Selvey and Laurence (Child support)

[2018] AATA 3205

Selvey and Laurence (Child support) [2018] AATA 3205 (19 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014122

APPLICANT:  Mr Selvey

OTHER PARTIES:  Child Support Registrar

Ms Laurence

TRIBUNAL:Member A Schiwy

DECISION DATE:  19 July 2018

DECISION:

The decisions under review are affirmed.

CATCHWORDS
Child support - Percentage of care - No change to the likely pattern of care - Refusal to revoke the existing percentages of care determination - 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. Mr Selvey and Ms Laurence are the separated parents of [Child 1], who turned 18 [in] July 2018.  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. Mr Selvey lives in [City 1, State 1] and Ms Laurence lives in [City 2, State 2].

3. On 4 November 2017, Mr Selvey advised the Department of Human Services (Child Support) that [Child 1] was to be in his care from 4 November 2017 to 13 January 2018; the school holidays. On 8 November 2017, Child Support determined that Mr Selvey had 19% care of [Child 1] from 4 November 2017.

4. On 9 November 2017, Mr Selvey advised Child Support that [Child 1] had decided to stay with Mr Selvey and seek employment (rather than return home to complete year 12).

5. On 13 November 2017, Ms Laurence rang Child Support and said she was not happy with the decision made on 8 November 2017.  She was advised of her objection rights and said she would lodge the objection within 28 days.  Child Support then informed her of the request from Mr Selvey to determine he has 100% care.  Ms Laurence stated that [Child 1] told her he was returning in January 2018 to do year 12.  She advised Child Support that she would contact [Child 1] to see if he had changed his mind.  She rang back the next day to say that [Child 1] could not be withdrawn from school unless he had another school to go to or had commenced employment. 

6. On 21 November 2017, a Child Support employee determined that [Child 1] was 100% in Mr Selvey’s care from 9 November 2017 (decision under review).  

7. On 12 December 2017, Ms Laurence contacted Child Support to state that [Child 1] was moving back to [City 2, State 2] permanently sometime prior to the end of January 2018.  She was told that a change in care could not be made until the change actually occurred.

8. On 17 January 2018, Ms Laurence objected to the decision under review on the basis that [Child 1] had returned to her care on 13 January 2018.  She also requested that special circumstances be considered when determining the date of effect of the objection decision.

9. On 18 May 2018, the objection was allowed; that is, there was no change in care since the decision made on 8 November 2017.  It is assumed by the tribunal that the objection officer also determined that the date of effect is from 9 November 2017.

10. On 21 May 2018, Mr Selvey applied to this tribunal) for an independent review of the objections officer’s decisions.

11. A hearing into the application for review was held by the tribunal on 19 July 2018 in Hobart.  Mr Selvey and Ms Laurence both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.    

12. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsections 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 150.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula, which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. In determining whether there has been a change in care the primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. The issues to be considered by the tribunal are:

   ·Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

   ·Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

1. Mr Selvey provided the following evidence to support his case:

   ·[Child 1] usually came to [City 1, State 1] for part of his summer school holidays and this time he had decided to stay for the entire break as he wanted to get to know his father better.

   ·A few days after he arrived in [City 1, State 1], [Child 1] spoke to Mr Selvey about staying long term; he discussed doing a TAFE bridging course and obtaining an apprenticeship.  Mr Selvey advised [Child 1] to let his mother know of his plans but apparently [Child 1] did not contact his mother.

   ·[Child 1] obtained a casual position [and] the plan was to begin a formal apprenticeship in 2018.  [Child 1] had been to TAFE to discuss the requirements.  He was discussing buying [Child 1] a work ute and going through TAFE to get his [authorisation] to work [in certain environments] and enrolling him to study in 2018.

   ·On 7 December 2017, Ms Laurence asked [Child 1] to send his school in [City 2, State 2] a letter of employment and to the best of Mr Selvey’s knowledge, [Child 1] did this.

   ·There was a forced holiday at Christmas time so [Child 1] did not work after Christmas eve.  He told Mr Selvey he wanted to go home for a short break.  [Child 1] was going to return to [City 1, State 1] after spending time with Ms Laurence for her birthday and going to a cousin’s 21st birthday.

   ·[Child 1] did not initially tell him that he wanted to go back to [City 2, State 2] but it became more apparent later on.

