Webster and Webster (Child support)
[2024] AATA 4119
•27 September 2024
Webster and Webster (Child support) [2024] AATA 4119 (27 September 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/PC028008
APPLICANT: Mr Webster
OTHER PARTIES: Child Support Registrar
Ms Webster
TRIBUNAL:Member M Martellotta
DECISION DATE: 27 September 2024
DECISION:
The Tribunal sets aside the decision under review and, in substitution, decides:
a) The existing care determination of 43% care to Mr Webster is revoked as of 26 October 2023.
b) The existing care determination of 57% care to Ms Webster is revoked as of 31 July 2023.
c) A new care determination of 93% care to Mr Webster applies from 27 October 2023.
d) A new care determination of 7% care to Ms Webster applies from 1 August 2023.
e) In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from 28 March 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – change of care occurred – father did not notify Child Support within a reasonable time – existing care determination cannot be revoked – 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 theChild Support (Registration and Collection) Act 1988.
REASONS FOR DECISION
BACKGROUND
Mr Webster and Ms Webster are the parents of a child (A). On 6 December 2023 Services Australia – Child Support made a decision with respect to the percentages of care determined for A.
Mr Webster objected to the decision on 28 March 2024. His objection was disallowed on 28 May 2024. He lodged his application for review with the Tribunal on 29 May 2024.[1]
[1] An application made by Mr Webster to be represented by his partner was refused on 2 September 2024.
Child Support prepared and distributed a bundle of hearing papers and also provided some supplementary documents (215 pages). Mr Webster provided a bundle of documents (A1–A15).
The Tribunal held a hearing on 16 September 2024. Mr Webster participated by video to present his submissions and evidence. At the time fixed for hearing the Tribunal attempted to contact Ms Webster. Ms Webster had been provided notice of the hearing date and sent SMS reminders. Ms Webster did not appear at the hearing. The Tribunal was satisfied that she had been provided proper notice of the hearing and decided to proceed without taking her oral submissions and evidence.[2]
[2] See the AAT Child Support Review Practice Directions – item 29; paragraph 40(1)(b) of the Administrative Appeals Tribunal Act 1975.
At hearing Mr Webster advised he did not have a copy of the hearing papers but was prepared to have the hearing continue. The Tribunal deferred making a decision so as to arrange for the hearing papers to be resent to Mr Webster and he was provided the opportunity to make further submissions. Post‑hearing Mr Webster provided a copy of his care calendar and summary of nights in care and advised he had no further comments in relation to the hearing papers.
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the RC Act).
The issues which arise in this case include:
·whether the existing care determination is be revoked; and, if so,
·whether a new determination of care percentages should be made; and, if so,
·from when should the new care percentages apply?
CONSIDERATION OF EVIDENCE AND STATUTORY PROVISIONS
Issue 1 – Should the existing care determination be revoked, and if so, from when?
Sections 49 and 50 of the Act require Child Support to determine a person’s percentage of care where a person has had, or is likely to have, a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child.
Section 54A of the Act sets out that the actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care.
A new percentage of care can be determined by Child Support whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to Child Support of a change of care arrangement. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The Tribunal’s task on review is the same.
The Child Support papers provide the following background:
a)Care was determined as 24% to Mr Webster and 76% to Ms Webster when the applicant advised of a change in care on 31 July 2023 that his care had increased as from 30 May 2023. A new care determination was made to reflect the father as having 43% care and the mother had 57% care.
b)On 27 October 2023 Mr Webster contacted Child Support to advise of a change in care. He said that the child as from 1 August 2023 was in his care 70% and Ms Webster had 30% care, reflected as 3 nights a fortnight and half the school holidays.
c)Child Support decided on 6 December 2023 to reflect Mr Webster having 70% care and Ms Webster 30% care.
d)On 19 February 2024 Mr Webster advised of another change in care. He stated that from 31 January 2024 he now had 75% care and Ms Webster had 25% care. This change in care was determined by Child Support.
e)On 8 August 2024 Mr Webster provided another change in care advice. He stated his care as from 8 August 2024 was that he had 100% care. Again child support made a determination to reflect that change.
In regard to this history the Tribunal observes that Mr Webster has only sought review of the decision made on 6 December 2023. The subsequent care determinations made by Child Support are not before the Tribunal for consideration.
Mr Webster told the Tribunal that the objection decision failed to provide him the opportunity to present evidence about his care and made the decision without relevant information. In that regard the Tribunal notes the objection decision conclusion that:
As we have not been provided any evidence to support what the care arrangements for [A] are, we are unable to make an alternate decision.
