Marney and Child Support Registrar (Child support)

[2018] AATA 4414

Marney and Child Support Registrar (Child support) [2018] AATA 4414 (9 October 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014804

APPLICANT:  Ms Marney

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Senior Member R Ellis

DECISION DATE:  09 October 2018

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

The fourth sentence in paragraph 20 of the written statement of reasons for the decision is altered to read:

The statement from [Ms D], dated 23 May 2018, says [Child 1] is always in Ms Marney’s care.

Senior Member R Ellis 21 November 2018

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC014804

APPLICANT:  Ms Marney

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  09 October 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care on 12 April 2018.

CATCHWORDS
CHILD SUPPORT – Percentage of care – No change to the pattern of care – 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 removed 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 determination for Ms Marney in respect of the child [Child 1].

2. Ms Marney and [Mr A] are the parents of [Child 1] (born February 2016) and [Mr A] is the parent liable to pay child support under the assessment.

3. From 17 August 2017 the child support assessment reflected Ms Marney as having 100 per cent care and [Mr A] as having 0 per cent care of [Child 1].

4. On 17 April 2018, [Mr A] advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that from 12 April 2018 [Mr A] provides 28 per cent care and Ms Marney provides 72 per cent care of [Child 1].

5. On 14 May 2018, the Child Support Agency made the decision to reflect that [Mr A] provides 28 per cent care and Ms Marney provides 72 per cent care of [Child 1] from 12 April 2018.

6. On 22 May 2018, Ms Marney objected to this decision and on 3 August 2018 the Child Support Agency allowed the objection in part and made the decision to reflect that Ms Marney provides 82 per cent care and [Mr A] provides 18 per cent care of [Child 1] from 12 April 2018 (the objection decision).

7. On 15 August 2018, Ms Marney applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

8. The Tribunal conducted a hearing into the application on 9 October 2018.  Ms Marney gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Mr A] on 27 September 2018 inviting him to be added as a party to application for review but he did not respond to the invitation.  The Tribunal attempted to contact [Mr A] by telephone at 12:30 pm on 9 October 2018 and then again on two other occasions with no success.  [Mr A] did not participate in the hearing.

9. The Child Support Agency provided the Tribunal and Ms Marney with papers relevant to the matter (149 pages).

ISSUES

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

2. The Child Support 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 Child Support 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 Child Support 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 Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·      from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Ms Marney told the Tribunal that since the parents separated [Mr A] had no care of [Child 1] up until February 2018.  She said in the period from February 2018 to May 2018 [Mr A] did have more contact with [Child 1], including some overnight care, but this was not a regular occurrence and there was no ongoing pattern to his care.

2. Ms Marney said that [Mr A] would contact her and make arrangements to see [Child 1] when it suited him.  She said sometimes he might have [Child 1] for a few nights in a month then he would have no care for several weeks before having [Child 1] for another couple of nights.  Ms Marney said his care of [Child 1] was sporadic.

3. Ms Marney explained that in around the first week of May this year [Mr A] had moved about six hours away from her and was unable to have overnight care.  Ms Marney said the parents had recently been to Family Court and were now working on an arrangement where [Mr A] would have care of four hours on one weekend every month.

4. Although [Mr A] did not participate in the hearing, the Tribunal notes that during a conversation with the Child Support Agency on 30 May 2018 he said he had care for [Child 1] of two nights per week since the child support case began.  He also said he had moved around 19 May 2018 and the new care arrangement would be four nights every three weeks.  [Mr A] said his nights of care changed due to his work roster.

5. The Tribunal also notes in evidence from the Child Support Agency that both parents submitted third-party statements in support of the care they provided for [Child 1].  Ms Marney submitted statements from [Ms B], [Mr C], [Ms D], [Ms E], [Mr F] and [Ms G].  [Mr A] submitted statements from [Ms I], [Ms J] and [Mr H].

6. The statement from [Mr F], a family friend of Ms Marney, is dated 16 November 2017 and asserts that he is only aware of [Mr A] having overnight care of [Child 1] on a few irregular occasions.  The statement from [Ms E], dated 22 May 2018, says that Ms Marney has 100 per cent care of [Child 1], however, she only sees Ms Marney two to three times a week.  The statement from [Mr C] says similarly.  The statement from [Ms D], dated 23 May 2018, says [Child 1] is always in [another person’s] care.  The statement from [Ms B], [Child 1]’s grandmother, is dated 23 May 2018 and says she sees Ms Marney daily and [Child 1] is in her 100 per cent care.  The statement from [Ms G], who is the director of [a day care] Centre, confirms that Ms Marney is the parent who drops off and picks up [Child 1] from day care.  It does not mention how often [Child 1] attends day care nor does it refer to care arrangements.

7. The third-party statement provided by [Mr A] from his father, [Mr H], is not specific about the level of overnight care of [Child 1] and does not provide dates of care.  The statement from [Ms J], [Mr A]’s mother, is equally vague about the level of care provided for [Child 1].

8. The statement from [Ms I], [Mr A]’s partner, is dated 18 June 2018 and says that [Child 1] has stayed overnight with [Mr A] on various occasions.  [Ms I] states that since moving in with [Mr A] at the end of January, he has had the following overnight care of [Child 1]:

• 1–2 February, 6–7 February, 12–13 February, 18–19 February, 24–15 February, 7–8 March, 19–20 March, 22–24 April, 29 April–1 May.

1. [Mr A] also provided the Child Support Agency with a calendar showing some dates of overnight care. 

2. The Tribunal notes that the majority of the care set out by [Ms I] and [Mr A] is prior to that date on which [Mr A] notified the Child Support Agency that care of [Child 1] changed.

3. Ms Marney also provided the Child Support Agency with text messages dated 6 May 2018 which show [Mr A] asked her to agree that he has care twice a week.  Ms Marney points out that this was untrue.  In further undated text messages, the parents appear to agree that [Mr A] will have care of [Child 1] for four nights per month with an additional three weeks throughout the year.

4. The Tribunal questioned Ms Marney about these text messages and she said she did agree to this care with [Mr A] but it never actually happened as he moved away.  Ms Marney said when the text message exchange took place, [Mr A] would have known he was moving six hours away.

5. The third-party statements provided by Ms Marney largely support her claim that she has 100 per cent care of [Child 1].  The third-party statements provided by [Mr A] from his parents are not specific about the dates of care he provides for [Child 1], however, they do support that he has some care.

6. The dates of care provided by both [Ms I] and [Mr A] are mostly prior to the new care change commencement date, therefore, this evidence is not directly relevant to the Tribunal’s decision.  The Tribunal is not satisfied this indicates an ongoing pattern of care.

7. Text messages between the parents suggest an agreement on care was reached, however, Ms Marney has told the Tribunal this care did not eventuate.

8. On balance, after weighing up the evidence provided, the Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by [Mr A].  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care on 12 April 2018.