Kendrick and Melton (Child support)

[2023] AATA 1646

Kendrick and Melton (Child support) [2023] AATA 1646 (3 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025160

APPLICANT:  Ms Kendrick

OTHER PARTIES:  Child Support Registrar

Mr Melton

TRIBUNAL:Member M Sutherland

DECISION DATE:  3 May 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Kendrick has 32% and Mr Melton 68% care of the child from 25 April 2022 effective from 21 June 2022 for Mr Melton and 25 April 2022 for Ms Kendrick.

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. This review is about a change to the percentage of care determinations for Ms Kendrick and Mr Melton (the parents) for [Child 1] (born [in] 2011).

2. There has been a child support assessment in place since 25 July 2014. There is a court order dated [in] October 2015 which provides that each parent have 50% care reflected from 2015.

3. On 21 June 2022 Mr Melton notified Services Australia – Child Support (the Agency) of a change to the care arrangements stating that he provided 90% care of [Child 1] and Ms Kendrick provided 10% care from 25 April 2022.

4. On 29 August 2022 the Agency made the decision to reflect that Mr Melton provided 73% care (266 nights) and Ms Kendrick provided 27% - (99 nights) care from 25 April 2022.

5. On 30 August 2022 Ms Kendrick objected to this decision and on 21 November 2022 the Agency disallowed the objection (the objection decision).

6. On 30 November 2022 Ms Kendrick applied to the Tribunal for a review of the objection decision.

7. The Tribunal held a hearing on 24 April 2023. Ms Kendrick and Mr Melton gave evidence to the Tribunal on affirmation by conference telephone. The Agency provided the Tribunal and the parties with papers relevant to the matter (pages 1–141). Ms Kendrick and Mr Melton provided the Tribunal with further documentation and submissions after the hearing. The Tribunal made its decision on 3 May 2023.

THE LAW

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

2. The 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 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 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.

4. The 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 new care percentage determination usually takes effect the day after the existing determination is revoked unless an interim determination is made. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies. Section 51 of the Act says that a care determination may be made (known as an interim determination) if a care arrangement, such as a court order, is not complied with and the parent with reduced care takes ‘reasonable action’ to have the court order complied with. Section 51 does not apply in this matter. It was agreed between Mr Melton and Ms Kendrick that the court order of 2015 cease from the time the parenting plan was entered into in March 2016. The parenting plan has to all intents and purposes been followed. In July 2022 Mr Melton told the Agency that care should be 67% to him and 33% to Ms Kendrick which is in line with the care provided for in the parenting plan.

ISSUES

1. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for the child 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 apply?

CONSIDERATION

The evidence of the parties

1. Ms Kendrick said that:-

   ·      she disagrees that she only has 10% care from April 2022 or that her care has only been 27%.

   ·      The written parenting plan entered into in March 2016 setting out care superseded the court orders of 2015. Ms Kendrick was to have care from Friday afternoon until Sunday afternoon (2 nights for 3 out of 4 weekends, 75% of 104 days = 78 and half of the school holidays 12 weeksx7/2 = 42 days, total 120 days = 32% care. This was supposed to be an interim order but nothing else has been in writing since then.

   ·      She had agreed with Mr Melton in late 2021 that they would not follow the parenting plan and go back to the court orders made in 2015 when it was stipulated that they both had 50% care.

   ·      Mr Melton applied for a change in the care percentage in April 2022 as he was unhappy with her due to her having the Agency review his income. He told her he was going to keep [Child 1] in his care according to the parenting plan. Despite the agreement to go back to court orders Mr Melton has been withholding care of [Child 1] from her. No change to 10% care had occurred in April 2022.

2. Ms Kendrick provided a care calendar commencing 8 April 2022, see page 69 of the hearing papers. This shows that she had care for 41 nights from April to August 2022. This equates to 8 nights per month = 40 nights over 5 months.

3. After the hearing Ms Kendrick provided details of the care she had provided from January 2022 to the end of March 2022 = 40 nights over 3 months.

4. Ms Kendrick provided a statement from her husband [named], see page 100 of the hearing papers. This statement does not take the matter any further.

5. Mr Melton said that:-

   ·      The written parenting plan entered into in March 2016 superseded the court orders of 2015. Ms Kendrick was to have care from Friday afternoon until Sunday afternoon and half of the school holidays = 34% care. This was supposed to be an interim order. No further written agreement was made.

   ·      In November 2021 he had discussions with Ms Kendrick to go back to the court orders being  50–50 care, if she paid for [Child 1’s] school fees plus contributions, which she did not do.

