Beezley and Wibben (Child support)

[2020] AATA 899

Beezley and Wibben (Child support) [2020] AATA 899 (2 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017930

APPLICANT:  Mr Beezley

OTHER PARTIES:  Child Support Registrar

Ms Wibben

TRIBUNAL:Member P Sperling

DECISION DATE:  2 March 2020

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly 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 removed 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 Beezley and Ms Wibben are the parents of [Child 1] and [Child 2] (the children).

2.Prior to the period under consideration in this review, the Department of Human Services – Child Support (the Department) had determined that Mr Beezley had a percentage of care of 14% for the children and Ms Wibben had a percentage of care of 86% for the children from 21 February 2019.

3.On 14 August 2019, Ms Wibben notified the Department that the care of the children had changed and that she had 91% care and Mr Beezley had 9% care of the children from 13 April 2019.

4.On 5 September 2019 the Department decided to change the care determination to 91% care for Ms Wibben and 9% care for Mr Beezley from 13 April 2019 (with date of effect for Ms Wibben of 14 August 2019). Mr Beezley disagreed with the decision and lodged an objection on 10 September 2019. On 7 November 2019 an objections officer disallowed Mr Beezley’s objection.

5.On 28 November 2019 Mr Beezley lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. Ms Wibben was made a party to this review.  The hearing took place on 2 March 2020. Mr Beezley participated in the hearing via conference telephone and both gave sworn evidence. At the commencement of the hearing the tribunal unsuccessfully attempted to contact Ms Wibben by telephone four times. The hearing proceeded, with the tribunal taking evidence from Mr Beezley only. In making its decision the tribunal took into account the information previously provided to the Department by Ms Wibben as well as the other documents provided by the Department (pages 1 to 85) which were also sent to Mr Beezley and Ms Wibben.

CONSIDERATION

6.The law that applies in this case is the ChildSupport (Assessment) Act 1989 (the Act).

7.The legal issues for the tribunal in this case relate to an existing determination of care in place, which was that Mr Beezley had 14% care of the children and Ms Wibben had 86% care of the child. The tribunal must determine whether the existing determination of care is to be revoked and, if so, from what date a new determination of care is to be made.

Has there been a change in the care of the child?

8.The Act requires the decision maker to make point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

9.Therefore in this case the tribunal is required to determine whether it was intended that the children were in Ms Wibben’s care 91% of the time and in Mr Beezley’s care 9% of the time from 13 April 2019. In considering this matter the tribunal is of the view that it can take into account any evidence of the intended care arrangements for the children from 13 April 2019 as well as evidence pertaining to the actual care of the children up to 5 September 2019, which was the date of the Department’s original decision.

10.The Department decided to change the recorded care of the children from 13 April 2019 (with effect from 14 August 2019) to 91% care for Ms Wibben and 9% care for Mr Beezley. This was based on information provided by Ms Wibben that previously Mr Beezley had two nights per fortnight of care (either Saturday and Sunday night or “back to back Saturday nights”), but that from 13 April 2019 Mr Beezley’s care changed to every second Saturday only plus one week in the school holidays per year. On this basis, the Department determined that Mr Beezley had 33 nights of care per year, or 9% care of the children per year.

11.Mr Beezley stated at the hearing that, prior to April 2019, he had a verbal agreement with Ms Wibben that he would have care of the children two nights per fortnight (on either Friday and Saturday nights or Saturday and Sunday nights) plus additional care for blocks of time during the school holidays when he was able. He said this was reflected in 14% care for him as recorded by the Department and he accepted that, even though he had more than 14% nights of care in the previous year. Mr Beezley strongly maintained that the agreement whereby he had two nights per fortnight did not change on 13 April 2019, as notified by Ms Wibben in August 2019, and he didn’t know why she had notified that there had been a change. Further, he said that when he found out about this notified change, he discussed it with Ms Wibben and she told him that it was wrong and she would advise the Department to change it back.

