Shayle and Shayle (Child support)

[2022] AATA 3504

Shayle and Shayle (Child support) [2022] AATA 3504 (6 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023613

APPLICANT:  Mr Shayle

OTHER PARTIES:  Child Support Registrar

Mrs Shayle

(now known as [Ms A])

TRIBUNAL:Member J Prentice

DECISION DATE:  06 July 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing care percentage determination of 28% to Mr Shayle is revoked from 31 January 2022 and replaced with a new care percentage determination of 49% with effect from 1 February 2022; and

2. the existing care percentage determination of 72% to Mrs Shayle is revoked from 6 September 2021 and replaced with a new care percentage determination of 51% with effect from 7 September 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 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

1. Mr Shayle and Mrs Shayle are the parents of [Child 1] (born September 2011) and [Child 2] (born January 2016). The pre-existing care for their children was recorded by the Child Support Agency (CSA) as being 72% to Mrs Shayle and 28% to Mr Shayle from 1 March 2019.

2. On 1 February 2022 Mrs Shayle notified the CSA of a change in the care arrangements such that Mrs Shayle had 50% and Mr Shayle had 50% care of the children from 7 September 2021.

3. On 4 February 2022 the CSA accepted Mrs Shayle’s notification and determined that the care percentage was 51% to Mrs Shayle and 49% to Mr Shayle[1] effective from 7 September 2021. As Mrs Shayle had notified the change of care on 1 February 2022, more than 28 days after the change occurred on 7 September 2021, the recorded increased percentage of care (from 28%) to 49% to Mr Shayle took effect from 1 February 2022 (the date of notification); however, the decreased percentage (from 72%) to 51% to Mrs Shayle took effect from 7 September 2021 (the date of the care change).

   [1] The Tribunal notes that 50/50 care is recorded as 51%/49% between parties for system purposes

4. Mr Shayle lodged an objection with the CSA on 14 February 2022 which was allowed on 23 February 2022 with the decision being that the care changed on 28 October 2021 not 7 September such that the increased percentage of care (from 28%) to 49% to Mr Shayle took effect from 1 February 2022 (the date of notification); however, the decreased percentage (from 72%) to 51% to Mrs Shayle took effect from 28 October 2021 (the date of the care change).

5. On 1 April 2022 Mr Shayle lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) as he believes the CSA has incorrectly calculated the level of care for the children for the month of September 2021.

6. Mr Shayle and Mrs Shayle spoke to the Tribunal by conference telephone at a hearing on 1 July 2022 and gave evidence on affirmation.

7. Mrs Shayle informed the Tribunal that she would like to be referred to as [Ms A]. [Ms A] advised the Tribunal that she had officially changed her name, but she had not told the Tribunal Registry officers and she had yet to inform the CSA.

8. In considering the application, the Tribunal took into account the oral evidence of Mr Shayle and [Ms A] and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act1975 (marked Exhibit 1).

ISSUES

1. The issue is whether there was a change of care of the children in relation to the notification made by [Ms A] on 1 February 2022 such that pre-existing care percentage determinations for [Child 1] and [Child 2] are to be revoked, and, if so, the date of the change of care, the new care percentage determinations that are to apply and date of effect of the revocation and application of the new consequential percentage of care determinations.

CONSIDERATION

10.  The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  The Tribunal also had regard to the CSA’s Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 46 FLR 409).

1. The scheme of the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

2. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

3. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made.

4. Section 50 reflects the view that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified 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 the CSA 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 pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

5. 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.

17.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can then be considered and made if appropriate.

18.Generally speaking, if a change of care is notified to the CSA more than 28 days after it occurs, the new percentage of care determination for the person with decreased care applies from the date of the change; however, the new percentage of care determination for the person with increased care only takes effect from the date of notification.

1. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[2] The relevant policy appears at 2.2.2 of the Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

   [2] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)). The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed. The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

4. Once each party’s care is determined, if there has been a relevant change, it can be reflected in the child support assessment by revoking the old percentage under sections 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

5. Mr Shayle informed the Tribunal that the reason for his objection to the CSA Decision is that his care for [Child 1] and [Child 2] for the months of September and October 2021 was considerably more than 50%.

6. Both parties agreed that there is no dispute that the care arrangements going forward from November 2021 were shared 50/50 and the dispute is with respect to the care arrangements in September 2021 and October 2021.

7. [Ms A] told the Tribunal that she moved out of the family home in September 2021 and moved in with her father while she made arrangements for future accommodation.

8. Mr Shayle told the Tribunal that he keeps a care diary (which he subsequently provided to the Tribunal) and from 9 September 2021 to 26 October 2021 [Ms A] had six nights care in September and eight nights care in October of the children.

9. [Ms A] advised the Tribunal that the months of September and October 2021 had been very disruptive for her. She had moved out of the family home and tried to find new accommodation – which proved more difficult because of the impacts of the COVID pandemic; she had also had surgery and in mid-October her mother passed away. [Ms A] said she did have the children during the daytime but only 15 nights, because of her circumstances.

10. Mr Shayle advised that it was not until he received a letter from the CSA advising him that he owed child support payments and he called up in response to that matter, that he was told that his objection had been disallowed. Mr Shayle immediately lodged an application with the Tribunal. Mr Shayle said that he did not see the actual letter until he received a copy of the hearing papers.

11. Mr Shayle believes that as he was only nine days over the deadline and he did not receive the CSA advice in the first place, that special circumstances should apply to the lodging of his application.

12. Mr Shayle advised the Tribunal that he agreed to have the children for the additional time in September and October as [Ms A] had told him that she was not coping at the time. However, he had understood that the combination of the additional care he had for September and October 2021 and the ongoing change in the pattern of care to 50/50 from November 2021 going forward, would result in him not paying child support payments and he had therefore lodged an objection when he received advice that he owed money.

