Taylor and Tuckey (Child support)

Taylor and Tuckey (Child support) [2022] AATA 2107 (25 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/PC022558
APPLICANT:  Ms Taylor
OTHER PARTIES:  Child Support Registrar
Mr Tuckey

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 25 May 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Taylor provides 92 per cent care of [Child 1] and Mr Tuckey provides 8 per cent care from 11 April 2020 but with effect from 22 July 2020 for Ms Taylor and from 11 April 2020 for Mr Tuckey.

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

This review is about a change to the percentage of care determinations for Ms Taylor and Mr Tuckey in respect of their child [Child 1] (born June 2007). There has been a child support assessment in place since 25 January 2008 and Mr Tuckey is the liable parent.
From 28 September 2019 the child support assessment reflected Ms Taylor as having 83 per cent care and Mr Tuckey as having 17 per cent care of [Child 1].
As part of an objection process relating to a separate care matter involving the parents the Child Support Agency received information that a change in care for [Child 1] occurred on 11 April 2020.
On 13 January 2021, based on the information received, the Child Support Agency made the decision to reflect that Ms Taylor provides 100 per cent care and Mr Tuckey provides 0 per cent care of [Child 1] from 11 April 2020.
On 28 July 2020 Mr Tuckey objected to this decision. On 8 October 2021 the Child Support Agency allowed the objection and made the decision to refuse to reflect that Ms Taylor provides 100 per cent care and Mr Tuckey provides 0 per cent care of [Child 1] from 11 April 2020 (the objection decision).
On 19 October 2021 Ms Taylor applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 28 April 2022. Ms Taylor and Mr Tuckey gave evidence on affirmation by Microsoft Teams audio. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (283 pages). The Tribunal received additional information from Ms Taylor prior to the hearing and a copy was distributed to the parties (A1–21).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.
Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.
The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.
The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,
· from what date should the new percentage of care determinations take effect?

