Somers and Somers (Child support)

Somers and Somers (Child support) [2023] AATA 4701 (2 November 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2023/PC026229, 2023/PC026260
APPLICANT:  Mrs Somers
OTHER PARTIES:  Child Support Registrar
Mr Somers

TRIBUNAL:Member S Irvine
DECISION DATE: 2 November 2023
DECISION:

In review number 2023/PC026229 relating to the care percentage determinations for the children, the Tribunal sets aside the decision under review and, in substitution, decides that the following care determinations apply from 5 December 2022:

·      With respect to [Child 1], Mr Somers has 84% care and Mrs Somers has 16% care;
·      With respect to [Child 2], Mr Somers has 65% care and Mrs Somers has 35% care;
·      With respect to [Child 3], Mr Somers has 50% care and Mrs Somers has 50% care.

In review number 2023/PC026260, relating to the Child Support Registrar’s decision to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the application is dismissed and the decision remains unchanged.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care –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

Mrs Somers and Mr Somers are the parents of [Child 1] born in 2009, [Child 2] born in 2011 and [Child 3] born in 2014.
A new child support assessment in relation to the three children was made on 30 December 2022, with a start date of 5 December 2022. The new assessment was made on the basis that Mr and Mrs Somers each had 50% care of all three children.
On 24 February 2023 Mr Somers objected to the decision of 30 December 2022, and on 5 June 2023, Services Australia – Child Support (Child Support) allowed Mr Somers’s objection. Child Support made a new decision to reflect that Mr Somers had 86% care, and Mrs Somers had 14% care, of [Child 2] and [Child 1], and that each parent had 50% care of [Child 3], from 5 December 2022.
As Mr Somers’s objection was lodged more than 28 days after the notification of the original decision, Child Support also made a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act). That decision was to treat Mr Somers’s objection as though it had been made within time, which means the objection decision had effect from 5 December 2022.
On 9 June 2023 Mrs Somers applied to the Administrative Appeals Tribunal (the Tribunal) for a review of both of Child Support’s decisions. Mrs Somers’s application was heard on 19 October 2023. Mrs Somers and Mr Somers both attended the hearing by conference telephone.
At the hearing of this matter on 19 October 2023 Mrs Somers told the Tribunal that she did not wish to pursue her application for review of the decision made under subsection 87AA(2) of the Registration Act. Mr Somers consented to that application being discontinued. Accordingly, the application for review of the subsection 87AA(2) decision is dismissed pursuant to subsection 42A(1) of the Administrative Appeals Tribunal Act 1975.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Registration Act. Unless otherwise specified, legislative references in these reasons for decision are references to the Assessment Act.
The issue arising in this case is:
· What care determinations should be reflected in the child support assessments for [Child 1], [Child 2] and [Child 3] from 5 December 2022.

CONSIDERATION

Sections 49 and 50 of the Assessment Act relevantly require that, where an application for a child support assessment in relation to a child has been made, the Child Support Registrar must determine each responsible person’s percentage of care for the child during the care period. The “care period” is defined only as “such period … as the Registrar considers to be appropriate having regard to all the circumstances”.
It is not disputed that Mrs Somers applied to Child Support for an administrative assessment of child support in respect of the three children on 5 December 2022, and consequently care determinations must be made in respect of the three children.
At the hearing of the matter both Mr Somers and Mrs Somers explained that they have recently come to a new agreement about the care of the three children, and that the new agreement has effect from 14 September 2023. Centrelink has been advised of that new arrangement and has made a new care determination reflecting the new agreement. On that basis, I find that the appropriate care period to consider in this matter is the period from 5 December 2022 to 13 September 2023.
It is not disputed that during that period both Mr and Mrs Somers have each had some care of each of the three children, and I am therefore satisfied that section 50 of the Assessment Act applies. Relevantly under that section, the care percentage that must be determined is the percentage that corresponds with the actual care of the child that the person has had, or is likely to have, during the care period.

