Stafford and Inwood (Child support)

[2024] AATA 1891

Stafford and Inwood (Child support) [2024] AATA 1891 (14 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027554

APPLICANT:  Mr Stafford

OTHER PARTIES:  Child Support Registrar

Ms Inwood

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  14 May 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS
CHILD SUPPORT – percentage of care – existing percentage of care determinations revoked – parenting plan – care arrangement no longer being followed – new percentage of care determinations – date of effect – 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. This review is about a change to the percentage of care determinations for Mr Stafford and Ms Inwood in respect of their children [Child 1] (born December 2013) and [Child 2] (born February 2018).  There has been a child support assessment in place since 21 July 2021.

2. From 11 May 2022 the child support assessment reflected Mr Stafford as having 42 per cent care and Ms Inwood as having 58 per cent care of [Child 1] and [Child 2].

3. On 9 January 2024 Ms Inwood notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she was providing 100 per cent care and Mr Stafford was providing 0 per cent care of [Child 1] and [Child 2] from 9 January 2024.

4. On 15 January 2024 Child Support made the decision to reflect that Mr Stafford provides 0 per cent care and Ms Inwood provides 100 per cent care of [Child 1] and [Child 2] from 9 January 2024.

5. On 19 January 2024 Mr Stafford objected to this decision and on 17 February 2024 Child Support disallowed the objection (the objection decision).

6. On 22 February 2024 Mr Stafford 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 14 May 2024.  Mr Stafford appeared before the Tribunal and gave evidence on affirmation.  Ms Inwood gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (132 pages).  The Tribunal received additional evidence from Mr Stafford (A1–A2) and Ms Inwood (B1) prior to the hearing and copies were distributed to the parties.

ISSUES

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

2. Child Support 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, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support 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 Stafford told the Tribunal that care of [Child 1] and [Child 2] was the subject of a parenting plan signed by the parents.  Mr Stafford said under the parenting plan he was to have care of three nights a week although there was some flexibility in the plan including for special events.

2. Mr Stafford said that Ms Inwood had wanted to amend the parenting plan despite the fact it had been in place for nearly two years and was working well.  Mr Stafford explained that because he disagreed with the proposed amendments Ms Inwood had withheld care of the children from 9 January 2024.

3. The Tribunal notes in evidence a copy of a parenting plan signed by the parents on 22 May 2022.  In relation to living arrangements for the children the parenting plan sets out that Mr Stafford is to have care of three nights a week during school term and school holidays.

4. Mr Stafford told the Tribunal that Ms Inwood had taken the children from day care without his knowledge or consent and then refused to allow him to have further care.  Mr Stafford said he did not agree to Ms Inwood having 100 per cent care and was seeking a return to the pattern of care under the parenting plan.  Mr Stafford added it was his view that Ms Inwood was trying to force him into agreeing to amendments to the parenting plan by withholding care.  Mr Stafford said he had arranged mediation in an attempt to resolve the situation and this was still being progressed although it had taken longer than expected.

5. Mr Stafford pointed out that he recently began having partial care of [Child 1] and [Child 2] again but was seeking to have this increased as soon as possible.

6. Ms Inwood told the Tribunal that following a disagreement between the parents she did have 100 per cent of the children from 9 January 2024.  Ms Inwood said this was not in dispute.

7. Ms Inwood said she agreed there had been a written care arrangement in place but it was not a formal parenting plan.  Ms Inwood pointed out the care arrangement was not legally binding and was no longer valid.  Ms Inwood explained that she was seeking a new care agreement with Mr Stafford and was participating in mediation.

8. The Tribunal notes in evidence from Child Support a series of text message exchanges between the parents relating to care of the children.  In one such exchange Ms Inwood advises Mr Stafford that she has the children “and I am not letting them stay with you until we agree on things again”.

9. 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. 

10. While Mr Stafford is frustrated the care arrangement between the parents is no longer being followed it is not in contention that care of [Child 1] and [Child 2] changed from 9 January 2024.  The Tribunal finds that Mr Stafford provides 0 per cent care and Ms Inwood provides 100 per cent care of [Child 1] and [Child 2] from 9 January 2024.

11. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 42 per cent care to Mr Stafford and 58 per cent care to Ms Inwood.  The Tribunal is satisfied, in the circumstances of this case, that as the children were not being made available to Mr Stafford for him to have care, then 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.

12. 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.

13. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their child.  The Tribunal, in making new percentage of care determinations either under section 49 or section 50 of the Act, must decide if section 51 of the Act applies.  Section 51 of the Act states that a care determination, known as an interim determination, may be made in certain circumstances to reflect the care under a written agreement rather than being based on the actual care taking place.  Under paragraph 53(1)(c) of the Act, an interim determination cannot be made if a previous care determination has been revoked under section 54F or 54H and the change in care occurred prior to 29 March 2024.[1]  The Tribunal is satisfied section 51 of the Act does not apply in this case.

    [1] See Child Support Registrar v CMU23 [2024] FCA 109 which the Tribunal is bound to apply.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Stafford and Ms Inwood under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Stafford provides 0 per cent care and Ms Inwood provides 100 per cent care of [Child 1] and [Child 2] from 9 January 2024.

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Inwood notified Child Support of the change in care for [Child 1] and [Child 2] on 9 January 2024.  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 January 2024.

Other care matters

1. Mr Stafford told the Tribunal his care of the children had recently resumed.  The legislative scheme deals with any such potential change of care by requiring either parent to notify Child Support so that a new care percentage decision can be considered and made if required.

DECISION

The decision under review is affirmed.