XHRC and Child Support Registrar (Child support second review)

[2019] AATA 5396

XHRC and Child Support Registrar (Child support second review) [2019] AATA 5396 (13 December 2019)

Division:                  GENERAL DIVISION

File Number:2018/7204          

Re:XHRC  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

DZJRAnd  

OTHER PARTY

DECISION

Tribunal:Member D Mitchell      

Date:13 December 2019

Place:Brisbane

The decision under review is set aside and in substitution, the Tribunal decides that the percentages of care for the Children are 34 percent for the Applicant and 66 percent for the Other Party with effect from 5 April 2018.

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Member D Mitchell

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.

CATCHWORDS

CHILD SUPPORT – percentage of care – pattern of care of children during the relevant period – decision set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

CASES

Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Parent A and Child Support Registrar [2013] AATA 562

Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634

REASONS FOR DECISION

Member D Mitchell

13 December 2019

INTRODUCTION

1. The Applicant, XHRC (the Father), and the Other Party, DZJR (the Mother), are the separated parents of two daughters born in 2004 and 2007 (the Children).

2. From 25 November 2017, the child support assessment reflected the Father as having 39 percent care, and the Mother 61 percent care of the Children.[1]

   [1] Exhibit 1, T Documents, T6, page 22, Details of Objection Decision.

3. On 10 April 2018, the Mother advised the Respondent of a change of care stating that from 6 April 2018, the Father had 30 percent care and she had 70 percent care of the Children.[2]

   [2] Exhibit 1, T Documents, T57, page 255-256, Child Support file notes for the period 30 September 2017 to 24 October 2018.

4. On 23 June 2018, the Respondent decided not to revoke the existing care determination and as such there was no basis for a new determination of the parties’ percentages of care of the Children to be made.[3] The original determination remained in place.

   [3] Exhibit 1, T Documents, T8, pages 37-40, Child support file notes for the period 2 February 2018 – 3 October 2018, T23, pages 149-150, Child Support Letter: change in care arrangements, T46, pages 227-228, Child Support Letter: change in care arrangements.

5. The Mother objected to this decision on 25 June 2018.[4]

   [4] Exhibit 1, T Documents, T57, pages 261-262, Child Support file notes for the period 30 September 2017 to 24 October 2018.

6. On 25 August 2018, the Respondent allowed the objection in part and decided to:[5]

   a.revoke the existing determination of the percentages of care; and

   b.make a determination under section 50 of the Assessment Act, that the Father provides 35 percent care and the Mother 65 percent care of the Children from 6 April 2018.

   [5] Exhibit 1, T Documents, T6, pages 22-24, Details of Objection Decision.

7. On 27 August 2018, the Father sought a first-tier review of the objection decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which on 20 November 2018 set aside the objection decision and determined that the Father provides 30 percent care and the Mother 70 percent care of the Children from 12 March 2018, with the date of effect being 10 April 2018.[6]

   [6] Exhibit 1, T Documents, T2, pages 3-7, Decision of the Social Services & Child Support Division.

8. Following this, the Father sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 5 December 2018.[7]

   [7] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.

9. It is noted that throughout the review processes both the Father and Mother have provided further information in relation to their view of the matter which also included care calendars.

10. On 1 November 2019, a Hearing was held for this application. At the Hearing, the Father and Mother were self-represented, appeared by telephone and gave evidence under affirmation. The oral evidence was consistent with the written material and the Tribunal considers that both the Father and the Mother were open and honest in response to questions asked.

11. The Respondent submitted that they see their role in this matter as being to record the evidence and to set out the relevant law and policy to assist the Tribunal to make the correct or preferable decision about whether an interim care decision should be made.[8]

    [8] Exhibit 2, Registrar’s Statement of Facts, Issues and Contentions, page 1, paragraph 2.

