Sproson and Sproson (Child support)

[2023] AATA 1786

Sproson and Sproson (Child support) [2023] AATA 1786 (16 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025606

APPLICANT:  Miss Sproson

OTHER PARTIES:  Child Support Registrar

Mr Sproson

TRIBUNAL:Member R Anderson

DECISION DATE:  16 May 2023

DECISION:

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

• The existing care determinations attributed to Mr Sproson and Miss Sproson in respect of [Child 1] are revoked at 27 July 2022 and new care determinations of 20% to Mr Sproson and 80% to Miss Sproson apply from 28 July 2022; and

• The existing care determinations attributed to Mr Sproson and Miss Sproson in respect of [Child 1] are revoked at 30 September 2022 and new care determinations of 38% to Mr Sproson and 62% to Miss Sproson apply from 1 October 2022.

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 Sproson and Miss Sproson are the separated parents of [Child 1]. The child support assessment was initially registered with Services Australia – Child Support (Child Support) on 30 January 2022. Child Support has been responsible for collection of child support from the outset.

2. Child Support records indicate that Miss Sproson contacted Child Support on 4 August 2022 to advise that since her return from overseas her care of [Child 1] had increased from 0% to 100% care, effective 28 July 2022.

3. Mr Sproson did not agree with Miss Sproson’s assertion. He advised Child Support on 8 August 2022 that while [Child 1] was currently spending all of her time with Miss Sproson, this was a short-term arrangement for her to become reacquainted with her mother. He expected [Child 1] to return to his care around 17 August 2022 for five nights per fortnight, in line with the court-ordered care from 2020.

4. Miss Sproson contacted Child Support on 15 August 2022 and advised that the court orders had not been complied with for some time and there was no plan in place for [Child 1] to stay overnight with her father. Miss Sproson contacted Child Support again on 15 September 2022 to advise that [Child 1] had spent five nights with Mr Sproson from 4 September 2022 to 8 September 2022.

5. In contrast, Mr Sproson advised Child Support on 17 September 2022 that he had overnight care of [Child 1] for 10 nights from 26 August 2022 to 4 September 2022. He also advised that the parents were in discussion in relation to regular week-about care.

6. On 7 October 2022, Mr Sproson wrote to Child Support and notified that the parents have agreed that effective immediately, [Child 1] will be in the care of each parent on alternate weeks from 17 October 2022. On 2 November 2022, Mr Sproson provided a calendar record of his care to November 2022.

7. A record of the discussion between Miss Sproson and Child Support on 17 November 2022 indicates that the parents have agreed to registered care of 70% to Mrs Sproson and 30% to Mr Sproson from 4 September 2022. She also confirmed that the parents had 50/50 care during the month of October 2022. However, prior to that she maintains that [Child 1] was in her care for around 80% of the time and with her father for 20% of the time.

8. On 24 November 2022, a delegate of the Registrar decided to accept that a change in care occurred from 28 July 2022, recording Mr Sproson as having 58% care of [Child 1] and Miss Sproson as having 42% care. A decision was also made on the same day to reject that a change in care to 50/50 commenced from 17 October 2022.

9. Miss Sproson lodged a formal objection to the decision of 24 November 2022 by telephone on 25 November 2022. An objections officer subsequently disallowed the objection on 13 February 2023. Miss Sproson then lodged an application with the Administrative Appeals Tribunal (AAT) on 15 February 2023 for an independent review of the objections officer’s decision.

10. The matter was heard on 16 May 2023. The tribunal received oral evidence on affirmation from Mr Sproson and Miss Sproson, who both participated by conference telephone.

11. In considering this matter the tribunal took into account the oral evidence of the parties given at the hearing and the documents provided by Child Support in accordance with the Administrative Appeals Tribunal Act 1975 numbered 1 to 198. Both parties confirmed receipt of those documents. Miss Sproson also provided further information to the tribunal, numbered A1 to A40, which was also provided to all parties. As discussed at hearing, the further information provided by Miss Sproson on 15 May 2023 was not accepted by the tribunal as it was in relation to the current period which is well after the initial decision made in November 2022. Consequently, it was not relevant to this review.