Therefore, we have made the decision to reflect the care of [A] as 70% care to [Mr Webster] and 30% care to [Ms Webster] from 1 August 2023.[3]
[3] Page 14 of the hearing papers.
Mr Webster told the Tribunal that from the end of May 2023, A was spending increasing time with him. A is a young teenager and was choosing to spend more time with his father. Mr Webster was at pains to point out that the change in care was due to their son making a decision that he wanted to spend more time with him, and it was no reflection at all on Ms Webster’s care.
Mr Webster stated that from May 2023, over a period of 12 months, A would have spent about 90% of time in his care. The Tribunal referred Mr Webster to his contacts with Child Support, noting that he was not reporting that level of care until 2024 and asked why this was the case. He stated that, at the time, he advised of a change in care in October 2023 and on subsequent dates he was trying to assess care at that point in time; however, it was an evolving situation as he was anticipating that the other parents’ care would be as he reported. However, this did not eventuate and in hindsight it became apparent that his actual care increased to a point where he now has 100% care of A. Mr Webster produced his care calendar and summary of nights in care as part of his evidence to the Tribunal.
As noted, Ms Webster did not participate in the hearing of the application. The Tribunal reviewed the materials contained in the Child Support file. The file notes show attempts to contact Ms Webster to discuss the change in care advice lodged by Mr Webster as well as correspondence sent to her regarding those advices.[4] According to those materials Ms Webster has not provided any evidence in response to the change in care events reported by Mr Webster.
[4] For example, at p 64 and p 66 of the hearing papers.
As noted, the provisions require consideration of care over a care period. The utilisation of a care period is the mechanism by which to determine a pattern of care. Generally, the Registrar of Child Support utilises a care period of 12 months commencing from the day the actual care changed. In some cases, however a period shorter than 12 months may be appropriate to determine a pattern of care depending on the particular circumstances in in the case.
In this case Mr Webster reported a change in care occurring on 1 August 2023. He reported a subsequent change in care event to Child Support which he stated commenced from 31 January 2024 and that notification resulted in a new determination of care decision made by Child Support.[5] The Tribunal on this basis considered it appropriate to consider what actual care occurred between 1 August 2023 to 30 January 2024.
[5] As noted that decision with its own review rights was not before the Tribunal.
Mr Webster, post‑hearing, provided spreadsheets which he says records his actual care of A. As noted in this case, in terms of the decision under review, at the time of contact on 27 October 2023 the existing care determination reflected Mr Webster as having 43% care and Ms Webster 57% care reflected as commencing from 30 May 2023.
Mr Webster submits that his actual care was greater than 70% as he had initially advised. Mr Webster provided a care calendar which he says demonstrates this. In terms of the actual care that took place between 1 August 2023 to 30 January 2024 this evidence records that he had 169 nights of care over a period of 182 nights (92.8%) Where a percentage is not whole, then for care greater than 50% it is rounded up (section 54D). This means that from 1 August 2023 over a child care period concluding 20 January 2024, Mr Webster, if accepting his evidence of care, had 93% care.[6]
[6] The Tribunal also worked out if it used a 12 month care period from 1 August 2023 Mr Webster’s actual care was 96%
This is a case in which by the time of review the Tribunal has been presented with evidence of a pattern of care which Mr Webster submits has actually occurred since 1 August 2023, which differs from what he projected in his contact with Child Support. The Federal Court decision in Child Support Registrar v BKCZ[7] determined that the Tribunal is obliged to adopt an approach which incorporates consideration of events which arise after the date of notification of the change in care up to the date of the Tribunal’s decision.
[7] [2023] FCA 1109.
In this matter the only evidence presented regarding actual care include Mr Webster’s contacts with Child Support and his care calendar and summaries of actual care. As noted, Ms Webster did not avail herself of the opportunity to present submissions or evidence. On balance, the Tribunal accepts that the calendars of care provided by Mr Webster provides probative evidence of the care that was actually occurring.
The Tribunal finds that over the care period commencing 1 August 2023 and concluding 30 January 2024 Mr Webster had 93% care of the child and Ms Webster had 7% care. The Tribunal is next required to consider the basis for revocation of the existing care determination. As noted in relation to this matter, the existing care determination when Mr Webster reported the change in care was that he had 43% care and Ms Webster had 57% care.
