Peacock and Peacock (Child support)

[2021] AATA 3684

Peacock and Peacock (Child support) [2021] AATA 3684 (3 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021705

APPLICANT:  Ms Peacock

OTHER PARTIES:  Child Support Registrar

Mr Peacock

TRIBUNAL:Member J D'Arcy

DECISION DATE:  3 August 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Peacock is assessed as having 51% care of [the child] and Ms Peacock is assessed as having 49% care of [the child] with effect from 14 September 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations not to be revoked – 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. This review concerns the care percentages used in a child support assessment made by Services Australia (Child Support) for [the child] who is 14 years old and is the son of Ms Peacock and Mr Peacock.

2. On 22 October 2020 Mr Peacock advised Child Support that he had care of [the child] for 10 nights a fortnight with effect from 14 September 2020.

3. On 19 November 2020 orders were made in the Federal Circuit Court under which [the child] was to live with his father and, on alternate weeks, to live with his mother from the conclusion of school or 3pm Thursday until the resumption of school on the following Monday. [The child] was to spend equal time in the school holidays with each parent.

4. Prior to Mr Peacock advising of the change in care, he had been assessed as having 51% care of [the child] and Ms Peacock had been assessed as having 49% care of [the child].

5. On 10 March 2021 Child Support made a decision not to change the care percentages to 72% care of [the child] for Mr Peacock and 28% care of [the child] for Ms Peacock.

6. Mr Peacock objected and on 27 May 2021 Child Support allowed the objection finding that Mr Peacock had 72% care of [the child] and Ms Peacock had 28% of care.

7. Ms Peacock applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal) on 9 June 2021.

8. Child Support provided Mr Peacock, Ms Peacock and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (193 pages).

9. The hearing took place with Ms Peacock and Mr Peacock by telephone on 3 August 2021.

ISSUES

1. The issues which arise in this case are:

   ·      whether there should be a change to the care percentages used in a child support assessment for the period; and, if so,

   ·      what care percentages should be used? And,

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [the child]?

1. Ms Peacock explained that the court orders have never been followed. The court order prior to November 2020 determined that [the child] should live a week about with each parent. The November 2020 court order determined that he should spend four nights a fortnight and one half of the school holidays with her. [The child] made his own decisions about who he lived with and for how long. She described him as “coming and going as he pleased”. There was no pattern of care. The care varied week by week and was dictated by [the child]. The court orders were not enforced by either parent.

2. Ms Peacock stated that she completed the calendars supplied to Child Support on a daily basis, evidenced by the additional information contained in the calendars concerning her work and other arrangements.

3. In response to the tribunal’s query about the dates of 14 to 20 September, 13, 15, 19 and 20 October 2020, when both she and Mr Peacock claimed to have care of [the child], she referred to her calendar stating that she made contemporaneous records of the nights which he spent with her and that he would have stayed with her on those nights. She recalled that on 18 September [the child] attended his cousin’s birthday party and that [the child] remained with her over the period 14 to 20 September 2020.

4. Mr Peacock submitted that [the child] spent Monday to Thursday nights with him and alternate weekends with Ms Peacock, in accordance with the November court orders. Previously [the child] had abided by the earlier court order and was usually spending a week about with each parent.

5. Mr Peacock advised that he did not keep contemporaneous records of the nights that [the child] stayed with him. In November 2020, in his solicitor’s office, he completed calendars for September, October and November using text messages and photographs. When asked about the overlapping dates of 14 to 20 September, 13, 15, 19 and 20 October 2020, Mr Peacock initially stated that [the child] had been staying with him on those dates but later acknowledged that it was “so long ago that he couldn’t remember”.

6. Ms Peacock and Mr Peacock agreed that [the child] was living with his father full-time from 11 April 2021.

Should the existing care determinations be revoked?

1. The law relevant to this review is contained in the Child Support Assessment Act 1989 (the Assessment Act) and the Child Support Assessment (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Section 50 of the Assessment Act requires the decision-maker to consider the actual likely pattern of care by reference to a care period, considered appropriate, having regard to all of the circumstances. The primary decision-maker’s task is to determine the pattern of care based on the actual care at the time of notification and the likely care thereafter.

3. If there is a divergence from what was considered likely to happen, a parent can notify Child Support and a new care determination can be made.

4. The tribunal carefully reviewed all of the evidence provided by Child Support and the oral evidence provided by the parties in the hearing. There appeared to be general agreement that until September 2020 [the child] was moving between his parents’ houses, not  strictly in accordance with any court order, but roughly spending equal time with both parents.

5. Mr Peacock has submitted that from September 2020 a pattern of care emerged, consistent with the November 2020 court orders, whereby [the child] spent 10 nights a fortnight with him and four nights a fortnight with his mother. He relied on the following evidence:

   ·A letter dated 22 March 2021 from [Mr A], solicitor, [Law firm], stating: “We confirm that we were instructed that as of 14 September 2020 Mr Peacock had care of [his oldest child] for ten (10) nights each fortnight.”

   ·A letter from the principal of [the child]’s high school confirming that [the child] resides at (address redacted).

   ·Miscellaneous text messages and photographs.

   ·Calendars for the period September to December in 2020 and for 12 months in 2021.

6. In reviewing Mr Peacock’s evidence, the tribunal gave little weight to his solicitor’s letter as it did not independently corroborate his care of [the child] because it was based on information which Mr Peacock had provided to his solicitor. The letter from [the child]’s school principal provided no information at all.

7. The tribunal did not attribute any weight to the photographs because while they showed [the child] on outings with his father, the photos were undated and they did not indicate how frequently [the child] stayed with his father. The text messages, which were random and not provided in a contextual setting, referred to particular situations and not the overall pattern of care.

8. The calendars carried little weight because they were not completed contemporaneously but rather reconstructed retrospectively; and they did not provide the same degree of reliability as a contemporaneous record of care events. The calendars indicated fixed patterns of care which were inconsistent with Ms Peacock’s more credible evidence that [the child] came and went between his parents as he liked. Mr Peacock acknowledged that he could not recall the events of the week from 14 to 20 September 2020 because it was too long ago. However, he had compiled the calendars for the months of September and October from memory, which casts doubt on the accuracy of the information contained in the calendars.

9. By contrast, the tribunal found that Ms Peacock’s calendars were likely to contain more accurate information because they were completed contemporaneously. The tribunal found that her evidence that [the child] did not feel bound by, nor abide by the court orders, and came and went between his parents as he pleased, was not out of character with a 14-year-old child.

10. The tribunal notes that Ms Peacock’s calendars for the period 14 September 2020 to 31 October 2020 indicated that she had 47% of care which is broadly consistent with the level of care that she was assigned prior to Mr Peacock’s notification of a change in care. 

11. The tribunal found that on the available evidence from September 2020, there was no pattern of care consistent with the November 2020 court orders; and no agreement on what the future care arrangements would be, until a much later change in care in April 2021, which was undisputed by both parties.

12. The tribunal did not consider [the child]’s text messages, in accordance with section 98A of the Registration and Collection Act, which prevents the tribunal from accepting the oral evidence of children.

13. There was insufficient consistent and reliable evidence that there has been a change in Mr Peacock’s percentage of care for [the child] from September 2020.

14. The tribunal decided that the percentages of care, determined prior to Mr Peacock’s notification of a change in care, should not have been revoked.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Peacock is assessed as having 51% care of [the child] and Ms Peacock is assessed as having 49% care of [the child] with effect from 14 September 2020.