Wharton and Wharton (Child support)

[2022] AATA 1179

Wharton and Wharton (Child support) [2022] AATA 1179 (24 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022837

APPLICANT:  Mr Wharton

OTHER PARTIES:  Child Support Registrar

Ms Wharton

TRIBUNAL:Member S De Bono

DECISION DATE:  24 February 2022

DECISION:

The decision is affirmed. (This means the application for review is unsuccessful.)

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 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. Mr Wharton and Ms Wharton are the separated parents of [Child 1] and [Child 2]. Mr Wharton is the paying parent. There has been a registered child support case in relation to both children since 15 April 2009.

2. On 22 July 2021 Ms Wharton notified Services Australia – Child Support (Child Support) that the care had changed for [Child 1] and [Child 2] and that she now had 100% care of both children which she has had since 27 October 2018. On 9 September 2021 an officer from Child Support made the decision to accept the care change of both children as 100% to Ms Wharton from 22 July 2021 and 0% to Mr Wharton from 27 October 2018.

3. Prior to this decision the care determination in respect of the children was 86% to Ms Wharton and 14% to Mr Wharton, this care determination was in place from 19 November 2015.

4. On 16 September 2021 Mr Wharton lodged an objection to this decision on the basis that Ms Wharton was withholding care of [Child 1] and [Child 2] from him. On 8 November 2021 the objections officer disallowed Mr Wharton’s objection.

5. On 29 November 2021 Mr Wharton lodged an application for review with the Administrative Appeals Tribunal (the tribunal). On 24 February 2022 Mr Wharton and Ms Wharton gave evidence to the tribunal under affirmation via conference telephone. The tribunal had before it a bundle of documents (179 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Mr Wharton also provided additional information which was provided to Ms Wharton (A1–A17) prior to the hearing. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      Has there been a change to the care of [Child 1] and [Child 2]?

   ·      Does an interim care period apply?

   ·      What is the effective date of the care change?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Act sets out the statutory formula for the calculation of child support.  The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), provides that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. While the tribunal is not bound by such policy, in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

Issue 1 – Has there been a change of care for [Child 1] and [Child 2]?

1. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1] and [Child 2], before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

2. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that the Agency makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

3. Subsection 54F(1) of the Act provides that a determination of a responsible person must be revoked if a responsible person’s cost percentage, as a result of a change in the existing percentage of care for a child, is made under section 49 or 50 of the Act. Section 54G provides that an existing care determination must be revoked if the responsible person has less than regular care of the child (that is less than 14% care) and the care change was notified in a reasonable time.

4. The tribunal’s task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Agency – so that a new primary care percentage decision can be considered and made if appropriate. 

5. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care.  The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.

6. Mr Wharton said there have been signed consent orders from 13 March 2017 which gives him care every second weekend from the conclusion of school at 3pm until 5pm on Sunday for a period from 16 June 2017.[1] On the basis of the signed consent orders Mr Wharton’s care was determined to be 14%.

   [1] Page 120 of the hearing papers.

7. Mr Wharton said the children stopped staying with him because Ms Wharton withheld their care from him from around October 2017.

8. Ms Wharton said that since the consent orders of 2017 [Child 1] and [Child 2] have usually only stayed with Mr Wharton for one night over the weekend, she said there were only two weekends in 2018 that the children stayed overnight for two nights. She said Mr Wharton usually did not pick the children up from school at 3pm, preferring to pick them up from her house. Ms Wharton said the last night Mr Wharton had both children in his care was on
   8 September 2018 for one night. Ms Wharton said Mr Wharton took [Child 1] and [Child 2] for overnight care on 20 October 2018 but returned the children to her within an hour of taking them.

9. The tribunal asked Ms Wharton why she did not inform Child Support about the change in care at an earlier date and she said she did not want to create tension between herself and Mr Wharton. She said she has never withheld the care of the children and has not stopped Mr Wharton from having access to the children, she said it was Mr Wharton who varied the care arrangements.

