Copestake and Child Support Registrar (Child support)

[2021] AATA 1268

Copestake and Child Support Registrar (Child support) [2021] AATA 1268 (9 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020408

APPLICANT:  Ms Copestake

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  09 March 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. This review is about a change to the percentage of care determinations for Ms Copestake and [Mr A] in respect of their child [Child A] (born September 2013).  The child support assessment commenced on 12 December 2013 and [Mr A] is currently the liable parent under the assessment.

2. From 1 June 2015 the child support assessment reflected Ms Copestake as having 86 per cent care and [Mr A] as having 14 per cent care of [Child A].

3. On 25 October 2018 [Mr A] notified the Child Support Agency of a change to the care arrangements stating that he provides 100 per cent care and Ms Copestake provides 0 per cent care of [Child A] from 15 September 2018.

4. On 31 October 2018 the Child Support Agency made the decision to reflect that [Mr A] provides 100 per cent care of [Child A] and Ms Copestake provides 0 per cent care from 15 September 2018 but with effect from 25 October 2018 for [Mr A] and from 15 September 2018 for Ms Copestake.

5. The Tribunal notes that a subsequent care decision was made that Ms Copestake provides 50 per cent care and [Mr A] provides 50 per cent care of [Child A] from 5 November 2018.

6. On 11 June 2020 Ms Copestake objected to the decision made on 31 October 2018 and on 3 December 2020 the Child Support Agency disallowed the objection (the objection decision).

7. On 8 December 2020 Ms Copestake applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 9 March 2021.  Ms Copestake gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Mr A] on 11 December 2020 and on 5 January 2021, inviting him to be added as a party to the application but he did not respond.  [Mr A] did not participate in the hearing.  The Child Support Agency provided the Tribunal and Ms Copestake with papers relevant to the matter (159 pages).

ISSUES

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

2. The Child Support 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 Child Support 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 (section 50 of the Act).  In other words, the Child Support 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.  The task of the Tribunal on review is the same.

4. The Child Support 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.

5. The issues which arise in this case are:

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

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

CONSIDERATION

1. Ms Copestake told the Tribunal the care arrangement between the parents prior to the change notified by [Mr A] was that he would have care for two nights every second weekend and half the school holidays.  Ms Copestake said at that time she was living in [Town 1] and [Mr A] was living about a four-hour drive away in [Town 2].

2. Ms Copestake explained that due to the physical distance between the parents there were occasions when they could not meet for handover on the weekend and [Mr A] would then have make up time with [Child A].  Ms Copestake said [Mr A] had 100 per cent care of [Child A] from 15 September 2018 but only to make up for the care he had previously missed.

3. Ms Copestake said that [Mr A] then had his ordinary holiday care of [Child A] for a week from 22 September 2018, however, due to personal issues she was dealing with and her need to find new accommodation she asked [Mr A] to continue caring for [Child A].  Ms Copestake said [Mr A] then had 100 per cent care of [Child A] for the second week of the term 3 school holidays from 29 September 2018 and this suited her due to her circumstances.

4. Ms Copestake told the Tribunal that after the second week of the school holidays she was in the process of moving from [Town 1] to [Town 2] and [Child A] continued to stay overnight with [Mr A] as she still did not have suitable accommodation.  Ms Copestake said that she was staying with friends in [Town 2] by this stage and [Child A] would spend the days with her.  She said they would spend time together at the park or the shopping centre and then [Child A] would return to stay with [Mr A].  She said in her view this should be considered as 50-50 shared care.  Ms Copestake said this arrangement continued until she moved into her own accommodation on 11 October 2018 and [Child A] started staying with her again from 18 October 2018.  Ms Copestake said it was from 18 October 2018 that the parents commenced actual shared care.

5. Ms Copestake reiterated that care changed temporarily only because of the considerable personal trauma she was going through at the time.  Ms Copestake said she had asked [Mr A] to assist her in the belief it was best for [Child A] until she found a suitable place in [Town 2] for the two of them to live.

