Whiteway and Child Support Registrar (Child support)

[2021] AATA 2913

Whiteway and Child Support Registrar (Child support) [2021] AATA 2913 (7 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021408

APPLICANT:  Ms Whiteway

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  7 July 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that:

·Ms Whiteway’s care percentage of 95% in respect of [Child 2] and 75% in respect of [Child 1] is revoked and replaced with a care percentage of 71% from 27 July 2020; and

·[Mr A]’s care percentage of 5% in respect of [Child 2] and 25% in respect of [Child 1] is revoked and replaced with a care percentage of 29% from 27 July 2020.

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 – care other than in nights – 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 the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. [Mr A] and Ms Whiteway are the parents of two children, a son and a daughter. This application concerns their children’s care arrangements from 24 July 2020.   

2. A child support assessment was registered with the Department of Human Services (now Services Australia) – Child Support from 23 December 2019. From this date their daughter was recorded as being in the mother’s 95% and the father’s 5% care and their son was recorded as being in the mother’s 75% and the father’s 25% care.

3. On 21 August 2020 the father reported a change to the children’s care arrangements, stating that he had 50% and the mother had 50% care from 19 July 2020 (the first care decision). On 3 February 2021 Child Support accepted the father’s care change application. The mother’s objection to this decision was disallowed on 29 April 2021.

4. On 19 November 2020 the father reported a second care change, but this time only in relation to the daughter’s care, stating that he had 22% and the mother had 78% care of the daughter from 18 September 2020. On 3 February 2021 Child Support accepted the father’s care change application (the second care decision). On 29 April 2021 the mother’s objection to this decision was allowed, and the care record amended to reflect that the mother had 86% care and the father 14% care of the daughter from 18 September 2020.

5. On 19 January 2021 the father reported a third care change, again relating only to the daughter’s care, stating that the mother had 100% care of the daughter from 3 December 2020. On 3 February 2021 Child Support accepted the father’s care change application (the third care decision). The mother’s objection to this decision was disallowed on 29 April 2021.

6. The mother sought review of the first and second care decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 5 May 2021.

7. The matter was heard on 7 July 2021. The mother appeared by MS Team audio. The Child Support Registrar and the father elected not to attend the hearing. In reaching its decision the tribunal considered the sworn evidence of the mother as well as the documentation provided by Child Support (folios 1 to 191). Immediately following the hearing the mother provided additional documents (A1 to A2) which were accepted into evidence, a copy of which was provided to Child Support.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act). The tribunal also had regard to the Child Support Guide (the Guide), which sets out Child Support’s policies.

2. The issues which arise in this case are as follows:

   ·Should the existing determination of percentages of care in respect of the children be revoked? If so, from when should they be revoked?

   ·Should a new determination of percentages of care be attributed to the mother and father in respect of the children?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of care arrangements. The provisions in Division 4 of Part 5 of the Act require Child Support (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked and if so, what new care percentage decision can be made.

2. Section 50 of the Act requires the primary decision maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify Child Support and a new care determination can be made from the date of divergence.

3. The tribunal is satisfied that there are no current parenting plants or court orders regarding the care of the children.

Was there a care change on 24 July 2020?

1. The mother’s submissions can be summarised as follows. She had consistently suggested shared care on a week about arrangement at the mediation the parents had attended. The father would agree to this in mediation sessions, but then would never sign the paperwork. This was why the mediator provided a section 60I certificate, stating that mediation had failed (at folio 44). She believes that the father genuinely wants to equally share care of the children, but he knows that the demands of his work prohibit him from doing so. She explained that following their most recent mediation on 5 July 2020 the father had indicated that he would agree to shared care. However, he then sent her an email stating that he did not agree; instead, he suggested that he could care for the children alternate weekends.

2. The mother provided evidence of two emails exchanged between her and the father. Both were sent on 19 July 2020. The mother was the author of an email sent at 3:04pm where she stated that there was no agreement reached at mediation, if there was to be a week about care arrangement with the children she would insist that the father care for the children during work hours and if he did not she would call the police and child protection services. The father responded to this email at 5:10pm and stated (at folio 31):

   It is clear that 50/50 parenting and care is not going to work so I would like to have [Child 1] and [Child 2] every second weekend. When there are school holidays I will have them for half of this time…

3. The father provided text messages from this same period, which the mother states are not a complete disclosure of all text messages. Nevertheless, the tribunal accepts that the following exchange between the parents took place on 23 July 2020 (at folio 70):

   [23/7/20 18:26] Ms Whiteway: So, is do I assume you are taking both kids this weekend for your every second weekend? Is [Child 2] coming too?

