Terrell and Terrell (Child support)

[2024] AATA 782

Terrell and Terrell (Child support) [2024] AATA 782 (19 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026858

2023/MC026864

APPLICANT:  Mr Terrell

OTHER PARTIES:  Child Support Registrar

Ms Terrell

TRIBUNAL:Member R Prasad

DECISION DATE:  19 February 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 25 May 2022 and a new care determination is made that Mr Terrell had 39% care and Ms Terrell had 61% care of the children from 26 May 2022.

The Tribunal decides not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and therefore the date of effect of the Tribunal’s decision is 1 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – date of effect provisions – 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. Since 17 November 2021, Mr Terrell (the father) and Ms Terrell (the mother) have had a registered child support assessment for their children. Services Australia – Child Support (Child Support) has collected child support on the basis the mother had 79% care and the father 21% care of the children from that date. These percentages denote the existing percentages of care.

2. On 27 May 2022, the father notified Child Support of a change in the care of the children on the basis that he was caring for the children five nights each fortnight and therefore the mother had 65% care and the father had 35% care of the children from 26 May 2022.

3. On 28 June 2022, Child Support contacted the mother in relation to the care change notification by the father and she advised she was willing to accept the change of care level but asserted the date of effect was 2 June 2022.

4. On 10 July 2022, the father provided a letter from the mother’s lawyers, [Law Firm 1], dated 18 May 2022 ([Law Firm 1] letter), which he asserted supports his care change notification.

5. On 29 July 2022, the father advised Child Support that he and the mother had reached agreement on care on 18 May 2022, but that care changed on 26 May 2022 when he had the children for one night and the following week commencing 2 June 2022 he had care on four nights. The mother checked her documents and agreed that the date of effect was 26 May 2022.

6. On 1 August 2022, Child Support decided to reflect the care as 65% to the mother and 35% to the father from 26 May 2022 (the original decision).

7. On 1 May 2023, the father objected to the original decision on the basis that he has care of the children for five nights a fortnight and half of the school holidays, and therefore his care should be 39% or 40% over the year. On 27 May 2023, he provided an unsigned parenting plan to this effect. On 13 June 2023, he provided a table that included a summary of the number of days he had care each month, which he calculated to be 40% for himself, and 60% to the mother.

8. On 5 September 2023, the mother confirmed with Child Support that the father has the children five nights each fortnight and half of the school holidays since at least May 2022.

9. On 8 September 2023, Child Support allowed the father’s objection and decided to reflect care of the children as 38% to the father and 62% to the mother (the objection decision). Further, Child Support was not satisfied that there were special circumstances that prevented the father from lodging the objection on time and the date of effect of the decision was from 1 May 2023.

10. On 3 October 2023, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The father provided submissions (folios A1 to A11).

11. The matter was heard on 31 January 2024 and proceeded as a shuttle hearing. The mother and father appeared by MS Teams audio. The Child Support Registrar elected not to be represented at the hearing, but provided documentation (folios 1 to 169 for both 2023/MC026858 and 2023/MC026864).

12. During the hearing, I allowed the father to provide evidence to corroborate his claims and noted the mother would also be permitted to respond to his evidence, after which I would proceed to make my decision. The father provided the additional information (folios A12 to A49), and a copy of these documents was exchanged with the mother. The mother provided a response to the father’s additional information (folio B1 to B11), and a copy was provided to the father.

ISSUES

1. The relevant issue before me is whether there was a change to the children’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 50 of the Child Support (Assessment) Act 1989 (the Act) provides that if an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a Court order.

3. The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person. Section 54D provides that a percentage of care must be rounded up to the nearest whole percentage if it is greater than 50% and rounded down to the nearest whole percentage if it is less than 50%.

4. Under section 54F of the Act, if sections 51 and 54G do not apply, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage.

5. Section 54G of the Act provides that where a person was to have at least regular care of a child but had less than regular care despite the child being made available, a care percentage determination is made under section 50 for the other responsible person, and notification of the care change has been made in a reasonable period, the existing care percentage must be revoked. Subsection 5(2) provides that a person has regular care of a child if the person has at least 14% but less than 35% care.

6. Under section 55C of the Act, a person has a different cost percentage if their care percentage changes.

7. The Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) provides for the date of effect of objections where care percentage decisions are allowed. Section 87AA states that if an objection is lodged more than 28 days after notice of the care percentage decision was given and a decision is made to vary or substitute the original decision, the date of effect of the decision is the day on which the objection is lodged, unless there are special circumstances that prevented the person from lodging the objection in time.

What information has been provided in relation to the care of the children?