Evidence as to actual care

Child Support records indicate that Mr Somers contacted Child Support on 24 February 2023 and on that date, he lodged an objection to the care decision. According to the documentation received, Mr Somers provided the following information:
What has actually been happening is that both [Child 2] and [Child 1] stay with Mrs Somers one night per week every which for [Child 2] is a Wednesday night and for [Child 1] a Thursday night. Then both children are to stay every second weekend with Mrs Somers for Friday and Saturday night however sometimes this falls short and they come home early …
The arrangement is generally what occurs during school term. For the 2022/2023 Christmas school holidays the children were primarily with Mr Somers.
The care for [Child 3] is correct at 50/50.
In response to Mr Somers’s objection, Child Support records indicate that Mrs Somers stated on 17 April 2023 that she continues to provide overnight care of each of the children in a shared care arrangement, with each parent providing 50% care. The description of the care arrangement reported by Mrs Somers, as set out in the documentation from Child Support, is as follows:
Mrs Somers normally [h]as care of each of the children each Thursday evening in order for each child to attend their sports. The parents generally share Mondays, Fridays and weekends equally. Each Wednesday evening, Mr Somers has care of [Child 1] and [Child 3]; and Mrs Somers has care of [Child 2]. On Tuesday evenings, each child is normally in Mrs Somers’s care. The children are able to walk to Mrs Somers’s home from their school. The children catch a bus home to Mr Somers’s home.
The above arrangements are flexible so Mrs Somers is willing to agree to each parent having 50% care of each child from 1 June 2022; effective in the assessment from 5 December 2022.
Further evidence was presented to Child Support by both parents. In support of his objection, Mr Somers provided further evidence including:
·      screen shots of what appear to be text messages between Mr Somers and [Child 2] and between Mr Somers and [Child 1];
·      a letter dated 6 August 2020 from the Public Transport Authority setting out school bus arrangements for [Child 2] and [Child 1];
·      statements from Mr Somers’s brothers, parents and friends.
Mrs Somers provided evidence including:
· a screen shot headed [a company] bookings which shows notations of After Care and Before Care for dates from Tuesday 7 to Friday 31, but without identifying the child or a month or year;
· a statement from a friend of Mrs Somers.
With her application to the Tribunal, Mrs Somers tendered further statements from her manager at work, from a work colleague and from a friend, as well as from her 18-year-old daughter.
Assessing the care that each parent has had of the children in this matter is difficult on the basis of the evidence presented. Neither parent has kept contemporaneous records of care, and neither parent was able to be specific about which nights each child has spent in the care of each parent.
The parents agreed that from around June or July 2022 they had agreed that they would share the care of the children, with each parent having 50% care of each child.
Mr Somers’s evidence is that by the time the application for a child support assessment was made in early December 2022, that arrangement had already broken down, with the boys in particular spending more time with him by their own choice. Mrs Somers said that the care continued to be 50% for the three children, but the arrangement was flexible to meet the needs and wishes of the children. Neither parent could point to any particular pattern of care that was occurring for the children.
There were three periods of school holidays within the care period under consideration – a seven-week holiday from approximately 12 December 2022 to approximately 29 January 2023, a two-week period from approximately 10 April 2023 to approximately 23 April 2023, and a three-week period from approximately 3 July 2023 to approximately 23 July 2023.
In relation to school holiday periods, the parents agree that all three children spent the period from 26 December 2022 until around 14 January 2023 in Mr Somers’s care, as Mr Somers had taken the children camping on his brother’s property. They also agreed that from the time they returned from the camping trip until Mrs Somers commenced a new job on 18 January, the children were in Mrs Somers’s care, and that they then returned to Mr Somers’s care for the remainder of the school holidays.
There is some conflicting evidence in relation to the period prior to Christmas. Mrs Somers’s evidence was that she finished her previous job on 14 December 2022 and that the children stayed with her from that date until Christmas Day, leaving on Boxing Day to go camping with Mr Somers. Mr Somers said that he underwent surgery on 12 December 2022 and that he was home recovering after that, and the children were with him. However, he later said the children spent some time with Mrs Somers around Christmas.
