Winship and Winship (Child support)

[2021] AATA 3843

Winship and Winship (Child support) [2021] AATA 3843 (1 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021378

APPLICANT:  Mr Winship

OTHER PARTIES:  Child Support Registrar

Ms Winship

TRIBUNAL:Member H Moreland

DECISION DATE:  01 September 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there was a change in care in relation to [Child 1], which was that from 27 January 2016, Mr Winship had a care percentage of 39% and Ms Winship had a care percentage of 61% but that the date of effect of this decision is 11 March 2021. Further, the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 regarding the date of effect in relation to when Mr Winship objected to the original care decision.

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 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 Winship and Ms Winship are the parents of [Child 1] and [Child 2]. Mr Winship is the parent liable to pay child support.

2. From 30 December 2015, the Department of Human Services – Child Support (now Services Australia) (Child Support) determined that Mr Winship had a care percentage of 35% for [Child 1] and Ms Winship had a care percentage of 65% for [Child 1] from 4 December 2015 onwards.[1]

   [1] T documents, p 131.

3. On 22 July 2020, Child Support then changed the percentage of care to reflect Mr Winship having a care percentage of 39% for [Child 1] and Ms Winship having a care percentage of 61% for [Child 1] from 13 May 2019 after being notified of a change on 3 July 2020.[2]

   [2] T documents, p 132.

4. Mr Winship lodged an objection to this decision on 11 March 2021. On 27 April 2021, an objections officer disallowed Mr Winship’s objection to the decision.

5. On 4 May 2021, Mr Winship lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 4 August 2021. Mr Winship and Ms Winship both spoke to the tribunal via conference telephone and gave sworn evidence. Mr Winship was represented by [Mr A] of [Law firm]. In making its decision, the tribunal took into consideration the documents provided by Child Support (152 pages), which were also sent to Mr Winship and Ms Winship. The tribunal also had regard to additional documents submitted by Mr Winship (A1a-A2a and A1-A53) and Ms Winship (B1-B90). These documents were exchanged between Mr Winship and Ms Winship for the opportunity to comment.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

Was there a change in the care of [Child 1]?

1. The role of the tribunal in this matter is to determine if the care percentage in relation to [Child 1] changed from the previous care determination and if so when, and by what percentage. This means the tribunal needs to determine if the care of [Child 1] has changed from Mr Winship having a care percentage of 35% for [Child 1] and Ms Winship having a care percentage of 65% for [Child 1] since 4 December 201 5 and if so, what that change was. Any dispute(s) regarding subsequent changes of care would need to be the subject of future applications for review.

2. There is no dispute that Mr Winship and Ms Winship separated in 2014, prior to [Child 2], whose care is not subject to this review, being born. The tribunal also notes that there is a court order in relation to the care of [Child 1], which was made on 22 January 2017;[3] and that an interim order preceded this (it was dated 4 December 2015).[4] The tribunal understands there is no subsequent court order in relation to [Child 1]’s care.

   [3] T documents, B46-B56.

   [4] T documents, B40-B45.

3. Mr Winship told the tribunal that the interim orders were replicated in the final orders. The interim order provided to the tribunal however, relates to a particular period, that being a period of 14 days in January 2016, during which [Child 1] was to spend 14 consecutive nights with Mr Winship. There is no other copy of interim orders before the tribunal.

10.Mr Winship told the tribunal that in late 2015, [Child 1] was with him 90% of the time because she wanted to spend more time with him and because Ms Winship was trying to find accommodation in his area. Mr Winship said that he assisted Ms Winship to find accommodation close to him and that after that, when [Child 1] commenced primary school in 2016, the care percentages for [Child 1] were 50% each to Mr Winship and Ms Winship. He said that he and Ms Winship had an arrangement by which [Child 1] was with him for seven nights per fortnight.

11.Ms Winship told the tribunal that the care percentages she provided to Child Support were accurate, those being that she had 65% care of [Child 1] and Mr Winship had 35% care of [Child 1]. She said that in 2016, when [Child 1] commenced school, [Child 1] was with Mr Winship for five nights per fortnight and 50% of the school holidays.

