Lacey and Crawford (Child support)

[2020] AATA 5826

Lacey and Crawford (Child support) [2020] AATA 5826 (14 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC019839

APPLICANT:  Mrs Lacey

OTHER PARTIES:  Mr Crawford

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  14 December 2020

DECISION:

The Tribunal affirms the decision under review.

The application for review is therefore not successful.

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. The following information is taken from the records of Services Australia – Child Support (the CSA) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Crawford and Mrs Lacey are the parents of two children now aged 15 and 13.

3. There are two child support cases and each case is Registrar Collect.

4. Care was formerly recorded as 73% care to Mrs Lacey and 27% care to Mr Crawford.[1]

   [1] C20

5. On 15 April 2020 a new care determination was made that care was 100% care to Mrs Lacey and 0% care to Mr Crawford, for both children, from 5 April 2020.[2]

   [2] See C19. There is no copy of this decision on the CSA file.

6. There was no objection to that decision.

7. Under that decision, Mr Crawford was liable to pay Mrs Lacey child support of $2,576pa.[3]

   [3] C109

8. On 2 May 2020 and 18 May 2020 Mrs Lacey contacted the CSA and notified new care changes for each child. She stated that she had 41% care of the younger child since 2 May 2020 and 75% care of the older child since 12 May 2020.[4]

   [4] C34 and C49

9. On 19 June 2020, after receiving evidence of care from both parents, a delegate made a new care determination to the effect that care of the younger child was 33% to Mrs Lacey from 5 May 2020 and care of the older child was 67% to Mrs Lacey from 12 May 2020, with corresponding percentages to Mr Crawford.

10.On 20 June 2020 Mrs Lacey lodged an objection to the delegate decision.

11.On 10 September 2020 an objections officer disallowed that objection.

12.On 11 September 2020 Mrs Lacey sought a further review of that decision by this Tribunal.

13.On 27 October 2020 a new care determination was made for the older child (only). Care is now 19% to Mrs Lacey and 81% to Mr Crawford for that child from 19 October 2020.

14.Currently, Mrs Lacey pays $2,064pa in child support based on her having 19% of the care of the older child and 33% care of the younger child.[5]

[5] C284

DOCUMENTARY EVIDENCE AND HEARING

15.The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C271.

16.Supplementary documents were C272 onwards.

17.The parents attended the hearing on 2 December 2020 via separate teleconferences and gave evidence and made verbal submissions.

18.The Tribunal deferred to allow both parents to provide evidence of actual care since May 2020.

19.This decision was made on 14 December 2020.

ISSUES

20.The principal issues to be decided by the Tribunal are:

·What were the previously recorded percentages of care?

·Was there in fact a change in the pattern of care for either child?

·If so, what was it, and when did it occur?

·Which of the care provisions of the Child Support (Assessment) Act 1988 (the Act) apply to the facts?

·What are the correct care percentages of the parents, for each child, and from what date or dates should they be effective in the child support assessment?

CONSIDERATION

The relevant child support law

21.The law relevant to this review is contained in the Act.

22.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.

23.The legislative scheme requires a care percentage determination to be made when a new case is registered and following each notification to the CSA of a change of the care arrangements.

24.In this case there were court orders in the past, but these have not been followed for some years, and so there are no legally binding written care arrangements.

25.In that event, care percentages are based the pattern of actual care which is occurring between the parents: section 50 of the Act.

26.If a care percentage is fixed under section 50, it applies for each day in a child support period until the determination which fixed that care percentage is revoked: see subsection 54B(1A) of the Act.

27.The Tribunal’s role in care percentages cases is that it may only review the legal correctness of the delegate decision which was made on 19 June 2020 (this is known as a “point in time approach”).

28.The Tribunal must do so based on (i) what evidence was available to the original decision maker, (ii) as supplemented by any further relevant material supplied to the objections officer, and (iii) any further relevant information supplied to the Tribunal.

29.The Tribunal can only take note of or give any weight to events after the delegate decision, if they assist in determining whether the delegate decision on 19 June 2020 was correct in the circumstances.

30.The key issue, then, for the Tribunal is whether a new, regular pattern of care (i.e. a pattern of care that was different from the previous pattern of care) had come into existence as at, or was at least emerging as at, 19 June 2020. Mere changes in what care is taking place, or a change in the “amounts” of care each parent provided, or erratic care, do not necessarily add up to a new pattern of care.