ISSUES

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

2. This matter relates to the percentage of care to be attributed to each parent in respect of [Child 1]. Mr Sproson told the tribunal that in his view the care has always been about prioritising [Child 1]’s attendance at school and maximising the time she can spend with her mother, as he recognises that this has a psychological impact on [Child 1].

3. Miss Sproson gave oral evidence that while she initially had 100% care of [Child 1], she did not expect this to continue. Rather, she thought the care would revert to the previous court-ordered care of 70% to her and 30% to Mr Sproson.

4. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to Child Support of a change of care arrangements. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.

5. In accordance with sections 49 and 50 of the Act, as at 4 August 2022, when Miss Sproson contacted Child Support, the registered care of [Child 1] was recorded as 100% to Mr Sproson and 0% to Miss Sproson. It is evident that the court-ordered care from 2020 has not been complied with for some time. In any event, the court orders provided are not signed by both parents and are not dated.

17.Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made where an existing determination has been revoked. In this case, the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1] before revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

18.Section 49 applies, relevantly, if the parent “has had, or is likely to have, no 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”. 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”. Both sections reflect the idea that Child Support makes point-in-time care decisions on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. As the recorded care is not based on a written care agreement, section 51 of the Act is not applicable in this case.

1. The tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support. It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as expected at the date of notification to Child Support. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

2. The issues for determination in this review in respect of the care period is:

   •    Should the existing determinations of the percentages of care in respect of [Child 1] be revoked? If so, from when should they be revoked? and

   •    Should new determinations of percentages of care be attributed to Mr Sproson and Miss Sproson in respect of [Child 1]? If so, from when should they apply?

CONSIDERATION

21.The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

1. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraphs 49(1)(b)(ii) and 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal and the tribunal can determine a different care period.

2. While Miss Sproson was adamant at the hearing that she returned from [Country 1] on 28 June 2022 and resumed full care of [Child 1] at that time, all of the evidence in Child Support records indicate that she resumed care of [Child 1] on 28 July 2022. Miss Sproson’s own handwritten letter dated 4 September 2022 states in part, “Father’s Day Sunday Mr Sproson picked [Child 1] up for his first access visit since I regained custody of [Child 1] on 28 July 2022.” The calendars provided by the parents also support the commencement date of a change in the care arrangements of [Child 1] to be 28 July 2022. Accordingly, the tribunal concludes that Miss Sproson had inaccurately recalled the month of June instead of July and is satisfied that 28 July 2022 is the correct start day for the care period.

3. In this case, there is no dispute that Miss Sproson had increased care of [Child 1] from 28 July 2022. While Mr Sproson’s calendar reflects that [Child 1] went into the care of Miss Sproson on 31 July 2022, Miss Sproson’s written evidence indicates that it was 28 July 2022. This means that Mr Sproson had the care of [Child 1] for either three nights or nil nights from 28 July 2022 to 31 July 2022. The parents agree in respect of their respective calendars that [Child 1] was in Mr Sproson’s care for six nights in the month of August 2022. The parents agree in respect of their respective calendars that [Child 1] was in Mr Sproson’s care for seven nights in the month of September 2022, albeit they reference different weeks.

4. It is also evident from the evidence provided that the pattern of care in respect of [Child 1] altered again from 1 October 2022 at the commencement of Term 4 of the school year, prior to the original decisionmaker’s decision.  Accordingly, the tribunal is satisfied that it is appropriate to consider a second care period in these circumstances from 1 October 2022. Therefore, the first care period is from 28 July 2022 until 30 September 2022 and the second is for the 12-month period commencing 1 October 2022.

Care period 28 July 2022 to 30 September 2022

Issue 1 – Should the existing determinations of the percentages of care be revoked? If so, from when should they be revoked?

1. Based on the oral evidence given at hearing, Mr Sproson was expecting [Child 1] to reacquaint with her mother and then to spend five nights per week in his care to enable her attendance at school. He told the tribunal that he expected that [Child 1] would spend weekends and school holidays with Miss Sproson. Miss Sproson gave oral evidence that after the initial reacquaintance with [Child 1], her expectation was that the pattern of care would be 70% to her and 30% to Mr Sproson.

