Tiffen and Kelley (Child support)

[2023] AATA 1791

Tiffen and Kelley (Child support) [2023] AATA 1791 (16 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC025143

APPLICANT:  Mr Tiffen

OTHER PARTIES:  Child Support Registrar

Ms Kelley

TRIBUNAL:Member J Prentice

DECISION DATE:  16 May 2023

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing percentage of care determination of 23% to Mr Tiffen is revoked from 5 July 2022 and replaced with a new percentage of care determination of 50% applying from 6 July 2022; and

1. the existing percentage of care determination of 77% to Ms Kelley is revoked from 5 July 2022 and replaced with a new percentage of care determination of 50% applying from 6 July 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. As relevant to this application, Mr Tiffen and Ms Kelley are parties to a child support case registered with Services Australia – Child Support (Child Support) from 28 April 2008 in relation to financial support to be provided for [Child 1] (born October 2007), [Child 2] (born May 2012) and [Child 3] (born March 2014) (the children). The application concerns a single decision of Child Support about the recorded care for the children utilised in calculation of the child support liability.

2. From 1 September 2021, the pre-existing percentages of care applying in the Child Support case for the children were 23% to Mr Tiffen and 77% to Ms Kelley.

3. On 7 July 2022, Mr Tiffen contacted Child Support and advised a change to the care position of the children from 6 July 2022 stating that six years ago they had a Court Order made to reflect the care of the children as 50%/50% as his work roster used to be week on / week off.  His current FIFO work roster is two weeks on/two weeks off and he cares for the children for two weeks when he is not working.

4. On 16 September 2022 Child Support decided not to change the percentage of care determinations such that the percentage of care determinations applying for the children remained at 23% to Mr Tiffen and 77% to Ms Kelley.

5. On 19 September 2022 Mr Tiffen objected to this decision and, on 18 November 2022 a Child Support objections officer partly allowed the objection and decided to revoke the pre-existing percentage of care determinations and to record percentage of care determinations of 44% to Mr Tiffen and 56% to Ms Kelley from 6 July 2022.  

6. On 28 November 2022, Mr Tiffen lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating:

   I work fly in, fly out.  I pick up the kids when I get back from work and have them until I fly out.

1. The hearing of the application was held on 19 April 2023.   Mr Tiffen participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend.

2. The Tribunal called Ms Kelley on the number she had provided.  Ms Kelley answered the phone and then following the Member introducing themselves, the line was disconnected. The Tribunal called Ms Kelley again and the call went to message bank. The Tribunal left a message. The Tribunal repeated this action but was unsuccessful in contacting Ms Kelley.  The Tribunal then contacted the Registry office, however, the case manager for the matter was not available. The Tribunal then attempted to contact Ms Kelley again but was unsuccessful and again left a message on her voice mail. The Tribunal then contacted the Registry office team leader, who said they would attempt to contact Ms Kelley. The Tribunal and the applicant agreed to adjourn the meeting for 10 minutes to see if it was possible to reconnect with Ms Kelley.  The Tribunal reconvened the hearing at 9.50 am.

3. Attempts were made to contact Ms Kelley for 20 minutes, including by both the Brisbane and Sydney Registry offices. The Member informed the applicant that several people had been attempting to contact the second party by both the telephone number she had nominated and by text message and no one had received a response. The Member again attempted to contact Ms Kelley and again the call went to message bank. The Member left a message for Ms Kelley on her voicemail that the Tribunal intended to proceed with the hearing and that the case manager would contact Ms Kelley to see if she would like to make a written submission within the next 24 hours, noting that any material would be exchanged with the applicant for his response. However, the hearing would proceed.  The Member encouraged Ms Kelley to contact the case manager at the Tribunal who could connect her into the hearing if she so desired.  Ms Kelley did not join the hearing and did not make any written submissions.

4. In considering the application, the Tribunal took into account the oral evidence of Mr Tiffen and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 226).  Copies of all documents were exchanged with each party.

RELEVANT LEGISLATION

11.  The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act).

12.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

13.  Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

14.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

15.  The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened 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 Child Support 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 actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

16.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

17.  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. Section 2.2.1 of the Guide contains the following guidance in this regard:

… 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.

…

18.  Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

19.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

20.  However, in certain circumstances, pursuant to section 51 parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a Court Order, parenting plan or written agreement, rather than the care they were actually providing, that is, an interim care determination may apply.

ISSUES

21.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Mr Tiffen and Ms Kelley to be revoked? And, if so,

(b)What are the new percentage of care determinations for Mr Tiffen and Ms Kelley? And,

(c)What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

22.  Exhibit 1 records the following relevant conversations between Mr Tiffen and Child Support and Ms Kelley and Child Support:

(a)7 July 2022 – Mr Tiffen informed Child Support that the actual care that is occurring is on a two week block – two weeks on and two weeks off.

(b)11 July 2022 – Ms Kelley informed Child Support that Mr Tiffen worked three weeks offshore and then had care of the children for one week a month.  She acknowledged that the Court Orders had given Mr Tiffen 50 / 50 shared care but advised he was unable to fulfil these arrangements.

