Carmichael and Farlow (Child support)

[2023] AATA 3392

Carmichael and Farlow (Child support) [2023] AATA 3392 (25 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025807

APPLICANT:  Ms Carmichael

OTHER PARTIES:  Child Support Registrar

Mr Farlow

TRIBUNAL:Member J Thomson

DECISION DATE:  25 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that new care percentage determinations of 18% to Ms Carmichael and 82% to Mr Farlow apply from 26 November 2021 with effect in the assessment for Ms Carmichael from 29 August 2022 and for Mr Farlow from 26 November 2021.

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 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 Carmichael and Mr Farlow are the parents of [Child 1], born in 2007 and recorded as being in the 93% care of Mr Farlow and the 7% care of Ms Carmichael.

2. Ms Carmichael seeks review of an objection decision made by Services Australia (Child Support) on 8 March 2023. This decision affirmed an earlier decision of Child Support dated 28 October 2022 refusing to reflect a change in care notified by Ms Carmichael on 29 August 2022 and deciding to reflect the care of [Child 1] as 93% to Mr Farlow and 7% to Ms Carmichael from 11 November 2021.

3. The Tribunal heard the matter on 27 July 2023. Ms Carmichael attended the hearing via conference telephone and gave affirmed evidence. Mr Farlow elected not to attend the hearing but provided written submissions, admitted into evidence and marked Exhibit B1. The Tribunal had before it documentation provided by Child Support (folios 1 to 380), admitted into evidence and marked Exhibit 1. Ms Carmichael had copies of folios 1 to 358 of Exhibit 1 with her at the hearing and Exhibit B1. Following discussion with the Tribunal regarding the contents of the Child Support documents, in particular folios 359 to 380 of Exhibit 1, Ms Carmichael was content for the hearing to proceed notwithstanding she did not have copies of those documents with her at the hearing.

ISSUES

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that Child Support makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify Child Support and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what happened up until the date of notification and what was likely to happen thereafter?

2. The issues which arise in this case are:

   ·      Has there been a change in the pattern of care for the child in the assessment, [Child 1], which requires the existing percentages of care to be revoked? And, if so,

   ·      From what date should the new percentages of care determinations apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Ms Carmichael at the hearing and the documentation contained in Exhibits 1 and B1 referred to above.

2. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care by reference to an appropriate care period. Child Support generally considers a care period of 12 months to be appropriate, an approach the Tribunal intends to adopt in this case.

3. Ms Carmichael gave evidence of a background of legal proceedings in the Federal Circuit Court of Australia (FCC), and attendant mediation conferences between the parents in 2021 regarding the care of [Child 1], who turned 16 years of age in May 2023.

4. Ms Carmichael gave evidence that those proceedings were concluded in May 2023 when final orders were made by consent, as a consequence of which [Child 1] is now residing with her in her 100% care. No copy of the final orders was before the Tribunal at the hearing, and, as noted above, Mr Farlow did not attend the hearing to challenge Ms Carmichael’ evidence. The submissions he provided on the eve of the hearing (Exhibit B1) did not relate to the care issues in the matter and to that extent were irrelevant to the matters in issue before the Tribunal.

5. On 11 November 2021, Judge [A] made orders in the [FCC], (the November 2021 Court Orders – see pages 105 to 113 of Exhibit 1), suspending earlier orders made in the Federal Magistrates Court on 23 March 2011 and, relevantly, determining that [Child 1] live with Mr Farlow, but spend time with Ms Carmichael for one occasion prior to the end of the 2021 school year in South Australia, from the conclusion of school on Friday to the commencement of school the following Monday. This care arrangement was to take place at the earliest opportunity when the COVID-19 border restrictions then in operation were relaxed to permit travel between South Australia where Ms Carmichael resided and Victoria where Mr Farlow was living.

6. Judge [A] also ordered that Ms Carmichael have a further period of care of [Child 1] during the 2021/22 summer holidays from 2pm on 17 December 2021 until 2pm on 10 January 2022.

7. Ms Carmichael’ case at the hearing related to care she said she had of [Child 1] at various times (identified in the Reasons set out below) over a period of approximately 12 months from 26 November 2021 to 30 October 2022, the period the Tribunal intends considering as the relevant care period in this case.

8. In support of her evidence, Ms Carmichael provided written summaries of the care she contended she had of [Child 1] over this period (see pages 197 to 198, and 246 to 247 of Exhibit 1). During the course of the hearing, she gave evidence correcting typographical errors in the end dates for the care periods she had in August and October 2022, the details of which are also reflected in the Reasons below.

