Sadberry and Corbin (Child support)

[2019] AATA 2193

Sadberry and Corbin (Child support) [2019] AATA 2193 (13 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016120

APPLICANT:  Mr Sadberry

OTHER PARTIES:  Child Support Registrar

Ms Corbin

TRIBUNAL:Member A Schiwy

DECISION DATE:  13 June 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care on 1 May 2017. For the purposes of the child support assessment, as a result of the tribunal’s determination under section 95N of the Child Support (Registration and Collection) Act 1988, the date of effect of the decision is 19 March 2019.

CATCHWORDS

CHILD SUPPORT – date of effect of the tribunal’s decision – whether there were special circumstances that prevented the application for review being lodged in time – special circumstances do not exist – percentage of care – whether there was a change to the likely pattern of care in 2017 – the date of effect of the tribunal’s decision is the date the application for review was lodged

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 Sadberry and Ms Corbin are the separated parents of two children.  This application for review is about the respective percentages of care that each parent has for the children.

2. The Department of Human Services (Child Support) made a determination that Ms Corbin had 86% care of the children and Mr Sadberry had 14% care.

3. On 6 June 2018, as part of a response to an objection to another matter, Ms Corbin applied to Child Support for a change in care and stated that Mr Sadberry had not had the children in his care for at least 52 days a year since May 2017. 

4. On 29 September 2018 Child Support decided that there had not been a change in care.

5. On 17 October 2018 Ms Corbin objected to the care decision.  On 19 December 2018 the objections officer decided to allow the objection deciding that Ms Corbin had 88% care of the children, and Mr Sadberry had 12% care from 1 May 2017 with the date of effect being 6 June 2018.  This decision was notified to the parents, by post, on 30 January 2019.

6. On 19 March 2019 Mr Sadberry applied to this tribunal for an independent review of the objection officer’s decision.

7. A hearing into the application for review was held by the tribunal on 13 June 2019.  Mr Sadberry and Ms Corbin participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  A copy of the papers was provided to the parents prior to the hearing.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations, and therefore also of the new determinations, depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, and to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. Mr Sadberry is [an occupation] and his roster is in blocks of four weeks.  Both parents agreed that they had an arrangement where Mr Sadberry would have the children in his care for four nights during each four week block in his roster.  He would also have the children for two further five day periods when it could be arranged.  The parents agreed that the arrangement was flexible. The agreement had been in place since sometime in 2015.

5. Based on the care arrangement Mr Sadberry would therefore have a minimum of 52 days care per year and up to 62 days.  A care percentage based on a period of between 52 days and 62 days makes no difference to the child support assessed; however, if care drops below 52 days (14%) there is a difference.

6. As part of a submission dated 4 June 2018 for an objection to a different matter, Ms Corbin stated that during the 12 month period from May 2017 to May 2018, Mr Sadberry only had the children for 33 days.  Mr Sadberry stated that during that period there had been three disruptions to the normal care pattern; Ms Corbin took the children to [Country 1] for an extended holiday; Ms Corbin arranged for the children to stay with their maternal grandparents in Canberra over the summer holidays (the parents live in Sydney); and he was on a training program for two months which disrupted his shifts. 

7. Both parents provided calendars showing care: Mr Sadberry for a three year period and Ms Corbin from 8 May 2017 to 16 March 2018 (provided in October 2018).  The calendar of care provided by Mr Sadberry shows that he had the children for nine days in April 2017 and September/October 2017; that is, before and after the children went to [Country 1].  It shows that he missed six scheduled days when the children were in Canberra. He has recorded having care of the children for 162 days over the period 14 September 2015 to 16 September 2018 (177 days if taken to 9 December 2018).  For the first 12 months he had 61 days care, 49 days in the second and 52 in the third.

8. At hearing Mr Sadberry stated:

   ·He believes the dates he noted in his care records are correct (refer to page 254) and over the period 14 September 2015 to 16 September 2018 he had the children for 162 days and missed 18 days. 

   ·Any reductions in the care pattern are only temporary.

   ·He only has two weeks notice of his new four week roster and when he gets his roster he works out when he can have the children.  When he was training there was no regular roster which made it difficult to plan.

   ·He believes Ms Corbin notes in her dairy when they planned for him to have care of the children and not the actual days he had care.

9. At hearing Ms Corbin stated:

   ·The care arrangements had been very flexible and often have to change due to Mr Sadberry having other commitments.  She gets little notice from Mr Sadberry when he wants to have the children.

   ·There was no discussion about changing the care arrangements in May 2017, but when she looked back over the previous year she realised Mr Sadberry had less than 52 days care.

   ·She went to [Country 1] from around the end of May 2017 to mid August 2017.  She sought Mr Sadberry’s permission about six months prior to the trip.  Mr Sadberry had ‘make-up time’ for this absence for a week before and after her trip.  Ms Corbin agreed that up until mid-August 2017, due to the make-up time, the care arrangement was being met.

   ·From mid August to December 2017 the care pattern was normal.

   ·When she arranged for the children to stay in Canberra Mr Sadberry told her he would visit them there but he did not.

   ·She disputes some of the dates Mr Sadberry provided in his calendar; in particular during April 2018.  She does not think he had the children from 18 to 20 April 2018 but rather from 22 to 23 April 2018.  The tribunal noted that Ms Corbin had no time in her calendar marked for August 2017 whereas Mr Sadberry noted that he had the children on 24 August 2017 and 27 to 30 August 2017.  Ms Corbin said he may have had them then. She fills in the diary whenever they agree to care dates for Mr Sadberry.

   ·Mr Sadberry has been ensuring the care arrangement has been met since she applied for a change with Child Support.

10. Ms Corbin’s own evidence is that up to mid-August 2017 their care arrangement was being followed.  Mr Sadberry’s calendar entries indicate that he has had at least 52 days care in two of the three years reviewed and 49 for the middle year which includes the trip to [Country 1] but not the second ‘make- up’ period.  The selection of the period May 2017 to May 2018 is not considered to be indicative of the normal pattern of care and any reduction during that period appears to be due to one off events.

11. The tribunal concluded that there had been no change in care as at May 2017.  The parents had not agreed to any change in the pattern and any reduction in days was due to a one off event.

12. Mr Sadberry did not apply to this tribunal within 28 days of the objection decision; after allowing for postage periods he was still out of time by a week. In this situation the date of effect will be the date of application unless the tribunal finds that special circumstances prevented Mr Sadberry from applying earlier – subsection 95N(2) of the Child Support Registration and Collection Act 1988.

13. Mr Sadberry applied for the review on 19 March 2019.  He said that he had been in discussion with Child Support about an application for a further change in care.  Child Support decided that there had been another change in care (back to 86%/14%) but the date of effect was August 2018.  Mr Sadberry said when the decision was made not to back date until the 6 June 2018 he decided to lodge an application to this tribunal.  The tribunal decided that there were no special circumstances preventing Mr Sadberry from lodging the application within 28 days of the objection decision. 

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care on 1 May 2017. For the purposes of the child support assessment, as a result of the tribunal’s determination under section 95N of the Child Support (Registration and Collection) Act 1988, the date of effect of the decision is 19 March 2019.