DIVISION: Social Services & Child Support Division

(This means the application for review has been unsuccessful.)

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 - no interim period applied - decision under review affirmed

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.

1. As relevant to this application, Mr Tuttle and Ms Sharrock are parties to a child support case registered with Services Australia - Child Support (Child Support) from 18 August 2022 in relation to financial support to be provided for [the child]. The application concerns a single decision of Child Support about the percentage of care determinations for each parent for [the child] utilised in calculation of the child support liability.
2. From 18 August 2022, the pre-existing percentage of care determinations applying in the child support case for [the child] were 42% to Mr Tuttle and 58% to Ms Sharrock.
3. On 9 February 2023, Mr Tuttle contacted Child Support advising that there were no written care arrangements and that care of [the child] had changed to 50% to him and 50% to Ms Sharrock from 9 February 2023. Following contact with Ms Sharrock, Child Support declined to change the care percentage determinations for Mr Tuttle and Ms Sharrock in relation to the 9 February 2023 notification by Mr Tuttle.
4. On 23 February 2023, Ms Sharrock contacted Child Support and advised a change to the care position of [the child] from 21 February 2023 stating that she was having 100% care of [the child] and Mr Tuttle was having 0% care of [the child] since 21 February 2023.
5. On 2 March 2023, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Mr Tuttle and 100% to Ms Sharrock from 21 February 2023.
6. On 15 March 2023, Mr Tuttle objected to this decision and, on 24 April 2023, a Child Support objections officer disallowed the objection.
7. On 26 April 2023, Mr Tuttle lodged an application with the Tribunal seeking an independent review of Child Support's decision stating:

On the 17/2/2023 Ms Sharrock (child's mother) signed a personal agreement between her and I to have 50/50 care of our son until mediation. On the 21/2/2023 when she was to drop my son off she did not do so and instead has decided to keep him from me. The matter is ongoing through mediation on the 3/5/2023. And will resume through family law court if an agreement is not reached. I have not agreed to her having my son 100% and until she had taken my son I had always paid more then the required amount of child support even though I cared for my son more then the 60/40 agreement we had on paper.

1. The hearing of the application was held on 6 September 2023. Mr Tuttle and Ms Sharrock both participated in the hearing by conference telephone and gave evidence on affirmation.
2. A representative for the Child Support Registrar does not usually appear at hearings at this level of review before the Tribunal. However, Child Support has provided copies of relevant documents from Child Support's files. In addition to Mr Tuttle's and Ms Sharrock's oral evidence and submissions at hearing, the Tribunal took into account the relevant documents provided by Child Support to the Tribunal and Mr Tuttle and Ms Sharrock prior to hearing: pages 1 to 113 (marked as Exhibit 1).

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.
2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
3. The issues to be determined by the Tribunal based on the relevant legislative provisions are as follows:

(a) Are the pre-existing percentage of care determinations for Mr Tuttle and Ms Sharrock to be revoked? And, if so,

(b) What are the new percentage of care determinations for Mr Tuttle and Ms Sharrock? And,

(c) What are the dates of application of the new percentage of care determinations?

1. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case with the percentages of care applying based upon the extent of the actual care that a parent has, or is likely to have. Generally if care subsequently changes, the pre-existing percentage of care determinations are required to be revoked pursuant to section 54F, 54G or 54H and new percentage of care determinations are required to be made pursuant to section 49 or section 50. However, in certain circumstances pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, for an interim period prior to percentage of care determinations applying based upon the actual care occurring.

Issue 1: Are the pre-existing percentage of care determinations for Mr Tuttle and Ms Sharrock to be revoked?

(a) Prior to 21 February 2023, care was recorded based upon Mr Tuttle having actual overnight care of [the child] corresponding with a percentage of care of 42% and Ms Sharrock having the balance of actual care corresponding with a percentage of care of 58%;

(b) From 21 February 2023, the care position changed with Mr Tuttle having no care of [the child] and Ms Sharrock having 100% care of [the child];

(c) From 11 May 2023 the care changed further with Mr Tuttle having actual care corresponding to a percentage of care of 35% and Ms Sharrock having the balance of actual care corresponding with a percentage of care of 65%. This subsequent change in care was the subject of a subsequent notification to Child Support, with a decision being made by Child Support reflecting these percentages of care from 10 May 2023 (a decision not the subject of this application to the Tribunal).

1. At hearing, Mr Tuttle submitted that he is seeking to have his care recorded as 50% from 21 February 2023 on the basis that he was meant to have 50% care of [the child] at that time pursuant to a written agreement between him and Ms Sharrock signed on 17 February 2023 (Exhibit 1, page 30), however he had no care of [the child] from 21 February 2023 because Ms Sharrock withheld care of [the child] from him.
2. Ms Sharrock's position is that she agrees with Child Support's decision in relation to the percentage of care determinations of 0% for Mr Tuttle and 100% for Ms Sharrock applying from 21 February 2023 based upon the actual care that was then occurring.
3. Pre-existing percentages of care must be revoked pursuant to section 54F if:

(a) the Child Support Registrar is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the existing percentage of care recorded for a person;

(b) a person's cost percentage would change if another percentage of care was determined for the person under section 49 or 50;

(c) section 54G does not apply; and

(d) subsection 54F(2) applies in relation to the person.

