Siddall and Hendry (Child support)

[2020] AATA 4915

Siddall and Hendry (Child support) [2020] AATA 4915 (1 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/PC019385 & 2020/PC019443

APPLICANT:  Mr Siddall

OTHER PARTIES:  Child Support Registrar

Ms Hendry

TRIBUNAL:Member W Budiselik

DECISION DATE:  1 September 2020

DECISIONS:

The decisions under review are affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there were changes to the likely pattern of care – existing percentage of care determinations correctly 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

BACKGROUND

1. Mr Siddall (the applicant/father) and Ms Hendry (the mother) are the separated parents of two children (born in 2009 and 2016) who are children of a child support case registered by Services Australia – Child Support (the agency) on 18 December 2018 with effect from 15 October 2018.

2. On 24 June 2020, an objections officer from the agency decided to a) disallow an objection lodged by the father to a decision made by an officer of the agency on 18 December 2018, that the mother had 58% of the children’s care and he had 42% of their care from 15 October 2018 and to b) disallow an objection lodged by the father to a decision made by an officer of the agency on 27 August 2019, that the care percentages for the children changed from 12 June 2019, such that the mother had 65% of the children’s care and he had 35% of their care.

3. On 3 July 2020 and 10 July 2020, respectively, the father lodged applications for reviews of the agency’s decisions with the Administrative Appeals Tribunal (the tribunal). On 1 September 2020, the tribunal conducted a hearing into these applications. The parents participated in the hearing via telephone conference. Prior to the hearing the agency provided bundles of papers to the parents and to the tribunal taken from the agency’s files in respect of these decisions (folios 1 – 159 and folios 1 – 188, respectively). Prior to the hearing the parents provided additional information (folios A1 – A3 and B1 – B47, respectively) which was exchanged between them and has since been provided to the agency.

4. The tribunal has not recorded matters raised at hearing not relevant to issues it needs to deal with.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are:

   a)Was the percentage of care recorded correctly from 15 October 2018? 

   b)Should the determination of the percentage of care effective from 15 October 2018 be revoked on 11 June 2019, and a new determination of percentages of care be made from 12 June 2019?

CONSIDERATION

Issue a): Was the percentage of care recorded correctly from 15 October 2018?

1. Section 50 of the Act provides among other things that if an application is made under section 25 or 25A of the Act for a parent to be assessed in respect of the costs of the child the Registrar must determine the responsible person’s percentages of care during the care period.

2. The percentage of care determination involves an examination of a person’s future likely care.  The decision maker’s essential task is to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period).  In this respect, on review, the tribunal has regard to the actual or likely pattern of care at the point in time of notification to the Department.

3. The tribunal reviewed the agency’s papers and noted:

• On 5 December 2018, the father was advised by the agency it had recorded he had 42% care of the children (6 nights care a fortnight) and the mother had 58% of their care (8 nights a fortnight) from 15 October 2018.

• At the time, the father said the percentage of care proposed was incorrect and the children’s care was shared 50/50. The file note recorded that the father was advised Centrelink had made the decision about the care percentages and these percentages would be applied by the agency. The file note also recorded that the  the father was advised that he could object to the decision.

• On 18 December 2018, the parents were issued with advice that a child support assessment application had been accepted. The assessment provided (folios 14 – 16) set out 42% of the children’s care was attributed to the father and 58% of their care was attributed to the mother.

• On 12 June 2019, the father contacted the agency to discuss lodging an objection to the date the case was first registered for child support. This file note recorded the father confirmed the recorded care levels were accurate.

1. The tribunal noted on 8 July 2019, an agency file note recorded:

   Mr Siddall wanted to find out what’s happening with care, I explained that receiving parent still disagreeing with it, Mr Siddall advised that he has had 6 nights ft up until the 12/06/2019, then due to court order it is now 5 nights a ft, but will change in the future.

2. At hearing the father said the care levels recorded at 15 October 2018 were ‘about right’ but that he had provided extra care.

3. The tribunal explained to the parents its task was to understand the intended pattern of care immediately prior to 15 October 2018.  That pattern of care would then be encapsulated in the determination made with effect from that date. Those percentages of care would then be applied from that date until a changed pattern of care was notified to the agency. If the new pattern of care advised to the agency was accepted, then a new determination would be made about the care percentage from the date the care changed. If the pattern of care change notified was not accepted, the care percentages would not change.

4. The evidence of the parents was that the intended pattern of care is reflected in the determination made at the time the case was registered and that while there had been some changes to the care provided the changes did not mean the intended pattern of care as it was advised to the agency on 18 December 2018 from 15 October 2018 was not correctly recorded.

5. The tribunal found the determination of percentage of care made on 18 December 2018, that the care percentages from 15 October 2018 were 42% of the children’s care to the father and 58% of the children’s care to the mother was correctly recorded.

Issue b): Should the determination of the percentage of care effective from 15 October 2018 be revoked on 11 June 2019 and a new determination of care be made from 12 June 2019?

15.The provisions in Division 4 of Part 5 of the Act require the agency (and the tribunal on review) to determine whether an existing care determination is correct, whether it can be revoked and if so, what the new care percentage decision can be.

1. The tribunal reviewed the agency’s papers and noted:

   ·     On 8 April 2019, the [named court] (the Court) ordered a pattern of care such that the father cared for the children for 5 nights a fortnight and the mother cared for them for 9 nights a fortnight. A Minute of Final Orders by consent of the parents was sealed by the Court [in] December 2019.

   ·     As a percentage of care these numbers of nights are 35.7% (5 nights per fortnight) and 64.3% (9 nights per fortnight). Section 54D of the Act directs that if a percentage is greater than 50% the percentage is rounded up and if the percentage is less than 50% the percentage is rounded down

   ·     On 14 June 2019, the mother notified the agency she was caring for the children for 64% of the time and the father was caring for them for 36% of the time, which she said was consistent with a court order made on 8 April 2019.

   ·     On 22 June 2019, the agency contacted the father. The father advised the agency that care was not being provided in accordance with the court orders and that he was caring for the children for approximately 6 or 7 nights a fortnight.

   ·     On 4 July 2019, a record of contact with the father recorded that at 8 April 2019, he was caring for the children for 6 or 7 nights a fortnight but that pattern changed approximately 6 weeks ago however he still provides more care than 5 nights per fortnight.

   ·     On 8 July 2019, a file note recorded that the father said care had been occurring according to the court order from 12 June 2019. A subsequent file note dated 8 July 2019, confirmed the father’s advice.

   ·     On 27 August 2019, the agency identified the parents agreed they commenced following the court orders on 12 June 2019 and therefore determined a new percentage of care from that date.

2. The tribunal notes that the Court’s interim order of 8 April 2019 probably reflects the parents’ intended care pattern from that date. However, in this matter the mother has not objected to the 12 June 2019 being regarded as the date the care pattern changed such that it is consistent with the Court’s interim order.

3. Given there is a point of agreement between the parents that the pattern of care was occurring consistent with the interim court order from 12 June 2019, the tribunal is satisfied it is appropriate to change the care percentage from 12 June 2019.

4. That is, the existing pattern of care determination that the father cared for the children for 42% of the time and the mother cared for them for 58% of the time is to be revoked on 11 June 2019 and a new determination issued such that the mother cares for the children for 65% of the time and the father cares for them for 35% of the time is to be issued from 12 June 2019.

5. The effect of the tribunal’s deliberations is that the agency’s decisions are affirmed.

DECISIONS

The decisions under review are affirmed.