Twigg and Semcken (Child support)

[2022] AATA 3506

Twigg and Semcken (Child support) [2022] AATA 3506 (15 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023979

APPLICANT:  Mr Twigg

OTHER PARTIES:  Child Support Registrar

Ms Semcken

TRIBUNAL:Member M Sutherland

DECISION DATE:  15 August 2022

DECISION:

The decision under review is affirmed.

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 - court orders not complied with - interim period applied - 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

1. This review is about the percentage of care determinations for Mr Twigg and Ms Semcken in respect of their child [Child 1] born [in] February 2017.

2. There was a child support assessment in place in terms of court orders dated 30 November 2020, amended on 2 December 2020, see page 74 and following of the hearing papers (the orders). From 1 March 2021 care was assessed as 58 percent care to Ms Semcken and 42 percent care to Mr Twigg. Mr Twigg was the parent liable to pay child support.

3. On 14 December 2021 Ms Semcken advised the Child Support Agency (the Agency) of a change in care stating that she had 100 percent care and Mr Twigg 0 percent care from 27 July 2021.

4. On 10 March 2022 the Agency made the decision to record an interim care determination for [Child 1] of  58 percent care to Ms Semcken and 42 percent care to Mr Twigg from 30 November 2020 to 30 November 2021.

5. On 2 April 2022 Mr Twigg objected to this decision. On 6 May 2022 the Agency disallowed the objection.

6. On 27 May 2022 Mr Twigg applied to the Tribunal for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 15 August 2022. Both Mr Twigg and Ms Semcken gave evidence on affirmation by conference telephone. The Agency provided the Tribunal and the parties with a bundle of documents relevant to the review. In making its decision the Tribunal has considered the evidence and the hearing papers and applied the law.

ISSUES

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

2. The 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.

3. Where a parent has a pattern of care for a child, the 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 49 or 50 of the Act). In other words, the 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.

4. The Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies. Section 51 of the Act says that a care determination may be made (known as an interim determination) if a care arrangement, such as a court order, is not complied with and the parent with reduced care takes ‘reasonable action’ to have the court order complied with.

6. 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; and

   ·      should an interim care determination be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Mr Twigg said that the Agency decision was incorrect because Ms Semcken was in breach of orders by withholding [Child 1] from his care from 27 July 2021. He referred to pages 76 and 77 of the hearing papers, paragraph 4c(1) which states that there was to be 50-50 care of [Child 1] from 1 August 2021. As care was to change on 1 August 2021, he believed the interim care period should be applied for 52 weeks from 1 August 2021 to 1 August 2022. He commenced court proceedings in August 2021 which were finalised in May 2022 when it was ordered that [Child 1] live with him permanently and that he have 100 percent care, see page A5 of the hearing papers. (Mr Twigg also provided a written statement, see page 73 of the hearing papers.)

2. Ms Semcken said that she had withheld care of [Child 1] on 27 July 2021 based on medical advice. She did not dispute the chronology of events or that Mr Twigg was granted 100 percent care for [Child 1] from 25 May 2022. She had taken part in Family Court proceedings. (Ms Semcken declined to make a submission about an interim care period.)

Did a change of care occur?

1. There is no dispute between the parties that care for [Child 1] was in accordance with the court order until 27 July 2021. There was a change of care from that date, Ms Semcken had 100 percent care and Mr Twigg 0 percent care.

2. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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 determination must be revoked and replaced by a new percentage of care determination.

3. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and it must be determined whether an interim care determination applies.

Issue 1: Should an interim care determination be made?

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their children.

2. The Tribunal finds that sections 49 and 50 apply and the care was 100 percent to Ms Semcken and 0 percent to Mr Twigg from 27 July 2021.

3. The Tribunal in making a new percentage of care determination either under section 49 or 50 of the Act must decide whether section 51 of the Act applies.

4. Subsection 51(1) of the Act states:

   (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) whether 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);

   (d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with…

5. The Tribunal finds that:

   ·      a care arrangement was in place in accordance with the court order and was being followed at the time the care changed on 27 July 2021.

   ·      Mr Twigg took reasonable action to ensure compliance with the care arrangement in the order throughout the interim period in order to have the child support assessment continue to be based on the ordered care. He commenced court proceedings in August 2021 which were finalised in May 2022 when it was ordered that [Child 1] live with him permanently and that he have 100 percent care.

·      An interim care determination can be made by the Tribunal under section 51 of the Act.

Two care percentages under s 51

1. Where section 51 of the Act applies, there are two care percentages. The first one under subsection 51(3) is the care under the care arrangement being 42 percent to Mr Twigg and 58 percent to Ms Semcken and the second one under subsection 51(4) is the actual care being 100 percent to Ms Semcken and 0 percent to Mr Twigg.

When should the interim care period commence and when should it end?

1. Section 54C states that where two percentages of care have been determined under section 51 the first percentage applies to each day that occurs in the interim period for the determination.

2. The interim period is defined in section 53A. The start day of the interim period usually begins on the change of care day and the end day for the interim period is governed by the table in subsection 53A(1). Factors such as the type of care arrangement, when the care arrangement stopped being complied with and whether the person with increased care has taken reasonable action to participate in family dispute resolution must be considered.

3. Where care is determined by a court order the maximum interim period that can be applied is the later of 52 weeks from the date the court order takes effect or 26 weeks from the change of care day depending on the circumstances of the case.

4. In this case:

   ·      the person with increased care, Ms Semcken, took reasonable action “to participate in family dispute resolution”, she participated in  proceedings in the Family Court within a reasonable period, see page 64 of the hearing papers where Ms Semcken made application for orders in the Family Court.

   ·      the change of care occurred on 27 July 2021 which is more than 26 weeks but less than 38 weeks from the date of the court order.

   ·      in this case the maximum interim period that can be applied is 52 weeks from day the court order took effect on 30 November 2020 (see table item 1, column 3). The 26-week period does not apply, it only applies where the person with increased care, Ms Semcken, took no reasonable action to participate in family dispute resolution.

Issue 2: Date of effect of new care percentage decision

1. Section 54C establishes the application days if two percentages of care apply under section 51 of the Act. There has been an interim care determination made from 30 November 2020 to 30 November 2021, the increased care determination of 100 percent to Ms Semcken and 0 percent to Mr Twigg takes effect from 1 December 2021.

2. It became apparent to the Tribunal at the hearing that there has been another care change in May 2022 in favour of Mr Twigg. Mr Twigg can apply for a change of care from this date. That change is not before the Tribunal.

DECISION

The decision under review is affirmed.