Sommer and Stott (Child support)

[2023] AATA 1639

Sommer and Stott (Child support) [2023] AATA 1639 (19 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025093

APPLICANT:  Ms Sommer

OTHER PARTIES:  Child Support Registrar

Mr Stott

TRIBUNAL:Member M Baulch

DECISION DATE:  19 April 2023

DECISION:

The decision under review is affirmed.

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 affirmed

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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the age and number of children, and the percentages of care.

2. Ms Sommer and Mr Stott are the separated parents of one child born in 2012.  Since 12 April 2017, Services Australia – Child Support (Child Support) has made administrative assessments of child support under the Act.  Recently, those assessments had been on the basis that Ms Sommer had 66% care of the child and Mr Stott had 34% care.

3. On 2 August 2022, Mr Stott advised Child Support there had been a change to the care arrangements for the child, such that he had care for six nights per fortnight, or 42% of the time, since 5 April 2020.  That information was considered by a Child Support employee, who decided on 6 September 2022 that the care percentages applying to the child support assessment for the child should record Ms Sommer as having 58% care, with effect from 5 April 2020, and Mr Stott as having 42% care, with effect from 2 August 2022 (the decision under review).

4. Ms Sommer objected to that decision and, on 9 November 2022, that objection was disallowed.  Ms Sommer has now applied to this tribunal for an independent review of Child Support’s decision.

5. A hearing into the application for review was held by the tribunal on 19 April 2023. Ms Sommer and Mr Stott both participated in the hearing by conference telephone, and both gave sworn evidence during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (135 pages), copies of which both parties confirmed they had received prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what should be the percentages of care that apply in the child support assessment for Ms Sommer and Mr Stott?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child during a care period.  Since 17 June 2019, the percentages of care that have applied to the child support assessment recorded Ms Sommer as having 66% care of the child and Mr Stott as having 34% care.

2. Care is generally calculated over a “care period”, which is a period that the Registrar considers, or I standing in the Registrar’s shoes considers, to be appropriate having regard to all the circumstances of the matter (section 50 of the Act).  Australian government policy in this regard, as set out in the Child Support Guide[1] at 2.2.1, is that a care period is generally a 12-month period starting from the day on which the actual care for a child changed.

   [1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.70, can be found at >

   I noted that I am not bound by policy as set out in the Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

3. There is no dispute that care changed on 5 April 2020, and I therefore found that the care period applicable in this case is 5 April 2020 to 4 April 2021.

4. Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.  The evidence of both parents was that the agreement between them was that Ms Sommer had care of the child for eight nights per fortnight (Sunday night to Monday night) and Mr Stott care for the other six nights per fortnight.  Both parents gave evidence that there were sometimes variations from these arrangements, but the extent and frequency of the variations from the usual care arrangements were disputed. 

5. Ms Sommer’s evidence was that there were many occasions when she had additional care of the child.  She has provided text messages which support her evidence in this regard.  She told me that there were occasions when she had care for 10 nights (rather than the usual eight) and sole care for up to three weeks.  Ms Sommer stated that over the two years of 2020 and 2021, she estimated that she would have had additional care of the child for up to 30 nights.

6. Mr Stott did not dispute that there were occasions when Ms Sommer had additional care but stated that there were also occasions when he had extra care.  Mr Stott’s evidence was that they had pretty much equal care of the child.

7. I was not persuaded by Mr Stott’s evidence that they had equal care of the child.  It is not substantiated by his own advice to Child Support that he was having care for six nights per fortnight.

8. It was clear that initially, the care arrangements did follow a pattern of care under which Ms Sommer had care for eight nights (58%) and then Mr Stott had care for six nights (42%).  However, I accepted Ms Sommer’s evidence that she occasionally had more care than eight nights in any one fortnight.  I considered what this means in the context of identifying a change to the 58% – 42% pattern of care that had applied from 5 April 2020.

9. I noted that determining a percentage of care does not have to be attended with mathematical precision.  In the case of Watanabe & Watanabe (SSAT Appeal) [2010] FMCAfam 94, Federal Magistrate Slack, as he then was, stated at [22]:

   The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care.  The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act).  I do not though consider that this exercise should become an exercise in mathematical accounting.  The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).

10. When considering variations to a pattern of care, I noted that government policy, set out in the Guide at 2.2.2, is that:

    Not all changes in care will result in a change to the 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.

    Government policy on when one parent having a short period of 100% care may constitute a change to a pattern of care says (at 2.2.2):

    Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

    The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

    I found this policy to be unobjectionable and, in the interests of consistency in decision-making, considered it ought to be applied.

11. Having regard to the frequency and duration of the variation in the care arrangements away from the usual eight nights – six nights pattern, I was not persuaded that the variations are sufficiently frequent or that they persisted for a sufficient duration to demonstrate a new pattern of care being established.  The variation in arrangements appear to be ad hoc and the usual pattern of eight nights – six nights was always resumed.

12. Having regard to the evidence, I therefore found that from 5 April 2020 to 4 April 2021 there was a pattern of care under which Ms Sommer would have care for 239 nights and Mr Stott for 126 nights.  Applying the rounding rules in section 54D of the Act, I found that Ms Sommer had 58% care, and Mr Stott 42% care, of the child from 5 April 2020.

13. Section 54F of the Act provides that existing care percentage determinations, in this case 66% and 34%, must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

14. Section 55C of the Act 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%

I was satisfied that Ms Sommer having 58% care of the child, and Mr Stott having 42% care, will result in a change to the cost percentages used in the child support assessment.  Therefore, the care percentage determinations of 66% care for Ms Sommer and 34% care for Mr Stott, that had applied from 17 June 2019, must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised, or otherwise becomes aware, of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. Mr Stott advised Child Support about the change in the care arrangements for the child on 2 August 2022 and it is undisputed that the pattern of care changed from 5 April 2020.  This means that Mr Stott advised Child Support about the change in the care arrangements more than 28 days after they occurred.  As a consequence:

   ·      Ms Sommer’s percentage of care has reduced, so the previous care determination applying for Ms Sommer is revoked from the day before the change in care occurred; in other words, 4 April 2020; and

   ·      Mr Stott’s care percentage increased, so the previous care determination applying for Mr Stott is revoked from the day before Child Support was notified; in other words, from 1 August 2022.

3. As I have revoked the existing care percentage determinations that applied in respect of the child, I must make new care percentage determinations that reflect the pattern of care occurring from 5 April 2020.  Accordingly:

   ·      Pursuant to section 50 of the Act, I determined that Ms Sommer’s percentage of care for the child is 58%.

   ·      Pursuant to section 50 of the Act, I determined that Mr Stott’s percentage of care for the child is 42%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked; that is from 5 April 2020 for Ms Sommer and from 2 August 2022 for Mr Stott.

4. I have arrived at a decision that is identical to the decision made by Child Support on 6 September 2022.  Therefore, and for these reasons, I decided to affirm the decision under review.

DECISION

The decision under review is affirmed.