out on the care calendars he has provided.  He has a hard copy diary and makes a note of the nights that the boys stay.  During the period that [Child 1] was in hospital he was in Mr Rushforth’s care; Mr Rushforth would visit him every day.  He and Ms Rushforth do not yet have a formal parenting plan.

3. Ms Rushforth told the Tribunal that the incident with the boys’ grandfather occurred on 11 August, not 4 August.  After that event, [Child 1] and [Child 2] did not want to stay in their grandparents’ house.  For a time after that she and Mr Rushforth would trial the 50/50 arrangement but then the boys would tell her they did not want to go.  There was no pattern to Mr Rushforth’s care.  She has never claimed to have had 100% care of [Child 1] and [Child 2].  In relation to the care calendars provided by Mr Rushforth she did not agree that he had care of the boys for most weekends as he had marked in for July and August.  She took the boys on a holiday to [City 1] from 25 to 30 August.

4. As noted above, the assessment of child support is based on a number of factors including the percentages of care of the parents. Section 50 of the Act provides that the percentage of care is “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”. The term “care period” is not defined in the legislation but is such a period as the Registrar (and the Tribunal, standing in the shoes of the Registrar) considers to be appropriate having regard to all the circumstances. Although the child support assessment in this case did not commence until 28 August 2023, there is nothing in the legislation that prevents a care period from commencing prior to the date of registration of the assessment, for the purposes of formulating an appropriate pattern of care.

5. In this case the Tribunal considers it appropriate to consider the pattern of care such as it was from the separation of the parties in early 2023.  At that point the parties are in agreement that the pattern of care was “week about”; that is, that [Child 1] and [Child 2] were in the care of each of their parents for 50% of the time.  It appears that this pattern continued until June 2023, when all parties moved out of the former family home and it was subsequently sold.  Mr Rushforth’s care calendars indicate that he had weekend care of [Child 1] and [Child 2] on July 2023.  The Tribunal accepts that following an incident that occurred on 11 August 2023, [Child 1] and [Child 2] stayed with their father less frequently.  Ms Rushforth’s evidence to the Tribunal was that she and Mr Rushforth “trialled” the 50/50 arrangement again after this event but the boys were not initially receptive.  The hearing papers indicate that around this time [Agency 1] became involved with the family and formulated a Safety Plan, the purpose of which was to ensure [Child 1’s] and [Child 2’s] physical and emotional well-being.  Mr Rushforth and Ms Rushforth agreed to the Safety Plan on 10 October 2023, by which time it appears that the “week about” pattern of care was again in place.

6. In considering the appropriate pattern of care in this case, the Tribunal notes that there was a disruption and altered care arrangements in July and August 2023; however, taken overall, the 50/50 care arrangement was in place for the greater part of the 2023 calendar year.  The Tribunal concludes that it is therefore appropriate to consider these arrangements as constituting the pattern of care as at the time that the child support assessment was registered.  The Tribunal accepts that the care calendars provided by Mr Rushforth, as modified by the explanatory letter at pages 267 to 269 of the hearing papers, are accurate.  The Tribunal also notes that Ms Rushforth has provided care calendars but only from November 2023 on and these calendars appear to tally with the care arrangements as claimed by Mr Rushforth for the last few weeks of the 2023 year.

7. The Tribunal therefore determines that Mr Rushforth’s and Ms Rushforth’s percentages of care for [Child 1] and [Child 2] are each 50% effective in the assessment from the start date of liability, 28 August 2023.  Mr Rushforth stated at the hearing that there has been a change to the pattern of care this year, such that he has care of [Child 1] and [Child 2] every second weekend and half of the school holidays.  The Tribunal notes from the additional papers provided by Child Support (pages 309 to 377) that there has been a further determination of the care percentages made on 9 March 2024 as well as a “pended” care change being presently considered by Child Support.  These matters are not before the Tribunal at present, however Ms Rushforth and Mr Rushforth will have the usual right to object and/or to seek review if they are unhappy with the outcome of these changes to the child support assessment.

DECISION

The Tribunal sets aside the decision under review and, in substitution, determines that Mr Rushforth’s and Ms Rushforth’s percentages of care for [Child 1] and [Child 2] are each 50% effective in the assessment from the start date of liability, 28 August 2023.