Pardoe and Pardoe (Child support)

[2023] AATA 4302

Pardoe and Pardoe (Child support) [2023] AATA 4302 (16 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2023/BC026199 and BC026216

APPLICANT:  Ms Pardoe

OTHER PARTIES:  Child Support Registrar

Mr Pardoe

TRIBUNAL:Member M Sutherland

DECISION DATE:  16 November 2023

DECISION:

The decisions under review are 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 – decisions 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 Ms Pardoe and Mr Pardoe (the parents) for [Child 1] and [Child 2] (the boys) born [in] January 2006.

2. There has been a child support assessment in force since May 2020. Both parents agreed that the percentage of care would be 65% to Ms Pardoe and 35% to Mr Pardoe from 12 July 2021. On 13 July 2021 Services Australia - Child Support (Child Support) made the decision to reflect these percentages of care. Mr Pardoe was the parent liable to pay child support under the assessment.

3. On 7 March 2023 Ms Pardoe objected to this decision saying she should have 98% care and Mr Pardoe 2% care of the boys. On 31 May 2023 Child Support disallowed the objection and determined that the assessment remained at 65% to Ms Pardoe and 35% to Mr Pardoe.

4. On 10 June 2023 Ms Pardoe applied to the Tribunal for a review of the objection decision. The Tribunal commenced the hearing on 7 November 2023, it was adjourned until 16 November 2023. Both parents gave evidence on affirmation by conference telephone. Child Support provided the Tribunal and the parties with the hearing papers relevant to the matter; Ms Pardoe provided further documentation A1–15 and Mr Pardoe provided documentation B1–2.

THE LEGISLATION

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. A care percentage determination made by Child Support continues in effect unless and until it is revoked.

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. Upon revocation, a new care percentage determination must be made. Usually, 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, or is likely to have, during a care period (sections 49 and 50 of the Act). In other words, Child Support 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.

6. The child support law regulates the date when a care determination will be revoked, and when a change to a care determination will affect a child support assessment in circumstances where there has been a delay in seeking review of a care determination decision.

ISSUES

1. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for the boys 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 take effect?

CONSIDERATION

The evidence of the parties

1. Ms Pardoe said that:

   ·      Following separation in May 2020 it was agreed that she and Mr Pardoe would pay 50% of the boys private [College 1] fees (the college), the boys are boarders, and registration for [Child 1’s] [sport] registration costs, regardless of the earnings for either party. This arrangement has remained.

   ·      She does not agree the care percentage for Mr Pardoe should remain at 35% as she has been and is the primary carer for the boys. On 7 March 2023 she received assessments from Child Support advising that Mr Pardoe’s income had been reduced to $0 from 6 March 2023. She works as a part-time [occupation 1] and as a result, she was advised that she had to pay child support to him based on his care of 35%. She received 3 assessments from March 2023. She had also received information that Mr Pardoe was still working for cash, he reported some of his earnings on 27 June 2023.

   ·      Mr Pardoe has over the years provided little if any emotional support to the boys and does not see them often. He never offered to have them on weekends or in the holidays. The boys have suffered emotionally.

   ·      After separation Mr Pardoe was living in a one-bedroom unit in [Town 1], in early 2022 he bought a 2-bedroom unit in [Town 2]. She moved onto her parents’ acreage after the family home was sold to provide some stability for the boys and to have her father around as a male influence. There is plenty of living space there. The boys told her on a number of occasions that it was difficult to stay at their father’s due to the sleeping arrangements, in addition there was not much for them to do there.

   ·      The boys attend boarding school for 260 days per year; they are on holidays 105 days per year. She has made the boys’ wellbeing her priority; she is the full time decision maker and the contact with the school. Because of this commitment she was and is often required to take personal and annual leave from her employment. She very rarely asks Mr Pardoe for help and on a few occasions when she has, he has said he was going to be on holidays or was not available.

   ·      Although she and Mr Pardoe agreed to pay 50/50 of the boarding school costs Mr Pardoe’s role has been very minimal over the past few years and 65/35% care does not reflect what is happening. Her care percentage should be 260 nights (boarding school time) and 95 nights (holidays), which equates to 355 nights per year and/or 98% care. During the school holidays, Mr Pardoe would provide a maximum of 10 nights of care. (See Ms Pardoe’s statement provided on page A2–6).

   ·      Ms Pardoe does not believe that the nights of care that Mr Pardoe has provided in his written response (B1–2) are accurate, on a number of occasions the boys did not stay with him overnight but only spent time with him during the day.

   ·      After hearing Mr Pardoe’s evidence on him paying arrears in child support during May and June 2023 she said that this was not her main focus but rather the care percentages reflected on 6 March 2023, which are incorrect and should be rectified. The percentage of care should be based on actual nights of care.