In the two-week April school holidays, Mrs Somers said that she would have taken time off to spend time with the children and she would have had them for half the school holidays, but she could not recall which days she took off work, or whether she continued to work and left the children in the care of her older daughter who also lives with her. Mr Somers said the children spent the Easter weekend with Mrs Somers, from Good Friday to Easter Monday, and then were with him as Mrs Somers was working.
In the three-week July school holidays, Mr Somers said the children were in his care for the whole holiday period as Mrs Somers had no accrued leave and had to work. Mrs Somers said that she had initially planned to go away during those school holidays but the trip had to be cancelled because she had to work; however, she would have had some care of the children or at least of [Child 3] and [Child 2].
Both Mr and Mrs Somers have submitted statements to the Tribunal from family members and friends. While all the statements support the general contention that each parent had care of their children, both Mr and Mrs Somers have submitted statements to the Tribunal from family members and friends. While all the statements support the contention that both parents have provided some care of the children, they are not specific as to dates or patterns of care. The statements provided by Mrs Somers tend to support a general contention that she has [Child 3] in her care for a majority of the time, she has had [Child 2] in her care for about 50% of the time, and that she has had less care of [Child 1] – however, as the statements are very general, I am unable to rely on them to assist me to calculate the actual care Mrs Somers has had.
Similarly, the statements provided by Mr Somers tend to support a general contention that he has had the majority of care of the boys, and about 50% care of [Child 3]. Again, they are not specific as to dates and times, although statements provided by Mr Somers’s brothers both state that Mr Somers has had care of the children through most of the 2022/23 summer holidays and for the whole of the April school holidays. Again, as the statements are very general, I am unable to rely on them to assist me to calculate the actual care Mr Somers has had.
Following the hearing of this matter, Mr Somers submitted further evidence in the form of time-stamped photographs of the children while they were in his care. All the photographs were taken during school holidays. I am satisfied that the photographs are evidence that Mr Somers had some care of the children during school holiday periods, but they only cover a few select days of the school holidays and so again do not assist in determining where the children were during the entirety of the holidays.
In relation to the arrangements during term time, the evidence is again very general. It appears that, at least at the beginning of the school year, the arrangement was that the children alternated weekends with their parents. Mr Somers’s evidence was that the boys were sometimes reluctant to spend weekends with their mother, and would sometimes ask to be picked up early, but in the absence of any specific evidence or dates it is not possible to quantify that.
During the week, at least at the beginning of the school year, the evidence is that [Child 1] and [Child 2] would stay with Mrs Somers on nights when they had after school activities – in [Child 2]’s case this was two nights per week and in [Child 1]’s case one night per week. Mr Somers explained that on evenings when the children had after school activities they had to stay with Mrs Somers because he wasn’t able to pick them up. However, his evidence was that the school activities only lasted a couple of months and then the boys stopped going. There is no specific evidence as to where [Child 1] and [Child 2] were on other nights of the week. Mr Somers’s evidence was that the boys tended to prefer to go to his house, as their mother was often unavailable to collect them straight after school and it was easy for them to jump on the bus, which took them to his house. Mrs Somers stated that on occasion her older daughter, [name], would collect them from school, or else [Child 2] would go to after school care and [Child 1] would ride his bike to her house, which is only a short distance from the school.
In relation to [Child 3], Mr Somers said she has always drifted back and forth and overall, her care is about 50% to each parent. Mrs Somers said that [Child 3] preferred to be at her house because she had to be up very early to catch the bus to school from Mr Somers’s property, and she is not an early morning person.
There is evidence that [Child 1] stopped spending any time in his mother’s care at some point during the year. At hearing Mrs Somers said she thought that might have been around August, while Mr Somers said it was March or April.
Mr Somers submitted a number of screen shots of text messages from [Child 2] and [Child 1] to Child Support as part of the objection process. While not conclusive, these messages suggest that both boys were still spending some time in weekend care with their mother in March 2023. I also note that on 12 May 2023 Mr Somers made a statement to Child Support where he said that [Child 1] had not been in his mother’s care “for some time”, and on 1 June 2023 Mrs Somers also made a statement to Child Support where she stated that she no longer had any care of [Child 1] and that that had occurred “only very recently”.