12.The tribunal notes that school students in Victoria attend school for approximately 40 weeks per year. This means there are 12 weeks of school holidays. If Mr Winship had care of [Child 1] for five nights per fortnight and 50% of the school holidays, he would have had 143 nights of care per year (or 39%).

13.The tribunal notes that the court order made on 22 February 2017 provides that [Child 1] is to live with Ms Winship and spend the following periods with Mr Winship:

·     Each alternate weekend from Friday afternoon until the following Monday morning;

·     Each Tuesday night;

·     Any additional Father’s Day that [Child 1] is not already in the care of Mr Winship (with [Child 1] to be in the care of Ms Winship for any Mother’s Day that she was not already in the care of Ms Winship);

·     On Mr Winship’s birthdays, the children’s birthdays, and at Easter, as agreed between Mr Winship and Ms Winship;

·     For one week of each school term holiday-period;

·     Alternating Christmases; and

·     21 consecutive nights in the summer holiday period.

14.There is no dispute that this arrangement amounts to Mr Winship’s court-ordered care of [Child 1] being for 143 nights per year (39%); and Ms Winship’s court-ordered care of [Child 1] being for 222 nights per year (61%).

15.The tribunal notes that the care, as described by Ms Winship at paragraph 11, accords with this agreement.

16.The tribunal found there to be no discernible difference between the credibility of Mr Winship and Ms Winship as witnesses but concludes that it is likely that the pattern of [Child 1]’s care was reflected in the later court order, particularly as Mr Winship told the tribunal that there was an interim order from 2015 that was replicated in the later 2017 order.

17.The tribunal concludes that as the initial care determination of Mr Winship having 35% of care and Ms Winship having 65% of care at the commencement of this Child Support arrangement was not challenged at the time, it is likely that it was correct but that the care of [Child 1] did change at the commencement of the school year in 2016.

18.The tribunal concludes from the start of the school year in 2016 (27 January 2016) the care percentage changed to a care percentage of 39% to Mr Winship and 61% to Ms Winship.

Should the existing care determination in relation to [Child 1] be revoked?

19.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child, or children.

20.In this case, the tribunal has determined that a care determination was made under section 50 of the Act, that being that Ms Winship had a care percentage of 65% in relation to [Child 1] and that Mr Winship had a care percentage of 35% from 4 December 2015. The tribunal is also satisfied that the care that was taking place did not correspond with that care percentage decision. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the care during the care period. As noted above, the tribunal concludes from the start of the school year in 2016 (27 January 2016) the care percentage changed to a care percentage of 39% to Mr Winship and 61% to Ms Winship.

From which date should the administrative assessment be amended to reflect the changes?

21.As noted above, Child Support was notified that there had been a change in care on 3 July 2020. From the papers, the tribunal concludes that no court orders in relation to the care of [Child 1] have been provided to Child Support.

22.With regard to the date of effect provisions, the tribunal notes that this matter relates to a period during which there were changes to the relevant legislation.

23.Prior to 23 May 2018, at subsection 54F(2), the Act provided that:

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

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

(i)in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or

(ii)otherwise—the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or

(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

24.In this case, that would mean that the date of revocation of the previous care determinations for both parents would be the day before the date that Child Support was notified of the change in care. That being 2 July 2020 (as Child Support was notified on 3 July 2020), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 3 July 2020.

25.The Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (the 2018 Amending Act) amended the date of effect provisions in two steps.

26.The first relevant step in the amended provisions was the insertion of subsection 54F(3) by section 37 in Part 1 of the 2018 Amending Act, to take effect from 23 May 2018. It read:

(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) otherwise—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter.

27.This case, under the amendment, would have the same outcome. It would mean that the date of revocation would be the day before the date that Child Support was notified of the change in care. That being 2 July 2020 (as Child Support was notified on 3 July 2020), so no variation in the rate of child support payable as a result of the change in care percentage would be payable prior to 3 July 2020.

28.This amendment however, according to section 39 of the 2018 Amending Act, took effect “in relation to any change of care day that occurs on or after the day [section 37] commences”. The change of care in relation to [Child 1] occurred on 27 January 2016, which was prior to section 37 of the 2018 Amending Act commencing on 23 May 2018.

29.The second relevant step of the amendments took effect from 1 July 2018. This amendment, made by clause 176 in Part 4 (Overpayments), Schedule 1 to the 2018 Amending Act replaced subsection 54F(3) with the following:

(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.

