Voyle and Voyle (Child support)

[2021] AATA 693

Voyle and Voyle (Child support) [2021] AATA 693 (19 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020209

APPLICANT:  Mr Voyle

OTHER PARTIES:  Child Support Registrar

Ms Voyle

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  19 January 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 – 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 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 a change to the percentage of care determinations for Mr Voyle and Ms Voyle in respect of the child [Child 1].

2. Mr Voyle and Ms Voyle are the parents of [Child 2] (born January 2005), [Child 1] (born March 2007) and [Child 3] (born May 2008).  This matter relates to [Child 1] only.  There has been a child support assessment in place since 21 November 2011 and Mr Voyle is the liable parent.

3. From 8 May 2016 the child support assessment reflected Mr Voyle as having 24 per cent care and Ms Voyle as having 76 per cent care of [Child 1].

4. On 27 May 2020 Ms Voyle advised the Child Support Agency of a change to the care arrangements for [Child 1] stating that she had 100 per cent care from 9 March 2020.  On 15 July 2020, during a call in relation to this care matter, Mr Voyle advised the Child Support Agency that he had missed care from 20 March 2020 to 19 June 2020 and his care then returned to regular care.

5. On 19 August 2020 the Child Support Agency made the decision that Mr Voyle provides 0 per cent care of [Child 1] and Ms Voyle provides 100 per cent care from 20 March 2020 (the first care decision).

6. On 19 August 2020 the Child Support Agency made the decision that Mr Voyle provides 14 per cent care and Ms Voyle provides 86 per cent care of [Child 1] from 19 June 2020 (the second care decision).

7. On 4 September 2020 Mr Voyle objected to the second care decision and on 4 November 2020 the Child Support Agency disallowed the objection (the objection decision).

8. On 10 November 2020 Mr Voyle applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

9. The Tribunal conducted a hearing into the application on 19 January 2021.  Mr Voyle and Ms Voyle gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (162 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency 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, the Child Support Agency 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, the Child Support Agency 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.  The task of the Tribunal on review is the same.

4. The Child Support Agency 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 which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Voyle told the Tribunal that care of [Child 1] broadly followed court orders which expired in 2018.  He said although the orders had ended they were still the basis of the care for [Child 1].

2. Mr Voyle explained that he was unable to see [Child 1] during the COVID-19 pandemic and he did not dispute that Ms Voyle had 100 per cent care during this time.  He said care then resumed as normal from 19 March 2020 in keeping with the pattern in the court orders.

3. The Tribunal notes in evidence from the Child Support Agency a copy of consent orders dated 20 December 2012 and signed by both parents.  The orders were to remain in force for a period of five years from 1 January 2013 with the parents to review a parenting regime for the children before 1 January 2018.  The orders provide for Mr Voyle to have care of three nights every fortnight during school terms, half the June/July and September/October school holidays and a block of two weeks during the Christmas school holidays.

4. Mr Voyle told the Tribunal that while the parents had not discussed a parenting regime when the orders expired it was his view they simply continued to follow the same pattern of care as it worked well.  Mr Voyle added that he believed Ms Voyle was also following the care set out under the expired orders.  Mr Voyle said she had sent him a text message in February 2019 which confirmed his view as it referenced the court orders.

5. The Tribunal notes in evidence from the Child Support Agency a text message exchange between the parents regarding the care of [Child 1].  In response to a message from Mr Voyle about his weekend care Ms Voyle states, in part, on 5 February 2019:

   [Child 1] does NOT want to go this weekend regardless and it is his choice. You havent followed any court orders for years now. In [Child 1]’s mind he agrees with what I showed him which were the court orders. And wording in them states alternate weekends during school terms WITHOUT any mention of it “resetting”. If you have a problem with this I suggest you take me back to court.

6. Mr Voyle reiterated that as he was still following the court orders he believed his care of [Child 1] was around 88 nights a year.  Mr Voyle said he had provided a spreadsheet setting out his care which aligned with the court orders.

7. The Tribunal notes in evidence from the Child Support Agency a spreadsheet provided by Mr Voyle showing care for the period from 9 August 2019 to 23 October 2020.  According to the spreadsheet Mr Voyle had the following care from 19 June 2020:

   19 June 2020 to 21 June 2020 – three nights

   29 June 2020 to 2 July 2020 – four nights

   24 July 2020 to 26 July 2020 – three nights

   21 August 2020 to 23 August 2020 – three nights

   18 September 2020 to 22 September 2020[1] – five nights

   [1] Mr Voyle had 18 September 2020 to 25 September 2020 listed in his spreadsheet but told the Tribunal this has been reduced from eight nights to five nights.

