Shannon and Shannon (Child support)

[2018] AATA 2290

Shannon and Shannon (Child support) [2018] AATA 2290 (15 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013660

APPLICANT:  Ms Shannon

OTHER PARTIES:  Child Support Registrar

Mr Shannon

TRIBUNAL:Member W Kennedy

DECISION DATE:  15 May 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support - Percentages of care - No change to the likely pattern of care - 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. Ms Shannon and Mr Shannon are the parents of two children.  One of the children is no longer a child of the assessment  This application concerns the percentages of care of [Child 1], who was born in 2003, used in the child support assessment.

2. From 26 October 2015 the child support assessment was based on Mr Shannon having 23% care and Ms Shannon having 77% care of [Child 1].

3. On 27 June 2017 Ms Shannon advised the Child Support Agency of the Department of Human Services (the Department) that she had 99% care of [Child 1].  Following discussions with both parents, on 9 August 2017 the Department decided to reject Ms Shannon’s advice on the basis that the Department could not be satisfied that Mr Shannon had a reduced level of care.

4. On 25 August 2017 Ms Shannon objected to the decision, stating that Mr Shannon was overseas when he was supposed to have care of [Child 1].  Both parties provided third party statements in support of their assertions.  On 13 December 2017 a Department objections officer disallowed the objection, finding that the criteria for a change of care had not been satisfied.

5. On 7 March 2018 Ms Shannon applied to this Tribunal.  The Tribunal considered the application and determined the matter on 15 May 2018.  In considering the application the Tribunal took into account the oral evidence of Ms Shannon and Mr Shannon together with the documentary material provided by the Department (folios 1 to 224).  Copies of these documents were provided to both parties prior to the hearing.  Ms Shannon and Mr Shannon both attended the hearing by conference telephone and gave their evidence under affirmations.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of [Child 1] in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law that applies to this application is found in the Child Support (Assessment) Act 1989 (the Act).

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called “particulars of the assessment”.  This includes the “percentage of care” for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Ms Shannon said that there are consent orders of the Family Court (folios 86 to 88) under which Mr Shannon is to have two nights’ care per fortnight (three nights where the relevant period is followed by a holiday) plus the first week during each of the school holidays and an extra week at Christmas.  This is construed as being 23% care.  Mrs Shannon said that in fact Mr Shannon had failed to follow the consent orders.  In support of her assertion Ms Shannon has provided three third party letters (folios 129 to 131), which together identify five days when Ms Shannon had care of [Child 1].  She has also provided a calendar showing a schedule of tutoring booked for [Child 1] during June 2017 (folio 59).  It shows that [Child 1] was booked to have tutoring on 28 and 29 June 2017, which was during the first week of school holidays for [School 1], the school attended by [Child 1].  At the hearing Mr Shannon said that this only shows that Ms Shannon had booked tutoring, not that [Child 1] attended.  He asserted that he had care of [Child 1] during the holidays in accordance with the consent orders.

11.  Ms Shannon has stated in her written evidence that Mr Shannon had care of [Child 1] on the weekend of 22/23 July 2017 and 5/6 August 2017 in accordance with the consent orders.  She said that he missed the night of Friday 18 August 2017.  Mr Shannon said that he may have missed a night but that there would have been a good reason for this.  He said that [Child 1] may have had some commitment for the night.

12.  At the hearing Mr Shannon said that he had generally followed the court orders and where it was not possible to do so he had made it up on other weekends.  Mr Shannon has provided four third party letters (folios 69, 75, 76 and 81) which clearly identify only one day when Mr Shannon had care of [Child 1] but which refer more generally to Mr Shannon having care of [Child 1].  Mr Shannon has also provided various other documents which he suggests support his position (such as his rental agreement) but which the Tribunal finds to be inconclusive.

13.  Both parties have provided third party statements and other documentation, none of which is particularly compelling.  The most that can be said is that the documentary evidence shows that both parties have had some care of [Child 1] during the period.  Although the evidence is far from conclusive the Tribunal finds that on balance it is likely that at the relevant time care was occurring in accordance with the consent orders, or nearly so.  The most convincing evidence is that provided by Ms Shannon in which she confirms Mr Shannon’s care in July and August 2017 (folio 142).

14.  After carefully considering all of the evidence available to it the Tribunal has determined that there is insufficient evidence of a change of care having taken place on or prior to 27 June 2017.  However the Tribunal notes that Ms Shannon has made a further application for a change of care with effect from 28 February 2018 (folio 179).  That application does not affect the Tribunal’s determination in relation to the decision under review and the Tribunal’s determination does not affect any decision that may be made in relation to Ms Shannon’s subsequent application.  As there is insufficient evidence of a change of care the Tribunal finds that at the relevant time care was continuing in accordance with the consent orders and in accordance with the assessment in effect at the time of the application.

DECISION

The decision under review is affirmed.