Stallworth and Smedley (Child support)

[2021] AATA 3672

Stallworth and Smedley (Child support) [2021] AATA 3672 (25 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021777

APPLICANT:  Mr Stallworth

OTHER PARTIES:  Child Support Registrar

Ms Smedley

TRIBUNAL:Member A Beckett

Presiding Member J Leonard

DECISION DATE:  25 August 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that

·     from 13 April 2020 Mr Stallworth has a percentage of care of [Child 1] and [Child 2] of 0% and Ms Smedley has a percentage of care of [Child 1] and [Child 2] of 82%; and

·     from 7 January 2021 Mr Stallworth has a percentage of care of [Child 1] and [Child 2] of 0% and Ms Smedley has a percentage of care of [Child 1] and [Child 2] of 100%.

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 – dates of revocation –  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 concerns the care percentages used in a child support assessment.

2. Ms Smedley and Mr Stallworth are the parents of [Child 1] and [Child 2]. A child support assessment made by Services Australia (Child Support) has been in place since 2016. The assessment was based on Mr Stallworth having a care percentage of 18% and Ms Smedley having a care percentage of 82% from 18 June 2018.

3. On 7 January 2021 Child Support contacted Ms Smedley in relation to an unrelated matter. Ms Smedley then advised that [Child 1] and [Child 2] had not been in Mr Stallworth’ care since January 2020 due to restrictions arising from COVID-19. On 27 January 2021 a decision was made to vary the care percentages used in the assessment so that Mr Stallworth had a care percentage of 0% from 25 January 2020 and Ms Smedley had a care percentage of 100% which was used in the assessment from 7 January 2021.

4. Mr Stallworth was notified of the decision by post and lodged an objection to that decision which Child Support records as being received on 2 March 2021. His objection was disallowed on 20 May 2021 and he was notified by post.

5. On 18 June 2021 Mr Stallworth applied to the Tribunal for a review of the decision made on 20 May 2021.

6. The application was heard on 25 August 2021. Ms Smedley and Mr Stallworth both attended the hearing by telephone. In addition to the oral evidence, the Tribunal had regard to documents provided by Child Support (folios 1 to 126).

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, or is likely to have, during a care period (section 50 of the Act).  In other words, Child Support 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. 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 the Tribunal must decide are:

   ·     whether there had been a change to the care patterns for [Child 1] and [Child 2] such that the care percentages used in the child support assessment should be revoked; and if so

   ·     the new care percentages which apply and the date from which they take effect.

CONSIDERATION

Was there a change to the care pattern for [Child 1] and [Child 2]?

1. Mr Stallworth advised that the Court Orders in relation to [Child 1] and [Child 2] provided for him to have care for the second half of all school holidays and one weekend each month from after school Friday to 5 pm Sunday.

2. Mr Stallworth stated that he had care of the children in accordance with the orders in January 2020, February 2020 and March 2020 however the COVID-19 travel restrictions meant he was unable to travel interstate again until December 2020.

3. Mr Stallworth provided documents which supported his oral evidence that flights were cancelled in August 2020. He stated that border closures were beyond his control and it is unjust to be labelled as having no care of the children.

4. Ms Smedley did not agree that Mr Stallworth had care of the children in February 2020 but agreed that the reduction in care from April 2020 was due to the impact of border restrictions. She did not advise Child Support of the change earlier as she was unsure how long the border restrictions would last.

5. The Tribunal determines that nothing rests on whether Mr Stallworth had care of the children in February 2020. If he did not have care it was an isolated event unrelated to the COVID-19 pandemic and it did not indicate a change in the pattern of care of [Child 1] and [Child 2].

6. In accordance with the Child Support policy contained in Chapter 2.2.3 of the Child Support Guide, the Tribunal finds that the previously established pattern of care ceased as Mr Stallworth missed three care events in a row. Having regard to the Queensland gazetted school holidays, the Tribunal finds that the previously established pattern of care ceased when Mr Stallworth did not have care of the children in the April 2020 school holiday period from 13 April 2020.

18.In these very unusual circumstances, the Tribunal has concluded that no fault attaches to Mr Stallworth or Ms Smedley for the fact that the care arrangements were not followed. There is no “contravention” and as such the “court-ordered care” provisions of the Act do not apply. It follows that actual care of [Child 1] and [Child 2] must be the basis of any decision.

1. Mandatory revocation of care percentages applies where one of the parents who was to have at least regular care of the child under the existing determinations now has no care or less than regular care despite the child being made available by the other parent and the other parent notifies of the change within a reasonable time; section 54G of the Act.

2. Generally, the Tribunal considers that a reasonable time is within 28 days of the parent becoming aware that a parent has ceased their established pattern of care. In these circumstances where the travel restrictions were frequently modified the Tribunal considers that a longer period may be appropriate, but in this case the discussion about the care arrangements was nine months after the pattern of care changed and the Tribunal considers that Child Support was not notified within a reasonable time.

3. As section 54G of the Act has no application, the existing care determination is revoked under subsection 54F(1) of the Act as the actual care of [Child 1] and [Child 2] from 13 April 2020 does not correspond with the existing percentage of care for them, and the change in the percentage of care results in a change in the relevant cost percentages used in the assessment.

When does the new care percentage take effect from?

1. As the change of care was notified more than 28 days after the change of care day, the information is applied to the assessment in different ways.

2. As Mr Stallworth’ care has reduced, the revocation of the care determination takes affect from 12 April 2020. As Ms Smedley’s care has increased, the revocation takes affect from the day before Child Support became aware of the change: 6 January 2021.

3. From 13 April 2020 Mr Stallworth has a percentage of care in respect of [Child 1] and [Child 2] of 0%: section 49 of the Act.

4. From 7 January 2021 Ms Smedley has a percentage of care in respect of [Child 1] and [Child 2] of 100%: section 50 of the Act.

5. The Tribunal notes that there was a further decision regarding a change to the pattern of care of the children from 5 February 2021. If either parent is unhappy with that decision they may choose to exercise their rights of review.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that

·     from 13 April 2020 Mr Stallworth has a percentage of care of [Child 1] and [Child 2] on 0% and Ms Smedley has a percentage of care of [Child 1] and [Child 2] of 82%; and

·     from 7 January 2021 Mr Stallworth has a percentage of care of [Child 1] and [Child 2] of 0% and Ms Smedley has a percentage of care of [Child 1] and [Child 2] of 100%.