Willindale and Farmilo (Child support)

[2022] AATA 4110

Willindale and Farmilo (Child support) [2022] AATA 4110 (12 September 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024141

APPLICANT:  Miss Willindale

OTHER PARTIES:  Child Support Registrar

Mr Farmilo

TRIBUNAL:Member M Sutherland

DECISION DATE:  12 September 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 – 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 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 Miss Willindale and Mr Farmilo for [Child 1] (born [July] 2007). (There is another child of the relationship, [Child 2], born [September] 2010, who has been 100 percent in Miss Willindale’ care since birth.)

2. Prior to the decision under review, the Child Support Agency (the agency) reflected the care for [Child 1] as 100 percent to Mr Farmilo and 0 percent to Miss Willindale from 27 January 2012, notified on 19 March 2012 pursuant to a court order.

3. On 24 August 2020 Miss Willindale notified the agency of a change to the care arrangements, stating that she provided care of [Child 1] 2 nights a week from 24 July 2020.

4. On 14 September 2020 the agency made the decision to reflect that Miss Willindale provided 28 percent care and Mr Farmilo provided 72 percent care from 24 July 2020.

5. On 30 December 2020 Miss Willindale objected to this decision and said that [Child 1] had been 100 percent in her care since July 2019; she had only spent about 3 nights with Mr Farmilo. On 22 February 2022 the agency disallowed the objection (the objection decision).

6. On 22 February 2022 Miss Willindale applied to the Tribunal for a review of the objection decision. Miss Willindale and Mr Farmilo gave evidence on affirmation by conference telephone. The agency provided the Tribunal and the parties with papers relevant to the matter.

THE LAW

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

2. The 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 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; see section 50 of the Act. In other words, the agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter.

4. The 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.

THE ISSUES

1. The issues which arise in this case are:

   ·      Whether there 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 which date the new percentage of care determinations should take effect.

CONSIDERATION

1. Miss Willindale said that there was a court order made in 2012 which gave 100 percent care of [Child 2] to her and 100 percent care of [Child 1] to Mr Farmilo . The order was to be in place until 2017. She has another 2 younger children. [Child 1] came to live with her permanently on 21 July 2019 and has not left since, and has had next to no contact with her father since then. She wants the objection decision to be revoked on the grounds of new and updated information obtained by her. She has continued to pay Mr Farmilo child support when [Child 1] is no longer in his care. The child support is deducted from her social security payments.

2. The Tribunal asked Miss Willindale why:

   ·      She informed the agency on 24 August 2020 that she had 2 nights and Mr Farmilo had 5 nights of care a week of [Child 1] from 24 July 2020. She said that the agency had noted things down incorrectly; it was the other way around.

   ·      She informed the agency on 30 December 2020, when she lodged her objection, that [Child 1] had been 100 percent in her care since July 2019. She said that this was what had occurred and that the care arrangement should reflect this.

3. Miss Willindale provided third party statements from:

   ·      [Ms A], support coordinator from [an] Agency (she had been Miss Willindale’ support worker since July 2021). She states that [Child 1] has been residing with Miss Willindale permanently since 21 July 2021. Ms [A] provided advice on schooling and on support services in the local area that may have been of help and support for [Child 1] (see page 10 of the hearing papers).

   ·      [School 1], consisting of a letter dated 17 January 2022 and submitted by Miss Willindale on 25 January 2022, which confirms that [Child 1] had been a student there from 3 September 2019 until 13 December 20219. A letter was also provided from [a] High School dated 14 March 2022 confirming that [Child 1] had been a student there since 12 July 2021 and that Miss Willindale was supportive of [Child 1] (see page 11 and 12 of the hearing papers).

4. Mr Farmilo did not give evidence. When he was phoned by the Tribunal he was abusive on the telephone and hung up. The hearing papers show that on 8 February 2022, he said that Miss Willindale began to have care of [Child 1] in August 2021. He has care on average 3 nights per week and half of the school holidays, totalling 162 nights or 44 percent of the time.

5. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is not satisfied, based on the evidence provided, the documents from [Ms A] and the 2 letters from the schools, that a new pattern of care was established from 24 July 2020. Furthermore, the evidence of Miss Willindale is contradictory; she initially said that she had 72 percent care and Mr Farmilo had 28 percent care of [Child 1] from July 2020, and then said that she had 100 percent care of [Child 1] from July 2019. The Tribunal finds that the care percentages should remain at 72 percent to Mr Farmilo and 28 percent to Miss Willindale from 24 July 2020, effective from 24 August 2020.

6. If there has been a change of care, that can now be substantiated by either of the parties  they can apply to the agency for a new care determination.

DECISION

The decision under review is affirmed.