Smollet and Smollet (Child support)

[2023] AATA 1184

Smollet and Smollet (Child support) [2023] AATA 1184 (16 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024902

APPLICANT:  Mr Smollet

OTHER PARTIES:  Child Support Registrar

Ms Smollet

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  16 February 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Smollet provides 19 per cent care of [Child 1] and [Child 2] and Ms Smollet provides 81 per cent care from 1 July 2021 but with effect from 27 June 2022 for Mr Smollet and from 1 July 2021 for Ms Smollet.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 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. This review is about a change to the percentage of care determinations for Mr Smollet and Ms Smollet in respect of their children [Child 1] (born May 2009) and [Child 2] (born May 2011).  There has been a child support assessment in place since 1 March 2018.

2. From 11 August 2017 the child support assessment reflected Mr Smollet as having 0 per cent care and Ms Smollet as having 100 per cent care of [Child 1] and [Child 2].

3. On 27 June 2022 Mr Smollet advised the Child Support Agency of a change to the care arrangements stating that he provides 22 per cent care and Ms Smollet provides 78 per cent care of [Child 1] and [Child 2] from 1 July 2021.

4. On 10 September 2022 the Child Support Agency made the decision to refuse to reflect that Mr Smollet provides 22 per cent care and Ms Smollet provides 78 per cent care of [Child 1] and [Child 2] from 1 July 2021.

5. On 28 September 2022 Mr Smollet objected to this decision and on 12 October 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 25 October 2022 Mr Smollet 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 16 February 2023.  Mr Smollet and Ms Smollet gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (208 pages).  The Tribunal received additional information from Ms Smollet on 13 February 2023 and a copy was distributed to the parties (B1–B20).

8. At hearing Mr Smollet said he had yet to receive the additional information provided by Ms Smollet but nonetheless wanted the Tribunal to proceed to make a decision.

ISSUES

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

2. The Child Support Agency 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, the Child Support Agency 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, the Child Support Agency 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. The Child Support Agency 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 [Child 1] and [Child 2] 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. Mr Smollet told the Tribunal there were court orders in place relating to the care of the children and the parents made arrangements in accordance with these court orders.  Mr Smollet said care was, in effect, up to Ms Smollet and the general agreement was that he would have care of two nights per fortnight during school term and half the school holidays.

2. Mr Smollet said his fortnightly care during school term was usually on a Friday and Saturday night but there were occasions when he missed a night here and there, for example, when the children were unwell or he had an appointment he could not miss.  Mr Smollet explained that he was living in [Town 1] at the time which was about [distance] from Sydney and this sometimes made it difficult for him to have care every second weekend.  Mr Smollet pointed out he would rarely miss his care during the school holidays.

3. The Tribunal notes in evidence from the Child Support Agency a copy of consent orders handed down in the Family Court of Australia [in] December 2020.  In relation to care the orders state that Mr Smollet is to spend time with the children from 12:00 pm until 6:00 pm each alternate Sunday and at other times as agreed between the parents.

4. Ms Smollet told the Tribunal she agreed that a new pattern of care commenced from 1 July 2021 with Mr Smollet generally having care of two nights per fortnight during school term and half the school holidays.  Ms Smollet said the fortnightly care was sporadic as Mr Smollet was living in the country but she did not dispute the holiday care.  Ms Smollet added that sometimes Mr Smollet might have [Child 1] and [Child 2] for more than half the school holidays.

5. Ms Smollet said she had provided the Tribunal with a summary of the care Mr Smollet was providing from 1 July 2021. She said according to her summary Mr Smollet had care of 70 nights in the 12-month period from 1 July 2021.

6. The Tribunal notes in evidence from Ms Smollet a table indicating the nights Mr Smollet had care of [Child 1] and [Child 2] from 1 July 2021 to 30 June 2022:

   ·     July 2021 – 2, 3, 4, 5, 6, 7, 8, 9 (eight nights)

   ·     September 2021 – 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 (13 nights)

   ·     October 2021 – 1 (one night)

   ·     November 2021 – 20 (one night)

   ·     December 2021 – 4, 28, 29, 30, 31 (five nights)

   ·     January 2022 – 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 (22 nights)

   ·     February 2022 – 11, 12, 26 (three nights)

   ·     April 2022 – 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 (13 nights)

   ·     May 2022 – 20, 21 (two nights)

   ·     June 2022 – 3, 4 (two nights)

7. Ms Smollet pointed out that Mr Smollet had no care in August 2020 due to restrictions associated with the COVID-19 pandemic and no care in March 2022 because her family had COVID-19.  Mr Smollet said the dates provided by Ms Smollet sounded about right.

8. 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.

9. It is not in dispute and the Tribunal finds that care of [Child 1] and [Child 2] changed on 1 July 2021.  The Tribunal is satisfied that a new pattern of care commenced from 1 July 2021 with Mr Smollet providing care of 70 nights and Ms Smollet providing care of 295 nights.

10. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 0 per cent care to Mr Smollet and 100 per cent care to Ms Smollet. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

11. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Smollet and Ms Smollet under section 50 of the Act.

2. For the reasons outlined above the Tribunal finds that Mr Smollet provides 19 per cent care and Ms Smollet provides 81 per cent care of [Child 1] and [Child 2] from 1 July 2021.

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Smollet notified the Child Support Agency of the change in care on 27 June 2022.  As this is more than 28 days after the change occurred on 1 July 2021, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 27 June 2022 for Mr Smollet and from 1 July 2021 for Ms Smollet.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Smollet provides 19 per cent care of [Child 1] and [Child 2] and Ms Smollet provides 81 per cent care from 1 July 2021 but with effect from 27 June 2022 for Mr Smollet and from 1 July 2021 for Ms Smollet.