Savard and Crosland (Child support)

[2018] AATA 1221

Savard and Crosland (Child support) [2018] AATA 1221 (6 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/PC013045

APPLICANT:  Ms Savard

OTHER PARTIES:  Child Support Registrar

Mr Crosland

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  06 March 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentages of care - Likely pattern of care changed - 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. This review is about the percentage of care determinations for Ms  Savard and Mr Damian Crosland in respect of the children [Child 1] and [Child 2].

2. Ms Savard and Mr Crosland are the parents of [Child 1] (born March 2007) and [Child 2] (born November 2010).

3. From 1 April 2015 the child support assessment reflected Ms Savard as having 72 per cent care of the children and Mr Crosland as having 28 per cent care.

4. On 7 March 2017 Mr Crosland notified the Department of Human Services, Child Support (the Child Support Agency) that from 28 February 2017 there had been a change of care with Mr Crosland providing 100 per cent care of the children.

5. On 7 June 2017 the Child Support Agency made the decision to reject the change of care as advised by Mr Crosland.

6. On 20 July 2017 Mr Crosland objected to this decision and on 21 September 2017 the Child Support Agency allowed the objection and made the decision to record that Mr Crosland had 100 per cent care of the children and Ms Savard had zero per cent care from 28 February 2017 (the objection decision).

7. On 5 December 2017 Ms Savard applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

8. The Tribunal conducted a hearing into the application on 6 March 2018.  Both Ms Savard and Mr Crosland attended the hearing in person with Ms Savard giving sworn evidence and Mr Crosland giving evidence on affirmation.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (247 pages).  Additional evidence was provided by Mr Crosland prior to hearing (B1-B23).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for [Child 1] and [Child 2] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Ms Savard told the Tribunal at hearing she disagreed with the decision made by the Child Support Agency giving 100 per cent care of the children to Mr Crosland as the information he provided was not correct.  She said she had continued to have care of [Child 1] and [Child 2] from February 2017 but acknowledged Mr Crosland had increased care between April and June.

2. Ms Savard said there was a written parenting plan that had been in place since 2015 which had been signed by both parents.  It gave care to her of 72 per cent and to Mr Crosland of 28 per cent and she believed it was still in place in February 2017 when Mr Crosland contacted the Child Support Agency.

3. Ms Savard said that she had a six month lease on a property in [Suburb 1]until 1 April 2017 as she had then planned on moving to [Suburb 2].  Up until that point the children were in her care most nights of the week.  She said that Mr Crosland had care every second weekend and one night during the week.  When the move to [Suburb 2]fell over she stayed with a friend, [Ms A], from April until June when the children were with her around 50 per cent of the time.  Then she found her own accommodation again [in] [Suburb 3] and care returned to the usual 72 per cent to her and 28 per cent to Mr Crosland.

4. Ms Savard referred to a letter provided by [Ms A]which states that Ms Savard was staying with her in [address] from 1 April 2017 until 31 May 2017 and [Child 1] and [Child 2] also stayed with them for two to three nights a week.

5. The Tribunal notes that in her application Ms Savard provided evidence from her grandmother, [Ms B], dated 11 November 2017.  The letter from [Ms B]states that Ms Savard “had the children in her care from the 1^st of November 2016 – 1^st April 2017, and during school holidays which they spent with me in [Suburb 4]”.  The letter does not state how much care Ms Savard had of the children during this particular period.  It goes on to state that Ms Savard had 72 per cent care from “April-8^th June 2017 and June to September…”.  Ms Savard provided an additional letter from her mother-in-law, however, this did not provide any clear information relating to the level of care Ms Savard had of [Child 1] and [Child 2].  It states, “The only time I am aware she has not had the full time care of her children has been when she has been ‘couch surfing’…”.

6. Ms Savard said that care changed again in September 2017 when Mr Crosland began to have more overnight care as they had been trying to “work things out.”

7. Ms Savard also pointed out what she felt were discrepancies in the evidence provided by Mr Crosland and in the third party statements provided by his relatives.  She said Mr Crosland had told the Child Support Agency in his objection dated 20 July 2017 that he had been taking care of both children for at least the last six months but he had also said that care changed from 28 February 2017.  She said these dates did not add up to six months.  She also said that Mr Crosland had written in the same application that the mother would only have the children one to two days a fortnight.  She said this made it clear he did not have 100 per cent care.  Ms Savard also said the letter provided by [Ms C]in June stated Mr Crosland had care for the last four months while the letter provided by[Mr D], also dated in June, stated Mr Crosland had care for the past four or five months.

8. Ms Savard also drew the attention of the Tribunal to a letter provided by Mr Crosland dated 2 February 2018 which states he would like to “share custody 50/50”, when an agreement had already been reached from 22 January 2018 that care would be 50-50 to each parent.  The Tribunal pointed out, however, that the letter from the Child Support Agency advising both Mr Crosland and Ms Savard that care had changed to 50-50 was dated 29 January 2018.  It is possible Mr Crosland had not seen the letter from the Child Support Agency before writing his letter dated 2 February 2018.  

9. Mr Crosland told the Tribunal he could not explain the slight differences in the dates but reiterated the children had been in his care full-time for the past 12 months. He said during that time [Child 1] and [Child 2] had stayed with Ms Savard for a night here and there but because she had been a bit in limbo and had not been able to provide a proper place for the children to live they had not stayed with her regularly.

