Pietro and Poulsen (Child support)

[2020] AATA 5846

Pietro and Poulsen (Child support) [2020] AATA 5846 (2 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019750

APPLICANT:  Mr Pietro

OTHER PARTIES:  Child Support Registrar

Ms Poulsen

TRIBUNAL:Member S Letch

DECISION DATE:  2 November 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – determination whether care exists – existing percentage of care determinations revoked and new determinations made – 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

1. Mr Pietro and Ms Poulsen are the parents of [Child 1]. Care for [Child 1] had been recorded by the Child Support Agency (CSA) as 93% to Ms Poulsen and 7% to Mr Pietro when, on 30 April 2020, Mr Pietro reported that he had the children for three nights a fortnight, and for the other 11 nights, they stayed with Ms Poulsen’s uncle.

2. On 5 May 2020, the CSA decided to record Mr Pietro’s care as 21% and Ms Poulsen’s care as 0%.

3. Ms Poulsen objected to the decision on 6 May 2020; on 12 August 2020, an objections officer allowed the objection, determining Ms Poulsen’s care should be recorded as 79%, not 0%.

4. On 27 August 2020, Mr Pietro sought further review by the Tribunal. The Tribunal conducted a hearing on 26 October 2020; both parents participated in the hearing by conference telephone.

5. It is convenient, by way of background, to set out extracts from the objections officer’s decision:

   On the 30 April 2020, Mr Pietro contacted us to advise of a change in care for [Child 1]. Mr Pietro advised there has been a permanent change to the care for [Child 1] since 23 March 2020. Mr Pietro stated that on average, he has three nights per fortnight care of [Child 1] and the remaining eleven nights [Child 1] is being watched by Ms Poulsen`s uncle.

   On 4 May 2020, we spoke with Ms Poulsen and confirmed [Child 1] has not been in her care since March 2020 and has primarily been in the care of her uncle and still having the same amount of care with Mr Pietro. Ms Poulsen was advised the care would be updated to reflect this and this would result in the case ending as neither party has over 35% care of [Child 1].

   On 5 May 2020, we decided the change the care percentages for [Child 1] to 0% with Ms Poulsen and 21% with Mr Pietro from 23 March 2020.

   On the 6 May 2020, Ms Poulsen contacted us to discuss the ended case. Ms Poulsen advised [Child 1] has been with her uncle for about ten days because she is moving house however, this is only temporary.

   Ms Poulsen lodged a care objection on the 6 May 2020, stating she continues to provide the majority of care to [Child 1]. Ms Poulsen explained she is in the process of relocating from [City 1] to [Town 1], which is a nine-hour drive. Ms Poulsen said whilst she is currently packing up and cleaning her current residence in [City 1], [Child 1] has gone to stay with her uncle temporarily in [Town 1] to get her settled. Ms Poulsen advised she enrolled [Child 1] in day care however acknowledged the emergency contact is her uncle [until] she relocates. Ms Poulsen is travelling there in the next week and she and [Child 1] will move into their own residence. Ms Poulsen stated she is still the decision maker for [Child 1] and still financially supporting [Child 1] via bank transfers to her uncle.

   We notified Mr Pietro of Ms Poulsen`s grounds for objection. Mr Pietro has not responded to the objection.

   On the 15 June 2020, Ms Poulsen contacted to advise she now has additional information/evidence regarding her objection. Ms Poulsen advised she would be providing a third party statement from her uncle and bank statements to show she was financially supporting [Child 1].

   On 15 June 2020, Ms Poulsen provided a copy of a letter she received from Mr Pietro`s solicitor, dated 7 May 2020, setting out a proposal for the care for [Child 1].

   On 17 July 2020, Ms Poulsen said [Child 1] did reside with her uncle from 23 March 2020 to 16 May 2020 due to Ms Poulsen re-locating home address. Ms Poulsen advised she was still providing majority of care for [Child 1]. Ms Poulsen advised she is still the decision maker for [Child 1] and is still financially supporting her via bank transfers to her uncle.

   …

   Ms Poulsen said due to her moving house, [Child 1] has not been in her care since March and has primarily been in the care of her uncle. Ms Poulsen later said [Child 1] has been with her uncle for about ten days because she is moving house. Ms Poulsen said [Child 1] is with her uncle to get her settled ahead of Ms Poulsen moving to [Town 1]. She said she is still the decision maker for [Child 1] and still financially supporting [Child 1] via bank transfers to her uncle. Ms Poulsen then confirmed [Child 1] was with her uncle from 23 March 2020 to 16 May 2020 while she was in the process of re-locating.

