Stacy and Stacy (Child support)

[2023] AATA 3389

Stacy and Stacy (Child support) [2023] AATA 3389 (7 September 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025997

APPLICANT:  Mr Stacy

OTHER PARTIES:  Child Support Registrar

Ms Stacy

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  7 September 2023

DECISION:

The tribunal sets aside the decision under review and substitutes a new decision that, Ms Stacy has 86% care and Mr Stacy has 14% care of [Children 1 and 2] from 4 December 2022 (which is the start of the administrative assessment of child support). But the date of effect of the tribunal’s decision is 3 March 2023.

(This means the application for review is partly successful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – tribunal decides not to make a determination under subsection 87AA(2)

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. Ms Stacy and Mr Stacy are the parents of [Children 1 and 2] (the children). On 19 December 2022 Services Australia (Child Support) accepted an application for registration of child support by Ms Stacy. A child support case commenced for [the children] from 4 December 2022. From the start of the assessment on 4 December 2022 [the children] were recorded as being in Ms Stacy’s 93% care and Mr Stacy’s 7% care.

2. On 5 January 2023 Child Support made another decision to accept the care of [Child 1] as applying from 27 August 2013 and for [Child 2] from 7 October 2016 being the date of birth for each child. The date of effect of the commencement of the child support assessment was recorded as applying from 4 December 2022. This is not the decision the tribunal is reviewing.[1]

   [1] The tribunal was perplexed by this decision because the care of [the children] has been recorded as being in Ms Stacy’s 97% care from the date of birth, even though the date of effect of the Child Support assessment is 4 December 2022. It is probable Ms Stacy has misunderstood the claim form and has indicated she has had 97% care of [the children] from their respective date of birth. As Ms Stacy and Mr Stacy were not separated at those times the tribunal finds that recording care from the date of birth of each child is incorrect because both parents would have cared for the children. While this is not the decision under review the tribunal wanted to bring it to Child Support’s attention.

3. On 2 March 2023 Mr Stacy objected to the decision of Child Support to accept the care percentages for [the children] as 93% to Ms Stacy and 7% to him. Mr Stacy thought the correct percentage of care applying to the administrative assessment of child support from the date of registration was 86% to Ms Stacy and 14% to him. On 20 April 2023 an objections officer disallowed Mr Stacy’s objection and the care of [the children] remained at 93% to Ms Stacy and 7% to Mr Stacy.

4. On 24 April 2023 Mr Stacy applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. Ms Stacy was contacted at the time of the hearing; she was at work and was unable to participate in the hearing. Mr Stacy gave evidence under affirmation during a telephone hearing held on 7 September 2023. The tribunal had before it a bundle of documents (107 pages – referred to as the hearing papers). Mr Stacy said he did not receive the supplementary hearing papers (pages 87–107) but nonetheless Mr Stacy agreed to proceed; the bundle of papers (pages 1–86) had been sent to Mr Stacy prior to the hearing. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      What is the care percentage applicable to each parent from the date of registration?

   ·      If the care percentages determined by Child Support are varied by the tribunal, what is the date of effect of the tribunal’s decision?

LAW AND CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

   [2] [1979] AATA 179.

2. The Guide at 1.1.1 provides a background to the establishment of the child support scheme. The scheme was established in 1988 to assist separated parents to take responsibility for the financial support of their children. The scheme involves the assessment of child support in accordance with a formula as well as the collection and enforcement of child support assessments, child support agreements and court orders.

3. Section 3 of the Assessment Act provides that parents have a primary duty to maintain their child. Subsection 4(1) of the Assessment Act provides that the principal object of the Assessment Act is to ensure children receive a proper level of financial support from their parents. Subsections 4(2) and 4(3) state:

   (2)      Particular objects of this Act include ensuring:

   (a) that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and

   (b) that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and

   (c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and

   (d) that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and

   (e) that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.

   (3) It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:

   (a) to permit parents to make private arrangements for the financial support of their children; and

   (b) to limit interferences with the privacy of persons.

Issue 1 – What is the care percentage applicable to each parent from the date of registration?

1. In accordance with section 25 of the Assessment Act a parent may apply to the Registrar for an administrative assessment of child support. Ms Stacy applied to Child Support for an administrative assessment for [the children] by lodging an application on 4 December 2022.[3]

   [3] Page 16 of the hearing papers.

2. Section 30 of the Assessment Act provides that if the Registrar is satisfied that an application for the administrative assessment of child support is properly made, the application must be accepted. Once an application is accepted the Registrar is required to assess child support “as quickly as possible” (subsection 31(1) of the Assessment Act), by assessing both parents in respect of the cost of the child under Part 5 of the Assessment Act. The child support period starts on the day the application is made (subparagraph 31(1)(b)(ii) of the Assessment Act).

3. The care period is not defined in the Assessment Act but the Guide at 2.2.1 provides assistance:

   A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

   …

   A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care.

