Short and Nance (Child support)

[2023] AATA 1189

Short and Nance (Child support) [2023] AATA 1189 (11 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/SC025038; 2022/SC025061; 2022SC025062

APPLICANT:  Ms Short

OTHER PARTIES:  Child Support Registrar

Mr Nance

TRIBUNAL:Member S Letch

DECISION DATE:  11 April 2023

DECISION:

The decisions under review are affirmed.

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 – decisions 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

1. Ms Short and Mr Nance are the parents of [Child 1] and [Child 2]. This matter concerns three separate objection decisions made by Child Support:

   (a)  an objection decision dated 19 January 2021 which disallowed Ms Short’s objection to an original decision dated 9 July 2020 recording care of the children as 67% to Ms Short and 33% to Mr Nance from 12 June 2020.[1]

   (b)  an objection decision dated 25 October 2021 which “partly allowed” Ms Short’s objection to an original decision dated 12 June 2021 recording care for [Child 2] only as 33% to Ms Short and 67% to Mr Nance from 26 January 2021, varying care to 26% to Ms Short and 74% to Mr Nance from 26 January 2021.[2]

   (c)   an objection decision dated 18 March 2022 which disallowed Ms Short’s objection to an original decision dated 14 January 2022 which recorded care for [Child 2] as 74% to Mr Nance and 26% Ms Short from 29 October 2021.[3]

   [1] Care had been recorded as 100% to Ms Short from 27 March 2020 when, on 15 June 2020, Mr Nance reported to Child Support he had 35% care of the children from 1 June 2020.

   [2] Mr Nance reported to Child Support a care change on 1 February 2021 advising care for [Child 2] was “50/50”.

   [3] The existing care for [Child 2] was recorded as 100% to Ms Short from 19 July 2021 (a decision which is not part of this review) when, on 8 November 2021, Mr Nance reported that [Child 2] had returned to boarding school (following a pandemic affected period where he lived with Ms Short) from 29 October 2021 and that Ms Short’s care was two nights a fortnight and half of the school holidays.

2. It is convenient to set out some extracts from the objection officer decisions:

   Decision in (a) above:

   SUMMARY OF OBJECTION DECISION

   The outcome of this decision is that it has been disallowed.

   We have made the decision to reflect the care of [Child 1] and [Child 2] as 67% care to [Ms Short] and 33% care to [Mr Nance] from 12 June 2020.

   The effect of the objection decision is: There are no changes to the assessment as a result of this decision.

   DECISION UNDER REVIEW

   Our decision on 9 July 2020 to reflect the care of [Child 1] and [Child 2] as 67% care to [Ms Short] and 33% care to [Mr Nance] from 12 June 2020.

   …

   REASONS FOR THE DECISION

   In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support (Assessment) Act 1989).

   The pre-existing pattern of care for [Child 1] and [Child 2] reflected 100% care to [Ms Short] and 0% care to [Mr Nance] from 27 March 2020.

   There are consent orders dated 28 August 2011 setting out the care arrangements for the children.

   Both parents are in agreeance the care is occurring as per the consent orders. On this basis, we will reflect court ordered care when calculating the care percentage.

   In order to determine the care percentages for the children we must first determine the relevant care period. Care percentages are generally determined over a 12-month period from the day on which the actual care for a child changed. There are some circumstances where determining the care over a longer care period may be more appropriate. We will consider the specific circumstances of each case to determine the appropriate care period.

   In this case, consent orders dated 23 August 2011 set out a pattern of care of a two-year (24-month) period. It is appropriate for us to consider a longer care period.

   In the original decision, both parents agreed the care resumed on 12 June 2020. As there is no dispute we are satisfied that the care changed on 12 June 2020. This makes the 24-month care period from 12 June 2020 to 11 June 2022.

   [Ms Short] objected because she has always had 73% care of the children and [Mr Nance] has 27% care as per the Court Orders. Under the objections process, [Ms Short] has now agreed the pattern of care is occurring as per the consent orders from 2011.

