Dalman and Dalman (Child support)

[2022] AATA 3079

Dalman and Dalman (Child support) [2022] AATA 3079 (27 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC023755

APPLICANT:  Mr Dalman

OTHER PARTIES:  Child Support Registrar

Ms Dalman

TRIBUNAL:Member S Letch

DECISION DATE:  27 July 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages for [Child 1] and [Child 2] recording Ms Dalman’s care as 81% and Mr Dalman’s care as 19% should not have been revoked. This means Mr Dalman’s application is successful.

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 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

1. Mr Dalman and Ms Dalman are the parents of [Child 1] and [Child 2]. Care for the children had been recorded by the Child Support Agency (CSA) as 81% to Ms Dalman and 19% to Mr Dalman when, on 1 January 2022, Ms Dalman reported a change in the care arrangements.

2. On 1 April 2022, the CSA decided to refuse to record care as 100% to Ms Dalman and 0% to Mr Dalman from 4 December 2021; in other words, the existing care percentages were not revoked.

3. Ms Dalman objected to the decision. It is convenient by way of background to set out some extracts from the objections officer decision dated 21 April 2022:

   DECISION UNDER REVIEW

   The decision made on 1 April 2022 to refuse to change the care percentages on the child support
   assessment to reflect 100% care to Ms Dalman and 0% care to Mr Dalman from 4 December 2021.

   Ms Dalman has objected to this decision on the grounds that she provided a block of 100% care for a period of almost 10 weeks from 14 December 2021 to 20 Februa1y 2022.

   …

   Prior to the decision, the pre-existing percentages of care reflected on the child support assessment
   for [Child 1] and [Child 2] were 81% care to Ms Dalman and 19% care to Mr Dalman from 2 October 2021, based on the court orders made [in] May 2020.

   On 1 January 2022 Ms Dalman contacted Child Support via webmaster email and reported that Mr Dalman was unable to provide his scheduled three weeks of care for [Child 1] and [Child 2] due to Covid-19 state border closures. Ms Dalman also stated that there would be no arrangements made for make up time`.
   On 2 February 2022 Ms Dalman contacted Child Support via telephone and reported a change to the care arrangements for [Child 1] and [Child 2]. Ms Dalman confirmed that the court orders made [in] May 2020 had been in effect, however since 4 December 2021 Mr Dalman had not provided any care of the children.

   Ms Dalman stated that Mr Dalman lived in Perth and the children lived with her in Queensland. Ms Dalman stated that the WA state borders were shut, and she did not know when Mr Dalman's care could resume. Based on this advice a care change reflecting 100% care to Ms Dalman from 4 December 2021 was pended.

   On 9 February 2022 Child Support contacted Mr Dalman to discuss the care arrangements for [Child 1] and [Child 2] as reported by Ms Dalman. Mr Dalman stated that he did not agree with the change reported by Ms Dalman, and that the care arrangements for the children have always been as per the court order.

   Mr Dalman stated that he was supposed to have the children in his care for 3 weeks during the second half of the 2021 Christmas Holiday break, but Ms Dalman did not let the children visit Mr Dalman.

   …

   In this case, we made a decision to refuse to change the care percentages on the child support
   assessment to reflect 100% care to Ms Dalman and 0% care to Mr Dalman from 4 December 2021. We made this decision on the basis that the pre-existing care percentages had been calculated with consideration of the fact that Mr Dalman would not be providing care during December 2021, and that his missed care in January 2022 was considered as a temporary disruption to the regular pattern of care.
   Upon objection, Ms Dalman has contended that Mr Dalman missed providing care for the children during December 2021, as well as his three weeks of school holiday care in January 2022. Ms Dalman maintained that she provided a block of 100% care for a period of almost 10 weeks from 14 December 2021 to 20 February 2022, and requested that the child support assessment be updated to reflect this.

   In response to Ms Dalman's objection Mr Dalman stated that as per the court orders he was not scheduled to provide any care of the children in December 2021, and therefore he cannot be considered as having missed any care in December 2021. Mr Dalman confirmed that he was unable to provide care of the children for three weeks in January 2022 as planned, due to Covid-19 state border closures and

   Ms Dalman's unwillingness to send the children on an earlier date.

   …

   In consideration of the above mentioned clauses as stipulated in the court orders made [in] May
   2020, Child Support is satisfied that Mr Dalman was not scheduled to provide any care for [Child 1] or [Child 2] during December 2021, and therefore we do not consider that there was a change to the care arrangements on any date in December 2021.

