Shovelton and Shovelton (Child support)

[2024] AATA 1887

Shovelton and Shovelton (Child support) [2024] AATA 1887 (19 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027557 & 2024/BC027575

APPLICANT:  Mr Shovelton

OTHER PARTIES:  Child Support Registrar

Ms Shovelton

TRIBUNAL:Member J Thomson

DECISION DATE:  19 April 2024

DECISION:

2024/BC027557

The Tribunal sets aside the decision under review in matter number 2024/BC027557 and, in substitution, decides that care percentages for the children of 61% to Mr Shovelton and 39% to Ms Shovelton apply from 5 August 2023.

2024/BC027575

The Tribunal sets aside the decision under review and, in substitution, decides that section 87AA of the Child Support (Registration and Collection) Act 1988 no longer has any application.

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders – agreement by parents that care percentages accurate – not necessary to consider circumstances of mother’s late objection to initial decision – 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 omitted 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 Shovelton and Ms Shovelton are the parents of [Child 1], born 2011, and [Child 2], born 2013 (the children).

2. Mr Shovelton seeks review of an objection decision dated 25 January 2024 made by Services Australia (Child Support). This decision partially allowed Ms Shovelton’s objection to an earlier Child Support decision dated 9 August 2023 to accept Mr Shovelton’s application for a child support assessment for the children reflecting the care of the children as 61% to Mr Shovelton and 39% to Ms Shovelton from 5 August 2023.

3. In partially allowing Ms Shovelton’s objection, the objections officer decided to reflect care percentages for the children of 58% to Mr Shovelton and 42% to Ms Shovelton from 5 August 2023.

4. Ms Shovelton’s objection to Child Support’s decision of 9 August 2023 was lodged out of time. However, pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), the objections officer found special circumstances prevented her from lodging her objection within the statutory 28-day period of receipt of notification of the Child Support’ original decision of 9 August 2023. Mr Shovelton also sought review of this decision.

5. The Tribunal heard the matters on 19 April 2024. Both parents attended the hearing and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 122) admitted into evidence and marked Exhibit 1. Mr Shovelton provided documentation (folios A1 to A7) admitted into evidence and marked Exhibit A. Both parents had copies of these documents with them at the hearing.

ISSUES

1. The issues which arise in this case are:

   ·Should the existing care percentage determinations be revoked? If so,

   ·What are the new care percentage determinations and when should they apply?

   ·What is the date of effect of the decision?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1 and A.

Mr Shovelton’s application number 2024/BC027557

1. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent ‘has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. Section 50 applies, relevantly, if the parent ‘has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’.

2. To consider the existing care percentages, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate.

3. Mr Shovelton notified Child Support on 7 August 2023 of a change in care of the children pursuant to court orders made in the Federal Circuit Court of Australia at Brisbane [in] July 2023 (the FCC Orders) which he submitted accorded him 222 nights of care equating to 61% care and Ms Shovelton 143 nights of care equating to 39% care of the children. A copy of the FCC Orders was before the Tribunal at pages 36 to 46 of Exhibit 1.

4. Both parents acknowledged and agreed in their submissions to Child Support in the initial notification process and the objections officer in the objections process that the care pursuant to the FCC Orders had commenced occurring on 5 August 2023.

5. The Tribunal will therefore adopt the 12-month period from 5 August 2023 to 4 August 2024 as the relevant care period for consideration in this case.

6. As noted in the background summary above, on 9 August 2023, Child Support made a decision to reflect the care of the children pursuant to the FCC Orders as 61% to Mr Shovelton and 39% to Ms Shovelton from 5 August 2023.

7. At the hearing, Mr Shovelton submitted the care percentages determined by Child Support on 9 August 2023 of 61% to him and 39% to Ms Shovelton were an accurate reflection of the care of the children actually taking place from 5 August 2023 pursuant to the terms of the FCC Orders.

8. Following discussions with the Tribunal at the hearing, Ms Shovelton acknowledged and agreed to accept care percentages of 61% to Mr Shovelton and 39% to her from 5 August 2023 as an accurate reflection of the care of the children taking place pursuant to the FCC Orders.

9. As the Tribunal has determined new care percentages of 61% to Mr Shovelton and 39% to Ms Shovelton, the cost percentages of the parents will change. The Tribunal therefore considers section 54F of the Act applies in this case.

10. As the change in care of the children on 5 August 2023 was notified by Mr Shovelton on 7 August 2023, within 28 days of the change in care occurring, pursuant to paragraph 54F(3)(a) of the Act, the Tribunal will therefore revoke the pre‑existing care percentages of 58% to Ms Shovelton and 42% to Mr Shovelton with effect from 4 August 2023, that being the day before the Registrar was notified of the change in care on 5 August 2023.

11. The Tribunal is satisfied in accordance with the provisions of section 50 of the Act that the care determinations of 61% to Mr Shovelton and 39% to Ms Shovelton are an accurate reflection of the pattern or likely pattern of care of the parents taking place pursuant to the FCC Orders for the children from 5 August 2023 and finds accordingly.

12. The Tribunal therefore sets aside the objection decision and decides that care percentages of 61% to Mr Shovelton and 39% to Ms Shovelton are to apply for the children in the assessment from 5 August 2023.

Mr Shovelton’s application 2024/BC027575

1. As Ms Shovelton agreed at the hearing to accept the care percentages for the children determined by Child Support in its initial decision of 9 August 2023 as set out above, it is no longer necessary for the Tribunal to consider the circumstances of her late objection to Child Support’s initial decision of 9 August 2023.

2. The Tribunal therefore finds that section 87AA of the Registration Act does not need to be further considered and no longer has any application. This is because the Tribunal’s care percentage decision is the same as the original care percentage decision. The care percentage decision decided above will apply from 5 August 2023.

DECISION

2024/BC027557

The Tribunal sets aside the decision under review in matter number 2024/BC027557 and, in substitution, decides that care percentages for the children of 61% to Mr Shovelton and 39% to Ms Shovelton apply from 5 August 2023.

2024/BC027575

The Tribunal sets aside the decision under review and, in substitution, decides that section 87AA of the Child Support (Registration and Collection) Act 1988 no longer has any application.