Thorn and Child Support Registrar (Child support)

[2022] AATA 2103

Thorn and Child Support Registrar (Child support) [2022] AATA 2103 (3 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023245

APPLICANT:  Mr Thorn

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Prentice

DECISION DATE:  3 June 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the pre-existing percentage of care determinations are not to be revoked and [Mrs A]’s percentage of care is to remain at 51% and Mr Thorn’s percentage of care is to remain at 49%.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 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. Mr Thorn and [Mrs A] are the parents of [Child 1] (born 2003) and [Child 2] (born November 2005).  This application is with respect to a decision by Services Australia – the Child Support Agency (CSA) about the recorded care for [Child 2] only and the advised change of care from 21 April 2021.

2. The existing percentage of care determinations for [Child 2] recorded by the CSA were 49% to Mr Thorn and 51% to [Mrs A][1] from 30 October 2019, when [Mrs A] contacted the CSA on 14 June 2021 and advised a change of care from 21 April 2021 to 20% to Mr Thorn and 80% to [Mrs A] from 21 April 2021.

   [1] The Tribunal notes that 50/50 care is recorded as 51%/49% between parties for system purposes

3. On 30 November 2021 the CSA determined that the care had changed on 21 April 2021 and revoked the existing percentage of care determinations and determined that new percentage of care determinations be recorded as 65% for [Mrs A] and 35% for Mr Thorn.  As [Mrs A] notified the change of care on 14 June 2021, more than 28 days after the change occurred on 21 April 2021, the recorded increased percentage of care (from 50%) to 65% to [Mrs A] had an effective date of 14 June 2021 (the date of notification); however, the decreased percentage (from 50%) to 35% to Mr Thorn took effect from 21 April 2021 (the date of the care change).

4. Mr Thorn lodged an objection with the CSA on 1 December 2021 which was disallowed on 25 January 2022.

5. On 7 February 2022 Mr Thorn lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) as he believes the CSA has incorrectly calculated the level of care for [Child 2].

6. Mr Thorn spoke to the Tribunal by conference telephone at a Hearing on 21 April 2022 and gave evidence on affirmation.  As a person whose interests may be affected by the Tribunal’s decision, [Mrs A] was invited to be added as a party to Mr Thorn’s application, but she did not accept the invitation and did not participate.

7. In considering the application, the Tribunal took into account the oral evidence of Mr Thorn and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1). Subsequent to the Hearing, Mr Thorn provided additional material.

ISSUE

1. The issue is whether the existing care percentage determinations for [Child 2] as at 30 November 2021 are to be revoked and, if so, the date of effect of the revocation and consequential new percentages of care.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

10.  The Tribunal also had regard to the CSA’s Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

1. The scheme of the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

2. 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.”

3. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised and the requirements of the legislation are satisfied such that a new care decision is made.

4. Section 50 reflects the view that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

5. Section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

16.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can then be considered and made if appropriate.

17.Generally speaking, if a change of care is notified to the CSA more than 28 days after it occurs, the new percentage of care determination for the person with decreased care applies from the date of the change; however, the new percentage of care determination for the person with increased care only takes effect from the date of notification.

1. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[2] The relevant policy appears at 2.2.2 of the Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

   Not all changes in care will result in the calculation of a different 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.

   [2] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)). The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed. The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

4. Once each party’s care is determined, if there has been a relevant change, it can be reflected in the child support assessment by revoking the old percentage under sections 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

5. Mr Thorn informed the Tribunal that the pattern of care for [Child 2] has essentially been 50/50 since he and [Mrs A] divorced in 2011.  Mr Thorn and [Mrs A] both work in [Town] on a 7/7 [roster] on alternate weeks.  Over the years there has been occasional non-permanent changes to care over the school holidays but the pattern of care has always remained at 50/50.

6. Mr Thorn acknowledged that between April and September 2021, [Child 2] had spent more time than usual in his mother’s care – a total of 13 additional nights. The Tribunal notes that this is also the total additional nights of care calculated by the CSA (page 100 of the papers). After September 2021 Mr Thorn advised that it went back to the 50/50 arrangement.  Mr Thorn explained that 13 additional nights comprised one additional week – when he had taken a week off work to go away in support of a [Sport] carnival and there were no adults at his home to care for [Child 2]; and then a further six random nights when [Child 2] had decided to stay at his mother’s home for various reasons including because it was closer to where he had a part-time job.

7. In a CSA-initiated call to [Mrs A] on 14 June 2021 (page 21 of the papers), [Mrs A] indicated that she would like to lodge a change in care for [Child 2] from 21 April 2021 and informed the CSA that she had 100% care of [Child 2] for that period (21 April 2021 to 14 June 2021) and at no time had [Child 2] returned to Mr Thorn’s care during that period.  [Mrs A] then changed her claim and told the CSA that she wanted to amend the care to 80% to [Mrs A] and 20% care to Mr Thorn. 

8. On 29 November 2021 the CSA called [Mrs A] and informed her that its calculation of her care of [Child 2] from 21 April 2021 was 65% care to her and 35% care to Mr Thorn.  [Mrs A] informed the CSA that she was happy with that calculation (page 101 of the papers).

9. On 3 February 2022 (page 157 of the papers) [Mrs A] advised the CSA that since 16 November 2021 the care was more likely 50/50 between both parents.  Then, two weeks later on 17 February 2022 (page 160 of the papers) [Mrs A] advised that care from 27 September 2021 had not changed from 65/35.

10. However, Mr Thorn informed the Tribunal that in November and December 2021 he had long service leave and spent increased time with [Child 2] in his care.  Indeed he estimated that it probably amounted to 65% care to him and 35% care to [Mrs A].

11. The Tribunal notes that the evidence from both parties was conflicting.  There would also appear to be anomalies in [Mrs A]’s evidence, including reference in her care diaries to the non-existent date of 31 June.  Overall, however, both parties’ evidence also suggests that allocated care nights vary slightly from time to time but still end up as roughly 50/50.

12. As recognised in the Guide, the Tribunal does not consider that every deviation from an existing pattern of care constitutes a new pattern of care (see paragraphs 18 and 19 of this Decision).

13. Overall the Tribunal is satisfied that there is a consistent 50/50 pattern of care arrangement between the parents with variations from time to time. The Tribunal considers these variations are in the nature of minor variations in care.  It would not be a workable process for minor changes in care to require notification and a separate care decision each time there is a change for a day here or a day there and that is not what is contemplated by the legislation. Having had regard to all matters, the Tribunal considers that the pattern of care over the 12-month period from 21 April 2021 continued as 50/50 with minor variations not affecting the general and continuing pattern.

14. It follows that the Tribunal determines that the likely actual care of [Child 2] from 21 April  2021 was 50% to [Mrs A] and 50% to Mr Thorn such that the pre-existing percentage of care determinations as at 14 June 2021 of 49% to  Mr Thorn and 51% to [Mrs A] should not be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the pre-existing percentage of care determinations are not to be revoked and [Mrs A]’s percentage of care is to remain at 51% and Mr Thorn’s percentage of care is to remain at 49%.