12.Mr Beezley also told the tribunal that he had care of the children from 8 April 2019 for four or five days when Ms Wibben was sick in hospital as well as for about a week in August 2019 and another period in the October 2019 school holidays.

13.When asked during the hearing whether there was ever any agreement about Mr Beezley providing care during the school holidays, Mr Beezley said that he is never sure exactly what annual leave he will have approved, so it is hard to plan in advance. He also said that he has to accommodate school holiday care for his new partner’s children. He concluded that his school holiday care of the children has been “spontaneous and ad hoc” but that he definitely had some care of the children during school holidays in 2019 and he always spent some of his annual leave caring for the children in school holidays.

14.In his discussions with the Department during the review of this matter, Mr Beezley advised that:

·     care arrangements did not change on 13 April 2019;

·     he and Ms Wibben had a falling out in August 2019 but he was not sure why she reported that there had been a specific change in care from 13 April 2019;

·     in 2019 he had over 50 nights care of the children, which is about 14% care;

·     he has one to two nights each week as well as additional care in school holidays;

·     he has a total of four weeks annual leave from his work and tries to have care of the children for additional times during school holidays and long weekends when he has annual leave.

15.Mr Beezley did not provide any additional evidence to the tribunal as part of this review. In response to the tribunal’s request for details of the specific dates he provided care, Mr Beezley said that he didn’t keep a calendar because he trusted Ms Wibben and so now he is unable to provide the exact dates he provided care. He noted that he had provided evidence to the Department, including general statements from family and acquaintances, because he thought that this was sufficient and he wasn’t aware that he had to provide exact dates for the care he provided. He also said that his neighbours and family members could verify that he has had care of the children at least two nights per week, but acknowledged that this would only be in general terms because they weren’t aware of specific dates.

16.The tribunal considered two third-party statements provided by Mr Beezley to the Department in its review of this matter to support his claim that Ms Wibben did not have 91% care of the children from 13 April 2019. This evidence is summarised as follows:

Letter from [Ms A], 30 September 2019[1]

[1] Department papers page 50

17.This letter states that [Ms A] has witnessed his care of the children on dates provided and in line with Mr Beezley’s calendar.

Letter from [Mr A], 30 September 2019[2]

[2] Department papers page 51

18.In this letter [Mr A] advising that Mr Beezley has been caring for children over a period of three months in line with “the report”.

19.During the hearing Mr Beezley conceded that he is now unable to provide the “calendar” or “report” referred to in these letters.

20.The tribunal also noted print-outs of text messages between Mr Beezley and Ms Wibben provided to the Department by Mr Beezley.[3] In the tribunal’s view these messages did not provide evidence of specific dates on which Mr Beezley had overnight care of the children.

[3] Department papers pages 39 to 48

21.The Department’s papers show that Ms Wibben advised the following during the Department’s  review of this matter:

·     Mr Beezley does not have care for four weeks of school holidays per year;

·     Mr Beezley had care for six nights in the October 2019 school holidays but this was a “one-off”;

·     Mr Beezley doesn’t normally have any mid-year holiday care;

·     Mr Beezley will be having an additional five nights in the 2019 Christmas holidays;

·     Mr Beezley sometimes has daytime care on the alternate Sunday but he does not have regular overnight care on Sunday nights;

·     some of Mr Beezley’s text messages are misleading as they don’t show Ms Wibben’s response and therefore don’t prove that he had care of the children at any particular time.

22.Ms Wibben provided one third-party statement to the Department about care of the children.

Letter from [Ms B], 4 November 2019[4]

[4] Department papers page 54

23.This letter states that [Ms B] frequently visits and stays the night and that Ms Wibben cares for both children every night except for one Saturday night per fortnight. The letter also states that [Ms B] has been present and witnessed drop off and pickups for the children, in line with these care arrangements.

24.Ms Wibben did not provide any further evidence to the tribunal as part of this review and did not participate in the tribunal’s hearing at the scheduled and notified time.

