Tollemache and Wodefold (Child support)
[2024] AATA 874
•1 March 2024
Tollemache and Wodefold (Child support) [2024] AATA 874 (1 March 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2023/BC026540
APPLICANT: Ms Tollemache
OTHER PARTIES: Child Support Registrar
Mr Wodefold
TRIBUNAL:Member D Tucker
DECISION DATE: 1 March 2024
DECISION:
The decision under review is affirmed.
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 – decision under review affirmed
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
Assessment
Ms Tollemache (the mother) and Mr Wodefold (the father) are the separated parents of two children. This application relates to the care of [Child 1], born [date] 2006, aged 17 years (the child).
A child support case commenced from 29 March 2022. From 1 June 2011 Services Australia – Child Support (Child Support) recorded the care of the child as 51% and 49% to the mother and father respectively.
Change in care decision – 20 March 2023
On 27 January 2023, the father notified Child Support that the child was now living with him full-time and had only spent two nights at his mother’s home since 24 November 2022. Although he believed he had 100% care, he requested that Child Support reflect care percentages of 80% and 20% to him and the mother respectively.
The same day, the mother disputed this, telling Child Support that because the father was overseas in October 2022, he had missed some of his care, and the child was now spending extra time with the father to make this up. She expected that the usual 50-50 pattern of care would resume after the Christmas school holidays.
On 1 February 2023 the mother spoke to Child Support again. According to the corresponding file note,[1] the mother stated that the court orders had not been complied with since 12 June 2022. However, the Tribunal notes that this is inconsistent with subsequent statements by the mother that the court orders were complied with up until 26 December 2022.
[1] Page 14 of the hearing papers
On 23 February 2023 the father told Child Support that:
· the child was adamant that he wanted to reside with him and stay with the mother each Monday and Tuesday night. The child would not have decided to stay with his mother at all without the father’s encouragement.
· From 23 November 2022 until 23 February 2023, the child had stayed with the mother a total of 11 nights: January 30-31, February 6-7,13-14, 20-21.
On 25 February 2023 the father asked Child Support to reflect care percentages of 12 nights per year to the mother, and the balance of care to him.
On 27 February 2023 the mother stated that her care had reduced to two nights per week but told Child Support that this was due to the father who was withholding the child, contrary to the court orders. She advised that orders were followed until 26 December 2022, as this was the first date that she did not have care in accordance with the orders. She also stated that she was taking reasonable action to restore adherence to the court orders and had made an appointment with a mediator for 2 March 2023.
On 1 March 2023 the father told Child Support that he was overseas in October 2022 because he needed to visit his father who was dying. However, the child stayed at his house in his absence, with a close friend checking on him to make sure he was okay. Although the father does not know the exact dates the child stayed at his house during October 2022, he does not believe that the mother had a significant amount of extra care. The father also stated there was no explicit agreement about him subsequently having additional care in lieu of the time he was overseas.
On 2 March 2023 the mother explained that the last day of school for Year 11 students in Queensland was 25 November 2022. The care orders specified that the child would spend the first half of the Christmas holidays with his father. Therefore, the child was not due to be in her care until 23 December 2022, which he was, for two nights. He then spent Christmas Day with his father in accordance with the court orders. The child was due to return to her on 26 December 2022, to spend the second half of his Christmas holidays with her. However, he stayed only two nights, on 31 December 2022 and 1 January 2023. She disputed the father’s claim that the care orders had not been followed prior to that point.
On 3 March 2020 the mother provided a written submission to Child Support, in which she stated that new court orders were made on 28 May 2018 to reflect a 50-50 care arrangement for the child.[2] Since then there have been temporary departures by mutual agreement, to accommodate pandemic restrictions, periods of illness and travel arrangements. Such variations by mutual consent were accommodated by the terms of the court orders. Following the change in care from 26 December 2022, she had made an appointment with a solicitor for late January 2023 with a view to having the 50-50 arrangement restored. She also attended an intake session for mediation on 2 March 2023. The Tribunal notes a letter from a family relationships centre which corroborates this.[3] These steps were in addition to her communication with the father.
