Davidsen and Davidsen (Child support)

[2021] AATA 3351

Davidsen and Davidsen (Child support) [2021] AATA 3351 (29 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021464

APPLICANT:  Ms Davidsen

OTHER PARTIES:  Child Support Registrar

Mr Davidsen

TRIBUNAL:Member T Bubutievski

DECISION DATE:  29 June 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Davidsen’s care percentage is 27% from 21 April 2020. This decision takes effect from 22 December 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations 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. This review concerns the care percentages used in a child support assessment.

2. Ms Davidsen and Mr Davidsen have a son. Until 20 April 2020 he was recorded as being in the care of Ms Davidsen and Mr Davidsen was the parent who was required to pay child support. From 21 April 2020 their son was recorded as being 100% in the care of Mr Davidsen.

3. On 21 December 2020 Ms Davidsen advised Services Australia – Child Support (the Agency) that although their son had moved to live with his father in April 2020, she had care of him for 142 nights between 1 January 2020 and the date of her call. She said that Mr Davidsen was likely not to dispute this information. The Agency contacted Mr Davidsen to advise him of this information and on 21 December 2020 Mr Davidsen advised the Agency that he had no evidence about the care arrangements but that what Ms Davidsen had advised could be accurate. The Agency has recorded that Mr Davidsen said that what Ms Davidsen had said would just need to be accepted.

4. On 22 December 2020 the Agency decided to record their son as being in the care of Mr Davidsen for 57% of the time and Ms Davidsen for 43% of the time from 22 April 2020. As Ms Davidsen had advised of the change of care more than 28 days after it had occurred, this change only took effect from the date that she advised the Agency, 22 December 2020.

5. Mr Davidsen lodged an objection to that decision, and said that Ms Davidsen had only had care of their son for three weeks between 22 April 2020 and 24 December 2020 although she had him from 26 December 2020 to 25 January 2021. On 13 April 2021 the Agency allowed the objection and reinstated a care percentage of 100% to Mr Davidsen from 21 April 2020.

6. On 10 May 2021 Ms Davidsen made an application to the Social Services and Child Support Division of this Tribunal for a review of that decision.

7. The application was heard in Sydney on 29 June 2021. Both parties were to attend this hearing, but on the day before the hearing Mr Davidsen contacted the Registry and advised that he did not wish to attend the hearing. He was not available at the scheduled hearing time and the Tribunal proceeded in his absence. Ms Davidsen gave sworn evidence by telephone. In addition to oral evidence, the Tribunal had regard to documents provided by the Agency (folios 1 to 154).

ISSUES

1. The issues the Tribunal must decide are:

   ·whether the care pattern for the child changed such that the previous care percentages should be revoked; and

   ·the care percentages that should be used and the date from which they should apply.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). In the usual course of events, the Agency (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The various levels of care are defined in section 5 of the Assessment Act. The rate of child support payable by a person is dependent upon both their percentage of care and their cost percentage set out in section 55C of the Assessment Act.

3. The Agency makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Agency to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

4. Care percentages must be revoked under section 54F of the Assessment Act if:

   ·the care of a child that is actually taking place does not correspond with a person’s existing percentage of care for the child; and

   ·the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

5. Sections 49 and 50 require the Registrar, or this Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

6. The date of effect of any revocation of care percentages, or changes to the percentages used, depends on when the Agency was notified of or otherwise became aware of the change. A change in care takes effect on the day that it occurred if the Agency is notified within 28 days of that change, otherwise it takes effect on the date of notification (subsection 54F(2) of the Assessment Act).

Was there a change to the care pattern for the child?

1. Ms Davidsen explained that they had previously had court orders made in 2014 which said that their son was to reside with her and spend time with his father in the school holidays. As their son has gotten older Ms Davidsen and Mr Davidsen have been more flexible in their arrangements to suit what he would prefer to do but followed care that was loosely modelled on the court orders.

