Allens and Kelly (Child support)

[2018] AATA 3212

Allens and Kelly (Child support) [2018] AATA 3212 (12 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014067; 2018/MC014004

APPLICANT:  Mr Allens

OTHER PARTIES:  Child Support Registrar

Mrs Kelly

TRIBUNAL:Member S Letch

DECISION DATE:  12 July 2018

DECISION:

The decision under review is varied so that care for [Child 1] is to be recorded as 100% to Mrs Kelly from 20 December 2017.

CATCHWORDS

Child support - Percentage of care - Change to the likely pattern of care - Existing care percentage determinations revoked - New care percentage 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

BACKGROUND

1. Mrs Kelly and Mr Allens are the parents of [Child 1], born March 2001. Mr Allens lives in [State 1], and Mrs Kelly in [State 2]. Prior to 20 December 2017, care for [Child 1] was recorded as 86% to Mrs Kelly and 14% to Mr Allens.

2. On 20 December 2017, Mrs Kelly advised the Child Support Agency (“CSA”) of a change in care. She told the CSA that Mr Allens had only 22 nights of care in the previous 12 months, and sought a change in the recorded care to 94% to her and 6% to Mr Allens from the date of her contact. On 4 January 2018, an officer of the CSA agreed and determined that care should be reflected as such.

3. On 4 January 2018, Mr Allens objected to the decision. On 24 April 2018, an objections officer determined care should be recorded as 88% to Mrs Kelly and 12% to Mr Allens.

4. Both Mrs Kelly and Mr Allens promptly applied for review by the Tribunal. The Tribunal conducted a hearing on 11 July 2018; both parties participated by conference telephone, and gave sworn evidence.

CONSIDERATION

1. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

2. If section 54G does not apply, section 54F provides that if the CSA was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(c)(ii)). However, if the CSA is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the CSA was so notified.

3. Mrs Kelly’s case is summarised as follows:

   ·according to her records, which she recorded at the various times [Child 1] stayed with Mr Allens, Mr Allens has had [Child 1] for 22 nights from 9 January 2017 to 1 October 2017

   ·she said there has not really been a “pattern” – the arrangements were flexible and ad hoc, subject to Mr Allens being able to arrange care for [Child 1]

   ·whilst agreeing Mr Allens had arranged for [Child 1] to spend time with Mr Allens’s brother and sister, she does not agree with the 15 nights claimed by Mr Allens – she accepted that half those nights would be fair as “she is the one who is there to look after [Child 1]”

   ·she also arranges for [Child 1] during school term to stay one night a week (Mr Allens’s brother lives close to [Child 1]’s school) – this year, she has arranged Tuesday nights ([Child 1] walks to Mr Allens’s brother’s house after school, and walks to school the next morning)

   ·[Child 1] stayed with Mr Allens’s sister the week of the hearing; Mrs Kelly does not regard those visits as involving a “guardian role”, rather just a “visit”

   ·she is responsible for [Child 1] whilst she stays with Mr Allens’s family; if there was an emergency or other issue, as she is physically close, she would be required to attend to it

   ·if [Child 1] was sick, for example, and unable to attend to school, she said [Child 1] would text her

   ·she does not accept a number of the dates claimed by Mr Allens in his calculations set out at page 90 of the CSA materials

   ·she said “flights mean nothing” as Mr Allens did not have [Child 1] all the nights he stayed in [a city in State 2]; for example, Mr Allens was in [State 2] from 7 April 2017 to 16 April 2017; however, contrary to his claim, he did not have [Child 1] for 7, 8 and 9 April; another example is 11 and 19 June 2017 when [Child 1] was not in Mr Allens’s care

   ·in response to Mr Allens indicating he can no longer afford to see [Child 1], Mrs Kelly disagreed, noting that she wants [Child 1] to be able to see her father.