1. In his application for review, the father disagreed with the objection decision stating that care ‘should be 60/40 (59/41) in line with school holidays’. At the hearing, the father asserted that he wants the change of care to be backdated to 18 May 2022 and referred to the [Law Firm 1] letter, which included proposed consent orders that he stated showed the parties agreed they would have equal care in school holidays. In relation to whether care commenced from 18 May 2022, being the date of the [Law Firm 1] letter, the father confirmed that he did not have care from that date but that was when the agreement commenced. The father also confirmed that while the [Law Firm 1] letters include proposed consent orders, it remains unsigned.

2. The father provided a table of the number of days he has calculated they would each have care of the children (the table) and advised that this replaced a previous version he had given Child Support on 27 May 2023. From his calculations, his care percentage is 40% and the mother has 60% care of the children. He asserted that Child Support used a random number of days to determine the care, which is not applicable for the care that he and the mother provide. To support his claims, the father provided school calendars for 2022 and 2023 to show the number of days the children were in school and on holidays. The calendar shows that over the year since the purported care change in May 2022, school holidays occurred 27 June to 10 July 2022, 19 September to 2 October 2022, 5 December 2022 to 30 January 2023, and 6 to 23 April 2023, with the next holidays commencing from 24 June to 9 July 2023.

3. The mother advised that the youngest child was currently in primary school and the older children were in high school, and so the school terms and holidays differed. She asserted that holiday care commenced from when the last child finished their school term, regardless of whether the other children were already on holidays. The father confirmed this to be the case. The mother stated that when school holidays commenced, they would each have care in alternate weeks and when holidays were for an odd number of days, the extra days were shared and would alternate between herself and the father. The father stated they come to an agreement about the extra day.

4. In relation to the school holiday care, the mother did not think the number of days reflected on the table was correct. Rather than 110 days, she thought the holidays were around 80 to 85 days. She provided submissions advising that the father had included public holidays, specifically Labour Day on 13 March 2023, Monarch’s Official Birthday on 12 June 2023, and Melbourne Cup Day on 7 November 2023, as part of the holiday care, when the children did not spend the night with the father as it was not part of his rotation of care. She asserted that the father referred to school holidays in June 2023, but he had holiday care in the second week of school holidays which commenced on 1 July 2023 and he therefore did not have holiday care in June 2023. In December 2022, she stated that they had agreed to begin the shared holiday care from when primary school concluded on 20 December 2022, despite high school holidays beginning on 5 December 2022. The father had holiday care from 20 to 27 December 2022, and the next exchange occurred on 3 to 10 January 2023, and therefore the father only had 7 days of holiday care in December 2022. In April 2023, the school calendar has 17 days of school holidays, and the father had instead marked 19 days including Anzac Day which was not on his usual week rotation. The mother stated the actual representation of the total school holiday nights the father shared in 2023 was:

   - [Mr Terrell] actual time with children 3/01/2023 - 10/01/2023 (7 nights)

   - [Mr Terrell] actual time with children 17/01/2023 - 24/01/2023 (7 nights)

   March 2023 total shared nights should be 0 not 1 (excluding Labour Day)

   April 2023 18 not 19 (excluding Anzac Day)

   June 2023 [Mr Terrell] had 0 nights of actual care during Term 2 holiday care …

   December 2023 12 (actual nights in [Mr Terrell]'s care) 12

   - [Mr Terrell] W1 school holiday care began 13/12/2023 - 20/12/2023 (7 nights in December 2023)

   - [Mr Terrell] W2 school holiday care began 27/12/2023 - 3/12/2023 (5 nights in December 2023)

5. The Child Support papers indicate that during the school term, the father had five nights care each fortnight, which is also mentioned in the [Law Firm 1] letter and was not disputed by the parties when they discussed the care with Child Support.

6. In relation to the delay in objecting the original care decision, the father advised that he was going through a difficult time where he had to spend time and money to get his children and deal with related proceedings. He mentioned that his father had stage 4 cancer and the mother had prevented him from seeing his father as he lived behind the family home. He removed himself from the family home in November 2021 and went to live with his cousin as he had nowhere else to go and could not find a rental as when he left the family home, he could not take his identification or computer with him and was not given it when requested. To support his claims, he provided correspondence that he sent to his lawyers and his lawyers sent to the mother’s lawyers in July, August and September 2022, about items including his computer that were returned to him, as well as others that he had not received such as his identification documents. The father also mentioned having medical conditions that have caused him problems. In relation to why he did not raise any concern about the original care decision during discussions with Child Support in September and December 2022, the father stated that he had a lot on this mind with his father’s treatment and retrieving his items and mentioned that Child Support did not ask about the nuances.

Has there been a change to the care of the children?

