Sandridge and Zelly (Child support)

[2024] AATA 1888

Sandridge and Zelly (Child support) [2024] AATA 1888 (2 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027539

APPLICANT:  Mr Sandridge

OTHER PARTIES:  Child Support Registrar

Ms Zelly

TRIBUNAL:Member S Letch

DECISION DATE:  2 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages recording Mr Sandridge’s care of [the child] as 28% and Ms Zelly’s care as 72% ought not to have been revoked.

CATCHWORDS

CHILD SUPPORT – percentage of care – short and minor deviation from usual arrangements during child’s illness does not warrant revocation of existing pattern – common sense, ‘broad brush’ approach – decision under review set aside

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 Sandridge and Ms Zelly are the parents of [the child]. This matter concerns a decision by Child Support about his recorded care.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 14 February 2024:

   …

   DECISION UNDER REVIEW

   Our decision made on 16 June 2023, to reflect the care of [the child] as 100% to Ms Zelly and 0% to Mr Sandridge from 15 March 2023, notified on 15 March 2023.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   Mr Sandridge and Ms Zelly have had a registered Child Support case for [the child] since 18 May 2021.
   Prior to the decision under review, the care for [the child] was reflected as actual care of 72% to Ms Zelly and 28% to Mr Sandridge from 19 October 2021.

   On 15 March 2023, Ms Zelly lodged a change in care for [the child]. Ms Zelly advised that she had
   100% care of [the child] from 15 March 2023.

   On 13 June 2023, Mr Sandridge advised from the 26 April 2023, they had new court orders issued in which the care is occurring in accordance with the written care arrangement. Mr Sandridge advised [the child] was in
   their care five nights a fortnight, which they claimed needed to be adjusted.

   On 15 June 2023, Ms Zelly advised that 26 April 2023 is incorrect as [the child] was ill and returned to
   Mr Sandridge's care on 27 April 2023. Ms Zelly advised the court ordered care was for the makeup of 5 nights of care that Mr Sandridge missed in the period 15 March 2023 to 26 April 2023 (six weeks). As the makeup care was not equivalent to the care missed over this period, Ms Zelly requested that the period over which Mr Sandridge had below regular care for [the child] be appropriately accounted for in the assessment.

   On 16 June 2023, Mr Sandridge confirmed that he has been awarded five makeup days for the period 15
   March 2023 to 27 April 2023. Mr Sandridge advised that he does not wish to initiate disputed care even
   though the Court Ordered care was being followed before 15 March 2023 when Ms Zelly first
   withheld care. Mr Sandridge explained he did take immediate action (via court) to restore his care. Mr Sandridge
   accepted the date of event of 27 April 2023 for the new care plan.

   On 16 June 2023, we made the decision to reflect actual care of [the child] as 100% to Ms Zelly and 0% to Mr Sandridge from 15 March 2023. We made a subsequent decision to reflect actual care of [the child] as 65% to Ms Zelly and 35% to Mr Sandridge from 27 April 2023.

   …

   Mr Sandridge and Ms Zelly have both confirmed the care arrangements for [the child] as 100% to Ms Zelly and 0% to Mr Sandridge from 15 March 2023.

   …

   Section 53(1)(c) of the Child Support (Assessment) Act 1989 prevents us from making an interim
   care determination under section 51. We are prevented from making such determinations where a previous care determination has been revoked under sections 54F or 54H of the Child Support
   (Assessment) Act 1989.

   As the original determination would be required to be revoked under sections 54F or 54H of the
   Child Support (Assessment) Act 1989 to make an interim care determination, an interim
   determination under section 51 could not have been considered in this instance. Therefore, the
   decision to apply the actual care determinations under sections 49 and 50 of the Child Support
   (Assessment) Act 1989 will be applied.

   Therefore, on review, we have made the decision to reflect the care of [the child] as 100% to Ms Zelly and 0% to Mr Sandridge from 15 March 2023, notified on 15 March 2023. This is effective until 26 April 2023, and from 27 April 2023 the care for [the child] is reflected as 65% to Ms Zelly and 35% to Mr Sandridge, notified on 13 June 2023.

   The objection is disallowed.

   …

3. Mr Sandridge and Ms Zelly participated in the Tribunal’s hearing by conference telephone.

4. In summary, Mr Sandridge said that he only missed a couple of weeks of care. Child Support has misunderstood what was happening during this period. After 15 March 2023, he resumed care for two nights per week from 30 March 2023. In other words, he only missed about four nights or so; in the new orders applied from 27 April 2023, he was given a number of “make up nights” to cover those missed nights.

5. Ms Zelly was understandably initially unclear about what took place during this period of time given the passage of time. However, when her attention was drawn to a document she supplied to Child Support (see folio 161 of the Child Support hearing papers) on 18 September 2023, she agreed with the nights Mr Sandridge had indicated he had [the child] in his care during the disputed period.

Application of the law

1. Care percentage determinations are governed by subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that each care change is the subject of a separate notification, and separate decision. This application concerns a closed period from 15 March 2023 to 26 April 2023, after which a new determination was made.

3. I also note that whilst it appears clear Mr Sandridge was taking reasonable action for enforcement of the care arrangements, an interim period could not apply. This is because there have been significant developments in this area of the law. The recent Federal Court decision in Child Support Registrar v CMU23 [2024] FCA 109 found that in most instances, interim care determinations cannot not be made. Recent amendments have passed: see the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 which is intended to rectify what was essentially a drafting error. As I understand it, the current position of Child Support is that for any care changes which occurred between 2018 and 28 March 2024, even if an interim care period was previously granted and now reviewed by this Tribunal, the Tribunal would be bound to apply the law as it then was. That law did not permit Mr Sandridge being granted the benefit of an interim care period.

4. The upshot of this is that actual care must be recorded. Here, Child Support appears to has assumed Mr Sandridge had no care during this period. The evidence of the parties contradicts that position.

5. Care determinations tolerate small deviations and some missed care events. A common sense, “broad brush”, approach is generally adopted. This is particularly so where “make up days” are proposed for missed care events. I accept here the new orders made provision for prior lost care.

6. Here, it appears that for a very short period of about two weeks, there was minor deviation from the usual arrangements. Mr Sandridge’s pattern of two nights a week resumed at the end of March 2023. In my assessment, that small “break” does not warrant a revocation of the existing recorded pattern of care. I consider the preferable decision to be that the existing care percentages (giving Mr Sandridge 28% care and Ms Zelly 72%) should not have been revoked.

7. This means that Mr Sandridge’s care of [the child] will be recorded as 28% for the period 15 March 2023 to 26 April 2023.

8. As this is a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages recording Mr Sandridge’s care of [the child] as 28% and Ms Zelly’s care as 72% ought not to have been revoked.