Aizer and Aizer (Child support)

[2021] AATA 5032

Aizer and Aizer (Child support) [2021] AATA 5032 (8 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022029

APPLICANT:  Mr Aizer

OTHER PARTIES:  Child Support Registrar

Ms Aizer

TRIBUNAL:Member J Prentice

DECISION DATE:  08 November 2021

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

• the existing care percentage determination of 100% to Ms Aizer is revoked from 31 July 2020 and replaced with a new care percentage determination of 14% from 1 August 2020; and

• the existing care percentage determination of 0% to Mr Aizer is revoked from 25 October 2020 and replaced with a new care percentage determination of 86% from 26 October 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – disputed facts – gradual increase in 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. Mr Aizer and Ms Aizer are the parents of [Child 1], born 2004 and [Child 2], born 2006.  This review concerns a decision by the CSA about the recorded levels of care for [Child 1].

2. The previous care record for [Child 1] reflected that Ms Aizer provided 100% care per year; and that Mr Aizer provided 0% care per year from 12 January 2014.

3. On 15 April 2021, the CSA made a decision to accept a change in care for [Child 1] from 25 May 2020 to reflect that Mr Aizer provided 86% care and Ms Aizer provided 14% care per year. 

4. On 26 April 2021, Ms Aizer objected to this decision and the outcome was that on 18 June 2021 the Child Support Agency (CSA) partly allowed her objection and recorded [Child 1] as being in 58% care of Ms Aizer and 42% care of Mr Aizer from 1 August 2020. 

5. On 3 August 2021 Mr Aizer sought an independent review by the Administrative Appeals Tribunal (the Tribunal)

6. At the hearing on 29 September 2021 the Tribunal heard sworn evidence from Mr Aizer who participated by conference telephone. Ms Aizer stated at the commencement of the hearing that she was not going to participate and disconnected the telephone connection with the Tribunal. In reaching a decision, the Tribunal has therefore considered Mr Aizer’s oral evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.

   …

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the patter of care, and will not result in a new care determination.

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)).  The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed.  The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

3. The percentage of care is determined under Division 4 of Part 5 of the Act. The Agency has to work out a percentage for each parent and each child of the assessment for a care period: section 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

4. Once each party’s care percentage is determined, it can be changed by revoking the old percentage and using a new care percentage based on actual care, under either subsection 54F, 54G or 54H of the Act. One of the requirements of section 54F is that 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G. Section 54G is not applicable to the circumstances of the decision under review in relation to this application.

5. Mr Aizer informed the Tribunal that it is not disputed that he has had 100% care of [Child 1] since January 2021.

6. However, the Tribunal noted that the only matter before it in relation to this review relates to a change of care notification to the CSA by Mr Aizer on 26 October 2020 stating that he had 86% care of [Child 1] since 25 May 2020. This application is therefore with respect to the pattern, or likely pattern of care for [Child 1] from a ‘point in time’ in relation to the 26 October 2020 notification of a change of care.

7. The Tribunal has taken into account the written documents in the hearing papers (including from each of the parties), records of CSA’s conversations with both parties and Mr Aizer’s oral evidence at the hearing.

8. There are a number of conflicting sources of evidence as to the care of [Child 1] leading up to the notification of a change in care on 26 October 2020, including as follows:

   (a)  From 12 January 2014 the care record reflected that Ms Aizer provided 100% care per year for [Child 1] and Mr Aizer 0%;

   (b)  Following notification on 26 October 2020 by Mr Aizer, the CSA accepted a change in care for [Child 1] from 25 May 2020 that reflected Mr Aizer provided 86% care per year and Ms Aizer provided 14% care per year;

   (c)   Ms Aizer objected to this decision on the grounds there was no change in care for [Child 1] on 25 May 2020.  Ms Aizer advised that [Child 1] only reconnected with Mr Aizer from late May 2020 and from June 2020 [Child 1] began irregular overnight care with Mr Aizer and then from August 2020 [Child 1] would stay with Mr Aizer for three nights per week.

   (d)  Mr Aizer stated that [Child 1] first reconnected with him on 25 May 2020 and at that time was staying three nights a week; and after a month [Child 1] was only staying one night per week with Ms Aizer.

   (e)  Both parents provided statements and statutory declarations from third parties to support their claims.

   (f)    At the hearing, Mr Aizer told the Tribunal that:

   (i)He had 90% care of [Child 1] from May 2020 to January 2021.

   (ii)His younger daughter, [Child 2], has been living with him for the last five years.  He had attempted on many occasions to make contact with [Child 1] but had been unsuccessful.  However, in April 2020 [Child 1] turned up on his doorstep.

   (iii)By May 2020, [Child 1] had basically moved in.  From May 2020 to June 2020 [Child 1] went from spending two days to one day a week at her mother’s; by June/July it was one to two days a fortnight; in August she rarely visited her mother at all and by October 2020 she had stopped returning to her mother. 

   (iv)Between October 2020 and January 2021 [Child 1] only returned twice to Ms Aizer and since 26 January 2021 she has not seen her mother.

9. As can be seen, there is conflicting evidence before the Tribunal as to the care position of [Child 1] from 25 May 2020 leading up to the 26 October 2020 notification of a change in care. However, on balance the Tribunal is satisfied that [Child 1] was spending an ever-increasing amount of time in the care of Mr Aizer from 25 May 2020.  The Tribunal also notes that both parties agree that from January 2021 Mr Aizer had 100% care of [Child 1]. Whilst not part of this application, it is reasonable to accept that this was the result of a considerable increase in care by Mr Aizer prior to the end of 2020.

10. Having regard to all of the evidence the Tribunal is satisfied that minor variations in the previous pattern of care started to occur from 25 May 2020 and that by 1 August 2020 the likely pattern of care of [Child 1] was 86% to Mr Aizer and 14% to Ms Aizer.

11. Mr Aizer notified the CSA of the changed care on 26 October 2020, which was more than 28 days after the change occurred on 1 August 2020. Therefore the new decreased percentage of care of 14% to Ms Aizer takes effect from 1 August 2020. However, the new increased percentage of care of 86% to Mr Aizer only takes effect from 26 October 2020 for Mr Aizer as he notified more than 28 days after the change of care.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

• the existing care percentage determination of 100% to Ms Aizer is revoked from 31 July 2020 and replaced with a new care percentage determination of 14% from 1 August; and

• the existing care percentage determination of 0% to Mr Aizer is revoked from 25 October 2020 and replaced with a new care percentage determination of 86% from 26 October 2020.