Noel and Avery (Child support)

[2019] AATA 5113

Noel and Avery (Child support) [2019] AATA 5113 (5 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016799

APPLICANT:  Mr Noel

OTHER PARTIES:  Child Support Registrar

Ms Avery

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  05 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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. This review is about a change to the percentage of care determinations for Mr Noel and Ms Avery in respect of their child  (born October 2005).  There has been a child support assessment in place since 21 October 2008 and Mr Noel is the liable parent.

2. From 27 October 2018 the child support assessment reflected Mr Noel as having 0 per cent care and Ms Avery as having 100 per cent care of the child (the existing care determinations).

3. On 10 December 2018 Mr Noel notified the Department of Human Services, Child Support (the Child Support Agency) of a change in care, stating he provided 100 per cent care and Ms Avery providing 0 per cent care of the child from 7 December 2018.

4. On 1 March 2019 the Child Support Agency made the decision to reflect that Mr Noel had 100 per cent care of the child and Ms Avery had 0 per cent care from 9 December 2018.

5. On 5 March 2019 Ms Avery objected to this decision and on 17 June 2019 the Child Support Agency allowed the objection and made the decision to refuse a change of care for the child from 9 December 2018 (the objection decision).

6. On 24 June 2019 Mr Noel 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 5 September 2019.  Mr Noel and Ms Avery 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

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. If a new application is made for a parent to be assessed in respect of the costs of a child and the 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 (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for the child 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

1. Mr Noel told the Tribunal that care of his child changed after Ms Avery and the child had an argument and Ms Avery kicked the child out of her car.  He said that was on 7 December 2018.  Mr Noel said the child stayed with him on 7 December 2018, then stayed with a friend for a night before returning to stay with him again from 9 December 2018 until 13 December 2019.  Mr Noel said his mother picked up some clothes for the child from Ms Avery’s home on 11 December 2018 as he was unable to due to a violence restraining order.

2. Mr Noel said by 13 December 2018 the tension between the child and his mother had eased and the child returned to stay with Ms Avery.  Mr Noel said he and the child stayed together at his mother’s home on 20 December 2018 before going on a pre-planned holiday from 21 December 2018 until 12 January 2019.  He said the child then returned to stay with Ms Avery.

3. Mr Noel said it was his belief at the time that the child would remain with him following the change in care although he acknowledged that he did not discuss this with Ms Avery as they did not communicate.  Mr Noel said the child had told him Ms Avery had kicked him out of the family home and asked him to leave his key.  He added that the child’s 30-year-old sibling, Child 2, had also sent him a text message saying that the child was not welcome at home.  Mr Noel said he had provided a copy of this text message to the Child Support Agency.

4. The Tribunal notes in evidence a text message exchange between Mr Noel and Child 2 dated 9 December.[1]  During the exchange Mr Noel states that the child is “getting out of control” and it is best he stays with him “for bit”.  The exchange concludes with Child 2 stating, “At this point he has done nothing but disrespect mum and say some outrageous things to me.  He’s not coming back to the house.”

   [1] The Tribunal accepts the date was 9 December 2018.

5. Ms Avery said she did have an argument with the child on 7 December 2018 because she was trying to discipline him.  Ms Avery said it was just a fight and she knew the child would return to the family home.  She said there was no discussion with Mr Noel about a change in care as she did not talk to Mr Noel at all.  Ms Avery said she was communicating directly with the child after their argument and was happy for him to stay with his father for a few days.  Ms Avery said it was unlikely the child would stay longer as Mr Noel lived in a caravan.

6. Ms Avery agreed that the child stayed with his father from 7 December 2018 until 13 December 2018 with one night at his friend’s house during this time.  She said the child came home for the day on 9 December 2018 and they ate dinner together but he then returned to stay with Mr Noel.  Ms Avery said the child stayed with her from 13 December 2018 until 21 December 2018 and then went on a planned holiday with Mr Noel.  She said the child returned to her care on 12 January 2019 after the holiday and added that the child had taken a similar holiday with Mr Noel the year before.

7. Ms Avery told the Tribunal she did ask the child to return his house key before going to stay with his father as she was concerned about security.  Ms Avery also said she did not dispute that Child 2 had sent a text message to Mr Noel stating that the child was no longer welcome at home but pointed out that was Child 2’s view and not hers.

8. Care of the child was recorded as 100 per cent to Ms Avery up until the time Mr Noel notified of a change in care.  The assessment of a pattern of care is generally conducted over a care period of 12 months.   Care is calculated on the number of nights a child has been, or is likely to be, in the care of a person during this care period (section 54A of the Act).  Minor departures from the normal care of a child will not ordinarily constitute a change to the pattern of care.

9. The parents agree that the child had a disagreement with Ms Avery on 7 December 2018.  There is also agreement that, following this disagreement, the child stayed with Mr Noel for five nights and with a friend for one night between 7 December 2018 and 13 December 2018.  The parents also agree that the child returned to live with Ms Avery from 13 December 2018 until taking a holiday with Mr Noel from 21 December 2018.  There is a dispute, however, about where the child stayed on the night of 20 December 2018.

10. Mr Noel has argued it was not unreasonable for him to consider there had been a change in care following the disagreement between the child and his mother on 7 December 2018, especially given the text message he had received from the child’s sibling.  The Tribunal notes, however, that in the text message exchange with the child’s sibling, Mr Noel stated that the child should stay with him for a bit.  Mr Noel has also told the Tribunal he did not discuss any change of care with Ms Avery.  Ms Avery has pointed out that it was the child’s sibling and not her who sent the text message about the child no longer being welcome at the family home.

11. The Tribunal is not satisfied, based on the evidence provided, there was a change of care for the child following the disagreement between the child and Ms Avery.  The Tribunal is of the view that the five nights the child spent with his father constitutes a temporary disruption to the normal pattern of care.  The Tribunal does not consider such a disruption to the normal pattern of care to be unusual following an argument between a teenage boy and his mother.

12. Both parents also told the Tribunal that the child went on a prearranged holiday with Mr Noel from 21 December 2018 to 12 January 2019, after which the child returned to live with Ms Avery.

13. The Tribunal is not satisfied that a holiday which was planned in advance should be considered as part of a change to the regular pattern of care.  Mr Noel did not have ongoing 100 per cent care of the child after they returned from their vacation.

14. The Tribunal finds that no change in care took place, therefore, the existing care determinations should not be revoked.

DECISION

The decision under review is affirmed.