Mather and Belcher (Child support)

[2024] AATA 3586

Mather and Belcher (Child support) [2024] AATA 3586 (29 August 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027832

APPLICANT:  Ms Mather

OTHER PARTIES:  Child Support Registrar

Mr Belcher

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  29 August 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – unsigned parenting plan – change in pattern of care – existing percentage of care determinations revoked – new care determinations made – date of application – decision under review affirmed

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 determinations for Ms Mather and Mr Belcher in respect of their children [Child 1] (born October 2013) and [Child 2] (born January 2017).  There has been a child support assessment in place since 31 January 2022.

2. From 21 June 2022 the child support assessment reflected Ms Mather as having 71 per cent care and Mr Belcher as having 29 per cent care of [Child 1] and [Child 2].

3. On 9 June 2023 Mr Belcher notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he provides 40 per cent care and Ms Mather provides 60 per cent care of [Child 1] and [Child 2] from 9 May 2023.

4. On 26 August 2023 Child Support made the decision to reflect that Ms Mather provides 60 per cent care and Mr Belcher provides 40 per cent care of [Child 1] and [Child 2] from 9 May 2023.

5. On 29 August 2023 Ms Mather objected to this decision and on 18 March 2024 Child Support allowed the objection in part and made the decision to reflect that Ms Mather provides 60 per cent care and Mr Belcher provides 40 per cent care of [Child 1] and [Child 2] from 23 May 2023 (the objection decision).

6. On 19 April 2024 Ms Mather applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 29 August 2024.  Ms Mather and Mr Belcher gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (334 pages).

ISSUES

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

2. Child Support 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, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support 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 issues that arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] 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

1. Ms Mather told the Tribunal there were no court orders or written agreements in place regarding the care of [Child 1] and [Child 2], however, after separation the parents had broadly followed a parenting plan which was never signed.  Ms Mather explained that care of the children had since moved beyond the parenting plan.

2. Ms Mather submitted that she had never agreed to a change in the pattern of care for [Child 1] and [Child 2] in 2023 and her care remained at 71 per cent care.  Ms Mather said she continued to be the primary carer for the children.

3. Ms Mather told the Tribunal that Mr Belcher was currently providing care of four nights every fortnight being a Tuesday night in week one and a Tuesday, Friday and Saturday night in week two.  Ms Mather said this pattern of care had not commenced until February 2024 and had never been any different during the school holidays.  Ms Mather reiterated there was no agreed change in care in May 2023 although Mr Belcher would regularly take the children without her consent.

4. The Tribunal notes in evidence a calendar of care provided by Ms Mather to Child Support on 4 September 2023.  This calendar shows Mr Belcher providing care of 56 nights in 2023 primarily on a Friday and Saturday night every fortnight.  There is also additional care during the July 2023 school holidays.  This is equal to 15 per cent care.

5. Ms Mather told the Tribunal that in late 2023 she had been forced to apply to the courts for orders allowing her to travel to [Country 1] with the children.  Ms Mather said the orders had provided makeup time for Mr Belcher to spend with the children for the overnight care he missed while she was overseas.  Ms Mather said this makeup time was based upon the care Mr Belcher had been providing and was further evidence of the pattern of care in place in 2023.

6. The Tribunal notes in evidence from Child Support a copy of court orders handed down by the Federal Circuit and Family Court of Australia and amended on 9 October 2023.  In relation to makeup time the orders state that in the 2023 term 4 school holidays, Mr Belcher is to have care from 20 December 2023 (Wednesday) to 23 December 2023 (Saturday) and from 26 December 2023 (Tuesday) to 30 December 2023 (Saturday).

7. Mr Belcher told the Tribunal he agreed the parents had initially based their care of the children on a parenting plan but it was used as a guide only and the parenting plan had never been signed.  Mr Belcher said the pattern of care had evolved since then.