The Tribunal is first required to consider if care is to be revoked pursuant to section 54G of the Act. This is a mandatory revocation where the following conditions are met:
·a parent was to have at least regular care (14%) of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;
·the other parent’s existing percentage of care was determined under section 50; and
·the other parent notified the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.
In this case Ms Webster’s care reduces to below regular care (it falls to 7%). On the available evidence Mr Webster was making the child available for care but A was making his own decisions about where he wanted to spend time. Mr Webster’s existing percentage of care was determined under section 50. The next issue is whether Mr Webster notified Child Support within a reasonable time that Ms Webster’s care had reduced to less than regular care.
What constitutes ‘reasonable’ is not stated in the Act. In this regard the Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 states that ‘Generally, a reasonable period will be if the Registrar or Family Assistance Secretary is notified within 28 days of the other responsible person becoming aware that the first responsible person never established the pattern of at least regular care, or that that person ceased their the [sic] previously established pattern of care.’
In this case the Tribunal finds that Mr Webster advised Child Support that a change in care event occurred on 1 August 2023 but he did not advise them of that event until 27 October 2023.[8] On balance the Tribunal is not satisfied that the requirements for revocation under section 54G are met because the Tribunal concludes that Mr Webster did not notify Child Support within a reasonable time that Ms Webster’s care had reduced to less than regular care. The Tribunal concludes that the existing care determination cannot be revoked pursuant to section 54G of the Act.
[8] A period of 87 days (12 weeks and 3 days).
Section 54F provides for revocation where section 54G does not apply. In this case the Tribunal is satisfied that revocation of the existing care percentage occurs pursuant to section 54F of the Act. This is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application; the notification of the change in care was that the actual care was not corresponding with the care as determined; the change in care would affect the relevant cost percentage;[9] and section 54G does not apply.
[9] The change in care results in a change in the parental parties’ cost percentage: section 55C.
The date of revocation is determined by subsection 54F(3) of the Act. In this case, Mr Webster did not notify of the change in care within 28 days. This means that for the person with reduced care (Ms Webster), the existing care determination is revoked the day before the change in care, namely 31 July 2023, and for the person whose care increases, the existing care determination is revoked the day before notification – which in this case is 26 October 2023.
Issue 2 – Should a new determination of care percentage be made, and, if so, from what date?
As noted, section 50 of the Act requires the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.
Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. This means that the new care determination of 93% for Mr Webster applies from 27 October 2023 and the care determination of 7% for Ms Webster applies from 1 August 2023.
Issue 3 – Date of effect arising from an objection to a care decision made more than 28 days after notification
As noted at hearing, whilst there is no time limit in which to object to a care percentage decision, where an objection is made more than 28 days after notification then date of effect rules apply.
Subsection 87AA(1) provides that:
(1)If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b) the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c) the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination
the date of effect of the review decision is the day on which the person lodged the objection.
In this case Mr Webster objected to the care percentage decision dated 6 December 2023 on 28 March 2024.[10] According to Child Support records Mr Webster received online notice of a decision dated 6 December 2023 that his care arrangement had changed. The Tribunal finds that Mr Webster was served notice of the decision on 6 December 2023. On 11 December 2023 Mr Webster was sent an updated assessment reflecting the new care determination and he lodged his objection on 28 March 2024.
[10] A period of 113 days (16 weeks and 1 day).
Mr Webster lodged his objection outside of the prescribed 28 days, which means the date of effect of a review decision to allow the objection is the date he made his objection – 28 March 2024. The Tribunal has noted subsequent care percentage decisions made by Child Support are not before the Tribunal. Those are separate decisions with their own review rights.
Subsection 87AA(2) of the RC Act provides a discretion to make a determination that subsection 87AA(1) applies as if the reference to 28 days were a reference to a longer period as determined to be appropriate if special circumstances exist which prevented Mr Webster from lodging his objection within the relevant period. A decision to exercise the discretion is an original decision with its own rights of review; this issue has not been considered in the objection decision under review by the Tribunal. For that reason, the Tribunal does not make a determination under subsection 87AA(2) of the RC Act.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides:
a) The existing care determination of 43% care to Mr Webster is revoked as of 26 October 2023.
b) The existing care determination of 57% care to Ms Webster is revoked as of 31 July 2023.
c) A new care determination of 93% care to Mr Webster applies from 27 October 2023.
d) A new care determination of 7% care to Ms Webster applies from 1 August 2023.
e) In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from 28 March 2024.
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