Denham and Davidson (Child support)

[2020] AATA 272

Denham and Davidson (Child support) [2020] AATA 272 (9 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC017545

APPLICANT:  Ms Denham

OTHER PARTIES:  Child Support Registrar

Mr Davidson

TRIBUNAL:Member Y Webb

DECISION DATE:  09 January 2020

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 determined – 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. This review is about the percentages of care of Ms Denham and Mr Davidson in relation to one of their children (“the child”).  The child is now [age].

2. The child support case was first registered on 1 December 2013 and has been collectable by the Department of Human Services (Child Support Agency) since August 2016.

3. From 16 December 2016 the care percentages in relation to the care of the child were recorded as 56% to Ms Denham and 44% to Mr Davidson.

4. On 3 May 2019, Ms Denham contacted the Child Support Agency and notified that she was having 300 nights of care per year (83%) and that Mr Davidson was having approximately 60 nights of care per year or about four to six nights per month and that this had been occurring since 1 December 2018.

5. The Child Support Agency contacted Mr Davidson and he denied that there had been a change in the care of the child.  He stated that he was continuing to have care three nights a week from Thursday night to Sunday and for half of the school holidays.

6. On 24 June 2019, the Child Support Agency decided to reject Ms Denham’s claim that the care had changed and hence the care percentages remained at 56% to Ms Denham and 44% to Mr Davidson.

7. On 11 July 2019, Ms Denham objected to that decision.  She stated that her care of the child was more than 80%.

8. On 12 September 2019, an objections officer disallowed Ms Denham’s objection.

9. On 2 October 2019, Ms Denham requested review by the Administrative Appeals Tribunal (the Tribunal).

10. Ms Denham attended the hearing on 9 January 2020 by way of a telephone conference and gave evidence on affirmation.  Mr Davidson also attended the hearing by way of a telephone conference and gave sworn evidence.

11. The Child Support Agency provided documents relevant to this matter and they were marked as a bundle as Exhibit C1.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply unless or until a further change of care is notified and accepted).

4. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, Ms Denham and Mr Davidson did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

7. Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked. Relevant to this matter section 54F of the Assessment 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; and

   · provisions relating to the making of an interim care determination do not apply (sections 51 and 53A of the Assessment Act).

8. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring corresponded with the existing care determination.

9. In this case both parents confirmed that there were no court orders or written parenting plans in relation to the care of the child.  Therefore the Tribunal will consider the parents’ actual care of the child.

10. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

    [1] Paragraph 50(1)(a) of the Assessment Act

11. In relation to the issue of whether a change in the care had occurred, Ms Denham stated that Mr Davidson’s care of the child had decreased.  She told the Tribunal that he was only having care of the child for three or four nights a month from 1 December 2018.  She stated that she could prove this by surveillance which she had had installed at her home and which showed the child’s comings and goings from her home.  Ms Denham provided a calendar which she contended showed that Mr Davidson was not having care of the child for three nights a week and half of the school holidays.  Ms Denham referred to various expenses which she paid for the child, including clothing, entertainment, driving lessons and food expenses. She also provided copies of various text messages.   Ms Denham stated that Mr Davidson was lying about the dates that he had care of the child.  She stated that Mr Davidson does not have care of the child for three nights a week because Mr Davidson says that he is sick or that he has no money. 

12. Mr Davidson responded that he had and continues to have care of the child for three nights a week and half of the school holidays. He said that he has the care of the child on Thursday, Friday and Saturday nights every week during school terms and for half of the school holidays on a one week on/one week off basis.  He stated that he sometimes has care of the child for more than this such as at Christmas time and at Easter when he has additional care.  He stated that the only times he has not had care was when he was sick and in hospital; that was in March 2019 as indicated on his diary notes he submitted to the Child Support Agency.  Mr Davidson contended that Ms Denham does not want to pay child support and that is the reason that she is asserting that her care has increased. Mr Davidson stated that Ms Denham’s notification of a change of care in May 2019 -- but relating to the care from December 2018 - coincided with the Child Support Agency reviewing Ms Denham’s income and backdating it to January 2019. Mr Davidson stated that he believes that Ms Denham’s motivation for claiming a change of care was financial.  He told the Tribunal that he also spends money on the child.  He has bought a television, headphones and a laptop for the children and when he won a little money in May he spent that on a car for the children, including the running costs and maintenance of the vehicle.  Mr Davidson denied that he has refused to have the child on the basis that he had no money.  He stated that he organises his finances to ensure that his care of the child is taken into account.  He stated that the child’s older brother transports the child to and from Mr Davidson’s house.  Mr Davidson provided a third party statement from a friend, Ms [A], who supported his claims that he has care of the child as he described.  He also provided a diary on which he marked his asserted care of the child.  He stated that on weekends the child visits friends and family members, including his cousins.  However, he said that the child still stays at his house on Thursday, Friday and Saturday nights.

13. The Tribunal considered the available evidence.  The information provided by the parents was contradictory with Ms Denham claiming that Mr Davidson only had care of the child for approximately 60 nights per year or four to six nights per month and Mr Davidson contending that there had been no change in his pattern of care, which continued to be three nights per week in school terms and half of each school holiday.

14. Ms Denham stated that she had video surveillance which showed when the child left and returned to her home at all times but the Tribunal does not consider that this is helpful in assisting the Tribunal to ascertain where the child was staying overnight and where he was going when he left Ms Denham’s residence.  Ms Denham also did not provide a compelling reason why she waited until May 2019 to notify a change of care which she asserted occurred from 1 December 2018.  The Tribunal accepts that both parents met costs associated with the child’s expenses.  The Tribunal did not find the text messages and photographs helpful in determining where the child was residing on which nights.

15. The Tribunal accepts that there was a care event when Mr Davidson did not have care of the child and that that was due to Mr Davidson’s illness for which he was hospitalised.  There is no change in the pattern of care in circumstances where a care event is sometimes missed.  The Child Support Guide at 2.2.2 states that it will only consider that the pattern of care has changed when a parent misses three care events in a row; five care events out of eight or where the parent misses 20% of the care over 12 months.  It explains that a “care event” is a night of care or several consecutive nights of care that follow a recurring pattern.

16. On the evidence available, the Tribunal is not persuaded that Mr Davidson has missed care events to the extent that it could be said that the pattern of care has changed.  There is insufficient evidence supporting Ms Denham’s contention that there has been a change in the pattern of care.

17. In these circumstances the Tribunal finds that there has not been a change in the care of the child.

18. Hence, the Tribunal agrees with the objections officer that the care of the child remains at 56% to Ms Denham and 44% to Mr Davidson.

DECISION

The decision under review is affirmed.