[2] page 40 of the hearing papers
[3] page 57 of the hearing papers
On 20 March 2023 Child Support decided to revoke the existing care percentages and substitute percentages of 72% and 28% for the father and mother respectively from 26 December 2022, with effect from 27 January 2023 (the date of notification).
In making this decision, Child Support found that the child’s care had not followed the court orders prior to the change in care and therefore an interim period could not be applied.
Objection decision – 20 July 2023
On 17 April 2023, the mother lodged an objection to the care decision of 20 March 2023.
The mother and the father both provided third-party statements about the percentages of care each of them had. The Tribunal attaches little weight to these, as they are provided by friends and family who were not independent witnesses.
On 20 July 2023 Child Support disallowed the mother’s objection. She was critical of Child Support’s process, as she was not given an opportunity to respond to submissions made by the father prior to a decision being made.
On 7 August 2023 the mother applied to this Tribunal for further review and on 23 November 2023 the mother and the father appeared via telephone to give affirmed evidence. The Tribunal also considered relevant documents provided by Child Support.
LEGISLATION
18. The statutory provisions relevant to this review are contained in Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act). Unless otherwise noted, all legislative references in these Reasons are to the Act.
19. The Tribunal also considered the Child Support Guide (the Guide) which contains government policy regarding the application of child support legislation. While the Tribunal is not bound by government policy, it will apply it in the interests of consistency in administrative decision-making in accordance with the rulings by the Federal Court.[4]
[4] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634
ISSUES
The issues that arise in this case are:
· Was there a change in care that warrants the revocation of the previous care percentages; and if so,
· should an interim period be made, and if so, for how long, and if not,
· what new care percentages should apply, and from when?
CONSIDERATION
Was there a change in care?
On 10 August 2023 the father submitted to the Tribunal that since 24 November 2022 the child had lived with him full-time, and from February to April 2023 had spent one to two nights per week at his mother’s home. From mid-April 2023 he had spent a maximum of five nights in total at his mother’s home. The mother therefore had less than two nights per week of care.
The father told the Tribunal that although the child did not want to stay with his mother at all, he encouraged the child to maintain his relationship with his mother. The father emphasised that the child was making his own choices about when he visited his mother, and beyond encouraging him to do so, it was not possible to force him to. He did not meticulously record the dates that the child stayed with the mother but recalled that since May 2023 the child had been with the mother one night “here or there”.
The mother stated that she kept a record of her care, which showed she had 36 nights in the first 27 weeks of 2023, but less in the second half of 2023. She had two nights of care in May, and after that it tapered off. The mother explained that she had expected to have a block of care with the child in October 2023 because the father was again travelling overseas, however this did not occur.
The father stated that the child had stayed at his house in his absence during October 2023, supervised by other responsible adults. He opined the mother had been unrealistic in expecting the child to stay with her, given the child’s stated intention to the contrary.
Based on the evidence outlined above, the Tribunal finds that there was a change in care from 26 December 2022, as this was the first date that the care arrangements were departed from in the absence of any agreement between the parents. The change in care was not caused by the father’s withholding care, but by the child exercising his independence. From 26 December 2022 the mother had care for two nights per week (28%) and the father had the balance of care (72%).
The Tribunal notes that according to both parents, from late May/June 2023 there was another change in care, such that the mother has had less than regular (14%) care. However, the parents told the Tribunal neither had notified Child Support of this change. Where there has been a change in care after the date of the decision under review, the Tribunal’s view is that it should be the subject of a new decision by the Child Support Registrar (rather than the Tribunal), to preserve the parties’ review rights.
Existing care percentages generally apply until Child Support becomes aware of a change in care which warrants their revocation. Sections 54F to 54H of the Act set out circumstances under which the Registrar must or may revoke percentages of care, if satisfied that they no longer reflect a person’s actual care:
· Section 54G applies only where a parent has had no care, or less than regular care, despite the child being made available to them by the other parent. This provision is not applicable in this instance, as after 26 December 2022 the mother had above regular care.
· Section 54F of the Act requires decision-makers to revoke an existing care determination if section 54G is not applicable and they are satisfied that there has been a change in care that impacts a carer’s cost percentage.
