Mulberry and Skilvier (Child support)

Mulberry and Skilvier (Child support) [2018] AATA 4520 (13 November 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/SC015112
APPLICANT:  Ms Mulberry
OTHER PARTIES:  Child Support Registrar
Mr Skilvier

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 13 November 2018
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Mulberry provides 61 per cent care and Mr Skilvier provides 39 per cent care of [Child 1] and [Child 2] from 28 February 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether the likely pattern of care changed – interpretation of court order – existing percentage of care revoked – a new determination of percentage of care made – 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

This review is about a change to the percentage of care determination for Ms Mulberry and Mr Skilvier in respect of the children [Child 1] and [Child 2].
Ms Mulberry and Mr Skilvier are the parents of [Child 1] (born February 2011) and [Child 2] (born September 2014) and Mr Skilvier is the parent liable to pay child support under the assessment.
From 24 February 2017, the child support assessment reflected Ms Mulberry having 72 per cent care and Mr Skilvier having 28 per cent care of [Child 1] and [Child 2].
On 28 February 2018, Mr Skilvier advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that from 28 February 2018 he provides 40 per cent care and Ms Mulberry provides 60 per cent care of [Child 1] and [Child 2].
On 16 June 2018, the Child Support Agency made the decision to refuse the change of care as advised by Mr Skilvier.
On 26 June 2018, Mr Skilvier objected to this decision and on 30 August 2018 the Child Support Agency allowed the objection and made the decision to reflect that Ms Mulberry provides 60 per cent care and Mr Skilvier provides 40 per cent care of [Child 1] and [Child 2] from 28 February 2018 (the objection decision).
On 26 September 2018, Ms Mulberry applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 13 November 2018. Ms Mulberry and Mr Skilvier gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (169 pages).

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
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.
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 the likely care is thereafter.
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.
The issues which arise in this case are:
· has there been a change in the pattern of care for [Child 1] and [Child 2] 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 determinations take effect?

CONSIDERATION

Ms Mulberry told the Tribunal that care of the children was based on existing court orders which both parents were following. Ms Mulberry said she did not dispute that care of the children had changed on 28 February 2018 but she did disagree with the way in which the Child Support Agency had calculated care according to these court orders.
Ms Mulberry said as a result of errors in these calculations actual care to Mr Skilvier should be 35 per cent and not the 40 per cent as calculated by the Child Support Agency.
Ms Mulberry said there were three reasons why she believed the Child Support Agency had miscalculated care. These were:

an incorrect allocation of school holiday dates by using the [State 1] Western Division school term dates instead of the Eastern Division school term dates;
a mistake in allocating the five-day care period for Mr Skilvier twice in one fortnight; and
an incorrect interpretation of the court orders in relation to the suspension of care during school holidays.