10. Mr Crosland said he disputed what Ms Savard’ mother-in-law had said in her letter and found it nasty and untruthful.  He said Ms Savard’ mother-in-law did not know him and he could not understand why she would make such statements.  He said the information he had provided so far, including the letters, was proof of the amount of care he provided for his children.  He said Ms Savard had always been welcome to spend more time with the children but when he had tried to change the care arrangements in the past it had not worked.  He said she would not come to collect the children when she was supposed to.

11. The Tribunal notes in evidence provided by the Child Support Agency copies of third party statements from [Ms C], [Mr D]and Ms Debbie Stacey which support the level of care claimed by Mr Crosland.  The first two of these letters are dated in June 2017 while the third is undated.  Evidence provided to the Tribunal by Mr Crosland also includes third party statements from [Ms E]dated 1 February 2018 (B13), [Ms F]and [Mr G] dated 3 February 2018 (B9) and [Ms H]dated 4 February 2018 (B8).  There are also undated letters from [Mr I](B11) and [Mr J](B12).  The statement from Mrs Crosland says the children have lived permanently with her and her son since 28 February 2017.  The statements from[Ms H], [Mr I]and [Mr J]also say the children have been living with Mr Crosland since February 2017.  The statement from [Ms F]and [Mr G]does not provide a date when the children were living with Mr Crosland. 

12. Mr Crosland has also provided evidence in the form of a letter from [Primary School 1]in [Suburb 3], dated 27 July 2017, which states the residential address of [Child 1] and [Child 2] as[address].  This is Mr Crosland’s address.  There is also an additional confirmation of address for the children from [Primary School 1] dated 5 February 2018.

13. Mr Crosland said when care had changed and he started having the children full-time he told the Child Support Agency he did not want them to collect the overpayment to Ms Savard.  He told the Tribunal this was because he knew she was going through a hard time and he did not want to put her under any further pressure.  He said he wanted Ms Savard to have more care of the children and that was why he had agreed to care being 50-50.

14. Mr Crosland agreed care of the children before the change in February 2017 was 72 per cent to Ms Savard and 28 per cent care to him.  He said care had changed because the children wanted to spend more time with him after he had come out of adrug rehabilitation facility.  Mr Crosland said he had been unemployed since coming out of rehabilitation and so was able to care for the children and take them to school.  He said as he was living with his mother at the moment, if he could not drop them off or pick them up from school, she would instead.

15. Mr Crosland said on the few occasions the children did stay with Ms Savard it would be arranged by telephone, and he would pick them up or sometimes she would drop them off.  He said it was never a regular event.

16. Ms Savard said in response that there had been previous issues with relatives of Mr Crosland providing false and misleading information about care of the children.  She said at one point she had even asked for care exchanges to be supervised so an independent witness could verify when the children stayed with her but Mr Crosland would not agree.  She added that Mr Crosland had changed the home address of the children at their primary school without her knowledge and pointed out this letter did not state the level of care.

17. Ms Savard said she had a disagreement with Mr Crosland in February about the arrears he owed in child support and she felt this was the reason why he had made up the change in care.  She also said that it did not make sense for Mr Crosland to have 100 per cent care of the children if, as he admitted, he was having issues with depression.

18. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determination must be revoked and replaced by a new percentage of care determination.

19. Both parents agree that prior to the change in care claimed by Mr Crosland in February 2017, care of the children followed a pattern of 72 per cent care to Ms Savard and 28 per cent care to Mr Crosland.  There is no agreement, however, about care of the children from this date onwards.  Mr Crosland states he had 100 per cent care of [Child 1] and [Child 2] and Ms Savard only had care every now and then.  Ms Savard states she continued to have 72 per cent care of the children up until 1 April when care changed to 50-50 care for approximately three months until she found her own accommodation again.

20. The Tribunal finds there are some discrepancies in the evidence provided by both parents.  The Tribunal also notes Ms Savard did not participate in either the original decision or the objection decision processes.  When asked she said she initially took it for granted that care would not be changed by the Child Support Agency as there was a written parenting plan in place.  Then she was not aware of the objection decision until it had taken place. She told the Tribunal that was why she had appealed so she could now set the record straight.

21. Mr Crosland has provided considerable third party evidence supporting his claim of 100 per cent care of the children.  While he admits Ms Savard had care of [Child 1] and [Child 2] for one to two nights on “some fortnights” he also said this was never a regular event.  On the other hand, Ms Savard has provided some evidence of her level of care after 1 April 2017 but no firm evidence to support her claim of 72 per cent care of the children prior to this date.

22. Although the Tribunal finds it difficult to make a decision based on the contradictory views of both parents, the weight of evidence suggests there was a change of care in February 2017 when Mr Crosland states he had 100 per cent care of [Child 1] and [Child 2].  The Tribunal finds the evidence provided by Ms Savard to be less convincing.  The Tribunal therefore finds Mr Crosland had 100 per cent care of [Child 1] and [Child 2] from February 2017.

23. As section 54F of the Act is met, the Tribunal finds the previous determination must be revoked and replaced with the agreed pattern of care.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Ms Savard and Mr Crosland. 

2. For the reasons outlined above the Tribunal finds that Mr Crosland provides 100 per cent care and Ms Savard provides zero per cent care of [Child 1] and [Child 2].  This means the percentage of care determination set out in the objection decision remains.

Date of effect of new percentage of care determination

1. Mr Crosland notified the Child Support Agency of the change in care on 7 March 2017 which is less than 28 days after the change occurred on 28 February 2017.  Therefore, according to section 54F of the Act, the date of effect is the date when the change in care took place.

2. As the decision made by the Child Support Agency in relation to any special circumstances that may have prevented Mr Crosland from objecting earlier was not before the Tribunal, the new determination can be made from 28 February 2017.

DECISION

The decision under review is affirmed.