Porcher and Scrivens (Child support)

[2021] AATA 1285

Porcher and Scrivens (Child support) [2021] AATA 1285 (7 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC020723

APPLICANT:  Mr Porcher

OTHER PARTIES:  Child Support Registrar

Ms Scrivens

TRIBUNAL:Member M Baulch

DECISION DATE:  7 April 2021

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that:

• The care percentages that apply in the child support assessment for [Child 1] are to record Mr Porcher as having 100% care and Ms Scrivens 0% care with effect from 15 October 2020.

• The care percentages that apply in the child support assessment for [Child 2] are to record Mr Porcher as having 100% care with effect from 16 October 2020 and Ms Scrivens 0% care with effect from 17 September 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 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 application for review is about the child support assessment applying to Mr Porcher and Ms Scrivens.  They are the separated parents of [Child 1] and [Child 2], who were born in 2003.

2. The Department of Human Services, now known as Services Australia – Child Support (Child Support) has made assessments of child support in respect of Mr Porcher, Ms Scrivens and their children.  Since 5 November 2013, those assessments have been based upon Ms Scrivens having 100% care of [Child 1] and [Child 2].

3. On 16 October 2020, Mr Porcher advised Child Support that he had 100% care of [Child 1] and [Child 2] since 18 September 2020.  That information was considered by a Child Support employee who decided, on 12 November 2020, that the care percentages applying in the child support assessment should record Mr Porcher as having 100% care and Ms Scrivens 0% care, of [Child 1] and [Child 2] since 18 September 2020.

4. Ms Scrivens objected to that decision and, on 3 February 2021, that objection was partly allowed.  The objections officer decided that Mr Porcher had 100% care, and Ms Scrivens 0% care, of [Child 1] and [Child 2] since 15 October 2020 (the decision under review).  Mr Porcher has now applied to this tribunal for an independent review of the objections officer’s decision.

5. A hearing into the application for review was held by the tribunal on 7 April 2021.  Mr Porcher and Ms Scrivens discussed the application for review with the tribunal by conference telephone and both gave evidence during the hearing.  The Child Support Registrar did not participate in the hearing. 

6. The tribunal had before it relevant documents provided to it by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (129 pages), documents provided by Mr Porcher (labelled A1 to A35) and Ms Scrivens (labelled B1 to B3).  Mr Porcher and Ms Scrivens confirmed they had received copies of all the documents prior to the hearing.

ISSUES

1. The statutory provisions relevant to this review application are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is what should be the care percentages applying to the child support assessment in respect of [Child 1] and [Child 2]?

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula that is set out in Part 5 of the Act, which contains variables such as the parents’ adjusted taxable incomes, the number of children, their ages and their percentages of care.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children during a care period.  Section 54A of the Act provides that the extent of care that a person is to have may be worked out on the number of nights that a child is likely to be in that person’s care in a care period. 

3. Since 5 November 2013, Child Support had recorded both [Child 1] and [Child 2] as being in Ms Scrivens’ 100% care.

4. There is no dispute that Ms Scrivens had 100% care of [Child 1] and [Child 2] until 11 September 2020, or that Mr Porcher had 100% care of [Child 1] and [Child 2] from 15 October 2020.  The issue central to this dispute is whose care each child was in during the intervening period.

5. Ms Scrivens moved from her previous residence on or around 11 September 2020.  The evidence shows that she arranged for [Child 1] and [Child 2] to each stay with a friend.  Ms Scrivens asserts that, notwithstanding the children each being at a friend’s home, she still provided them with care.  Ms Scrivens stated that she was in contact with both children daily.  Ms Scrivens submitted that [Child 1] and [Child 2] remained in her care until 15 October 2020.  She said that it was on this day that she and Mr Porcher had a discussion and Mr Porcher agreed to take responsibility for [Child 1] and [Child 2].

6. Mr Porcher submitted that neither child was in Ms Scrivens’ care after 11 September 2020.  He stated that [Child 2] was not happy at his friend’s house and moved his possessions and himself into Mr ’Porcher’s residence after a few days.  According to a text message sent from [Child 2] to Mr Porcher, this occurred on 17 September 2020. 

7. Ms Scrivens’ evidence was that she was not aware that [Child 2] was not happy staying at his friend’s house.  However, I noted that she did not dispute during the hearing that [Child 2] moved himself and his possessions into Mr Porcher’s home on 17 September 2020.

8. Mr Porcher’s evidence was that [Child 1] was welcome to stay with him at any time, and he did do so for part of the time after 11 September 2020, but that [Child 1] remained at his friend’s place for most of the time until 15 October 2020.  Mr Porcher was unable to be precise about which days, or how often, [Child 1] stayed with him.  There is evidence that Mr Porcher transferred funds to [Child 1] on 20 September 2020 and 10 October 2020.

