McSorley and Skillern (Child support)

[2021] AATA 1276

McSorley and Skillern (Child support) [2021] AATA 1276 (3 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC020406

APPLICANT:  Mrs McSorley

OTHER PARTIES:  Child Support Registrar

Mr Skillern

TRIBUNAL:Member K Buxton

DECISION DATE:  3 March 2021

DECISION:

The tribunal sets aside the decision under review and substitutes a decision that, from 26 June 2020, no change in care is to be recorded for [the child].

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely 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 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. Mrs McSorley and Mr Skillern are the parents of [the child]. A child support case is registered with the Child Support Agency (CSA). This review application concerns a decision of the CSA about the recorded care for [the child].

2. From 1 November 2019 [the child] had been recorded by the CSA as in the 93% care of Mrs McSorley and the 7% care of Mr Skillern. On 29 June 2020, Mr Skillern contacted the CSA and stated that he was having 16% care of [the child], and Mrs McSorley was having 84% care from 26 June 2020. The CSA made contact with Mrs McSorley who stated that [the child] had been in the care of Mr Skillern for some additional nights but that it was not clear that arrangement would continue. The CSA decided not to change the recorded care for [the child] as notified by Mr Skillern. Mr Skillern objected to that decision and an objections officer decided to allow the objection, deciding that, from 26 June 2020, [the child] was to be recorded as in the 84% care of Mrs McSorley and the 16% care of Mr Skillern.

3. Mrs McSorley applied to the tribunal for review of that objection. At the hearing on 2 March 2021 the tribunal heard sworn evidence by conference telephone call from Mr Skillern and Mrs McSorley and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1).

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for [the child]. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) of the Act provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child. In doing so, the tribunal will look to the overnight care which each parent has for [the child].

2. Mr Skillern stated that he was entitled to court-ordered care for [the child] of two nights each fortnight and he did not, therefore, have to demonstrate a pattern of care. He also stated that he disagreed with the earlier decision recording him as having only one night of care per fortnight (7%) from November 2019. The tribunal does not have jurisdiction to re-consider the November 2019 care change. The tribunal further notes that the court orders provide that the parents may agree to changed care arrangements and will therefore consider the actual care taking place for [the child] insofar as they impact the relevant cost percentages in the child support case.

3. Mr Skillern stated that, from 26 June 2020, [the child] was staying with him for two nights each fortnight and for some additional special days each year. He stated that the decision under review was correct and that he had about 16% care of [the child] from 26 June 2020.

4. Mrs McSorley accepted that the general pattern was for Mr Skillern to have two nights fortnightly care of [the child]. However, she also stated that [the child] had a job working at a [workplace] and, when he worked, he stayed at her home instead of with Mr Skillern on some of the nights when he would ordinarily be in the care of Mr Skillern. Mrs McSorley also stated that Mr Skillern did not always have [the child] in his regularly scheduled fortnightly care due to [the child]’s other ad-hoc plans. She stated that when Mr Skillern could not have his regular care, she would instead have care of [the child].

5. Mrs McSorley gave sworn evidence that the instances of [the child] staying with her instead of with Mr Skillern would occur, on average, on one fortnight out of every four, and she provided a few dates when she had recorded that this had occurred. Mr Skillern gave similar evidence of missed care days, although the parents did not identify the same dates.

6. Prior to 26 June 2020 Mr Skillern wrote a letter to Mrs McSorley in which he asked her to agree to a change in care (from November 2019) such that [the child] be recorded in his care for two nights each fortnight even if [the child] did not always stay in his overnight care for two nights each fortnight. The effect of the letter was to acknowledge that [the child] did not always stay with Mr Skillern on nights that he was working, but to request that Mrs McSorley agree to the change in care whether or not [the child] was actually in his overnight care or with Mrs McSorley for some of those nights. Mrs McSorley stated that she did not agree to Mr Skillern’s request. The tribunal considers that this letter is consistent with the evidence of Mrs McSorley that [the child] did not always stay with Mr Skillern, particularly after [the child] had been at work.

10.  Based on the available evidence, the pattern of care of [the child] by Mr Skillern, from June 2020, was somewhat changeable, but ordinarily amounted to two nights of care per fortnight for about three fortnights out of every four, or about 6 nights every 56 days (10.7%). Mr Skillern stated that, sometimes, only one of the nights of care in the fortnight was missed. This would lead to a pattern of 7 nights every 56 days (12.5%). Mr Skillern also stated that he sometimes had additional days of care of [the child]. However, even with ad hoc additional days rounding this up (instead of rounding down, as ordinarily provided for in the Act) this would not amount to more than 13% care of [the child] by Mr Skillern. The tribunal is therefore unable to determine a pattern with precision, but finds that, from 26 June 2020, Mr Skillern’s care for [the child] was no more than 13%, with the balance of the care by Mrs McSorley.

11.  The tribunal notes that up to 13% care of [the child] is higher than the previously recorded percentage of care for [the child] by Mr Skillern of 7%. The tribunal notes that Mr Skillern cost percentage in the child support case would not change unless he was having at least 14% care of [the child]. As the cost percentage in the child support case is not altered it is not necessary to make a new care determination from the previously recorded care for [the child] of 7% to Mr Skillern and 93% to Mrs McSorley (see section 54F of the Act). Further, as the tribunal has not found a clear change to the pattern of care for [the child] it is not appropriate to record any change in care percentages under section 54H of the Act.

12.  The objections officer reached a different view, but the tribunal has determined that there is no proper basis to record a change in care in the child support care for [the child]. As the tribunal has reached a different conclusion from that in the decision under review, that decision is set aside and a decision substituted that, from 26 June 2020, there be no change in care recorded for [the child].

DECISION

The tribunal sets aside the decision under review and substitutes a decision that, from 26 June 2020, no change in care is to be recorded for [the child].