   …

   125 nights + 118 nights = 243 nights

   365 x 2 = 730

   243 nights / 730 x 100 = 33.28

   We have determined, under the terms of the consent order dated 23 August 2011 [Ms Short] has 67% care and [Mr Nance] has 33% care of [Child 1] and [Child 2].

   We are satisfied the care for [Child 1] and [Child 2] changed on 12 June 2020 and [Ms Short] provides 67% and [Mr Nance] provides 33% care.

   [Ms Short]`s objection is disallowed.

   Decision in (b):

   SUMMARY OF OBJECTION DECISION

   The outcome of this decision is that it has been part allowed.

   We have made the decision to reflect the care of [Child 2] as 26% to [Ms Short] and 74% to [Mr Nance] from 26 January 2021.

   The effect of the objection decision is: there is no effect to the assessment.

   …

   REASONS FOR THE DECISION

   In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support (Assessment) Act 1989).

   The pre-existing care recorded for [Child 2] is [Ms Short] providing 67% and [Mr Nance] providing 33%, from 12 June 2020.

   …

   [Ms Short]'s position is nothing has changed, she is the prima1y carer and decision maker for [Child 2].

   There is a current court order that is still valid and should be adhered to as no one has authority to change current court orders without courts consent.

   [Mr Nance]' position is the care for [Child 2] has changed because [Child 2] commenced boarding at [College 1] on 26 Janua1y 2021. [Child 2] boards Monday through to and including Friday night each week and spends alternating weekends with [Ms Short] and [Mr Nance]. During school holiday periods [Child 2] will spend his time 50/50 with [Ms Short] and [Mr Nance].

   …

   [Ms Short] has not disputed [Child 2] commenced residing at boarding school or that [Mr Nance] covers the school fees and other associated costs for [Child 2] whilst at school. [Ms Short] has not provided further evidence of the care pattern for [Child 2] on weekends or during school holidays.

   Considering the above we are satisfied a change has occurred to the caring arrangements for [Child 2].

   Therefore, we will not consider the court orders in relation to [Child 2] and base our decision on the actual care occurring.

   …

   During the remaining 34 weeks of the year, [Child 2] would be attending school. In the event [Ms Short] is having two nights care on alternate weekends, she would be having a total of 34 nights care during the school terms (34 weeks or 17 fo1tnights x two nights per fo1tnight). 34 nights care during school terms plus 63 nights care over school holiday periods totals 97 nights being 26% care.

   As such, we determine the care of [Child 2] is 26% to [Ms Short] and 74% to [Mr Nance] from 26 January 2021.

   The objection is part allowed.

   As a new care decision was made on 9 September 2021, to reflect [Ms Short] has 100% care of both children from 19 July 2021 the above decision will be recorded on the patties child support assessment in the period 26 Janua1y 2021 to 18 July 2021.

   Decision in (c):

   SUMMARY OF OBJECTION DECISION

   The outcome of this decision is that it has been disallowed.

   We have made the decision to reaffi1m the care of [Child 2] as 74% to [Mr Nance] and as 26% to [Ms Short] from 29 October 2021, notified on 8 November 2021.

   The effect of the objection decision is: no changes are required.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   [Ms Short] and [Mr Nance] have had a. registered child suppo1t assessment for [Child 2] since 26 August 2009.

   Prior to decision under review, care for [Child 2] was recorded as 100% to [Ms Short] and as 0% to [Mr Nance] from 19 July 2021, notified on 3 August 2021.

   …

   On 8 November 2021, [Mr Nance] lodged a. care change for [Child 2]. The care change was due to COVID restrictions being lifted and [Child 2] was then at boarding school 5 days a week. [Mr Nance] pays 100% of the all school related costs (unifo1ms, books, stationa1y etc.). [Child 2] returns home to [Ms Short] one weekend a fo1tnight for Saturday and Sunday nights and half the school holidays.