1. I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the children were, or likely to have been, in a parent’s care.

2. The father confirmed that while he and the mother reached agreement about the care arrangements on 18 May 2022 which is the date of the [Law Firm 1] letter, he did not have care from that date. Rather, the papers indicate that the parties confirmed that the father did not have care under this new arrangement until 26 May 2022. I also note that the table provided by the father showed the care he asserted took place from 1 January 2023. However, I have considered the pattern of care from when it commenced, and therefore the care period is from 26 May 2022, rather than from 1 January 2023 or another date.

3. In relation to the current care arrangement, the information before me indicates the father has care five nights a fortnight and half of the school holidays, and holidays with odd number of days are shared between the parties, which means that overall the school holidays are shared equally between the parties. While the father asserted that he and the mother reach an agreement in relation to the odd days, he also contended that they have shared holiday care, which as mentioned above, I have accepted. Further, the mother provided information about the care she asserted the father actually undertook, and while some of the dates are not clear, it does not suggest an alternate pattern to the one mentioned above.

4. The father asserted that the number of days that was used to calculate the care percentage by Child Support was based on random days, rather than his children’s actual school term and holidays. He provided a table which stated that there were 110 days for the children’s school holidays and 255 school days. The mother has disputed this and advised that the father has taken into account public holidays which do not fall within the school holiday period, including Labour Day on 13 March 2023 and Anzac Day on 25 April 2023. I accept the mother’s assertions in relation to these public holidays and consider that as they are not during the children’s school holidays, the children would have been in the care of the parent who had care of them based on the usual care arrangements for the school term. For clarity, I note that in order to determine the number of school holiday days and school term days, the Monarch’s Official Birthday relevant to the care period was on 13 June 2022 and similarly Melbourne Cup Day was on 1 November 2022.

5. The evidence before me also indicates that as the children attend both primary and high school, the school holidays for each vary. Further, the school holiday care commences when all of the children are on school holidays even if one child’s holidays starts earlier. The mother has advised that for the summer school holidays in December 2022, their child in high school started holidays on 5 December 2022, while school for the other children who were in primary school at the time concluded on 20 December 2022. I have not been advised when care commenced for the other school holidays during the care period, and I have therefore considered the high school calendar that was provided for those holidays. Accordingly, I find that during the care period, there were 88 school holiday care days and 277 school days.

6. Having considered the information before me, I am satisfied that the requirements of section 50 of the Act are met and the pattern of care, pursuant to section 54D, for the father has been 39% since 26 May 2022. In relation to the mother’s care, the requirements of section 50 are also satisfied as there was likely to have been a pattern where the mother had 61% care of the children from 26 May 2022.

7. I note that there are no existing court orders or parenting plan in place and therefore section 51 of the Act is not applicable. Further, neither parent has less than regular care, and therefore the requirements of section 54G are not met.

8. The father previously had 21% care of the children and now has 39% care, and the mother had 79% care and now has 61% care. Accordingly, the cost percentages have changed pursuant to section 55C of the Act.

9. Given sections 51 and 54G do not apply, and the cost percentages have changed as the care percentages have changed, the determination of the existing care percentages must be revoked. As the care changed from 26 May 2022, the date of revocation of the determination is 25 May 2022.

When does the new care determination take effect?

36. Subsection 87AA(1) of the Registration and Collection Act provides, among other things, that if an objection is lodged more than 28 days after notice of the care percentage decision was served, and a determination has been made to vary or substitute care percentage decision, the date of effect of the decision is when the person lodged the objection. Subsection 87AA(2) provides that a person can be taken to have made the objection in time if there are special circumstances that prevented the person from lodging the objection within 28 days. The father was notified of the original care decision on 1 August 2022, and he objected to that decision on 1 May 2023. The father advised that he was experiencing difficulties at the time including trying to retrieve his personal belongings and items, finding a place to live, and dealing with his father’s cancer treatment. The father also mentioned his own medical conditions. I note that while he was waiting for his identification documents, he was able to live with his cousin and has since been renting his uncle’s place. While trying to retrieve his identification documents and other items, I note that he had engaged his lawyers to assist him with this process. Further, the father had also spoken to Child Support in September and December 2022 but did not object to the care decision. While I accept the father had a difficult period after leaving the family home, I am not satisfied this prevented him from lodging his objection within time. I am therefore not satisfied that there are special circumstances under subsection 87AA(2) for the application to be considered as if it were made in time.

37. In light of the above, I find that pursuant to subsection 87AA(1) of the Registration and Collection Act, my decision is to take effect from the day the father lodged the objection, being 1 May 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 25 May 2022 and a new care determination is made that Mr Terrell had 39% care and Ms Terrell had 61% care of the children from 26 May 2022.

The Tribunal decides not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 and therefore the date of effect of the Tribunal’s decision is 1 May 2023.