Skeete and Skeete (Child support)

[2021] AATA 3604

Skeete and Skeete (Child support) [2021] AATA 3604 (2 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021604

APPLICANT:  Ms Skeete

OTHER PARTIES:  Child Support Registrar 

Mr Skeete   

TRIBUNAL:Member R King

DECISION DATE:  2 August 2021

DECISION:

The sets aside the decision under review, and in substitution, decides that there was no change of care on or around 5 January 2020 and Ms Skeete retained 100% of the care of [Child 1], [Child 2] and [Child 3].

The tribunal’s decision has effect from 27 May 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether the change would cause change to cost percentage – existing percentage of care determinations not to be revoked – whether special circumstances prevented application for review within 28 days – 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. Ms Skeete and Mr Skeete are the parents of [Child 1] (age 17 years), [Child 2] (age 16 years) and [Child 3] (age 13 years).  This application concerns the care percentages each parent had of the three children from January 2020 and whether an interim care period should be determined in respect of their care from this time.

2. At all relevant times, Mr Skeete was paying child support to Ms Skeete under an administrative assessment made by the Child Support Agency (CSA) in October 2019.  Under this assessment the care percentages for all three children were recorded as being 100% with Ms Skeete and 0% with Mr Skeete.

3. On 6 January 2020, Mr Skeete contacted the CSA and advised that under a recent court order, he now had 30% of the care of the three children.  On 23 January 2020, after speaking with Ms Skeete, the CSA determined that the care of the three children was 70% with Ms Skeete and 30% with Mr Skeete from 5 January 2020.

4. On 31 January 2020 (within 28 days after receiving the original decision) Ms Skeete lodged an objection to the care percentage decision.

5. On 26 March 2020, an objections officer disallowed Ms Skeete’s objection.  The objections officer found that the evidence established that care of all three children was being provided in accordance with the court order and that there was no basis for disturbing the care percentage determination made on 23 January 2020.

6. On 27 May 2021 (more than 28 days after receiving the objection decision) Ms Skeete applied to the tribunal for review of the care percentage decision.  She stated that she now had evidence that the children had been 100% in her care since January 2020.

7. Mr Skeete applied to be added as a party to Ms Skeete’s application.  His application was accepted.

8. The tribunal conducted a hearing on 2 August 2021.  Both Ms Skeete and Mr Skeete participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Ms Skeete told that the court order had never been implemented because the children did not want to stay overnight with Mr Skeete and she was not prepared to force them to do so.  She said that she believed that they were of an age when they could make up their own mind where they wanted to stay.  Ms Skeete told the tribunal that [Child 1] had spent some nights with Mr Skeete, but the two younger children had never stayed overnight.  She said that they were happy to visit him and stay for dinner, but they chose to return to her place for the night on such occasions.  Ms Skeete said that she was not convinced that Mr Skeete was really interested in overnight care of the children.

2. Ms Skeete told the tribunal that she delayed applying to the tribunal because it was only recently that she had evidence of Mr Skeete acknowledging that the children did not spend the night with him.

3. Mr Skeete told the tribunal that the new evidence referred to by Ms Skeete was inadmissible because it derived from an assessment for the court and disclosure to a third party was prohibited.  Mr Skeete said that Ms Skeete had consistently breached court orders and that these breaches would come before a judge at a forthcoming court hearing.  Mr Skeete said that he had actively sought enforcement of the court order from the beginning.

4. Mr Skeete did not dispute that he had no overnight care of the two younger children and only occasional overnight care of [Child 1] (he estimated 7-10 nights over the course of a year).  He said that this was because Ms Skeete did not actively encourage the children to spend nights with him in accordance with the court order and this meant that she was withholding care.  Mr Skeete told the tribunal that the children had visited and stayed for dinner on approximately 30 occasions during 2020.  On each occasion, he had driven to Ms Skeete’s home, picked up the children and then driven them back to her home after dinner.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (the Act).  The Child Support Guide (the Guide) contains detailed policy guidelines for CSA officers to use when applying the Act.  The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent.  The evidence before the tribunal suggests that the CSA initially determined that Ms Skeete had 100% of the care of the three children and Mr Skeete had 0% of their care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked.  Under section 54G of the Act, a care percentage determination must also be revoked if the effect of a change of care is such that a parent has less than 14% of the care.  Section 54G can only be applied if the responsible person notifies the CSA within a reasonable period and has been making the child available to the other party.  If a change of care is insufficient to require a change to the cost percentage, the original determination may be revoked under section 54H of the Act but this is not mandatory because the change in care percentage does not affect the overall child support assessment.  When a care percentage determination is revoked under sections 54F, 54G or 54H but the revocation is not in the context of a terminating event, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent. 