2. On 26 March 2020 their son went to stay with his father. This was because he was not at school due to COVID-19, so it was easy for him to go to visit. Ms Davidsen said that the length of the visit was originally open-ended but they all expected it would be at least three weeks. In late April 2020 her son told her that he wanted to live with his father and go to school there. Ms Davidsen said that this arrangement commenced, but that due to the pandemic she had care of their son for “big chunks of time”. Ms Davidsen explained that their son films videos for [social media platform], and that he filmed these on her phone. She said that her phone date and time stamps each of the videos and provides a location, and that it can be clearly seen that they were taken in her lounge room.

3. Ms Davidsen said that she had been distressed by the statement that she had only had care of their son for three weeks between April and December 2020, as it was not true. Further, she said that she and Mr Davidsen organise pick-ups and drop-offs for their son via text messages and she had text messages to support her calculated nights. Ms Davidsen said that by using her son’s videos and text messages between herself and Mr Davidsen about pick-ups and drop-offs she had calculated that she had care of their son for 134 nights between 1 January 2020 and 31 December 2020.

4. In his objection, Mr Davidsen had provided partial diary entries indicating where their child had been at certain times. It was apparent to the Tribunal from the other items listed in the diary that this diary did not belong to Mr Davidsen. Ms Davidsen said that the diary appears to belong to Mr Davidsen’s mother, with whom he resides. The Tribunal had hoped to ask Mr Davidsen some questions about the information in the diary at the hearing, but as he did not attend, it was unable to do so. For example, the care arrangements in place prior to April 2020 were that their son was in the primary care of Ms Davidsen. The diary indicates that the child was in the care of Mr Davidsen for one night in February, being 15 February 2020, but this could easily be incorrectly read that the child was in the care of Ms Davidsen for only one night that month. There is then a notation which says that the child was “home” on 26 March 2020. From the evidence, it appears that this is when the child went to his father for the open-ended visit, not when he went “home” to Ms Davidsen. Care is again recorded for two nights on 5 and 6 June 2020 (this appears to indicate that the child was with Ms Davidsen). On 19 August 2020 it is recorded that the child was going to Traralgon, which is where Ms Davidsen lives. On 31 August 2020 it says that the child came home, but there is a cross placed next to this notation. Ms Davidsen said that their son did come to stay with her on 19 August 2020 but did not return to his father until 2 September 2020. She said that the diary misses many care events and is only a partial record.

5. The Tribunal notes that at the time Mr Davidsen was asked about the advice Ms Davidsen had provided about the change of care in December 2020, he said that he had no records and that the advice given by Ms Davidsen could well be accurate. There is a considerable difference between Ms Davidsen’s advice that she had 142 nights of care and Mr Davidsen’s advice that she had care of their son for three weeks. The Agency put to Mr Davidsen that Ms Davidsen had had care of their son for almost half of the time, and he did not dispute this. If she had genuinely only had care for 21 nights it seems unlikely that Mr Davidsen would not have said more about the accuracy of her report. Further, the diary produced does not belong to Mr Davidsen, and does not appear to completely reflect the care events that occurred.

6. Ms Davidsen advised the Tribunal that she in fact incorrectly calculated her nights of care prior to her advice to the Agency, and she had 134 care nights in 2020. Ms Davidsen said that it was the fact that she was being reflected as having had no care which really bothered her, and that she was aware that because she had taken so long to advise the Agency of the change it could not be backdated anyway.

7. Ms Davidsen acknowledged that 2020 was an unusual situation because of the pandemic. She had more care of her son than she otherwise would because he was not at school. The care arrangements have changed again in 2021. She said that it is essentially the reverse of the court orders, in that their son is living with their father and she has care in the school holidays and around one weekend per month. She said that between 1 January 2021 and 7 July 2021 (the end of the current school holidays) her care nights total 57 and that she was confident that she would have around 82 nights between 1 January 2021 and 31 December 2021.