    THE LAW

12. The relevant legislation is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

13. As the assessment relates to a single child support case with no non-parent carers Section 35 of the Assessment Act sets out the relevant formula in calculating the annual rate of child support payable in this matter using incomes of both parents.

14. Step 4 of the formula is to work out each parent’s percentage of care for the child in accordance with Subdivision B of Division 4 of Part 5 of the Assessment Act.[9]

    [9]  Which includes sections 48 to 54L.

15. Percentage of care is defined in section 5(1) of the Assessment Act as “in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5”.

16. Responsible person is defined in section 5(1) of the Assessment Act as “for a child means a parent or non-parent carer of the child”.

17. Section 50 of the Assessment Act applies where a responsible person has a pattern of care during the relevant care period and requires that the percentage determined must correspond with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

18. “Pattern of care” is not defined in the Assessment Act, however was considered by the Tribunal in Parent A and Child Support Registrar [2013] AATA 562 which said:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.

19. Section 54A of the Assessment Act provides guidance on how to work out actual care and extent of care of a child. It provides:

    (1)The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

    (2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

    (3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.

    (4)This section does not limit section 50, 51, 53B or 54.

20. Once a percentage of care determination has been made under section 49 or section 50 in respect of a particular care period, a new percentage care determination cannot be made in respect of that same period unless the existing percentage determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act.

21. Section 54F is set out in Subdivision C of Division 4 of Part 5 of the Assessment Act and provides that:[10]

    [10] Section 54F of the Assessment Act as inforce in relation to the date of the notified change of assessment has been applied, noting that this section has subsequently been repealed and replaced.

    (1)If:

    a.    A determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

    b. If section 51 or 52 applied in relation to the responsible person – the interim period for the determination has ended; and

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

    d.    The Registrar is satisfied that the responsible person’s cost percentage of the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

    e.    Section 54G does not apply;

    The Registrar must revoke the determination.

    Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

    (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 persons:

    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.

    ISSUES

22. The issues for the Tribunal to consider are:

    (a)Whether the care percentage determination in place at 10 April 2018 should be revoked under section 54F(1) of the Assessment Act; and

    (b)If the existing care percentage determination should be revoked, what percentage of care should be attributed to the Father and the Mother under section 50 of the Assessment Act; and

    (c)The date of effect of the new determination.

    EVIDENCE

23. All of the evidence before the Tribunal has been taken into account including the submissions made by the Father and the Mother. It is clear that the Mother and Father, as is not uncommon in these kinds of matters, have a fractured relationship.

24. It was agreed that this application relates to a closed period (the Relevant Care Period) being between 6 April 2018 (the date of notified change of care)[11] and 28 August 2018 when a new care determination was made that the Father provides 39 percent care and the Mother 61 percent care of the Children.[12]

    [11] Exhibit 1, T Documents, T57, pages 255-256, Child Support file notes for the period 30 September 2017 to 24 October 2018.

    [12] Exhibit 1, T Documents, T14, pages 85-87, Child Support Assessments for the period 6 April 2018 to 30 November 2018.

25. The Father provided a number of different written submissions throughout the review process, all of which consistently outlined that his working arrangements led to the change in arrangements for the Children during the period and accepted that he missed days of care.[13]

    [13] Exhibit 5, Applicant’s submission dated 30 September 2019 with annexures and Exhibit 7, Applicant’s submissions with calendar received by the Tribunal on 24 February 2019.

26. The Father at Hearing told the Tribunal that:

    ·He did not agree with the 30/70 split in care.

    ·He had the Children for extra nights in March and that in April he missed 4 nights and that he missed 2 nights in May.

    ·On 12 March 2018, he started a new job and initially had to work a “five-on/two-off” roster.

    ·He contends that there was not a change of pattern of care.

    ·     During the April school holidays, he was working a five day on two days off roster and he organised a week off however it was not his week and the Mother would not allow him to swap days.

    ·From 14 May, his roster went back to normal – seven days on seven days off.

