Daron and Daron (Child support)

[2018] AATA 4426

Daron and Daron (Child support) [2018] AATA 4426 (18 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014808

APPLICANT:  Ms Daron

OTHER PARTIES:  Child Support Registrar

Mr Daron

TRIBUNAL:Member F Staden

DECISION DATE:  18 October 2018

DECISION:

The decision under review is set aside and a decision substituted that from 25 February 2018 Ms Daron’s care percentage for [Child 1] is 86% and Mr Daron’s care percentage is 14%.

CATCHWORDS
CHILD SUPPORT – Percentage of care – Pattern of care – Determination revoked and new determination 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 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. Ms Daron and Mr Daron are the separated parents of [Child 1], born 2000. This review is about [Child 1]’s care.

2. On 8 March 2018, Ms Daron informed the Department of Human Services – Child Support (the Department) that [Child 1]’s care arrangements had changed. She stated that her level of care had changed from 56% (203 nights a year) to 97% (353 nights a year) while that of Mr Daron had changed from 44% (162 nights a year) to 3% (12 nights a year).

3. On 10 April 2018, Mr Daron informed the Department that he disputed the care change advised by Ms Daron.

4. Both parties provided additional evidence. According to Departmental records Mr Daron provided 25 November 2008 court orders plus text messages about care in October 2017. Ms Daron provided a 2018 care calendar plus a 20 April 2018 statement from her current partner.

5. On 19 May 2018, the Department found that from 22 February 2018 Ms Daron had 97% (353 nights a year) of [Child 1]’s care and Mr Daron had 3% (12 nights a year).

6. On 30 May 2018, Mr Daron objected to the 19 May 2018 decision on the basis that it did not reflect the care he provided for [Child 1].

7. On 2 July 2018 and 24 July 2018 respectively, Ms Daron and Mr Daron provided the Department with 2018 care calendars.

8. On 28 July 2018, an objections officer partly allowed Mr Daron’s objection. The objections officer found that from 8 March 2018 Ms Daron’s level of care for [Child 1] was 84% (305 nights a year) and that of Mr Daron was 16% (60 nights a year).

9. On 15 August 2018, Ms Daron applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for review of the objections officer’s decision. Her application included an updated 2018 care calendar.

10. A hearing was conducted on 18 October 2018. Ms Daron and Mr Daron gave sworn evidence by telephone. The tribunal had before it documents provided by the Department (pages 1 to 217), a copy of which was sent to the parties before the hearing.

11. Relevant aspects of the evidence before the tribunal are referred to in the consideration below.

ISSUES

1. The relevant legislation in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). The tribunal also had regard to the Child Support Guide, the Department’s online technical and policy guide to the administration of the child support scheme.

2. The Department, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Assessment Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent in relation to each child.

3. The Department decides each parent’s care percentage in line with sections 49 to 54L of the Assessment Act. These provisions require the Department to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

4. Sections 49 and 50 of the Assessment Act require the Department, or here the tribunal, to determine the likely pattern of care for a child during a care period that is considered appropriate, usually 12 months. A care period begins on the day the actual care of a child began or changed and the same care arrangements are assumed to apply for the care period unless the Department is otherwise advised.

5. The issues which arise in this case are:

   ·    Should the existing care percentages be revoked; and if so

   ·    Should new care percentage determinations be made and, if so, from when?

CONSIDERATION

Context

1. The 25 November 2008 court orders relevant to this case essentially provide that [Child 1] be in Mr Daron’s care six nights a fortnight plus half the school holidays. Both parties agreed that the court orders have not been followed in relation to [Child 1] since at least February 2018. Each stated that they accepted the importance of [Child 1] being able to decide where she wanted to stay during 2018 as it is her last year of school and she is studying hard for her HSC.

2. Mr Daron said that he had proposed a new care arrangement for [Child 1] from 25 February 2018: 12 consecutive nights in his care every 28 day cycle. He thought this would be a more stable arrangement for [Child 1] as it would reduce how often she had to change home. Mr Daron reported that the new arrangement did not work out and [Child 1] did not come to stay with him on 25 February 2018 as scheduled.

3. Ms Daron said that she had never agreed to Mr Daron’s proposed new care arrangement and that she believes [Child 1]’s care changed from the start of the school year. The tribunal noted that the Departmental record of Ms Daron’s 8 March 2018 contact did not refer to an earlier care change date than 8 March 2018. Ms Daron observed that her contacts with the Department are not always fully recorded.

