Fearon and Newey (Child support)

[2024] AATA 3577

Fearon and Newey (Child support) [2024] AATA 3577 (6 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027973

APPLICANT:  Mrs Fearon

OTHER PARTIES:  Child Support Registrar

Mr Newey

TRIBUNAL:Member R Prasad

DECISION DATE:  6 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the pattern of care – unpredictable arrangements with older teenaged children deciding which parent or friend they will stay with – conflicting evidence and no third-party statements – minor departures do not change pattern of care – 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. Mrs Fearon (the mother) and Mr Newey (the father) have had a registered child support assessment for their children. Since 19 December 2012, Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 67% care and the father 33% care of the children. These percentages denote the existing percentages of care.

2. On 7 January 2024, the mother notified Child Support of a change in the care on the basis that the children have agreed with the father to spend time together on a more liberal basis  and that she has had 329 nights or 91% care and the father has had 36 nights or 9% care since 2 January 2022.

3. On 15 January 2024, Child Support decided to accept the care change and amended the particulars of the assessment to reflect that the mother had 91% care and father had 9% care from 2 January 2022 (the original decision).

4. On 23 January 2024, the father objected to the original decision on the basis that he was not contacted or informed by Child Support of the change of care notification and that he did not agree with the level of care determined.

5. On 14 May 2024, Child Support allowed the father’s objection and reverted back to the existing percentages of care (the objection decision).

6. On 21 May 2024, the mother sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard on 5 August 2024. The mother attended the Tribunal and provided documentation (folios A1 to A23). The father appeared by MS Teams audio. The Child Support Registrar elected not to be represented at the hearing, but provided documentation (folios 1 to 293).

ISSUES

1. The relevant issue before me is whether there was a change to the children’s care arrangements, and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 50 of the Child Support (Assessment) Act 1989 (the Act) provides that if an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care must be determined where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. Section 54 defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement, such as a court order.

3. The Act, under section 54A, provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person. Section 54D provides that a percentage of care must be rounded up to the nearest whole percentage if it is greater than 50% and rounded down to the nearest whole percentage if it is less than 50%.

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if sections 51 and 54G do not apply and there is a change to a person’s cost percentage, which is dependent on a change to the care percentage.

5. Section 54G of the Act is applicable where a person was to have regular care of a child during a care period and has had less than regular care of the child, a determination has been made that the other responsible person had at least regular care of the child, and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.

What information has been provided in relation to the care of the children?

1. The mother advised that she has been receiving child support since 2011 and the children are now aged 18 and 16. Care has been in accordance with court orders, where she was primary carer and the children spent time with the father, but since 2022 and 2023, the care arrangements have become unpredictable with the children deciding which parent they will spend time with and inform the parents once they have decided. This has meant that the father’s nights in care have reduced, while her care of the children has increased. The mother provided a statutory declaration dated 22 July 2024, which sets out the number of days each child has spent with the father from 2023. In particular, she states that the older child overall has spent 37 nights in 2023 and 51 nights from January to July 2024 with the father, and the younger child has been in the father’s care for 35 nights in 2023 and 14 nights from January to July 2024. Accordingly, she stated that as the care has varied, her care of the children was 91% in 2023, and in 2024, she had 76% care of the older child and 94% care of the younger child. The mother asserted that her care calendar as provided to Child Support, indicates the contemporaneous movements of the children and is on the balance of probabilities correct, but noted that she had missed noting one additional night’s care that the father had of the older child in October 2023. There is no written agreement to the change in care, and the mother confirmed that as she has no records for 2022 and cannot confirm the father’s care with certainty, the care period should commence from 2023. In this regard, she advised Child Support on 6 May 2024 that the date of effect should be 1 January 2023.

2. The mother asserted that as her care of the children has increased, the child support payments need to be realistic and reflect the actual care. In relation to why she notified the care change a year later, she said it was not at the forefront of her mind having three children, and with the younger child’s medical conditions.

3. The mother provided a statement from her partner that, among other things, reiterates the older child spending 37 nights and the younger child spending 35 nights with the father in 2023. I have placed minimal weight on this statement as it does not contradict the evidence provided by the mother. She also requested at the hearing whether a pattern of care could be mediated by the Tribunal, but this is more appropriate through family law processes rather than through Child Support. In any event, the father had opposed the request.