   ·[Child 1] did not give his employer notice until the day before he left [City 1, State 1] (13 January 2018).  He was reluctant to let his new employer down.

2. Ms Laurence provided the following evidence to support her case:

   ·[Child 1] told her in early 2017 that he wanted to go to [City 1, State 1] earlier than usual; as soon as term finished.  She booked a return ticket. [Child 1] was to stay with Mr Selvey from 4 November 2017 to 13 January 2018 for a holiday only. 

   ·Apparently Mr Selvey and [Child 1] had discussed the idea of [Child 1] staying in [City 1, State 1] but they did not initially discuss it with her and no agreement was reached.  She believes [Child 1] only thought about staying on permanently a couple of weeks after he arrived in [City 1, State 1].

   ·When she did speak to [Child 1] about his plans (early December 2017) he told her he wanted to stay in [City 1, State 1] and build a relationship with his father.  She commenced arrangements to have his school enrolment for 2018 withdrawn.

   ·[Child 1] advised her at the end of November or beginning of December that he would not be staying in [City 1, State 1] and on 11 December 2017 he sent a text message confirming he was returning to [City 2, State 2].  Initially he wanted to return immediately but later that day he said he would stay on until the 13 January 2018 given that the flight had been booked.

   ·She tried to stop the enrolment being cancelled but the school had closed down for the holidays.

   ·[Child 1] is renowned for changing his mind about important matters; he does so frequently and quickly.  He changes his mind about what career to choose every few weeks and also which football club he wants to play for.

   ·[Child 1] did not initially tell his father or his employer about his change in plans as he did not want to upset them.

   ·The reason her objection was not within 28 days was because she was told by Child Support that there was nothing she could do until a change in care occurred.

3. The parents’ evidence was not conflicting.  The tribunal found that:

   ·[Child 1] was to stay with Mr Selvey from 4 November 2017 to 13 January 2018;

   ·On or around 9 November 2017 [Child 1] told his father that he wanted to stay in [City 1, State 1] long term and commence an apprenticeship.  He obtained a casual position soon after this with the view of commencing an apprenticeship with that employer sometime in 2018.

   ·On or around 6 December 2017 [Child 1] discussed his plans with Ms Laurence and she withdrew his school enrolment.

   ·On or around 11 December 2018 [Child 1] had changed his mind about staying in [City 1, State 1] but did not discuss this with Mr Selvey.

4. The tribunal needs to decide what the likely pattern of care was at 9 November 2017; the date Mr Selvey requested a change in care.  At that time, [Child 1] had not discussed his plans with Ms Laurence or obtained an apprenticeship.  The tribunal accepts that it is normal for a 17 year old to change career plans. 

5. Given his age and the fact that [Child 1] had not discussed his plans with both parents, and had not commenced a formal apprenticeship, the tribunal concluded that as at 9 November 2017 it was too soon to say that there had been a change in care. 

6. The tribunal therefore concluded that there had not been a change in care on 9 November 2017. 

7. In this case Ms Laurence lodged her objection to the original decision more than 28 days after the decision was made. Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (Registration and Collection Act) states that in such a case the date of effect is the date the person lodged the objection.  Ms Laurence applied under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing her from lodging the objection on time.

8. The Child Support papers show that Ms Laurence contacted them on 13 November 2017 and 14 November 2017 disputing that [Child 1] would not return to her care on 13 January 2018.  She was advised that a decision may be made to accept that Mr Selvey had 100% care and if [Child 1] did return she could seek a change in care at that time.  On 12 December 2017 (within 28 days of the original decision) Ms Laurence rang Child Support to say [Child 1] was returning home on 13 January 2018 and she was advised that she could not do anything until the change in care had physically occurred. 

9. The tribunal decided that Ms Laurence’ circumstances were out of the ordinary.  It was clear that she disputed the decision but was advised that there would be nothing she could do until [Child 1] returned to her care.  In the Child Support Guide, at chapter 4.1.8, the Registrar sets out the policy for determining if special circumstances exist and includes the situation where the parent reasonably relied upon inaccurate or misleading information.  The tribunal decided that the discretion under subsection 82AA(2) of the Registration and Collection Act should apply.  The date of effect of the decision is therefore from 9 November 2017.

DECISION

The decisions under review are affirmed.