Rencher and Adlard (Child support)

[2024] AATA 1188

Rencher and Adlard (Child support) [2024] AATA 1188 (8 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026859

APPLICANT:  Ms Rencher

OTHER PARTIES:  Child Support Registrar

Mr Adlard

TRIBUNAL:Member F Petrone

DECISION DATE:  8 April 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – father’s notifications of changes and mother’s objection to percentages and dates – amount and quality of care – variability in arrangements and temporary disruptions – calculation by nights or hours – changes notified more than 28 days after relevant days – 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 Rencher and Mr Adlard are the parents of [Child 1 and Child 2], in respect of whom a child support assessment has been in place. 

2. Care of [the children] was recorded as 68% to Ms Rencher and 32% to Mr Adlard from 1 December 2013 (the existing care determination).

3. On 20 March 2023, Mr Adlard notified Services Australia – Child Support (Child Support) that care arrangements for [Child 1] had changed from 21 October 2022 (later updated to 20 January 2023) and for [Child 2] from 15 November 2019 (later updated to 20 December 2020).  He claimed that, from the dates indicated, both children were in his care for 97% of the time and in Ms Rencher’s care 3% of the time.

4. On 29 May 2023, Child Support made a decision to reflect the care of [Child 2] from 20 December 2020 and the care of [Child 1] from 20 January 2023 as 3% to Ms Rencher and 97% to Mr Adlard, notified 20 March 2023.

5. Ms Rencher objected to that decision and on 5 September 2023 a Child Support objections officer disallowed the objection.

6. Ms Rencher applied to this Tribunal for further review on 3 October 2023 as she does not agree with the change in care event dates or level of care notified by Mr Adlard.

7. On 3 October 2023 Child Support provided the Tribunal with a bundle of documents, copied to Ms Rencher and Mr Adlard, as required under subsection 37(1) of the Administrative Appeals Tribunal Act 1975, being 246 pages in total (the Tribunal documents).

8. A hearing was scheduled for 31 January 2024.

9. On 23 January 2024, Ms Rencher provided the Tribunal with a submission in relation to the application and further documentary evidence numbering 286 pages in total.  This material was accepted into evidence and a copy was provided to Mr Adlard the following day.

10. On 31 January 2024 Ms Rencher attended the hearing by Microsoft Teams video and Mr Adlard attended by Microsoft Teams audio.  Mr Adlard was concerned that he had had insufficient time to properly consider the material provided by Ms Rencher.  The application was part-heard and adjourned to 26 February 2024 with directions for the parties to provide any final submissions in relation to the application on or before 21 February 2024.

11. On 21 February 2024 Ms Rencher provided the Tribunal with a submission and further evidence being 45 pages in total. This material was accepted into evidence and a copy was provided to Mr Adlard the following day.  

12. On 23 February 2024 Mr Adlard provided the Tribunal with a submission and further evidence being 41 pages in total. This material was accepted into evidence and a copy was provided to Ms Rencher the same day. 

13. On 26 February 2024 Ms Rencher attended the adjourned part-heard hearing by Microsoft Teams video and Mr Adlard attended by Microsoft Teams audio. 

ISSUES

1. The issues which arise in this case are:

   ·      Should the care determination that existed prior to the decision under review (the existing care determination), of 68% to Ms Rencher and 32% to Mr Adlard, be revoked? If so,

   ·      What is the percentage of care for each parent?

   ·      What is the date of effect of any decision?

CONSIDERATION

Should the existing care determination be revoked?

1. Section 54F of the Child Support (Assessment) Act 1989 (the Act) provides that the Child Support Registrar must revoke a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

2. In order to revoke the existing care percentage determination, I must be satisfied that care is not taking place in accordance with the existing care determination and I must be able to identify another pattern of care and corresponding percentages to assess if the cost percentage would change.

3. The evidence in the Tribunal documents, the documents provided by the applicant and statements made during the hearing indicate that, as at the date of each of the changes in care as notified by Mr Adlard, the care of [the children] was not taking place in accordance with the existing care determination and the pattern of care for each of the children had changed such that Mr Adlard now had an increased level of care of each of the children.  This is because, as at the dates advised, [the children] were living with Mr Adlard and spending most nights at his home. 

4. In relation to [Child 2], Ms Rencher states that although [Child 2] spent most nights at Mr Adlard’s home, she took him to and from school 3–5 days per week at least until mid-2022 and he usually spent time at her home after school until about 7pm on those days.  She states that she was the primary school contact and provided emotional support for [Child 2].  She further states that [Child 2] stayed with her when Mr Adlard was away and believes he spent at least 97 nights with her in 2022 (although her calendar evidence suggests 84 nights in 2022).  Mr Adlard does not dispute that Ms Rencher regularly transported [Child 2] to and from school although this appears to have reduced around mid-2022 when [Child 2] began going to school and back independently.  Mr Adlard stated at hearing that [Child 2] has spent an average of 10 nights per year with Ms Rencher since December 2020 in addition to time with her when he was away in 2022.  Mr Adlard stated that he met all of [Child 2]’s costs, that he would have dinner with [Child 2] each school night and that he would launder his clothes and supervise his homework.  Ms Rencher stated that she would sometimes feed [Child 2] and he would sometimes return to Mr Adlard’s home for dinner.  She stated that he would sometimes be collected from her home and sometimes from the gym. Ms Rencher’s view is that she remained [Child 2]’s primary carer although he was living with Mr Adlard and that the level of care she provided to [Child 2] during the day should be taken into account.