1. The Child Support Registrar was notified by Ms Sharrock on 23 February 2023 that the actual care of [the child] since 21 February 2023 had changed to 0% to Mr Tuttle and 100% to her. This did not correspond with the existing percentage of care determinations for each of Mr Tuttle and Ms Sharrock. Paragraph 54F(1)(a) is met.
2. Section 55C contains a table that is used to work out a person's cost percentage:

1. A change to percentage of care determinations for each of Mr Tuttle (from 42% to 0%) and Ms Sharrock (from 58% to 100%) would change the cost percentage for each pursuant to the table in section 55C. Paragraph 54F(1)(b) is met.
2. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care (subsection 5(2) defines regular care as being care between 14% and 35%) pursuant to a pre-existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care despite the other responsible person making care available and the change in care was notified within a reasonable period of time. It is not in dispute that Ms Sharrock was not making care of [the child] avaialable. The Tribunal therefore finds that Ms Sharrock was not making care available and section 54G therefore does not apply. Paragraph 54F(1)(c) is met.
3. Section 51 did not apply as at 21 February 2023. Paragraph 54F(1)(d) is met.
4. As each of paragraphs (a) to (d) of subsection 54F(1) apply, the pre-existing determinations of each of Mr Tuttle's and Ms Sharrock's percentages of care must be revoked and another percentage of care determination under section 49 or 50 must be made for each parent. Pursuant to paragraph 49(1)(b) and subsections 49(2) and (3), a new percentage of care of 0% must be determined for Mr Tuttle unless section 51 applies. Pursuant to paragraph 50(1)(b) and subsections 50(2), (3) and (4), a new percentage of care corresponding with the actual care of [the child] that Ms Sharrock had or was likely to have during the care period must be determined for Ms Sharrock unless section 51 applies.

Issue 2: What are the new percentage of care determinations for Mr Tuttle and Ms Sharrock?

1. As already noted, if care changes, the pre-existing percentage of care determinations are generally required to be revoked and new percentage of care determinations are required to be made pursuant to section 49 or section 50 unless section 51 applies. The Tribunal therefore first considered whether section 51 applies.
2. Essentially, the application of section 51 for child support assessment purposes results in two percentages of care applying for each parent, with the first percentage of care corresponding to the care that would otherwise have applied under a breached care arrangement staying in place during an interim period and the second percentage of care corresponding to the actual care occurring.
3. However, the legislation provides a discretion pursuant to subsection 51(5) to only apply the one percentage of care which is essentially the percentage of care corresponding to the actual care occurring where special circumstances in relation to a child or children are present.
4. There are four requirements in subsection 51(1) that must be met for section 51 to apply. Those requirements are as follows:

(a) A percentage of care determination is required to be determined pursuant to section 49 or section 50 for a care period (paragraph 51(1)(a));

(b) A care arrangement applies in relation to the child (paragraph 51(1)(b));

(c) The actual care that a person has, or is likely to have, for the care period does not comply with the extent of care they should have had, or are to have, under the care arrangement during that period (paragraph 51(1)(c)); and

(d) The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with (paragraph 51(1)(d)).

1. The Tribunal has found that percentage of care determinations are required to be made pursuant to section 49 and section 50. Paragraph 51(1)(a) is therefore satisfied.
2. The Tribunal then considered whether a care arrangement applied in relation to [the child] as at 21 February 2023 as required for paragraph 51(1)(b) to be satisfied.
3. Mr Tuttle's evidence was that there was a signed agreement between him and Ms Sharrock on 17 February 2023 in relation to [the child]'s care. He said that the police told him not to hand [the child] over to Ms Sharrock unless he had a signed agreement in relation to care of [the child]. He therefore prepared a written agreement and gave it to Ms Sharrock. Ms Sharrock said it was fine and signed it. She then took [the child] and didn't return [the child] for three months after that.
4. Ms Sharrock's evidence was that on 17 February 2023, Mr Tuttle was meant to return [the child] to her care at 5.30pm. It was the day after they had had a disagreement. The police were involved. The police told her that [the child] would be dropped off at 5.30pm and that she should sit down in her own time and work out a proposed care arrangement and then come together with Mr Tuttle and work out a plan for the care until they participated in a mediation. She took a friend when she went to pick [the child] up but Mr Tuttle insisted upon her signing the agreement he had prepared. She said she told Mr Tuttle that the police had told her to work out her own agreement and talk to him about it at a later time but Mr Tuttle said he would walk out with [the child] unless she signed his document. She therefore signed the document and took [the child] and then immediately contacted her solicitor. [The child] then remained in her 100% care until the mediation in May 2023.
5. Mr Tuttle said that Ms Sharrock's evidence is essentially correct except that he was told by the police that he had to have a plan ready then and there, on 17 February 2023, and he expects that Ms Sharrock would have been told the same thing. When Ms Sharrock said she did not bring her agreement, he said they could use his agreement then and she did talk to him about it and then signed it. He did not once say he would walk out with [the child] if Ms Sharrock did not sign his agreement, however he did have [the child] in his arms the whole time until Ms Sharrock signed the agreement.
6. A 'care arrangement' as referred to in section 51 is defined to have the same meaning as in the A New Tax System (Family Assistance) Act 1999; that is:

