Sachs and Sheedy (Child support)

[2019] AATA 3854

Sachs and Sheedy (Child support) [2019] AATA 3854 (5 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016360 & 2019/SC016442

APPLICANT:  Mr Sachs

OTHER PARTIES:  Child Support Registrar

Ms Sheedy

TRIBUNAL:Member H Schuster

DECISION DATE:  05 August 2019

DECISION:

The decisions under review are affirmed.

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 affirmed

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. In this matter Mr Sachs has asked the AAT to review the following objection decisions, both made on 23 March 2019 by the Department of Human Services (the Department):

   ·      To assess the care percentage of Mr Sachs as 14% care and Ms Sheedy as 86% for their two children with effect from 30 May 2018; and

   ·      To assess the care percentage of Mr Sachs as 0% and Ms Sheedy as 100% from 4 August 2018.

2. Mr Sachs and Ms Sheedy are the parents of [Child 1] (born in 2014) and [Child 2] (born in 2016) in respect of whom there is an administrative assessment for child support in place. Mr Sachs is liable to pay child support to Ms Sheedy. There are no court orders, parenting plans or written agreements in relation to the care of the children.

3. On 30 May 2018 Mr Sachs advised the Department he would have care of one night per week going forward; Ms Sheedy confirmed the arrangement.

4. On 25 July 2018 a new child support assessment was issued based on Ms Sheedy having 86% and Mr Sachs having 14% care of both children. Mr Sachs’s liability for child support was reduced from $6,326 p.a. to $4,808 p.a. with effect from 30 May 2018.

5. On 29 August 2018 Ms Sheedy advised the Department that she had stopped taking the children to Mr Sachs’s home from 4 August 2018.

6. Mr Sachs advised the Child Support Agency (the CSA) that he last had overnight care of the children on 13 August 2018.

7. On 3 October 2018 the CSA made the decision to change Mr Sachs’s care percentage in relation to both children to 0% from 4 August 2018. It increased Mr Sachs’s child support from $4,808 p.a. to $6,326 p.a.

8. Mr Sachs told the Department on 9 October 2018 that from 2 June 2018 he had had three nights of care per week, until the children were prevented from being in his care.

9. On 15 November 2018 Mr Sachs objected to the decision made on 25 July 2018 to assess him with 14% care from 30 May 2018 as well as the decision made on 3 October 2018 to reduce his care percentage to 0% with effect from 4 August 2018.

10. On 23 March 2019 the objection officer disallowed both objections.

11. On 17 April 2019 Mr Sachs applied to the Administrative Appeals Tribunal (the Tribunal) for review of both decisions.

12. A hearing of the application was conducted on 5 August 2019. Mr Sachs attended in person and Ms Sheedy participated by conference telephone. Both parties gave their evidence on affirmation.

13. The Tribunal had as evidence before it two bundles of documents prepared by the Department, for matter SC016442 the bundle contained 108 pages, while documents for matter SC106360 contained 118 pages.

ISSUES

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (Registration and Collection Act).

2. The issues which arise in this case are:

   ·      What was the pattern of care in effect in relation to the children during the period from 30 May 2018; and

   · From what date, if any, are the care percentages of the parents being changed pursuant to the Act?

3. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “cost percentage” for each parent in relation to each child determined under section 55C of the Act. Relevant to this case, section 55C of the Act provides that a care percentage of less than 14% results in a cost percentage of 0%; care percentages between 14% and 34% result in a cost percentage of 24%; higher care percentages result in cost percentages worked out under the formula set out in section 55C of the Act.

4. The percentage of care is determined under Division 4 of Part 5 of the Act. The Department has to work out a percentage for each parent and each child of the assessment for a care period: section 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be in the care of more than one person at a time.

5. Once a child care percentage is determined, it can be changed by revoking the old percentage and using a new care percentage based on actual care, under either subsection 54F(1) or 54H(1) of the Act.

6. In either case, if the Department is notified of any change of care more than 28 days after the change happened, the care percentage is changed only from the date of notification,

CONSIDERATION

1. Mr Sachs gave evidence that in May 2018 he asked, and Ms Sheedy, agreed that he have care of the children one night per week. He said that by June 2018, however, he started having care for three nights per week.

2. This lasted until August when Ms Sheedy refused to let the children spend time with him.

3. He made an application for parenting orders in about September 2018 after mediation failed. They had the first court date in October 2018.

4. Mr Sachs provided a list of dates and times on which he took care of the children. It shows:

   ·      Each week from 28 April 2018 to 26 May 2018 he had one night of care per week (Saturday to Sunday).

   ·      He had two nights of care from 2 June to 4 June 2018 (Saturday to Monday);

   ·      He had 4 nights of care from 8 June to 12 June 2018 (Friday to Tuesday).

   ·      For seven consecutive weekends, starting on 15 June 2018, he had three nights of care (Friday night to Monday morning).

   ·      He had no care on the weekend from 3 to 6 August 2018.

   ·      He had three nights of care from 10 to 13 August 2018 (Friday to Monday).

5. Mr Sachs said he wrote down when the children were dropped off and picked up. Between June and August 2018 the children would be dropped off by Ms Sheedy late on Friday evening, after he came home from work. As he would return to work on Monday at 2 pm, Ms Sheedy would pick up the children during the morning.

6. The Tribunal asked about how he maintained the records. Mr Sachs said he had kept records of when the children were with him and that Ms Sheedy had seen him write down when the children came into and left his care.