2. Based on the discussion in paragraph 24 above, the tribunal is satisfied that Mr Sproson had care of [Child 1] in the care period 28 July 2022 to 30 September 2022 (65 days) for either 16 nights or 13 nights. This equates to either 24% or 20%.

3. Subsection 54F(1) of the Act provides that if an existing determination of care was made under section 49 or 50 of the Act, then the existing care determination must be revoked if all of the four criteria are met. There is no dispute that there were existing determinations for Mr Sproson and Miss Sproson of percentages of care for [Child 1], being 100% and 0% respectively, made in accordance with sections 50 and 49 of the Act.

4. In relation to paragraph 54F(1)(a) of the Act, Miss Sproson notified Child Support of a change in the level of care that she and Mr Sproson provided to [Child 1] on 4 August 2022. The tribunal found above that a change in care commenced on 28 July 2022. The new care percentages do not correspond to the care registered with Child Support. Therefore, the first criterion is satisfied.

5. In relation to paragraph 54F(1)(b) of the Act, the tribunal must consider whether each person’s cost percentage would change if a new percentage of care determination were made under section 49 or 50 of the Act. Relevantly, section 50 is applicable where a responsible person for the child has had, or is likely to have, a pattern of care during the care period.

6. Section 55C of the Act contains a table that is used to work out a person’s cost percentage. Under the child support assessment based on the existing percentage of care determinations at 4 August 2022, the cost percentages of Mr Sproson and Miss Sproson were 100% and 0% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, whether it be attributing 24% or 20% care to Mr Sproson, his cost percentage would be the same at 24%. Consequently, the cost percentage applicable to Miss Sproson would be 76%. Therefore, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(b) of the Act.

7. As the tribunal has found that both parents have had a percentage of care in respect of [Child 1] in the care period 28 July 2022 to 30 September 2022, the tribunal is satisfied that section 54G of the Act is not applicable in this case, thereby satisfying the third criterion under paragraph 54F(1)(c) of the Act. In addition, as found above, section 51 does not apply for the purposes of paragraph 54F(1)(d) of the Act.

8. As all of the criteria of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care in respect of [Child 1].

9. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether Child Support was notified of the care change within 28 days after it occurred. As discussed above, the tribunal found that the care change advised by Miss Sproson took effect from 28 July 2022. As the notification was made on 4 August 2022, less than 28 days after the change in care occurred, the revocation of the existing determinations takes effect in accordance with paragraph 54F(3)(a) of the Act. That is, the day before the change of care day, being 27 July 2022.

Issue 2 – Should new determinations of percentages of care be attributed to Mr Sproson and Miss Sproson in respect of [Child 1]? If so, from when should they apply?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Sproson and Miss Sproson in respect of [Child 1]. As no care agreement is being adhered to, the tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for [Child 1]. These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 100% care of [Child 1] to Mr Sproson and under section 49 of the Act to attribute 0% care to Miss Sproson should be revoked under section 54F of the Act.

2. During the care period 28 July 2022 to 30 September 2022, on the balance of probabilities the tribunal considers it most likely that [Child 1] returned to the care of Miss Sproson upon her return to Australia on 28 July 2022. As noted above, whether or not [Child 1] returned to her mother’s care on 28 July 2022 or 31 July 2022 has no impact on the cost percentage or the child support liability. The tribunal is satisfied that Mr Sproson and Miss Sproson each had a pattern of care in respect of [Child 1] from 28 July 2022 to 30 September 2022 of 20% and 80% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

3. 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”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. The tribunal has revoked the existing determinations in respect of Mr Sproson and Miss Sproson with effect from 27 July 2022. Therefore, the new determinations should apply in respect of [Child 1] for both parents from 28 July 2022.

Care period 1 October 2022 to 30 September 2023

Issue 1 – Should the existing determinations of the percentages of care be revoked? If so, from when should they be revoked?

