Waters and Fulton (Child support)

[2023] AATA 4295

Waters and Fulton (Child support) [2023] AATA 4295 (30 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026328

APPLICANT:  Mr Waters

OTHER PARTIES:  Child Support Registrar

Ms Fulton

TRIBUNAL:Member M Sutherland

DECISION DATE:  30 October 2023

DECISION:

The decision under review is set aside and substituted with a decision that from 25 October 2022 Mr Waters has 42% and Ms Fulton has 58% care of [Child 1] with effect from 25 October 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. This review is about a change to the percentage of care determinations for Mr Waters and Ms Fulton (the parents) in respect of their daughter, [Child 1], aged 16, born [in] July 2007.

2. There was a care plan dated 28 June 2018, which set out the care arrangements for [Child 1]. It is calculated on hours and was agreed to by each parent. It provided for Mr Waters having 38% care and Ms Fulton having 62% care (see page 91 of the hearing papers). There has been a child support assessment in place since 24 June 2011.

3. On 25 October 2022 Mr Waters advised Child Support (the Agency) of a change to the care arrangements, stating that from 25 October 2022, he had care for 6 nights a fortnight, or 42% care, and that Ms Fulton had 58% care.

4. On 21 December 2022 the Agency made the decision not to change the care percentages for [Child 1] to 58% (212 nights) to Ms Fulton and 42% (153 nights) to Mr Waters from 25 October 2022.

5. On 16 February 2023 Mr Waters objected to this decision. On 14 June 2023 the Agency disallowed the objection (the objection decision) and did not revoke the existing care percentages of 62% to Ms Fulton and 38% to Mr Waters.

1. On 29 June 2023 Mr Waters applied to the Tribunal for a review of the objection decision.

2. The Tribunal conducted a hearing into the application on 30 October 2023. The parties gave evidence on affirmation by conference telephone. The Agency provided hearing papers relevant to the matter (pages 1–124).

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration & Collection) Act 1988 (the R&C Act). Where a parent, or a third party, has a pattern of care for a child, the Agency determines care percentages that correspond with the actual care of a child the parent or third party has, or is likely to have, during a care period: see sections 49 and 50 of 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 or third party. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent or third party is meeting directly through the care they provide for that child.

3. Persons who provide ongoing daily care for children should be able to have the level of financial support to be provided readily determined without the need to resort to court proceedings: see paragraph 4(2)(c) of the Act. While the Act does not define the term ‘ongoing daily care’, the Agency will take into account a number of factors in determining whether a person cares for a child. These include:

   ·      To what extent the person has control of the child, including having overall responsibility for the child and making major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and arrangement for others to meet the needs of the child (delegated care).

   ·      To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   ·      To what extent the person pays for the costs of meeting the needs of the child.

   ·      To what extent the person otherwise provides financial support for the child.

   ·      To what extent the child provides for their own needs or has those needs met from another source.

   ·      To what extent the child is financially independent or financially supported from another source.

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

5. 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 apply?

CONSIDERATION

1. Mr Waters told the Tribunal that:

   ·      He agreed to the parenting plan made on 26 June 2018, which was based on the following hours of care: 38% care to him and 62% to Ms Fulton. The care percentages in the agreement were not accurate but he agreed to it for the sake of peace.

   ·      Things have moved on since 2018. He has had [Child 1] in his care for 6 nights a fortnight one week  from Friday to Monday nights and in week 2  on Monday and Tuesday nights. This is  156 nights per year, 42% care. This had been the position  for some 2 years prior to 25 October 2022, but he did not seek to backdate the percentage of care.

2. Mr Waters provided a statement from his partner [Ms A] who confirmed that Mr Waters has 6 nights of care per fortnight: see page 63 of the hearing papers.

3. Ms Fulton told the Tribunal that:

   ·      She accepted that Mr Waters had 6 nights of care a fortnight throughout the year (42% care). Sometimes he would have a few extra nights but this was flexible.

   ·      She believed that the parenting plan was still current and that it should be adhered to, that is, that Mr Waters has 38% care. (The Tribunal notes that 6 hours of care were credited to Ms Fulton on a Tuesday; this has not been disturbed, but is only relevant if care is based on hours not nights.)

4. The Tribunal must consider whether a calculation based on nights or hours of care is more appropriate: see 2.2.1 Basics of care in  the Child Support Guide (dss.gov.au). This is a key issue for the parties. Mr Waters contends that time has moved on since the parenting plan was entered into, while Ms Fulton asserts that things should remain the same and care should be based on the hours allocated in the parenting plan. The Tribunal will use nights of care to determine the care percentage. Both parents agree that Mr Waters has 6 nights of care per fortnight. The Tribunal does not accept that the percentages contained in the care plan should be maintained if the plan does not reflect the actual care provided on 25 October 2022.

Did a change of care occur?

1. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal finds that the change of care occurred on 25 October 2022.

2. The Tribunal finds: section 54G does not apply; section 54F of the Act is met; and the previous care determinations should be revoked and replaced with the pattern of care taking place for the children.

3. Mr Waters informed the Agency of the change of care within 28 days of the change occurring. Revocation occurred on 24 October 2022 and the new care percentages will apply from 25 October 2022: see section 54B of the Act. This will affect the cost percentage: see section 55C of the Act.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Waters and Ms Fulton under section 50 of the Act. For the reasons outlined above, the Tribunal finds that Mr Waters provides 42% care and Ms Fulton provides 58% care of [Child 1].

Date of effect of the decision

1. An objection to a care percentage decision does not have to be lodged within 28 days of the decision being made; however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged: see subsection 87AA(1) of the R&C Act.

2. The legislation, however, provides a limited discretion to effectively give effect to a review decision from an earlier date if there are special circumstances that prevented a person from lodging their objection within (relevantly) 28 days: subsection 87AA(2) of the R&C Act.

3. In considering special circumstances, the Tribunal will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. The applicant must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date.

4. On 21 December 2022 the Agency made the decision not to change the care percentages from 25 October 2022. It was only on 16 February 2023 that Mr Waters objected to this decision, outside the 28-day period. When asked by the Tribunal why he had lodged his objection to the decision more than 28 days after it, Mr Waters said that he believed that he had lodged an objection over the phone when they spoke to an officer at the Agency on 21 December 2022. The officer advised him that he could object; he stated that he wished to object and thought he had. He was subsequently advised this was not the case, and this is the reason he lodged the objection late. The Tribunal finds that Mr Waters did in fact object on the date he spoke to the objections officer in December 2022, and thus his objection was not late.

DECISION

The decision under review is set aside and substituted with a decision that from 25 October 2022 Mr Waters has 42% and Ms Fulton has 58% care of [Child 1] with effect from 25 October 2022.