Sennett and Child Support Registrar (Child support)

[2018] AATA 1238

Sennett and Child Support Registrar (Child support) [2018] AATA 1238 (8 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC013096

APPLICANT:  Ms Sennett

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member F Staden

DECISION DATE:  8 March 2018

DECISION:

The 6 December 2017 objection decision under review is set aside and a new decision substituted to accept Ms Sennett’s 4 July 2017 application to change her care percentages used for [Child 1] and [Child 2] to 100% and those used for Mr A to 0% from 28 June 2017.

CATCHWORDS
Child Support – Percentages of care – Determination of the likely pattern of care – 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 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. Ms Sennett and Mr A are the separated parents of four children. This review is about the care of [Child 1], born 2006, and [Child 2], born 2012.

2. On 5 August 2017, the Department of Human Services – Child Support (the Department) decided to refuse Ms Sennett’s request for a change to the care percentages used for [Child 1] and [Child 2] from 28 June 2017 on the basis that she had not provided evidence of the change.

3. On 15 August 2017, Ms Sennett objected to the 5 August 2017 decision and on 17 August 2017, Mr A disputed Ms Sennett’s objection.

4. On 6 December 2017, an objections officer disallowed Ms Sennett’s objection on the basis that the conflicting evidence of the parties meant that it was not possible to determine whether a new care arrangement was in place.

5. On 13 December 2017, Ms Sennett applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

6. A hearing was conducted on 7 March 2018. Ms Sennett gave sworn evidence by telephone. Mr A was informed he could apply to be a party to the proceeding by letter dated 3 January 2018. No response was received. A second application form was sent to Mr A on 31 January 2018 plus he was told of the hearing by telephone on 1 February 2018. Mr A did not apply to be a party to the proceeding.

7. The tribunal had before it documents provided by the Department (136 pages), a copy of which was sent to Ms Sennett before the hearing. Prior to the hearing, Ms Sennett provided the tribunal with additional material (pages A1 to A31), a copy of which was given to the Department.

8. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Department’s online technical and policy guide to the administration of the child support scheme.

2. The Department, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a percentage of care and a cost percentage for each parent in relation to each child.

3. The Department decides each parent’s percentage of care in line with sections 49 to 54L of the Assessment Act. These provisions require the Department to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require the Department, or here the tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate, the care period.

5. The issues which arise in this case are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when?

CONSIDERATION

Context – [Child 1]

1. From 13 November 2014 to 11 May 2017, Ms Sennett’s care percentage for [Child 1] was assessed as 86% and that of Mr A as 14%.

2. On 28 June 2017, the Department determined that from 12 May 2017 Ms Sennett’s care percentage for [Child 1] was 14% and that of Mr A was 86%. Ms Sennett stated that her mental and physical health were poor at this time and she asked Mr A to provide more care for [Child 1] and her younger sister as she needed a break. Ms Sennett provided evidence that she was subsequently diagnosed with a very serious medical condition which explained why she was so unwell at that time.

3. On 4 July 2017, Ms Sennett informed the Department that from 28 June 2017 her care percentage for [Child 1] was 100%. On 14 July 2017, Mr A disputed this, stating that there had been no change in the care arrangements for [Child 1].

4. Ms Sennett told the tribunal that [Child 1] was unhappy living with Mr A. She asked to come home and Ms Sennett said that she could. This was around the beginning of the mid-year school holidays. Ms Sennett reported that [Child 1] had not spent a night at Mr A’s home since 28 June 2017.

5. On 26 September 2017, in the period between Ms Sennett’s objection and the objections officer’s decision, Ms Sennett informed the Department that from 22 September 2017 her care percentage for [Child 1] was 100%.

6. On 17 February 2018, Mr A confirmed that [Child 1] was 100% in Ms Sennett’s care from around 20 September 2017 and the Department decided that Ms Sennett’s care percentage for [Child 1] was 100% from 22 September 2017.

