Debney and DeSanto (Child support)

[2022] AATA 1700

Debney and DeSanto (Child support) [2022] AATA 1700 (14 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022819

APPLICANT:  Ms Debney

OTHER PARTIES:  Child Support Registrar

Mr DeSanto

TRIBUNAL:Member J Prentice

DECISION DATE:  14 April 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 – existing percentage of care determinations revoked and new determinations made – decision under review affirmed

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 Debney and Mr DeSanto are the parents of [Child 1] (born 2014). The pre-existing care for their daughter was recorded by the Child Support Agency (CSA) as being 100% to Ms Debney and 0% to Mr DeSanto from 6 February 2018.

2. On 15 July 2021 Mr DeSanto notified the CSA of a change in the care arrangements such that Ms Debney had 64% and Mr DeSanto had 36% care of [Child 1] from 15 April 2020.

3. On 26 September 2021 the CSA rejected Mr DeSanto’s claim and determined that the care percentage continued to be recorded as 100% for Ms Debney and 0% to Mr DeSanto in relation to the care of [Child 1].

4. The CSA documents state that on 27 September 2021 Mr DeSanto lodged an objection to the care decision.

5. On 29 October 2021 the CSA partly allowed the objection and determined that care percentages of 71% for Ms Debney and 29% for Mr DeSanto applied in relation to the care of [Child 1] from 15 April 2020. As Mr DeSanto had notified the change of care on 15 July 2021, more than 28 days after the change occurred on 15 April 2020, the recorded increased percentage care (from 0%) to 29% to Mr DeSanto had an effective date of 15 July 2021 (the date of notification); however the decreased percentage care (from 100%) to 71% to Ms Debney took effect from 15 April 2020 (the date of the care change).

6. On 25 November 2021 Ms Debney sought review by the Administrative Appeals Tribunal (the Tribunal).

7. At a hearing on 10 March 2022 the Tribunal heard sworn evidence from Ms Debney and Mr DeSanto who both participated by conference telephone. In reaching its decision, the Tribunal has considered that evidence, together with the statements and comments provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

8. Ms Debney provided additional documents to the Tribunal after the hearing which have also been taken into account, and copies of which have been provided to Mr DeSanto. The additional documentation provided by Ms Debney supported her evidence at hearing and have been provided to Mr DeSanto for his information. However, as the additional documents from Ms Debney did not raise any new evidence or new matters, it is not necessary for Mr DeSanto to respond further.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). That 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 CSA’s Child Support Guide (the Guide) where relevant. The Tribunal is not bound by the CSA’s policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

1. The scheme of the Act is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

2. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.”

3. The “care period” will ordinarily be the period of 12 months from the date on which the actual care of a child began or changed. The same care arrangements will then be assumed to apply for the subsequent 12-month period, unless the CSA is otherwise advised, and the requirements of the legislation are satisfied such that a new care decision is made.

4. Section 50 reflects the view that point-in-time care decisions are made on the basis of what has happened up until the change in care is notified 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 pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

5. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·      the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·      the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child. If a new percentage of care (under the applicable provisions) were to be determined, it would not be the same as the existing percentage of care.

16.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, so that a new care percentage decision or decisions can then be considered and made if appropriate.

17.Generally speaking, if a change of care is notified to the CSA more than 28 days after it occurs, the new percentage of care determination for the person with decreased care applies from the date of the change however the new percentage of care determination for the person with increased care only takes effect from the date of notification.

1. Ms Debney told the Tribunal that the court orders of 22 March 2018 outlined the pattern of care with respect to their daughter [Child 1], and they took into account the step up in care that would occur as [Child 1] became older.

2. Ms Debney said that she had not informed the CSA when the change of care occurred as the CSA had a copy of the court order and she believed that they would take those arrangements into account at the appropriate time.