10. While Ms Wharton was of the view that Mr Wharton ceased to have overnight care of [Child 1] and [Child 2] earlier than 27 October 2018 she notified Child Support that Mr Wharton’s care ceased on this date, both parents agreed to leave the date as 27 October 2018.

11. The tribunal finds based on this information that the actual care of [Child 1] and [Child 2] changed on 27 October 2018 and from this date Mr Wharton ceased to have overnight care of the children and he ceased to have regular care of the children.

Issue: 2 – Should an interim care period apply?

1. The tribunal is satisfied that a consent order sealed by the Court has been in place since 14 March 2017 and that the order stipulates Mr Wharton has 14% care from 16 June 2017. There are provisions in this order for the care of Mr Wharton to increase over time but at the time of the care change the consent order stated that Mr Wharton was to have the children stay with him every second weekend and half the school holidays.

2. In this case the tribunal is satisfied that a care determination was made under section 50 of the Act which determined Ms Wharton had 100% care of [Child 1] and [Child 2] from 22 July 2021 and Mr Wharton 0% from 27 October 2018. However, subsection 51(1) provides:

   (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.

   Note:        This section does not apply in certain circumstances: see section 53.

3. Section 51 of the Act allows for an interim care period to apply to the person who does not have care of the child if the person was taking reasonable action to have a care arrangement complied with. Section 53A of the Act provides the meaning of interim period and Item 2 of this section says if the care arrangement in relation to a child is a court order, then the maximum interim care period that applies is 26 weeks from the day the care changed.

4. As the tribunal has accepted that [Child 1] and [Child 2] ceased staying with Mr Wharton from 27 October 2018, the time of the notification of the care change is already more than 26 weeks of the change occurring. Therefore, in accordance with section 53A the interim period has passed and interim care determination cannot be applied to any of the period in which Mr Wharton ceased to have care for [Child 1] and [Child 2] and the tribunal so finds.

Issue 3 – What is the effective date of the care change for [Child 1] and [Child 2]?

1. Mr Wharton wanted the new care decision of 100% to Ms Wharton and 0% to him to apply from the date of notification of the change of care, that is from 22 July 2021. As the tribunal has determined that a change to the pattern of care occurred in respect of [Child 1] and [Child 2] from 27 October 2018 the law requires if there has been a change to the responsible person’s cost percentage then the existing care percentage must be revoked.

2. The tribunal is satisfied that the existing care percentages of 14% to Mr Wharton and 86% care to Ms Wharton is to be revoked in accordance with section 54F of the Act. Section 54F of the Act applies when the change of care means the responsible person’s (in this case Mr Wharton) child support liability would change if another care percentage was to be determined under section 49 or 50 of the Act. As the tribunal is satisfied that Mr Wharton ceased to have regular care (that is less than 14% care) from 27 October 2018, this means that the existing care determination of 86% to Ms Wharton and 14% to Mr Wharton must be revoked because there is a change to Mr Wharton’s cost percentage. The tribunal is satisfied that section 54G does not apply as Ms Wharton did not notify the Registrar within a reasonable amount of time of the change in care. Further, subsection 54F(2) applies to Mr Wharton because an interim period does not apply. This means the revocation of the care determination is made in accordance with subsection 54F(3) of the Act.

3. Subsection 54F(3) of the Act provides the day on which the revocation determination takes effect:

   (3)  The revocation of the determination takes effect at the end of:

   (a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b)  if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)  the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)  the responsible person’s care of the child has reduced—the day before the change of care day.

4. These provisions mean that the existing care determination of 14% care to Mr Wharton is revoked from the day before the care of the children actually changed, as the care of the children changed on 27 October 2018 the date of revocation of the existing care determination is on 26 October 2018. The date of effect of the revocation of Ms Wharton’s care determination of 86% is revoked from the day before she notified Child Support of the change of care. As Ms Wharton notified of the change of care on 22 July 2021 then the previous care determination in respect of Ms Wharton is revoked from 21 July 2021. There is no discretion in the law for a later revocation period to apply for the care determination for Mr Wharton.

DECISION

The decision is affirmed. (This means the application for review is unsuccessful.)