    ·From June, he changed the days he had the Children from Friday to Tuesday to Thursday to Monday.

    ·He missed two days in the June school holidays.

27. The Mother provided a written submission on 21 February 2019 providing a 2018 calendar of care for the Children and provided:[14]

    7 April 2018 to 24 August 2018 – the percentage of care was 68% care for me which equates to 94 nights out of 139 and 32% for the father which equates to 45 nights out of 139.

    [14] Exhibit 8, Other Party’s submission with calendar dated 21 February 2019.

28. The Mother at Hearing told the Tribunal that:

    ·The Father had not met the court orders during the period. The Father did not have care of the Children in the April school holidays or as expected in the July school holidays.

    ·She feels like she is expected to subsidise the Father going to work.

29. A review of the care calendars provided by the Father and the Mother shows a one day difference in relation to the agreed care of the Children for the Relevant Care Period.  The Father’s calendar shows he provided care for 49 days out of the 144 days in this period.[15]  The Mother’s calendar shows the Father provided care for 48 days out of the 144 days in this period.[16]

    [15] Exhibit 4, Applicant’s submission with calendar dated 9 October 2019.

    [16] Exhibit 8, Other Party’s submission with calendar dated 21 February 2019.

30. The consent orders relating to the care of the Children were made in 2009 and provide the Children are with the Father:[17]

    ·From 4 pm on Friday to 4 pm on Wednesday.

    ·Mother’s Day and Father’s Day weekends will be swapped between the Father and the Mother as required.

    ·Time for the Children’s, Father’s and Mother’s birthdays which does not affect the night care arrangements.

    ·Half of the school holidays.

    ·Alternate Christmas eve or Christmas day.

    ·Half of the 4 days of Easter (which alternate).

    [17] Supplementary T Documents, ST2, pages 285-290, Consent order.

    CONSIDERATION

31. The question before the Tribunal is what were the care arrangements for the Children during the Relevant Care Period.

32. It is plain on the evidence that the Father was unable to provide his usual pattern of care of the Children during the Relevant Care Period due to work commitments. During the Relevant Period the Father’s care of the Children did not adhere to the court orders or usual care pattern.

33. The Tribunal is required pursuant to section 54F of the Assessment Act to consider the actual care of the Children during the Relevant Care Period and, if satisfied of a relevant change, revoke the care determination. In the present circumstances as the Relevant Care Period has long passed and is closed by the nature of a later care determination the Tribunal is limited to considering the actual care provided.

34. There is a one day discrepancy between the care calendars and on this occasion the Tribunal accepts the calendar provided by the Father. Based on the care calendars provided by the Father and Mother, the Tribunal is satisfied that a change in care occurred with the relevant care for the Relevant Care Period being 34 percent for the Father and 66 percent for the Mother.

35. Based on the evidence from the Mother and analysis of the care calendars, the Tribunal finds that the date of the change of care necessitating the revocation of the existing determination was 6 April 2018. Pursuant to section 54F(2)(a)(ii) of the Assessment Act, as the change of care was notified to the Respondent within 28 days of the change, the date of effect of the change in care is 5 April 2018, being the day before the day the change commenced.

    DECISION

36. The Tribunal finds that in accordance with section 54F of the Assessment Act the care percentage determination in place on 10 April 2018 should be revoked. Pursuant to section 50 of the Assessment Act, for the period between 6 April 2018 and 28 August 2018 the Father had 34 percent care and the Mother had 66 percent care of the Children.

37. Accordingly, the decision under review is set aside and in substitution it is decided that the percentages of care for the Children are 34 percent for the Father and 66 percent for the Mother with the date of effect being 5 April 2018.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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Associate

Dated: 13 December 2019

Date of hearing:	1 November 2019
Applicant:	By phone
Solicitor for the Respondent:	David McLaren
Solicitors for the Respondent:	Department of Human Services
Other party:	By phone