Dawsey and Dawsey (Child support)

[2022] AATA 4671

Dawsey and Dawsey (Child support) [2022] AATA 4671 (1 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024195

APPLICANT:  Mr Dawsey

OTHER PARTIES:  Child Support Registrar

Mrs Dawsey

TRIBUNAL:Member J Prentice

DECISION DATE:  01 November 2022

DECISION:

The decision under review is affirmed.

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 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

BACKGROUND

1. As relevant to this application, Mr Dawsey and Mrs Dawsey are parties to a child support case registered with Services Australia - Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] (born June 2005), [Child 2] (born July 2007), [Child 3] (born August 2009) and [Child 4] (born May 2013). This application concerns a single decision of the CSA about the recorded care for [Child 4] (only).

2. The pre-existing percentages of care recorded by the CSA for [Child 4] were 5% to Mr Dawsey and 95% to Mrs Dawsey when on 22 February 2022, Mr Dawsey contacted the CSA and advised a change to the care arrangement for [Child 4] from 4 February 2022 stating he now had 14% care and Mrs Dawsey had 86%. 

3. On 24 May 2022 the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 14% to Mr Dawsey and 86% to Mrs Dawsey from 18 February 2022.

4. On 26 May 2022 Mrs Dawsey objected to this decision and on 29 June 2022, a CSA objections officer allowed the objection and decided that there was no change to the likely pattern of actual care such that the recorded percentage of care determinations for [Child 4] remained at 5% to Mr Dawsey and 95% to Mrs Dawsey.

5. On 1 July 2022, Mr Dawsey lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating that he disagreed with the CSA’s decision.

1. The hearing of the application was held on 13 September 2022.  Mr Dawsey and Mrs Dawsey both participated in the hearing by conference telephone and gave evidence on affirmation.  The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Dawsey and Mrs Dawsey and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 222) and a document provided by Mr Dawsey prior to hearing (marked Exhibit A, page A1) which has also been taken into account. Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Mr Dawsey and Mrs Dawsey which were raised in evidence and which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

1. The statutory provision relevant to this review are contained in the Child Support Assessment Act 1989 (the Act).  Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

10.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

11.  Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

12.  Existing care percentages generally apply until they are revoked, which will generally occur when the Child Support Registrar is notified or becomes aware of a change in the pattern of care.

13.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances and is generally the 12-month period starting from the date the actual care of the child began or changed.

14.  Topic 2.1.1 of the Guide recognises that determining the care over a shorter or longer care period may be more appropriate and that the specific circumstances of each case will be considered to determine the appropriate care period.

15.  The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

16.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person. This is the usual basis upon which care is assessed.

17.  Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

18.  Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or 50 of the Act.

19.  The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

ISSUES

20.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Should the pre-existing percentage of care determinations in relation to [Child 4] for Mr Dawsey and Mrs Dawsey be revoked? And, if so,

(b)What are the new percentage of care determinations of [Child 4] to be recorded for Mr Dawsey and Mrs Dawsey? And,

(c)What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

21.  Relevant documentation and evidence provided to the CSA included as follows:

(a)On 25 March 2022 – Mr Dawsey advised the CSA that [Child 4] had stayed with him from 4 to 8 February, and then every Friday onwards from that time.

(b)On 25 March 2022 – Mrs Dawsey advised the CSA that since 4 February 2022 [Child 4] had stayed with Mr Dawsey on five occasions.  Mrs Dawsey advised that those occasions were 18 and 25 February and 4 and 18 March; and that she had picked [Child 4] up early on 4 and 11 February and [Child 4] did not stay with Mr Dawsey on 11 and 25 March and 8 and 15 April.

(c)On 12 May 2022 – Mr Dawsey advised that [Child 4] “comes nearly every Friday night or sometimes Saturday night” and nominated the dates of 11, 18, 26 February 2022 and 3 and 18 March 2022.

(d)On 26 May 2022 – Mrs Dawsey told the CSA that while [Child 4] may go to Mr Dawsey on a Friday “nine out of ten times” she goes to pick him up because he does not stay the night.  Mrs Dawsey said that [Child 4] had only stayed one weekend with Mr Dawsey, being 29 April 2022, and there were no future plans.

(e)On 27 May 2022 – Mr Dawsey told the CSA that he disagreed with Mrs Dawsey’s evidence.

