Caddell and Horton (Child support)

[2024] AATA 1177

Caddell and Horton (Child support) [2024] AATA 1177 (3 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC027104

APPLICANT:  Mr Caddell

OTHER PARTIES:  Child Support Registrar

Ms Horton

TRIBUNAL:Member K Hamilton

DECISION DATE:  03 April 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of care – parenting orders made – minor departure from the pattern of care – no change to the care percentages – 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 Caddell and Ms Horton are the parents of one child, [Child 1] (known as [Alias 1]).  Prior to 1 July 2022, Mr Caddell was recorded for child support purposes as having 25% care and Ms Horton 75% care of the child. 

2. On 17 May 2023, Mr Caddell advised Services Australia – Child Support (Child Support) that he had 36% care of the child from 1 July 2022. 

3. On 3 August 2023, Child Support made a decision to refuse to reflect the care of the child as 36% to Mr Caddell and 64% to Ms Horton.

4. Mr Caddell objected to that decision on 4 August 2023.  On 10 November 2023 a Child Support objections officer allowed his objection in part, finding that Mr Caddell had 33% care and Ms Horton 67% care from 31 August 2022.  Mr Caddell then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.

5. I heard the matter on 3 April 2024. Mr Caddell and Ms Horton both participated by telephone and gave evidence. 

ISSUES

1. The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment Act.

3. If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act.

4. A responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change, and where section 54G does not apply: section 54F in Division 4, Subdivision C of the Assessment Act.

5. The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person has had, or is likely to have, a pattern of care during a care period, the responsible person’s percentage of care must be determined based on their actual care of the child during the care period: section 50 of the Assessment Act.

6. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

7. The issues which arise in this case are:

   ·      Was there a change in the child’s pattern of care? If so,

   ·      What are the new percentage of care determinations for Mr Caddell and Ms Horton?

   ·      What is the date of application of the revocation of the pre-existing percentage of care determination and the date of application of the new percentage of care determination for Mr Caddell?

CONSIDERATION

1. Mr Caddell told the Tribunal that he had done everything that Child Support told him to do by keeping a care calendar.  He had been unemployed and had some health issues and, when he started work again, that is when he notified Child Support on 17 May 2023 of the changes in care that he had recorded.

2. Mr Caddell said that Child Support asked him to provide evidence of the change in care, which he did.  This evidence included a written statement from his neighbour.  Mr Caddell contended that his evidence showed that he had more care of the child throughout 2022 and 2023.  From February 2024 he has been having additional care of the child every Thursday night.  He has not advised Child Support of this recent change in care.

3. The hearing papers provided by Child Support include the following evidence from Mr Caddell’s neighbour (“[Ms A]”):

   ·A letter dated 23 May 2023 stating that her grandson stays with her regularly and that “I have noticed the second half of last year and this year that [Alias 1] has been frequently been [sic] with his father which enables the boys to have more interaction”.

   ·A note from a telephone call with Mr Caddell on 28 July 2023, during which [Ms A] spoke to Child Support and advised “[Alias 1] stays with [my grandson] some Thursday nights, it may be 1 a month or some months 2, 3 or every Thursday – it varies”.

   ·A letter dated 28 July 2023 clarifying that the definition of “frequent” interaction between her grandson and [Alias 1] is “at least twice a week and sometimes up to 5 times a week especially during the school holidays…Other than the school holidays the frequency has been twice a week consistently usually on Tuesdays and Thursdays and some weekend days and nights”.

4. On 31 August 2022, parenting orders were made which provided for Mr Caddell to have 4 nights of regular care each fortnight during school terms and half of school holidays. Mr Caddell’s handwritten records of the days on which he had care of the child from July 2022 show the following:

Month	Care recorded by Mr Caddell
July 2022	consistent with court orders
August 2022	1 scheduled care day missed (Wednesday 10th)
September 2022	3 nights in addition to care provided in court orders (Monday 5th; Tuesday 6th and Thursday 22nd)
October 2022	consistent with court orders
November 2022	1 night in addition to care provided in court orders (Tuesday 22nd)
December 2022	2 nights in addition to care provided in court orders (Sunday 4th and Monday 5th)
January 2023	consistent with court orders
February 2023	consistent with court orders
March 2023	1 night in addition to care provided in court orders (Thursday 2nd)
April 2023	1 night in addition to care provided in court orders (Thursday 6th)
May 2023	consistent with court orders
June 2023	2 nights in addition to care provided in court orders (Thursday 15th and Thursday 22nd)
July 2023	consistent with court orders
August 2023	1 night in addition to care provided in court orders (Thursday 24th)
September 2023	2 nights in addition to care provided in court orders (Saturday 2nd and Thursday 21st)
October 2023	consistent with court orders
November 2023	5 nights in addition to care provided in court orders (Thursday 9th; Wednesday 15th; Saturday 25th; Monday 27th and Thursday 30th)
December 2023	consistent with court orders
January 2024	1 week additional to care provided in court orders (20th–27th January)

1. Mr Caddell told the Tribunal that he regarded his additional nights of care of the child as “sporadic but consistent”.  If his nights of care were accepted as accurate, Mr Caddell calculated that his percentage of care of the child would be 42%.

