Shearman and Casey (Child support)

[2024] AATA 483

Shearman and Casey (Child support) [2024] AATA 483 (9 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026698

APPLICANT:  Mr Shearman

OTHER PARTIES:  Child Support Registrar

Ms Casey

TRIBUNAL:Member C Breheny

DECISION DATE:  09 January 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the care percentages – 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 Casey and Mr Shearman are the separated parents of [Child 1], born April 2012. They have another child not subject to this review. A child support case has been registered with Services Australia – Child Support (Child Support) since 13 July 2019. Mr Shearman was liable to pay child support to Ms Casey on the basis that the parents had equal shared care of [Child 1].

2. On 22 November 2022, Ms Casey contacted Child Support and advised that she had 75% care of [Child 1] from 16 November 2022, based on court orders made on 16 November 2022. Mr Shearman did not dispute that there had been a care change pursuant to court orders but contended the new care arrangements did not commence until 23 January 2023.

3. On 12 March 2023 a decision was made that Ms Casey had 65% care and Mr Shearman had 35% care of [Child 1] from 23 January 2023, based on court orders. On 14 March 2023 Ms Casey objected to the decision, indicating that Mr Shearman had less than 35% care of [Child 1]. She subsequently submitted a care calendar to show that Mr Shearman would have 63 nights or 17% care of [Child 1] in 2023.

4. On 24 August 2023, a Child Support objections officer decided to partly allow the objection. The objections officer found that Mr Shearman had 19% care and Ms Casey had 81% care of [Child 1] from 23 January 2023, in accordance with the court orders made on 16 November 2022.

5. On 31 August 2023, Mr Shearman applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 9 January 2024. Ms Casey and Mr Shearman attended the hearing by telephone and gave evidence on affirmation. I had before me the statement and documents provided by Child Support pursuant to section 37 and section 38AA of the Administrative Appeals Tribunal Act 1975, received on 3 October 2023 and 22 December 2023 respectively (documents numbered 1–461).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to [Child 1] on the basis that section 51 does not apply in the particular case. Section 51 of the Act provides that a care determination may be made (known as an “interim care determination”) if court orders specifying care arrangements are not complied with and the parent with reduced care takes “reasonable action” to have the court orders complied with. 

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case, records indicate that the child support liability had been calculated on the basis that Ms Casey had 51% care and Mr Shearman had 49% care of [Child 1] since 3 May 2019 (folio 416). Records also show that Ms Casey contacted Child Support on 22 November 2022 (folio 29) to advise that she had 75% care of [Child 1] from 16 November 2022 pursuant to court orders made on that day.

Mr Shearman’s evidence

1. Mr Shearman stated that he could not understand why Child Support had initially assessed that he had 35% care of [Child 1] and subsequently dropped the care percentage to 19%. He agreed that court orders were made on 16 November 2022 and submitted that the new care arrangement commenced from 23 January 2023 (the beginning of the 2023 school year).

2. Mr Shearman said that he is endeavouring to see his son as often as possible, based on his work commitments. He noted that the care plan contained in the court orders was based on his availability and agreed that the care plan would be followed.

3. Mr Shearman stated that he had not kept a care calendar or diary but he estimated that he would have between 86 and 90 nights (23/24%) care of [Child 1] per year.

Ms Casey’s evidence

1. Ms Casey said that her solicitor noticed that Child Support may have interpreted the court orders incorrectly. When she contacted Child Support they advised her that Mr Shearman’s care of [Child 1] was based on the following provisions:

   ·11 nights for each of Term 1 and Term 3 school holidays (22 nights),

   ·7 nights for Term 2 school holidays,

   ·21 nights during Christmas school holidays, plus

   ·2 nights per week during school term, and

   ·this resulted in 130 nights or 35% care per year.[1]

   [1] 50 nights during school holidays plus 80 nights (2x40 weeks) during school term

2. Ms Casey agreed that Mr Shearman had 50 nights care during school holidays but submitted that he only had “one night per month” care during school term. Child Support therefore made an error which needed to be corrected. Ms Casey further agreed that the new care arrangement commenced from 23 January 2023.

Other evidence

1. Ms Casey provided a copy of the court orders made on 16 November 2022, as part of her care change notification (folios 30–37). It indicates the following at Order 15(b):

   That from the commencement of the 2023 school year [Child 1] shall spend time with the Father:

   I.Once a calendar month excluding the months the child [Child 1] spends with the father during school holidays and excluding September (save for Father’s Day weekend) and each alternate April in the event the child [Child 1] spends the weekend of [Child 1]’s birthday with the Father…

   [emphasis added]

2. The orders provide for Mr Shearman to advise Ms Casey of his “preferred” monthly weekend during school term and that [Child 1] will be with Mr Shearman from after school Friday until 12 noon Sunday (or 12 noon Monday, if Monday is a public holiday).

3. Ms Casey submitted a care calendar (folio 315) showing that there were only 7 months in 2023 during which there was no school holiday care. Mr Shearman would thus have 50 nights school holiday care plus 14 nights (7x2 nights) for the remaining months. This amounted to 64 nights or 17% care.

4. The objections officer calculated that Mr Shearman had 50 nights school holiday care, plus 18 nights during school term,[2] resulting in 68 nights or 19% care per year.

   [2] 52 weeks minus 12 weeks school holidays = 40 weeks school term or 280 days / 30.43 (average days in a month) = 9.2 months x 2 nights = 18 nights

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter. It is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Ms Casey initially notified Child Support that care of [Child 1] had changed pursuant to court orders from 16 November 2022 (the day the court orders were made). In the hearing both parties agreed that the new care arrangement commenced from 23 January 2023, as stipulated in the court orders. The relevant care period is thus the 12-month period from 23 January 2023 to 22 January 2024.

3. Mr Shearman said that he did not keep a care calendar but submitted that he would have about 86–90 care nights (23/24%) per year. He said that he took into account the additional Sunday nights, where Monday was a public holiday, as well as special nights at Father’s Day and on birthdays. In accordance with Mr Shearman’s calculations he would have 36–40 care nights per year in addition to his holiday care (i.e. an average of 3 nights per month throughout the year).

4. I note Mr Shearman told Child Support on 15 May 2023 that he believed the court orders provided that he would have 2 nights care per month (every month) in addition to the school holiday care (folio 316). I am not persuaded that Mr Shearman’s argument is correct. The court orders clearly state that he will have 2 nights per month “excluding the months” that [Child 1] spends time with him during school holidays. There are only 7 calendar months during which he does not have school holiday care. Thus, Ms Casey’s care calendar is more accurate in this regard.

5. I do accept that Mr Shearman may have some additional care nights (public holidays, birthdays etc). In 2023 there were 5 public holidays on a Monday in Queensland and adding an extra night for [Child 1]’s and Mr Shearman’s birthdays plus Father’s Day would provide Mr Shearman an additional 8 care nights per year. This then would result in a total of 72 care nights or 19% per year.[3]

   [3] 50 nights school holidays + 14 nights (2 x 7 months school term) + 8 additional nights = 72

6. Based on the evidence before me I am satisfied that Mr Shearman has 19% and Ms Casey has 81% care of [Child 1] from 23 January 2023. This is the same conclusion reached by the objections officer and I therefore affirm the decision under review.

7. For completeness I will note that care percentages of 17% (according to Ms Casey’s care calendar), 23/24% (as submitted by Mr Shearman) and 19% (as I have found), result in the same cost percentage (24%) in accordance with section 55C of the Act. Thus, there is no difference in the calculation of Mr Shearman’s child support liability, regardless of which care percentage is being used.

DECISION

The decision under review is affirmed.