Schaapwol and Sialkirk (Child support)
[2024] AATA 4113
•30 August 2024
Schaapwol and Sialkirk (Child support) [2024] AATA 4113 (30 August 2024)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2024/BC027856
APPLICANT: Ms Schaapwol
OTHER PARTIES: Child Support Registrar
Mr Sialkirk
TRIBUNAL:Senior Member R Ellis
DECISION DATE: 30 August 2024
DECISION:
The Tribunal sets aside the decision under review and, in substitution, decides that:
(a) Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022, notified on 21 June 2023; and
(b) Ms Schaapwol provides 100 per cent care of [the children] and Mr Sialkirk provides 0 per cent care from 20 September 2022, notified on 14 November 2023.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the pattern of care – court orders not followed for several years, with no regular overnight care by father – distance and teenaged children’s own interests – father’s concession that pattern later changed, then ceased – relevant policy not inconsistent with provisions of legislation – decision under review set aside and substituted
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
This review is about a change to the percentage of care determinations for Ms Schaapwol and Mr Sialkirk in respect of their children [Child 1] (born January 2007) and [Child 2] (born August 2008). There has been a child support assessment in place since 3 April 2009.
From 1 July 2012 the child support assessment reflected Ms Schaapwol as having 75 per cent care and Mr Sialkirk as having 25 per cent care of [the children].
On 21 June 2023 Ms Schaapwol notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she was providing 87 per cent care and Mr Sialkirk was providing 13 per cent care of [the children] from 1 January 2022.
On 10 October 2023 Child Support made the decision to reflect that Ms Schaapwol provides 87 per cent care of [the children] and Mr Sialkirk provides 13 per cent care from 1 January 2022.
On 15 October 2023 Mr Sialkirk objected to this decision and on 19 April 2024 Child Support allowed the objection and made the decision to reflect that Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022 (the objection decision).
On 24 April 2024 Ms Schaapwol applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 30 August 2024. Ms Schaapwol and Mr Sialkirk gave evidence on affirmation by Microsoft Teams audio. Child Support provided the Tribunal and the parties with papers relevant to the matter (419 pages).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
Child Support 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.
Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act). The task of the Tribunal on review is the same.
Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.
The issues which arise in this case are:
· has there been a change in the pattern of care for [the children] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,
· from what date should the new percentage of care determinations apply?
CONSIDERATION
Ms Schaapwol told the Tribunal that care of [the children] was the subject of 2012 court orders but these had not been followed for several years. Ms Schaapwol submitted that Mr Sialkirk was no longer having regular overnight care of the children from 1 January 2022.
The Tribunal notes in evidence from Child Support a copy of court orders handed down in the Federal Magistrates Court of Australia on 25 January 2012. The orders state that Mr Sialkirk shall spend time with [the children] for two nights each alternate weekend and up to half the school holidays.
Ms Schaapwol said she had given Child Support an outline of the dates Mr Sialkirk was providing care for the children in 2022. Ms Schaapwol acknowledged that Mr Sialkirk was having some care in 2022 but pointed out that this ceased after 19 September 2022.
The Tribunal further notes in evidence a summary of care provided to Child Support by Ms Schaapwol on 14 September 2023. It shows that from 1 January 2022 to 19 September 2022 Mr Sialkirk had care of [the children] of 37 nights in total.
Ms Schaapwol argued that when taking into account the total care in 2022, including his care after 19 September 2022, Mr Sialkirk did not have regular care of [the children].
Mr Sialkirk told the Tribunal there were court orders in place from 2012 but his care had changed in 2022. Mr Sialkirk explained that he was living in Brisbane at the time and the children were about a five-hour drive away in [Town]. Mr Sialkirk said as the children grew older and developed their own interests it became harder for them to commit to travel this long distance with him to Brisbane. Mr Sialkirk said he understood and respected their wishes although this did not mean he no longer wanted to spend time with [the children].
Mr Sialkirk argued that even though his care had declined in 2022 he considered he was providing regular care up until around 1 October 2022 when he agreed his care ceased. Mr Sialkirk added that he had also given a calendar of care to Child Support but did not dispute the summary of care provided by Ms Schaapwol and felt 37 nights was about right.
The Tribunal notes in evidence a written submission provided by Mr Sialkirk to Child Support on 14 November 2023 as part of his objection. In this submission Mr Sialkirk states that his care routine changed in early 2022 but from 1 January 2022 to 30 September 2022 his care was about 40 nights. Mr Sialkirk also states that, “I agree my care is less than 14% from 1/10/2022 for both children”.
A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. It is not in dispute and the Tribunal finds that care of [the children] changed from 1 January 2022.
Ms Schaapwol has told the Tribunal that Mr Sialkirk provided care of 37 nights from 1 January 2022 to 19 September 2022 after which his care ceased. Ms Schaapwol argues the care of 37 nights should be considered over a 12-month period from 1 January 2022. Mr Sialkirk agrees that his care changed in 2022 but submits that he was providing regular care of about 40 nights until around 1 October 2022.
