Seagal and Gage (Child support)
[2022] AATA 368
•9 February 2022
Seagal and Gage (Child support) [2022] AATA 368 (9 February 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/BC022636
APPLICANT: Mr Seagal
OTHER PARTIES: Child Support Registrar
Ms Gage
TRIBUNAL:Member A Beckett
DECISION DATE: 09 February 2022
DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:
Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alterations are made to the decision:
The decision is altered to read:
The decision of the Child Support Registrar made on 10 August 2020 that the care of [Child 1] was 80% to Mr Seagal and 20% to Ms Gage from 1 August 2020 is affirmed.
The decision of the Child Support Registrar made on 19 August 2021 to refuse to vary the existing care determination is set aside and is sent back to the Child Support Registrar for reconsideration in accordance with the directions that:
• Mr Seagal’s 80% of care is to be revoked with effect from 22 February 2021 and replaced with 87% of care;
• Ms Gage’s 20% of care is to be revoked with effect from 19 September 2020 and replaced with 13% of care.
Member A Beckett
10 March 2022
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2021/BC022636
APPLICANT: Mr Seagal
OTHER PARTIES: Child Support Registrar
Ms Gage
TRIBUNAL:Member A Beckett
DECISION DATE: 09 February 2022
DECISION:
The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the directions that:
from 19 September 2020, the actual care of [Child 1] was 87% to Mr Seagal and 13% to Ms Gage;
the Child Support determination under review is to be revoked and replaced with these care percentages;
for Mr Seagal’s percentage the date of effect of the revocation is 22 February 2021;
for Ms Gage’s percentage the date of effect of the revocation is 19 September 2020.
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 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
Mr Seagal and Ms Gage are the separated parents of [Child 1].
On 1 and 10 August 2020, Mr Seagal advised Services Australia – Child Support (“Child Support”) that there had been a change in care so that from 1 August 2020 he had 80% care of [Child 1] and Ms Gage had 20%. He confirmed this advice with Child Support on 21 and 25 August 2020. Until this notification, Child Support was assessing Mr Seagal as having 14% care of [Child 1] and Ms Gage 86% care.
On 10 August 2020, Child Support changed the care percentages for [Child 1] from 1 August 2020 to be 80% to Mr Seagal and 20% to Ms Gage. Mr Seagal confirmed this care percentage with Child Support on 21 and 25 August 2020.
On 23 September 2020, Mr Seagal contacted Child Support.
On 23 February 2021 and 27 July 2021, Mr Seagal notified Child Support that Ms Gage had less than 14% care of [Child 1].
On 19 August 2021, Child Support decided that it could not register the notified change to the care arrangements and that Mr Seagal had to lodge an objection to the original decision.
On that same day, Mr Seagal lodged an objection to the Child Support decision. On 6 October 2021, Child Support disallowed this objection. This meant that the care continued to be 80% to Mr Seagal and 20% to Ms Gage throughout the child support period, which was from 1 August 2020 to 31 October 2021.
On 29 October 2021, Mr Seagal applied for a review of that care percentage decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).
Mr Seagal and Ms Gage participated by telephone in the hearing convened by the Tribunal on 9 February 2022. Prior to the hearing, Child Support sent each of them and the Tribunal a bundle of its documents relevant to the decision under review (folios 1 to 151). Mr Seagal provided an email from [a company] which has been copied to the other parties.
ISSUES
The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (“the Act”).
The issues to be considered by the Tribunal in this review are:
· should there be a change to the care percentages used in the Child Support assessment following Mr Seagal’s notification of a change in the care arrangements for [Child 1]; and, if so,
· what care percentages should be used, and what is the date of effect of this change?
CONSIDERATION
The Act sets out the statutory formula for the calculation of child support. Amongst other things, the statutory formula takes into account the level of care each parent provides for the child. Child Support is required to make determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act. The applicable provisions require Child Support (and the Tribunal on review) to determine whether the existing care determination can be revoked, and, if so, what new care percentage decision should be made.
What was the actual percentage of care of [Child 1] in the relevant period?
Ms Gage moved to Melbourne from Queensland in August 2020. Just prior to that move, on 1 August 2020, [Child 1] moved to live primarily with Mr Seagal, who continued to reside in Queensland.
Child Support documents indicate that in August 2020 both parents agreed that the likely pattern of care would be that [Child 1] would live with Mr Seagal in Queensland and spend school holidays with Ms Gage, resulting in Mr Seagal having 80% care and Ms Gage 20% care.
The parents agree that this pattern of care could not be followed because of the state border closures. This first impacted the care of [Child 1] in the school holidays commencing 19 September 2020.
Because this occurred after the original Child Support decision on 10 August 2020, a preliminary issue for me to determine is whether I have jurisdiction to make a new determination based on an event that occurred after this date.
Mr Seagal lodged his objection on 19 August 2021 after Child Support had effectively decided on that date not to make a new determination of care. The objection decision appears to have taken this later decision into account, as well as the various updates and notifications by Mr Seagal regarding the change in care. The objections officer states:
Upon review, we acknowledge that the care arrangements for [Child 1] may have changed due to reasons beyond the control of both parties however, we cannot be satisfied on the precise care percentages that applied for Mr Seagaland Ms Gage since 1 August 2020. We have therefore decided not to revoke the existing care determination.
Given this, I find that I have the jurisdiction to determine if there was a change in the pattern of care between the date of the original decision on 10 August 2020 and the date of the objections officer’s decision on 6 October 2021.
