Devenport and Attlesea (Child support)

[2023] AATA 197

Devenport and Attlesea (Child support) [2023] AATA 197 (12 January 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024512

APPLICANT:  Mr Devenport

OTHER PARTIES:  Child Support Registrar

Ms Attlesea

TRIBUNAL:Member H Moreland

DECISION DATE:  12 January 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides:

a)that from 8 June 2020, Ms Attlesea had 61%; and Mr Devenport had 39% of [the child’s] care; and

b)not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision is 24 August 2022 (when Mr Devenport lodged his application for review).

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – tribunal declines to make a determination under subsection 95N(2) - 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. Mr Devenport and Ms Attlesea are the parents of [the child].

2. On 4 August 2020, Services Australia – Child Support (the Agency) determined that Mr Devenport had 57% of care and Ms Attlesea had 43% of the care of [the child] from 18 June 2020, effective from 9 July 2020 (the date that Ms Attlesea lodged an application for child support).

3. On 6 August 2020, Ms Attlesea objected to this decision and on 16 March 2021, the Agency decided to partly allow Ms Attlesea’s objection, resulting in the Agency deciding that Mr Devenport had 28% of care and Ms Attlesea had 72% of the care of [the child] from 9 July 2020.

4. On 24 August 2022, Mr Devenport lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 22 December 2022. Mr Devenport and Ms Attlesea both spoke to the Tribunal via conference telephone. Mr Devenport gave sworn evidence and Ms Attlesea gave evidence on affirmation. In making its decision, the Tribunal took into consideration the documents provided by the Agency (292 pages), which were also sent to Mr Devenport and Ms Attlesea; and additional documentary evidence provided by Mr Devenport which was also exchanged between the parties. The Tribunal asked Mr Devenport to provide additional evidence and deferred its decision to allow time for Mr Devenport to provide the additional information. This was also provided to Ms Attlesea.

5. The Tribunal notes that it also took evidence at the hearing regarding the care of [the child] from 7 August 2020 which is the subject of another review by the Tribunal (2022/MC024511).

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. According to section 50 of the Act:

   Determination of percentage of care--responsible person has had etc. a pattern of care for a child

   (1)  This section applies if:

   (a)  either of the following applies:

   (i)  an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
   (ii)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

   and the Registrar is satisfied that a responsible person for the child 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; or

(b)  both of the following apply:

(i)  the determination of a responsible person's percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);

(ii)  the Registrar is satisfied that the responsible person 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.

(2)  The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)  The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

(4)  Subsection (3) does not apply if section 51 applies in relation to the responsible person.

1. In this case, the original decision was made under section 50 of the Act that Mr Devenport had 57% of care and Ms Attlesea had 43% of the care of [the child] from 18 June 2020, effective from 9 July 2020 (the date that Ms Attlesea lodged an application for child support); and the objections officer then re-made the decision under section 50 that Mr Devenport had 28% of care and Ms Attlesea had 72% of the care of [the child] from 9 July 2020.

What was the care of [the child] from 18 June 2020?

Mr Devenports submissions and supporting evidence

1. Mr Devenport told the Tribunal that he and Ms Attlesea separated in June 2020. He said that from that date he had care of [the child] for 3 nights every week (Friday, Saturday and Sunday nights), as well as half of every school holiday period.

10.As shown in the Agency papers, on 24 July 2020, when he was initially asked by the Agency about the care percentage, Mr Devenport stated that he had 50% care of [the child].[1] According to the Agency papers, Mr Devenport again advised them on 27 July 2020 that he had been having 50% care of [the child].[2] On 27 July 2020, Mr Devenport also advised the Agency, according to the Agency’s records, that he had care of [the child] for 3 nights per week during school terms and would have care of [the child] for all of the school holidays.[3]

[1] The Agency papers, p 29.

[2] The Agency papers, p 37.

[3] The Agency papers, p 39.

11.Mr Devenport was advised by the Agency that as [the child’s] care was being contested, he might want to submit evidence to support his contention that he had care of [the child] for 3 nights per week.[4]

[4] The Agency papers, p 45.