4. Mr Allens’s case is summarised as follows:

   ·his care should be recorded as at least 14%

   ·including days he claims for [Child 1] staying with his brother and sister, he calculates he had [Child 1] for 61 nights for the period 9 January 2017 to 29 December 2017

   ·the change in the child support assessment means he can longer afford to fly to [State 2], or fly [Child 1] to [State 1] – in 2018, he has had [Child 1] for only five nights

   ·consistent with his flight records, he had [Child 1] for 34 nights for the period 9 January 2017 to 4 October 2017, not the 22 nights asserted by Mrs Kelly

   ·he said that some of the nights in [State 2], he would have dropped [Child 1] to stay with a friend’s overnight – he does not know whether they’ve been taken into account, but was unable to refer to any specific instances

   ·in response to Mrs Kelly’s challenge to the dates claimed, he said he did not have “clear evidence” as he unfortunately had not written his nights down; however, as far as he knows, the dates he has claimed are correct

   ·he generally accepts that the nights directly arranged by Mrs Kelly for [Child 1] to stay with his family should not be credited to him; however, occasions he arranges should be allocated to him – on such occasions, he said that his brother would call him if [Child 1] had felt too sick to attend school

   ·he accepts that if there was an emergency, “of course” Mrs Kelly would be required to attend to it as he is located in [State 1]

   ·he said he had been talking to his brother since January this year about [Child 1] staying once a week during school term

   ·since 20 December 2017, he had [Child 1] for 23, 25, 26, 27 and 28 December 2017, and 1, 2, 3, 4 and 7 April 2018

   ·he has no present plans to see [Child 1] again because of financial reasons.

5. Where there was conflict in respect of recorded dates, the Tribunal generally preferred Mrs Kelly’s records as more reliable. She kept contemporaneous records; Mr Allens’s own evidence was that he had not kept records.

6. The Tribunal must form a view as to the likely pattern of care on 20 December 2017; that may, or may not, be informed by care prior, or after, that date. The determination to be made is a “point in time”.

7. In this particular case, since 20 December 2017, the evidence reveals Mr Allens has had [Child 1] in his overnight care for approximately 9 nights on an ad hoc basis.

8. In the Tribunal’s assessment, how to assess the nights [Child 1] spends in the care of Mr Allens’s family in [State 2] is not clear-cut. The Tribunal agrees with the approach of the CSA to allocate nights during school term to Mrs Allens; Mr Allens broadly accepts that to be appropriate.

9. The Tribunal understood Mr Allens’s submission that nights spent by [Child 1] with his family which had been organised by him should be treated as nights in his care. There are two issues with that proposition. The first is that those occurrences appear ad hoc, and there does not appear to be any discernible “pattern”; the only regular pattern appears to be that organised by Mrs Kelly for Tuesday nights during school term. The second and perhaps more important issue is, given Mrs Kelly’s proximity and capacity to exercise her parental responsibility, whether such nights should properly be regarded as Mrs Kelly consenting to merely delegating her physical care on a temporary basis to Mr Allens’s family.

10. Whilst not without doubt, the Tribunal considers the better view is that nights [Child 1] spends with Mr Allens’s family should be regarded as nights on which Mrs Kelly delegates temporary physical care; [Child 1] should be regarded as remaining in her care for relevant purposes. In substance, the situation is not materially different to Mrs Kelly allowing [Child 1] to stay overnight with friends; it so happens in this case that those delegated with the temporary care happen to be members of Mr Allens’s family. Accordingly, the Tribunal is satisfied that, in the 12 month period prior to 20 December 2017, Mr Allens had less than 14% care.

11. The Tribunal is satisfied that the pattern of care had changed on 20 December 2017. The existing percentage giving Mr Allens 14% care should be revoked, and a new pattern of care determined to take effect from 20 December 2017.

12. The Tribunal considers that, in addition to the reduced level of care in the period prior to 20 December 2017, the actual care since 20 December 2017 is material in determining Mr Allens’s care percentage.

13. The Tribunal understands Mr Allens’s contention that the situation is something of a “catch 22”; he suggests his care has reduced because of the financial impact of recording his care as less than 14%. However, the Tribunal does not consider that material to determining the question of the likely pattern of care based on the number of nights [Child 1] was likely to spend with Mr Allens.

14. The evidence reveals that since December 2017, Mr Allens has had [Child 1] for very few nights; there were no plans for another occasion on which [Child 1] was to be in his care. In those circumstances, the Tribunal does not consider it possible to determine any pattern of care attributable to Mr Allens from 20 December 2017.

15. In the Tribunal’s assessment, the likely pattern as of 20 December 2017 should be recorded as 100% care to Mrs Kelly. As this is a different decision to the objections officer, the decision under review will be varied.

DECISION

The decision under review is varied so that care for [Child 1] is to be recorded as 100% to Mrs Kelly from 20 December 2017.