2. Ms Horton told the Tribunal that as she and Mr Caddell had been engaged in protracted Family Court proceedings prior to the parenting orders being made in August 2022,  she took those orders very seriously and was scrupulous in following them.  Ms Horton provided a letter from a third party dated 22 May 2023 stating that she “took the Court Orders VERY seriously and was fastidious with sticking to them”.

3. However, Ms Horton noted to the Tribunal that where it was better for the child to deviate from those orders to spend more time with his father, she would do so.  Ms Horton agreed that Mr Caddell had had up to 3 extra nights care of the child in total until the end of 2023.  These occurred when the child was at sports training and expressed that he wanted to go home with his father, and she agreed on these occasions in accordance with the child’s wishes. 

4. In January 2024, Ms Horton’s mother broke her hip and Ms Horton was required to care for her.  The child stayed an additional week with Mr Caddell over the school holidays while she cared for her mother.

5. Ms Horton noted that in early 2024, the child asked to spend some more time with his father, and it was agreed between the parties that the child would spend every Thursday with Mr Caddell.  She agreed that Mr Caddell has had care of the child every Thursday night in February 2024 (in addition to Mr Caddell’s regular days of care, i.e. 2 additional days per fortnight), but is unsure whether that arrangement will continue.

6. Mr Caddell’s care has been largely consistent with the care provided for under the parenting orders.  His records indicate that he has on occasion had one or two nights of additional care in some months, however this extra care does not occur with any regularity or predictability.  Ms Horton agreed that Mr Caddell had up to 3 additional nights care of the child, at the child’s request, up to the end of 2023, and generally this was in response to ad hoc and last-minute requests made by the child. 

7. While the evidence from Mr Caddell’s neighbour [Ms A] suggests that he had care of the child for “1, 2, 3 or every Thursday” in a month, this is not borne out by Mr Caddell’s own care calendars.  It is correct to say that in some months Mr Caddell had care of the child on a Thursday.  However, at the time [Ms A] provided her statements to Child Support (in July 2023), there had been only 2 occasions over the course of a year in which Mr Caddell had 2 additional nights care per month on a Tuesday or Thursday.  Those occasions did not fall within the same week, nor did they occur frequently or consistently.  Rather, the occasions where Mr Caddell had additional care on a Thursday night were sporadic and highly variable.  Outside of school holiday periods, June 2023 is the only month (prior to [Ms A]’s statements to Child Support) in which Mr Caddell had care of the child on more than one Thursday night, and there are no months in which he had care of the child for 3 or 4 Thursdays.  I place limited weight on the evidence provided by Mr Caddell’s neighbour.

8. Even if I were to accept as correct Mr Caddell’s evidence about the further additional nights he states the child was in his care, in Mr Caddell’s own words, that extra time is sporadic.  I am satisfied that any additional nights where the child may have been in Mr Caddell’s care represent a minor departure from the pattern of care established under the parenting orders.  Consistent with the Child Support Guide (at 2.2.1), such minor departures do not justify the parties’ care percentage being changed from what has been calculated by Child Support by reference to care provided for under the parenting orders.

9. I am satisfied based on the evidence of both parties that there was a change in the child’s pattern of care from 31 August 2022, when parenting orders were made by the Family Court, with Mr Caddell having 33% care and Ms Horton 67% care from that date.  That change in the pattern of care meant Mr Caddell had “shared care” of the child, and had the effect of decreasing Mr Caddell’s cost percentage.  Accordingly, I find that the existing care determinations must be revoked under section 54F, and new percentage of care determinations applied from 31 August 2022 that Mr Caddell had 33% care and Ms Horton 67% care of the child.    

10. Pursuant to paragraph 54F(3)(b) of the Act, as the change in care was notified on 17 May 2023, more than 28 days after that change occurred on 31 August 2022, there are different dates of effect for the revocation of each parent’s respective pre-existing care percentage determinations. Revocation of the pre-existing percentage of care determination of 75% recorded for Ms Horton takes effect the day before the change of care day, that is, on 30 August 2022. Revocation of the pre-existing percentage of care determination of 25% recorded for Mr Caddell takes effect the day before his notification of the change of care day, that is, on 16 May 2023.

11. Pursuant to section 54B of the Act, new percentage of care determinations apply from the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 33% for Mr Caddell applies from 17 May 2023 and a new percentage of care determination of 67% for Ms Horton applies from 31 August 2022.

12. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

13. I acknowledge that both parties indicated to the Tribunal that there was an agreement for Mr Caddell to have regular additional time with the child from February 2024.  However, the legislative scheme deals with any subsequent change to the parties’ likely pattern of care by requiring further notification to be made to Child Support of such changes, and Child Support is responsible for making further care decisions, with review rights as appropriate attached to each further or subsequent decision.

14. Mr Caddell’s position is that since February 2024, he has had care of the child every Thursday night.  If not already notified, it is a matter for Mr Caddell if he wishes to notify the subsequent change of care to Child Support for a further decision to be made by Child Support.  Any such subsequent change is not before the Tribunal in relation to this application for review.

DECISION

The decision under review is affirmed.