Nevat and Tomlyn (Child support)

[2022] AATA 3968

Nevat and Tomlyn (Child support) [2022] AATA 3968 (2 September 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBERS:  2022/BC024022 & 2022/BC024099

APPLICANT:  Mr Nevat

OTHER PARTIES:  Ms Tomlyn

Child Support Registrar

TRIBUNAL:  Member J Nalpantidis

DECISION DATE:  2 September 2022

DECISION:

The tribunal affirms the decisions under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decisions 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. Mr Nevat and Ms Tomlyn are the separated parents of a child aged 14 years (the child). This review is about the percentages of care of the child for Mr Nevat and Ms Tomlyn and the date of effect of the change in percentages of care.

2. Records maintained by Services Australia (the Agency) show that Mr Nevat and Ms Tomlyn have had a registered child support assessment for the child since 7 January 2009.  Prior to the Agency decision under review (dated 26 September 2012), the care for the child was reflected as 261 nights (72%) to Ms Tomlyn and 104 nights (28%) to Mr Nevat from 29 June 2009.

3. On 26 September 2012, the Agency made the decision to reflect the care of the child as 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat, from 25 September 2012.

4. On 25 January 2022 Mr Nevat advised of a care change, stating that from 5 December 2021 he had care of the child for 365 nights (100%) and Ms Tomlyn had care for 0 nights (0%).

5. On 4 February 2022, Ms Tomlyn advised that she had care of the child for 2 nights per fortnight from 5 December 2021.

6. The Agency subsequently requested further evidence from the parties, with no response.  On 30 March 2022, the Agency made the decision to reflect the care of the child as 0 nights (0%) to Ms Tomlyn and 365 nights (100%) to Mr Nevat, from 5 December 2021.

7. On 5 April 2022, Mr Nevat objected to the decision (of 30 March 2022) (Review No. 2022/BC024099), advising he had primary care of the child, on average, 5 nights per week, since the first lockdown in Queensland, which occurred on 2 April 2020.  Mr Nevat also advised that as of 8 months ago, the child has lived with him full time, 7 nights a week.  Mr Nevat subsequently provided third party statements from a family member and friend about the child’s care.  The third party family member stated that Mr Nevat had provided full time care of the child since March 2019 and the third party friend stated that Mr Nevat had provided primary care of [Child 1] for 5 nights a week since the pandemic began.

8. On 16 May 2022, Ms Tomlyn advised that the child’s birthday is [in] December and after December 2021, the child went to stay with Mr Nevat for 5 nights each week. Ms Tomlyn advised that the child stays with her a couple of nights a week with no set pattern.

9. On 1 June 2022 an objections officer of the Agency disallowed Mr Nevat’s objection.  Based on the verbal statements from Ms Tomlyn and Mr Nevat, the objections officer was satisfied Mr Nevat has greater than primary care of the child (313 - 365 nights) and that the first date of agreement for the change to the pattern of care for Mr Nevat was 5 December 2021.  On review the Agency made the decision to reflect the care of the child as 365 nights (100%) to Mr Nevat, and 0 nights (0%) to Ms Tomlyn from 5 December 2021.

10. On 5 April 2022, Mr Nevat objected to the decision of 26 September 2012 (Review No. 2022/BC024022), advising the Agency that he had just became aware of the care recorded on the child support assessment, and that he has had care of the child on average 3 nights per week. Mr Nevat advised the Agency that from 2012, he had care of the child on weekends and regular holidays, and he would have at least 30% care of the child.  Mr Nevat advised that his care of the child has never reduced to 0%. Mr Nevat subsequently provided third party statements supporting his claim that he had shared care of the child. 

11. On 16 May 2022, Ms Tomlyn advised that from 2012, Mr Nevat had limited care of the child in no particular pattern; he would have him on the weekends, but sometimes the child stayed with his paternal grandfather for holidays, and this was not under the care of Mr Nevat. Ms Tomlyn advised she did not retain a record of care for that period but would estimate the care to be on average every second weekend for 2 nights.

12. On 1 June 2022 an objections officer of the Agency decided to disallow Mr Nevat’s objection to the decision made on 26 September 2012.  The objections officer considered the verbal statements of both parents and the third party statements provided by Mr Nevat and was unable to accurately calculate the care arrangements from 2012. Based on the verbal statement from Ms Tomlyn and third party statements provided by Mr Nevat, the objections officer accepted Mr Nevat did have care of the child from 2012 on some weekends.  The objections officer was satisfied the care recorded in 2012 was below regular care (0% to 14%) and decided to reflect the care of the child as 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat from 25 September 2012.