9. For the purposes of its decision, the Tribunal will rely on Ms Carmichael’ care summary at pages 246 to 247 of Exhibit 1, subject to the typographical corrections regarding the end dates for the care periods on 7 August 2022 and 8 October 2022 referred to above, although the number of nights of care is correctly reflected in that summary. 

10. As noted above, Mr Farlow did not attend the hearing and Ms Carmichael’ evidence as to the care of [Child 1] she had over the period 26 November 2021 to 9 October 2022 as reflected in her care summary at pages 246 and 247 of Exhibit 1 was not challenged nor was it contradicted in the documentation Mr Farlow provided in Exhibit B1.

11. It was not disputed by the parents in discussions with Child Support prior to Child Support’s original decision on 28 October 2022 or in the course of the objection process that, in compliance with Judge [A]’s November 2021 Court Orders, Ms Carmichael had care of [Child 1] for three nights on 26, 27 and 28 November 2021.

12. The November 2021 Court Orders also accorded Ms Carmichael a period of care over the 2021/22 Christmas school holidays from 17 December 2021 to 10 January 2022, a period of 24 nights of care which she confirmed in her evidence at the hearing that she had complied with.

13. Ms Carmichael acknowledged and agreed at the hearing that she had no care of [Child 1] for the remainder of the January 2022 school holiday period or indeed throughout February and March 2022, due to [Child 1] testing positive to COVID-19 and attendant travel restrictions preventing her having care.

14. However, Ms Carmichael’s summary at pages 246 and 247 of Exhibit 1 reflects her having the following pattern of care from 14 April 2022:

    ·      Easter school holidays – 14 April to 30 April 2022 – 16 nights

    ·      Weekend care – Friday 6 May to Sunday 8 May 2022 – 2 nights

    ·      July school holidays – Sunday 17 July to Friday 22 July 2022 – 5 nights

    ·      Weekend care – Friday 5 August to Sunday 7 August 2022 – 2 nights

    ·      Weekend care – Friday 26 August to Sunday 28 August 2022 – 2 nights (court ordered care – see page 98 of Exhibit 1)

    ·      October school holidays – Saturday 1 October to Saturday 8 October 2022 – 7 nights (court ordered care – see page 98 of Exhibit 1)

    ·      Weekend care – Friday 28 October to Sunday 30 October 2022 – 2 nights

15. Ms Carmichael gave evidence that she and Mr Farlow had reached agreement for the care periods reflected in the preceding paragraph (see recorded text messages provided by Ms Carmichael at pages 193 to 196 and 199 to 200 of Exhibit 1).

16. The Tribunal is satisfied the evidence provided by Ms Carmichael at the hearing reflects she was having an identifiable pattern of care of [Child 1] over the period 26 November 2021 to 30 October 2022, a period of 338 nights, during which she had 63 nights of care equating to 18% care (63/338 x 100 = 18.63 rounded down pursuant to section 54D of the Act to 18%).

17. The Tribunal therefore determines new care percentages pursuant to section 50 of the Act of 18% to Ms Carmichael and 82% to Mr Farlow from 26 November 2021.

18. Ms Carmichael notified Child Support of the change in care for [Child 1] on 29 August 2022, more than 28 days after the change in care occurred on 26 November 2021, as advised by Ms Carmichael. The Tribunal has found there was a change in the care for [Child 1] on 26 November 2021 and has determined new care percentages of 18% to Ms Carmichael and 82% to Mr Farlow pursuant to section 50 of the Act.

19. Ms Carmichael was unable to provide any evidence to satisfy the Tribunal that special circumstances prevented her from notifying Child Support of the change in care for [Child 1] within 28 days of the change in care occurring on 26 November 2021.

20. Pursuant to section 54F of the Act, the Tribunal will revoke the care percentages of 7% to Ms Carmichael and 93% to Mr Farlow with effect in the assessment for Ms Carmichael (as the responsible person with increased care) from 28 August 2022, that being the day before she notified Child Support of the change in care in accordance with the provisions of subparagraph 54F(3)(b)(i) of the Act, and with effect in the assessment for Mr Farlow (as the responsible person with reduced care) from 25 November 2021, that being the day before the change in care day in accordance with the provisions of subparagraph 54F(3)(b)(ii) of the Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that new care percentage determinations of 18% to Ms Carmichael and 82% to Mr Farlow apply from 26 November 2021 with effect in the assessment for Ms Carmichael from 29 August 2022 and for Mr Farlow from 26 November 2021.