Ms Mulberry said according to the court orders, from 28 February 2018 Mr Skilvier has care for five nights every second week during school term and half the school holidays. Ms Mulberry said she agreed Mr Skilvier would have care of eight nights during each holiday period at the end of term one, term two and term three. She said the summer holiday period should be calculated using the Eastern Division holiday dates, which ended one week earlier than the Western Division holiday dates. Ms Mulberry said the Eastern Division holiday dates were from 22 December 2018 to 28 January 2019.
Ms Mulberry said that Mr Skilvier’s fortnightly care commenced on 1 March 2018 and they had agreed this would be allocated every two weeks regardless of holidays or other events. Ms Mulberry said she believed the Child Support Agency had counted five nights of care in two consecutive weeks which artificially inflated the amount of care Mr Skilvier has each year.
Ms Mulberry said the Child Support Agency had incorrectly assigned a period of care for Mr Skilvier to start from 3 May 2018 and then continued to incorrectly assign fortnightly periods, which were independent of actual care dates during 2018.
Ms Mulberry told the Tribunal she believed the Child Support Agency had not correctly interpreted the court orders which suspended Mr Skilvier’s fortnightly care during school holiday periods. Ms Mulberry explained that according to her interpretation, suspension of his fortnightly time with the children should occur during the holiday period as the court orders replaced this time with the allocation of half the holidays. She said by interpreting the court orders in this way she was trying to minimise any disruption and confusion to the children during the holiday period.
Ms Mulberry said she had used the Child Support Agency care estimator to calculate the care percentage Mr Skilvier had of the children and provided the calendar as evidence. Ms Mulberry said based on her calculations Mr Skilvier has care of 130 nights or 35 per cent.
Mr Skilvier told the Tribunal he agreed the parents were following the court orders in relation to care of [Child 1] and [Child 2]. He said there were no other agreements in relation to care of the children and he disagreed with the way Ms Mulberry had interpreted the court orders.
Mr Skilvier explained that [Child 1] attended [School 1] and care for both children was based on his movements. Mr Skilvier said he had care of both children for five nights per fortnight and half the school holidays even though [Child 2] was not yet at school.
Mr Skilvier confirmed to the Tribunal his holiday care commenced in the first week of the April and July school holidays. He said according to his interpretation of the court orders any fortnightly care he had of the children immediately before or after the school holidays should not be suspended. He said while [Child 1] was at school his care should not be suspended, however, Ms Mulberry was having additional care during school time, which she was not entitled to. Mr Skilvier said he was adhering to the court orders to the letter and felt Ms Mulberry was interpreting the court orders to suit herself even though she understood this was not correct.
Mr Skilvier said he did not agree that the Child Support Agency had double counted his care in May. He added that the calendar Ms Mulberry had prepared using the Child Support Agency care estimator was incorrect as she had skewed the care according to her interpretation of the court orders. He said this had created a false result.
Mr Skilvier added that even if Ms Mulberry was correct in relation to the summer school holiday dates this would only slightly reduce his care as calculated by the Child Support Agency. Mr Skilvier said he believed his care of [Child 1] and [Child 2], according to care set out in the court orders, was 40 per cent.
The Tribunal reviewed the court orders provided in evidence which were issued by the Federal Circuit Court of Australia on [date] April 2017. These state that Mr Skilvier has care as follows:
·     each alternate weekend from after school/preschool on Thursday until Tuesday from 28 February 2018;
·     from 24 December to 25 December each alternate year commencing in 2018;
·     from 25 December to 26 December each alternate year commencing in 2019;
·     on Saturday night on the weekend of Father’s Day; and
·     for half the school holidays commencing from the end of term one with care during this time in the first half of the holidays in even numbered years and the second half in odd numbered years.
In relation to Mr Skilvier’s care during school term, the court orders state this care, “is suspended during school holidays from and including the school holidays at the end of Term 3 in 2017 and continues thereafter in the same pattern.”
The Tribunal contacted [School 1] to confirm school term dates. The school year commenced on 31 January 2018 for students and will end on 19 December 2018 with school holidays running from 20 December 2018 until the start of the new school year on 30 January 2019. Mr Skilvier reiterated to the Tribunal this should only reduce his care slightly.
As both Ms Mulberry and Mr Skilvier agree that care changed on 28 February 2018 and the court orders are being followed, albeit interpreted differently, the Tribunal calculated care as follows:
·     there are 276 nights of school term at [School 1] during a full year starting from 28 February 2018. As care is suspended during school holidays, meaning it temporarily stops and then resumes when school commences again, the Tribunal calculates that Mr Skilvier has care of 98 nights (five nights a fortnight during each term);
·     the parents agree that Mr Skilvier has care of eight nights during the school holidays at the end of term one, term two and term three, which equals care of 24 nights;
·     the longer, end of year school holidays at [School 1] run from 20 December 2018 until 29 January 2019, which is 41 nights. Mr Skilvier has care for half the school holidays which means he has care of 20 nights during this period;
·     Father’s Day fell on 2 September 2018 and Mr Skilvier has an additional Saturday night; and
·     Mr Skilvier would ordinarily have an additional night of care on 24 December 2018, however, this will fall during his end of year holiday care in 2018.
The Tribunal finds that, according to the court orders, Mr Skilvier has care of [Child 1] and [Child 2] totalling 143 nights or 39 per cent and Ms Mulberry has 61 per cent care.
The Tribunal acknowledges that actual care of the children may differ slightly due to the differences in interpretation of the court orders. The Tribunal does not consider that minor departures from the normal care set out under the court orders constitutes a change to the pattern of care.
Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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 determination must be revoked and replaced by a new percentage of care determination.
As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the pattern of care that took place.

New care percentage decision

Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Ms Mulberry and Mr Skilvier under section 50 of the Act.
For the reasons outlined above, the Tribunal finds that Ms Mulberry provides 61 per cent care and Mr Skilvier provides 39 per cent care of [Child 1] and [Child 2] from 28 February 2018.

Date of effect of new care percentage decision

Mr Skilvier notified the Child Support Agency of the change in care on 28 February 2018, which is less than 28 days after the change occurred on the same date. Therefore, according to section 54F of the Act, the date of effect is the date when the change in care took place.
The new determination can be made from 28 February 2018.

DECISION

[2018] AATA 4520

13 November 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Judicial Review

Remedies