Sharkey and Zane (Child support)

[2017] AATA 2902

Sharkey and Zane (Child support) [2017] AATA 2902 (29 November 2017)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012457

APPLICANT:  Mr Sharkey

OTHER PARTIES:  Child Support Registrar

Ms Zane

TRIBUNAL:Member F Staden

DECISION DATE:  29 November 2017

DECISION:

The 10 August 2017 objection decision under review is set aside and a new decision substituted to reject Ms Zane’s 19 April 2017 application for a change to her percentage of care for the children from 6 March 2017.

CATCHWORDS
Child support – Care percentage decision – Temporary change to pattern of care – No change to existing percentages 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. Mr Sharkey and Ms Zane are the separated parents of two children (the children). This review is about the care of the children from 6 March 2017.

2. On 4 February 2017, the Department of Human Services – Child Support (the Department) decided that from 25 October 2016, Mr Sharkey’s child support liability was to be assessed on the basis that his care percentage for both the children was 14% and that of Ms Zane was 86%. Neither party requested review of this decision.

3. On 19 April 2017, Ms Zane informed the Department that on 6 March 2017 her care percentage for the children changed from 86% to 100%.

4. The Department contacted Mr Sharkey on 4 May 2017 about the care change notified by Ms Zane. He is recorded as asking to be called back. The Departmental record of the conversation states that Mr Sharkey was informed that that facility was not offered and that if he did not contact the Department by close of business on that day the care change would be accepted.

5. On 8 May 2017, the Department determined that since 6 March 2017 Mr Sharkey’s care percentage for both the children was 0% and that of Ms Zane’s was 100%. The date of effect of this decision was 19 April 2017 as the Department was notified of the care change more than 28 days after that change occurred.

6. Mr Sharkey objected to the 8 May 2017 decision on 6 June 2017, stating that his care percentage continued to be 14%.

7. Both parents were asked to provide evidence in support of their care percentage claims:

   ·     On 28 June 2017, Mr Sharkey is recorded as telling the Department that he would provide a care diary with dates and events plus third party statements by 14 July 2017. The Department sent an online letter to Mr Sharkey on 28 June 2017 confirming that the evidence was required by 14 July 2017.

   ·     On 28 June 2017, the Department wrote to Ms Zane requesting evidence in support of the 6 March 2017 care percentage change by 26 July 2017. On 25 July 2017, Ms Zane asked the Department for more time to respond to Mr Sharkey’s objection and was given until 4 August 2017.

   ·     On 4 August 2017, Ms Zane provided written evidence in relation to the care she provided for the children in the period 19 January 2017 to 10 April 2017. A redacted copy was sent to Mr Sharkey on 7 August 2017 and he was asked to respond by 14 August 2017.

8. On 10 August 2017, the Department decided to disallow Mr Sharkey’s objection and informed him of this by telephone on 11 August 2017 and letter dated 11 August 2017.

9. In a contact with the Department on 14 August 2017, it transpired that since a 2 June 2017 letter, all Departmental letters were being sent to Mr Sharkey electronically. Mr Sharkey stated that he was not aware of this and so did not receive the 28 June 2017 letter requesting evidence in support of his care percentage objection.

10. Mr Sharkey provided a care diary and a response to Ms Zane’s 4 August 2017 evidence on 14 August 2017. This evidence was not taken into account in the objection decision which was made four days earlier.

11. On 6 September 2017, Mr Sharkey applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision.

12. A hearing was conducted on 29 November 2017. Mr Sharkey and Ms Zane gave sworn evidence by telephone. The tribunal also had before it documents provided by the Department (150 pages), a copy of which was sent to Mr Sharkey and Ms Zane before the hearing.

13. 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

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

1. For an existing care percentage to be revoked, it must first be established that there has been a change in the pattern of care. A temporary departure from an established pattern of care will not generally be considered to constitute a change to that pattern of care.

2. The tribunal discussed the children’s care in the relevant period with Mr Sharkey and Ms Zane. Both parties agreed that:

   ·     Mr Sharkey had care of the children from 4.00pm on Saturday 4 March 2017 to 6.00pm on Sunday 5 March 2017.

   ·     From 29 April 2017, the pattern of Mr Sharkey usually having care of the children every other weekend (equivalent to a care percentage of 14%) was resumed.

3. In relation to the period 6 March 2017 to 28 April 2017, the tribunal noted the following:

   ·     Mr Sharkey was scheduled to have care of the children on the weekends Friday 17 March 2017 to Sunday 19 March 2017 and Friday 31 March 2017 to Sunday 2 April 2017. Both parties agreed that Mr Sharkey did not have overnight care of the children on these weekends because the children did not want to stay with him. The parties disagreed about the reasons why the children did not want to stay with Mr Sharkey.

   ·     Mr Sharkey and Ms Zane agreed they had planned to share care of the children in the school holidays which ran from Saturday 8 April 2017 to Tuesday 25 April 2017. However, both wanted care of the children in the second week. Mr Sharkey noted that he was unable to get time off work for the first week of the holidays. Ms Zane said that she wanted care of the children in the second week so that she could get them ready to go back to school. The parties agreed that what actually happened was that the children spent all the school holidays in the care of Ms Zane.

   ·     At hearing, Mr Sharkey withdrew that part of his care diary which stated that he had had care of the children on the nights of Friday 14 April 2017 and 15 April 2015.

   ·     Mr Sharkey said that he had care of the children on the night of 28 April 2017. Ms Zane said that her care diary indicated that she had care of the children on that night.

4. The tribunal carefully considered the available evidence. The tribunal noted that in the period 6 March 2017 to 28 April 2017 Mr Sharkey was first scheduled to have care of the children on Friday 17 March 2017 and thus this was the first point at which he did not provide care. Mr Sharkey was scheduled to provide one week of care for the children in the school holidays (Saturday 8 April 2017 to Tuesday 25 April 2017) but this did not occur. Thus the period for which Mr Sharkey did not provide his scheduled care for the children was between three and five weeks, depending on which week of the school holidays he is considered not to have provided care.

5. On balance, the tribunal was not persuaded that a change in the pattern of the children’s care occurred on 6 March 2017. Rather the tribunal found that there was a temporary disruption to the existing pattern of care which was then re-established. Accordingly, the tribunal therefore found that the existing care percentages of 14% to Mr Sharkey and 86% to Ms Zane should not be revoked.

DECISION

The 10 August 2017 objection decision under review is set aside and a new decision substituted to reject Ms Zane’s 19 April 2017 application for a change to her percentage of care for the children from 6 March 2017.