4. On 23 January 2020, the CSA revoked the existing care determination following advice that, under a court order, Mr Skeete had 30% of the care of the three children from 5 January 2020.  A new care determination was made under section 50 of the Act. 

5. It is not in dispute that, notwithstanding the court order, Ms Skeete was the only parent who provided overnight care for [Child 2] and [Child 3] during 2020.  The evidence indicates that Mr Skeete provided some overnight care for [Child 1], but this was for substantially less than 14% of the available nights in 2020.  Both parties agree that the actual pattern of care for the three children was inconsistent with the care arrangements set out in the court order that was applicable during 2020.  The tribunal is not required to rely on the document that Mr Skeete submitted was inadmissible to make such findings.  The findings are based on the sworn evidence provided by both parties during the hearing.

6. Under section 51 of the Act, when, prior to the revocation, care was provided in accordance with a court order or parenting plan, an interim care period can be determined if the change of care has occurred because one parent is withholding care and the person with reduced care is taking reasonable action to ensure that the pre-existing care arrangement is complied with.  This means that in such circumstances, two care percentages can be determined; one that reflects the actual care and the other that reflects the care percentages under the pre-existing care arrangement.  The latter provides the basis for an interim care period, the duration of which depends on conditions set out in section 53A of the Act.  Subsection 51(5) allows for a single care percentage to be determined if special circumstances exist in relation to the child.  The single care percentage will reflect the actual care and not the care that would have occurred under the pre-existing care arrangement.

7. The tribunal is not satisfied that an interim care period determination is applicable in the circumstances of this case.  There are several reasons for this.  The first is that there is no evidence to suggest that care had been provided in accordance with the relevant court order.  Both parties agree that the order had never been implemented.  The second reason is that it is not clear that Ms Skeete was withholding care of the children from Mr Skeete.  She made the children available to him on a regular basis and it was their wishes rather than Ms Skeete’s withholding that resulted in minimal overnight care in the case of [Child 1] and no overnight care in the case of [Child 2] and [Child 3].  It is possible that Ms Skeete could have been more active in encouraging the children to spend nights with Mr Skeete but given their ages, it is questionable as to how appropriate or effective such encouragement would have been.  Finally, the tribunal is not satisfied that Mr Skeete took reasonable action to ensure compliance with the court order.  The tribunal accepts that Mr Skeete has been active in litigation, but it appears likely that the primary focus of the litigation has been a property settlement.  Mr Skeete had plenty of opportunity to encourage the children to spend nights with him but chose to habitually return them to Ms Skeete. 

8. It follows that care percentages from 5 January 2020 must be based on the actual care provided and not the care specified in the court order.  While the evidence indicates that Mr Skeete provided some overnight care for [Child 1] during 2020, the amount was insufficient to have an impact on the cost percentage for [Child 1].  This means that, under section 54H of the Act, even through there was a change to the care percentage, the tribunal is not required to revoke the original care determination.

9. As a result, for purposes of the child support assessment, the pre-existing care percentages, whereby Ms Skeete had 100% of the care of all the children and Mr Skeete had 0% of their care, can remain in place.  The tribunal will therefore set aside the decision of the objections officer.

10. Ms Skeete applied to the tribunal more than a year after the objection decision.  Under subsection 95N(2) of the Child Support (Registration and Collection) Act 1989, the tribunal’s decision will have effect from the date Ms Skeete sought review, unless there were special circumstances that prevented an application for review within 28 days of the objection decision. 

11. Ms Skeete told the tribunal that she did not believe that she had sufficient evidence to dispute the decision of the objections officer until a recent assessment prepared for the court established that Mr Skeete had not been providing care. 

12. The tribunal does not accept that this constitutes a special circumstance that prevented lodgement of a timely review.  The tribunal accepts that Ms Skeete judged that she was unlikely to be successful with an earlier application but that judgement was not well-founded and she in effect rested on her rights by not lodging an application for review with the tribunal within 28 days, as she was clearly advised to do in the objection decision letter sent to her by the CSA.

13. This means that the tribunal’s decision has effect from 27 May 2021.

DECISION

The sets aside the decision under review, and in substitution, decides that there was no change of care on or around 5 January 2020 and Ms Skeete retained 100% of the care of [Child 1], [Child 2] and [Child 3].

The tribunal’s decision has effect from 27 May 2021.