Lebarre and Yabsley (Child support)

[2024] AATA 4134

Lebarre and Yabsley (Child support) [2024] AATA 4134 (9 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC028076

APPLICANT:  Mr  Lebarre

OTHER PARTIES:  Child Support Registrar

MsYabsley

TRIBUNAL:Member J Leonard

DECISION DATE:  9 September 2024

DECISION:

The Tribunal varies the decision under review so that Ms Yabsley is attributed with a care percentage of 50% and Mr Lebarre is attributed with a care percentage of 50% in respect of the children from the start of the child support assessment on 22 May 2023.

CATCHWORDS 

CHILD SUPPORT – percentage of care – determination of equal care – decision under review varied

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 theChild Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Lebarre and Ms Yabsley are the parents of two children.

2. Ms Yabsley applied to Services Australia (Child Support) for a child support assessment on 22 May 2023. Her online application was accepted on 16 June 2023. It was recorded by Child Support that Ms Yabsley had 100% care of [Child 1] from 9 February 2023  and 100% care of [Child 2] from 2 February 2023 [1], effective in the assessment from 22 May 2023.

   [1] The Tribunal notes the application completed my Ms Yabsley provides for a start date of 9 February 2022 for [Child 1]. A date for [Child 2] is not specified. Page 24.

3. Child Support omitted to notify Mr Lebarre in writing of the decision. On 12 September 2023 Mr Lebarre lodged an objection to that decision. On 30 May 2024 an objections officer partly allowed the objection and decided that the care of both children was 67% from 9 February 2023, effective in the assessment from 22 May 2023.

4. On 14 June 2024 Mr Lebarre applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the care percentage decision.

5. The application was heard on 29 August 2024. Mr Lebarre attended the hearing in person. Ms Yabsley elected not to participate in the hearing. In addition to oral evidence, the Tribunal had regard to an initial bundle of documents provided by Child Support (numbered 1 to 259) and documents numbered A1 to A8 provided by Mr Lebarre. Child Support provided supplementary documents numbered 260 to 372. Because the supplementary documents provided by Child Support were not delivered to Mr Lebarre and Ms Yabsley prior to the hearing, the Tribunal adjourned to allow Mr Lebarre and Ms Yabsley to provide written submissions by 6 September 2024. Ms Yabsley provided an email and attachments which were numbered B1 to B13. A copy is attached to this decision.

6. The Tribunal made its decision on 9 September 2024.

CONSIDERATION

1. An administrative assessment of child support is to relate to some or all of the days of a single child support period; section 68 of the Child Support (Assessment) Act 1989 (the Act). A child support period starts on the day on which an application for an administrative assessment is properly made; subsection 7A(1) of the Act.

2. Child Support makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Act. These provisions require Child Support to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Sections 49 and 50 of the Act require the Tribunal to determine the likely pattern of care for a child during a period that is considered appropriate (a care period).

4. Ms Yabsley made an application for an administrative assessment on 22 May 2023. The Tribunal is required to determine the percentage of care of the children when the child support assessment started. The care of the children prior to 22 May 2023 may be relevant in determining the pattern of care on 22 May 2023.

5. On 22 May 2023 Ms Yabsley advised in her child support application that she had 100% care of the children. The same day, she notified Centrelink that she had 67% care of the children. On 25 May 2023 Ms Yabsley advised Child Support that the care for both children was 67% to her and 33% to Mr Lebarre from 9 February 2023.

6. On 25 August 2023 Mr Lebarre submitted a complaint to Child Support and advised that the care of the children was 50/50 shared care.[2] In an email dated 28 August 2023 to [an organisation] following a mediation session, Mr Lebarre rejected a proposal put forward by Ms Yabsley to increase her care from 7 to 10 days per fortnight.

   [2] Page 46.

7. In her email to the Tribunal dated 6 September 2023 Ms Yabsley stated that the submissions from Mr Lebarre primarily consist of emails and text messages authored by him and she stated that such evidence ‘can be self-serving and may not fully reflect the true situation’. She provided an email she sent to Mr Lebarre dated 20 June 2023 in which she states ‘I do not accept equal time parenting’.[3]

   [3] B6.

