Walsh and Estrada (Child support)

[2023] AATA 2672

Walsh and Estrada (Child support) [2023] AATA 2672 (11 July 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025537

APPLICANT:  Ms Walsh

OTHER PARTIES:  Child Support Registrar

Mr Estrada

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  11 July 2023

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

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. Ms Walsh and Mr Estrada are the parents of [Child 1] and [Child 2]. This application for review is in relation to the care of [Child 1]. The care determination in place prior to the notification of the new care determination was 79% care of [Child 1] to Mr Estrada and 21% care to Ms Walsh which applied from 14 April 2015. There has been a child support assessment in place from 8 April 2015.

2. On 21 June 2022 Mr Estrada notified Services Australia (Child Support) that his care of [Child 1] had increased and he now had 92% care of [Child 1] and Ms Walsh had 8% care from 26 November 2021. On 11 September 2022 Child Support made a new care determination which reflected this care which applied from 26 November 2021.

3. On 15 September 2022 Ms Walsh lodged an objection to this decision. On 12 January 2023 an objections officer disallowed Ms Walsh’s objection and the care remained 92% to Mr Estrada and 8% to Ms Walsh.

4. On 1 February 2023 Ms Walsh applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 16 May 2023 a telephone hearing was held with Ms Walsh and Mr Estrada. Both gave evidence to the tribunal under affirmation. The tribunal had before it a bundle of documents (506 pages – referred to as the hearing papers) which were sent to both parties prior to the hearing. Ms Walsh also provided additional information which was not able to be exchanged with the parties prior to the hearing (A1–A20). The tribunal deferred its decision to allow Mr Estrada to receive this information. Mr Estrada was given until 7 July 2023 to provide written submissions in relation to this information. As nothing was received by Mr Estrada the tribunal reconvened and made its decision. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      Should the existing care determination of 79% care of [Child 1] to Mr Estrada and 21% care to Ms Walsh be revoked?

   ·      If so, what is the percentage of care for each parent of [Child 1]? And

   ·      What is the date of effect of the new care determination?

LAW AND CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

2. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Agency’s policy in this regard, as set out in Chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. The Guide states:

   In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

   The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

Issue 1 – Should the existing care percentage determination be revoked?

1. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

2. Section 49 applies, relevantly, 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, 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”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

3. The question for the tribunal to determine is whether there was a change to the existing care percentages for [Child 1] for each parent from the date Mr Estrada notified of the care change for [Child 1] on 21 June 2022.

4. Ms Walsh submitted that her care of [Child 1] did not change and she still had [Child 1] staying with her every second weekend from Friday night to Monday mornings (3 nights fortnightly) as per the final parenting orders of 8 April 2015,[1] which equates to Ms Walsh having 21% care of [Child 1].

   [1] Pages 132–140 of the hearing papers.

5. In response to the care arrangements for [Child 1], Mr Estrada said the Child Impact Report of 5 April 2022 was evidence that [Child 1] was not spending time with Ms Walsh in accordance with the parenting orders of 2015. Mr Estrada directed the tribunal to paragraph 5 of the Child Impact Reports which states:

   5. [Child 1] clearly stated that she wants the current parenting arrangements to remain, where she lives with her father and spends time with her mother one weekend per month and any other time that works within her schedule of school, part-time work and football commitments. [Child 1] stated she would also take into account spending time with [Child 2] at either her mother’s or father’s home.

6. Mr Estrada said [Child 1] has a casual weekend job and her sporting activities are closer to his home and [Child 1] made the decision to remain at his house [on] the weekends. Mr Estrada said the court orders were no longer being followed in respect of [Child 1] because she only wanted to spend time with Ms Walsh one weekend a month in order to fit in with her other commitments. Mr Estrada said [Child 1] commenced working at  [BUSINESS 1] in 2021 and she had a boyfriend at that time and she was also playing footy on weekends. [Child 1] was doing to 2–3 shifts a week at [BUSINESS 1] including after school shifts and some week shifts. Mr Estrada said [Child 1] was spending time with her peer group and her boyfriend at that time.

7. Mr Estrada said in relation to the court orders generally both [Child 2] and [Child 1] would stay with Ms Walsh every second weekend from Friday night through to Sunday evening. Mr Estrada said generally the girls would come back to his house on Sunday night because Ms Walsh did not want to drive the girls to school on a Monday morning as the drive from her home to the girls’ school was about 55 minutes from her house. So generally Mr Estrada would pick up the girls from Ms Walsh’s house on Sunday evening. Mr Estrada said that the parenting orders were not always consistently followed by Ms Walsh and there were times she would miss the weekend care of the girls.

8. Mr Estrada said he would drive [Child 2] to see Ms Walsh every second weekend but that [Child 1] would always come. Mr Estrada said that generally, [Child 1] would stay two nights a month and occasionally one night a month but he said the actual care that was occurring for [Child 1] from 29 November 2021 was that [Child 1] would stay with Ms Walsh two nights a month. During the school holidays and Christmas holidays, [Child 1] spent time with Ms Walsh down at [a region] but this was not a regular pattern of care.

9. In support of Mr Estrada’ change of care for [Child 1], Mr Estrada provided a letter from [Ms A] who is Mr Estrada’ current partner who writes:

   From my observations, [Child 1] spends the odd night at her mother’s house but mostly resides with her father.[2]  

   [2] Page 175 of the hearing papers.

10. In response to Mr Estrada’ evidence, Ms Walsh told the tribunal that on 12 December 2021 [Child 2] came to live with her and because [Child 2] did not want to stay with Mr Estrada but wanted to see her sister [Child 1], Ms Walsh arranged for [Child 1] to spend more time with her so that she and [Child 2] could spend more time together. Ms Walsh provided a care calendar which showed Ms Walsh had three nights’ care fortnightly for [Child 1], but Ms Walsh said [Child 1] would stay two nights fortnightly.