care arrangement in relation to a child means:

(a) a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

(c) any of the following orders relating to the child:

(i) a family violence order within the meaning of section 4 of the Family Law Act 1975;

(ii) a parenting order within the meaning of section 64B of that Act;

(iii) a State child order registered in accordance with section 70D of that Act;

(iv) an overseas child order registered in accordance with section 70G of that Act.

A written agreement is an agreement in writing and signed by both parents or the parent/s and a non-parent carer regarding how a child will be cared for.

A parenting plan is a type of written agreement signed and dated by both parents. It is made under section 63C of the FL Act [Family Law Act 1975] between separated parents regarding how their child or children will be cared for and supported (which may include the parents agreeing to care being provided by a non-parent carer). An agreement is not a parenting plan for the purposes of the FL Act unless it is made free from any threat, duress or coercion (FL Act section 63C(1A)). If a non-parent carer is a party to a written agreement, it is not a parenting plan for child support purposes.

1. As already noted, the Tribunal is not bound to apply the guidance set out in the Guide. However, unless it is inconsistent with the provisions of the legislation, it is a relevant factor to be taken into account by the Tribunal. The Tribunal considers the above extract from the Guide consistent with the legislation including section 63C of the Family Law Act 1975, which recognises the common law position that a contract or agreement entered into under duress, which a person would not otherwise have agreed to, generally renders a contract or agreement void.
2. On its face the 17 February 2023 agreement is a written agreement between Mr Tuttle and Ms Sharrock that relates to the care of [the child]. However, Ms Sharrock contends that she only signed the agreement because Mr Tuttle otherwise was threatening to 'walk out with [the child]'. Mr Tuttle disputes that he said those actual words but agrees that he had [the child] in his arms until Ms Sharrock signed the agreement. The Tribunal is satisfied based on the evidence that Ms Sharrock only signed the agreement because she was under duress to do so, on threat of otherwise not having [the child] returned to her care. The Tribunal is not satisfied in those circumstances that there was a valid written agreement and therefore concludes that the requirement in paragraph 51(1)(b) is not met as required.
3. One of the essential requirements (paragraph 51(1)(b)) is not met, therefore section 51 does not apply. It is therefore not necessary for the Tribunal to conclude whether the other requirements (paragraphs 51(1)(c) and (d)) for section 51 to apply are met. Therefore, pursuant to paragraph 49(1)(b) and subsections 49(2) and (3), a new percentage of care of 0% must be determined for Mr Tuttle and pursuant to paragraph 50(1)(b) and subsections 50(2), (3) and (4), a new percentage of care corresponding with the actual care of [the child] that Ms Sharrock had or was likely to have during the care period must be determined for Ms Sharrock.
4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. However, having regard to all of the circumstances in relation to this matter as now known, the Tribunal considers the appropriate care period is the period from when care changed from the pre-existing care, 21 February 2023, until the day before care changed again, 9 May 2023. The undisputed evidence is that during that period the actual care Ms Sharrock had of [the child] was care corresponding to a percentage of care of 100%.
5. The Tribunal therefore determines a percentage of care of 0% for Mr Tuttle and a percentage of care of 100% for Ms Sharrock.

Issue 3: What are the dates of application of the new percentage of care determinations?

1. Pursuant to paragraph 54F(3)(a), as the change in care was notified by Ms Sharrock on 23 February 2023, within 28 days after the Tribunal has found the change occurred on 21 February 2023, revocation of both the pre-existing percentage of care determination of 42% for Mr Tuttle and the pre-existing percentage of care determination of 58% for Ms Sharrock takes effect the day before the change of care day, that is on 20 February 2023.
2. Pursuant to section 54B, new percentage of care determinations apply from the application day, that is the day immediately after revocation of the previous percentage of care determinations. Therefore new percentage of care determinations of 0% to Mr Tuttle and 100% to Ms Sharrock apply from 21 February 2023.

1. As the Tribunal has reached the same decision as Child Support, albeit for different reasons, it follows that the decision under review is affirmed.

(This means the application for review has been unsuccessful.)