   ·      He had been flexible with Ms Kendrick about having [Child 1] in her care but as they could never reach a new agreement, the parenting plan should stand. Ms Kendrick’s care over the few months before April 2022 had reduced dramatically. On balance he has had 90% care since April 2022.

   ·      His communication with Ms Kendrick has broken down. He is following the parenting plan that Ms Kendrick has 2 out of 3 weekends and half the school holidays. The care is not shared.

6. After the hearing Mr Melton provided some written notes plus a copy of the court order and parenting plan.

7. When making its decision the Tribunal must consider the information given by a parent regarding the care being provided for a child. The information of one parent may be inconsistent with the information provided by the other parent.

Did a change of care occur?

1. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. In the hearing papers there is a note made by an officer which states that Mr Melton spoke to the Agency on 29 August 2022 and informed the officer that he would be agreeable to care being 67% to him and 33% to Ms Kendrick. He subsequently said that he was not sure why 73%–27% was applied and not 67%–33% which is in line with the parenting plan.

2. The parties agreed that the care set out in the court order had been varied by the parenting plan but could not agree what the percentage of care was from the time they discussed going back to 50–50 care in accordance with the court order. The evidence provided by Ms Kendrick shows her nights of care from January 2022 to the end of August 2022 = 80 nights or 10 nights per month; 12x10 = 120 nights per annum = 32%. This is in line with the parenting plan. The Tribunal finds that in April 2022 the care was 68% to Mr Melton and 32% to Ms Kendrick. The Tribunal does not accept that care was 90% to Mr Melton and 10% to Ms Kendrick in April 2022. Mr Melton provided no cogent evidence to support this assertion.

3. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established from 25 April 2022 with Mr Melton providing 68% care and Ms Kendrick 32% care. Prior to Mr Melton informing the Agency of a change in care on 21 June 2022 the existing percentages of care in the assessment for the child were 50% to each parent.

4. Where there is a change to the existing pattern of care the Tribunal must determine whether revocation will occur under section 54G of the Act. Subsection 54G(1) applies if certain conditions are met, these are:-

   ·      a parent was to have at least regular care, but despite the other parent making the child available, the parent has had no care or less than regular care (regular care means care that is at least 14% but less than 35%) and

   ·      the other parent must have had their existing percentage of care determined under section 50 and

   ·      the other parent must notify the Agency within a reasonable time that the parent with the reduced care has no care or less than regular care. The Tribunal is satisfied that in this case section 54G of the Act does not apply.

5. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentages of care and a change in the care would result in a change to the cost percentages then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations. The Tribunal finds that as section 54F of the Act was met, it was correct for the Agency to revoke the previous care determinations and replace them with the pattern of care taking place for the child. Mr Melton had 68% care and Ms Kendrick 32% care from 25 April 2022 (previously 50–50 care).

6. If the Agency is notified, or otherwise becomes aware, within 28 days after the change of care day for the responsible person that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child, the revocation takes effect the day before the change of care day: see paragraph 54F(3)(a) of the Act.

7. If the Agency is notified, or otherwise becomes aware, of the matter more than 28 days after the change of care day for the responsible person and:

   ·      if the responsible person’s care of the child has increased, the revocation takes place the day before the Agency is notified, or otherwise becomes aware, of that matter; or

   ·      if the responsible person’s care of the child has reduced, the revocation takes place the day before the change of care day: see paragraph 54F(3)(b) of the Act.

8. The Tribunal finds that as section 54F of the Act is met, the previous care determinations should be revoked and replaced with the pattern of care taking place for the child from 25 April 2022. The change of care was notified by Mr Melton on 21 June 2022. As this was more than 28 days after the change of care, Mr Melton’s care is revoked from the day before the notification, namely 20 June 2022, and Ms Kendrick’s percentage of care is revoked from the day before the change of care day, namely 24 April 2022.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Melton and Ms Kendrick under section 50 of the Act. For the reasons outlined above the Tribunal finds that Mr Melton provides 68% care and Ms Kendrick provides 32% care of [Child 1].

Date of application of the new care percentage determinations

1. For Mr Melton the care change takes effect from the day after revocation occurred, that is, from 21 June 2022 (in the case of Mr Melton, revocation occurred on 20 June 2022), and for Ms Kendrick the care change takes effect from 25 April 2022 (revocation occurred on 24 April 2022), see section 54B of the Act.

2. Either parent can lodge further notifications of a subsequent change in care to the Agency which will be subject to separate review.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Kendrick has 32% and Mr Melton 68% care of the child from 25 April 2022 effective from 21 June 2022 for Mr Melton and 25 April 2022 for Ms Kendrick.