2. Ms Pardoe has provided:

   ·      A schedule showing the nights of care provided by Mr Pardoe for the boys in 2023, which she says is 10% to Mr Pardoe and 90% to her, see page A5 and 6

   ·      An overnight leave report from the college for the boys dated [in] June 2023 for the period 7 February 2020 to 3 June 2023, see page A7 of the hearing papers.

   ·      Third party statements from [named couple], her parents, and from [Ms A] and [Ms B], stating that Ms Pardoe is the primary carer for the boys; and from [Ms C] as to Ms Pardoe’s good character: see pages A13, 14,15.

3. Mr Pardoe said that:

   ·      He generally works as [an occupation 2]. He was laid off work in early March 2023 and only started to get periodic work in May 2023. He was off work for some 6 weeks. When he reported $0 income to Child Support in March 2023 it generated assessments showing  that Ms Pardoe had to pay him child support of some $340 per month. He has never received this money nor does he want or expect to receive it. When he started work again in May 2023 he reported to Child Support and estimated his income. Child Support assessed him as the person liable to pay child support. He made some back payments in May and June 2023, his tax credit was also taken, and the amount that Ms Pardoe has said was owing to him were factored into his back payments. It took some 3 months to correct his child support payments; he now pays $926 pm.

   ·      From January to October 2023 he provided 26 nights of care for [Child 2] and 24 nights for [Child 1]. He accepts that the boys generally stayed with Ms Pardoe but:

   o   He is contributing half the tuition and boarding costs for the boys and is regularly asked by the boys to provide money for food or fuel when they are at school and other incidentals. He has also been available to take phone calls from the school and arrange to pick the boys up for medical appointments or due to illness and has brought them back to his home. They have a key to his unit and can go there whenever they want to. His commitment to the boys has never wavered.

   o   When they decided to send the boys to the college it was agreed that Ms Pardoe would be registered as “the host” for the family, only one person is allowed. Despite this he receives all leave requests and approves this as necessary. While the college leave log has Ms Pardoe shown as the host for almost all leave, it does not necessarily mean the boys were in her care. Some of the leave descriptions stating ‘going home’ are misleading, the boys on occasions went to other day students’ houses in Brisbane. They were not in either parents' care. From 18 April to 16 June 2023 both boys had [sport] commitments on Saturday mornings and both would remain at school on the Friday night and would occasionally head home Saturday afternoon or go to a friend’s in Brisbane.

   ·      Until recently [Child 1] had a girlfriend and spent some weekends at her parents' place.

   ·      For 2 weeks in July and August 2023, he was away on a holiday which was planned 6 months prior; he does not go on regular holidays nor make himself unavailable to see or assist with the boys.

   ·      Mr Pardoe provided a written response to Ms Pardoe’s submissions see B1–2.

4. Persons who provide ongoing daily care for children should be able to have the level of financial support to be provided readily determined without the need to resort to court proceedings, see paragraph 4(2)(c) of the Act. While the Act does not define the term ‘ongoing daily care’, Child Support will take into account a number of factors in determining whether a person cares for a child in a particular case. These include:

   ·      To what extent the person has control of the child, including having overall responsibility for the child and making major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and arrangement for others to meet the needs of the child (delegated care).

   ·      To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

   ·      To what extent the person pays for the costs of meeting the needs of the child.

   ·      To what extent the person otherwise provides financial support for the child.

   ·      To what extent the child provides for their own needs or has those needs met from another source.

   ·      To what extent the child is financially independent or financially supported from another source.

5. In most cases, it will be relatively clear whether and to what extent a person is caring for a child; however, where there is doubt the Tribunal will consider whatever is relevant to the particular case. Consideration will be given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. Consideration is also given to evidence from both parents.

6. There is no dispute that:

   ·      The boys are boarders at the college, and the costs are shared equally between the parents. Ms Pardoe has said that there are 260 boarding school nights. 260/365 nights= 71%. Mr Pardoe pays half the school fees = 130 nights = 35%.

   ·      When the boys are on school holiday they spend most of their time with Ms Pardoe. Mr Pardoe has said that he has about 25 nights of care a year; Ms Pardoe disputes this.

7. It was apparent from Ms Pardoe’s evidence that the application for a change in care was triggered due to Child Support assessing that she had to pay child support to Mr Pardoe from the time that he was out of work from 6 March 2023.

8. The Tribunal finds that Mr Pardoe:

   ·      does not lose or have decreased care for the nights when the boys are at boarding school. He pays half the boarding school fees and he is allocated 130 nights of care or 35% care.

   ·      does not have a regular pattern of care during the school holidays and has  0 nights of care.

9. The Tribunal is not satisfied that a new pattern of care was established from 6 March 2023 . The existing percentage of care must not be revoked and remains at 65% for Ms Pardoe and 35% to Mr Pardoe.

10. It would be inequitable for Mr Pardoe to have to pay half of the college fees and in addition be required to pay child support at the rate of 100%.

DECISION

The decisions under review are affirmed.