Davey and Drewry (Child support)

[2024] AATA 373

Davey and Drewry (Child support) [2024] AATA 373 (25 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026918

APPLICANT:  Mr Davey

OTHER PARTIES:  Child Support Registrar

Ms Drewry

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  25 January 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Davey provides 23 per cent care of [Child 1] and [Child 2] and Ms Drewry provides 77 per cent care from 31 March 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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. This review is about a change to the percentage of care determinations for Mr Davey and Ms Drewry in respect of their children [Child 1] (born August 2018) and [Child 2] (born October 2012).  There has been a child support assessment in place since 7 March 2023.

2. From 7 March 2023 the child support assessment reflected Mr Davey as having 10 per cent care and Ms Drewry as having 90 per cent care of [Child 1] and [Child 2].

3. On 24 April 2023 Mr Davey notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that he provides 35 per cent care and Ms Drewry provides 65 per cent care of [Child 1] and [Child 2] from 30 March 2023.

4. On 5 July 2023 Child Support made the decision to refuse the change in care as advised by Mr Davey.

5. On 18 July 2023 Mr Davey objected to this decision and on 16 October 2023 Child Support allowed the objection in part and made the decision to reflect that Mr Davey provides 14 per cent care and Ms Drewry provides 86 per cent care of [Child 1] and [Child 2] from 30 March 2023 (the objection decision).

6. On 17 October 2023 Mr Davey applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 25 January 2024.  Mr Davey and Ms Drewry gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (219 pages).  The Tribunal received additional information from Mr Davey (A1–A3) and Ms Drewry (B1–B4) prior to the hearing and copies were distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child Support makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has had, or is likely to have, during a care period (section 50 of the Act).  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made; and, if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Davey told the Tribunal there was no formal written agreement currently in place regarding care of the children and the parents made arrangements between themselves.

2. Mr Davey said care of [Child 1] and [Child 2] changed from around 30 March 2023 when he moved into his own accommodation after living with a friend for a short period following separation.  Mr Davey added that he had also started a more flexible work roster around that time allowing him to care for the children at night.  Mr Davey said he had provided Child Support with a list of the dates he was having overnight care of [Child 1] and [Child 2].

3. The Tribunal notes in evidence from Child Support a record of the dates Mr Davey provided overnight care from 30 March 2023:

   ·     March 2023 – 30, 31 (two nights)

   ·     April 2023 – 6, 7, 12, 14, 20, 21 (six nights).

4. Mr Davey explained that his intention after relocating to his own accommodation was to increase his care of the children with a view to ultimately sharing care with Ms Drewry.  Mr Davey said this pattern of shared care had eventually commenced from 28 April 2023.  Mr Davey said he had also provided Child Support with statements from third parties in support of his care of the children.

5. The Tribunal notes in evidence from Child Support affidavits from [Mr A] and from [Mr B] dated 18 July 2023.  Both are work colleagues of Mr Davey and confirm he moved into his investment property in late March 2023 and was having overnight care of the children at that time.

6. Ms Drewry told the Tribunal she agreed there was no formal written agreement in place regarding care of the children although the parents were currently working through the details of a parenting plan. Ms Drewry said she did not dispute that Mr Davey began having increased care of the children but said this commenced from 31 March 2023 rather than 30 March 2023.  Ms Drewry added that she also disagreed with a couple of the nights that Mr Davey had said he was having overnight care.

7. Ms Drewry said Mr Davey did not have overnight care on 30 March 2023 as initially the children did not want to stay with him at his new residence even though they were supposed to on that night.  Ms Drewry said [Child 1] and [Child 2] also stayed with her on 7 April 2023 otherwise she accepted the other care dates provided by Mr Davey.

8. Mr Davey told the Tribunal he agreed that [Child 1] was upset about staying overnight with him at his new residence on 30 March 2023 and so both children eventually went home to stay with Ms Drewry instead.  Mr Davey said it was his view the children both stayed with him on 7 April 2023 in keeping with the dates given to Child Support.

9. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. Care is generally assessed over a 12-month care period commencing from the day on which the actual care of the child changed.

10. It is not in dispute and the Tribunal finds that a new pattern of care for [Child 1] and [Child 2] commenced from 31 March 2023.

11. The parents largely agree on the dates Mr Davey provided overnight care from 31 March 2023 although there is a dispute in relation to one night.  The third party affidavits submitted by Mr Davey acknowledge that his work roster changed so he could care for [Child 1] and [Child 2] but do not provide details of the actual dates of his care.  The Tribunal is satisfied, based on the evidence provided, that Mr Davey was providing a level of care for [Child 1] and [Child 2] that is more than the existing percentages of care reflected in the assessment.

12. Taking into account the differences in the nights of care provided by each parent the Tribunal is satisfied that Mr Davey provides 23 per cent care and Ms Drewry provides 77 per cent care of [Child 1] and [Child 2].

13. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 10 per cent care to Mr Davey and 90 per cent care to Ms Drewry.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentages of care and a change in the percentages of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

14. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Davey and Ms Drewry under section 50 of the Act.

2. The Tribunal finds that Mr Davey provides 23 per cent care and Ms Drewry provides 77 per cent care of [Child 1] and [Child 2] from 31 March 2023.

Date of effect of new care percentage determinations

1. The Tribunal finds that Mr Davey notified Child Support of the change in care on 24 April 2023.  As this is less than 28 days after the change occurred on 31 March 2023, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 31 March 2023.

Other care matters

1. The Tribunal notes that on 8 June 2023 Child Support made the decision to reflect that Mr Davey provides 50 per cent care of [Child 1] and [Child 2] and Ms Drewry provides 50 per cent care from 28 April 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Davey provides 23 per cent care of [Child 1] and [Child 2] and Ms Drewry provides 77 per cent care from 31 March 2023.