Winkles and Child Support Registrar (Child support)

[2021] AATA 4493

Winkles and Child Support Registrar (Child support) [2021] AATA 4493 (21 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022018

APPLICANT:  Mr Winkles

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy (Presiding),

Member M Manetta

DECISION DATE:  21 September 2021

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 – 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

1. Mr Winkles and [Ms A] are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. For the purpose of the calculation of the child support liability, the Services Australia (Child Support) programme (the Agency) used care percentage determinations reflecting that [Ms A] had 93% care of [Child 1] and Mr Winkles had 7% care of [Child 1] from 2 October 2020.  Those percentages were calculated by reference to Court Orders made on 15 September 2020.  Those orders made detailed provision about [Child 1]’s care, including the introduction of overnight care by Mr Winkles and an increase in the duration of overnight care at different points in 2020.

3. On 11 March 2021, both [Ms A] and Mr Winkles contacted the Agency to inform the Agency that care arrangements had changed.  New court orders were made on 4 March 2021 by consent. These orders were the culmination of negotiations between the parents and included arrangements for some care that took place before the orders were sealed.  The orders again made detailed provision about [Child 1]’s care, including a schedule specifying, with precision, periods of overnight care for Mr Winkles through to January 2022 and ongoing.

4. [Ms A]’s contact with the Agency was to the effect that her care percentage had decreased to 86% and Mr Winkles’s care had increased to 14%  from 20 February 2021 as a result of the new arrangements.  Mr Winkles asked that the Agency recognise he had 18% care of [Child 1] from 1 October 2019.  Mr Winkles provided a record of the actual overnight care he had of [Child 1] from 6 October 2020 and a prediction of future care based on the orders.

5. The Agency decided to change the care determination to reflect that Mr Winkles had 21% care of [Child 1] from 22 January 2021, with effect on the assessment from the date of notification: 11 March 2021.  [Ms A]’s care percentage determination was 79%.  The Agency’s decision was made on 23 April 2021.

6. Mr Winkles objected to that decision on 5 May 2021.  The objection was disallowed on 9 July 2021.  The objections officer considered that the pre-existing care pattern did not change until 22 January 2021, and from that date it could be calculated that, as a pattern, Mr Winkles would have 21% care based on the dates he was to have care as specified in the court orders.

7. Mr Winkles applied to the Tribunal for review on 2 August 2021.

8. [Ms A] was invited to be joined as a party to the proceedings, but did not respond to the Tribunal’s invitation.  She was not therefore a party to the proceedings notwithstanding that her interests may have been affected by the decision.

The previously existing care percentage determination is revoked.

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked.  The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Act.

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.  If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

3. Mr Winkles argues essentially that from October 2020 when he commenced having [Child 1] in his overnight care, he will accumulate sufficient care to exceed the care percentage identified by the Agency and the objection officer.  Mr Winkles considers that the approach to calculating care percentage determinations is inflexible and is unable to adequately accommodate situations where care may be increased incrementally over time.

4. The scheme for determining care percentages for the purpose of child support liability however does not operate as a form of audit or by accumulation over time retrospectively.  The scheme looks for patterns, and assesses those patterns against existing care percentage determinations.  The first legislative test that the Tribunal must apply poses the question whether the care that is actually taking place corresponds with the existing care percentage determination.  That question is answered by reference to a point in time: the care change day.

5. In this case, we are unable to identify any departure from the previous care percentage determination prior to the date identified by the Agency.  To put this another way, prior to 22 January 2021, it cannot be said that the care that was actually taking place did not correspond with the then existing care percentage determinations of 93% / 7%.  From 22 January 2021, based on the record of actual nights in care provided by Mr Winkles, and also (from 12 February 2021) the schedule to the new court order, there was a substantial increase to the amount of care Mr Winkles had and was expected to have.  From 22 January 2021, Mr Winkles’s care increased from 3 nights to 6 nights in the periods identified by Mr Winkles that correspond approximately to a calendar month.

6. Only from 22 January 2021 are we satisfied to say that that the care of the child that is actually taking place does not correspond with Mr Winkles’s existing percentage of care.  Further as to section 54F of the Act, we find that the cost percentage would change if a new percentage was to be determined, and section 54G of the Act has no application.

7. In this way, the criteria for the revocation of the existing care percentage determination in section 54F of the Act are satisfied for a care change day of 22 January 2021.  We would revoke the care percentage determination accordingly.

8. In this case, The Registrar was not notified that the care of the child was not taking place in accordance with the existing care percentage determination within 28 days of the change of care day.

9. Pursuant to paragraph 54F(3)(b) of the Act therefore the revocation of the existing care percentage will take effect differently for the parent with reduced care and the parent with increased care.

10. The date of effect of the revocation of the existing care percentage determination for Mr Winkles is the day before the date of notification: 10 March 2021.  For [Ms A], it is the day before the date that care actually changed, 20 January 2021.

    A new care percentage determination is made

11. Having revoked a care percentage determination, we must make a new care percentage determination.  In this case, it will be by reference to section 50 of the Act.

12. The percentage must correspond with the actual care of the child that we are satisfied each parent has had or is likely to have during a care period.  The term ‘care period’ does not refer to the period that the new care percentage determination will operate, but rather refers to whatever period is necessary for us to identify a pattern of care and interpret it as a percentage. Typically, the care period used for this period will be 12 months, but need not necessarily be so.  For example, Mr Winkles was critical that the scheme cannot accommodate incrementally increasing care arrangements.  The scheme can take into account incremental increases in care, either by incorporating the increased care into the care period so as to identify a blended percentage (if that is appropriate), or to use a smaller care period and to then rely on the parents to inform the Agency when the next increment commences, in accordance with the parents’ obligation to notify of changes to the pattern of care.

13. In this case, we have examined the court orders of 4 March 2021, and are confident to use the information provided in those orders to identify a care percentage over the period to which the court orders will apply, noting that the scheme contained in the schedule is intended to be ongoing.  If that does not turn out to be the case over time, then either parent may notify the Agency accordingly when and if the pattern changes.

14. From the court orders, we can see that Mr Winkles will routinely have 6 nights care every month.  We note that from August, there will be more nights in a row, but not more nights overall.  This need not therefore affect the care percentage determination.  We note that order 6 provides for Mr Winkles to nominate four additional blocks of time of an additional 2 nights in each block.  We consider it reasonable to predict that the additional care provided for by order 6 will take place.

15. Over a care period of 12 months therefore, we are satisfied that Mr Winkles will have 78 nights care.  This corresponds with a care percentage of 21%.

16. We will make a new care percentage determination of 21% to Mr Winkles and 79% to [Ms A] with effect from the day after the revocation of the previous care determination in respect of each parent.

DECISION

The decision under review is affirmed.