   [23/7/20 19:35] Me: That would be great.

4. Based on the email and text message exchange outlined above, the tribunal is satisfied that the parents had agreed that the father would have two nights of care per fortnight during school term and half of all school holidays from late July 2020. However, this agreement was short lived. The following text messages were exchanged on Monday 27 July 2020, in a context where there were mandatory COVID-19 school closures and the requirement for parents to home school their children:

   [27/7/20 07:54] Ms Whiteway: … From today they are coming to your home from 4 pm until 7 am, you are going to start sharing the load and the huge mental health load of a very sensitive teenage boy who is struggling with internal turmoil. You will have them every evening this week, spend time with them, and have a normal family week. You don't see the dynamics at play because you don't have them enough but I cannot tackle [Child 1]'s mental health alone. Get in board and be the father that he needs. Learn from your mistakes with [Ms B].

   …

   [27/7/20 14:30] Me: Will I just have [Child 1] for a couple of nights and give [Child 2] a break. Then I can have them both. Up to you.

   [27/7/20 14:38] Whiteway: Well [Child 2] has said she wants to be here tonight which is fine…

5. On 6 August 2020 the mother sent a text to the father and asked if he could also have the children overnight from Monday to Thursday the week beginning 10 August 2020. The text message chain indicated that the father cared for the children on the previous weekend (8 to 9 August 2020). On 26 August 2020 the following text messages were exchanged:

   [26/8/20 15:10] Me: Are we agreeing on my last email? The only item different is instead of weekend on/off is that I am having them nights and weekend week on week off during covid school lockdown. When they go to school or you return to work this will change obviously.

[26/8/20 15:14] Ms Whiteway: No mediation failed. Nothing was agreed to.

1. As stated above, there is a temporal element when determining if there has been a change to a care arrangement. The tribunal is satisfied that from 27 July 2020 the general agreement was that the father would care for the children on alternate weekends and would also provide overnight care each alternate week. In the absence of any documentary evidence, the tribunal accepts the mother’s testimony that he would care for the children from about 6:30pm to 6:30am alternate weeknights, and that the mother would collect the children on the father’s weekends on alternate Sundays at about 4:30pm.

2. Child Support’s policy on determining the pattern of care other than by way of using the nights of care is set out in 2.2.1 of the Guide:

   Care other than in nights

   Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

   In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

   …

3. The tribunal considered Child Support’s policy and has determined that it is appropriate in this particular case that the hours of care be considered, particularly in a context when the children were home schooled during the same period due to school closures. In the tribunal’s view, hourly care more accurately reflects the division of care between the parents. The tribunal calculates that the mother had 71% care and the father had 29% care (taking into account section 54D of the Act which states that a percentage of care is rounded down if less than 50%), based on the following hourly calculations:

Mon	Tues	Wed	Thurs	Fri	Sat	Sun	Total
Week 1	Mother	24	24	24	24	24	24	24	168
Father	0	0	0	0	0	0	0	0
Week 2	Mother	12	12	12	12	12	0	7.5	67.5
Father	12	12	12	12	12	24	16.5	100.5

21.Subsection 54F(1) of the Act provides in relevant part, that in circumstances where the current care decision has been made under sections 49 or 50 of the Act, if section 51 of the Act applies and the interim period has ended, the Registrar (or tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is not consistent with the existing determination of care and that the actual care of the child results in a change to the rate of child support payable by one parent to the other due to a change in the cost percentages and section 54G of the Act is not applicable, then the current care decision must be revoked.

1. The tribunal is satisfied that all five criteria under this provision are met in respect to the daughter, but not the son. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that the existing care determinations for the parents were made in accordance with section 50 of the Act. There is no interim period in place and so the criterion under paragraph 54F(1)(b) is therefore satisfied. The tribunal is satisfied that the care as notified by the father to Child Support on 21 August 2020 did not correspond to the care registered, thereby satisfying the third criteria under paragraph 54F(1)(c) of the Act. In relation to paragraph 54F(1)(d) of the Act, the tribunal is satisfied that each parents’ cost percentage would change in respect of the daughter only (there is no change in cost percentages in respect of the son as a flat cost percentage of 24% is applied whether a person’s care falls between 14% and less than 35%), thereby satisfying the second criterion under paragraph 54F(1)(d) of the Act. Section 54G is not applicable in this case, thereby satisfying the fifth and final criterion under paragraph 54F(1)(e) of the Act. As all of the criteria of subsection 54F of the Act are met in respect of the daughter, the tribunal must revoke her existing care determination.

