Vipond and Basford (Child support)

[2021] AATA 3605

Vipond and Basford (Child support) [2021] AATA 3605 (26 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021568

APPLICANT:  Ms Vipond

OTHER PARTIES:  Mr Basford

Child Support Registrar

TRIBUNAL:Member A Byers

DECISION DATE:  26 August 2021

DECISION:

The decision under review is set aside and the decision substituted that, from 12 December 2020, Ms Vipond had 74% and Mr Basford 26% of [Child 1]’s care.

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 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. Ms Vipond and Mr Basford are the parents of [Child 1].  There is no court order or written agreement between the parents regarding [Child 1]’s care.

2. On 2 February 2021 Ms Vipond is recorded as advising the Child Support Agency (CSA) that, since 12 December 2020, Mr Basford had [Child 1] in his care one night per week (14% care).  Prior to 12 December 2020, the parties were recorded as having equal shared care of [Child 1] from 13 August 2020.

3. After not having heard from Mr Basford, the CSA decided on 11 March 2021 that Ms Vipond had 86% and Mr Basford 14% of [Child 1]’s care from 12 December 2020.  The CSA informed the parties that, as the CSA was informed more than 28 days after the change of care, Mr Basford’s reduced care took effect from the date of change (12 December 2020) and Ms Vipond’s increased care took effect from the date advised (2 February 2021).

4. On 16 March 2021 Mr Basford lodged an objection to this decision stating that there was no change of care.

5. On 22 May 2021 an objections officer allowed Mr Basford’s objection.  The objections officer found in short that, in the absence of supporting documentation from either party, a change of care could not be established.

6. On 24 May 2021 Ms Vipond sought review by the Tribunal and the matter was heard by telephone on 29 July 2021 and 26 August 2021.  The parties gave sworn evidence.  The following material was admitted into evidence:

-the ‘Section 37(1) Statement and Documents’, totalling 144 pages (Exhibit 1);

-documentation supplied by Ms Vipond totalling 303 pages (Exhibit A); and

-documentation supplied by Mr Basford totalling 101 pages (Exhibit B). 

CONSIDERATION

Change of care

1. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  Under section 54A the default position is that a pattern of care is determined having regard to nights of care.

   [1] All legislative references are to this Act unless otherwise stated.

2. Before a determination under section 49 or 50 can be made in relation to a person, the care determination in place for that person must be revoked.  As far as is relevant, a revocation under section 54F can occur only if the Registrar were to determine (under section 49 or 50) a different percentage of care and the person’s cost percentage would change as a result.[2] 

   [2] Care determinations can also be revoked under sections 54G or 54H.  However, these provisions have no present relevance.

3. Relevantly, paragraph 54F(3)(b) provides that, if the CSA is informed of a change of care more than 28 days after the change occurred, the revocation takes effect on the day before the change of care day for the parent with reduced care.  It takes effect on the day before notification for the parent with increased care.

10.  In my view, in relation to a current change of care, the wording of subparagraph 50(1)(b)(ii) requires a decision-maker to have regard to the care position at the time they make their determination.  The decision-maker will need to determine if a change of care occurred and, if so, consider the care that has already occurred since the change of care and the care that is likely to occur in a period after the decision-maker considers the matter.  Setting a care period from the change of care is required as part of this process.    

11.  In conducting a merits review, the Tribunal takes the place of the original decision-maker and decides the matter completely afresh.  It therefore adopts the same position as described above for the original decision-maker.

12.  As background Ms Vipond explained that she allowed Mr Basford to stay at her residence following his release from prison in August 2020 until he was able to find alternate accommodation.  As both parties were sharing the one residence, the CSA was (correctly) informed that there was equal shared care of [Child 1] during this period.

13.  The parties agree that Mr Basford moved out on 12 December 2020 and Ms Vipond’s position is that he had reduced care of [Child 1] from this date.  Mr Basford concedes his care did decrease, but not to 14% as Ms Vipond stated to the CSA.

14.  The parties did not diarise their care after Mr Basford moved out.  As Mr Basford’s care was reasonably fluid and did not involve a specific pattern, the parties are instead chiefly relying on [social media] and mobile phone text messages as indicators of his care.  This involves working through some 400 pages of material, some supplied by Mr Basford, but in the main collated and supplied by Ms Vipond.  I am satisfied the [social media] material Mr Basford supplied is also found in Ms Vipond’s collation of the texts from 12 December 2020 onwards.  Mr Basford has also supplied several mobile phone screenshots, which are automatically indexed as to date and time.

15.  As a general observation, from 24 February 2021, [social media] messages between Mr Basford and [Child 1] are daily and, due to the close bond between the two, are also reasonably detailed.  I am satisfied they provide an accurate basis for assessing Mr Basford’s overnight care from this date.  Mr Basford confirmed that [Child 1] was not in his overnight care on the occasions she texts him goodnight.  Conversely Mr Basford indicated [Child 1] was in his care where there are no texts.  I accept this is the case.

16.  [social media] messages between Mr Basford and [Child 1] between 12 December 2020 to 23 February 2021 are more sporadic and neither party claims they reveal the full extent of Mr Basford’s overnight care.  The texts are supplemented by some mobile phone screenshots, as well as text messages on [Child 1]’s previous mobile phone and text messages on a mobile phone Ms Vipond said she gave [Child 1] on 17 December 2020 (which is also when she gave [Child 1] the iPad she subsequently used to message Mr Basford via [social media]). 

17.  As noted, the parties accept there was a change of care on 12 December 2020 whereby Mr Basford had reduced care of [Child 1].  The parties nevertheless do not claim that the combined material provided between 12 December 2020 to 23 February 2021 necessarily captures all of Mr Basford’s overnight care. 

18.  Having gone through the material with the parties at the hearing, as Mr Basford’s overnight care did not follow a set pattern, I consider the only realistic approach available is to work out the actual care arrangements from 24 February to 30 June 2021 and accept that this best represents the pattern of care from 12 December 2020.  This approach includes the position that the likely pattern of care after the original decision-maker’s decision is best represented by the care that actually occurred to 30 June 2021.

19.  In light of the parties’ evidence and the supplied material noted, I am satisfied after extensive cross-referencing that the following table of overnight care for Mr Basford can be stated with confidence:

Month  Dates  Days             Total

February 2021               24, 26  2

March 2021  1, 3, 6, 13, 27  5

April 2021  3, 4, 9, 10, 12, 17, 18, 29                  8

May 2021  1, 7, 8, 15, 16, 21, 22, 30, 31           9

June 2021  2, 3, 4, 8, 14, 25, 26, 27, 28, 29        10                  34

20.  As there are 127 nights from 24 February to 30 June 2021, it follows that Mr Basford had 26% care rounded down (i.e. 34/127 x 100 = 26.77).  If this care is extrapolated to 12 December 2020, Ms Vipond will have had 74% care and Mr Basford 26% care from this date using a nominal care period of 12 months.

21.  Accordingly, I find that there was a change of care on 12 December 2020 whereby Ms Vipond has 74% care and Mr Basford 26% care.   

22.  Revocations under section 54F are therefore required to give effect to these care percentage decisions.  As Ms Vipond did not notify the CSA of a care change within 28 days, the date of effect of the revocations of the care percentage decisions then in place is set by paragraph 54F(3)(b).  In Ms Vipond’s case, the revocation takes effect on 1 February 2021 (the day before she notified) and in Mr Basford’s case it takes effect on 11 December 2020 (the day before the change).      

DECISION

The decision under review is set aside and the decision substituted that, from 12 December 2020, Ms Vipond had 74% and Mr Basford 26% of [Child 1]’s care.