Vaandrager and Vaandrager (Child support)

[2024] AATA 2523

Vaandrager and Vaandrager (Child support) [2024] AATA 2523 (11 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027525

APPLICANT:  Mrs Vaandrager

OTHER PARTIES:  Child Support Registrar

Mr Vaandrager

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  11 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Vaandrager provides 39 per cent care of [Child 1] and [Child 2] and Mr Vaandrager provides 61 per cent care with the care period commencing from 24 October 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations changed – new determination 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 the percentage of care determinations for Mrs Vaandrager and Mr Vaandrager in respect of their children [Child 1] (born October 2010) and [Child 2] (born October 2012).

2. On 15 November 2023 a new child support case was registered by Services Australia – Child Support (Child Support) with the liability commencing from 24 October 2023.

3. On 15 November 2023 Child Support also made the decision to record the level of care under the assessment as Mrs Vaandrager having 28 per cent care and Mr Vaandrager having 72 per cent care of [Child 1] and [Child 2] from 1 July 2023 effective from 24 October 2023.

4. On 30 November 2023 Mrs Vaandrager objected to this decision and on 6 February 2024 Child Support disallowed the objection (the objection decision).

5. On 19 February 2024 Mrs Vaandrager applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 11 June 2024.  Mrs Vaandrager and Mr Vaandrager gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (113 pages).

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. If a new application is made for a parent to be assessed in respect of the costs of a child and the 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 (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·     what is the percentage of care each parent has for [Child 1] and [Child 2]; and

   ·     from what date should any care decision take effect?

CONSIDERATION

1. Mrs Vaandrager told the Tribunal there was no formal arrangement in place relating to the care of [Child 1] and [Child 2] when the child support assessment commenced.  Mrs Vaandrager said Mr Vaandrager had proposed that she have care of two nights a week and possibly a third night a week which she had agreed to in order to keep the peace.  Mrs Vaandrager said she felt manipulated at the time and had no other choice but to accept the proposal.

2. Mrs Vaandrager said following their separation the parents had initially lived under the one roof but this had changed by the time Mr Vaandrager made the application for an assessment.  Mrs Vaandrager explained that by then she had moved in with her partner about an hour north of the former family home in Brisbane.

3. Mrs Vaandrager said at the outset she was having care of the children most Saturday nights as Mr Vaandrager started work early on a Sunday morning and this suited him.  Mrs Vaandrager said she would also have care from Sunday to Tuesday every week and drop the children to school on Monday and Tuesday mornings.  Mrs Vaandrager added there was some flexibility in the care arrangement agreed between the parents, for example, she might not always have care on a Saturday night but sometimes she would have an extra night of care on a Friday.  Mrs Vaandrager said she also had a week of care during the summer school holidays. She said the established pattern of three nights a week then resumed after the holidays.  Mrs Vaandrager pointed out that, more recently, Mr Vaandrager had ceased being as amenable and was making it difficult for her to have care on a Saturday night which was disappointing as she really wanted equal shared care.

4. The Tribunal notes in evidence from Child Support a calendar of care provided by Mrs Vaandrager which outlines her care from 21 October 2023 to 12 January 2024.  It shows she had the following care from the date assessment commenced on 24 October 2023:

   ·     October 2023 – 27, 28, 29, 30 (four nights)

   ·     November 2023 – 4, 5, 6, 12, 13, 24, 25, 26, 27 (nine nights)

   ·     December 2023 – 3, 4, 5, 10, 11, 16, 17, 18, 19, 20, 21, 29, 30, 31 (14 nights)

   ·     January 2024 – 6, 7, 8 (three nights)

5. Mrs Vaandrager said she thought that from 6-9 December 2023 [Child 1] had stayed with her and [Child 2] had returned to Mr Vaandrager.  She explained that from 16-22 December 2023 she had a holiday with the children and her parents in [Town 1].

6. Mr Vaandrager told the Tribunal the parents had a verbal agreement about the care of [Child 1] and [Child 2] which he thought Mrs Vaandrager was happy about.  Mr Vaandrager explained that he had only suggested Mrs Vaandrager have care of two nights a week because she had some personal problems and he felt it better, at least initially, for the children to spend more time with him.  Mr Vaandrager said he was not trying to be controlling and reiterated that Mrs Vaandrager had agreed to this level of care.

7. Mr Vaandrager said although the general basis of the agreement was that Mrs Vaandrager would have care from Sunday to Tuesday every week he acknowledged the arrangement was flexible and sometimes she might have additional care.  He added the parents were currently trying mediation to resolve ongoing parenting and care matters.