CONSIDERATION

Ms Taylor told the Tribunal that care of [Child 1] was the subject of court orders dated 13 March 2019. She said under these orders Mr Tuckey was supposed to have care of [Child 1] for all of the school holidays during the year and three weeks during the Christmas holiday period. Ms Taylor said, in her view, Mr Tuckey had not regularly followed the court-ordered care.
Ms Taylor explained that she lived [in] Western Australia and Mr Tuckey lived in Brisbane in Queensland and [Child 1] had only visited his father once or twice a year since the court orders were finalised. Ms Taylor said although restrictions associated with the COVID-19 pandemic made it more difficult for [Child 1] to travel to Queensland in 2020 Mr Tuckey also had insufficient annual leave to see [Child 1] in accordance with the court orders.
Ms Taylor said Mr Tuckey had care of [Child 1] for 22 nights during the December 2019 to January 2020 school holidays but then had no care during the term 1, term 2 or term 3 school holidays in 2020. Ms Taylor said his next period of care was for 30 nights during the Christmas school holidays from 13 December 2020 to 12 January 2021 but Mr Tuckey did not have care during the April 2021 school holidays in keeping with the court orders.
The Tribunal notes in evidence provided by Ms Taylor a copy of orders handed down in the Federal Circuit Court of Australia dated 13 March 2019. The orders state, relevantly, that [Child 1] is to spend time with his father during all term 1, 2 and 3 school holidays as well as three weeks of the Christmas school holidays.
Ms Taylor told the Tribunal that during all the periods of missed care through 2020 she remained solely responsible for [Child 1] and continued to meet his expenses. Ms Taylor acknowledged that [Child 1] did stay with his paternal grandparents for eight nights during the school holidays in July 2020 and for eight nights during the school holidays in September-October 2020. Ms Taylor said she did not believe Mr Tuckey should be able to claim these visits as his care as it was normal for [Child 1] to spend time with both his grandparents. Ms Taylor pointed out there was nothing in the court orders which allowed Mr Tuckey to assign his care of [Child 1] to third parties. Ms Taylor said, furthermore, she had provided cash to [Child 1] to contribute towards food and other activities while he was staying with his paternal grandparents during the school holidays.
Mr Tuckey told the Tribunal he had tried to spend time with [Child 1] in accordance with the court orders but his care was disrupted in 2020 due to the COVID-19 pandemic. Mr Tuckey said border closures and quarantine restrictions had made it extremely difficult for [Child 1] to fly to Brisbane. Mr Tuckey pointed out that it was always his intention to comply with his court-ordered care as illustrated by travel bookings he had made for [Child 1] during 2020.
The Tribunal notes in evidence from the Child Support Agency a series of text message exchanges between the parents relating to the care of [Child 1]. In such exchanges on 22 March 2020 and 23 March 2020 Ms Taylor states she will be cancelling flights for [Child 1] to visit Mr Tuckey during the term 1 and term 2 school holidays due to the coronavirus pandemic. The Tribunal also notes a [flight] booking for [Child 1] to travel from Perth to Brisbane on 26 September 2020. Further text message exchanges between the parents on 7 September 2020 confirm that this flight was also cancelled as, according to Ms Taylor, an application for [Child 1] to re-enter Western Australia to self-quarantine had been rejected.
Mr Tuckey said he did not dispute he was unable to have care of [Child 1] during the term 1, term 2 and term 3 school holidays. Mr Tuckey said as [Child 1] was unable to travel to Brisbane to spend time with him he had arranged for [Child 1] to stay with his parents, [Child 1]’s grandparents, instead. Mr Tuckey said [Child 1] spent eight nights with his grandparents during the July 2020 holidays and a further eight nights during the September–October 2020 holidays. Mr Tuckey pointed out that he had also wanted [Child 1] to stay with his grandparents during the April 2020 school holidays but Ms Taylor had stopped this from taking place. Mr Tuckey argued that care with his parents, [Child 1]’s grandparents, should be considered as his care. Mr Tuckey said there was an agreement in place in relation to such care and he had provided cash to his parents to help meet [Child 1]’s expenses while he was staying overnight with them.
The Tribunal notes in evidence from the Child Support Agency a copy of a statutory declaration made by Mr Tuckey on 11 July 2019. It states that in the event he does not have sufficient leave or is unavailable due to operational requirements then his holiday time with [Child 1] as per the court orders is to be spent with his parents. The statutory declaration is also signed by his father Garry Tuckey and his mother Jean Tuckey.
Mr Tuckey told the Tribunal he also arranged to spend extra time with [Child 1] during the Christmas holidays at the end of 2020 to make up for his lost care during the year. Mr Tuckey pointed out that with the 16 nights of care in the term 2 and 3 school holidays and his care during the Christmas 2020 school holidays this equated to 46 nights in total.
Ms Taylor said she was unaware of the statutory declaration made by Mr Tuckey with his parents. She reiterated that, in any case, Mr Tuckey should not be able to allocate his care to his parents.
The parents agree that under the court orders dated 13 March 2019 Mr Tuckey is to have care of [Child 1] for nine weeks, or 17 per cent care, a year. There is no dispute between the parents that Mr Tuckey had care of [Child 1] during the Christmas school holidays at the end of 2019 but then missed his court-ordered holiday care commencing on 11 April 2020. Mr Tuckey has explained this was due to circumstances beyond his control as a result of the coronavirus pandemic. Mr Tuckey has also argued that it was always his intention to have his court-ordered care of [Child 1] and his parents had care during the July school holidays and the September–October school holidays when he could not. Mr Tuckey believes this care should be considered as care to him particularly given the statutory declaration he signed with his parents. Ms Taylor disagrees and has pointed out that Mr Tuckey next had overnight care of 30 nights from 13 December 2020 to 12 January 2021.
The Tribunal notes that, in a submission to the Child Support Agency, Mr Tuckey refers to the Child Support Guide at 2.2.1 to reinforce his argument:
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
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.
A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
Ms Taylor has told the Tribunal she was not aware of the statutory declaration made by Mr Tuckey involving his parents and, in any case, did not agree with this arrangement. Ms Taylor has said that [Child 1] often stayed with both sets of grandparents and this was not unusual.
The Tribunal is not satisfied, based on the evidence provided, that the time [Child 1] spent with his paternal grandparents should be considered as care to Mr Tuckey. It is the view of the Tribunal that Ms Taylor remained the eligible carer responsible for [Child 1] and was the parent making decisions relating to his overall health and wellbeing during this period. In terms of financial support both parents have said they provided cash to assist Mr Tuckey’s parents to meet any extra expenses while [Child 1] was staying with them.
The Tribunal accepts that the COVID-19 pandemic would have disrupted plans Mr Tuckey had made for [Child 1] to spend time with him in Queensland in keeping with his court-ordered care. In circumstances where a parent is assessed to have at least regular care of a child and this pattern changes the Child Support Guide states at 2.2.3:
A parent or non-parent carer ceases a pattern of care when they stop having care of a child in accordance with the previously established pattern. The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:
·missed 3 care events in a row
·missed 5 care events out of 8, or
·missed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).
Although not bound by policy as set out in the Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established as Mr Tuckey had missed three care events commencing with the first period of missed care from 11 April 2020. While the Tribunal acknowledges this change occurred through no fault of Mr Tuckey, there was nonetheless a change in the pattern of care for [Child 1] from this date.
The Tribunal, in making a decision about the care of [Child 1], must take into account evidence of the care each parent had up until the time of the original decision made by the Child Support Agency, in this case 13 January 2021, as well as evidence of the likely care each parent was to have going forward. In other words, the Tribunal makes a care determination at the point in time the original decision was made.
Although Mr Tuckey has argued it was always his intention to meet his court-ordered care of [Child 1] the Tribunal has established this care did not take place during the school holidays in April 2020, July 2020 and September-October 2020. There is no evidence to suggest Mr Tuckey had care of [Child 1] during the April 2021 school holidays. The Tribunal is satisfied that for the 12-month care period commencing 11 April 2020 Mr Tuckey had care totalling 30 nights, or 8 per cent care, of [Child 1]. Even if the Tribunal accepted the argument made by Mr Tuckey that the nights [Child 1] spent with his grandparents in July 2020 and September-October 2020 should be considered his care, Mr Tuckey would still have below regular care.
The existing percentages of care reflected in the assessment for [Child 1] were 83 per cent to Ms Taylor and 17 per cent to Mr Tuckey. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.
As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Taylor and Mr Tuckey under section 50 of the Act.
The Tribunal finds that Ms Taylor provides 92 per cent care and Mr Tuckey provides 8 per cent care of [Child 1] from 11 April 2020.

