Sauerwein and Buwalda (Child support)

[2021] AATA 1692

Sauerwein and Buwalda (Child support) [2021] AATA 1692 (27 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC020689

APPLICANT:  Ms Sauerwein

OTHER PARTIES:  Child Support Registrar

Mr Buwalda             

TRIBUNAL:Member R King

DECISION DATE:  27 April 2021

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the actual 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 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 Sauerwein and Mr Buwalda are the parents of [the child] who is currently aged 17 years.  Under an administrative assessment, the Child Support Agency (CSA) has been collecting child support from Mr Buwalda for payment to Ms Sauerwein. From 30 June 2011, [the child]’s care was recorded as 51% with Ms Sauerwein and 49% with Mr Buwalda.  After receiving notification from the Family Assistance Office (FAO) that, from 4 October 2019, [the child]’s care was 58% with Mr Buwalda and 42% with Ms Sauerwein, the CSA recorded those percentages for purposes of determining the amount of child support payable by Mr Buwalda.

2. On 11 May 2020, Mr Buwalda contacted the CSA and advised that he had been providing [the child] with 12 nights of care each fortnight as well as 50% of the care nights during school holidays, since 1 October 2019.  As a care percentage determination had already been made by the FAO, Mr Buwalda was advised, on 19 June 2020, that this care percentage would remain unless it was changed by an objections officer.

3. On 14 July 2020 (more than 28 days after the original change of care determination following FAO advice, but less than 28 days after notification that the care percentage determination by the FAO would not be changed), Mr Buwalda objected to the care percentage decision for [the child], stating that [the child] stayed with him throughout each school week because Ms Sauerwein lived on the other side of Brisbane, remote from [the child]’s school.  Mr Buwalda further stated that [the child] spends every second weekend and half the school holidays with him.

4. On 25 January 2021, an objections officer allowed Mr Buwalda’s objection.  The objections officer accepted a care calendar provided by Mr Buwalda.  The objections officer noted evidence provided by Ms Sauerwein that [the child] makes her own decisions where she stays.  However, the objections officer was not satisfied that Ms Sauerwein’s evidence was such as to displace the pattern of care established by Mr Buwalda’s calendar.  The objections officer was satisfied that this pattern meant that Mr Buwalda had 78% of [the child]’s care and Ms Sauerwein had 22% of [the child]’s care from 4 October 2019.  The objections officer decided that the change of care percentage could only have effect from 19 June 2020 (when Mr Buwalda lodged his objection) because there were no special circumstances that prevented him from lodging an objection within 28 days of the original change of the care decision.

5. On 29 January 2021 (within 28 days of receiving the objection decision), Ms Sauerwein applied to the tribunal for review of the care percentage decision.  Mr Buwalda applied to be added as a party to Ms Sauerwein’s application and his application was accepted by the tribunal.

6. The tribunal conducted a hearing on 7 April 2021.  Both Ms Sauerwein and Mr Buwalda participated by conference telephone and provided sworn evidence.  The tribunal deferred a decision to allow both parties to provide further evidence and/or make written submissions.

CONSIDERATION

1. Ms Sauerwein told the tribunal that she moved to [Suburb] in October 2019.  She said that because [the child] was attending a school that was local to Mr Buwalda, they came to an arrangement whereby [the child] would spend each school week with Mr Buwalda but that [the child] would make her own decisions where she stayed on weekends and during school holidays.  Ms Sauerwein said that [the child] spent much more time with her than every second weekend and half the school holidays, as claimed by Mr Buwalda.  She said that there were periods in 2020 when [the child] was not attending school and stayed with her after a row with Mr Buwalda. She said that [the child] knows that she can stay with her whenever she wants and she regards it is as being unfair that the CSA expects her to repay child support that she received in good faith.  Ms Sauerwein told the tribunal that she can produce [the child]’s travel records, which will establish that [the child] spent more time with her than the 22% determined by the objections officer.