3. However, Ms Debney told the Tribunal that she considers that the pattern of care for [Child 1] by Mr DeSanto from 15 April 2020 was considerably less than the 35% he claimed; and less than the 29% calculated by the CSA based on the court order.

4. Ms Debney explained to the Tribunal that during the assessment by the CSA and the many telephone calls from them, it was a particularly difficult time for her with the combination of being in lockdown (with most of Victoria) and at home with a home-schooling student and two other children under the age of four; along with other obligations; she didn’t always manage to respond to the CSA’s request for evidence in the time frame they requested.  Ms Debney advised that she did provide the information verbally at the time of the calls, but it often took longer to submit written details.

5. Mr DeSanto informed the Tribunal that although he initially made a claim that he had 36% care of [Child 1], he agrees with the CSA’s decision of 29% care to him and 71% care to Ms Debney.  Mr DeSanto told the Tribunal that he also agrees with Ms Debney in that he believes the CSA has made a miscalculation; however he noted that the court order with which they agreed in 2018 relied on the CSA to make a calculation and decision on the care percentage and as such he would support the CSA’s decision.

6. In response to the Tribunal’s question as to why he took so long to notify the change in care, Mr DeSanto advised that he had not checked his documents and, like Ms Debney, he assumed the CSA would make adjustments at the appropriate time.

7. Both parents agree that the care should be three nights per fortnight and 50% of the school holidays to Mr DeSanto.  However, Ms Debney disagreed with Mr DeSanto’s claims that he had additional nights’ care.  Indeed, Ms Debney considers that the care provided by Mr DeSanto from April 2020 had been inconsistent and he had not made up the nights he missed. 

8. Both parties agreed that the court orders indicate that Mr DeSanto should provide care comprising 50% of the school holidays (7 nights x 6 weeks = 42 nights); and three days a fortnight (3 nights x 20 = 60 nights); as well as 40 x 4 hours = 160 hours = 6 nights. This is a total of 108 nights. 

9. In the evidence provided by Ms Debney she considered that for 2020 Mr DeSanto should have provided 93.5 nights care (but instead provided a total of 72); and in 2021 should have provided care for 102.7 nights (but instead provided 85.1).  Mr DeSanto’s evidence disagrees with this calculation.  Ms Debney detailed 19 nights that [Child 1] did not spend in Mr DeSanto’s care in 2020. The Tribunal also notes that during this period the state of Victoria had several extended lockdown periods as a result of the COVID pandemic which would have impacted care arrangements.

10. The Tribunal notes that both parties submitted additional material with respect to the evidence they gave at the hearing.  In essence Ms Debney provided more detailed information in support of the evidence she provided as set out in paragraph 26 of these Reasons; and the page references for the CSA material to which she referred during the hearing.  The Tribunal has taken that information into account. Mr DeSanto provided a copy of the new parenting orders and associated material.

11. The Tribunal has also taken into account Ms Debney’s evidence that Mr DeSanto has missed some nights of care. The Tribunal accepts that ad hoc last-minute changes in care occur from time to time.  However, as recognised by the Guide to Child Support at topic 2.2.2 minor departures from the normal pattern of care do occur. The Guide relevantly provides as follows:

    What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
    …

    Not all changes in care will result in the calculation of a different care percentage. 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.

12. The Tribunal is satisfied that these types of minor variations in pattern do not amount to a permanent change in the pattern of care established by the orders.  Having regard to all matters, the Tribunal is satisfied that the general pattern of care of [Child 1] was not inconsistent with the court order.

13. The Tribunal notes that minor variations in a pattern of care that would otherwise occur are not unlikely in circumstances that arose as a result of the COVID-19 lockdowns.

14. The Tribunal accepts that both parents wish to comply with the court orders.  However events do occur which can impact arrangements and the law recognises that such minor variations do occur.  The Tribunal is satisfied that the intended pattern of care was in line with the court orders of 108 nights’ care to Mr DeSanto, which is the equivalent of 29% care.

15. As this is the same conclusion reached by the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.