Shedd and Wiech (Child support)

[2020] AATA 1763

Shedd and Wiech (Child support) [2020] AATA 1763 (24 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018433

APPLICANT:  Mr Shedd

OTHER PARTIES:  Child Support Registrar

Ms Wiech

TRIBUNAL:Member M Kennedy

DECISION DATE:  24 April 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to revoke the existing care percentage determination and replace it with a care percentage determination that Mr Shedd has 50% care of [Child 1] and Ms Wiech has 50% care of [Child 1] from 9 November 2018.

*Note the potential limitation on the date of effect of this substituted objection decision pursuant to section 87AA of the Registration and Collection Act 1988.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - 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

1. Mr Shedd and Ms Wiech are the parents of [Child 1], in respect of whom a child support assessment is in place.  From 1 June 2018, child support was calculated based on a care percentage determination reflecting 86% care to Ms Wiech and 14% care to Mr Shedd.

2. On 16 November 2018, Ms Wiech contacted the Department and advised that care was no longer taking place in accordance with that care percentage determination, and that Mr Shedd had care of [Child 1] four nights per fortnight from 9 November 2018: 72%:28%.

3. There is no record that the proposed care change was discussed with Mr Shedd at the time, although I note a letter was sent inviting him to make contact.  The Department decided to accept Ms Wiech’ information on 6 December 2018 and made a new care determination accordingly.

4. Eight months later, Mr Shedd objected to that decision.  He stated that a parenting plan had been established for four nights per fortnight, but he and Ms Wiech had actually shared care equally since that time.  Ms Wiech told the objections officer that care did increase to 50% for a period of three months, but only after May 2019.

5. The objections officer stated that neither parent had provided any corroborating information, and so disallowed the objection.

6. I note that the objections officer had asked Mr Shedd to provide supporting evidence by 22 August 2019.  It appears that evidence provided by Mr Shedd after this date on 24 August 2019 (T35-T40) was not take into account.

7. The objections officer had allowed Ms Wiech until 4 September 2019 to provide evidence, although none was forthcoming. The objections officer’s decision was not notified to Mr Shedd until 10 February 2019 (on the records provided to the Tribunal).

8. Mr Shedd applied to the Tribunal for review on 17 February 2020.

CONSIDERATION

Existing percentage of care determination is revoked

1. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act). Upon revocation, a new percentage of care determination must be made.

2. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care and the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child

3. As outlined above, both parents have confirmed with the Department that care was not taking place in accordance with the existing care percentage determination that was in place at 9 November 2018.  There is dispute between the parents as to whether the new care determination should be 72% to 28%, or 50% to 50%.  Either way, a change of this nature would affect the cost percentage component of the child support formula, and so it is appropriate that the existing care percentage determination be revoked.

4. The date of effect of that revocation is the day before the ‘care change day’: that is, 8 November 2018.

A new care percentage determination is made

1. Having revoked the existing care determination, I must (relevantly, in accordance with section 50 of the Act) make a new care determination.  That care determination must reflect the care for a child a responsible person has had or is likely to have during such period as I consider appropriate having regard to all the circumstances.

2. In limited circumstances, an interim care determination may be made if a formal care arrangement is in place (such as court orders) and care is not taking place in accordance with that arrangement, and other criteria are met.  In this matter, both parents mentioned to the Department that a ‘parenting plan’ had been made. At the hearing the parties confirmed that this was a written document signed in November 2018.  However, no such document is in the material before me, and I am not satisfied that a care arrangement applied to the child at the time.  My determination of care therefore must reflect the pattern of care that was actually taking place.

3. At the hearing, Mr Shedd relied on a handwritten care calendar of dates from November 2018 to August 2019.  Mr Shedd was aggrieved that this evidence was not considered by the objections officer.  Mr Shedd told me during the hearing how he had prepared those lists of dates, indicating he had done so primarily from text message records.  Mr Shedd was concerned that he may not now be able to retrieve all relevant records as telephone numbers had changed.  I explained to the parties that I wished to assess whether or not to rely on Mr Shedd’s records by reference to a sample of the source text messages he had relied upon to collate the information in his calendar (T36).

4. In relation to the pattern generally I have not been able to observe a pattern of particular days or weeks repeating in the care calendar.  The dates identified in the care calendar do however reflect approximately 15 days’ care each calendar month.  I consider that this is a case where the pattern of care, if it is to be done on the basis of Mr Shedd’s calendar, is to be identified with some degree of flexibility.

5. Ms Wiech told me that the calendar is incorrect.  Her evidence was that care took place on the basis that Mr Shedd had care from Wednesday to Sunday, every second week.  Ms Wiech has not however provided any corroborating records in that regard.

6. In addition to the calendar, Mr Shedd relies on statements of third parties and his own signed statement.  These statements I note speak of 50% care as a general proposition, with no specific dates or pattern mentioned.

7. After the hearing, in accordance with my directions, Mr Shedd provided exhibits A1 to A116.  The evidence consists of a large volume of text message exchanges, from which it can occasionally be inferred that [Child 1] was in Mr Shedd’s care on particular dates (reflecting the calendar), and that there was an ongoing conversation or dispute between Mr Shedd and Ms Wiech as to care and the need to make the reality of the situation official. It is sometime difficult to discern whether references to 50/50 care refer to the reality of the actual care or what the Department was to be told.

8. Mr Shedd has provided records of childcare sign in sheets that are of more assistance.  These provide clearer corroboration for the dates identified on Mr Shedd’s calendar than the text message exchanges.

9. On the basis of that material, I am marginally satisfied to accept Mr Shedd’s calendar evidence as accurate evidence of the actual care that was taking place from 8 November 2018.  I agree it reflects a pattern of care of 50%.

10. Ms Wiech did not make use of the opportunity provided to her to comment on Mr Shedd’s further evidence.

11. I find therefore that the evidence demonstrates that Mr Shedd had care of [Child 1] 50% of the time from 8 November 2018, based on a care period consisting of the range of dates addressed in the evidence at T36.

12. I therefore make a new care determination in accordance with section 50 of the Act that Mr Shedd and Ms Wiech each have 50% care of [Child 1] from 8 November 2018.  I will allow Mr Shedd’s objection accordingly.

Date of effect of favourable outcome on objection

1. I draw the parties’ attention to section 87AA of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) which limits the date of effect of an outcome from an objections decision if the objection is lodged (relevantly) more than 28 days after the original care percentage decision was notified to the parents. The purpose of this provision is to protect parents from potentially very significant child support arrears in circumstances where appeal rights are not exercised within a reasonable period of time.

2. There is a limited discretion to effectively extend the time within which Mr Shedd may object so that full effect can be given to any favourable outcome on an objection. The discretion may be exercised if special circumstances prevented Mr Shedd from objecting to the decision of 6 December 2018 within 28 days: subsection 87AA(2) of the Registration and Collection Act.

3. I note that Mr Shedd told me he had been aware of the decision but elected not to object to it because he was concerned that doing so might impact on his daughter being made available to him for care.  I understand that Mr Shedd changed his mind at a later date in response to enforcement activity by the Department.

4. I will not purport to exercise or refuse to exercise the discretion at subsection 87AA(2) of the Registration and Collection Act. At first instance, the Department must consider the effective date for the favourable objection decision I have substituted. Mr Shedd and Ms Wiech will have review rights in respect of any such decision.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the objection is allowed so as to revoke the existing care percentage determination and replace it with a care percentage determination that Mr Shedd has 50% care of [Child 1] and Ms Wiech has 50% care of [Child 1] from 9 November 2018.