7. He said that after he commenced court proceedings for care in July 2018, from August 2018, Ms Sheedy refused to let him have access to the children. They had previously attempted mediation which was unsuccessful.  

8. Mr Sachs stated that Ms Sheedy had made unfounded allegations against him which resulted in interim court orders being issued under which he had supervised access of four hours per week for a period of time. However, after he disputed the allegations and provided evidence the orders were changed and he currently has unsupervised access every Sunday from 9 am to 5 pm, pending the final orders.

9. Ms Sheedy disputed that Mr Sachs had three nights of care of the children, but did acknowledge he had care from Friday to Sunday morning. However, she confirmed that she would bring the children to his home late at night, after he finished work, and also that she picked the children up. She had no recollection about the nights of care and said the matter confused her. However, she was sure that Mr Sachs did not have the children for as many nights as he said he did.

10. She could not recall when the children stopped spending time overnight with Mr Sachs.

11. The Tribunal found that the primary issue in dispute between the parties is whether Mr Sachs had three nights of care per week from June to August 2018, and also whether his care ceased on 4 August 2018 (as asserted by Ms Sheedy) or whether Mr Sachs last had care of the children on 13 August 2018.

Was Mr Sachs’s percentage of care from 30 May 2018 correct?

1. On 30 May 2018 Mr Sachs first notified the Department that he was expecting to have care of both children for one night a week. Ms Sheedy subsequently agreed with that pattern of care and, on 25 July 2018, the assessment was made according to both parties evidence at the time.

2. It was only after Mr Sachs lost care of the children in August 2018 that he advised that he had had more care than expected, namely three nights of care, for the children from about June 2018.

3. As far as the Tribunal could establish, there was no particular discussion or agreement reached between the parties which led to the increase of care from one night to three nights per week. Mr Sachs suggested the change in pattern was because it suited Ms Sheedy not to have care of the children for extra nights. Ms Sheedy appeared to concede that Mr Sachs had more than one night of care per week for some of the period but denied it was a regular pattern of three nights per week and specifically denied that Mr Sachs’s care schedule was correct.

4. There is contemporaneous evidence that in May 2013 both parties agreed to a pattern of 14% care to Mr Sachs. Mr Sachs’s care schedule shows that the pattern of one night of care per week had been ongoing since April and continued until at least 2 June 2018.

5. The Tribunal is satisfied that the decision of 25 July 2018, which increased Mr Sachs’s care percentage to 14% from 30 May 2018 was correctly made under section 54F of the Act.

6. The objection decision which upheld the decision of 25 July 2018 must thus be affirmed.

Can Mr Sachs’s percentage of care be increased from 2 June 2018?

1. Mr Sachs has argued that from the weekend commencing 2 June 2018 his care was substantially more than one night per week and has asked his care percentage to be worked out on that basis.

2. However, the Tribunal has, in this case, no power to vary the percentage of care with effect from 2 June 2018 because the original decision made on 25 July 2018, and the objection decision, were about the change notified on 30 May 2018, not about any later changes.

3. Any changes in the pattern of care for the children after 30 May 2018 needed to be notified within 28 days, for the change in the care percentage to take effect from the date of the change.

4. Mr Sachs did not ask the Department to increase his care percentage for the period from June until November 2018. The first evidence of actual care he provided was given earlier, in a letter dated 4 September 2018, received by the Department on about 11 September 2018. Both notifications were more than 28 days after 2 June 2018, and thus cannot result in an increase of the care percentage from that.

5. More importantly, by 4 September 2018 Mr Sachs had no care at all of the children, so an earlier increase in the interim between 30 May 2018 and the date he lost care, could no longer have any practical effect.

6. The Tribunal thus finds that the decision made on 25 July 2018 to determine Mr Sachs’s care percentage as 14% for both children was correct and the objection decision must be affirmed.

When did Mr Sachs cease having care of the children? 

1. The parties agreed that after August 2018 Mr Sachs no longer had overnight care of the children.

2. Ms Sheedy notified the Department on 29 August 2018 that Mr Sachs had no overnight care of the children from 4 August 2018.

3. On 31 August 2018 Mr Sachs told the Department that the care had not changed while, at the same time, advising that Ms Sheedy had stopped a few weeks earlier taking the children to him because they were awaiting a court decision. Of course, both statements were not quite true: by 31 August 2018 Mr Sachs’s overnight care of the children had ceased, and the first court date was still some way off.

4. However, the Tribunal accepts that Mr Sachs may have believed, at that time, that his care would be restored in the foreseeable future. His evidence was that he had no care of the children on the weekend of 3 to 5 August 2018, which is consistent with Ms Sheedy’s evidence, but that he had three nights of care on the weekend after, from 10 to 13 August 2018.

5. The Tribunal has some difficulty accepting that Ms Sheedy, who claimed she did not want the children spending time with the father because of “stories” they told, would prevent the children from being in his care from 3 to 5 August 2018 but would again enable access for three nights the following weekend.

6. There is no other corroborating evidence to show that Mr Sachs lost care from 13 August rather than 4 August 2018.

7. On the balance of probabilities, the Tribunal finds that Mr Sachs’s care of the children ended on 4 August 2018 and that, therefore, the decision made on 3 October 2018 was correct. Thus, the Tribunal finds that the objection decision is to be affirmed.

DECISION

The decisions under review are affirmed.