   Based on the available evidence we are satisfied the relevant care period is 23 March 2020 to 22 March 2021.

   When notifying of the change in care for [Child 1], Mr Pietro said he is providing care for [Child 1] on three nights per fortnight. Mr Pietro said he has not spoken with Ms Poulsen but has spoken to Ms Poulsen`s uncle who is watching [Child 1] for the majority of the time.

   Ms Poulsen has confirmed [Child 1] was staying with her uncle while she finalised her move from [City 1] to [Town 1]. Ms Poulsen said she continued to be the decision-maker for [Child 1] and provided financial support to her uncle while [Child 1] was with him. Ms Poulsen said she has now moved to [Town 1] and [Child 1] has resumed living with her.

   The crux of the issue here is whether or not [Child 1] remained in Ms Poulsen`s care despite not living in the same home.

   The evidence shows that Ms Poulsen arranged for [Child 1] to stay with her uncle while she finalised her move from [City 1] to [Town 1]. That move is completed and [Child 1] is again living with Ms Poulsen. Ms Poulsen maintains she remained the decision-maker for [Child 1] and provided financial support to her uncle.

   Ms Poulsen provided a copy of a letter sent to her from Mr Pietro`s solicitor setting out a proposal for the care to be provided by each parent for [Child 1]. The letter is dated 7 May 2020. This lends itself to a finding that, in Mr Pietro`s view, [Child 1] is in Ms Poulsen`s care.

   Based on the evidence available, we are satisfied [Child 1] was in Ms Poulsen`s care during the time she arranged for her uncle to look after [Child 1] while she moved from [City 1] to [Town 1].

   Mr Pietro said he is providing care for [Child 1] on three nights per fortnight. The proposal sent to Ms Poulsen from Mr Pietro`s solicitor includes the arrangement he will provide three nights care for [Child 1] up until [age] years of age.

   Ms Poulsen has not made any claim that Mr Pietro is not providing three nights per fortnight care for [Child 1].

   Based on the available evidence, we find the care percentages for [Child 1] are 79% with Ms Poulsen and 21% with Mr Pietro from 23 March 2020.

   As we were not notified within 28days of the change of care occurring, the change will be effective in the assessment for Ms Poulsen from the date the care changed i.e. 23 March 2020, and effective in the assessment for Mr Pietro from the date we were notified of the change i.e. 30 April 2020.

   The objection is allowed.

6. The Tribunal observes these are “point in time” assessments; the Tribunal must consider the pattern, or likely pattern, of care as of 30 April 2020. Any later changes to the pattern are the subject of separate notifications and separate determinations not presently before the Tribunal.

7. Mr Pietro told the Tribunal that [Child 1] was living with Ms Poulsen’s uncle – he said he does not understand how Ms Poulsen can be recorded as having any care. In response to the Tribunal’s questions, Mr Pietro advised he did not know what, if any, financial support Ms Poulsen provided to her uncle for supporting [Child 1], and to what extent Ms Poulsen was involved in decision-making for [Child 1]. He said he had received “conflicting information”.

8. Ms Poulsen told the Tribunal that she had supplied proof of two payments she made to her uncle in April and May 2020 totalling $400, as well as meeting child care and some other costs. [Child 1] was with her uncle from around mid-March until around mid-May 2020. She continued to be intimately involved with decisions about [Child 1], including pick-up times for care changeovers, and “day-to-day” decisions which included approving a vaccination for day care. Essentially, Ms Poulsen’s uncle deferred to her for decision-making. Ms Poulsen said she would also call [Child 1] when she was in Mr Pietro’s care.

9. The Tribunal observes it is not uncommon for parents to effectively delegate care for periods of time to grandparents or other family members, at the same time as retaining financial responsibility and making “parenting” decisions such as in respect of day care and medical requirements.

10. The policy guidelines, and case law, in this case provide a common sense approach; where financial support is being provided, and the parent is actively involved in decision-making, they may continue to be recorded for child support purposes as retaining care. This is particularly so in situations of relatively short and temporary duration, as was the case here.

11. The tribunal understood Mr Pietro’s position; however, the law in this area provides for Ms Poulsen to continue to be recorded as being responsible for [Child 1]’s care.

12. Accordingly, following Mr Pietro’s advice on 30 April 2020, the existing pattern of care should have been revoked, and care recorded as 79% to Ms Poulsen and 21% to Mr Pietro from 23 March 2020.

13. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.