12.On 30 July 2020, Mr Devenport provided a calendar purporting to show the care he had for [the child] for the month of July 2020. The Tribunal found this illegible as it only showed Monday to Saturday and excluded the Sunday column, so the Tribunal asked Mr Devenport to provide a copy showing the full calendar after the hearing. On this calendar, Mr Devenport had written “I don’t have June 2020. Lost it”. The Tribunal notes that this resupplied copy of the calendar again had the Sunday column excluded.

13.According to the July 2020 page, Mr Devenport had care of [the child] on 8, 9, 10, 11, 17, 18, 24, 25, 27 and 31 July 2020 (32%, not considering any care Mr Devenport may have had on Sunday nights). The Tribunal observes that it is Sunday nights that are most in contention in this case.

14.The calendar supplied by Mr Devenport for August 2020 is included in the Agency papers.[5] According to this calendar, Mr Devenport had care of [the child] on the following dates: 1, 2, 7, 8, 9, 14, 15, 16, 21, 22, 23, 28, 29 and 30 August 2020 (45% care).

[5] The Agency papers, p 82.

15.The Agency papers include the following third party statements in support of Mr Devenport’s submissions about his care of [the child]:

·A letter from [Ms A] (Mr Devenport’s mother), dated 21 July 2020, which stated that she attested that [the child] had stayed at her home on the following dates (inclusive): 8–12 July, 17–18 July, 24–26 July and that there was “an informal agreement in place for the beginning July 31^st for the child to stay here 3 nights per week FRI-SAT-SUN and week nights over the school holidays”.[6]

[6] The Agency papers, p 50.

·A letter from [Mr B], dated 31 July stating that he had seen Mr Devenport collecting and dropping off [the child] on the following dates: 8 to 12 July, 17 and 18 July and 24, 27 and 31 July.[7]

[7] The Agency papers, p 51.

·A second letter from [Mr B], dated 5 October 2020, attesting to the dates set out in Mr Devenport’s care calendars from 1 August to 4 October.[8]

[8] The Agency papers, p 80.

·A second letter from [Ms A], dated 6 October 2020, attesting to the dates set out in Mr Devenport’s care calendars from 1 August to 4 October; and again stating tht there was “an informal agreement in place for the beginning July 31^st for the child to stay here 3 nights per week FRI-SAT-SUN and week nights over the school holidays” from 25 September to 4 October.[9]

[9] The Agency papers, p 84.

·A letter from [Mr B], dated 16 April 2021, attesting to Mr Devenport’s care calendar from 1 November 2020 to 16 April 2021.[10]

[10] The Agency papers, p 141.

16.The Tribunal notes that Ms Attlesea provided an account of a conversation she said she had with [Mr B] in which he said he wrote the first but not the subsequent letters to the Agency.[11] The Tribunal asked Mr Devenport about this at the hearing and he said he was not sure what had happened and was no longer in contact with [Mr B].

[11] The Agency papers, p 148.

Ms Attlesea’s submissions and supporting evidence

17.Ms Attlesea also told the Tribunal that she and Mr Devenport separated in June 2020. According to Ms Attlesea however, she had care of [the child] for 5 nights per week and Mr Devenport had care of [the child] for 2 nights per week (Friday and Saturday nights), as well as half of every school holiday period.

18.In her application for child support, Ms Attlesea stated that she would have a care percentage of 80% and Mr Devenport would have a care percentage of 20%.[12]

[12] The Agency papers, p 25.

19.In an application to Centrelink, dated 15 July 2020, Ms Attlesea again stated that she would have a care percentage of 80% and Mr Devenport would have a care percentage of 20% and she also wrote:

[The child] will be with me from Sunday to Thursday nights and with his dad weekends also for school holidays [the child] will be shared.

…

I believe [Mr Devenport] will not be in agreement to this even though it is true.[13]

20.According to the Agency’s papers, on 28 July 2020, Ms Attlesea told the Agency that Mr Devenport had care of [the child] for 2 nights per week and would have him for alternate weeks of the school holidays, rather than all of the school holidays.