Date of effect of new care percentage determinations

Ms Taylor notified the Child Support Agency on 24 March 2020 that care of [Child 1] had changed because [Child 1] was not going to Brisbane to spend time with Mr Tuckey during the April 2020 school holidays. Although both parents provided some evidence in relation to this change of care notification it was ultimately refused by the Child Support Agency in a decision dated 6 April 2020. The Tribunal notes, at the time of her notification, the change in care had not actually occurred and on 6 April 2020 a child support officer advised Ms Taylor to lodge a further change from 11 April 2020 (being the date the change in care was to take place).
Ms Taylor next notified the Child Support Agency of a change in care on 22 July 2020. The Tribunal notes in her notification Ms Taylor sTaylors that care changed because Mr Tuckey did not have care during the term 1 and term 2 school holidays. The Tribunal further notes in correspondence to Ms Taylor dated 4 March 2021 relating to the care of [Child 1], the Child Support Agency confirms that, “We were told on 22 July 2020 that care of [Child 1] changed on 11 April 2020”.
The Tribunal is satisfied the change of care notification made by Ms Taylor on 24 March 2020 cannot be accepted because the change in care had not actually taken place. The Tribunal finds that Ms Taylor notified the Child Support Agency of the change in care under consideration on 22 July 2020. As this is more than 28 days after the change occurred on 11 April 2020, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.
The new determinations can be made from 22 July 2020 for Ms Taylor and from 11 April 2020 for Mr Tuckey.

DECISION

[2022] AATA 2107

25 May 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Judicial Review

Jurisdiction

Remedies