Smurthwaite and Child Support Registrar (Child support)

[2022] AATA 736

Smurthwaite and Child Support Registrar (Child support) [2022] AATA 736 (10 February 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022829

APPLICANT:  Ms Smurthwaite

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  10 February 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes its decision that:

• The existing determination of care for Ms Smurthwaite is revoked from 4 February 2021 and from 5 February 2021 Ms Smurthwaite is recorded as having 82% care of the children;

• The existing determination of care for [Mr A] is revoked from 5 April 2021 and from 6 April 2021 [Mr A] is recorded as having 18% care of the children.

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. This application relates to a decision by Services Australia – Child Support Agency (the Agency) relating to the particulars of the assessment, being the care percentage maintained by the Agency for the children [Child 1] and [Child 2].

2. Ms Smurthwaite and [Mr A] are the separated parents of [Child 1] and [Child 2].

3. As of 27 January 2021, the administrative assessment of child support in place for Ms Smurthwaite and [Mr A] reflected the children being in Ms Smurthwaite’s 100% care and [Mr A]’ 0% care.

4. On 6 April 2021, Ms Smurthwaite contacted the Agency to advise that she had 82% care of the children and [Mr A] had 18% care of the children from 5 February 2021.

5. On 19 April 2021, an employee of the Agency made a decision to revoke the existing determination of care and to make a new care determination that from 5 February 2021, Ms Smurthwaite had had 82% care of the children and [Mr A] had had 18% care of the children.

6. Ms Smurthwaite objected to this decision on 16 September 2021.

7. On 15 November 2021, an objections officer of the Agency disallowed the objection.

8. On 29 November 2021, Ms Smurthwaite made an application to the Administrative Appeals Tribunal for an independent review of Child Support’s decision.  [Mr A] was invited to be added as a party to the application but did not apply to be added.

9. The Tribunal hearing was held on 10 February 2022, on which date the Tribunal spoke to Ms Smurthwaite by MS Teams video.  At the hearing, the Tribunal had before it documents provided by the Department (folios 1 to 157), copies of which had been provided to Mr Smurthwaite prior to the hearing.  Ms Smurthwaite confirmed receipt of the documents with the Tribunal. 

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988. 

2. The legal issues for the Tribunal in this case relate to the percentages of care maintained by the Agency in the child support assessment for the children.  The Tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

3. The relevant provisions are sections 54F, 54G and 54H of the Assessment Act.

4. The Tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) of the Assessment Act provides that the Registrar (or the Tribunal, standing in the shoes of the Registrar) must revoke a determination of a responsible person’s percentage of care in the following circumstances:

   (a)     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 responsible person's existing percentage of care for the child; and

   (b)     the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

   (c) section 54G does not apply; and

(d)     subsection (2) applies in relation to the individual.

Note:         The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

1. The existing percentage of care for the children as at the date Ms Smurthwaite contacted the Agency in April 2021 was that Ms Smurthwaite had 100% care of the children and [Mr A] had 0% care of the children. 

2. The Tribunal accepted from the information on the Agency documents that Ms Smurthwaite contacted the Agency on 6 April 2021.  The record of the discussion on that date (folio 34) reflects that Ms Smurthwaite advised the Agency that care had reverted back to the old care as the borders had reopened, and that she would have 296 nights of care and [Mr A] would have 69 nights of care.  The Agency’s records reflect that Ms Smurthwaite advised that the new care pattern had commenced as of 5 February 2021.  The Tribunal finds from this information that on 6 April 2021, the Registrar was notified that the care of the children that was actually taking place did not correspond with the existing percentages of care being maintained for the children.  Paragraph 54F(1)(a) is met.

3. Paragraph 54F(1)(b) requires the Tribunal to determine whether Ms Smurthwaite’s cost percentage for the children would change if the Tribunal were to determine another percentage of care for the children.

4. Ms Smurthwaite stated to the Tribunal that the borders kept opening and closing during 2020, and she had also moved address in December 2020.  She is disputing the Agency’s decision because the care that eventuated for the children was not what had been anticipated during her contact with the Agency in April 2021 and she has uploaded information for the Agency reflecting that [Mr A] had not had the level of care agreed to by the parties and she believes that 18% care reflected to him is too high.  The Tribunal asked whether the expected care for the children as of the contact of April 2021 was two nights per month and half school holidays and Ms Smurthwaite stated “yes, probably”.

5. The Tribunal accepted the evidence given by Ms Smurthwaite which was clear and credible.  The Tribunal accepted from Ms Smurthwaite’s evidence that the care arrangements for the children had been heavily impacted by border closures due to the COVID-19 pandemic, given the parents live in different states.  The Tribunal found from the evidence before it that, as of 6 April 2021 when Ms Smurthwaite contacted the Agency, the intention of the parties was for the former care arrangement that had been made under an interim court order to resume and that the pattern of care was for [Mr A] to have the children one weekend a month (two nights per month or 12 nights per year) and half of each school holidays (42 nights per year, for six weeks of mid-year holidays and six weeks of long term summer holidays).  This pattern of care amounts to [Mr A] having 66 nights of care per year, or 18% care, and Ms Smurthwaite having the remaining 299 nights of care per year, or 82% care.

6. The Tribunal notes that the decision before the Tribunal is one of a series of care decisions made within the Agency and by this Tribunal over the past 14 months.  The Tribunal notes that the parties have appeared before this Tribunal previously (differently constituted) where the Tribunal made a care decision on 25 August 2021 that from 13 April 2020, [Mr A] had a percentage of care of the children of 0% and Ms Smurthwaite had a percentage of care of the children of 82%; and that from 7 January 2021, [Mr A] had a percentage of care of the children of 0% and Ms Smurthwaite had a percentage of care of the children of 100%. 