2. Mr Buwalda told the tribunal that he and Ms Sauerwein had agreed that [the child] would spend each school week with him as well as every second weekend and half the school holidays.  He said that the arrangement was agreed by text message exchange but he is unable to provide a record of the exchange because he has a new phone.  He said that [the child] did spend a school week with Ms Sauerwein in 2020 after a row, when he insisted she return to school when face-to-face classes resumed after the COVID-19 lockdown eased.  Mr Buwalda said that [the child] returned home after a week and resumed school, which meant that the usual pattern of care was maintained.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Ms Sauerwein had 51% of [the child]’s care and that Mr Buwalda had 49% of her care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked. If the change is insufficient to require a change to the cost percentage, the original determination is revoked under section 54H of the Act. In either case, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent.

4. The evidence before the tribunal suggests that the initial care determination was revoked on 4 October 2019 after the FAO advised that it had determined that Mr Buwalda had 58% of [the child]’s care and Ms Sauerwein had 42% of her care. 

5. Mr Buwalda successfully objected to this determination and the new determination of the objections officer resulted in a change in the cost percentage, under section 55C of the Act. As a result Ms Sauerwein is required to repay some child support that she has received and is seeking a new care percentage determination, that restores the cost percentages to those based on the FAO care percentage determination.

6. The relevant care period therefore commences on or around 4 October 2019.  The tribunal has to consider the pattern of care that existed at this time, because this is when the original decision was made to revoke the pre-existing care percentage.  The tribunal can give consideration to a period of 12 months from this date to determine whether a new and stable pattern of care was established at this time.  If there was no stable pattern but rather an ad hoc arrangement, the period between 4 October 2019 and the decision of the objections officer is more salient.  In this case the two periods are much the same.

7. Ms Sauerwein submitted that care arrangements were ad hoc in that [the child] determined where she stayed outside the school week.  Mr Buwalda submitted that there was an established and mostly stable pattern of care, as set out in the calendar entries that the objections officer had accepted as being the most reliable record of actual care.

8. The tribunal gave consideration to the records of [the child]’s public transport travel, provided by Ms Sauerwein.  The records show a substantial preponderance of travel in the general locality of Mr Buwalda’s residence, which is also the location of [the child]’s school.  The tribunal invited Ms Sauerwein to make specific submissions as to any part of the travel records that were inconsistent with the care calendar provided to CSA by Mr Buwalda.  Ms Sauerwein did not make submissions in this respect but rather advised the tribunal that she did not have a sufficiently exact memory of care dates to be able to provide sworn evidence as to the dates when [the child] was in her care.

9. The tribunal notes that the hearing papers contain third party statements provided to the CSA.  The tribunal is of the view that while these statements clearly establish that both parents were active care providers, they do not allow any definitive conclusions regarding the pattern of care.

10. The tribunal is satisfied, on the evidence of both parties, that, prior to the original change of care decision, [the child]’s care had not been provided in accordance with a court order or formal parenting plan. This means that the tribunal is not required to determine an interim care period under sections 51 and 53A of the Act. It follows that, if the tribunal is satisfied that the existing determination, as made by the objections officer, must be revoked under section 54F, the tribunal must apply section 50 of the Act which requires a care determination based on actual care.

11. In this case, it is not in dispute that there was a change in care arrangements in October 2019, when Ms Sauerwein moved to [Suburb], which was remote from [the child]’s school.  Further, it is not in dispute that Mr Buwalda typically provided [the child] with five nights of care while she was attending school.  What is in dispute is the amount of care provided by each parent during weekends and school holidays. 

12. The objections officer found that the care was equally shared during these periods as set out in Mr Buwalda’s care calendar.  The evidence before the tribunal does not warrant a change in the care determination made by the objections officer.  The tribunal accepts that [the child] may have exercised some autonomy with respect to care arrangements during weekends and holidays, but it does not follow that this resulted in Ms Sauerwein providing a preponderance of care during weekends and school holidays.  It is a reasonable presumption that most of [the child]’s friends were in the locality around the school.  To disturb the decision of the objections officer, there must be evidence before the tribunal that requires a different finding of facts or evidence that the objections officer erred in application of the child support law, as it related to determination of care percentage.  The tribunal is not satisfied that a different finding of facts is required or that the law has been wrongly applied.

13. The tribunal accordingly finds that from 4 October 2019, Mr Buwalda provided 78% of [the child]’s care and Ms Sauerwein provided 22% of her care.

DECISION

The tribunal affirms the decision under review.