Scarlett and Shelton (Child support)

[2019] AATA 5205

Scarlett and Shelton (Child support) [2019] AATA 5205 (28 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017124

APPLICANT:  Mr Scarlett

OTHER PARTIES:  Child Support Registrar

Miss Shelton

TRIBUNAL:Member M Baulch

DECISION DATE:  28 October 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of their children and the percentages of care. 

2. Mr Scarlett and Ms Shelton are the separated parents of [Child 1] and [Child 2].  Since 6 December 2004 the Department of Human Services – Child Support (the Department) has made assessments of child support in respect of the children.  Since 1 June 2018, those assessments had been based upon Mr Scarlett having 0% care of the children and Ms Shelton having 100% care.

3. On 14 March 2019, Mr Scarlett contacted the Department to advise that there had been a change in the care arrangements for the children from 1 September 2018. 

4. On 10 May 2019, the matter was considered by a departmental employee who decided that there should be a change to the assessment; such that, from 7 September 2018, the percentages of care for [Child 1] should record Mr Scarlett as having 21% care and Ms Shelton 79% care and the percentages of care for [Child 2] should record Mr Scarlett as having 34% care and Ms Shelton 66% care.

5. Ms Shelton objected to that decision and, on 18 July 2019, that objection was allowed.  The objections officer decided that there should be no change to the percentages of care that had applied since 1 June 2018 (the decision under review).  Mr Scarlett has now applied to this tribunal for an independent review of that decision.

6. A hearing into the application for review was held by the tribunal on 28 October 2019.  Mr Scarlett and Ms Shelton both discussed the application for review with the tribunal by telephone and both gave sworn evidence during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing.  Ms Shelton was represented by [her named representative], of counsel, who made submissions on Ms Shelton’s behalf. 

7. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 776.  The tribunal also had regard to additional material lodged by Mr Scarlett, labelled folios A1 to A34.  Both parties confirmed they had received copies of all the documents prior to the tribunal hearing.

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what the care percentages should be applying to the child support assessment in respect of [Child 1] and [Child 2].

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their children.

2. Since 1 June 2018, the child support assessments applying in respect of Mr Scarlett and Ms Shelton have been based upon Mr Scarlett having 0% care of [Child 1] and [Child 2] and Ms Shelton having 100% care.

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

4. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

For there to be a change to the cost percentage for either child applying for Mr Scarlett in the administrative assessment, it would have to be demonstrated that Mr Scarlett’s percentage of care was at least 14%.

1. On 14 March 2019, Mr Scarlett advised the Department that there had been a change to the care arrangements applying in respect of [Child 1] and [Child 2] from 1 September 2018, under which he had more than 14% care of the children.

2. Unless a care arrangement applies, the care arrangement is not being complied with and a parent is taking action to enforce that care arrangement or make a new care arrangement, the Registrar will determine the pattern of care based upon the extent of the actual care that a parent has of their child.  A care arrangement is a formal arrangement about the care of a child or children and includes a written agreement, court order or parenting plan.[1] 

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.  

3. While there are historic court orders in place in this case, neither parent has followed them for some time.  Therefore, the percentages of care are to be based upon the actual care taking place.

4. Mr Scarlett’s evidence was that [Child 1] and [Child 2] stay with him every Tuesday and from Friday to Sunday most of the time.  He explained that this is the care arrangement that occur approximately two-thirds of the time. 

5. Mr Scarlett advised me that he records the nights [Child 1] and [Child 2] spend with him on a calendar, and he has transcribed this information into lists of dates he has provided to the Department and this tribunal (see, for example, folios A14 and A15).  Questioning revealed that these lists are not original or contemporaneous records, but are lists he has prepared by reference to his own calendar records.

6. In addition, Mr Scarlett has provided letters from [Child 1’s] and [Child 2’s] aunt, uncle and grandmother, which state:

   I hereby confirm that both [Child 1] & [Child 2] have been in the care of their father Mr Scarlett during the dates as stated in the attached document.

7. Mr Scarlett has also provided copies of text communications between himself and the children, in addition to photographs of the children.

8. In response, Ms Shelton disputed the number of nights Mr Scarlett claims [Child 1] and [Child 2] were in his case.  In support, she has provided handwritten lists for each child, which record whether or not each child stayed with her or was in Mr Scarlett’s care.  Ms Shelton advised me that she updated these lists each day to record when the children are in either her or Mr Scarlett’s care. 

9. The only contemporaneous record of the care that occurred are the handwritten lists provided by Ms Shelton.  While Mr Scarlett has also provided handwritten lists, they are not contemporaneous records. 

10. I found the letters written by [Child 1’s] and [Child 2’s] aunt, uncle and grandmother of little evidential value.  I have no way of knowing to which attached document the writer was referring.  I also noted that all are written on a pro-forma letter, in which only the details of the writer changed, and all are authored by persons related to Mr Scarlett who might reasonably be expected to support his assertions as to when he had care of the children.

11. The texts and photos are evidence that Mr Scarlett has contact with his daughters, but this is not disputed.  I found them not to be particularly instructive for the purposes of my determining when [Child 1] and [Child 2] were in their father’s care.

12. I formed the view that the evidence that should be given the most weight is the contemporaneous handwritten lists provided by Ms Shelton.  Having regard to those lists, I accepted that Mr Scarlett has had care of [Child 1] and [Child 2] since 1 September 2018.  However, I was not persuaded that Mr Scarlett is having a pattern of care from 1 September 2018 that has either [Child 1] or [Child 2] in his care for at least 52 nights per year (on average, this equates to one night each week).  As the evidence does not substantiate Mr Scarlett as having care of at least 14% in respect of either child, there is no basis to revoke the existing care percentage determinations for either [Child 1] or [Child 2] under either section 54F of the Act.

13. Section 54G of the Act provides that an existing care percentage determination that gives a person at least regular care of a child (that is, more than 14%, but less than 35%: subsection 5(2) of the Act) must be revoked if a person’s actual care is less than 14% despite the other parent making the child available to that person.  In this case, the existing care determinations did not reflect a care arrangement that gave either parent regular care.  I found that section 54G of the Act has no application in this case.

14. Section 54H of the Act provides that an existing percentage of care may be revoked if the actual care being provided would change a person’s care percentage recorded even though it would not change the person’s cost percentage in the child support assessment.  The reason for this discretion was set out in the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010, which relevantly stated:

    This discretion allows the Registrar to maintain accurate records of changes in care and, because of the alignment provisions, this assists in keeping accurate records for [family tax benefit] and child support. 

    Mr Scarlett’s percentage of care has no impact on an entitlement to family tax benefit, unless that percentage was at least 35%.[2]  As there is no evidence that Mr Scarlett has a care percentage at a level that would impact on an entitlement to family tax benefit, I declined to exercise the discretion provided for in section 54H of the Act

    [2] See subsection 22(7) of the A New Tax System (Family Assistance) Act 1999.

15. Sections 54FA and 54HA of the Act provides discretion to suspend an existing care percentage determination, in specific circumstances, where that determination is an interim determination made for the purposes of subsection 51(4) of the Act.  As no interim determination made for the purposes of subsection 51(4) of the Act apply in this case, the discretions provided for in sections 54FA or 54HA of the Act are not enlivened.

16. I consequently found no basis to revoke or suspend the existing care percentage determinations applying in the child support assessment that record Mr Scarlett as having 0% care of [Child 1] and [Child 2] and Ms Shelton as having 100% care.  This means that there is no change to the care percentages that have applied in the child support assessment since 1 June 2018 and I consequently affirmed the decision under review.

DECISION

The decision under review is affirmed.