Peverett and Chriss (Child support)

[2021] AATA 3355

Peverett and Chriss (Child support) [2021] AATA 3355 (8 July 2021)

DIVISION:Social Services & Child support Division

REVIEW NUMBER:  2021/SC021261

APPLICANT:  Mrs Peverett

OTHER PARTIES:  Child Support Registrar

Mr Chriss

TRIBUNAL:Member A Barry

Member J Longo

DECISION DATE:  8 July 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Peverett had a percentage of care of 30% for [Child 1] and Mr Chriss had a percentage of care of 42% for [Child 1] from 1 October 2020.

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 - 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 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 Chriss and Mrs Peverett are the parents of [Child 1]. Mr Chriss is the parent liable to pay child support.

2.On 1 October 2020, Mr Chriss reported a new care arrangement for [Child 1] with Mr Chriss having 100% care and Mrs Peverett having 0% care.

3.On 31 December 2020, Services Australia – Child Support (Child Support) made a care determination accepting that Mr Chriss had 100% care for [Child 1] and that Mrs Peverett had 0% care of [Child 1] from 1 October 2020.

4.On 12 January 2021, Mrs Peverett lodged an objection to the above care decision. On 12 April 2021, Child Support partly allowed the objection and made the decision to change the care of [Child 1] to 0% care to Mrs Peverett and 28% care to Mr Chriss.

5.On 16 April 2021, Mrs Peverett lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. Mrs Peverett and Mr Chriss spoke to the Tribunal via conference telephone and both gave sworn evidence. In making its decision, the Tribunal took into consideration the documents provided by Child Support (378 pages). These documents were also sent to Mrs Peverett and Mr Chriss prior to the hearing.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1]?

7.In their oral evidence, Mr Chriss and Mrs Peverett both confirmed to the Tribunal that there were no court orders or parenting plans in place for the care of [Child 1] as at 27 July 2020.  Prior to this date, a court order was in place providing the care percentage for [Child 1] as 50/50 shared care for each of them. On 27 July 2020 the Federal Circuit Court removed [Child 1] from the court order to give him the freedom to move between homes. 

8.Between 27 July 2020 and 1 October 2020, [Child 1]’s care was listed as 100% to Mrs Peverett and 0% Mr Chriss. Mr Chriss told the Tribunal that in this period [Child 1] was in Mrs Peverett’s care most weeknights (66 nights from 29 July 2020 to 30 September 2020).  

9.In her oral testimony, Mrs Peverett told the Tribunal that during the school weeks after 1 October 2020, [Child 1]’s living arrangements were “chaotic” and not consistent week to week. Mrs Peverett said that during these weeks [Child 1] would spend two to three nights a week with her. Mrs Peverett said that it was normally over the weekend but would often include a weeknight. Mrs Peverett also told the Tribunal that in school holiday weeks, particularly over December 2020 and January 2021, [Child 1] would also spend between two to three nights with her in northern NSW. Mrs Peverett said that there was no consistent weekly pattern over the school holidays as on some weeks [Child 1] might stay with her for four or five nights but then stay in [Suburb 1] with friends for extended periods.   

10.Mrs Peverett told the Tribunal that “sometime soon after 1 October 2020” she provided [Child 1] with a car to give him more independence and so he could also commute between her home in the northern rivers region of New South Wales and [Suburb 1] where Mr Chriss lives. At the time [Child 1] was enrolled in a school in the [Suburb 1] area.  Mrs Peverett provided the Tribunal with bank statements to show that for a period in October 2020 she transferred money into [Child 1]’s account to assist with petrol and other costs. She stated that [Child 1] would check in with her every day but that where he was during the week would vary from week to week. Mrs Peverett stated that they would make a plan for a couple of days at a time.

11.Mr Chriss confirmed that he notified Child Support of changes in care (100% to him) effective on 1 October 2020.  Mr Chriss told the Tribunal that just prior to 1 October 2020, with the support of counselling, he and [Child 1] made an agreement that [Child 1] would live in a studio apartment on his property in [Suburb 1] and that Mr Chriss would transfer $220 a week into [Child 1]’s account for living expenses. Mr Chriss said the studio had its own kitchen and bathroom facilities and that [Child 1] was responsible for his own laundry and cooking.

12.In his evidence, Mr Chriss said that [Child 1] had a separate entrance to his accommodation so Mr Chriss said he was never certain when [Child 1] was home, but he frequently observed his car parked on the property and did see him from time to time. The Tribunal also considered three written statements dated 23 November 2020 from Mr Chriss’s neighbours in the seven-apartment complex that state they regularly saw [Child 1] on the property, sometimes talking to his father and on other occasions washing his car. It was also observed in these statements that they often saw [Child 1]’s car parked at the complex overnight. Another statement dated 28 November 2020 from a companion of Mr Chriss provides that she regularly observed [Child 1]’s car on the property. The Tribunal notes that these statements relate to events prior to 23 November 2020 and 28 November 2020 respectively.

13.The Tribunal also considered copies of text messages between [Child 1] and Mr Chriss in the hearing papers, which also shows he regularly stayed at the studio apartment for such things as using the laundry and Wi-Fi in Mr Chriss’s living area.  