8. Mr Voyle acknowledged that, in keeping with his spreadsheet, he did not always have fortnightly care of [Child 1].  He said there was some confusion about when his fortnightly care resumed after each school holiday period.  Mr Voyle also said his care during the June/July school holidays was reduced to four nights at [Child 1]’s request as was his care during the September/October school holidays which was reduced to five nights.  He said he was happy for [Child 1] to make these decisions as he grew older and did not want to force [Child 1] to stay with him if he did not wish to do so.

9. Ms Voyle told the Tribunal she disagreed the parents were still following the pattern of care under the expired court orders.  She said [Child 1] usually decided when he stayed with his father.  Ms Voyle said at 13 years of age [Child 1] made his own choices in this regard.

10. Ms Voyle said [Child 1] did not stay with Mr Voyle every second week.  She said it was more like three nights every month.  She said, furthermore, Mr Voyle did not have care for half the school holidays as his spreadsheet confirmed.  Ms Voyle said although she did not keep a written record of care it was her view that Mr Voyle had care of closer to 52 nights a year.

11. Ms Voyle said she had provided the Child Support Agency with two affidavits relating to the care of [Child 1].  She said the first was unsigned because she had inadvertently sent the wrong copy to the Child Support Agency and the second was from her mother, Ms [A].  Ms Voyle said her mother saw the children every single day and had an intimate knowledge of the care of [Child 1].

12. The Tribunal notes in evidence from the Child Support Agency an affidavit sworn before a Justice of the Peace and signed by Ms [A] on 16 September 2020.  The affidavit states that [Child 1] had not been in the care of Mr Voyle every second weekend in 2019 and 2020 and that holiday care is often reduced.  The affidavit does not indicate the level of care either parent has of [Child 1].

13. The Act requires any new care percentage determinations to be made following notification to the Child Support Agency of a change of care arrangements.  The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to establish whether or not the existing care determinations should be revoked and new determinations made.  The task of the Tribunal on review is the same. 

14. In this case Mr Voyle advised the Child Support Agency that Ms Voyle had 100 per cent care of [Child 1] from 20 March 2020 but that his care returned to normal from 19 March 2020.  Mr Voyle has told the Tribunal that his normal care followed court orders which expired in 2018, however, the parents had continued to follow this pattern of care.  Ms Voyle has stated that care is no longer in accordance with the court orders and generally [Child 1] makes up his own mind about where he stays.  Mr Voyle agreed that, on occasion, his care did not follow the court orders as [Child 1] would decide not to stay when he had other activities.  The text message exchange between the parents in February 2019 tends to support the view that, irrespective of the court orders, [Child 1] makes his own decisions about where he stays. 

15. In relation to care the court orders dated 20 December 2012 state that Mr Voyle is to have three nights every fortnight during school term and four weeks of school holiday care.  This equates to care of 88 nights a year, or 24 per cent, to Mr Voyle.  The spreadsheet he provided to the Child Support Agency indicates that Mr Voyle did not have care of three nights every fortnight nor care of seven nights during the school holidays in June/July 2020 and September/October 2020.  The spreadsheet shows that Mr Voyle had care of 18 nights from 19 June 2020 to 30 September 2020 which is equal to 14 per cent care.  This is the same as the level of care Ms Voyle believes Mr Voyle is having of [Child 1].

16. The Tribunal is satisfied, based on the evidence provided, that Mr Voyle provides 14 per cent care of [Child 1] in the period commencing 19 June 2020.

17. The existing percentages of care reflected in the assessment for [Child 1] following the first care decision were 0 per cent care to Mr Voyle and 100 per cent care to Ms Voyle.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

18. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Voyle and Ms Voyle under section 50 of the Act.

2. The Tribunal finds that Mr Voyle provides 14 per cent care and Ms Voyle provides 86 per cent care of [Child 1] from 19 June 2020.

Date of effect of new care percentage determinations

1. The Tribunal accepts the date of notification of the change of care as 15 July 2020.  As this is less than 28 days after the change occurred on 19 June 2020, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 19 June 2020.

DECISION

The decision under review is affirmed.