11. In relation to the Child Impact Report Ms Walsh thought the information contained in the report was not a specific indication of the care of [Child 1] and when this care occurred. Ms Walsh said the text messages were a more accurate reflection of her care of [Child 1].

12. In relation to the text messages these show on Thursday 25 November 2021 that [Child 1] was to catch the train down to visit Ms Walsh after school on 26 November 2021.[3] On Monday 7 February 2022 Ms Walsh confirmed that [Child 1] would come and stay with her on 11 February 2022. There was not another message in relation to the care of [Child 1] until 4 March 2022 which confirms that [Child 1] was coming to stay that night.[4] There is a further message from Ms Walsh to Mr Estrada on Friday 29 April 2022 confirming that [Child 1] will be staying with Ms Walsh the following weekend for Mother’s Day.[5] Text message confirmation about [Child 1] staying with Ms Walsh occurred again on Wednesday 1 June 2022 and the arrangement was that [Child 1] was staying with Ms Walsh fortnightly and “she is enjoying the fortnightly[6] arrangement”. It is likely the care arrangement for [Child 1] may have changed after this.

    [3] Page 145 of the hearing papers.

    [4] Page 243 of the hearing papers.

    [5] Page 245 of the hearing papers.

    [6] Page 247 of the hearing papers.

13. The tribunal took Ms Walsh to the care calendars she had provided to Child Support and finds these are inconsistent with the care for [Child 1] as indicated by the text messages between Ms Walsh and Mr Estrada. On balance the tribunal finds the care calendars provided by Ms Walsh show the court ordered care and not the actual care for [Child 1] that was being provided by Ms Walsh at that time.

14. In support of Ms Walsh’s submission that she was providing two nights’ care for [Child 1] every second weekend, Ms Walsh provided the following information in her Statutory Declaration signed on 27 September 2022. Ms Walsh writes:

    Care arrangements for [Child 1] – [Child 1] has been living between our house and Mr Estrada’s house since I have been in a relationship with Ms Walsh. Care was evenly split between our house and Mr Estrada’s initially until Ms Walsh and Mr Estrada agreed to the new arrangement which took effect in 2015. Care was then changed to accommodate the children’s school which was located near Mr Estrada’s house and an hour away from ours. As a compromise, we agreed to have the children on weekends and school holidays as set out in the orders from 2015 to reduce their travel time commuting an hour each way to school. During December 2021 and January 2022, [Child 1] spent time with us during the school holidays as normal, spent time with her friends and worked at [BUSINESS 1] in [a suburb] which is close to Mr Estrada’s house.

    Since February 2022, [Child 1] has increased her time at our house and stays every second weekend. This was something [Child 1] was keen to do so she can see her sister [Child 2] at our house.[7]

    [7] Page 237 of the hearing papers.

15. In relation to Ms Walsh’s Statutory Declaration, her statement stating Ms Walsh had fortnightly care of [Child 1] was made on 27 September 2022. This statement does not align with the text messages between Ms Walsh and Mr Estrada about [Child 1]’s care for the period in dispute.

16. On balance the tribunal accepted the information contained in the Child Impact Report and the text messages between Ms Walsh and Mr Estrada. The Child Impact Report states that Ms Walsh was having care of [Child 1] two nights a month. The tribunal accepted Mr Estrada’ evidence that [Child 1] was staying with Ms Walsh two nights a month from 26 November 2021. While the care of [Child 1] may have increased for Ms Walsh around late May early June 2022 as indicated by the text messages from Ms Walsh, this is not the decision the tribunal is reviewing. The decision the tribunal is reviewing is the decision of Child Support which applied from 26 November 2021. If changes to the care of [Child 1] occurred after May 2022, this is not relevant to the care change the tribunal is reviewing.

17. The tribunal is satisfied that there has been a change to the existing care arrangements for [Child 1]. Section 54F provides:

    Determination must be revoked if there is a change to the responsible person's cost percentage

    (1)The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care ) for a child made under section 49 or 50 if:

    (a)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 responsible person's existing percentage of care for the child; and

    (b)the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

    (c)           section 54G does not apply; and

    (d)           subsection (2) applies in relation to the individual.

    Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

18. As there has been a change to Ms Walsh’s cost percentage, the tribunal is satisfied that the existing care percentage of 21% to Ms Walsh and 79% to Mr Estrada should be revoked in accordance with section 54F of the Act.

19. Section 54F provides that the revocation determination takes effect at the end of:

    (a)  if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day;

    (b)  if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

    (i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

    (ii)the responsible person's care of the child has reduced--the day before the change of care day.

20. Section 54F of the Act means that if the parent with the increased care notifies of the increased care more than 28 days after their care increased, then the revocation determination applies from the day before they notified of the change. Mr Estrada notified of the change of care on 21 June 2022. This means the revocation of Mr Estrada’ care of 79% is revoked from 20 June 2022. In relation to Ms Walsh as she has reduced care of [Child 1] her care is reduced from the day before the change of care day, in this instance the change of care for [Child 1] occurred on 26 November 2021; Ms Walsh’s 21% care is revoked from 25 November 2021.

Issue 2 – What is the date of effect of the new care determination?

1. A new care determination is made in accordance with section 50 of the Act in which the care of [Child 1] is two nights a month to Ms Walsh and the remaining time to Mr Estrada. This means from 26 November 2021 [Child 1] is in Mr Estrada’ 92% care and Ms Walsh’s 8% care from 26 November 2021.

2. The decision of the objections officer is affirmed.

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)