Shearman and Fosker (Child support)

[2022] AATA 3681

Shearman and Fosker (Child support) [2022] AATA 3681 (16 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024257

APPLICANT:  Ms Shearman

OTHER PARTIES:  Child Support Registrar

Mr Fosker

TRIBUNAL:Member J Prentice

DECISION DATE:  16 September 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     the existing care percentage determinations for the children of 60% to Ms Shearman are revoked from 23 March 2022 and replaced with new care percentage determinations of 90% with effect from 24 March 2022; and

·     the existing care percentage determinations for the children of 40% to Mr Fosker are revoked from 30 November 2020 and replaced with new care percentage determinations of 10% with effect from 1 December 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 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. As relevant to this application, Ms Shearman and Mr Fosker are the parents of [Child 1] (born September 2009) and [Child 2] (born December 2010) (the children). The application concerns a single decision of the Child Support Agency (CSA) about the recorded care for the children in relation to a child support case registered with the CSA.

2. From 1 June 2020, the pre-existing percentages of care recorded by the CSA for the children were 60% to Ms Shearman and 40% to Mr Fosker.

3. On 24 March 2022 the Family Assistance Office (the FAO) contacted the CSA and advised a change to the care position of the children from 1 December 2020 stating that Ms Shearman provides 90% care and Mr Fosker provides 10% care.   

4. On 20 April 2022 the CSA decided to apply the FAO recorded care and revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 90% to Ms Shearman and 10% to Mr Fosker from 1 December 2020. Notably, as the care change applied by the FAO was notified more than 28 days after the change of care was found to have occurred on 1 December 2020, the recorded increased percentage of care determination from 60% to 90% to Ms Shearman applied from 24 March 2022 (the date of notification). However, the recorded decreased percentage of care determination from 40% to 10% to Mr Fosker applied from 1 December 2020 (the date of the care change).

5. On 11 May 2022 Mr Fosker objected to this decision and, on 8 July 2022 a CSA objections officer partly allowed the objection and decided to revoke the pre-existing percentage of care determinations and to record percentage of care determinations of 86% to Ms Shearman and 14% to Mr Fosker from 1 December 2020.

6. On 13 July 2022, Ms Shearman lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating that she believes that “a vital document has not been considered in this matter”.

1. The hearing of the application was held on 15 September 2022. Ms Shearman and Mr Fosker both participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Shearman and Mr Fosker and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 100). Ms Shearman also provided additional evidence during the hearing, marked Exhibit A, page A1.

3. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

10.  The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The 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 Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

12. Sections 49 and 50 require initial percentage of care determinations to be recorded for a care period upon initial registration of a child support case or for new percentage of care determinations to be recorded when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

13.  Existing care percentages generally apply until a change is notified and a new decision is made and requires assessment of the actual or likely pattern of care to determine whether existing percentage of care determinations are to be revoked and new percentage of care determinations are to apply.

14.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances and is generally the 12-month period starting from the date the actual care of child began or changed.

15.  Topic 2.2.1 of the Guide recognises that determining the care over a shorter or longer care period may be more appropriate and that the specific circumstances of each case will be considered to determine the appropriate care period.

16.  The term pattern of care is not defined in the legislation. It involves an examination of a person’s future likely care.

17. Both sections 49 and 50 reflect 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 actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

18.  Section 54A provides that the 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 numbers of nights that a child was, or is likely to be, in the care of a person.

19.  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. Chapter 2.2.1 of the Guide contains the following guidance in this regard:

… 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.

20. Parents are normally recorded as providing the care they are actually providing pursuant to sections 49 or 50 of the Act.

21. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

ISSUES

1. It follows that the issues to be determined by the Tribunal are as follows:

   (a)Should the pre-existing percentage of care determinations recorded by the CSA in relation to the children be revoked? And, if so,

   (b)What are the new percentage of care determinations to be recorded for Ms Shearman and Mr Fosker? And,

   (c)What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

CONSIDERATION

23.  Ms Shearman told the Tribunal that her objection (and appeal to the Tribunal) is based on the fact that during her conversation with the CSA (on page 5 of their papers) – it notes that her “position is that from 1 December 2020, Mr Fosker would have provided care to the children on average for two nights per fortnight”.  However, Ms Shearman claims that when she referred to Mr Fosker’s care of the children she was not referring to the time period in question.

24.  Ms Shearman noted that the time period in question was the COVID-19 lockdown and that is why she had 90% care of the children.

25.  Ms Shearman also referred to a statutory declaration signed by Mr Fosker on 23 March 2022 (Exhibit A1) which states:

I confirm that my children …… have been 90% in the care of their mother …. Since December 2020 ….

26.  Ms Shearman said that she had uploaded a copy of the statutory declaration to Centrelink and she had understood that the CSA could access it.

27.  Mr Fosker told the Tribunal that he agreed with the evidence presented by Ms Shearman.  

1. As conveyed at the hearing to Ms Shearman and Mr Fosker the legislation requires the Tribunal to assess what is the likely pattern of care as at 1 December 2020 going forward for the children.

29.  Both parties agree that the care arrangement for the children from 1 December 2020 was 90% to Ms Shearman and 10% to Mr Fosker.

1. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 1 December 2020. Further the Tribunal is satisfied based on the evidence that the pattern of care of the children from 1 December 2020 was nights of care to Ms Shearman equating to 90% and nights of care to Mr Fosker equating to 10%.

Issue 1: Should the pre-existing percentage of care determinations recorded by the CSA in relation to the children be revoked?

1. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment; section 54G does not apply and section 51 does not apply or no longer applies.

2. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

33.Section 54G does not apply and 90% care to Ms Shearman and 10% to Mr Fosker does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at the date of 60% to Ms Shearman and 40% to Mr Fosker.

34.A change in care to 90% care to Ms Shearman and 10% to Mr Fosker would change each parent’s cost percentage pursuant to the table in section 55C. Section 51 does not apply.

35.The existing percentages of care of 60% to Ms Shearman and 40% to Mr Fosker are therefore required to be revoked pursuant to section 54F.

Issue 2: What are the new percentage of care determinations to be recorded for Ms Shearman and Mr Fosker?

36. The Tribunal has found pre-existing percentages of care determinations must be revoked pursuant to section 54F and the Tribunal has found that Ms Shearman has had (or is likely to have) a pattern of care for the children during the care period and Mr Fosker has had (or is likely to have) a pattern of care for the children during the care period. Percentage of care determinations are therefore required pursuant to subsection 50(2). The Tribunal therefore determines that Ms Shearman’s percentage of care for the children during the care period is 90% and Mr Fosker’s percentage of care during the care period is 10%.

Issue 3: What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

37. Pursuant to paragraph 54F(3)(b), as the change in care was notified by more than 28 days after the Tribunal has found the change occurred on 1 December 2020, there are different dates of effect for the revocation of the parties’ respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care of 60% recorded for Ms Shearman takes effect the day before the notification of the change of care, that is on 23 March 2022 and revocation of the pre-existing percentage of care of 40% recorded for Mr Fosker takes effect the day before the change of care day, that is on 30 November 2020.

1. Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the “application day”, that is the day immediately after revocation of the previous percentage of care determinations. Therefore a new percentage of care determination of 90% to Ms Shearman applies from 24 March 2022 and a new percentage of care determination of 10% for Mr Fosker applies from 1 December 2020.

Conclusion

1. As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     the existing care percentage determinations for the children of 60% to Ms Shearman are revoked from 23 March 2022 and replaced with new care percentage determinations of 90% with effect from 24 March 2022; and

·     the existing care percentage determinations for the children of 40% to Mr Fosker are revoked from 30 November 2020 and replaced with new care percentage determinations of 10% with effect from 1 December 2020.