4. The father advised that the objection decision is correct. He stated that in 2022, he had tried to change the care arrangements but the mother had refused and he provided a SMS exchange with the mother which he says refers to his request. This SMS exchange indicates that the father’s request to change the care arrangements for 2022 were declined by the mother stating that they have “a court order that takes care of that”. In this regard, the mother’s statutory declaration notes the SMS exchange also included a response by the father stating that they “still changed last year because it suited both hence my proposal”.

5. The father asserted that there had not been a change in the pattern of care in 2023, but the nights in care were reduced. The care he provided for the older child increased towards the end of 2023 as the child’s friend lived closer to him. He said that there was no change with the younger child, although there had been a reduction of nights with him, but that the child also stayed with friends. He advised that he sees more of the older child now and less of the younger child, and confirmed that the children send text messages advising of their plans. He provided Child Support a statement on 23 April 2024 noting the specific dates the older child had spent with him since March 2024 and that he has been on a number of holidays with the children since 2023, which were separate to the usual fortnightly visits. In a further statement dated 7 May 2024, he advised his bank statements indicate that he may have had 55 nights care in 2023 and that he already had care of the older child for 38 nights in 2024, which is in excess of what the mother claimed.

6. The father noted that the mother had no evidence to provide Child Support initially and then her care calendars just appeared, and in his statement of 7 May 2024 he stated that he had a photo taken with the children on 12 August 2023 when they were staying with him, but the mother had not included that date on the calendar. The mother advised that she had always had the calendars, except for in 2022 when she was not keeping a record, but had misplaced them.

7. The father provided a statement from his sister asserting, among other things, that she has visited the father on the weekends the children were with him and that she had “not seen any changes or patterns to the care” the father provides the children. I have placed minimal weight on this statement as it does not contradict the evidence provided by the father.

Has there been a change to the care of the children?

1. I am undertaking a review of the applicable care percentage afresh and am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the children were, or were likely to have been, in a parent’s care.

2. Section 50 of the Act requires that I be satisfied of the pattern of care for the children during the care period. The mother has advised that as she was not keeping any records in 2022, the care period should commence from 1 January 2023.

3. The information before me indicates that there has been a change to the usual care arrangements under the court orders where the children decide which parent they are staying with or if they will spend time at a friend’s home. However, the evidence from the parties are conflicting and no third party statements have been provided to corroborate their claims. The mother asserted that in 2023 she had 91% care of the children and then since the beginning of 2024, she has had 76% care of the older child and 94% care of the younger child. The father instead asserted that while there had been some reduction in the nights in care of the older child at the beginning of 2023, there had been an increase towards the end of 2023. In relation to care of the younger child, he says there has been no real change in care, although there was some reduction in the nights in care but he asserted the child may be with friends on those nights. The information before me includes an SMS exchanged between the parents that states that a request to change the care arrangements in 2022 was not accepted as there were court orders in place, but changes were made the year prior. Both parents have confirmed that there is no pattern of care and that the children decide which parent they wish to stay with and communicate their intention through text messages. I note that I am unable to consider or accept the evidence involving the children, such as SMS or photos from or including them.

4. For completeness, I make the following observations. One-off events such as sleeping over at the home of a friend would not constitute a change to the pattern of care. The operative word is pattern in this regard. I have reached this conclusion after considering the Child Support Guide at 2.2.1, which states that minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination. The Tribunal can have regard to the Child Support Guide, though it is not bound to follow it.[1] In G v Minister for Immigration and Border Protection [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task.

   [1] Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634.

5. In light of the above, and in the absence of contrary cogent evidence, I am not persuaded there has been a change to the children’s pattern of care, particularly in light of an unwillingness to alter the care arrangements by the mother in 2022 as evidenced by the SMS exchange between the parents. I have no information about the agreed changes that occurred in 2021 but note the pre-existing percentage of care has been in place since 2012 and as mentioned above, minor departures does not alter the pattern of care. Accordingly, the care percentage remains the same with the mother having 67% care and the father 33% care of the children from 1 January 2023.

6. As I am not satisfied that the father’s care of the children had reduced or that he had less than regular care, sections 51 and 54G of the Act are not applicable. Given sections 51 and 54G do not apply, and the cost percentages have not changed as the care percentages have not changed, pursuant to section 54F the determination of the existing care percentage must not be revoked.

DECISION

The decision under review is affirmed.