25.During the hearing Mr Beezley questioned the reliability of [Ms B’s] statement because he said that [Ms B] and Ms Wibben were estranged during some periods in 2019 and so [Ms B] could not have known what the care arrangements of the children were during this period. He also stated that [Ms B’s] statement incorrectly stated that he dropped the children back to Ms Wibben’s house after they were in his care, because it was his current partner who usually did this to avoid any confrontation.

26.The tribunal considered all of the evidence and noted that the third-party statements provided by Mr Beezley’s family and friends did not provide any specific evidence regarding the actual nights the children were in Mr Beezley’s care from 13 April 2019. The tribunal also noted that Mr Beezley did not provide any calendar or other specific evidence detailing the actual dates on which he had overnight care of the children over the relevant period and he conceded that he was unable to do so.

27.While the tribunal notes that Ms Wibben has not provided a calendar or specific dates of the care that she had of the children, the more detailed evidence provided by [Ms B] is consistent with the pattern of care notified by Ms Wibben for the period from April 2019. Further, there is no independent evidence before the tribunal to substantiate Mr Beezley’s concerns about the reliability of [Ms B’s] evidence or his evidence that Ms Wibben’s acknowledged that the care recorded was incorrect and she would rectify this.

28.While the tribunal accepts that Mr Beezley may have had some additional daytime care of the children from April 2019, the tribunal had regard to the Child Support Guide[5] at 2.2.1 which states that generally the number of nights a person cares for a child will be the best measure of their percentage of care. There is no reason in this case why there should be any departure from the general rule to take into account the number of nights a person has care of the children.

[5] The Child Support Guide (the Guide) is the government policy adopted by the Department that applies to the interpretation and application of the child support legislation. Generally, the tribunal will follow the Guide unless there is a cogent reason not to do so. There are no circumstances in this matter that would require the Guide to be disregarded.

29.Having considered the circumstances in this matter and all of the available evidence, the tribunal has determined that Ms Wibben had 91% care of the children and Mr Beezley had 9% care of the children from 13 April 2019, as notified by Ms Wibben.

30.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

31.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the children.

32.The tribunal is satisfied that a care determination has previously been made under section  50 of the Act such that Mr Beezley had 14% care of the children and Ms Wibben had 86% care of the children from 21 February 2019.  The tribunal has now concluded that from 13 April 2019 Mr Beezley’s and Ms Wibben’s care percentages were not the same as their previously determined care percentages and that Ms Wibben had 91% care and Mr Beezley had 9% care of the children from this date. Therefore section 54F(1)(a) of the Act is satisfied and the existing determination must be revoked.

33.Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of the child, the tribunal must determine the percentage of care during the care period. “Actual care” may be worked out based on the number of nights the children was or will be in the care of the person (subsection 54A(1)).

34.The tribunal is required to consider what the actual care of the children was, or is likely to be, during the care period. The care period is such a period as the Child Support Registrar considers is appropriate, having regard to all of the circumstances (section 50 of the Act). In this case the tribunal considers that an appropriate care period is the 12-month period from 13 April 2019, which is the date that the tribunal has accepted that a change to care arrangements occurred.

35.The tribunal has determined that Ms Wibben had 91% care and Mr Beezley had 9% care of the children from 13 April 2019.  The tribunal is satisfied that the first notification of a change in care occurred when Ms Wibben contacted the Department on 14 August 2019 and said that the care had changed. As Ms Wibben did not participate in the hearing, there is no additional evidence before the tribunal explaining why she did not notify the Department at the time the change in care occurred. As such, there is no evidence of any special circumstances which prevented Ms Wibben notifying or following up the change in care with the Department between 13 April 2019 and 14 August 2019. Given this, the revocation of the existing determination will apply from 13 August 2019 for Ms Wibben and 12 April 2019 for Mr Beezley.

36.The tribunal’s decision is consistent with the Department’s decision. Therefore the Department’s decision is affirmed.

DECISION

The tribunal affirms the decision under review.