Burbidge and Marnham (Child support)

[2021] AATA 996

Burbidge and Marnham (Child support) [2021] AATA 996 (17 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020212

APPLICANT:  Ms Burbidge

OTHER PARTIES:  Child Support Registrar

Mr Marnham

TRIBUNAL:Member K Dordevic

DECISION DATE:  17 February 2021

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 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.

REASONS FOR DECISION

BACKGROUND

1. Ms Burbidge and Mr Marnham are the parents of two children. This application concerns the children’s care arrangements from 29 May 2020. 

2. A child support assessment was registered with Department of Human Services (now Services Australia (the Agency) – Child Support from 5 September 2014.

3. From 7 February 2020 a 14-week interim care decision was made, whereby it was accepted that the mother had 100% care of the children, but the existing care of 72% to the mother and 28% care to the father applied to the assessment until 14 May 2020. From 15 May 2020 the care applied to the administrative assessment reflected that the mother had 100% care and the father 0% care.

4. On 1 June 2020 the father notified that there was a change to the children’s care arrangement from 29 May 2020 whereby he would have 28% and the mother 72% care. On 17 June 2020 the care application was accepted.

5. On 26 August 2020 the mother objected to the decision, stating that the father has only had sporadic care of the children. The objection was disallowed on 5 November 2020.

6. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 10 November 2020.

7. The matter was heard on 17 February 2021. The mother and father appeared by conference telephone. The Child Support Registrar elected not to attend the hearing. In reaching its decision the tribunal considered the sworn evidence of the mother and father as well as the documentation provided by Child Support (folios 1 to 132), by the mother (A1 to A2) and the father (B1 to B2).

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration & Collection) Act 1988 (the Registration Act).

2. The tribunal must determine the parents’ respective care percentages at the time the mother registered the case with Child Support.

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

2. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same: What was the pattern of care up until the date of notification? And, what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Agency and a new care determination can be made.

3. The tribunal finds that the Family Court of Australia ordered [in] December 2017 that the children are to reside with the mother and the father shall care for them two nights every fortnight during school term and half of all school holidays, in addition to other special days not relevant to this review.

4. The tribunal is satisfied, based on the parties’ consistent testimony at hearing, that there was a change to the children’s care arrangements on 29 May 2020. On this date the father resumed contact with the children by having weekend care (Friday and Saturday nights), consistent with the parenting orders. This fortnightly care occurred again on the weekends 12 to 13 June and 26 to 27 June 2020.

5. The parties’ dispute appears to be only regarding the nights of care the father had with the older child during the school holidays. The parents explained that the children attend a private school, so their winter school holidays are generally longer than the NSW gazetted school holidays (being 3 to 19 July 2020). The children’s school holidays were from 3 to 22 July 2020 (20 days). When the father went to collect the children from school at the conclusion of term, he found that only the older child had attended. He contacted the mother regarding the younger child, who asked him to collect the child from her home. He refused, stating that the orders dictated that he would collect them from school and the mother should take the child to the school. She refused. Neither shifted their position and so the father only had care of the older child during the school holiday period.

6. The father amended his statement made to Child Support and agreed that the care of the older child commenced on 3 and not 2 July 2020.  However, he reiterated that he returned the older child to the mother’s care on 15 July 2020. The mother contended that the child was returned on 9 July 2020. It is likely, given that the parents agree that they each have equal nights of care during school holidays, that the father returned the child after 10 nights of care, being around 13 July 2020.  As will be outlined below, it is not necessary for a tribunal to make a finding regarding the father’s care of the older child. The parents agree that the children returned to school on 23 July 2020 and the father did not resume his fortnightly contact with the children until 21 to 22 August 2020. This was his last overnight contact with the children up until the date of hearing. However, he has commenced having four hours of contact alternate Sundays from 2 February 2021.

7. The tribunal finds that the father commenced care of the children, consistent with parenting orders dated [in] December 2017, on 29 May 2020. Prior to 29 May 2020 the mother had sole care of the children. Thus, the tribunal finds that there was a change to the children’s care arrangements. Section 54F of the Act states that a new determination can be made and existing determination revoked if there is a change to a parent’s level of care that would change their care percentage and their cost percentage. The tribunal has determined that the mother no longer has 100% care from 29 May 2020. From that date the care record must be amended to reflect that the father has had 28% care and the mother 72% care of the children. Therefore, section 54F of the Act is satisfied.

8. The tribunal next considered the date of effect of the care change. Paragraph 54F(3)(a) of the Act states, in situations where the change was notified within 28 days of the care change (as is the case in this matter) the date of revocation is the day before the change of care day. Thus, the tribunal revokes the mother’s care percentage of 100% and the father’s care percentage of 0% on 28 May 2020 and replaces it with new care percentages of 72% to the mother and 28% to the father from 29 May 2020. This means that the decision under review is correct.

9. For completeness, the tribunal notes the following. As stated above, there is a temporal element when considering care applications. The parties do not dispute that following the care change on 29 May 2020 subsequent care changes occurred. The mother notified of the first care change on 26 August 2020 (at folio 68). Child Support advised her that she must object to the care decision under review. On one view, her contact may be characterised as notification of a new care change and not an objection to the recent care decision. The father notified of a care change on 29 September 2020 and the mother on 14 October 2020. The parties were advised at hearing that the 26 August 2020 contact or the subsequent notifications are not care applications before the tribunal.

DECISION

The decision under review is affirmed.