13. On 6 June 2022 Mr Nevat applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for independent review. Ms Tomlyn was added as a party to the proceeding as her interests are affected by the decision under review.

14. The tribunal conducted a hearing on 2 September 2022. The tribunal commenced the hearing at the scheduled time (being 1.00 pm EST) by MS Teams audio and contacted the parties on the advised contact numbers. Mr Nevat responded to the tribunal’s call.  The tribunal attempted a number of times to contact Ms Tomlyn and there was no response.  At 1.35 pm EST, the tribunal proceeded with the hearing by MS Teams audio, with Mr Nevat present but not Ms Tomlyn.  Mr Nevat gave oral evidence and made oral submissions on affirmation.

15. The tribunal had before it documents that included supplementary documents provided by the Registrar (numbered 1 to 399 in relation to Review No. 2022/BC024022 and 1 to 399 in relation to Review No. 2022/BC024099). Copies of all of the documents were provided to Mr Nevat and Ms Tomlyn. 

ISSUES

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

2. The issues which arise in this case are:

   ·      Has there been a change in the care of the child? And, if so

   ·      Does a new care percentage determination apply? And, if so

   ·      From what date does the new care percentage apply?

CONSIDERATION

Issue 1 – Has there been a change in the care of the child?

1. The legislation establishes a system for the assessment of the rate of child support payable in a child support case. In the majority of cases a statutory formula is applied. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable. A parent’s percentage of care is determined under sections 49 and 50 of the Assessment Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child. Sections 49 and 50 of the Assessment Act require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions, it is necessary to determine whether the existing care percentage determination can be revoked.

2. In specified situations, where a care arrangement applies in relation to a child but is not complied with, the legislation provides for a percentage of care determination to be made for an interim period based on the extent of care that a person has, or is to have, under the care arrangement. “Care arrangement” is defined in subsection 5(1) of the Assessment Act.

3. The tribunal finds that Mr Nevat and Ms Tomlyn are the separated parents of the child. The Agency’s records show that the percentages of care were determined based on the actual care for the child by Mr Nevat and Ms Tomlyn.  Records maintained by the Agency show that Mr Nevat and Ms Tomlyn have had a registered child support assessment for the child since 7 January 2009.  Prior to the Agency decisions under review (dated 12 September 2012 and 30 March 2022), the care for the child was reflected as the pre-existing care percentage recorded for the child, being 261 nights (72%) to Ms Tomlyn and 104 nights (28%) to Mr Nevat from 29 June 2009.

4. On 26 September 2012, based on updated information, the Agency made the decision to record the care percentage for the child at 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat from 25 September 2012.  The parties were advised of this decision by letter dated 26 September 2012. Subsequently the parties were sent numerous letters which continued to reflect the care percentage for the child at 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat from 25 September 2012.

5. There is no dispute Mr Nevat contacted the Agency on 25 January 2022 and advised he had 100% care of the child and Ms Tomlyn had care of 0 nights (0%) from 5 December 2021.

6. The Agency material shows that on 4 February 2022, Ms Tomlyn advised she had 2 nights per fortnight care of the child from 5 December 2021.  The Agency attempted to contact Ms Tomlyn and Mr Nevat to request further evidence.  No further evidence was provided.  On 30 March 2022, the Agency decided to reflect the care of the child as 0 nights (0%) to Ms Tomlyn and 365 nights (100%) to Mr Nevat from 5 December 2021. 

7. On 5 April 2022, Mr Nevat objected to this decision on the basis that he had primary care of the child on average 5 nights per week, since the first COVID-19 lockdown in Queensland, which occurred on 2 April 2020.  Mr Nevat also stated that as of 8 months ago, the child has lived with him full time, 7 nights a week.  In support of his claim, Mr Nevat provided a statement from a third party family member about the care of the child, advising Mr Nevat had provided full time care of the child since March 2019.  On 27 April 2022, Mr Nevat provided a statement from a third party friend about the care of the child, advising Mr Nevat had provided primary care of the child for 5 nights a week since the COVID-19 pandemic began. 

8. The Agency material shows that on 16 May 2022, Ms Tomlyn advised that the child’s birthday is [in] December and after December 2021, the child went to stay with Mr Nevat for 5 nights each week. Ms Tomlyn advised that the child stays with her a couple of nights a week with no set pattern. 

9. No further evidence was provided by Ms Tomlyn to support her statements that she had care of the child for 2 nights a fortnight from December 2021.