There is no evidence before the Tribunal that indicates Mr Sialkirk was providing care of the children after 19 September 2022. The parents were no longer following the court-ordered care. The Tribunal is satisfied there are two distinct changes to the pattern of care for [the children] with the first commencing on 1 January 2022 and the second commencing on 20 September 2022. This approach is consistent with that taken by the Federal Court[1] where there has been a further change in care after the date of the decision under review (in this case 1 January 2022).
[1] Child Support Registrar v DQFY [2023] FCA 601.
The Tribunal finds that Ms Schaapwol provides care of 225 nights and Mr Sialkirk provides care of 37 nights in the 262-day care period from 1 January 2022 to 19 September 2022. The Tribunal has determined this based upon the level of care provided by Ms Schaapwol to which Mr Sialkirk has agreed (using the number of 40 nights provided by Mr Sialkirk makes no difference in the amount of child support he would be liable to pay). This is equal to 86 per cent care to Ms Schaapwol and 14 per cent care to Mr Sialkirk. The Tribunal also finds that Ms Schaapwol provides care of 365 nights and Mr Sialkirk provides care of 0 nights from 20 September 2022. This is equal to 100 per cent care to Ms Schaapwol and 0 per cent care to Mr Sialkirk. This second care determination will continue to apply until either parent notifies Child Support of a further change to the pattern of care for [the children].
First care percentage change
The existing percentages of care reflected in the assessment for [the children] were 75 per cent care to Ms Schaapwol and 25 per cent care to Mr Sialkirk. The Tribunal has found that Ms Schaapwol provides 86 per cent care and Mr Sialkirk provides 14 per cent care of [the children] from 1 January 2022. This does not result in a change to the cost percentage for [the children].[2]
[2] Under section 55C of the Act the cost percentage represents the percentage of a child’s costs a parent meets directly through care. When a parent has care of between 14 per cent and less than 35 per cent their cost percentage remains the same.
Mandatory revocation of care percentages applies under section 54F of the Act where the new care percentage determinations would change the cost percentage. Mandatory revocation of care percentages also applies under section 54G of the Act where one of the parents who was to have at least regular care of the child under the existing determinations now has no care or less than regular care despite the child being made available by the other parent. In this case section 54F and section 54G of the Act do not apply.
Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determinations affect the care percentage but not the cost percentage and certain other conditions are met.
In relation to discretionary revocation the Child Support Guide at 2.2.2 states:
Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If a party to an assessment advises the Registrar of a change in care that would not affect the cost percentage and seeks to have the change reflected on the Register, the Registrar should revoke the existing care percentage determination if there is evidence provided by each party, or evidence which is otherwise readily available, to allow the Registrar to determine new care percentages. This helps to ensure there is an accurate record of the care history on a case. However, if a party does not agree that a change has occurred or the readily available evidence is otherwise not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination and conduct no further investigations. This discretion enables the Registrar to decide to not proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.
Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
As section 54H of the Act is met, the Tribunal finds the previous determinations can be revoked and replaced with the pattern of care that took place so the records are accurately reflected.
Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Schaapwol and Mr Sialkirk under section 50 of the Act.
The Tribunal finds that Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022.
Date of application of first care percentage change
The Tribunal finds that Ms Schaapwol notified Child Support of the change in care on 21 June 2023 which is more than 28 days after the change occurred on 1 January 2022. Therefore, according to paragraph 54H(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.
The new determinations can be made from 21 June 2023 for Ms Schaapwol and from 1 January 2022 for Mr Sialkirk.
Second care percentage change
The existing percentages of care for [the children], in accordance with the first care percentage decision of the Tribunal, are 86 per cent care to Ms Schaapwol and 14 per cent care to Mr Sialkirk. The Tribunal has found that Ms Schaapwol provides 100 per cent care and Mr Sialkirk provides 0 per cent care of [the children] from 20 September 2022.
Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ 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 determinations must be revoked and replaced by new percentage of care determinations. As section 54F of the Act is met the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.
Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Schaapwol and Mr Sialkirk under sections 49 and 50 of the Act.
The Tribunal finds that Ms Schaapwol provides 100 per cent care and Mr Sialkirk provides 0 per cent care of [the children] from 20 September 2022.
Date of application of second care percentage change
The Tribunal notes that Mr Sialkirk provided details of the second change in care in his written submission received by Child Support on 14 November 2023. The Tribunal finds that for the purposes of paragraph 54F(3)(a) Child Support otherwise became aware of the second change in care on 14 November 2023 prior to the objection decision being made on 19 April 2024.
As this is more than 28 days after the change occurred on 20 September 2022, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.
The new determinations can be made from 14 November 2023 for Ms Schaapwol and from 20 September 2022 for Mr Sialkirk.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that:
(a) Ms Schaapwol provides 86 per cent care of [the children] and Mr Sialkirk provides 14 per cent care from 1 January 2022, notified on 21 June 2023; and
(b) Ms Schaapwol provides 100 per cent care of [the children] and Mr Sialkirk provides 0 per cent care from 20 September 2022, notified on 14 November 2023.
0