   On 9 November 2021, [Ms Short] disagreed because she was the primary carer of [Child 2].

   …

   REASONS FOR THE DECISION

   Where a person provides substantial financial support to a child living away from home, we will generally consider financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer-term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

   On objection, [Ms Short] claimed [Mr Nance] has only started paying for [Child 2]`s boarding school in his attempt to gain primary care. We received no conflicting information from [Ms Short] in relations to the financial support provided by [Mr Nance].

   While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. We consider other factors that suggest that the person continues to care for the child. In this case, we received scant details to enable us to consider whether a particular parent is actively involved in major decisions relating to [Child 2]. For example, decisions relating to the child's health, schooling, relationships, career, etc. which could be indicators that a parent continues to provide care for the child.

   [Ms Short] supplied a letter from [a law firm] dated 10 March 2022 stating [Child 2]'s time is shared equally between the parents. We found little clarity to enable us to consider to what extent each parent is caring for [Child 2].

   We have therefore made a decision to continue to reflect the care of [Child 2] as 74% to [Mr Nance] and as 26% to [Ms Short] from 29 October 2021, notified on 8 November 2021.

   The objection is disallowed.

3. Notably, in respect of all three objection decisions, Ms Short applied for further review by the Tribunal in November 2022, well outside the 28 days after she is deemed to have received the respective objection decisions. Ms Short and Mr Nance participated in the Tribunal’s hearing by conference telephone.

4. In respect of the first decision, Ms Short told the Tribunal that she did not have the documents in front of her, but there was a “period of time the Child Support decision was not correct”. She does not understand how Mr Nance has now been deemed the “primary carer”. She pointed to a period from March 2020 when she had 100% care – which Child Support had, in fact, recorded in her favour. The Tribunal observed that Mr Nance had informed a change to the Court-ordered arrangements in June 2020; Ms Short said she did not accept that the calculation giving her 33% was correct – she thought her care was higher than 67% and somewhere around 73%. I explained to Ms Short that whether Mr Nance’s care was recorded as 33% or 27%, there would be no material difference to the underlying child support assessment. Mr Nance told the Tribunal that Ms Short had only provided interim orders and not the final orders made in 2011; Ms Short disputed that was so.

5. In response to my question about why she had effectively “sat on her hands” and applied to the Tribunal long after the 28-day application period to the Tribunal had expired, Ms Short told the Tribunal that she “was away on business” and claimed not to be aware of the decision, notwithstanding that she was clearly advised in writing of her right to apply to the Tribunal within 28 days.

6. In respect of the second decision, Ms Short told the Tribunal that in January 2021, Child Support “somehow changed the decision” (that she was “primary carer”) when [Child 2] started boarding school. Mr Nance was only paying for the boarding fees. She did not consent to that arrangement and was not notified of the change. Ms Short was then required to pay child support to Mr Nance. She has paid many expenses for [Child 1] and [Child 2], including medications and the like, including [Child 1]’s school fees in earlier years. [Child 1] did not attend boarding school; however, Ms Short met his private school expenses. Mr Nance said there had been a previous AAT decision which had found that Ms Short was not paying school fees; rather her parents were.[4] Mr Nance said he meets all the considerable boarding fees; when [Child 2] is not at boarding school for five nights a week, they share the care equally. Mr Nance said he has also paid for textbooks and the like. Mr Nance said he is “not asking for anything”; he just wants a “fair assessment”, and he considers Child Support has reached a reasonable outcome.       

   [4] This Tribunal (differently constituted) decided on 1 May 2018 to increase Mr Nance’ annual liability by $2,875 as an equitable contribution toward school fees on the basis of the much lower fees at Mr Nance’ preferred school ([College 2]).

7. In relation to her late application to the Tribunal, Ms Short said that she had work commitments including travel, and was “not feeling that well”; she said her lawyer could not believe Child Support had made the decision it did.

