Vann and Simmers (Child support)

[2022] AATA 2108

Vann and Simmers (Child support) [2022] AATA 2108 (20 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022835

APPLICANT:  Mr Vann

OTHER PARTIES:  Child Support Registrar

Mrs Simmers

TRIBUNAL:Member J Prentice

DECISION DATE:  20 April 2022

DECISION:

The decision under review is affirmed.

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 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. Mr Vann and Mrs Simmers are the parents of [Child 1] (born 2013). The pre-existing care for their daughter was recorded by the Child Support Agency (CSA) as being 86% to Mrs Simmers and 14% to Mr Vann from 27 December 2018.

2. On 1 September 2021 Mrs Simmers notified the CSA of a change in the care arrangements such that Mrs Simmers had 100% and Mr Vann had 0% care of [Child 1] from 30 October 2020.

3. On 5 October 2021 the CSA determined that the new care percentage for [Child 1] be recorded as 100% for Mrs Simmers and 0% to Mr Vann from 30 October 2020.  As Mrs Simmers had notified the change of care on 1 September 2021, more than 28 days after the change occurred on 30 October 2020, the recorded increased percentage of care (from 86%) to 100% to Mrs Simmers had an effective date of 1 September 2021 (the date of notification); however the decreased percentage (from 14%) to 0% to Mr Vann took effect from 30 October 2020 (the date of the care change).

4. The CSA documents state that on 6 October 2021 Mr Vann lodged an objection to the care decision.

5. On 9 November 2021 the CSA disallowed Mr Vann’s objection.

6. On 29 November 2021 Mr Vann sought review by the Administrative Appeals Tribunal (the Tribunal).

7. At a hearing on 10 March 2022 the Tribunal heard sworn evidence from Mr Vann and Mrs Simmers who both participated by conference telephone. In reaching its decision, the Tribunal has considered that evidence, together with the statements and comments provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

3. The scheme under the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

4. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

5. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised, and the requirements of the legislation are satisfied such that a new care decision is made.

6. Section 50 reflects the view that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

7. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

15.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new care percentage decision or decisions can then be considered and made if appropriate.

16.Generally speaking, if a change of care is notified to the CSA more than 28 days after it occurs, the new percentage of care determination for the person with decreased care applies from the date of the change however the new percentage of care determination for the person with increased care only takes effect from the date of notification.

1. Mr Vann informed the Tribunal that he and Mrs Simmers went to mediation in December 2019 and they agreed on a pattern of care for their daughter.  A copy of the agreement was put in writing and they were told to go away and think about it before signing; however it was never signed.  Mr Vann told the Tribunal that shortly after the mediation Mrs Simmers changed the agreed times and was uncooperative in making alternate arrangements for him to spend time with their daughter.  Mr Vann went back to the mediators ([named]) and asked for a certificate to go to Court, which they issued. 

2. Mr Vann explained to the Tribunal that he is seeking to spend time with his daughter in accordance with what was agreed at mediation; which is to have every second weekend; one night a week and one week of school holidays; which is what had been occurring and was the agreed outcome at mediation.  Mr Vann advised that when Mrs Simmers changes or cancels arrangements he is not offered alternate times.  Mr Vann told the Tribunal that he believes that Mrs Simmers is withholding access to their daughter.

3. The Tribunal explained to Mr Vann that the matter being reviewed is what the actual pattern of care was from 30 October 2020 going forward and what occurred at that time – not what should have occurred.

4. Mrs Simmers informed the Tribunal that there is a Parenting Agreement in place dated 17 December 2020, which was organised through [a specified] Family Relationship Centre.  Mrs Simmers also noted that it is a guideline, not a formal agreement.  However Mrs Simmers advised that their daughter does not want to stay at Mr Vann’s house and refuses to go at the times agreed between Mr Vann and Mrs Simmers.  Mrs Simmers told the Tribunal that she is not withholding access to their daughter; that it is their daughter who is refusing to spend time with Mr Vann and Mrs Simmers does not want to force her against her will.

5. When the Tribunal questioned why it had taken Mrs Simmers so long to inform the CSA about the change in care arrangements (10 months), Mrs Simmers explained that she had hoped that the situation would change and their daughter would be less reluctant to spend time with Mr Vann.

6. Mr Vann detailed to the Tribunal his desire and attempts to stay in touch with their daughter; and how he is trying to do whatever he can to resolve the situation (including undertaking two parenting courses).  However, as already noted, the Tribunal in relation to this application is only considering the percentages of care to be recorded consequent to Mrs Simmers’s notification on 1 September 2021 of a change of care. Any subsequent change of care needs to be notified to the CSA separately and is not before the Tribunal for review in relation to this application.

7. Given the circumstances of the case and the evidence presented by Mr Vann and Mrs Simmers, the Tribunal finds that the likely pattern of care for their daughter was 100% to Mrs Simmers and 0% to Mr Vann from 30 October 2020. As Mrs Simmers notified the change of care on 1 September 2021, more than 28 days after the change occurred on 30 October 2020, the recorded increased percentage of care (from 86%) to 100% to Mrs Simmers had an effective date of 1 September 2021 (the date of notification); however the decreased percentage (from 14%) to 0% to Mr Vann took effect from 30 October 2020 (the date of the care change).

8. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

OTHER MATTERS

1. Both parties also gave evidence about ongoing issues related to the care of their daughter.  Whilst understandably of importance to the parties, current negotiations and arrangements are not of relevance to the sole issue before the Tribunal and the Tribunal therefore has not canvassed those matters in these Reasons.

DECISION

The decision under review is affirmed.