Context – [Child 2]

1. From 13 November 2014, the assessment for [Child 2] was based on care percentages of 86% for Ms Sennett and 14% for Mr A.

2. A previous application by Ms Sennett to have her care percentage for [Child 2] changed to 100% from 6 March 2017 was rejected by the Department. Ms Sennett did not object to this decision. She told the tribunal that, as noted above, her mental and physical health were poor at the time, and she did not have the energy to respond.

3. On 4 July 2017, Ms Sennett informed the Department that from 28 June 2017 her care percentage for [Child 2] was 100%. On 14 July 2017, Mr A disputed this, stating that there had been no change in the care arrangements for [Child 2].

4. Ms Sennett told the tribunal that [Child 2] has a disability. As a result of intensive therapy from an early age, he is able to attend a mainstream school. [Child 2] is very attached to Ms Sennett and is reluctant to be away from her. She said that [Child 2] dislikes staying with Mr A but does like spending time with his older brother who lives with Mr A. Ms Sennett reported that [Child 2] has not spent a night in Mr A’s care in the period from 28 June 2017 on.

Additional evidence

1. In addition to their evidence to the Department, and in Ms Sennett’s case, to the tribunal, both Ms Sennett and Mr A provided third party evidence about the care they provide for [Child 1] and [Child 2]:

   ·     Mr A’s evidence, statements from his father and sister, relates to the care of [Child 1], not [Child 2]. His sister’s statement is dated 1 June 2017, before the date of the possible care change under review here. His father’s statement is undated but was first faxed to the Department on 14 June 2017, before the date of the possible care change under review here.

   ·     Ms Sennett provided a statement dated 19 October 2017 from a friend and sometime carer for the children, which read in part: “… I have … witnessed  [Child 1] and  [Child 2] are in full time care and residence 100% with Sennett … all … children are attending … Public School.” As the children did not all attend the named Public School, [Child 1] went to a different Public School and [Child 2] did not start school until 2018, the accuracy of this statement is questionable.

   ·     In her additional evidence to the tribunal, Ms Sennett included a copy of a 14 December 2017 letter to her from Mr A’s solicitor, about consent orders in relation to care arrangements. The letter could be taken to mean that Mr A was not then providing 14% of [Child 2]’s care (he had already acknowledged he was not providing care for [Child 1] from around 20 September 2017) as it reads in part:

   The orders state that my client will spend time with all 4 of his children at his home each alternate weekend commencing Friday evening until Sunday afternoon. Ideally, he would like this arrangement to start as soon as possible.

2. Here the tribunal noted the record of a contact between Mr A and the Department on 17 August 2017, in which Mr A is recorded as saying:

   … he tries to have a regular care of [Child 2] and [Child 1] for two nights Friday and Saturday nights every second weekend. He sometimes … also have [sic] Sunday night once every two months. This care continues through the school holidays. He believes his level of care for [Child 1] and [Child 2] is accurately reflected as 14%.

3. The tribunal noted that Mr A “tries to have regular care of [Child 2] and [Child 1]”. This is not a statement of actual care provided. It is not clear what stops Mr A having regular care of [Child 1] and [Child 2]. There are no care arrangements in place for any of the children, written or otherwise. As noted above, Mr A sought consent orders about time with the children in December 2017. The matter was due to be in court in January but was adjourned. Ms Sennett was initially unrepresented but a support service is now providing her with a solicitor. Ms Sennett said that she would not agree to care arrangements until Mr A paid the child support he owes her. She also said that Mr A had reported that he could not afford to go to court.

4. Ms Sennett told the tribunal that when, in the past, she and Mr A made arrangements for him to have contact with the children, including [Child 1] and [Child 2], he has not always followed them, sometimes not turning up or not returning the children as arranged and sometimes asking her to do all the necessary driving. She also said that, in the past, she has sometimes not made the children available to Mr A because, for example, he had not paid child support. Relevantly here, Ms Sennett was clear that neither [Child 1] nor [Child 2] has spent a night in Mr A’s care since 28 June 2017 because neither wished to do so.