1. As noted above, Mr Sproson contacted Child Support on 7 October 2022 to advise that [Child 1] would be in week-about care of each parent. Mr Sproson told the tribunal that his expectation was that [Child 1] would spend school holidays with Miss Sproson. It was evident from the calendars provided by the parents and their oral evidence that the week-about arrangement continued throughout October and into November. Both parties were in agreement that at that time they were both hopeful that week-about care would continue during school terms and [Child 1] would spend school holidays with her mother. The new school term commenced on 1 October 2022.

2. On the basis of the available evidence, the tribunal finds that in the care period 1 October 2022 to 30 September 2023, Mr Sproson’s likely pattern of care of [Child 1] is seven nights per fortnight during school terms, or 140 nights (20 x 7 nights) and no care during the 12 weeks of school holidays. This means that Miss Sproson’s likely pattern of care for [Child 1] is 225 nights. Accordingly, the tribunal is satisfied that a likely pattern of care for [Child 1] in the care period 1 October 2022 to 30 September 2023 in respect of Mr Sproson and Miss Sproson is 38% and 62% respectively, in accordance with the rounding provisions under section 54D of the Act.

3. Based on the tribunal’s determination in respect of the care period ending 30 September 2022, the existing determinations of percentages of care for Mr Sproson and Miss Sproson in respect of [Child 1] at 1 October 2022 are 20% and 80% respectively, made in accordance with section 50 of the Act. This clearly does not correspond to the care as determined by the tribunal for the care period commencing 1 October 2022.

1. As discussed above, under the child support assessment based on the existing percentage of care determinations at 1 October 2022, the cost percentages of Mr Sproson and Miss Sproson were 24% and 76% respectively. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of Mr Sproson and Miss Sproson would be 31% and 69% respectively.

2. As noted above, section 51 is not applicable in this case and given that neither parent has less than regular care of [Child 1], section 54G of the Act is also not applicable. As all four criteria under section 54F of the Act have been met, the tribunal must revoke the existing determinations of percentage of care in respect of [Child 1].

3. In accordance with subsection 54F(3) of the Act, as Mr Sproson notified of the change in care in respect of the care period commencing 1 October 2022 within 28 days of when the change in care occurred, the revocation of the existing determinations takes effect for both parties in accordance with paragraph 54F(3)(a) of the Act. That is, the day before the change of care day, being 30 September 2022.

Issue 2 – Should new determinations of percentages of care be attributed to Mr Sproson and Miss Sproson in respect of [Child 1]? If so, from when should they apply?

1. Having revoked the existing determinations, the tribunal must make new determinations of the percentages of care attributed to Mr Sproson and Miss Sproson in respect of [Child 1]. As no care agreement is being adhered to, the tribunal considered section 50 to be the relevant section of the Act. Under section 50, to make a new determination the tribunal must be satisfied that an existing care determination made under section 49 or 50 has been revoked and that a parent has had or is likely to have a pattern of care for [Child 1]. These matters have been discussed above and the tribunal is satisfied that the determination made under section 50 of the Act to attribute 20% care of [Child 1] to Mr Sproson and 80% care to Miss Sproson should be revoked under section 54F of the Act and that during the care period commencing 1 October 2022, Mr Sproson and Miss Sproson each had a pattern of care in respect of [Child 1] of 38% and 62% respectively. Accordingly, a new care determination is to be made under section 50 of the Act.

2. 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”. Relevantly and in accordance with subparagraph 54B(2)(c)(ii) of the Act, the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. The tribunal has revoked the existing determinations in respect of Mr Sproson and Miss Sproson from 30 September 2022. Therefore, the new determinations should apply in respect of the care of [Child 1] for Mr Sproson and Miss Sproson from 1 October 2022.

DECISION

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

• The existing care determinations attributed to Mr Sproson and Miss Sproson in respect of [Child 1] are revoked at 27 July 2022 and new care determinations of 20% to Mr Sproson and 80% to Miss Sproson apply from 28 July 2022; and

• The existing care determinations attributed to Mr Sproson and Miss Sproson in respect of [Child 1] are revoked at 30 September 2022 and new care determinations of 38% to Mr Sproson and 62% to Miss Sproson apply from 1 October 2022.