10. Based on the verbal statements from Ms Tomlyn and Mr Nevat, the Agency accepted Mr Nevat has greater than primary care of the child (313 - 365 nights) and that the first date of agreement for the change to the pattern of care was 5 December 2021. Therefore, the Agency decided to reflect the care of the child as 365 nights (100%) to Mr Nevat and 0 nights (0%) to Ms Tomlyn, from 5 December 2021.

11. On 5 April 2022 Mr Nevat also objected to the earlier decision of 26 September 2012 that the care of the child was 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat.  The Agency material shows Mr Nevat advised he had just become aware of the care recorded on the child support assessment and he advised he has had care of the child on average 3 nights per week, including weekends and regular holidays.  Mr Nevat advised he would have had at least 30% care of the child since 2012 and his care of the child was never reduced to 0%.

12. The Agency material shows that on 16 May 2022, Ms Tomlyn advised that from 2012, Mr Nevat had limited care of the child in no particular pattern.  She stated Mr Nevat would have care of the child on the weekends sometimes, and the child stayed with his paternal grandfather for holidays although this was not under the care of Mr Nevat. Ms Tomlyn advised she did not retain a record of care for that period but estimated Mr Nevat’s care of the child to be on average every second weekend for 2 nights.

13. Based on the verbal statements from both parents, the Agency accepted Mr Nevat had care of the child from 2012 on some weekends.  On the available evidence, including third party statements provided by Mr Nevat, the Agency was unable to accurately calculate the care arrangements from 2012.  The Agency accepted Mr Nevat’s care of the child as recorded in 2012 was below regular care (0%- 14%) and decided to reflect the care of the child as 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat from 25 September 2012.

14. Mr Nevat told the tribunal that for reasons unknown to him, 100% care of the child was recorded to Ms Tomlyn, but this was not the case.  He told the tribunal he always had access to the child, including being his [sports] coach in 2013.  Mr Nevat told the tribunal he is a [Occupation 1] and works awkward hours, but he estimated that he would have had care of the child at least 2 nights per week and it was never "0" nights.

15. Mr Nevat noted the objections officer letter referred to a third party family member statement Mr Nevat provided on 21 April 2020 stating he had care of the child full time since March 2019, but this is not correct; it should have stated March 2020, and this may have created some confusion.  Mr Nevat stated that there was an agreement with Ms Tomlyn that the child would be in his care for 5 nights per week and in Ms Tomlyn’s care for 2 nights per week.  Nevertheless, he actually had care of the child from September 2021, which is when he asked Ms Tomlyn for the child’s birth certificate so he could claim family tax benefit.

16. Mr Nevat acknowledged he contacted the Agency about a change in care on 25 January 2022.  He had a private arrangement in place to pay $75 per week in child support to Ms Tomlyn and it was not apparent the Agency had assessed care of the child as 100% to Ms Tomlyn.  He did not claim any payments for the child and had no interest in checking the child support assessment.  He simply did not notice that Ms Tomlyn claimed 100% care of the child from September 2012 (until January 2022).  He said that he is “not great with things like this and has never been through this before”.  He submitted a lie was told in 2012 and there was no supporting evidence provided to support that Ms Tomlyn had 100% care of the child. 

17. Mr Nevat told the tribunal he does not recall the Agency letters sent to him from 2012.  He told the tribunal he became aware that Ms Tomlyn claimed 100% care of the child 3 years ago, but he did not contact the Agency because he “tried to keep the peace for the child’s sake”. He has now cut off all contact with Ms Tomlyn and last spoke to her on 9 September 2021 when he asked for the child’s birth certificate.  Mr Nevat noted Ms Tomlyn agreed in December 2021 that he had care of the child.

18. Mr Nevat told the tribunal he was not comfortable that the Agency records show he had no care of the child from September 2012, and he seeks to have this backdated beyond the recorded care that has now been updated.

19. The tribunal examined the Agency records which show that 100% care was recorded to Ms Tomlyn from 25 September 2012.  Mr Nevat contacted the Agency on 25 January 2022 to notify that he had 100% care of the child from 5 December 2021.  This notification was accepted by the Agency and recorded care of the child was changed to 100% to Mr Nevat from 5 December 2021. 

20. Subsequently, on 5 April 2022 Mr Nevat objected to the decision to apply the 100% care assessment from 5 December 2021, seeking that an increase in care be applied from an earlier date.  On 5 April 2022 Mr Nevat also objected to the decision to record 100% care of the child to Ms Tomlyn from 25 September 2012.

