Buckley and Symons (Child support)

[2022] AATA 3521

Buckley and Symons (Child support) [2022] AATA 3521 (2 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023533

APPLICANT:  Mr Buckley

OTHER PARTIES:  Child Support Registrar

Ms Symons

TRIBUNAL:Member M Sutherland

DECISION DATE:  2 August 2022

DECISION:

The decision under review is affirmed.

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 affirmed

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. This review is about a change to the percentage of care determinations for Mr Buckley and Ms Symons for [Child 1] (born [in] October 2007).

2. Prior to the decision under review there was a court order dealing with care and a registered child support assessment in place since 12 December 2014 which reflected Ms Symons as having 78 percent care and Mr Buckley 22 percent care of [Child 1]. Mr Buckley was the parent liable to pay child support under the child support assessment.

3. On 21 September 2021 Ms Symons notified the Child Support Agency (the agency) of a change to the care arrangements stating that she provided 87 percent care and Mr Buckley provided 13 percent care of [Child 1] from 1 April 2020.

4. On 9 December 2021 the agency made the decision refusing to change the care percentage from 1 April 2020.

5. On 4 January 2022 Ms Symons objected to this decision. On 3 March 2022 the agency allowed the objection (the objection decision) which determined that Ms Symons had 355 nights or 98 percent care and Mr Buckley 10 nights or 2 percent care of [Child 1].

6. On 22 March 2022 Mr Buckley applied to the Tribunal for a review of the objection decision. The Tribunal conducted a hearing and Mr Buckley and Ms Symons gave evidence on affirmation by conference telephone. The agency provided the Tribunal and the parties with papers relevant to the matter.

THE LAW

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period, see section 50 of the Act. In other words, the agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

THE ISSUES

1. The issues which arise in this case are:

   ·      Whether there has there been a change in the pattern of care for the [Child 1] which requires the existing percentages of care to be revoked and new care determinations made; and if so,

   ·      from what date the new percentage of care determinations should take effect.

CONSIDERATION

The evidence of the parties

1. Mr Buckley said that according to the Family Court order dated 27 October 2014 he was to have the two children, [Child 1] and their other daughter, two nights per fortnight, every second weekend and half the school holidays. He disagreed with the change of his care requested by Ms Symons from 22 percent to 13 percent from 1 April 2020. It was not his choice to have less care for [Child 1]. Ms Symons did not encourage [Child 1] to come to stay with him and this was the reason his care decreased. There was no real reason why [Child 1] stopped coming to him. She participated in a lot of extracurricular activities, including music and sport. Ms Symons often told him after arrangements had been made for [Child 1] to come to him that due to other activities she would not be coming. He went along with things. He offered to make up any missed time but Ms Symons refused his requests. Ms Symons does not encourage [Child 1] to come to him. He feels that the situation was beyond his control. If  [Child 1] refused to come to him or her mother did not encourage her to come; there was little he could do, he could not kidnap her or force her to come. He was not prepared to attend counselling to try and get care back on track, as he had attended counselling with Ms Symons before with little success. He knows he can apply to the Court to attempt to have the orders adhered to but has no money to do so.

2. He would never have been so accommodating with the care arrangement had he known that Ms Symons would apply for a change of care. He supported the children more than required up to April 2020 when his circumstances changed. Once he could no longer provide this extra support, this was the catalyst for Ms Symons to seek a change in care which would reduce his care below regular care and increase his child support payments. Before April if either of the children did not go to him for a weekend it was never a problem. He has never kept a care calendar and believes it unnecessary as he and Ms Symons are the ones that should sort things out. He has started seeing [Child 1] again. He sees [Child 2] more regularly.

3. Mr Buckley provided SMS messages between him and Ms Symons in support of his position that he had attempted to maintain his care of [Child 1] but often was not able to due to circumstances beyond his control.

4. Ms Symons said she wanted the care of [Child 1] changed on 1 April 2020 in order for it to reflect what was actually happening. [Child 1] had a number of extracurricular activities which she had to attend and Mr Buckley was often reluctant to take her to these or to social outings. There were also circumstances occurring at Mr Buckley’s house that caused [Child 1] to choose to stay with her and not go to stay with him. [Child 1] has autism which required extra support for homework, and Ms Symons was the best one to assist her at home.

5. The Court order determined that care would be 78 percent to Ms Symons and 22 percent to Mr Buckley but his care was never this much. She did not bother to apply to have it changed for a long time in order to keep the peace. She provided a care calendar from January  2021where she recorded the nights [Child 1] spent away from home.

6. Ms Symons provided a statement, see page 153 of the hearing papers. She said that she had a 2020 care calendar but this was not as comprehensive as her 2021 care calendar. She provided the following information in her statement about the care of [Child 1] from January 2020.  She said Mr Buckley may have had some holiday time, other than the alternate weekends, but this was minimal and was not half of the holidays. During February and March 2020 she cannot recollect if [Child 1] went two nights each fortnight. From end of March neither child went for an extended period including the holidays. From mid to late May 2020 Mr Buckley resumed weekend contact but this was mainly with their other daughter [Child 2]. Ms Symons is unsure whether [Child 1] spent a couple of nights away from home during the July school holidays. [Child 1] did have a night away early in the month for Father’s Day, but she was not welcome back by her father after that because she upset him. She knows that Mr Buckley’s care was well under 52 nights (14 percent) that is why she put 13 percent on her original change of care application.

7. When the objection decision was made the care period the agency considered was from 1 April 2020 to 31 March 2021. Ms Symons provided a care calendar from 1 January 2021 to 31 January 2022 setting out care the parties had had, see page 140 of the hearing papers. The calendar shows that from 1 January 2021 to 31 March 2021 Mr Buckley had 10 nights or 2 percent care. Mr Buckley declined to provide information to Centrelink before the objection decision was made.

8. The Tribunal accepts the evidence of Ms Symons that a change of care occurred in April 2020. Ms Symons has provided a more cogent recollection of care of [Child 1] from April 2020. Mr Buckley said in his evidence that he agreed his care for [Child 1] reduced from April 2020 due to no fault of his own, but he also disputed that it had gone below 14 percent. The Tribunal does not accept that Ms Symons refused or discouraged [Child 1] from visiting her father. The other daughter [Child 2] continued to visit Mr Buckley and her care arrangements did not change. Mr Buckley made no formal attempts to resume his care of [Child 1].

9. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established from April 2020 with Mr Buckley providing 2 percent care and Ms Symons 98 percent care.

10. The existing percentages of care in the assessment for [Child 1] were 22 percent care to Mr Buckley and 88 percent care to Ms Symons. The Tribunal is satisfied that in this case section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

11. The Tribunal finds that as section 54F of the Act is met, the previous care determinations should be revoked and replaced with the pattern of care taking place for [Child 1].

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Symons and Mr Buckley under section 50 of the Act.

24.For the reasons outlined above the Tribunal finds that Mr Buckley provides 2 percent care and Ms Symons provides 98 percent care of [Child 1].

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Symons notified the agency of the change in care on 21 September 2021. As this is more than 28 days after the change occurred, according to paragraph 54F of the Act, the existing care determinations are revoked in the case of Mr Buckley from 30 March 2020, the day before care changed, and for Ms Symons on the day before notification, being 20 September 2021.

2. The new determinations is  made effective from 21 September 2021, the date the change of care was notified to the agency.

3. The tribunal informed Mr Buckley that if his  care for [Child 1] has now increased he  can make a new application for a change of care.

DECISION

The decision under review is affirmed.