21.The Agency papers include the following third party statements in support of Ms Attlesea’s submissions about her care of [the child]:

·A letter from [Ms C], dated 11 August 2020, stating that she has known Ms Attlesea for nearly a decade and that since Ms Attlesea and Mr Devenport separated, “several weeks ago”, Ms Attlesea had had care of [the child] from Monday through to Friday and Mr Devenport picked up [the child] on Friday afternoons and returned him on Sunday afternoons.[14]

·A letter from [Ms D], dated 31 March 2021, stating that, to the best of her knowledge, since June 2020, [the child] had been in the care of Ms Attlesea “from 2pm on a Sunday until 5pm on Fridays as appointed by mediation proceedings”.[15]

·A letter from [Ms E], dated 3 April 2021, stating “From what I know, [the child] is in Ms Attlesea’s care from 2pm Sunday until 5pm the following Friday. School holiday arrangements has been split 50/50 as far as I know”.[16]

·A letter from [Ms F], dated 23 April 2021, stating that her step-children attend school with [the child] and stating that it is her “belief that [the child] resides with his Mum Ms Attlesea from Sunday afternoon till Friday afternoon as those are the times/dates she sees them or [the child] in [redacted].[17]

Conclusion

[13] The Agency papers, pp 26–33.

[14] The Agency papers, p 66.

[15] The Agency papers, p 129.

[16] The Agency papers, p 131.

[17] The Agency papers, p 148.

22.The Tribunal is not persuaded by the evidence of one party over the other but concludes, based on the evidence before it, that the care that actually happened was likely between what Mr Devenport recalls and what Ms Attlesea recalls and the Tribunal observes that this care period was immediately after Mr Devenport and Ms Attlesea separated, so it was a period of disruption for Mr Devenport, Ms Attlesea and [the child].

23.The Tribunal finds that the preferable decision is that the care pattern was that Mr Devenport had 5 nights of care per fortnight (2 nights on one week and 3 nights on the next week, on an alternating basis) and they had [the child] for half the school holidays each from 18 June 2020, effective from 9 July 2020. The Tribunal notes there are generally 12 weeks of school holidays in each year (84 days). This means the Tribunal finds that Mr Devenport had a care percentage of 39% and Ms Attlesea had a care percentage of 61%.

Date of effect of the Tribunal’s decision

24.Section 95N of the Registration Act provides that a review decision will have effect from the date the application for review was made if the application was lodged more than 28 days after the objection decision. However, if there are special circumstances that prevented the person from lodging the application within 28 days, the Tribunal may allow for a longer application period.

25.In this case, the objection decision that Mr Devenport had 28% care of [the child] and Ms Attlesea had 72% care of [the child] was made on 4 August 2020 and Mr Devenport was informed of this by letter on 16 March 2021. Mr Devenport lodged his appeal of that decision on 24 August 2022, more than a year later.

26.Mr Devenport told the Tribunal that he had had problems obtaining secure housing after separating from Ms Attlesea and he had been dealing with significant bullying issues that [the child] had experienced at school, to the point that [the child] is now being home schooled. Mr Devenport also told the Tribunal that he has been recovering from an accident that left him with serious, ongoing injuries and has rendered him unable to work.

27.The Tribunal acknowledges that Mr Devenport has experienced difficulties but is not satisfied that his circumstances could be regarded as special circumstances such that he was prevented from the lodging an application for review with the Tribunal within 28 days of the objection decision on 4 August 2020.

28.The Tribunal has therefore determined that the discretion contained in section 95N should not be exercised in Mr Devenport’s favour to give effect to this decision earlier than the date the application was lodged with the Tribunal.

29.Accordingly, the date of effect of the Tribunal’s decision in respect of the change in care will be 24 August 2022, the date Mr Devenport made his application for review with the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides:

a)that from 8 June 2020, Ms Attlesea had 61%; and Mr Devenport had 39% of [the child’s] care; and

b)not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision is 24 August 2022 (when Mr Devenport lodged his application for review).