8. In respect of the third decision, Ms Short raised the same issue as the second decision. She said that care determination remains in place (in other words, there have been no subsequent care determinations). I explained to Ms Short that unless there were special circumstances which prevented her applying to the Tribunal within 28 days of receiving the objection decision, the earliest date a possible change to the care determination could take effect would be 17 November 2022 (the date she applied to the Tribunal). Ms Short said there was “delay in communication” and “they did not contact her”.

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that these are “point in time” assessments. Every change to the pattern, or likely pattern, of care is subject to separate notification and a separate decision about whether to revoke the existing recorded pattern and replace it.

3. The effect of section 95N of the Child Support (Registration and Collection) Act 1988 is that where application is made to the Tribunal more than 28 days after deemed receipt of an objection decision, any change to the assessment can only take effect from the day a person applied to the Tribunal unless there are special circumstances which prevented the person from applying to the Tribunal within 28 days.

Decision (a)

1. The parties generally agreed that care from 12 June 2020 had been occurring per the consent orders dated 23 August 2011 (starting at folio 36 of the Child Support hearing papers). Ms Short did not particularise where she considered the objections officer had fallen into error in the extensive calculation set out in their reasons for decision; however, she insisted she was the “primary carer”, and that her care was around 73%.

2. I consider Child Support appropriately selected a two-year care period from 12 June 2020 to 11 June 2022 given the terms of the original orders spanned a two-year period. I concur that over a two-year period, the orders would have Mr Nance providing 243 nights care – or 33% (rounded down). As I observed earlier in these Reasons, whether Mr Nance was recorded as having 33% or 27% care (or indeed as little as 14%), the underlying child support assessment would remain the same as the “cost percentage” would be the same.

3. As I have reached the same conclusion as the objections officer, decision (a) will be affirmed. I note that as I have agreed with that decision, I do not need to consider Ms Short’s late application to the Tribunal. For completeness, I would not have been satisfied that there were special circumstances which prevented Ms Short bringing her application in a timely way.

Decision (b)

1. There appears to be no serious dispute to the essential facts; namely, that Mr Nance met the hefty tuition and boarding fees for [Child 2], and that [Child 2] was scheduled to spend two nights a fortnight and half of the school holidays with Ms Short. Ms Short considers that the care should continue to be recorded as per the Court-ordered arrangements, and maintains that she is the “primary carer”. Child Support determined that Mr Nance should effectively be “credited” with nights [Child 2] spends at boarding school (Monday to Friday) due to him meeting the associated cost. It was not seriously disputed by the parents that both have maintained active parenting roles in [Child 2]’s life.

2. Mr Nance’ financial contribution is a very material factor in calculating recorded care. I agree with the approach of Child Support. It would be appropriate to include the nights Ms Short was scheduled to have [Child 2] in her care; the remaining nights should be apportioned to Mr Nance. I calculate Ms Short’s pattern of care to be 97 nights per year, or equivalent to 26% care.

3. As I have reached the same conclusion as the objections officer, decision (b) will be affirmed. I do not, therefore, need to consider Ms Short’s late application to the Tribunal. Nevertheless, I do not consider there were any special circumstances preventing a timely application from Ms Short.

Decision (c)

1. Child Support restored its previous determination in decision (b) when [Child 2] returned to boarding school from 29 October 2021 following a COVD-19 interruption, having been in Ms Short’s 100% care for a period (not part of this review, and not disputed by either party).  

2. Again, the essential facts are not disputed. For the same reasons I set out in decision (b) above, I consider it appropriate for Mr Nance to be attributed with [Child 2]’s care when he is at boarding school.

3. As I have reached the same conclusion as the objections officer, decision (c) will be affirmed. Again, I am not required to consider whether section 95N of the Child Support (Registration and Collection) Act 1988 should apply. However, Ms Short was very clearly informed in writing of her rights, and she advanced no circumstances which would warrant application of that provision in her favour in the event I had decided that the resulting cost percentage ought to have been changed.

DECISION

The decisions under review are affirmed.