5. In relation to [Child 1], Ms Rencher states that she believes there was no change to the underlying pattern of care as [Child 1] stayed with Mr Adlard temporarily whilst she was renovating and whilst she was away.  She also provided evidence to indicate that [Child 1] spent time at her home whilst she was overseas.  Ms Rencher stated at hearing that the care arrangement was temporarily disrupted but that it did not change.  She notes bedroom furniture purchased by [Child 1] and paid for by her for her home on 29 December 2022 and [Child 1] placing her address on his driver’s licence.  Mr Adlard stated that from 20 January 2023 to 20 March 2023 when he notified Child Support of the care change, [Child 1] had only spent one night with Ms Rencher.  He further states that Ms Rencher spent several periods overseas whilst [Child 1] was with him.  Ms Rencher confirmed at hearing that she was overseas from 31 March 2023 to16 April 2023, 11 May 2023 to 15 June 2023 and 17 July 2023 to 7 August 2023.  In her final submission Ms Rencher states that “Mr Adlard] bribed [Child 1] to stay with a car and pre-paid accommodation for [Child 1] and 3 friends to go to [Country] for three weeks for schoolies – I note that [Child 1] came back to l[i]ve with me after his 18th birthday”. [Child 1]’s 18th birthday was on 28 July 2023. 

6. Ms Rencher referred to a statutory declaration (unwitnessed, at page 158 of the Tribunal documents) signed by both parents on 12 November 2020 which she submits as evidence that she is the children’s primary carer.  I am disregarding this declaration as it is unwitnessed and refers to a pattern of care that is inconsistent with the evidence contained within the Tribunal documents and the written submissions and oral evidence provided by each of the parents at hearing.

7. I note that there is a high level of dispute between the parents as to the amount and quality of care provided by each of them.  I have carefully considered all of the evidence and the submissions made by both parents.  Both have raised a number of matters which, whilst understandably important to them, are not matters that are relevant to the issues before the Tribunal.  As such, they have not been mentioned in this decision.

8. The Act provides for a percentage of care to be identified by reference to a ‘care period’. The care period is not necessarily the period in respect of which the care determination will operate, rather it is a mechanism by which a pattern of care may be examined in order to identify and convert the pattern to a percentage, usually by reference to nights in care.

9. I am satisfied that it is reasonable to consider the period from 20 December 2020 to 20 December 2021 for [Child 2] and from 20 January 2023 to 27 July 2023 for [Child 1].

10. I accept that from 20 December 2020, [Child 2] commenced living with Mr Adlard; Ms Rencher took [Child 2] to and from school for 3–5 days/week until at least mid-2022 and that [Child 2] stayed with her during periods when Mr Adlard was away for work or holidays.  The evidence is such that it is difficult to ascertain a regular pattern of care based on hours because of the variability in the arrangements between the parents.  In any event, I consider nights in care to be the most appropriate measure in this case because it more accurately reflects [Child 2]’s care costs.  I note that Mr Adlard continued paying Ms Rencher child support for [Child 2] in accordance with their binding financial agreement until October 2022, after which time he ceased payments.  I further note that even if hours were used in this instance, ignoring the hours during which [Child 2] was at school, the evidence suggests that Ms Rencher’s percentage of care in any event would be below 35% and as such would not alter the impact of the change in care on any eligibility for family tax benefit.  In relation to [Child 1], I am satisfied that from 20 January 2023 [Child 1] commenced living with Mr Adlard and whilst there was initially some uncertainty around when he would return to Ms Rencher’s home after renovations occurred in late 2022/early 2023, he was primarily in the care of Mr Adlard from 20 January 2023.  Although I accept that he may have spent time at Ms Rencher’s home whilst she was overseas, I consider he was nevertheless in Mr Adlard’s care during that time.

11. On the basis of the evidence before the Tribunal, I am satisfied that from 20 December 2020, [Child 2] commenced living with Mr Adlard and from 20 January 2023 [Child 1] commence living with Mr Adlard and there was a clear change to the pattern of care such that [Child 2], and later [Child 1], lived with Mr Adlard and spent approximately 1 night per month with Ms Rencher. Based on the number of nights, this equates to a percentage of care of 3% to Ms Rencher and 97% to Mr Adlard. As this would change the cost percentage for Mr Adlard I must revoke the existing care percentage determination pursuant to section 54F of the Act.

What is the percentage of care for each parent?

1. Under section 50 of the Act, for the reasons given above, I consider the percentage of care for each parent to be 3% to Ms Rencher and 97% to Mr Adlard by reference to a care period commencing on 20 December 2020 for [Child 2] and ending on 20 December 2021 and commencing on 20 January 2023 for [Child 1] and ending on 27 July 2023.

What is the date of effect of any decision?

1. Mr Adlard notified Child Support on 20 March 2023 that he considered that from 20 December 2020 for [Child 2] and 20 January 2023 for [Child 1], his care did not correspond with the existing care percentage determinations.

2. Subsection 54F(3) of the Act outlines when a revocation of the existing percentage of care determinations take effect depending on when the Registrar is notified of a change in care.

3. Because Mr Adlard notified the Registrar of a change more than 28 days after the change of care day and his percentage of care increased, the revocation of the existing care determinations takes effect as follows:

   -for Mr Adlard, from the day before the date of notification of the care change, namely 19 March 2023; and

   -for Ms Rencher, from the day before the change of care day, namely 19 December 2020 for [Child 2] and 19 January 2023 for [Child 1].

   The new percentage of care determinations for each parent take effect from the day after the respective dates of revocation for each parent.

DECISION

The decision under review is affirmed.