8. The Tribunal notes in evidence a text message exchange between the parents in relation to care.  In the exchange Mrs Vaandrager asks if she is to have the children from Sunday to Tuesday.  In response Mr Vaandrager states, “It’s pretty much what you’ve been saying, and what we’ve previously agreed to.  Except instead of me dropping them off later Sat night, I’ll drop them off early Sunday morning.  But it’s not as if there can’t be flexibility when the need arises”.  Mrs Vaandrager responds, “I agree to that, with flexibility”.

9. Mr Vaandrager said he had provided the text messages to Child Support as evidence of the care agreement between the parents.  He said the exchange took place on 17 October 2023.

10. Mr Vaandrager said Mrs Vaandrager had moved out of the family home around the time the child support assessment commenced which was not long after the parents had settled on their care arrangement.  He said she had moved in with her new partner who lived about an hour away from the family home.  Mr Vaandrager agreed there was flexibility in the pattern of care and both parents had extended care during the school holidays.  He said that after the school holidays care returned to the usual pattern but it was likely both parents would continue having holiday care as he thought this was important.

11. The Tribunal notes in evidence a written statement from Mr Vaandrager to Child Support dated 29 December 2023.  In this statement Mr Vaandrager pointed out that the care arrangement had been in place informally for several months but agreed to on 17 October 2023.  Mr Vaandrager also confirms:

    As I stated previously, it was precisely when I told her [Mrs Vaandrager] I was applying for Child Support that she then decided [to] move in with her current boyfriend who lives an hour away from here.

12. Mr Vaandrager said he had also provided Child Support with a calendar outlining the care Mrs Vaandrager was having from the start of the child support assessment.

13. The Tribunal notes in evidence a colour coded calendar of care provided by Mr Vaandrager to Child Support on 29 December 2023. It shows Mrs Vaandrager had the following care from 24 October 2023:

    ·     October 2023 – 27, 28, 29, 30 (four nights)

    ·     November 2023 – 4, 5, 6, 12, 13, 24, 25, 26, 27 (nine nights)

    ·     December 2023 – 3, 4, 5, 9, 10, 11, 17, 29, 30, 31 (10 nights)

14. Mr Vaandrager said he agreed the children had a holiday with their maternal grandparents from around 18-22 December 2022 which was a regular event.  He later found out that Mrs Vaandrager had accompanied them on this holiday.

15. The Tribunal is satisfied that an application for a child support assessment was made by Mr Vaandrager on 24 October 2023 and accepted by Child Support on 15 November 2023.

16. A care determination is based on the care a parent has provided or is likely to provide for the children in a care period.  A care period is generally for 12 months and the Tribunal is satisfied the relevant care period commenced on 24 October 2023.  In making a determination in relation to the care of [Child 1] and [Child 2] the Tribunal must form a judgement about the probable level of care from 24 October 2023 when the assessment commenced.

17. Mrs Vaandrager has explained that although she had agreed to a care arrangement with Mr Vaandrager where she was to have care of two nights every week on a Sunday and Monday night there was flexibility in this agreement.  Mrs Vaandrager has said she would more often than not have extra care on a Saturday night as well during the school holidays.  Mr Vaandrager agrees and has told the Tribunal while the basis of their agreement was two nights a week there were times Mrs Vaandrager had additional care including the school holidays.

18. The calendars of care provided by the parents both show that, from 24 October 2023, Mrs Vaandrager had care of four nights in October 2023 and nine nights in November 2023.  The parents also broadly agree on the nights of care in December 2023 including when Mrs Vaandrager accompanied the children on a holiday with their maternal grandparents.

19. The Tribunal finds, based on the evidence provided, that a pattern of care was established with Mrs Vaandrager providing care totalling 27 nights and Mr Vaandrager providing care of 42 nights in the 69 days from 24 October 2023.

20. The Tribunal is satisfied that Mrs Vaandrager provides 39 per cent care of [Child 1] and [Child 2] and Mr Vaandrager provides 61 per cent care from 24 October 2023.

21. Mrs Vaandrager has said that Mr Vaandrager is no longer being as agreeable about the level of care she is having.  In making this determination the Tribunal notes it is open to either parent to notify of any subsequent change in the pattern of care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mrs Vaandrager provides 39 per cent care of [Child 1] and [Child 2] and Mr Vaandrager provides 61 per cent care with the care period commencing from 24 October 2023.