Perry and Newnes (Child support)

[2024] AATA 791

Perry and Newnes (Child support) [2024] AATA 791 (1 March 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026882

2023/SC026906

APPLICANT:  Ms Perry

OTHER PARTIES:  Child Support Registrar

Mr Newnes

TRIBUNAL:Member R Prasad

DECISION DATE:  1 March 2024

DECISION:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – date of effect provisions – 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. Ms Perry (the mother) and Mr Newnes (the father) are the parents of two children, born [in] August 2013 and [November] 2018.

2. On 21 March 2023, the mother applied to Services Australia – Child Support (Child Support) for a child support assessment. On 27 April 2023, her application was accepted, and a new child support case was registered by Child Support with the liability commencing from 21 March 2023. Child Support made the decision to record the percentages of care under the assessment as 72% for the mother and 28% for the father from 25 September 2022, effective from 21 March 2023 (the original decision).

3. On 9 May 2023, the father contacted Child Support about the care of the children and advised that he had 48% care and the mother had 52% care since 26 February 2023.

4. On 3 July 2023, Child Support rejected the father’s request for a new care percentage determination as it overlapped the original decision and he advised he was required to object to that decision. On 20 July 2023, the father objected to the original decision.

5. On 26 September 2023, Child Support allowed the father’s objection and decided to reflect that the father had 42% care of the children and the mother had 58% care from 25 September 2022 effective from start date of liability of 21 March 2023, and also decided that there were special circumstances that prevented the father from objecting earlier and therefore the care percentage was applied from 21 March 2023 (the objection decisions).

6. On 9 and 13 October 2023, the mother sought review of the objection decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

7. The matter was heard on 2 February 2024. The mother and father appeared by MS Teams audio. The Child Support Registrar was not represented at the hearing, but provided documentation (folios 1 to 284). After the hearing, I allowed both parties to provide additional information to support their claims. The father provided additional information (folios B1 to B15), but the mother did not provide additional information or a response to the father’s material.

ISSUES

1. The relevant issues before me are to determine the children’s care arrangements when the child support assessment started and the date of effect of the determination.

CONSIDERATION

What is required?

1. Section 68 of the Child Support (Assessment) Act 1989 (the Act) provides that a child support assessment is related to all or some of the days of a single child support period. Section 7A of the Act provides that a child support period starts on the day on which an application for an administrative assessment is properly made.

2. Section 49 of the Act provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.

3. The Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) provides for the date of effect of objections where care percentage decisions are allowed. Section 87AA states that if an objection is lodged more than 28 days after notice of the care percentage decision was given and a decision is made to vary or substitute the original decision, the date of effect of the decision is the day on which the objection is lodged, unless there are special circumstances that prevented the person from lodging the objection in time.

What information has been provided in relation to the care of the children?

1. In her application form, the mother advised that she had five nights’ care each week (78%) and the father had two nights’ care (28%) since 25 September 2022. The Child Support papers indicate that the father was sent a letter on 17 April 2023 about the application, but no response was received, and attempts made to contact him were unsuccessful. The application was therefore accepted.

2. When the father contacted Child Support on 9 May 2023, he advised that the children were in his care for 13 nights each month, which worked out to be 42% care, from 26 February 2023. On 20 July 2023, the father advised he worked every fortnight, where he would fly out on Tuesday and return a fortnight later on Wednesday. He asserted that both parties may have had extra care or missed care, but these are once off events and the pattern remains based on his work roster.

3. To support his claims, the father provided Child Support a statement from his mother that said that since the mother and father separated on 5 January 2022, the father has lived at her and her partner’s home address and the children regularly stay with them. She stated that the father worked a regular roster, two weeks on and two weeks off, and the children live with him during the fortnights he does not work. She also stated that while the father is away working, the children have typically stayed with her and her partner for two to four nights a week. The father also provided a copy of his upcoming work flight schedule which showed that he would fly to Adelaide at 6:45pm on Tuesday and his return flight would be at 8:45am on Wednesday two weeks later.

4. The father at the hearing confirmed that he was working two weeks on and off in South Australia and had contacted Child Support as he did not think the 28/72% care was quite fair since he was paying for the children’s schooling and paying for the children when they were at home. He asserted that Child Support worked out that he had 42% care rather than 50% care as the time he was flying was taken into account. He stated that he had been changing his work/work roster to make everything work and appreciated the mother’s patience. He advised that when he returns from work, he would collect the children from school or they would be home with his mother, so he was only claiming the time he actually had care of the children.