22.  Mr Dawsey told the Tribunal that with respect to the care percentage determinations CSA “eventually got it right but then they panicked and changed their mind and have since apologised”, noting that there has been a new care arrangement starting from 1 July 2022.

23.  Mr Dawsey informed the Tribunal that he has had care of [Child 4] for one night a week since February 2022 and that has been the ongoing pattern of care since that time.

24.  Mrs Dawsey disagreed that [Child 4] stayed overnight with Mr Dawsey for one night a week.  Mrs Dawsey told the Tribunal that [Child 4] can go to his father’s whenever he wants – which is usually a Friday or Saturday night.  However, Mrs Dawsey claims that [Child 4’s] overnight stays with his father are not as much as one night a week and while [Child 4] does visit his father, she usually picks him up and brings him home for overnight care.

25.  Mrs Dawsey told the Tribunal that her records indicate that [Child 4] stayed overnight with his father for one night in February 2022; two nights in March 2022; two nights in April 2022; no nights in May 2022; and one night in June 2022.

26.  Both parties agreed that from July 2022 [Child 4] increased the number of nights he stayed in Mr Dawsey’s care overnight.  However, Mrs Dawsey noted that this was because the school holidays occurred in July.  Mrs Dawsey said that she does not consider that there has been a pattern to the care arrangements and that there is no formal care arrangement between the parties.

27.  Mrs Dawsey advised the Tribunal that although [Child 4] is only nine years old, both parties allow him to decide where he stays overnight – but not on school nights – which he spends in the care of Mrs Dawsey.

28.  While the parties dispute the number of times [Child 4] stayed overnight with Mr Dawsey, the Tribunal is satisfied that [Child 4] does stay overnight with Mr Dawsey.  However, the evidence also included that [Child 4] often spends time with Mr Dawsey and returns to Mrs Dawsey overnight.

29.  The Tribunal is satisfied that Mr Dawsey’s overnight care of [Child 4] did increase, but not to the extent contended by Mr Dawsey. Mr Dawsey’s and Mrs Dawsey’s evidence of the extent of overnight care by Mr Dawsey is inconsistent and contradictory and there is no consensus.

1. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 4 February 2022.  Mandatory revocation pursuant to section 54G does not apply because Mr Dawsey was not previously having at least 14% care.

2. For there to be mandatory revocation of the pre-existing percentages of care and application of new percentages of care pursuant to section 54F of the Act, Mr Dawsey’s overnight care would have to increase to a regular pattern of at least one night per week and although the Tribunal accepts that Mr Dawsey’s care of [Child 4] did increase, it is unable to be satisfied on the evidence that the increase was at least to the extent of a regular pattern of at least one overnight care of [Child 4] to Mr Dawsey per week such that section 54F of the Act also does not apply. In reaching this conclusion the Tribunal accepts Mr Dawsey’s evidence that [Child 4] visited at least once per week; however, is not satisfied that [Child 4] stayed overnight at least once per week. Further, the Tribunal is not satisfied that the evidence supports a departure from the usual assessment of care being based on overnight care.

3. The Tribunal is further not satisfied in the circumstances that the pre-existing percentages of care should be revoked pursuant to section 54H of the Act.

4. It follows that although satisfied that [Child 4] was spending more time with Mr Dawsey, the Tribunal is not satisfied that there was any change in the overnight care of [Child 4] such that the pre-existing percentage of care determinations are required to be revoked.

Conclusion

34.  As this is the same decision as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

35.  The Tribunal observes that Mr Dawsey advised that a subsequent change in care of [Child 4] to him of one night per week has been accepted by the CSA from 1 July 2022 and that “they eventually got it right”.

36.  As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes with a separate decision required by the CSA in relation to any such subsequent notification.

37.  The CSA papers before the Tribunal do not include reference to any such subsequent notification and decision. The Tribunal’s review is limited to Mr Dawsey’s 22 February 2022 notification, and for the Reasons canvassed the Tribunal has been unable to be satisfied that a change of care of [Child 4] occurred from 4 February 2022 requiring the then pre-existing percentage of care determinations to be revoked and the application of new percentage of care determinations. Subsequent increases that may have occurred from 1 July 2022 do not form part of the Tribunal’s consideration in relation to this application.

DECISION

The decision under review is affirmed.