7. The current decision before this Tribunal relates to Ms Smurthwaite’s contact with the Agency on 6 April 2021 and the anticipated care arrangements at that point in time.

8. The Tribunal notes that Ms Smurthwaite contacted the Agency in writing on 19 July 2021 to advise that the anticipated care pattern had not been occurring (folio 83) and that this was treated as a change in care notification by the Agency (folio 84) but was subsequently rejected as it pre-dated the Agency’s previous care decision (folio 85).  Ms Smurthwaite contacted the Agency again on 8 August 2021 in writing (folio 91) and provided details about the care that had been occurring from 1 January 2020 to 8 August 2021.  This was again treated as a change in care notification (folio 92) and on 26 August 2021, the Agency made a decision to reflect Ms Smurthwaite as having 99% care of the children and [Mr A] as having 1% care of the children from January 2020, but notified on 8 August 2021. On 26 August 2021, the care percentages for the parties were updated in line with this decision (folio 103). 

9. The Tribunal finds that the previous decision of this Tribunal addresses the period prior to Ms Smurthwaite’s contact with the Agency on 6 April 2021, which is the basis on which the Tribunal has jurisdiction to review the care arrangements for the children.  Subsequent contacts with the Agency have been treated as further change of care notifications.  The Tribunal considers it appropriate, given the history of this matter and given that rights of objection and appeal arise at each point the Agency makes a new decision about care, to limit its review to the intention of the parties as at the time Ms Smurthwaite contacted the Agency on 6 April 2021.  The evidence before the Tribunal is that some shared care of the children had resumed in February 2021 and that as of April 2021 [Mr A] had half of the school holidays with the children.  Ms Smurthwaite’s information provided to the Agency indicated that weekend care of the children also occurred in May 2021.  The Tribunal finds that, as of 6 April 2021 when Ms Smurthwaite contacted the Agency to advise of a change to the care arrangements, the pattern of care negotiated between the parents at that point was for the previous court-ordered care to resume and for Ms Smurthwaite to have 82% care of the children and for [Mr A] to have 18% care of the children. 

10. Having regard to the cost percentages set out in section 55C of the Assessment Act, the Tribunal finds that if it were to make a new care determination, Ms Smurthwaite would have a cost percentage of 76% (under the administrative assessment Ms Smurthwaite had a cost percentage of 100%) and [Mr A] would have a cost percentage of 24% (under the administrative assessment [Mr A] had a cost percentage of 0%). Paragraph 54F(1)(b) is met.

11. The Tribunal must next consider whether section 54G applies. For this section to apply, the Tribunal would need to be satisfied that one parent had less than 14% care of the children. This does not apply in the circumstances of this case and paragraph 54F(1)(c) is therefore met.

12. As to whether subsection 54F(2) applies, the Tribunal finds that it does on the basis that section 51 did not apply (see: paragraph 54F(2)(a) of the Assessment Act). Paragraph 54F(1)(d) is therefore also met.

13. As all of the requirements set out in subsection 54F(1) are established in this case, the Tribunal must revoke the existing determination of care and make another determination under section 49 or 50 to replace the revoked determination. The Tribunal finds that the new determination of care is to reflect that Ms Smurthwaite had 82% care of the children and [Mr A] had 18% care of the children.

14. Subsection 54F(3) of the Assessment Act provided for the dates of effect of a revocation of care and the date from which a new care determination took effect. The Tribunal finds that the change of care occurred from 5 February 2021 and that the change was notified on 6 April 2021. Notification did not occur within 28 days of the change of care occurring.

15. In these circumstances, subparagraph 54F(3)(b)(ii) provides that, as Ms Smurthwaite’s care reduced, the existing determination of care for Ms Smurthwaite is revoked from 4 February 2021 and from 5 February 2021 Ms Smurthwaite is recorded as having 82% care of the children. 

16. Subparagraph 54F(3)(b)(i) provides that, as [Mr A]’s care increased, the existing determination of care for [Mr A] is revoked from 5 April 2021 and from 6 April 2021 [Mr A] is recorded as having 18% care of the children.

17. As the objections officer’s decision reflects that the decision is to reflect the care from 5 February 2021, “notified on 6 April 2021” and does not address the separate dates from which each parent’s existing determination of care is revoked, the Tribunal has decided to set aside the decision under review and substitute its decision that the existing determination of care for Ms Smurthwaite is revoked from 4 February 2021 and from 5 February 2021 Ms Smurthwaite is recorded as having 82% care of the children and the existing determination of care for [Mr A] is revoked from 5 April 2021 and from 6 April 2021 [Mr A] is recorded as having 18% care of the children.

18. The Tribunal notes that a subsequent care decision made by the Agency changes the care percentages again from 8 August 2021 and the Tribunal’s decision is not intended to affect that decision, which carries separate objection and appeal rights. 

DECISION

The Tribunal sets aside the decision under review and substitutes its decision that:

• The existing determination of care for Ms Smurthwaite is revoked from 4 February 2021 and from 5 February 2021 Ms Smurthwaite is recorded as having 82% care of the children;

• The existing determination of care for [Mr A] is revoked from 5 April 2021 and from 6 April 2021 [Mr A] is recorded as having 18% care of the children.