Burton and Burton (Child support)

[2019] AATA 561

Burton and Burton (Child support) [2019] AATA 561 (14 February 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015005

APPLICANT:  Ms Burton

OTHER PARTIES:  Child Support Registrar

Mr Burton

TRIBUNAL:Member F Hewson

DECISION DATE:  14 February 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision that from 20 June 2018 Ms Burton’s percentage of care of the children was 100% and Mr Burton’s percentage of care was 0%. The date of effect of the decision is 20 June 2018.

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 set aside and substituted

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. Ms Burton and Mr Burton are the parents of [Child 1] aged 18 and [Child 2] aged 16 (the children), in respect of whom there is a child support assessment. This application is about the percentages of care for the children used in the child support assessment.

2. From 27 November 2015, the Department of Human Services – Child Support (the Department) recorded that Ms Burton had a percentage of care of the children of 78% and Mr Burton had a percentage of care of 22% (the existing care).

3. On 20 June 2018, Ms Burton advised the Department of a change in the care of the children, so that from 15 April 2018 she had a percentage of care of [Child 1] of 100% and from 4 May 2018 she had a percentage of care of [Child 2] of 93%. Mr Burton disputed that the care had changed.

4. On 25 July 2018, the Department refused to change the percentages of care for the children used in the child support assessment.

5. On 27 July 2018, Ms Burton lodged an objection to the care decision of 25 July 2018. The objection was considered by an objections officer who decided, on 5 September 2018, to disallow the objection.

6. On 10 September 2018, Ms Burton lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 14 February 2019. Ms Burton spoke to the tribunal by conference telephone. Mr Burton did not participate in the hearing. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Burton, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1989 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.Section 54A of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(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.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the children used in the child support assessment for the relevant period; and if so

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?  

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. As set out above, the Department was notified on 20 June 2018 of a change in the care of the children, from 15 April 2018 in relation to [Child 1] and from 4 May 2018 in relation to [Child 2].

3. As noted above, Mr Burton disputed that there had been a change in the care of the children. On 4 July 2018, he submitted a calendar setting out his care of the children as well as statements from third parties in support of his care.  At the hearing Ms Burton said the information submitted by Mr Burton is false. She submitted copies of text messages which she said are between her and Mr Burton about the care of the children. She said they show that on dates Mr Burton stated the children were in his care, they chose not to spend time with their father. Ms Burton said they have reached an age, 16 and 18, where she cannot force them to spend time with their father. Ms Burton said there had been a regular pattern to the care of both children until Easter 2018. Although he was not having overnight care of the children, Mr Burton was still attending [Child 2]’s soccer matches. Ms Burton said on the weekend of 25 May 2018, when Mr Burton says the children were in his care, [Child 2] went home with her after soccer and Mr Burton dropped [Child 1] at a car show.  Neither [Child 2] nor [Child 1] stayed overnight with Mr Burton on that weekend. Ms Burton said [Child 1] and Mr Burton had an altercation on 29 July 2018. They have not spoken since that date. Mr Burton has not attended [Child 2]’s soccer matches since August 2018.

4. The documents provided by the Department include a copy of a 2018 calendar on which Mr Burton has circled the “days in my care”. The calendar for the whole of 2018 was submitted by fax on 4 July 2018 and shows the care Mr Burton states he has had, as well as the care he indicates he expected to have.  In a statement dated 2 July 2018, Mr Burton stated that there had been no change in the care of the children, which he said was in accordance with the court orders. He stated that Ms Burton has made false allegations. A third party statement from his partner, and another from a friend/family, also attested to the children being in Mr Burton’s care on a fortnightly basis and during school holidays (in accordance with the court orders). The copies of text messages submitted by Ms Burton, however, contradict Mr Burton’s calendar evidence in relation to his care on the weekends commencing 26 April 2018, 11 May 2018, 25 May 2018 and 22 June 2018.

5. The tribunal considered the available evidence. Unfortunately it did not have the opportunity to discuss the evidence with Mr Burton. It found Ms Burton’s evidence to be credible. It accepted, taking into account the copies of text messages submitted by Ms Burton, that the calendar evidence submitted by Mr Burton was not reliable. It may accurately reflect the care Mr Burton considered he should have of the children under the court orders, and that he expected to have in the future, but the tribunal was persuaded that it did not reflect his actual care from April/May 2018 in relation to [Child 1] and [Child 2] respectively.

6. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54G is relevant in this case. It provides that the Registrar must revoke a determination of a responsible person’s percentage of care (made under section 50) if the Registrar is notified that the care of the child that is actually taking place is less than regular care; and, the other responsible person’s percentage of care has been determined under section 50; and the other responsible person notified the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.

7. In this case, the tribunal found that there were existing percentage of care determinations made under section 50 in relation to the children, and that the Registrar was notified within a reasonable period that Mr Burton’s care of the children was less than regular care; in relation to [Child 1] from 15 April 2018 and in relation to [Child 2] from 4 May 2018.

8. The tribunal accepted that at the date of notification Mr Burton had not had any overnight care of [Child 1] since April 2018 and his likely percentage of care from 20 June 2018 was 0%. In relation to [Child 2] it remained likely at that time that Mr Burton would have some ongoing care, which Ms Burton indicated would amount to a percentage of care of 7%. It was her evidence at the hearing, however, that in the period from 20 June 2018 to 25 July 2018, the date of the original decision, Mr Burton had no care of [Child 2]. In the circumstances, taking into account all of the evidence available to the date of the original decision, the tribunal was persuaded that Mr Burton’s percentage of care in the care period from 20 June 2018 to 19 June 2019 was likely to be 0%.

9. The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for the children under section 54G of the Act. Subsection 54G(2) of the Act sets out when the revocation of the determination takes effect. The date of effect depends, so far as is relevant in this case, on when the pattern of care in the existing care determinations ceased to be the pattern of care. Although the tribunal accepted that Mr Burton did not have any overnight care of [Child 1] and [Child 2] from 15 April 2018 and 4 May 2018 respectively, the tribunal was not persuaded that the change to the established pattern of care had crystallised until about the time of the notification of the change in the care on 20 June 2018. By that time the change in the care was more than missed care events, which would not ordinarily change the underlying pattern of care, and a new pattern of care had been established. The tribunal found that revocation of the existing determinations takes effect on 19 June 2018, being the day before the notification of the change in care.

10. As the existing determinations have been revoked, new determinations of Ms Burton’s and Mr Burton’s care, under sections 49 and 50 of the Act must be made. To make new determinations, the actual care of the children that was likely to occur during the care period must be considered, as discussed above. Under section 50 of the Act, the tribunal determined that Ms Burton’s percentage of care of the children was likely to be 100% from 20 June 2018 and Mr Burton’s percentage of care was likely to be 0%.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision that from 20 June 2018 Ms Burton’s percentage of care of the children was 100% and Mr Burton’s percentage of care was 0%. The date of effect of the decision is 20 June 2018.