6. At hearing the Tribunal pointed out to Ms Copestake that, according to evidence from the Child Support Agency, during a conversation with a child support officer on 21 November 2018 she had agreed that care had changed to shared care from 5 November 2018.  Ms Copestake told the Tribunal this was not the case and stressed that shared care had started from 18 October 2018.

7. Ms Copestake has told the Tribunal that [Mr A] did have 100 per cent care of [Child A] from 15 September 2018, however, this was only to compensate for previous care he had missed during term.  Ms Copestake has also argued that [Mr A] then had his usual week of holiday care in accordance with the arrangement between the parents before having an additional week of holiday care in the second week of the term 3 school holidays.  Ms Copestake has explained that [Mr A] continued to have overnight care of [Child A] from the commencement of term 4 but that she cared for [Child A] during the day.  Ms Copestake has stated this arrangement ended from 18 October 2018 after she had settled into her own accommodation and shared care with [Mr A] then commenced.

8. The Tribunal notes that care of [Child A] was previously recorded in the child support system as 86 per cent care to Ms Copestake and 14 per cent care to [Mr A] from 1 June 2015.  This means that [Mr A] had care of 52 nights a year from 1 June 2015 until he notified the Child Support Agency of the change in care that he stated took place on 15 September 2018.  If, as Ms Copestake has submitted, [Mr A] had care of [Child A] for two nights a fortnight and half the school holidays his care would have been significantly higher than 52 nights a year.

9. The Tribunal notes in evidence from the Child Support Agency that during a conversation with a child support officer on 31 October 2018 Ms Copestake is recorded as confirming that [Child A] had not been in her care from 15 September 2018 and would be returning to her care that night.  In a further conversation with a child support officer on 5 November 2018 Ms Copestake is again recorded as stating that [Child A] returned to her care on 31 October 2018.  The Tribunal also notes, however, that in written evidence to the Child Support Agency dated 11 June 2020 Ms Copestake states that [Child A] continued to stay overnight with her father from 19 October 2018 until 27 October 2018.  Ms Copestake also states that shared care commenced on 28 October 2018.

10. There are a number of inconsistencies between the evidence provided by Ms Copestake to the Tribunal and the evidence Ms Copestake has provided to the Child Support Agency.  In such circumstances the Tribunal cannot be certain the events surrounding the change of care for [Child A] as described by Ms Copestake are accurate.

11. Ms Copestake has also argued that [Mr A] effectively ceased having 100 per cent care of [Child A] from the commencement of term 4 in 2018 because she was caring for [Child A] during the day while [Mr A] was having overnight care.  Section 54A of the Act sets out that care of a child is worked out based on the number of nights the child is likely to be in the care of the person during the care period.  While the number of nights a person cares for a child is the preferred method of measuring a parent’s percentage of care, there are occasions when care can be measured other than in nights.  The Tribunal is not persuaded that, in the circumstances of this case, care should be calculated other than using nights of care.

12. Based on the available information the Tribunal is satisfied that a change in the pattern of care occurred on 15 September 2018 with [Mr A] having 100 per cent care from this date.

13. As previously noted, the existing percentages of care reflected in the assessment for [Child A] were 86 per cent care to Ms Copestake and 14 per cent care to [Mr A].  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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.

14. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Copestake and [Mr A] under sections 49 and 50 of the Act.

2. The Tribunal finds that Ms Copestake provides 0 per cent care and [Mr A] provides 100 per cent care of [Child A] from 15 September 2018.

Date of effect of new care percentage determinations

1. The Tribunal finds that [Mr A] notified the Child Support Agency of the change of care on 25 October 2018.  As this is more than 28 days after the change occurred on 15 September 2018, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 15 September 2018 for Ms Copestake and from 25 October 2018 for [Mr A].

DECISION

The decision under review is affirmed.