13. [Ms A] confirmed that Mr Shayle had increased care of the children in September and October 2021 as he had indicated.

14. The Tribunal questioned [Ms A] as to why she told the CSA on 1 February 2022 that the care arrangement had changed to 50/50 shared care from 7 September 2021 when she knew that was not the case for the months of September and October 2021.

15. [Ms A] told the Tribunal that at the time she was not sure how many nights she had the children in September and October and as she does not keep a care diary she cannot be certain how many nights she actually did have them in her care. [Ms A] said that she informed the CSA of her change in circumstances (moving out of home) in September and what she and Mr Shayle had agreed would be the new pattern of care arrangement from that time. [Ms A] acknowledged that she did not correct the CSA record because she knew it would not impact Mr Shayle financially.

16. The Tribunal notes that both parties agree that the care arrangement from November 2021 is 50/50 shared care and that is the pattern of care that is occurring.

17. The Tribunal further notes that both parties agree that Mr Shayle had increased care from 9 September 2021 to 26 October 2021.

18. As recognised in the Guide, the Tribunal does not consider that every deviation from an existing pattern of care constitutes a new pattern of care (see paragraph 19 of this Decision). The legislation reflects the idea that point-in-time care decisions are made on the basis of what has 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 the CSA 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 pattern of care for the care period based upon what had happened and what is likely to happen thereafter. Both parties’ failure to promptly notify an initial change in care in September 2021 makes application of the legislation complicated in the circumstances.

19. Based on the evidence the Tribunal is satisfied that when [Ms A] moved out of the family home on 7 September 2021, the likely pattern of actual care of the children was 50% to each parent. As it transpired, that did not eventuate until November 2021 because of a number of unexpected occurrences in [Ms A]’s life including difficulties finding new accommodation, her need to have surgery and her mother’s passing away. However, at all times the Tribunal is satisfied that both parties expected that the pattern of actual care of the children would be 50/50 and that is what has since transpired from November 2021. In all of the circumstances the Tribunal is satisfied that the likely pattern of actual care of the children did change on 7 September 2021 such that the pre-existing percentage of care determinations are to be revoked and new percentage of care determinations are to apply. Had the change been notified promptly within 28 days as required, the change would have been reflected from 7 September 2021 and then a subsequent notification could have been made by either parent if that likely pattern of care did not eventuate and another likely pattern of care was expected. That may have arguably been the position when after September and October it may have appeared as though the likely pattern of actual care was then becoming seven to eight nights per month to [Ms A] and the balance of nights to Mr Shayle. However, at issue is only one notification of a change in care, that of 1 February 2022 by [Ms A] notifying a change of 50/50 from 7 September 2021, a position originally agreed by Mr Shayle. As to whether that care then did not occur for a two-month period, and Mr Shayle had more than 50% care for those two months, amounts to a further change to the likely pattern of actual care or not, and is a separate issue.

20. The change to a likely pattern of actual care did not ultimately occur until the end of October 2021. However, the change was clearly intended and expected by the parties as at 7 September 2021. As to the circumstances that then transpired in September and October 2021 such that that position did not eventuate until the end of October 2021, the Tribunal is satisfied that the variation in that expected pattern of care throughout September and October 2021 constitutes a minor change as contemplated by the Guide may occur to the normal pattern of care expected. These types of minor changes are not unusual, particularly given the exigencies of life that can inevitably result, including such circumstances as brought about by COVID, a family death or other personal circumstances. The Tribunal finds that the likely pattern of actual care changed from 7 September 2021 such that new percentage of care determinations reflecting 50/50 care are to apply. However, as that change was not notified until more than 28 days after 7 September 2021, the increased care from 28% to 49% to Mr Shayle does not take effect until the date of notification, 1 February 2022. The decreased care from 72% to 51% to [Ms A] takes effect however from the date of the change, 7 September 2021.

21. The Tribunal appreciates that this decision is the same as the original CSA decision to which Mr Shayle objected and received a partially favourable decision and that this decision is again less favourable to Mr Shayle. However the Tribunal considers application of the legislation to the facts of the matter necessarily leads to this decision. The failure of the parties, including Mr Shayle, to promptly notify changes has led to a complicated application of the legislation.

22. Had either party promptly notified the initial change on 7 September 2021 or within 28 days, and then notified a further change (if it then appeared that 50/50 care was not going to occur in September or October 2021 as expected), and when 50/50 did commence at the end of October 2021, different decisions, and consequential effects would then be in place.

CONCLUSION

1. The Tribunal is satisfied that there was a change in the likely pattern of actual care of the children from 7 September 2021 to 50% to [Ms A] and 50% to Mr Shayle.

2. This did not correspond with the pre-existing percentage of care determinations recorded by the CSA such that the existing percentages of care are therefore required to be revoked and new percentage of care determinations of 51% to [Ms A] and 49% to Mr Shayle are to apply pursuant to section 54F of the Act.

3. As the change in care was notified by [Ms A] on 1 February 2022, more than 28 days after the Tribunal has found the likely change of actual care occurred on 7 September 2021, the increased percentage of care from 28% to 49% to Mr Shayle takes effect from 1 February 2022; however, the decreased percentage of care from 72% to 51% to [Ms A] takes effect from 7 September 2021.

4. As this is different to the decision reached by the objections officer, the decision under review will be set aside and a new decision substituted to reflect this conclusion.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing care percentage determination of 28% to Mr Shayle is revoked from 31 January 2022 and replaced with a new care percentage determination of 49% with effect from 1 February 2022; and

2. the existing care percentage determination of 72% to Mrs Shayle is revoked from 6 September 2021 and replaced with a new care percentage determination of 51% with effect from 7 September 2021.