1. In this case, under this amendment there would be a different outcome. It would mean that the previous care determination for the parent whose care had increased (Mr Winship) would be revoked the day before Child Support was notified of the change in care (2 July 2020), but the previous care determination for the parent whose care had decreased (Ms Winship) would be revoked the day before care changed. In this case that would be 26 January 2016.

31.The problem with this step is that it amended subsection 54F(3) of the Act which was inserted by the 2018 Amending Act to commence from 23 May 2018 and according to section 39 of the 2018 Amending Act, these changes did not apply to changes of care that took place prior to 23 May 2018. Subsection 54F(2) as it existed prior to 23 May 2018 has not, as far as the tribunal can see, been repealed in relation to change of care days that occurred prior to 23 May 2018. The pre-May 2018 subsection 54F(2) and the post-July 2018 subsection 54F(3) are in conflict, and logically cannot both apply to the same change in care.

32.The tribunal finds that as the amendment taking effect on 1 July 2018 amended a provision that took effect from 23 May 2018 and not before, there would need to be some other clear direction in the legislation, or accompanying materials, for the amendment taking effect on 1 July 2018 to apply prior to 23 May 2018.

33.The following transitional provision is included in Schedule 1, Part 4, Division 3 – “Date of effect rules” of the 2018 Amending Act:

183 Application—date of effect rules

The amendments of the Child Support (Assessment) Act 1989 made by this Division apply in relation to:

(a) changes of care days that occur on or after the day this item commences; and

(b) changes of care days that occur before the day this item commences if the Registrar or Secretary is notified, or otherwise becomes aware, of the change of care more than 26 weeks after the day this item commences.

34.The tribunal referred to the Explanatory Memorandum (the EM) that accompanied the relevant bill. It states:

Item 183 – Overpayments

On page 41, immediately after the paragraph starting with “Item 183”, insert: “This provides parents who have delayed in notifying a change of care with a transitional ‘grace period’ of 26 weeks from commencement to notify of the change of care before they become subject to the new care percentage date of effect rules.

As a result, a parent who had reduced their care of a child before commencement but failed to notify of the change until more than 26 weeks later would have the reduced care percentage reflected in their child support assessment from the date of the care change. This could lead to a child support overpayment or arrears debt being raised against that parent in some cases. However, this is appropriate given the reduced care percentage is an accurate measure of the lower care costs incurred by that parent as the date of the care change, and the ability to notify within a timely manner, was within the parent’s control.”

35.The problem with the date of effect rules set out in item 183 of the 2018 Amending Act is that they only apply to the change taking effect from 1 July 2018 as the section refers to “this division”, which is the same division containing the change taking effect on 1 July 2018. The 23 May 2018 amendment to the Act, introducing subsection 54F(3), was made in Schedule 1, Part 1, of the 2018 Amending Act. This means that the provision at item 183 applies only to the 1 July 2018 amendment, not the 23 May 2018 amendment.

36.The tribunal concludes that as the transitional rules, as set out in item 183 apply only to the 1 July 2018 amendment and there are no transitional rules in relation to the 23 May 2018 amendment, the correct interpretation of the legislation is that for changes of care that occurred prior to 23 May 2018, the previous legislation applies.

1. This means the tribunal finds that the date the previous care determination was revoked in the case of Mr Winship and Ms Winship is 2 July 2020, so the date of effect of the change of care determination is from the date of notification (3 July 2020).

Date of effect

38.The decision under review is set aside and, in substitution, Mr Winship is recorded as providing 39% care and Ms Winship is recorded as providing 61% care to [Child 1], with effect from 3 July 2020.

39.In the absence of a determination pursuant to subsection 87AA(2) of the Registration Act, the tribunal’s decision has effect from the date on which Mr Winship objected to the original care decision, which was 11 March 2021.

40.Note: the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Registration Act.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that there was a change in care in relation to [Child 1], which was that from 27 January 2016, Mr Winship had a care percentage of 39% and Ms Winship had a care percentage of 61% but that the date of effect of this decision is 11 March 2021. Further, the Child Support Registrar should decide whether to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 regarding the date of effect in relation to when Mr Winship objected to the original care decision.