Conclusion

1. The key question before the tribunal is what was the likely pattern of care for [Child 1] and [Child 2] in the care period, appropriately here a year, beginning 28 June 2017. The tribunal found Ms Sennett to be a credible witness, although her very stressful circumstances, particularly relating to her health, caused her to sometimes be confused about the order of events. The tribunal did not have an opportunity to take evidence from Mr A as he chose not to take part in the hearing.

2. Weighing the evidence before it, the tribunal found that:

   ·     From 28 June 2017, Ms Sennett’s care percentage for [Child 1] was 100% and that of Mr A was 0%; and

   ·     From 28 June 2017, Ms Sennett’s care percentage for [Child 2] was 100% and that of Mr A was 0%.

Issue 1: Should the existing care percentage determinations be revoked?

1. Subsection 54F(1) of the Assessment Act sets out certain circumstances in which a determination of care percentage must be revoked and the tribunal is satisfied that those circumstances exist in this case:

   · There are existing care percentage determinations under section 50 of the Assessment Act. From 12 May 2017, Ms Sennett’s care percentage for [Child 1] was 14% with a cost percentage of 24% and Mr A’s care percentage for [Child 1] was 86% with a cost percentage of 76%. From 13 November 2014, Ms Sennett’s care percentage for [Child 2] was 86% with a cost percentage of 76% and Mr A’s care percentage for [Child 2] was 14% with a cost percentage of 24%.

   · There is no care arrangement, as defined in the Assessment Act, in place for [Child 1] or [Child 2], for example, a court order or a parenting plan. Therefore neither section 51 nor section 52 of the Assessment Act applies to the existing determinations;

   ·     On 4 July 2017, Ms Sennett informed the Department that care for [Child 1] and [Child 2] had changed from 28 June 2017;

   ·     If the care percentages for [Child 1] and [Child 2] are changed in line with the conclusion above, each parent’s cost percentage for each child will change; and

   · The tribunal was satisfied that section 54G of the Assessment Act does not apply in this case.

2. As the requirements of subsection 54F(1) of the Assessment Act were met, the tribunal revoked the existing care percentage determinations for Ms Sennett and Mr A.

3. Subsection 54F(2) of the Assessment Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the care change within 28 days of when it occurred.

4. Here Ms Sennett informed the Department of the changes to the care of [Child 1] and [Child 2] within 28 days of the change taking place. Therefore, under paragraph 54F(2)(c), the revocation of the existing determinations takes effect on 27 June 2017, the day before the day the care change took place.

Issue 2: Should new care percentage determinations be made and, if so, from when?

1. If a person’s existing care percentage determination for a child is revoked, there is a requirement under sections 49 and 50 of the Assessment Act that a new care percentage be determined if that person has had or is likely to have a pattern of care in the period the Child Support Registrar (here the tribunal) considers to be appropriate having regard to all the circumstances.

2. The tribunal considered an appropriate care period in this case to be 28 June 2017 to 27 June 2018. The tribunal determined that in this period, under section 50 of the Assessment Act, Ms Sennett’s care percentage for both [Child 1] and [Child 2] is 100% and, under section 49 of the Assessment Act, Mr A’s care percentage for both [Child 1] and [Child 2] is 0%.

3. Under section 54B of the Assessment Act, the date of effect of the new care percentage determinations is the day after the revocation of the existing determinations. The tribunal revoked the existing determinations with effect from 27 June 2017 and so the new determinations apply from 28 June 2017.

DECISION

The 6 December 2017 objection decision under review is set aside and a new decision substituted to accept Ms Sennett’s 4 July 2017 application to change her care percentages used for [Child 1] and [Child 2] to 100% and those used for Mr A to 0% from 28 June 2017.