Spenceley and Sleeman (Child support)

[2021] AATA 3353

Spenceley and Sleeman (Child support) [2021] AATA 3353 (6 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021586

APPLICANT:  Miss Spenceley

OTHER PARTIES:  Child Support Registrar

Mr Sleeman

TRIBUNAL:Presiding Member M Sutherland

Senior Member R Ellis

DECISION DATE:  06 August 2021

DECISION:

The Tribunal sets aside the decision under review and in substitution, decides Miss Spenceley provides 17 percent care and that Mr Sleeman provides 83 percent care for [Child 1], with effect from 9 February 2021.

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 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 Spenceley and Mr Sleeman for their son [Child 1] (born June 2004).

2. There has been a child support assessment in place since 5 May 2020. Miss Spenceley is the parent liable to pay child support under the child support assessment.

3. From 15 January 2021 the child support assessment reflected Miss Spenceley as having 0 percent care and Mr Sleeman as having 100 percent care of [Child 1].

4. On 9 February 2021 Miss Spenceley notified the Child Support Agency of a change to the care arrangements stating that she provided 20 percent care and Mr Sleeman 80 percent care of [Child 1] from that date.

5. On 24 February 2021 the Child Support Agency made the decision to reflect that Miss Spenceley provided 10 percent care of [Child 1] and Mr Sleeman provided 90 percent care from 9 February 2021.

6. On 26 February 2021 Miss Spenceley objected to this decision and on 30 April 2021 the Child Support Agency disallowed the objection (the objection decision).

7. On 25 May 2021 Miss Spenceley applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 6 August 2021. Miss Spenceley and Mr Sleeman gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter, pages 1–116.

THE LAW

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.

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.

ISSUES

1. The issues which arise in this case are:

   ·      has there been a change in the pattern of care for [Child 1] 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

The evidence of the parties

1. Miss Spenceley said:

   ·      There was no court order or written agreement in place regarding the care of [Child 1]; she and Mr Sleeman had worked things out themselves.

   ·      In January 2021 [Child 1] decided to live with Mr Sleeman because he did not want to shuttle between the two, she lived far from his school.

   ·      It was never agreed that Mr Sleeman would have 100 percent care and she 0 percent, the Child Support Agency made this assessment without properly consulting her.

   ·      Once she received a letter from the Child Support Agency which reflected this percentage of care, she lodged the application for change of care on 9 February 2021.

   ·      She had discussions with Mr Sleeman and it was agreed that she have one night of care every fortnight and half of the school holidays. She was not prepared to accept less than 52 nights of care a year.

   ·      Both her and Mr Sleeman work to rosters so it was agreed that if she missed care then she would make it up, care could be flexible to accommodate both of them.

   ·      [Child 1] would be finishing school in November 2021 and care from December 2021 would have to be worked out depending on what his plans were, she would like to have increased care after he finishes school.

   ·      She had 3 nights in the April school holidays, 8 nights in June-July school holidays, she expects to have 8 nights in the September-October holidays, 7 nights make-up care in November and at least 6 nights in December = 32 nights holiday care plus 26 nights = 58 nights or 15 percent care. (See calendar on page 77 of the hearing papers which sets out actual and expected care.)

2. Mr Sleeman said:

   ·      He agreed that care was arranged verbally between the parents.

   ·      He acknowledged that it was difficult to determine a precise pattern of care as both parents worked shifts.

   ·      He had agreed to Miss Spenceley having one night a fortnight and half the school holidays and that care could be flexible to accommodate both him and Miss Spenceley.

   ·       Miss Spenceley could have a few extra nights in November to take [Child 1] to see her family.

3. Both parties agreed that care for [Child 1] would very likely change in December 2021 after [Child 1] had finished school. An application for a new care determination could be made then.

4. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established from 9 February 2021 with Miss Spenceley providing care of at least 58 nights or 15 percent care.

5. The existing percentages of care in the assessment for [Child 1] were 0 percent care to Miss Spenceley and 100 percent care to Mr Sleeman. The Tribunal is satisfied that in 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.

6. The tribunal finds that as section 54F of the Act is met, the previous care determinations should be revoked and replaced with the pattern of care taking place.

New care percentage determinations

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

2. For the reasons outlined above the Tribunal finds that Miss Spenceley provides 15 percent care and Mr Sleeman provides 85 percent care of [Child 1].

Date of effect of new care percentage determinations

1. The Tribunal finds that Miss Spenceley notified the Child Support Agency of the change in care on 9 February 2021. As this is less than 28 days after the change occurred, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 9 February 2021.

3. In this case the Tribunal has found that Miss Spenceley has 15 percent care of [Child 1] and her cost percentage is, therefore, 24 percent. A parent’s cost percentage represents the percentage of a child’s costs that parent meets directly through their care of the child. The cost percentage for Miss Spenceley will not change while her care remains between 14 percent care and less than 35 percent care. In other words, the amount of child support Miss Spenceley is liable to pay under the assessment will not change until her care is 35 percent care or more.

DECISION

The Tribunal sets aside the decision under review and in substitution, decides Miss Spenceley provides 15 percent care and that Mr Sleeman provides 85 percent care for [Child 1], with effect from 9 February 2021.