8. Mr Belcher informed the Tribunal that his level of care had increased in May 2023 with an additional Tuesday night during school term.  He said this followed a request from Ms Mather who wanted him to assist more with the children. Mr Belcher said, following the change, he was having care during school term on Tuesday and Friday nights in week one and Tuesday, Friday and Saturday nights in week two.  Mr Belcher said his holiday care had remained the same at eight nights a fortnight being Tuesday, Wednesday and Friday nights in week one and Tuesday, Wednesday, Friday, Saturday and Sunday nights in week two.  Mr Belcher added that he had provided Child Support a detailed diary outlining his care of the children from May to December 2023.

9. The Tribunal notes in evidence a diary showing the care Mr Belcher provided for the children from May 2023 to July 2023 and then a further diary covering the care from September 2023 to December 2023.[1]  These dairies do not show Mr Belcher had care on Tuesday 9 May 2023 but they do show an increased level of care from Tuesday 23 May 2023:

   ·     May 2023 – 23, 26, 27, 30, 31

   ·     June 2023 – 2, 6, 7, 9, 10, 11, 13, 16, 20, 23, 24, 27, 30

   ·     July 2023 – 4, 5, 7, 8, 9, 11, 12, 14, 18, 19, 21, 22, 25, 28

   ·     September 2023 – 12, 15, 16, 19, 22, 26, 27, 29, 30

   ·     October 2023 – 1, 3, 4, 6, 10, 13, 14, 17, 20, 24, 27, 28, 31

   ·     November 2023 – 3, 7, 10, 11, 14, 17, 21, 24, 25, 28

   ·     December 2023 – 1, 5, 8, 9, 12, 15, 19, 20, 21, 22, 23.

   [1] Incomplete data was provided for August 2023.

10. It is further noted that both parents provided separate evidence to Child Support relating to the children’s attendance at before and after school care.  The Tribunal did not take this into consideration as it is not necessarily indicative of overnight care.

11. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

12. Ms Mather has told the Tribunal the pattern of care for [Child 1] and [Child 2] did not change in 2023 and her care remained at 71 per cent care.  The calendar of care provided by Ms Mather for 2023 does not support this contention.  The calendar shows Ms Mather providing 85 per cent care and Mr Belcher providing 15 per cent care of the children in 2023 with Mr Belcher having care every second Friday and Saturday night on an ongoing basis.  Ms Mather has also said the pattern of care during school term was no different to the pattern of care during school holidays, however, her calendar shows extra care for Mr Belcher during the July 2023 holiday period.  The court orders dated 9 October 2023 show makeup care for Mr Belcher during the December 2023 school holidays which is also different to the pattern of care during school term as described by Ms Mather.

13. Mr Belcher has argued that his care increased in May 2023 when he began having extra care, being a Tuesday night, during school term.  Mr Belcher argues that from May 2023 his usual pattern of care during school term was Tuesday and Friday nights in week one and Tuesday, Friday and Saturday nights in week two.  Mr Belcher has also said his care during school holidays remained the same being Tuesday, Wednesday and Friday nights in week one and Tuesday, Wednesday, Friday, Saturday and Sunday nights in week two.  The diary records provided by Mr Belcher are consistent with this pattern of care but include some occasional additional care of the children.

14. The Tribunal prefers the evidence provided by Mr Belcher and is satisfied that care of [Child 1] and [Child 2] changed from 23 May 2023.  The Tribunal finds that in the 12-month care period from 23 May 2023 Mr Belcher provides care of 100 nights during school term (five nights a fortnight across 40 weeks) and care of 48 nights during school holidays (eight nights a fortnight across 12 weeks).  This totals care of 148 nights or 40 per cent care.  The Tribunal finds that Ms Mather provides 60 per cent care and Mr Belcher provides 40 per cent care of [Child 1] and [Child 2] from 23 May 2023.

15. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 71 per cent care to Ms Mather and 29 per cent care to Mr Belcher.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  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 percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

16. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Mather and Mr Belcher under section 50 of the Act.

2. The Tribunal finds that Ms Mather provides 60 per cent care and Mr Belcher provides 40 per cent care of [Child 1] and [Child 2].

Date of application of new care percentage determinations

1. The Tribunal finds that Mr Belcher first notified Child Support of the change in care for [Child 1] and [Child 2] on 9 June 2023.  As this is less than 28 days after the change occurred on 23 May 2023, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made on 23 May 2023.

DECISION

The decision under review is affirmed.