4. On the basis of the available evidence, the tribunal decided to take 25 February 2018 as the date of the care change as it is the earliest date on which both parties agree. The tribunal further decided that the appropriate care period in this case is from 25 February 2018 to 6 November 2018, the date on which [Child 1] will finish school.

5. Mr Daron’s 24 July 2018 care calendar showed [Child 1] staying with him for 12 of the 83 nights from 25 February 2018 to 18 May 2018. Ms Daron’s 15 August 2018 care calendar showed Mr Daron as having care of [Child 1] on 11 of those nights.

6. Thus Ms Daron and Mr Daron were largely in agreement, apart from one night (22 April 2018), about the nights of care Mr Daron provided for [Child 1] in the period from the 25 February 2018 care change to the 19 May 2018 original determination. Mr Daron’s evidence indicated that his care percentage was 14% (12/83 nights) and Ms Daron’s evidence indicated that Mr Daron’s care percentage was 13% (11/83 nights).

7. Mr Daron’s 24 July 2018 care calendar showed that [Child 1] stayed with him for 11 nights in the 66 night period 19 May 2018 to 23 July 2018. Ms Daron’s 15 August 2018 care calendar showed [Child 1] as spending 10 nights in Mr Daron’s care in that time. At hearing, Ms Daron agreed, on the basis of texts between [Child 1] and herself which she provided to the tribunal, that Mr Daron had provided an additional night of care for [Child 1] in late May 2018.

8. Thus Ms Daron and Mr Daron agreed that [Child 1] stayed 11 nights with Mr Daron from 19 May 2018 to 23 July 2018, a care percentage of 16% (11/66 nights) in the period immediately following the original determination.

9. After careful consideration, the tribunal found that the likely pattern of Mr Daron’s care for [Child 1] for the care period beginning 25 February 2018 was half of the school holidays plus occasional other nights of care. Taking into account the inevitable fluctuations associated with such a pattern of care, the tribunal further found that the associated care percentages were best represented as 86% to Ms Daron and 14% to Mr Daron.

Issue 1: Should the existing care percentage determinations be revoked?

1. Subsection 54F(1) of the Assessment Act sets out the circumstances in which a determination of care percentage must be revoked and the tribunal is satisfied that those circumstances exist in this case:

   · There are existing care percentage determinations under section 50 of the Assessment Act. From 13 October 2015, Ms Daron’s care percentage for [Child 1] was 56%, with a cost percentage of 57% and that of Mr Daron was 44%, with a cost percentage of 43%;

   · The parties agreed in around February 2018 not to follow the care arrangement for [Child 1] in the 25 November 2008 court orders. Therefore section 51 of the Assessment Act does not apply to the existing determinations;

   ·     On 8 March 2018, Ms Daron informed the Department that care for [Child 1] had changed. The tribunal has found above that the care change occurred on 25 February 2018;

   ·     If the care percentages for [Child 1] are changed in line with the conclusion above, each parent’s cost percentage for her will change; and

   · The tribunal was satisfied that section 54G of the Assessment Act does not apply in this case.

2. As the requirements of subsection 54F(1) of the Assessment Act were met, the tribunal revoked the existing care percentage determinations for Ms Daron and Mr Daron.

3. Subsection 54F(2) of the Assessment Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the care change within 28 days of when it occurred.

4. Here Ms Daron informed the Department of the change to the [Child 1]’s care within 28 days of the 25 February 2018 change taking place. Therefore, under paragraph 54F(2)(c), the revocation of the existing determinations takes effect on 24 February 2018, the day before the day the care change took place.

Issue 2: Should new care percentage determinations be made and, if so, from when?

1. If a person’s existing care percentage determination for a child is revoked, there is a requirement under sections 49 and 50 of the Assessment Act that a new care percentage be determined if that person has had or is likely to have a pattern of care in the period the Child Support Registrar (here the tribunal) considers to be appropriate having regard to all the circumstances.

2. The tribunal found above than an appropriate care period in this case is 25 February 2018 to 6 November 2018. The tribunal further found that in this period, under section 50 of the Assessment Act, Ms Daron’s care percentage for [Child 1] is 86% and that of Mr Daron is 14%.

3. Under section 54B of the Assessment Act, the date of effect of the new care percentage determinations is the day after the revocation of the existing determinations. The tribunal revoked the existing determinations with effect from 24 February 2018 and so the new determinations apply from 25 February 2018.

DECISION

The decision under review is set aside and a decision substituted that from 25 February 2018 Ms Daron’s care percentage for [Child 1] is 86% and Mr Daron’s care percentage is 14%.