   However, as both parties have confirmed that Mr Dalman missed his expected period of care
   commencing 1 January 2022 due to Covid-19 state border closures, we can be satisfied that the care
   arrangements for [Child 1] and [Child 2] did change temporarily from this date - as they were expected to go to Pe1th for 21 nights, and did not.
   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the
   Registrar may recognise that the person has 100% care although they are not expected to continue
   to have that level of care. The period of unexpected care will generally need to be at least 4 weeks
   in length in order for the Registrar to make such a determination.

   In these situations, the Registrar will determine the care over a short care period related to the
   unexpected circumstance (sections 49(1)(a) and 50(1)(a)). When care returns to the normal pattern,
   a party may notify the Registrar of the change in care, and the Registrar will consider whether to
   make a new care percentage determination.

   Based upon the statements from both parties, Child Support are satisfied that Ms Dalman unexpectedly provided a block of 100% care of [Child 1] and [Child 2] over a short care period from 1 January 2022 until the court ordered pattern resumed with Mr Dalman's next expected care event on 21 February 2022. We are satisfied that Ms Dalman`s period of unexpected 100% care of [Child 1] and [Child 2] was at least 4 weeks in length, and that it was directly related to the unexpected circumstance of Covid-19 state border closures which resulted in the children being unable to fly to Perth for the January school holidays as planned.

   Therefore upon objection the Registrar has determined that the care percentages for [Child 1] and [Child 2] will be reflected on the child support assessment as 100% care to Ms Dalman and 0% care to Mr Dalman for the period from 1 January 2022 to 20 February 2022.

   The objection is partly allowed.

   Note: Throughout the objection process information often comes to light in respect to other events
   or changes in care arrangements which have not yet been considered by the agency but may warrant
   a change to the assessment.

   In this case, is has also been determined based on the statements made by both parties and the
   evidence submitted throughout both the original decision making and objection processes, that
   Mr Dalman`s pattern of care for [Child 1] and [Child 2] resumed as per the court orders on 21 February 2022.
   On this basis a subsequent decision has been made to accept a change to the care percentages for
   [Child 1] and [Child 2] and reflect 76% care to Ms Dalman and 24% care to Mr Dalman for the 12 month care period commencing from 21 February 2021.

   …

4. Mr Dalman and Ms Dalman participated in the Tribunal’s hearing by conference telephone. The respective evidence and submissions of the parties during the hearing were consistent with their recorded representations to the CSA.

5. 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.

6. It is important to observe that these are “point in time” assessments. Every change to the pattern, or likely pattern, of care is subject to separate notification and a separate decision about whether to revoke the existing recorded pattern and replace it. The Tribunal observes that the objections officer notes that a subsequent care determination has been made effective in the assessment from 21 February 2022, which is not before the Tribunal in this application.

7. These calculations and expressions of care percentages do not come with a warranty of perfection. They are not intended to account for every single night; rather, a “broad brush” is adopted to strike a care percentage going forward. It is not the case after the completion of every care period that a comprehensive retrospective audit is undertaken to account for every night. There is also a reasonable tolerance for minor deviations from the usual pattern; there is also a tolerance for deviations which arise as a result of the timing of school holidays, birthdays, Mother’s Day and Father’s Day, and other minor disruptions to the usual pattern of care.

8. Here, on the Tribunal’s reading of the Court orders, as a result of disruptions from COVID-19 border arrangements, Mr Dalman missed one single three week block of scheduled care. The effect of the CSA objection decision is that for the period 1 January 2022 to 20 February 2022, he is recorded in the assessment as having 0% care. Mr Dalman argues that result is disproportionate, and urges a restoration of the original CSA decision to continue to record the existing pattern of care.  

9. Here, Mr Dalman missed one “care event” in January 2022. The Child Support Guide, at 2.2.3, reflects the common-sense approach to tolerating isolated missed care events:

Ceases a pattern of care

If a parent or non-parent carer notifies the Registrar within a reasonable period of time that another party ceased an established pattern of care of the child, the determination will have effect from the date the other party ceased the previously established pattern (section 54G(2)).

A parent or non-parent carer ceases a pattern of care when they stop having care of a child in accordance with the previously established pattern. The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:

·missed 3 care events in a row

·missed 5 care events out of 8, or

·missed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

1. Here, it appears the missed care event was an isolated, one-off occurrence. Consistent with the usual approach, and the above policy guidelines, the missed care event in this case does not warrant the existing recorded pattern of care being revoked. Care ought to have remained recorded as 81% to Ms Dalman and 19% to Mr Dalman.

2. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care percentages for [Child 1] and [Child 2] recording Ms Dalman’s care as 81% and Mr Dalman’s care as 19% should not have been revoked. This means Mr Dalman’s application is successful.