21. From the evidence presented by Mr Nevat and the evidence included in the Agency material, the tribunal accepts that Mr Nevat had some care of the child from 2012, including on some weekends and school holidays.  However, based on the available evidence, the tribunal is unable to accurately calculate the care arrangements from 2012 and is unable to conclude that Mr Nevat had more than regular care (0% to 14%), as assessed by the Agency.  Accordingly, on balance it is satisfied the Agency correctly decided to reflect the care of the child as 365 nights (100%) to Ms Tomlyn and 0 nights (0%) to Mr Nevat from 25 September 2012.

22. In relation to the more recent period, while there is some difference in the evidence provided by Ms Tomlyn and that provided by Mr Nevat, there is agreement that there was a change in the pattern of child’s care from 5 December 2021.  On balance the tribunal accepts that Mr Nevat has greater than primary care of the child (313 - 365 nights) from 5 December 2021, and therefore the Agency correctly decided to record the care of the child as 100% to Mr Nevat from 5 December 2021.

Issue 2 – Does a new care percentage determination apply?

1. A new percentage of care can be determined whenever the care of a child has changed (sections 54F, 54FA, 54G, 54H and 54HA of the Assessment Act). Effect to future expected care changes cannot occur until either of the parents advise the Registrar that the anticipated change has actually occurred. If neither parent advises the Registrar when the care subsequently changes, a new care percentage determination will not be made. The child support assessment will continue to be based upon the existing care percentage until one or both of the parents advise the Registrar that the actual care has changed and the Registrar is able to make a new care percentage determination.

2. The Registrar can only give effect to a new care percentage determination after revoking the existing care percentage determination (subparagraphs 49(1)(b)(i) and 50(1)(b)(i) of the Assessment Act). The new care percentage determination takes effect the day after the existing determination is revoked. There are several circumstances in which the existing determination can be revoked:

   · where a new care percentage determination would affect the cost percentage (section 54F of the Assessment Act);

   · where, under a new care percentage determination, one of the parties who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other party (section 54G of the Assessment Act); and

   · where a new care percentage determination, if it was to be made, would affect the care percentage (but not the cost percentage) (section 54H of the Assessment Act).

3. In order to make a decision to change the percentage of care for a child, the tribunal must firstly be satisfied that there has been a change to the ongoing pattern of care (sections 49 and 50 of the Assessment Act).

4. When considering whether to make a new care determination, consideration must be given as to whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the event that is relevant to the change must be identified. The event is used to determine the commencement of the care period. It must then be determined the percentage of care that is likely to occur in the care period.  In this case Mr Nevat objected to the original decision in April 2022.  

5. For the reasons outlined, the tribunal has found that there was a change in care of the child from 5 December 2021, such that Mr Nevat changed from having 0% care of the child to 100%. 

Issue 3 – From what date does the new care percentage apply?

1. Paragraphs 54F(3)(a) and 54H(3)(a) of the Assessment Act provide that if the Registrar is notified or otherwise becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred. The parties have an obligation to notify the Registrar of increases or decreases in care. If they fail to comply with that obligation, neither party should benefit from that failure.

2. If the Registrar is not notified or does not otherwise become aware of a change of care within 28 days of the change, and:

   ·      the parent or non-parent carer's care has increased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the Registrar was notified or otherwise became aware of the care change;

   · the parent or non-parent carer's care has decreased, the assessment will be amended using the new care percentage for that parent or non-parent carer from the date the change of care occurred (paragraphs 54F(3)(b) and 54H(3)(b) of the Assessment Act).

3. The tribunal has found the change in care for the child occurred on 5 December 2021 and the Agency was notified of this change in care on 25 January 2022, which is not within 28 days of the change in care.  As the Registrar was notified more than 28 days after the care change, the Registrar correctly amended the assessment with the changed care percentages effective in the assessment from 25 January 2022, which was the date of notification. 

4. As a result of the decision to change the recorded care of the child to Mr Nevat to 365 nights (100%) from 5 December 2021, and this being notified to the Registrar on 25 January 2022 (more than 28 days after the event), Mr Nevat no longer needs to pay child support to Ms Tomlyn for the child from 5 December 2021, because the amount of time the child was in Ms Tomlyn’s care is not enough for her to receive child support from Mr Nevat.  However, the new child support assessment requiring Ms Tomlyn to pay child support applies from 25 January 2021, as this was the notification date. 

DECISION

The tribunal affirms the decisions under review.