8. There is no dispute that there was a change in the pattern of care for their son. Ms Davidsen has told the Agency that this commenced on 22 April 2020 and Mr Davidsen has told the Agency that this commenced on 26 March 2020. Both parents agree that on 26 March 2020 their son went to spend time with his father because he was able to do so as a result of the pandemic. The Tribunal accepts that this was intended to be a visit rather than a change of residence and it only subsequently became a change of residence, and therefore a change of care. The Agency has accepted that the care of their son changed to Mr Davidsen being the primary carer from 21 April 2020. Ms Davidsen has said that it occurred from 22 April 2020. While this is essentially splitting hairs, the Tribunal must fix upon the date that this change occurred and as Mr Davidsen appears to have promptly advised the Agency of a change from 21 April 2020, while Ms Davidsen only advised of a change some eight months later, the Tribunal accepts this change of care occurred on 21 April 2020.

9. The next issues before the Tribunal are the care arrangements from 21 April 2020 onwards; the extent to which Ms Davidsen had the care of their son; and whether or not that care can be considered to be in a pattern.

10. The Tribunal accepts that Ms Davidsen had regular and frequent care of their son between April 2020 and December 2020. Due to the pandemic, this care was not necessarily in a regular pattern, but the Tribunal can see that there was a pattern of Ms Davidsen having some nights of care each month and some blocks of several nights, such as the period between 19 August 2020 and 2 September 2020. A pattern of care does not mean that the care must be on a particular night per week or per month, but that it is regular and reliable. This is particularly the case with older children, who have more of a say about where they spend their time.

11. If the Tribunal accepts that Ms Davidsen had care of their son for 134 nights between 1 January 2020 and 31 December 2020, allowing for the fact he was in her primary care for the earlier part of the year, but in the care of his father in the January school holidays, around 70 nights of the care occurred between 21 April 2020 and 31 December 2020 (253 nights). This would give Ms Davidsen a care percentage of 27% over the relevant period under the rounding rules contained in the Assessment Act.

12. On the basis of the evidence before it the Tribunal finds that there is a pattern of care for the child between 21 April 2020 and 31 December 2020. On balance, the Tribunal is satisfied that Ms Davidsen had care of the child for around 27% of the time.

Must the care percentages be changed?

1. The Tribunal finds that as there was a change of care on 21 April 2020 the care percentages could be changed from this date. Under section 54F of the Assessment Act, the Registrar must revoke a previous determination of a responsible person’s care percentage if they are notified or otherwise become aware that the care of a child that is actually taking place does not correspond with a person’s care percentage, and the new percentage of care would change the person’s cost percentage, and therefore the amount of child support that is payable.

2. In this case, Ms Davidsen’s cost percentage changed from 0% to 24% (the cost percentage for any parent who has care between 14% and 34% of the time). The previous determination must be revoked on 20 April 2020. The Tribunal decided to revoke the previous determination on 20 April 2020, and to replace it with a new determination under section 50 of the Assessment Act that the care percentage is 73% to Mr Davidsen and 27% to Ms Davidsen from 21 April 2020.

3. Although these are the care percentages which apply, the increase in Ms Davidsen’s care percentage cannot take effect in this assessment prior to 22 December 2020 as Ms Davidsen notified the Agency of this care change well outside the 28-day notification period. The reduction in Mr Davidsen’s care percentage takes effect from the day the care changed (subsection 54F(3)(b)(ii)).

4. It is clear that the care arrangements have subsequently changed again in the 2021 calendar year. The Tribunal asked Ms Davidsen if she had notified the Agency of this change when it occurred, and she confirmed that she had not. The Tribunal has no information before it to determine whether or not Mr Davidsen has notified the Agency that he has a care percentage of less than 100%. On the basis of Ms Davidsen’s evidence that she expects to have 82 nights of care in 2021 she would have a care percentage of 22% which means her cost percentage remains unchanged, so the assessment which will issue as a result of this decision is still technically correct for the current calendar year. Nonetheless, both parents should ensure that their care percentages are reflected correctly in the assessment, and that they advise the Agency of any changes within 28 days.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Davidsen’s care percentage is 27% from 21 April 2020. This decision takes effect from 22 December 2020.