2. In the interests of consistency, the tribunal is satisfied it is appropriate to revoke the existing care percentage in respect of the son under section 54H. The tribunal is satisfied that the care as notified by the father to Child Support on 21 August 2020 did not correspond to the care registered, thereby satisfying paragraph 54H(1)(a) of the Act. In relation to paragraph 54H(1)(b) of the Act, the tribunal is satisfied that each parents’ care percentage would change in respect of the son. The tribunal has already found that section 54F does not apply and it is also satisfied that sections 54FA and 54G do not apply, thereby satisfying paragraph 54H(1)(c) of the Act.  The new care determination is not subject to section 51 of the Act, thereby satisfying the final criterion under paragraph 54H(1)(d) of the Act. As all of the criteria of subsection 54H(1) of the Act are met, the tribunal revokes the existing care determination in respect of the son.

3. Paragraphs 54F(3)(a) and 54H(3)(a) of the Act state, in situations where the change was notified within 28 days of the care change (as is the case in this matter), the date of revocation is the day before the change of care day. Thus, in respect to the parents’ daughter the tribunal revokes the mother’s care percentage of 95% and the father’s care percentage of 5% on 26 July 2020 and replaces it with new care percentages of 71% to the mother and 29% to the father from 27 July 2020. In respect to the parents’ son the tribunal revokes the mother’s care percentage of 75% and the father’s care percentage of 25% on 26 July 2020 and replaces it with new care percentages of 71% to the mother and 29% to the father from 27 July 2020.

Was there a care change on 18 September 2020?

1. The mother agrees that there was a further care change in relation to the daughter’s care in September 2020, as notified by the father on 19 November 2020. However, she states that the father had no pattern of care with the daughter from this time, though he did have some ad hoc care. The mother explained that her adult daughter returned to live at her home and so was able to provide her with support in caring for the children. From that time, the daughter chose to no longer spend alternate weeknights in her father’s care.

2. The tribunal carefully considered the text messages in evidence. These suggest that the daughter did not spent the weekend of 11 October 2020 in her father’s care due to illness, and then spent the first weekend of November 2020 in her father’s care. On balance, the tribunal is satisfied that the pattern of care from 18 September 2020 was that the child would spend alternate weekends in her father’s care (14% care), notwithstanding the fact that this care arrangement may have not been strictly adhered to due to various factors.

3. There is no change to the parents’ respective cost percentages should the tribunal amend their care percentages from 71% to 86% in the mother’s case or from 29% to 14% in the father’s case. As outlined above, a flat cost percentage of 24% is applied whether a person’s care falls between 14% and less than 35%. Thus, section 54F is not applicable in this case. In this instance the tribunal is not persuaded that it is appropriate to revoke the existing care percentages under section 54H of the Act, as it will have no impact on the child support liability or either parents’ rate of family tax benefit. For the sake of clarity, the tribunal notes the daughter’s care percentages of 71% to the mother and 29% to the father will remain in place until the third care decision takes effect, being that the daughter’s care changed on 3 December 2020 with the mother’s care percentage increased to 100% (reflected in the assessment from 19 January 2021) and the father’s care percentage decreased to 0% (reflected in the assessment from 3 December 2020).

1. The tribunal also notes that the mother submits that there were two changes to the son’s care arrangements. The first was on or about 26 October 2020, when home schooling ceased. From this time, she contends that the son was in the parents’ shared care, on a week about arrangement until the son completed Term IV, 2020. She submits that the father was unable to care for the son half of the summer school holidays (due to his work commitments); instead, he had about 12 nights of care of the son during this period. Since returning to school in 2021 she states that the current arrangement with the son is that he spends about 10 to 12 nights per month in his father’s care during school term and there is an ad hoc arrangement in the school holidays. She estimates that since late December 2020 her son has been in her 73% care. There have been no notifications made to Child Support regarding the son’s care since July 2020. It is open to either party to lodge a care application in respect of the son.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that:

·Ms Whiteway’s care percentage of 95% in respect of [Child 2] and 75% in respect of [Child 1] is revoked and replaced with a care percentage of 71% from 27 July 2020; and

·[Mr A]’s care percentage of 5% in respect of [Child 2] and 25% in respect of [Child 1] is revoked and replaced with a care percentage of 29% from 27 July 2020.