9. In relation to [Child 1], Ms Scrivens’ evidence was that she was in regular contact with [Child 1’s] friend’s mother, at whose home [Child 1] was staying, and she was not told that [Child 1] was occasionally staying with Mr Porcher.  Ms Scrivens told me that she offered to provide [Child 1’s] friend’s mother with money to cover the cost of his board, but the offer was refused.

10. The term “care” is not defined in the child support legislation.  I did, however, have regard to the decision of Federal Magistrate Hughes (as she then was) in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959, where she stated, at [56], that:

    In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

    a. To what extent does the person meet 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?

    b. To what extent does the person make arrangements for others to meet the needs of the child?

    c. To what extent does the person pay for the costs of meeting the needs of the child?

    d.To what extent does the person otherwise provide financial support for the child?

    e. To what extent does the child provide for his or her own needs or have those needs met from another source?

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

[Child 1]

1. Having considered the evidence, I was satisfied that [Child 1] remained in Ms Scrivens’ care until 15 October 2020, because she was the parent who made the arrangements for [Child 1] to stay with his friend.  There is also evidence that she was in regular contact with [Child 1’s] friend’s mother to monitor [Child 1’s] circumstances. 

2. While there is evidence that [Child 1] spent some time with Mr Porcher after 11 September 2020, these appear to be ad hoc and occasional occurrences.  I was unable to identify any pattern under which Mr Porcher had any care of [Child 1] prior to 15 October 2020. 

3. I was satisfied that, from 15 October 2020, there is a pattern of care under which Mr Porcher had 100% care of [Child 1] and Ms Scrivens had 0% care.

[Child 2]

1. Having considered the evidence, I was satisfied that between 11 September 2020 and 16 September 2020 [Child 2] remained in Ms Scrivens’ care, because she was the parent who made the arrangement for [Child 2] to stay with his friend.

2. I was also satisfied that there was a pattern of care from 17 September 2020 under which Mr Porcher had 100% care of [Child 2] and Ms Scrivens had 0% care. 

Applying these percentages of care to the child support assessment

1. Subsection 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

2. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

I was satisfied that Mr Porcher having 100% care of [Child 2] from 17 September 2020 and 100% care of [Child 1] from 15 October 2020, will result in a change to the cost percentages used for both children in the child support assessment.  Therefore, the existing care determinations that have applied since 5 November 2013 for both children must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. I have found that the care occurring for [Child 2] changed on 17 September 2020 and for [Child 1] on 15 October 2020.  Child Support’s records disclose that Mr Porcher advised Child Support of the change in care for both children on 16 October 2020. 

[Child 1]

1. I determined that Child Support was advised of the change in care for [Child 1] within 28 days of the change in care occurring.  Therefore, the existing care percentage determinations for [Child 1] are revoked from the date before the care changed; in other words, from 14 October 2020.

2. As I have revoked the existing care percentage determinations that apply in respect of [Child 1], I must make new care percentage determinations that reflect the current pattern of care for [Child 1].  Accordingly, I found that:

   ·      Pursuant to section 50 of the Act, I determined that Mr Porcher’s percentage of care for [Child 1] is 100%.

   ·      Pursuant to section 49 of the Act, I determined that Ms Scrivens’ percentage of care for [Child 1] is 0%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked: this is from 15 October 2020 for both parents.

[Child 2]

1. I determined that Child Support was advised of the change in care for [Child 2] more than 28 days after that change in care occurred.  Therefore:

   ·      The existing care determination for [Child 2] applying to Mr Porcher is revoked from the day before Child Support was advised; that is 15 October 2020; and

   ·      The existing care determination for [Child 2] applying to Ms Scrivens is revoked from the day before the change in care occurred; that is 16 September 2020.

2. As I have revoked the existing care percentage determinations that apply in respect of [Child 2], I must make new care percentage determinations that reflect the current pattern of care for [Child 2].  Accordingly, I found that:

   ·      Pursuant to section 50 of the Act, I determined that Mr Porcher’s percentage of care for [Child 2] is 100%.

   ·      Pursuant to section 49 of the Act, I determined that Ms Scrivens’ percentage of care for [Child 2] is 0%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked; that is from 16 October 2020 for Mr Porcher and from 17 September 2020 for Ms Scrivens.

3. As I have arrived at a different decision to that of the objections officer, I decided to set aside the decision under review and substitute my own decision, below.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that:

• The care percentages that apply in the child support assessment for [Child 1] are to record Mr Porcher as having 100% care and Ms Scrivens 0% care with effect from 15 October 2020.

• The care percentages that apply in the child support assessment for [Child 2] are to record Mr Porcher as having 100% care with effect from 16 October 2020 and Ms Scrivens 0% care with effect from 17 September 2020.