Vickers and Child Support Registrar (Child support)

[2021] AATA 2747

Vickers and Child Support Registrar (Child support) [2021] AATA 2747 (27 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020934

APPLICANT:  Ms Vickers

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  27 May 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 concerns the care percentages used in a child support assessment.

2. Ms Vickers and [Mr A] are the parents of [Child 1] (born [in] April 2003). On 4 August 2020 Services Australia (Child Support) accepted an application for a child support assessment and decided that from 14 July 2020 the assessment of child support was based on a care percentage of 82% for [Mr A] and 8% for Ms Vickers.

3. On 21 August 2020, Ms Vickers contacted Child Support and advised that [Mr A] would not permit a 50/50 care arrangement in respect of [Child 1]. In a letter prepared by [Mr A], he stated that as at 25 August 2020 the contact between Ms Vickers and [Child 1] had been increasing, but there were no arrangements or parenting plans in place.

4. On 5 November 2020 Child Support made a decision not to vary the care percentages used in the child support assessment.

5. On 10 December 2020 Ms Vickers objected to the decision. She advised she had care of [Child 1] from 21 August 2020 to 30 August 2020 and since then care has been week about, Monday to Monday. On 6 February 2021 her objection was disallowed.

6. On 4 March 2021, Ms Vickers lodged an application for review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal). The application was heard on 27 May 2021. The Tribunal spoke to Ms Vickers by telephone conference. [Mr A] did not apply to be a party to the review. In addition to oral evidence, the Tribunal had regard to documents provided by Child Support (134 pages) and evidence provided by Ms Vickers numbered A1 to A39.

ISSUES

1. The issue the Tribunal must decide is whether there was a change to the pattern of care for [Child 1] from 21 August 2020, and if so, the appropriate care percentages to be used in the child support assessment.

CONSIDERATION

1. Child Support makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Child Support (Assessment) Act 1989 (the Assessment Act). These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

2. Sections 49 and 50 provide for new care decisions to be made.  Section 49 applies if the parent “has had, or is likely to have, no 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”. Section 50 applies 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”.

3. Both sections reflect the idea that Child Support makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify Child Support and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened up to the date of the original determination?

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

1. Ms Vickers and [Mr A] separated in February 2020.

2. Ms Vickers notified Child Support on 21 August 2020 that she wanted to have 50/50 care of [Child 1]. On 8 September 2020 Ms Vickers advised Child Support that the care “was set for week about” but has dropped to three nights every second weekend.

3. When [Mr A] was contacted by Child Support he stated that he had been trying to arrange for shared custody and parenting arrangements for [Child 1] but no agreements had been entered into. This is supported by the evidence of correspondence between the parents’ respective lawyers.

4. In an email to Ms Vickers sent 24 August 2020 [Mr A] stated in part:

   [Child 1] has informed me that you have discussed the possibility of taking her week on and week off which will be ideal to aim towards. However until we have a parenting plan and you have some stable living arrangements that will suit [Child 1]’s school commitments and so forth, it is in [Child 1]’s best interest, for her to continue to remain with me over the week days with school, and times other than advanced pre-agreed weekends with you…

5. In the evidence provided to the Tribunal Ms Vickers stated:

   [Child 1] commenced regular 50/50 share care again on Monday 28 September 2020…I attach a series of text messages that confirm [Child 1] was in my care without doubt week on week off from Monday 28 September 2020 with sporadic care prior to this time (after our separation).

6. On 14 November 2020 Ms Vickers provided an unsigned parenting plan which stated in part that on 5 November 2020 the parents had agreed that [Child 1] would spend a week about with each parent. She submitted this in support of her claims that she had shared care of [Child 1] from 21 August 2020.

7. [Mr A] claims that the parenting plan was finalised on 6 November 2020 and that the new pattern of care began from 23 October 2020.

8. Ms Vickers stated she had care of [Child 1] as from 21 August to 24 August 2020. [Mr A] would not allow her to have care of [Child 1] the following two weekends as it was his birthday and Father’s Day, however she had care again from 18 September 2020 to 21 September 2020.

9. Ms Vickers stated she did not communicate directly with [Mr A] regarding care of [Child 1]. It was either done through their lawyers or directly with [Child 1]. She provided text messages which she claims show she had care of [Child 1] from 28 September 2020 to 5 October 2020 after which time care was week about.

10. In a letter dated 14 September 2020 [Mr A] provided dates [Child 1] was in Ms Vickers’ overnight care. He stated the dates were based on his diary entries. He stated that Ms Vickers had care from 21 August 2020 to 24 August 2020 and would have care on 18 and 19 September 2020 but no further time was planned.

11. There is no direct evidence from [Mr A] as to whether Ms Vickers had care of [Child 1] for a week from 28 September 2020.

12. The parenting plan does not support a finding that the care of [Child 1] was shared equally from 21 August 2020 and Ms Vickers acknowledged at hearing that this did not occur until September. On 8 December 2020 [Mr A] advised that a parenting plan had been finalised on 6 November 2020 and a new pattern of care began on 23 October 2020.

13. Notwithstanding the advantage of hindsight, the legislation requires the Tribunal to consider what was intended at 21 August 2020 when Ms Vickers advised Child Support of a change of care, and for a following period.  At hearing Ms Vickers submitted that although the care arrangement was not 50/50 from 21 August 2020, it was more than the 8% reflected in the child support assessment.

14. The Tribunal considers that Ms Vickers’ contact of 21 August 2020 supports her oral evidence that she wanted to have shared care of [Child 1] but was frustrated in doing so. Court proceedings were on foot in the Federal Circuit Court and the parents were attempting to organise mutually suitable mediation to discuss the care arrangements.

15. Although Ms Vickers’ care of [Child 1] increased from 21 August 2020, there was no pattern to the care. Ms Vickers stated that [Mr A] did not allow for [Child 1] to be in her overnight care for two weekends following the initial three-night care period.

16. Although the Tribunal accepts Ms Vickers’ evidence that [Child 1] stayed overnight on a number of occasions and she met some of the costs of her care, the Tribunal is not satisfied that there was a common expectation about the future care of [Child 1] until sometime later.

17. The Tribunal concludes that a new care pattern was not established from 21 August 2020. 

Other matters

1. Ms Vickers expressed concern that the care percentages used in the assessment are incorrect despite [Mr A] acknowledging on 8 December 2020 that there was a change to the pattern of care from 23 October 2020, a date she disputes.

2. Despite both parents’ evidence that care was occurring in accordance with a parenting plan negotiated in November 2020, it appears that no subsequent decision has been made by Child Support.

3. Ms Vickers also stated she did not understand why the care percentages do not add up to 100%.

4. Since there is no evidence of an objection decision concerning the decision made on 4 August 2020 to reflect the care percentages as 82% to [Mr A] and 8% to Ms Vickers, or an objection decision pertaining to a later care percentage decision, the Tribunal has no specific jurisdiction in this respect.

DECISION

The decision under review is affirmed.