Mr Seagal provided a statutory declaration dated 30 August 2021 detailing the nights of care Ms Gage had for [Child 1] to that date. This totalled 51 nights.
Ms Gage did not agree with Mr Seagal’s calculation of the nights in care.
She said that for about a week in the September school holidays in both 2020 and 2021 [Child 1] stayed with Ms Gage’s brother and his family on their property in Queensland.
In addition, from time to time [Child 1] had sleepovers with friends and members of her family.
Both parents agreed that it was Mr Seagal who made the arrangements for all of these stays.
As it was in effect Mr Seagal who delegated his care at those times I find that it is appropriate for [Child 1] to continue to be regarded as in his care for those nights.
Ms Gage said that the original plan was that [Child 1] would be with her until 27 December 2020, when she would return to Mr Seagal’s care (he was in Melbourne at the time), and that [Child 1] would again be in the care of Ms Gage from 2 January 2021. This did not happen.
Mr Seagal said that there were increasing Covid cases in Melbourne at that time and the Queensland government was making the same sort of noises that it had done over the previous year before it announced border closures. He wanted to do everything possible to avoid the possibility that [Child 1] may end up in hotel quarantine, alone. He thought it would be best if [Child 1] returned to Queensland early, with him. He said that there were a lot of discussions with Ms Gage about this, some of which got very heated, but he believed that Ms Gage ultimately agreed with this proposal.
Ms Gage said that she never agreed to [Child 1] returning to Queensland.
Both parents gave evidence to the effect that Ms Gage contacted Mr Seagal in late March 2021, while [Child 1] was still at school, asking that [Child 1] come to Victoria before the school holidays started because of concerns of an imminent lockdown. Mr Seagal facilitated this arrangement by leaving work, picking [Child 1] up from school and taking her to the airport after she had packed a bag.
The parents’ evidence differs as to whether they both agreed that [Child 1] should return to Queensland in early January 2021. I have no basis for preferring one view over the other and so make no finding regarding this issue other than that the last night of actual care of [Child 1] by Ms Gage was 26 December 2020.
I find on the balance of evidence that there was a change to the pattern of care on 19 September 2020, which was the first day of the school holidays when [Child 1] could not stay with her mother as previously planned. From this date, the percentages of care[1] are 87% to Mr Seagal and 13% to Ms Gage.
[1] These percentages have been rounded up when care is above 50% and down when it is below 50% as required by section 54D of the Act.
Should the existing care determination be revoked?
This means that Ms Gage’s care changed to less than regular care, which is defined in the Act as care of less than 14%. This change in the care percentage will result in a change to the cost percentage used in the Child Support assessment.
The section of the Act under which the earlier child support determination may be revoked depends in part on whether Mr Seagal notified Child Support within a reasonable time of the change in care on 19 September 2020.
Mr Seagal contacted Child Support on 23 September 2020. The Child Support record of this contact includes the following:
The reason for Mr Seagal’s call:
change in care and daughter and now lives with Mr Seagal.
…
Confirmed the current care details for all children…
At the hearing, Mr Seagal clarified that he had rung Child Support at that time to obtain advice because of the change of care that happened when [Child 1] was not able to travel to be with Ms Gage for the school holidays. He said that Child Support told him that a new determination based on actual care that was happening would allocate 0% care to Ms Gage. He did not feel that was fair and so did not proceed with having a new determination made. He waited to see what would happen with the care arrangements in light of various border closures and travel restrictions.
In these circumstances I am not satisfied that this contact should be treated as a notification to Child Support of a change in the care arrangements.
Mr Seagal next contacted Child Support on 23 February 2021 when he notified it that the care arrangements for [Child 1] had changed so that from 1 August 2020 to that date he had 88% care and Ms Gage had 12% care. He again notified on 27 July 2021 advising that as at that date the care percentages were 87% to him and 13% to Ms Gage.
While I appreciate the reasons for Mr Seagal not pursuing a notification of change of care arrangements on 23 September 2020, I am not satisfied that his notification on 23 February 2021 can be said to have been made within a reasonable time of the date this change in care occurred, which was on 19 September 2020.
Section 54F of the Act therefore applies in this case so that the original determination must be revoked.
What is the date of effect of the revocation?
Section 54F provides that if Child Support is notified more than 28 days after the change of care occurred, the revocation takes effect on the day before the notification for the person whose care has increased and on the day of the change of care for the person whose care has reduced.
I find that the revocation of the existing care percentage determination for Mr Seagal therefore takes effect on the day before the notification; that is, on 22 February 2021. For Ms Gage, whose care has reduced, the revocation takes effect on the day the care changed: 19 September 2020.
What care percentages should be used?
Once the original determination is revoked, new care percentages must be determined under section 50 of the Act.
I find that the new care percentages should be 13% for Ms Gage and 87% for Mr Seagal. These percentages are consistent with my findings of the actual care pattern.
As this differs from the decision of Child Support, I set aside the Child Support decision to disallow the objection.
DECISION
The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with the directions that:
from 19 September 2020, the actual care of [Child 1] was 87% to Mr Seagal and 13% to Ms Gage;
the Child Support determination under review is to be revoked and replaced with these care percentages;
for Mr Seagal’s percentage the date of effect of the revocation is 22 February 2021;
for Ms Gage’s percentage the date of effect of the revocation is 19 September 2020.
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Judicial Review
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Procedural Fairness
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Remedies
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