8. On 12 November 2023 Ms Yabsley notified Centrelink that care of both children was 50/50 from 22 August 2023. Centrelink changed the care percentages used in the assessment from 26 August 2023 to reflect that both parents had 50% care.

9. At hearing, Mr Lebarre stated that the care of both children was 50% for each parent from 9 February 2023. He noted that there have been subsequent changes to the care of the children which are reflected in the administrative assessment, however his concern is with the percentages of care used in the assessment from 22 May 2023.

10. Mr Lebarre provided a letter dated 19 June 2024 prepared by Ms Yabsley’s solicitor, [Ms A], for the purposes of preparing a Child Impact Report.[4] The letter is signed by Ms Yabsley. Although it does not bear Mr Lebarre’s signature, he stated that the document was negotiated by both parties and it was sent to his solicitor, Ms [B]. He agrees with the contents. The Tribunal notes that a draft of this document is contained in the papers prepared by Child Support,[5] but it does not contain a history of the care of the children since separation.

    [4] A4 to A8.

    [5] Pages 260 to 263.

11. Mr Lebarre stated he separated from Ms Yabsley on 9 December 2022. The letter from [Ms A] dated 19 June 2024 states that Ms Yabsley was discharged from hospital on 9 February 2023. It states in part:

    The children have lived with the Mother and spent time with the Father as agreed between the parties. From 9 February 2023 to 16 December 2023, the children spent time with each parent in largely an equal time arrangement.

12. Mr Lebarre stated that the arrangement he had with Ms Yabsley was that she would have care of the children each Friday, Saturday and Monday. He would have care of both children Tuesday, Wednesday and Thursday. On Sundays they would generally share the care of the children. They might go out together in the morning with the children and then Ms Yabsley would have care of them in the afternoon. Mr Lebarre stated that this arrangement continued through school holiday periods such that he would arrange for vacation care for the children for the time that they were with him.

13. Mr Lebarre stated there were issues with the changeover arrangements and so in an email sent on 26 May 2023 he proposed that the changeover arrangements be revised such that they had week about care.[6] He proposed that he would drop the children to school on Tuesday morning after they had been in his care for a week, and Ms Yabsley would pick them up on Tuesday afternoon and have care for the following week. He proposed this arrangement would continue during school holiday periods.

    [6] Pages 89 to 90.

14. Mr Lebarre stated that this alteration to the changeover location commenced as proposed. Subsequent changes to the care of both [Child 1] and [Child 2] is also reflected in the letter from [Ms A]. Child Support was notified of subsequent changes in care, and this has been reflected in the administrative assessments. Neither parent has lodged an objection to those decisions.

15. In reaching its decision, the Tribunal has placed significant weight on the document signed by Ms Yabsley and prepared by her solicitor in consultation with Mr Lebarre’s solicitor. The document was negotiated and agreed to by the parties.

16. In determining an appropriate care period, the Tribunal has settled on a period that is less than the usual 12‑month period. In subsequent changes to the care percentages, it is recorded that from 12 December 2023 Mr Lebarre has a care percentage of 0% and Ms Yabsley has a care percentage of 100% in respect of [Child 2], and from 16 December 2023 there was a change to the pattern of care of [Child 1] such that Mr Lebarre is recorded as having 100% care and Ms Yabsley is recorded as having 0% care.

17. The Tribunal finds that for the care period commencing 9 February 2023 and ending 11 December 2023 Mr Lebarre had a care percentage of 50% for both children and Ms Yabsley had a care percentage of 50% for both children. These care percentages are effective in the assessment from the start date of the assessment, 22 May 2023.

DECISION

The Tribunal varies the decision under review so that Ms Yabsley is attributed with a care percentage of 50% and Mr Lebarre is attributed with a care percentage of 50% in respect of the children from the start of the child support assessment on 22 May 2023.