Dawson and Loomis (Child support)

[2022] AATA 4003

Dawson and Loomis (Child support) [2022] AATA 4003 (1 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024617

APPLICANT:  Ms Dawson

OTHER PARTIES:  Child Support Registrar

Mr Loomis

TRIBUNAL:Member P Jensen

DECISION DATE:  1 November 2022

DECISION:

The decision under review is varied so that Ms Dawson is recorded as providing 0% care and Mr Loomis is recorded as providing 0% care for [the child] with effect from 16 November 2021.  

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – both parents no care of child – decision under review varied

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. Ms Dawson and Mr Loomis are the parents of [the child] who was born in 2006. A child support case was registered with the Child Support Agency (“the CSA”) and it recorded Ms Dawson as providing 86% care and Mr Loomis as providing 14% care for [the child] from 2010.

2. On 22 February 2022, Mr Loomis reported a change in care from 26 November 2021. Mr Loomis estimated that from that date, each parent had been providing about a couple of weekends of care per month (which would equate to an average of about two nights per fortnight or 14% care). The CSA decided to not record a change in care. Mr Loomis objected to that decision. An objections officer allowed the objection and decided to record each parent as providing 0% care from 26 November 2021. The CSA consequently terminated the child support case with effect from 26 November 2021. Ms Dawson applied to the Tribunal for further review. I heard the matter on 1 November 2022. Ms Dawson and Mr Loomis gave sworn evidence by conference phone.

3. There is no dispute that [the child] started working for [Mr A] in or around November 2021. At the hearing, Ms Dawson said she thought [the child]’s employment started in December 2021, but she was not sure of the details. In August 2022 the CSA phoned [Mr A] and he said that [the child] started working for him on a cash-in-hand basis on or about 16 November 2021 and he subsequently put him on the books. I consider [Mr A]’s evidence to be the best direct evidence on point. I find that [the child] started working for [Mr A] on 16 November 2021.

4. Mr Loomis provided the CSA with a letter from [Mr A] dated 23 May 2022 which stated, in part:

   [The child] is learning to become [an Occupation], and is going extremely well. He also assists as a [Job task]. [The child] is mature for his age, and follow [sic] instructions very well. […] [The child]’s work involves a lot of time travelling and staying away from home. He has adapted to this very well. Often the travel away from home work can go for weeks at a time.

5. In May 2022, Mr Loomis applied for a reduction in his rate of child support payable on the basis of [the child]’s income. Mr Loomis provided [the child]’s payslips for the six-week period from 11 April 2022 to 22 May 2022. His gross payments were $990, $935, $480, $1,163, $1,030 and $1,030. Ms Dawson submitted that [the child]’s work was seasonal and in support of that submission she provided some evidence that he had earned significantly less in the non-consecutive weeks commencing 27 June 2022, 11 July 2022 and 25 July 2022. The CSA concluded that [the child]’s income allowed him to contribute to his own self-support and it was appropriate to vary Mr Loomis’s rate of child support payable to $0. The decision-maker stated: “I must now give consideration as to when the changes should come into effect. I propose to set my decision from 22 April 2022, which is the earliest date I can use which will remove Mr Loomis’ arrears without placing Ms Dawson into a significant over payment of child support.”

6. At the hearing, Ms Dawson said she understood the [Occupation] season to be “over the summer period”, adding that Mr Loomis was better placed to give evidence on that issue. She said she thought the season was “relatively quick”. On 1 September 2022, she phoned the CSA and it noted:

   I asked her how long is “seasonal” and Ms Dawson advised 3 months. I asked her where [the child] lived during the 3 months of seasonal work. Ms Dawson confirmed that [the child] stayed wherever the job was but he came home to her every weekend. […] 2 nights per week.

7. Mr Loomis agreed that the [Occupation] season commenced from “roughly the start of summer” but he said it continues for more than three months.

8. In response to my questions, Ms Dawson acknowledged that [the child] was probably earning about $1,000 per week during the summer season. She said she had not been aware, at that time, that he had been earning that much money. She said she had asked him how much he was earning and he had replied, “a few hundred dollars.”

9. To demonstrate her provision of care, Ms Dawson provided the CSA with records of her transfers of money to [the child]. The first four transfers were $10 on 7 December 2021, $15 on 13 December 2021, $30 on 30 January 2022 and $50 on 2 February 2022. [The child] was required to repay the fourth payment. With respect, it was thoughtful of Ms Dawson to make those transfers but they would have been of minimal financial significance for [the child] given his actual earnings. Ms Dawson said she had also paid [the child]’s phone bill which was $80 per month.

10. The evidence is not clear concerning the average number of nights per week that [the child] spent with Ms Dawson once he started working. On 1 September 2022 the CSA recorded her as saying it was “every weekend – 2 nights per week”. At the hearing she said it was at least two to three nights per week. She acknowledged that she had not kept any contemporaneous records.

11. On 31 August 2022 the CSA phoned [Mr A] and noted:

    [Mr A] explained they work away quite a lot, as they work all over the place. Sometimes [the child] may be home for nil days in the week and then he may be home for five days. [Mr A] stated when not working [the child] goes home to Ms Dawson’s place as [Mr A] drops there [sic].

12. Previously, [Mr A] had stated: “Often the travel away from home work can go for weeks at a time.” Overall, the evidence suggests that during the busier on-season, [the child] would spend, on average, no more than two nights per week with Ms Dawson, and possibly considerably less. If Ms Dawson were providing an average of two nights of care per week, and if that fairly reflected her overall provision of care, it would equate to 2 / 7 = 28% care. There is no dispute that Mr Loomis was providing less care than Ms Dawson. On that view, the child support case would end when the change in care occurred because neither parent was providing at least 35% care: see subsection 12(2AA) of the Child Support (Assessment) Act 1989 and 2.10.3 of the Child Support Guide.

13. However, I am not persuaded that the nights per week that [the child] spent with Ms Dawson would be a fair reflection of her provision of care for child support purposes. There is a threshold question as to whether [the child] remained in anyone’s care. When he started full‑time employment on 16 November 2021 he commenced a job that gave him financial independence and the job required him to work away from home for considerable periods. I accept [Mr A]’s statement that [the child]’s travel-away-from-home work often went for weeks at a time. For those reasons, I find that when [the child] commenced full-time employment on 16 November 2021 he ceased to be in either parent’s care. The objections officer concluded that [the child] ceased to be in either parent’s care from 26 November 2021. That decision will be varied slightly.  

DECISION

The decision under review is varied so that Ms Dawson is recorded as providing 0% care and Mr Loomis is recorded as providing 0% care for [the child] with effect from 16 November 2021.