Sinclair and Sinclair (Child support)

[2020] AATA 5112

Sinclair and Sinclair (Child support) [2020] AATA 5112 (29 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019841

APPLICANT:  Mr Sinclair

OTHER PARTIES:  Child Support Registrar

Ms Sinclair

TRIBUNAL:Member A Schiwy

DECISION DATE:  29 October 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – shared care appropriately determined – decision 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 Sinclair and Ms Sinclair are the separated parents of three children.  This application for review is about the respective percentages of care that each parent has for the children.

2. Ms Sinclair applied for child support payments on 18 March 2020 stating that the date of separation with Mr Sinclair was 2 November 2019.  On 15 April 2020 the case was accepted from 18 March 2020 and Services Australia (Child Support) decided that the parents had 50/50 care of the children.

3. On 2 June 2020 Mr Sinclair objected to this decision and on 4 September 2020 a Child Support objections officer disallowed his objection.

4. A hearing into the application for review was held by the tribunal on 29 October 2020.  Mr Sinclair and Ms Sinclair participated in the hearing by conference telephone and gave evidence under affirmation during the hearing. 

5. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  Mr Sinclair provided an email with attachments (A1 to A7).  The documents were exchanged with Mr Sinclair and Ms Sinclair prior to the hearing.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked.

3. In this matter the Registrar must determine the actual care of the child; or the likely care during the ‘care period’ commencing from the start of the child support assessment (in accordance with section 50 of the Assessment Act).

CONSIDERATION

1. Ms Sinclair was diagnosed with [cancer] prior to November 2019 and underwent chemotherapy every three weeks.  She had surgery on 11 March 2020.  Mr Sinclair has submitted that since the case commenced, he has had the majority of the care of the children due to Ms Sinclair being ill and recovering from surgery; and it is not relevant what the care was prior to 18 March 2020.

2. Mr Sinclair stated that:

   ·      They had separated prior to November 2019 but Ms Sinclair moved out of the marital home on 2 November 2019.

   ·      They never discussed the care arrangements; care was based on convenience.

   ·      He did not keep a record of what care they actually had but believes he had the children about 80% of the time.  He stayed in the family home to provide some stability for the children; the house was near their school and football training.  He could not recall any of the dates he had the children in his care.

   ·      During March 2020 he had the children almost 100% of the time.

   ·      Even though he had the majority of the care he did not apply for child support payments as Ms Sinclair was ill and he did not think it was appropriate.

   ·      From 19 April 2020 they have had the children on a 50/50 basis.

3. Ms Sinclair stated that:

   ·      She was having chemotherapy on a three-week rotation.

   ·      She had several discussions with Mr Sinclair about the care arrangement for the children.  She was not sure how sick the treatments would make her so they agreed that she would have them as much as she could.  They agreed that in the long-term care would be 50/50.

   ·      In practice Mr Sinclair would care for the children between four to seven days after each treatment.

   ·      She recalls the children went back to her on 15 December 2019 (following a treatment) and she had them until 25 December 2019.  Her next treatment was on 27 December 2019 and Mr Sinclair had the children until 6 January 2020.  They were with her from 6 January 2020 to 18 January 2020.  She remembers this date as she went back to work on 20 January 2020 but was still feeling unwell after her treatment on 17 January 2020. 

   ·      She cannot recall what dates the children were with her between 18 January 2020 and 19 February 2020, but she knows she had the children for a substantial part of that time.

   ·      She is certain the children were with her from 19 February to 28 February 2020 as she has photos and can recall certain events that took place with the children.

   ·      The children were back with her from 7 March 2020 to 11 March 2020.  On 11 March 2020 she took the children to school on her way to the hospital.  Her mother brought the children in to see her over the next two days, but they stayed with Mr Sinclair.

   ·      She was home on 13 March 2020 and had [Child 1] stay one or two nights and then [Child 2].

   ·      She kept a care diary from 19 March 2020, and this contains detailed notes.  It shows the following care:

   oMr Sinclair:  19 to 20 March; 22 March to 1 April (one or two of the children with Ms Sinclair for some of these nights)

   oMs Sinclair: 2 April to 12 April

   oMr Sinclair 13 April to 18 April

4. The tribunal accepted Ms Sinclair’ evidence that prior to 11 March 2020 she had at least 50% care of the children.  She was able to recall dates and events of care and her evidence that she wanted the children with her between treatments was credible and reasonable. 

5. The tribunal also found that from 12 March 2020 to 1 April 2020 the children were mainly with Mr Sinclair while Ms Sinclair was recovering from surgery.  From then on it is clear that Ms Sinclair had at least 50% care and the parents have agreed to 50/50 care from 19 April 2020. 

6. The tribunal decided that it was always intended by both parents to have 50/50 care of the children.  For a period of three weeks, from 11 March 2020 to 1 April 2020 this arrangement was not followed due to Ms Sinclair having surgery.  As at 18 March 2020, when the case commenced, it was not known by either parent how long it would be before the 50/50 care resumed; only that it was a short-term arrangement.

7. Given the very short-term change in the agreed pattern of care; the tribunal decided that the pattern of care as at 18 March 2020, for the long term, was 50/50. 

8. The tribunal therefore affirms the decision under review.

DECISION

The decision under review is affirmed.