5. During the hearing, the mother asserted that the father was incorrectly portraying a higher level of care than he actually had. She said that he repeatedly was saying he had 14 days’ care and then she had 14 days’ care when he was working away in another state. The mother advised she was unable to provide any evidence in relation to the father’s objection as she had been unwell at the time. She asserted she had a care calendar which showed the ad hoc care based on the father’s work roster, and that they were still working on a having a permanent arrangement as his employment kept changing. She stated that the calendar might be different to the original 28/72% and could show he had 10 or 11 days each month. The mother asserted that the father was living in [City 1] until 5 January 2023, and the children were with the father’s mother on a Thursday and Friday night. He only moved to the area on 5 January 2023 and started his fortnightly work roster. She agreed that the father would pick the children from school when they were in his care but noted that his mother’s statement was grossly in her son’s favour. An opportunity was given to the mother to provide the care calendar and other information to confirm the relevant dates, but she did not provide any evidence to support her claims.

6. In relation to the delay in objecting, the father advised that he had attempted to correct the care in May 2023 however, a change in care was lodged instead of an objection and that he was unaware of his objection rights until he was advised on 20 July 2023. At the hearing, the father advised that it had been a chaotic time for him with the mother, his father passing away, transitioning between [states], and changing jobs. He did not agree with the mother that he was not living in the area from January to March 2023 and said that he would provide information to confirm the dates. The mother did not agree with the father’s statements but did not substantiate her reasons for disagreeing. After the hearing, the father provided his employment contract and payslips which show that he was in [State 1] from at least February 2023.

What are the relevant care arrangements for the children?

1. I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or likely to have been, in a parent’s care.

2. The mother in her application stated the father only had care of the children two nights a week from 25 September 2022. At the hearing, she advised that the children were with the father’s mother every Thursday and Friday night. However, she also mentioned that the care arrangements were ad hoc and kept changing to accommodate the father’s work and stated she had a care calendar which may show that he had care around 10 or 11 days a month instead of the 28/72% care she had originally asserted. The mother has not provided any evidence to corroborate her claims.

3. The father, on the other hand, asserted that due to his work roster, he has had 13 nights of care each month. He provided statements from his mother that corroborated that he had an alternating fortnightly roster where he would work for two weeks and be home for two weeks. The father’s mother also stated that the children would stay with her and her partner for at least two to four nights a week even when the father is away for work, which is consistent with the mother’s claims that the children spend two night each week with the father’s mother. The father’s flight schedule also confirms that he flies to work on Tuesday evenings and flies back on Wednesday mornings a fortnight later.

4. From the information before me, I am satisfied that since the start of the child support period, being 21 March 2023, the father had 13 nights’ care each month, accommodating the time taken for his flights, and am not persuaded he only had two nights of care each week. The evidence before me indicates that the children also spent time with their grandmother, being the father’s mother, when the father was away working, but I do not understand the father to be claiming this time as the children being in his care and I do not have information before me that supports this to be the case. Accordingly, the requirements of section 50 of the Act are satisfied and therefore the relevant care percentage for the father is 42% and for the mother is 58% with effect from 21 March 2023.

When does the new care determination take effect?

22. Subsection 87AA(1) of the Registration and Collection Act provides, among other things, that if an objection is lodged more than 28 days after notice of the care percentage decision was served, and a determination has been made to vary or substitute the care percentage decision, the date of effect of the decision is when the person lodged the objection. Subsection 87AA(2) provides that a person can be taken to have made the objection in time if there are special circumstances that prevented the person from lodging the objection within 28 days. The father was notified of the original decision on 27 April 2023, and he contacted Child Support in relation to the care on 9 May 2023. This contact was recorded as a change of care notification rather than an objection, and he was advised to make an objection in July 2023, which he did on 20 July 2023. Child Support has accepted that there were special circumstances as the father did not rest on his rights to raise concerns about the original decision and decided to apply the care percentage from 21 March 2023. I am of the same view that the father’s contact on 9 May 2023 should have been considered as an objection rather than a change of care notification. I am therefore satisfied that there are special circumstances under subsection 87AA(2) for the application to be considered as if it were made in time.

DECISION

The decisions under review are affirmed.