23.  Relevant documentation and evidence provided to Child Support included as follows:

(a)On 11 August 2022 – Ms Kelley provided a statement to Child Support stating:

I write to advise I continue to have 77% care of all three of my children as per your records.……  Mr Tiffen continues to work offshore for two weeks in a row and then I have the children for three weeks. …  We have not agreed to a 50/50 shared care arrangement as he states.

(b)On 16 August 2022 – Ms Kelley provided a statement to Child Support stating:

I write to advise that I am currently seeking mediation to have a parenting plan put in place regarding the care of our children.  …. Until such time as we can reach a new agreement through mediation the children will remain in my care 77% of the time as per your records.  I will provide you a copy of the parenting plan as soon as possible.

(c)On 12 September 2022 – Mr Tiffen provided a copy of his care diary for the children since July 2022.

(d)A copy of text message exchanges between Mr Tiffen and Ms Kelley about care arrangements.

(e)On 19 October 2022 – two third party statements supporting Mr Tiffen’s care arrangements

24.  At hearing, Mr Tiffen informed the Tribunal that since 6 July 2022 he has had 50% shared care of the children.  Mr Tiffen understood that when he lodged the change in care on 6 July 2022 he did not have enough evidence to support that claim.  However, he subsequently provided care diaries to support the care arrangement that was occurring.

25.  Mr Tiffen explained that his work arrangements have changed and as a FIFO worker he now has two weeks offshore and two weeks at home.  He explained that he returns home on a Wednesday morning and picks the children up from school that afternoon and two weeks later drops them off at school on a Wednesday morning before flying out.

26.  Mr Tiffen noted that the Child Support calculations (on page 6 of the hearing papers) failed to include the rest of the month of October in its calculations which resulted in him having 16 nights care out of 31 for the month of October.  Mr Tiffen also commented that he agreed to two nights on an ad hoc arrangement in the month of July at the request of Ms Kelley as she had made arrangements for the children.

27.  Mr Tiffen pointed out that when the corrections are made to Child Support’s calculations the actual care for three months is more than 48% care to him; and when the two weeks on and two weeks off are extended to a 12-month period it is the equivalent to 50% shared care.

28.  In response to questions from the Tribunal, Mr Tiffen explained that there are no special arrangements for school holidays and public holidays as his work is such that it is a straightforward two weeks on and two weeks off regardless.

29.  The Tribunal is satisfied that :

·prior to 6 July 2022 care arrangements accommodated Mr Tiffen’s work arrangements which was reflected in 77% care to Ms Kelley and 23% care to Mr Tiffen;

·from 6 July 2022 Mr Tiffen’s work conditions changed and he commenced two weeks on and two weeks off and he increased care of the children in line with his work commitments and the Court Order.

1. The Tribunal notes the difficulty in making a decision without input from Ms Kelley who was given ample opportunity to participate in the hearing or provide a written submission, however, nothing was received.

2. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 6 July 2022.   Further the Tribunal is satisfied based on the evidence that the pattern of care of the children from 6 July 2022 was likely to be 50% to Mr Tiffen and 50% to Ms Kelley.  

Issue 1 − Are the pre-existing percentage of care determinations for Mr Tiffen and Ms Kelley to be revoked?

1. Section 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, and that the change would alter the cost percentage used for a parent in the administrative assessment; section 54G does not apply and section 51 does not apply or no longer applies.

2. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. The other parent was not to have more than 0% care pursuant to the recorded percentages of care; or neither parent’s care reduced to less than 14%. Section 54G therefore does not apply.

2. Care of 50% to Mr Tiffen and 50% care to Ms Kelley does not correspond with the pre-existing percentage of care determinations recorded by Child Support as at the date of Mr Tiffen’s notification on 7 July 2022 of 23% to Mr Tiffen and 77% to Ms Kelley.

3. A change in care to 50% to Mr Tiffen and 50% to Ms Kelley would change each parent’s cost percentage pursuant to the table in section 55C.

4. Section 51 does not apply.

5. The existing percentages of care of 23% to Mr Tiffen and 77% to Ms Kelley are therefore required to be revoked pursuant to section 54F.

Issue 2 − What are the new percentage of care determinations for Mr Tiffen and Ms Kelley?

1. Percentage of care determinations are required pursuant to subsection 50(2). The Tribunal determines that Mr Tiffen’s percentage of care for the children from 6 July 2022 is 50% and Ms Kelley’ percentage of care for the children from 6 July 2022 is 50% as outlined in the above consideration.

Issue 3 − What is the date of revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(a) as the change in care was notified by Mr Tiffen on 7 July 2022 within 28 days after the Tribunal has found the change occurred on 6 July 2022, revocation of the pre-existing percentage of care of 23% recorded for Mr Tiffen and the pre-existing percentage of care of 77% recorded for Ms Kelley takes effect the day before the change of care day, that is on 5 July 2022.

2. It follows that the percentage of care determinations of 50% to Mr Tiffen and 50% to Ms Kelley apply from 6 July 2022.

Conclusion

42.  As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.

OTHER MATTERS

43.  As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to Child Support of such changes, and Child Support then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:

1. the existing percentage of care determination of 23% to Mr Tiffen is revoked from 5 July 2022 and replaced with a new percentage of care determination of 50% applying from 6 July 2022; and

1. the existing percentage of care determination of 77% to Ms Kelley is revoked from 5 July 2022 and replaced with a new percentage of care determination of 50% applying from 6 July 2022.