31.Ultimately, it is always a question of fact in each case.

32.The Child Support Guide states in this regard:

Change in pattern of care

When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.

33.Care is generally determined based on the number of nights that the child was or is likely to be in the care of the person: section 54A of the Act

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

34.The Tribunal considered all of the information on the CSA file including the verbal and documentary evidence as presented by the parents to the CSA, and the evidence and submissions presented by them to the Tribunal.

35.Firstly, the Tribunal has concluded that the previous pattern of care for the purposes of this matter was that determined by the CSA on 15 April 2020. This was 100% care of both children to Mrs Lacey from 5 April 2020.

36.This in fact seemed to the Tribunal to be no more than a temporary interruption of the previous care, but there was no objection to that decision, and it was the care situation in place as at date of notification.

37.  By early May 2020 the parents had, at the instance of the children, come to some sort of arrangement for sharing the care of the children, but with each parent having a different level of care of each child.

38.  What the “terms” of that arrangement were is a key issue.

39.  Much of the “evidence of care” supplied by each parent in this matter was no more than their expectation of what care they thought that they would have of each child, going into the future, from early May 2020, rather than what care had in fact occurred. Given that the delegate decision was only five weeks after the second notification of a care change, this was not surprising.

40.  A care calendar provided after the hearing by Mrs Lacey did give a picture of what care had in fact occurred after early May 2020. Mr Crawford declined to provide any further evidence.

41.  It appears that the arrangement after early May 2020 was that, for term - time care (i.e. for 40 weeks out of a full year), for the younger child, care was to be ten nights per fortnight to Mr Crawford, four to Mrs Lacey, and for the older child, in effect it was to be the reverse.

42.  It was unclear to the Tribunal what the arrangement was for school holidays. Indeed, given the ages and influence of the children themselves on the care issue, the parents themselves may not have known this until the school holidays came around in July 2020.

43.  It was also unclear to the Tribunal what the arrangement was for special occasions such as birthdays, anniversaries, and so on. Each parent submitted that the other had “wrongly included” these nights of care in their claimed care percentages. That, of course, begs the question what their agreement or arrangement actually was, and the Tribunal noted that neither parent could clarify this issue when questioned.

44.  The Tribunal finds that the care period for [Child 1] is 5 May 2020, the notified care change date, to 31 October 2020 (which is almost 6 months).  It has arrived at this conclusion after doing the best it can with the evidence of actual care it has in order to discern a pattern of care.

45.  In this period, the Tribunal finds that Mrs Lacey had care of [Child 1] for four nights every second week (usually Thursday through to Monday). She did have seven extra nights of care in the July 2020 school holidays, which was roughly half of those holidays, but no extra care in the October 2020 school holidays.

46.  This did amount to a pattern, of sorts, and this new pattern was certainly different to the previous care percentages of 100%/0%.

47.  The Tribunal finds that for a full year this pattern would amount to 122 nights of care, which is 33% care to Mrs Lacey.

48.The Tribunal has concluded that for [Child 1] the care percentage of Mrs Lacey is 33% and the care percentage of Mr Crawford is 67%, and these percentages will apply from 5 May 2020 until any new care determination is made for that child.

49.This is the same outcome as the objection decision.

50.The CSA has now determined that care of [Child 2] changed from 19 October 2020.

51.The Tribunal finds that the care period to consider for [Child 2] is therefore 12 May 2020, the notified care change date, to 18 October 2020.

52.  In this period, of 159 nights, the Tribunal finds that Mr Crawford had care for 53 nights and Mrs Lacey had care for 106 nights. This is 33%/67%.

53.  Again, this did amount to a pattern, of sorts, in that Mr Crawford consistently had care each Tuesday, Friday and Saturday, and effectively for half of the school holidays.

54.The Tribunal has concluded that for [Child 2] the care percentage of Mr Crawford is 33%, and for Mrs Lacey it is 67%, and these percentages will apply from 12 May 2020 until 18 October 2020.

55.This - in effect - is the same outcome as the objection decision.

56.The objection decision is therefore affirmed and there will be no changes to the assessment of child support.

DECISION

The Tribunal affirms the decision under review.

The application for review is therefore not successful.