Silver and Denton (Child support)

[2023] AATA 2136

Silver and Denton (Child support) [2023] AATA 2136 (8 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC025381

APPLICANT:  Miss Silver

OTHER PARTIES:  Child Support Registrar

Mr Denton

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 June 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] from 25 April 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – 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. This review is about a change to the percentage of care determinations for Miss Silver and Mr Denton in respect of their child [Child 1] (born June 2005).  Miss Silver and Mr Denton are the parents of two children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place since 24 April 2022.

2. From 24 April 2022 the child support assessment reflected Miss Silver as having 28 per cent care and Mr Denton as having 72 per cent care of [Child 1].

3. On 6 October 2022 Mr Denton notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating he provides 100 per cent care of [Child 1] from 25 April 2022.

4. On 6 October 2022 Child Support made the decision to record that Miss Silver provides 0 per cent care and Mr Denton provides 100 per cent care from 25 April 2022 but with effect from 25 April 2022 for Miss Silver and from 6 October 2022 for Mr Denton.

5. On 10 October 2022 Miss Silver objected to this decision and on 5 January 2023 Child Support allowed the objection in part and made the decision to record that Miss Silver provides 0 per cent care and Mr Denton provides 100 per cent care of [Child 1] from 29 April 2022 but with effect from 29 April 2022 for Miss Silver and from 6 October 2022 for Mr Denton (the objection decision).

6. On 9 January 2023 Miss Silver applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 June 2023.  Miss Silver and Mr Denton gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (125 pages).  The Tribunal received additional information from Miss Silver prior to the hearing and a copy was distributed to the parties (A1–A3).

ISSUES

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

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for Mr Denton which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Miss Silver told the Tribunal there was initially an informal verbal agreement in place between the parents that [Child 1] would spend two nights a week in her care.  Miss Silver said that not long before the child support assessment commenced on 24 April 2022 [Child 1] began a relationship and started spending nights with his girlfriend rather than at her home.  Miss Silver added that although she was disappointed she accepted [Child 1] was nearly [age] years of age and could choose where he lived.

2. Miss Silver said although [Child 1] was not physically living with her she continued to stay in touch regularly and provided him with a level of emotional and financial support.  Miss Silver explained that she met half the cost of school fees for [Child 1] and had paid him pocket money until around the end of April 2022 when he stopped doing household chores.

3. Miss Silver pointed out that under a previous decision of the Tribunal it was decided that although [Child 1] did not stay overnight with her she was found to provide a level of care of two nights a week.  Miss Silver said nothing had changed since this decision.

4. The Tribunal notes in evidence from Child Support a decision by the Tribunal, separately constituted, in which it was determined that Miss Silver provides 28 per cent care of [Child 1] and Mr Denton provides 72 per cent care from 24 April 2022.  The basis of this determination was that Miss Silver continued to provide care to [Child 1], both financially and emotionally, even though he did spend nights with her.  The Tribunal concluded that “care is not necessarily absent in the case of older teenagers if the parent is not residing under the same roof”.  The Tribunal decision was dated 27 September 2022.

5. Miss Silver said she continued to provide the same care to [Child 1].  She said this included speaking frequently to his teacher about his schooling and general wellbeing as well as receiving school correspondence about his absences.  Miss Silver informed the Tribunal she also continued taking [Child 1] to medical appointments when required and paid his private health insurance.  Miss Silver said that as she lived in [Town 1], near Mr Denton, she was the only other family in the area responsible for [Child 1] in the event of an emergency.

6. Miss Silver acknowledged Mr Denton had provided a letter from the father of [Child 1’s] girlfriend, a [Mr A], stating that his daughter and [Child 1] had not stayed with him since April 2022.  Miss Silver pointed out that [Mr A] lived about 2.5 hours away in Sydney and so this was not unusual.  Miss Silver said she had provided a statement from the mother of [Child 1’s] girlfriend stating that since April 2022 her daughter and [Child 1] stayed at her house sporadically and also stayed with friends on weekends.

7. Mr Denton told the Tribunal that [Child 1] was now residing with him effectively full-time.  Mr Denton said the previous pattern of care where [Child 1] would live at his girlfriend’s home for two to three nights a week had ceased.  Mr Denton said [Child 1] enjoyed being at home and had stayed away no more than five or six times since 25 April 2022.  Mr Denton added that he did not work in Sydney as much and was usually home on weekends to care for [Child 1].

8. Mr Denton said he was meeting the vast majority of costs for [Child 1] including providing a home for him as well as his food and general living expenses.  Mr Denton said [Child 1] was working part-time and so had his own spending money.  He said [Child 1] usually found his own way to work and generally always caught public transport.

9. Mr Denton told the Tribunal the parents were sharing the costs of educating [Child 1] and he did not dispute that Miss Silver was in touch with the school on a regular basis.  Mr Denton said, nonetheless, [Child 1] was living with him and not Miss Silver.  Mr Denton said he had provided a calendar to Child Support presenting his care of [Child 1].

10. The Tribunal notes in evidence from Child Support a calendar outlining the care of [Child 1] in 2022.  It shows that from 25 April 2022 Mr Denton had almost 100 per cent care of [Child 1] for the remainder of the year.

11. Miss Silver argues there has been no change in the pattern of care for [Child 1].  Miss Silver acknowledges that [Child 1] does not stay overnight with her but states she continues to provide care in other ways including financially and emotionally.  Mr Denton has told the Tribunal that [Child 1] ceased staying overnight regularly at his girlfriend’s home from around 25 April 2022.  Mr Denton submits that [Child 1] is living with him full time and he is meeting the majority of the living costs for [Child 1] as a result.

12. The existing percentages of care reflected in the assessment for [Child 1] were 28 per cent care to Miss Silver and 72 per cent care to Mr Denton from 24 April 2022.  This pattern of care was determined by the Tribunal, separately constituted, in its decision dated 27 September 2022.  A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

13. In this case, the Tribunal is not satisfied there has been a distinct change to the existing pattern of care from 25 April 2022.  It is the view of this Tribunal that Mr Denton is simply seeking to revisit the previous decision which determined the care of [Child 1] for a care period commencing on 24 April 2022.  The two care periods are effectively the same.

14. If circumstances change sufficiently such that there is a new pattern of care for [Child 1] at a later point, this would need to be the subject of a separate notification by either parent.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care for [Child 1] from 25 April 2022.