Wreford and Jourdain (Child support)

[2022] AATA 2101

Wreford and Jourdain (Child support) [2022] AATA 2101 (10 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC023425

APPLICANT:  Mr Wreford

OTHER PARTIES:  Child Support Registrar

Ms Jourdain

TRIBUNAL:Member P Jensen

DECISION DATE:  10 May 2022

DECISION:

The decision under review is varied so that Mr Wreford is recorded as providing 11% care for the children with effect from 30 September 2021 and Ms Jourdain is recorded as providing 89% care for the children with effect from 30 September 2021.

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 varied

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 Wreford and Ms Jourdain are the parents of [Child 1] and [Child 2]. This case concerns the parents’ care of the children as recorded by the Child Support Agency (“the CSA”). From 12 April 2020 the CSA recorded each parent as providing 50% care for both children.

2. On 9 November 2021, Ms Jourdain reported a change in the parents’ care of the children from 30 September 2021. The CSA subsequently made the following two decisions:

   ·   Mr Wreford was recorded as providing 0% care with effect from 30 September 2021 and Ms Jourdain was recorded as providing 100% care with effect from 4 November 2021.

   ·   Mr Wreford was recorded as providing 35% care with effect from 4 November 2021 and Ms Jourdain was recorded as providing 65% care with effect from 4 November 2021.[1]

   [1]The second decision to record Ms Jourdain as providing 65% care with effect from 4 November 2021 overrode the first decision to record her as providing 100% care with effect from 4 November 2021.

3. Mr Wreford objected to both decisions. An objections officer disallowed the objection to the first decision and allowed the objection to the second decision, substituting a decision to record Mr Wreford as providing 50% care and Ms Jourdain as providing 50% care with effect from 4 November.

4. Mr Wreford applied to the Tribunal for review of the objections officer’s first decision. I heard the matter on 10 May 2022. Mr Wreford and Ms Jourdain gave sworn evidence by conference phone.

5. The relevant facts are not in dispute. The parents generally provided week-about care with changeovers occurring on Thursdays. Mr Wreford started providing his usual week of care on Thursday, 16 September 2021. He became ill on 18 September 2021 but continued providing care until Thursday, 23 September 2021, when Ms Jourdain started providing her usual week of care. She continued to provide care up until, and including, the night of Saturday, 30 October 2021. Mr Wreford provided care on the nights of 31 October 2021 to 3 November 2021. Ms Jourdain then provided care during the week commencing Thursday, 4 November 2021 (which, under the old pattern of care, was a week during which Mr Wreford would have normally provided care), and Mr Wreford provided care during the week commencing Thursday, 11 November 2021 (which, under the old pattern of care, was a week during which Ms Jourdain would have normally provided care). As noted earlier, an objections officer decided to record each parent as providing 50% care from 4 November 2021. Neither parent has applied for review of that decision.

6. There is no dispute that if a change in care occurred, it occurred on 30 September 2021. There is also no dispute that each parent was providing 50% care from at least 4 November 2021. The issue is whether Ms Jourdain’s provision of 31 nights of care during the 35 nights from 30 September 2021 to 3 November 2021 constituted a discrete pattern of care or whether it was a “minor departure from the normal care” that did “not constitute a change to the pattern of care”: see chapter 2.2.1 of the Child Support Guide. One-off blocks of care normally need to be of at least four weeks’ duration to constitute a change in care, but each case needs to be assessed on its particular facts: chapter 2.2.2 of the Child Support Guide. Ms Jourdain’s one-off block of care lasted for more than four weeks. Mr Wreford said he had provided a similar one-off block of care in early 2020 and Mr Wreford’s one-off block of care should be viewed as part of a broader flexible arrangement between the parents. However, the hearing papers reveal that the CSA recorded Mr Wreford as providing a block of full-time care from 5 March 2020 to 11 April 2020. Mr Wreford said that he provided his usual three weeks of care during that five-week period and he also provided care during the two weeks that Ms Jourdain would have normally provided care. The fact that the CSA recorded that one-off block of care as a change in care adds further weight to the view that Ms Jourdain’s one-off block of care also constituted a change in care. Mr Wreford said he did not report the change in care in March / April 2020. Ms Jourdain said she reported the change in care. She took steps to ensure that the administrative assessment of child support payable remained fair, even though it meant that she stopped receiving child support from Mr Wreford and was required to pay child support to him. Mr Wreford did not object to the CSA’s decision to record him as providing a block of full-time care in March / April 2020.

7. Care decisions are made under the Child Support (Assessment) Act 1989 (“the Act”). Decision-makers are required to determine the pattern of care each parent has had, or is likely to have, during the relevant care period. The period from 30 September 2021 to 3 November 2021 constituted a discrete care period. During that period, Ms Jourdain provided a one-off block of almost full-time care. More precisely, she provided 31 nights of care during that period of 35 nights, which equates to 88.6% care, and Mr Wreford’s care equates to 11.4% care. Percentages greater than 50% are rounded up to the nearest whole percentage and percentages less than 50% are rounded down: section 54D of the Act. Ms Jourdain will be recorded as providing 89% care and Mr Wreford will be recorded as providing 11% care, but those percentages, being more than 86% and less than 14% respectively, will result in the same rate of child support payable as if the percentages were 100% and 0%: section 55C of the Act.

8. The CSA appears to have proceeded on the basis that the dates of effect of the parents’ percentages of care were governed by section 54F of the Act, and because the change in care was not reported within 28 days of its occurrence, Mr Wreford’s reduced care percentage took effect from the date on which the change in care occurred and Ms Jourdain’s increased care percentage took effect from the date on which the change in care was reported. However, one of the requirements of section 54F is that section 54G of the Act does not apply. In fact, section 54G did apply. In particular, Mr Wreford was providing less than 14% care despite Ms Jourdain making the children available, and Ms Jourdain reported the change in care within a period that was reasonable in the circumstances: paragraphs 54G(1)(b) and (d). Ms Jourdain explained that when she started providing additional care it was not clear when Mr Wreford would be able to resume his provision of care. As noted earlier, he had unexpectedly fallen ill. It was only with the passage of time that the date from which Mr Wreford would be able to resume his provision of care became clear. The parents’ percentages of care therefore have effect from when the change in care occurred: subsection 54G(2).

DECISION

The decision under review is varied so that Mr Wreford is recorded as providing 11% care for the children with effect from 30 September 2021 and Ms Jourdain is recorded as providing 89% care for the children with effect from 30 September 2021.