14.While Mr Chriss’s understanding at the time was that [Child 1] was staying at his studio apartment 100% of the period following 1 October 2020, he told the Tribunal that he now understands that [Child 1] would typically spend several nights a week at his girlfriend’s house or with other friends in the [Suburb 1] region. Mr Chriss said he initially engaged with [Child 1] on his movements but as their relationship became more strained, [Child 1] wasn’t forthcoming about these details. Mr Chriss said that he would on occasions call the parents of [Child 1]’s friends to check on his welfare if he noticed [Child 1] had not been in his studio apartment for a period. Mr Chriss is of the view that [Child 1] and not Mrs Peverett organised sleeping arrangements at the home of friends. Mrs Peverett told the Tribunal that she and [Child 1] were in daily contact about these arrangements.

15.Mr Chriss told the Tribunal that whilst he now understands that over the relevant period [Child 1] would sleep several nights at the homes of friends or Mrs Peverett’s, he believed he was providing the costs of care, particularly expenses for food and therefore his percentage of care for the relevant period was 72%.

16.In her oral evidence, Mrs Peverett told the Tribunal that on those nights when [Child 1] would stay with his girlfriend or friends, [Child 1] would typically discuss it with her. Mrs Peverett said she had daily contact with [Child 1], and she would assist him when needed as well as provide emotional support.  The Tribunal also considered documentary evidence from [Child 1]’s sister (who lives with Mrs Peverett) about the emotional support she provided [Child 1] over the phone and when he visited their home in northern NSW.

17.The Tribunal also considered documentary evidence which showed that during this period Mr Chriss provided additional financial support for [Child 1] to purchase clothes as well as assisting with a medical appointment.  There is also evidence of Mrs Peverett providing similar support for [Child 1] prior to the relevant period of 1 October 2020 to 7 February 2021.

18.Mr Chriss confirmed to the Tribunal that on 31 December 2020 he reduced [Child 1]’s weekly financial support to $130 a week and this weekly amount continued until 7 February 2021, when [Child 1] moved out of his studio apartment and returned to Mrs Peverett’s home.  

19.Section 50 of the Act requires a determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. It is clear from the information above that the care percentage for [Child 1] from 1 October 2020 that Mrs Peverett and Mr Chriss had was not the pattern of care as previously determined by Child Support.

Should the existing care determinations in relation to [Child 1] be revoked?

20.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Mr Chriss notified Child Support that the care taking place did not correspond with the existing care of [Child 1] from 1 October 2020.

21.Care is usually determined on the basis of the overnight arrangements in place. However, other factors can also be taken into account. These include such things as:

·     To what extent the person has control of the child, including having overall responsibility for the child and making:

o    major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

o    arrangements 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.

22.In this matter, it is clear that [Child 1] spent some nights in the home of Mrs Peverett, as Mr Chriss readily acknowledged in the hearing. The Tribunal is also satisfied from the statements of neighbours and oral evidence that [Child 1] stayed at Mr Chriss’s studio apartment regularly over the relevant period. 

23.It is also clear from the evidence that Mr Chriss was paying for [Child 1]’s ongoing expenses, such as food and meeting some of [Child 1]’s other additional financial needs such as clothes and costs for a haircut. There is also some evidence that in the relevant period, Mr Chriss helped with the health care needs of [Child 1] including contacting his treating doctor’s rooms and collecting a prescription from the pharmacy and that Mrs Peverett supported [Child 1] with some of his mental health care needs. It is also clear from the evidence of both Mr Chriss and Mrs Peverett that [Child 1] had a high level of independence and mobility in his daily activities. The Tribunal has determined that these other factors should be considered in determining the percentage of care over the period 1 October 2020 to 7 February 2021.

24.The Tribunal determines that there is evidence of where [Child 1] was staying during the period and this has been taken into account in the determination of the care percentages for Mrs Peverett and Mr Chriss. However, there are also other factors, such as the provision of accommodation, clothing, food, health care, emotional support, and transport which have also been considered. The Tribunal has taken these factors, based on the evidence of Mrs Peverett and Mr Chriss, into account in the determination of the relevant care percentages from 1 October 2020.

25.Accordingly, the Tribunal has decided that the care determination should reflect that from 1 October 2020, Mrs Peverett had 30% care of [Child 1] and Mr Chriss had 42% care of [Child 1]. This reflects that while [Child 1] spent overnight care under Mrs Peverett and Mr Chriss’ respective roofs, they also each contributed in other ways during the period, such as with the provision of funds to [Child 1] and the use of a car for transportation. There is also evidence of Mrs Peverett providing emotional support and Mr Chriss assisting in organising [Child 1]’s medical appointments and obtaining prescription medication.

26.Accordingly, the determination of care made from 29 July 2020 is revoked from 30 September 2020 and a new determination made from 1 October 2020, which reflects that Mrs Peverett had a percentage of care of 30% for [Child 1] and Mr Chriss had a percentage of care of 42% for [Child 1] from this date. This sets aside the objection decision and changes the care determination from this date.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Peverett had a percentage of care of 30% for [Child 1] and Mr Chriss had a percentage of care of 42% for [Child 1] from 1 October 2020.