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% |
Given that the previous care percentages reflected 49% care to the father, the change in his care from 26 December 2022 to 72% changed his cost percentage (from 50% to 76%). It is therefore necessary to revoke the previous care percentages pursuant to section 54F and replace them with a new determination that reflects the actual care. The revocation takes effect from 27 January 2023 – the date of the father’s notification.
Interim determination
Section 51 of the Act says that a care determination may be made for an interim period (known as an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the court order complied with.
In an interim period, care percentages continue to be determined by the care arrangement (such as a court order), rather than by the actual care.
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
The likely intention behind section 51 of the Act is to ensure that a parent who withholds care of a child from the other parent, contrary to a parenting agreement, such as a court order, is not rewarded for doing so by becoming entitled to a higher rate of child support.
Section 53 of the Act sets out circumstances in which section 51 does not apply. Relevantly, it provides:
Section 51 does not apply in certain circumstances
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
…
(c) the Registrar has revoked the determination under section 54F or 54H.
Until recently, Tribunal members held inconsistent views regarding the meaning of paragraph 53(1)(c) and its effect on the application of section 51.
The Child Support Registrar (CSR) recently changed its interpretation of paragraph 53(1)(c), preferring a plain reading, taking it to mean that an interim period cannot be applied if the existing determination was revoked under section 54F or 54H. This interpretation represented a departure from the consensus within Child Support and this Tribunal, and if correct, would greatly limit the applicability of section 51. The effect of this interpretation is summarised in the Child Support Guide a topic 2.2.4:
When can an interim determination be made?
If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. However, an interim determination will only be made where it is the first care percentage determination in relation to a responsible person’s care of a particular child. This is because an interim determination cannot be made where there was an existing care percentage determination that has been revoked.
The Registrar must determine a person’s care percentage for a child when making a child support assessment, and that care percentage determination will continue to apply to the child support assessment until it is revoked. This means that an interim determination cannot be made in relation to a child at any time after a child support assessment has already been made. The Registrar also cannot make an interim determination after the Secretary has already determined the person’s care of a child for FTB purposes.
Following its hearing of this matter, the Tribunal decided to defer its decision because:
· If the CSR’s interpretation was correct, it would not be open to the Tribunal to determine an interim period in this case, as the previous care percentages for the child must be revoked pursuant to section 54F (see paragraphs 27-29 above).
· A test case was listed in the Federal Court for 1 February 2024, following an appeal by the CSR of a matter that turned on the interpretation of paragraph 53(1)(c). The court’s judgment would provide an authoritative interpretation of this provision.
· Deciding the current matter prior to the Court’s ruling would risk disadvantaging the parties with a decision at odds with the Court’s interpretation that would invite further appeal.
The Federal Court decided the test case Oldfather and Fountaine (Child Support) [2023] AATA 3301 on 1 February 2024. The Court’s judgment,[5] giving reasons for its decision, became available more recently.
[5] Child Support Registrar v CMU23 [2024] FCA 109 (fedcourt.gov.au)
Link: >
The Court favoured the CSR’s interpretation of paragraph 53(1)(c) – that where existing care percentage determinations are revoked under section 54F or 54H, this renders section 51 inapplicable. This means that an interim period can only apply where it is the first care percentage determined in relation to a responsible person’s care of a particular child (start of case). Another circumstance may be where existing care percentage determinations are revoked under section 54G.
The mother and father have previously been subject to interim periods in relation to a change in care of their older child. The mother asked the Tribunal to determine an interim period in this instance, on the basis that the conditions for doing so, set out in section 51 of the Act, were met.
For the sake of completeness, the Tribunal finds that these conditions were met, as the court orders of 25 May 2018 were adhered to prior to 26 December 2022, and the mother and the father both took reasonable action to follow the court orders from the date of the change in care.
However, the Tribunal is obliged to accept the interpretation of paragraph 53(1)(c) provided by the Federal Court. Therefore, the Tribunal must consider the actual care which required the existing care percentages to be revoked under section 54F.
As set out above, the Tribunal’s finding is that from 26 December 2022 the care percentages are 28% and 72% to the mother and the father respectively. As the Tribunal has reached the same conclusion as Child Support in its review decision of 20 July 2023, it will affirm the decision under review.
DECISION
The decision under review is affirmed.
0
2
0