Mr Somers also said at hearing that when [Child 1] stopped going into his mother’s care, [Child 2] also began to spend less time in his mother’s care. He explained that the boys were close and [Child 2] preferred to be with [Child 1]. This evidence was not contradicted by Mrs Somers.
Any calculation of the actual care of the children over the care period is necessarily going to be approximate, due to the lack of any specific evidence. However, on the basis of the evidence given by the parents, I find it is likely that:
·      For [Child 3], the parents shared the care approximately equally over the care period. I accept that Mrs Somers probably has more care of [Child 3] during the school week, but also that [Child 3] has spent the majority of the school holidays over the care period in her father’s care. Overall, I find that [Child 3] has been in the shared care of her parents, with each parent having a care percentage of 50%.
·      For [Child 1], I accept that [Child 1] was primarily in his father’s care from at least 1 May 2023, with Mrs Somers having no or very minimal care of [Child 1] from that date until the end of the care period. Prior to that, I find that during term time [Child 1] spent 40% of nights in his mother’s care and 60% of nights in his father’s care. This is based on a pattern of three nights per fortnight weekend care, plus one or sometimes two nights during the week (a total of five or six nights per fortnight). I also find that [Child 1] probably spent around two weeks of the seven-week Christmas holidays in his mother’s care and was otherwise in his father’s care, and that he spent the majority of the April school holidays in his father’s care.
·      The period from 5 December 2022 to the end of April 2023 is a period of 21 weeks. Nine weeks of that period is covered by school holidays. Therefore, for [Child 1] I find that up until the end of April, Mrs Somers had care of [Child 1] for 34 nights during term time (40% of 84 nights or 12 weeks). I also find that he spent two weeks (14 nights) during school holidays in his mother’s care, giving a total of 48 nights over the period. I find that he did not spend any other time in his mother’s care during the care period. Over the whole period from 5 December 2022 to 13 September 2023, a period of 283 nights, this equates to 16% care.
·      For [Child 2], I find that up until the end of April 2023, [Child 2] spent 50% of nights during term time in his mother’s care, and his school holiday care was the same as [Child 1]. During that period, I therefore find that [Child 2] spent a total of 56 nights in the care of Mrs Somers.
·      From 1 May 2023 I find that [Child 2]’s time with his mother during term time reduced so that he spent approximately one weekend in four in his mother’s care. In relation to care during the week, I find that [Child 2] continued to stay with his mother for at least one night per week, in the absence of any clear evidence to the contrary. I also find that during the July school holidays, it is likely [Child 2] spent some time in his mother’s care, but it is impossible to quantify precisely in the absence of any evidence. On that basis, I will assign one week of care of [Child 2] to Mrs Somers during the July school holidays. From 1 May until the end of the care period I am considering, on 13 September, is a period of approximately 19.5 weeks, of which three weeks are school holidays. For the remaining 16 weeks, I find that [Child 2] was in his mother’s care for three weekends or 21 nights, plus one night per week or 17 nights. I also find that [Child 2] was in his mother’s care for one week of the July school holidays, giving a total over that part of the care period of 44 nights.
·      Across the whole care period I therefore find that Mrs Somers had care of [Child 2] for 100 out of 283 nights, or 35%.
I therefore find that for the period commencing 5 December 2022, the appropriate care determinations for the children pursuant to section 50 of the Assessment Act are 50% to each parent in relation to [Child 3], 65% to Mr Somers and 35% to Mrs Somers in respect of [Child 2], and 84% to Mr Somers and 16% to Mrs Somers in respect of [Child 1].

As noted above, both parents advised the Tribunal that a new care pattern commenced from 14 September 2023, and from that date they have agreed the care going forward will be 50% for each parent for each of the three children. Mrs Somers advised that Centrelink has now made a new care decision to that effect, although at the time of hearing she believed Child Support had not reflected that new care decision in the child support assessment.
As was explained to the parents during the hearing, the Tribunal does not have jurisdiction to consider any new care decision that may have been made in September 2023. This will be a matter the parents will need to pursue with Child Support, and they can pursue their objection and review rights in respect of that decision if necessary.

DECISION

With respect to [Child 1], Mr Somers has 84% care and Mrs Somers has 16% care;
With respect to [Child 2], Mr Somers has 65% care and Mrs Somers has 35% care;
With respect to [Child 3], Mr Somers has 50% care and Mrs Somers has 50% care.

[2023] AATA 4701

2 November 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Remedies