Chalkley and Teague (Child support)

[2024] AATA 3234

Chalkley and Teague (Child support) [2024] AATA 3234 (18 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/BC027905

APPLICANT:  Mr Chalkley

OTHER PARTIES:  Child Support Registrar

Ms Teague

TRIBUNAL:Member S Letch

DECISION DATE:  18 July 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – no information of exact date of change of care – date given by mother accepted by Child Support – father’s time with children after that date not in any particular pattern – 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

1. Mr Chalkley and Ms Teague are the parents of [the children]. This matter concerns a decision by Child Support about how to record the care of the children.

2. It is convenient by way of background to set out some extracts from the objections officer decision dated 2 May 2024:

   …

   DECISION UNDER REVIEW

   The decision made 22 January 2024 to reflect the care of [the children] as 100% to Ms Teague and 0% to Mr Chalkley from 01 October 2023, notified on 10 January 2024.

   …

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   The pre-existing care for [the children] reflected 261 nights (72%) to Ms Teague and 104 nights (28%) to Mr Chalkley from 14 July 2020.

   On 10 January 2024, Ms Teague advised that the care for [the children] had changed. Ms Teague advised she now had 100% care of both children from 01 October 2023.

   …

   On 22 January 2024, we made the decision to reflect the care of [the children] as 100% to Ms Teague and 0% to Mr Chalkley from 01 October 2023, as notified on 10 January 2024.

   …

   Mr Chalkley has objected to our decision to reflect the care as the care of [the children] as 100% to Ms Teague and 0% to Mr Chalkley from 01 October 2023. Mr Chalkley advised that the care pattern did not change until he left Australia on 28 December 2023. Mr Chalkley has not provided any evidence to support his claims.

   Ms Teague has provided third party statements from [Ms A], [B] and [C] all supporting that in their opinion Mr Chalkley only has the children on occasion and not overnight. They all confirm that he stayed with Ms Teague’s aunt during Christmas at the same time as the children.

   Ms Teague has stated in her letter Mr Chalkley comes to visit the children and take them for outings but has not had any overnight care for a significant period of time. No specific evidence or information has been provided to indicate an exact date of when this care ceased. Ms Teague has indicated a change in 2021 but no further information to support when in 2021 this may have occurred.

   In this case, we are satisfied that the pre-existing pattern of care has changed.

   We are satisfied from at least 01 October 2023, a date advised by Ms Teague, Mr Chalkley has not had any overnight care of the children.

   We have made the decision to reflect the care of [the children] as 100% to Ms Teague and 0% to Mr Chalkley from 01 October 2023, as notified on 10 January 2024.

   The objection is disallowed.

   …

3. Mr Chalkley and Ms Teague participated in the Tribunal’s hearing by conference telephone.

4. In short, Mr Chalkley told the Tribunal that he does not accept the reliance by Child Support on statements provided by Ms Teague from people who are not at “arm’s length”. From 1 October 2023 until he left for overseas in late 2023, Mr Chalkley did not indicate that he had any instances of overnight care (apart from a night or two around Christmas day) of either of the children; however, he said there were many instances where he took the children shopping, to church, and for lunches for example.

5. Ms Teague told the Tribunal that she agrees with the Child Support decision. She said Mr Chalkley would only see the children when he had the time to do so. He did not have any overnight care from 1 October 2023 (apart from a night or two around Christmas day).

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. These determinations are based on the number of nights in care, unless particular circumstances warrant an hourly calculation. Putting aside the supporting statements supplied by Ms Teague, on the basis of Mr Chalkley’s own evidence, I find that Mr Chalkley’s time with the children was ad hoc and not in any particular pattern. A couple of nights during the period 1 October 2023 until Mr Chalkley left for overseas do not give rise to any pattern for the purposes of striking a percentage of care for child support assessment purposes.

3. Accordingly, I find that the existing pattern of care (giving Mr Chalkley 28% care, and the balance of care to Ms Teague) should be revoked, and a new determination made on 1 October 2023 recording Mr Chalkley’s care as 0% (notified on 10 January 2024).  

4. If there have been any changes in care since Mr Chalkley returned from overseas, those are matters which are the subject of separate notifications and separate decisions by Child Support which are not part of this review which is confined to the reported change from 1 October 2023.

5. As I have reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.