4. Mr Stacy confirmed that there are no written agreements, parenting plans or court orders which apply to the care of [the children]. Mr Stacy said the care is worked out between himself and Ms Stacy and is based on his availability in accordance with his employment roster. He said he and Ms Stacy are able to discuss the care arrangements of the children and he is keen to have care as his roster permits.

5. The tribunal notes that during a phone call Ms Stacy had with Child Support on 16 December 2022 she requested Child Support not contact Mr Stacy until the following week.[4] The tribunal notes that Child Support contacted Mr Stacy on 19 December 2022. It does not seem Child Support discussed the care percentages Ms Stacy had advised on her application for child support.[5]

   [4] Page 23 of the hearing papers.

   [5] Page 25 of the hearing papers.

6. Mr Stacy said he and Ms Stacy didn’t have a discussion about the care arrangements for [the children] post separation. He said he works as [an Occupation] between [City 1] and [City 2] originating in [City 3]. He said he works shift work [doing a job task] between those locations and he does not know his roster until 36 hours prior to his next shift. Mr Stacy said due to how the roster is structured he is never sure when he can have the children in his care, but he tries to have them as much as possible, his roster permitting.

7. Mr Stacy said he disagrees with the care determination being 7% to him and 93% to Ms Stacy. He said he has greater care of [the children] than the care reflected in the administrative assessment of child support.

8. Mr Stacy said his work prevents him from having a pattern of care for the children but he submitted that his care is more than 7%. In support of Mr Stacy’s submission he provided the dates the children were in his overnight care since the start of the assessment:

   ·      December 2022: 5 nights

   ·      January 2023: 12 nights

   ·      February 2023: 4 nights

   ·      March 2023: 4 nights

   ·      April 2023: 6 nights

   ·      May 2023: 5 nights

   ·      June 2023: 12 nights

   ·      July 2023: 12 nights.

9. From the commencement of the administrative assessment of child support on 4 December 2022 to 31 July 2023, Mr Stacy has had the equivalent of 25% care.[6] Mr Stacy said he was happy to have his care reflected at 14% care, submitting he has at least regular care of the children. He wants to pay his share for the care of the children but also to have an accurate care percentage recorded for him. For Mr Stacy to have 14% care of the children, his care for the children will need to be at least 52 nights in 365 days. Based on the care Mr Stacy has had of the children from 4 December 2022 to 31 July 2023, the tribunal is satisfied his care will be at least 14%.

   [6] Out of 239 days in the period (4 December 2022 to 31 July 2023) Mr Stacy has had 60 nights’ care, which is 21% care.

10. The tribunal notes that the ‘care event’ on Ms Stacy’s application commences from 27 August 2013 for [Child 1] and from 7 October 2016 for [Child 2].[7] Ms Stacy indicates on her application that the parents separated on 17 October 2022. Mr Stacy said he believes the date of separation is 15 October 2022, the day he moved into his parents’ house. The tribunal finds that the date the care commenced for both children was the start of the administrative assessment on 4 December 2022.

    [7] Pages 19–22 of the hearing papers.

11. Based on the oral and material evidence before the tribunal, the tribunal is satisfied from the commencement of the child support assessment for [the children] on 4 December 2022 that the care has been 86% care to Ms Stacy and 14% care to Mr Stacy.

12. Ms Stacy was unable to attend the hearing due to work commitments. Mr Stacy said he did not think Ms Stacy would disagree that his care was 14%, given the actual care that has occurred since the application for the child support assessment.

13. The care determination is made in accordance with section 50 of the Assessment Act which applies from 4 December 2022, that Ms Stacy has 86% care of [the children] and Mr Stacy has 14% care.

Issue 2 – What is the date of effect of the tribunal’s decision?

1. Subsection 87AA(1) of the Act provides that if a person lodges an objection to a care percentage decision, and the objection is lodged more than 28 days after notice of the decision was given, and the Registrar allows the objection then, the date of effect of the review decision is the day on which the person lodged the objection.

2. Subsection 87AA(2) provides, if the Registrar is satisfied that special circumstances prevented the person from lodging an application within the 28-day period, the Registrar may determine a longer period applies.

3. Mr Stacy applied for review of the objections officer’s decision with the tribunal on 24 April 2023, as this was within 28 days of the objections officer’s decision, the date of effect of the tribunal’s decision will be the date of the objections officer’s decision on 2 March 2023, unless a longer period should apply in accordance with subsection 87AA(2) of the Act. The tribunal has determined a longer period should not apply, as such, the date of effect of the tribunal’s decision is 2 March 2023.

DECISION

The tribunal sets aside the decision under review and substitutes a new decision that, Ms Stacy has 86% care and Mr Stacy has 14% care of [the children] from 4 December 2022 (which is the start of the administrative assessment of child support). But the date of effect of the tribunal’s decision is 3 March 2023.

(This means the application for review is partly successful.)