Denney and Denney (Child support)

[2018] AATA 4150

Denney and Denney (Child support) [2018] AATA 4150 (24 September 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014715

APPLICANT:  Mr Denney

OTHER PARTIES:  Child Support Registrar

Ms Denney

TRIBUNAL:Member M Baulch

DECISION DATE:  24 September 2018

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that there is to be no change to the care percentage determinations applying in respect of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – refusal to revoke the existing determination of percentage of care – 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 application for review is about the child support assessment applying in respect of [Child 1], who is the child of separated parents; Mr Denney and Ms Denney.

2. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number and ages of children and the percentages of care. 

3. From 8 November 2013, the Department of Human Services – Child Support (the Department) has made various child support assessments applying in respect of [Child 1] and another child who is now over 18 years.  Since 20 August 2015, those assessments have been based upon Mr Denney having 42% care of [Child 1] and Ms Denney having 58% care of [Child 1].

4. On 5 March 2018, Ms Denney contacted the Department to advise that there had been a change to the care arrangements applying for [Child 1], such that she had 65% care of [Child 1] since 1 December 2017.  On 22 May 2018, a departmental employee considered the matter and decided that there should not be a change to the care percentages applying to the child support assessment.

5. Ms Denney objected to that decision and, on 26 July 2018, that objection was allowed.  The objections officer decided that there should be a change to the care percentages applying to the child support assessment from 5 March 2018 such that Ms Denney had 69% care of [Child 1] and Mr Denney had 31% care (the decision under review).  It is from that decision that Mr Denney has applied to this tribunal seeking an independent review.

6. A hearing into the application for review was held by the tribunal on 24 September 2018.  Mr Denney and Ms Denney both discussed the application for review with the tribunal by conference telephone and gave evidence during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

7. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 157, copies of which both parties confirmed they had received prior to the tribunal hearing.  The tribunal also had regard to written submissions lodged by Mr Denney with the tribunal, labelled A1 and A2, copies of which Ms Denney confirmed she had received

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what should be the care percentages applying to the child support assessment in respect of [Child 1]?

CONSIDERATION

1. Part 5 of the Act provides that the Registrar must make an administrative assessment of child support in accordance with the statutory formula set out in that Part.  The statutory formula requires that there be a determination as to the percentage of care given by each parent in respect of each child to whom the child support assessment relates.

2. Sections 49 and 50 of the Act 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). 

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Department is notified, or otherwise becomes aware, that the care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act prescribes how to calculate a parent’s cost percentage based upon their percentage of care for their children.

4. Unless an interim care determination applies under section 51 of the Act, the Registrar will determine the pattern of care based upon the extent of the actual pattern of care that a parent has of their child. 

5. In this case, both parents advised me that they had entered into a written agreement in relation to the care arrangements for their children some seven to eight years ago.  Under that agreement Mr Denney had care of [Child 1] on each Wednesday and Thursday night, and each alternate Friday and Saturday; equating to three nights care each week.

6. The extent to which this care arrangement has been followed in recent times is in dispute.  Ms Denney stated that the variations from the original pattern of care are significant and constitute a change in the pattern of care.  Mr Denney submitted that many of the instances when Ms Denney claimed [Child 1] was in her care, [Child 1] was actually with him and there has been no substantive change to the pattern care.  Ms Denney did not dispute that the care arrangements had largely reverted to the previous pattern of care from March 2018.

7. For the purposes of determining whether or not variations to an existing pattern of care constitute a new pattern of care, I had regard to the Department’s own policy on what constitutes a change in a pattern of care.  The Department’s policy set out in the Child Support Guide at 2.2.2 states:[1]

   [1] Child Support Guide, Guides to Social Policy Law, Department of Social Services, version 4.35.

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

   ·the parent misses 3 care events in a row,

   ·the parent misses 5 events of care out of 8, or

   ·the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

   See 2.2.3 for more information about below regular care determinations.

   A care event is a night of care or several consecutive nights of care that follow a recurring pattern. For example, Friday evening to Sunday afternoon is one event, one night mid-week is an event and 5 consecutive nights is one event. Daytime care with no planned overnight stay is not generally a care event, unless it occurs over a substantial period of time and is taken into account in determining a percentage of care based on hours (2.2.1).

   If a care event is missed but substitute care occurs at another time, it is not considered as a missed event.

   I noted that a tribunal is not bound by policy as set out in the Child Support Guide. However, in Drake and Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency of decision-making under the Act, considered that this policy should be applied.

8. While the policy quoted above refers to an example of when care falls below 14%, I was of the view that similar principles should be applied when determining whether or not there has been a change to the pattern of care in respect of [Child 1].

9. Ms Denney nominated 1 December 2017 as the date from which the pattern of care changed when she contacted the Department on 5 March 2018.  Putting aside the factual disputes about when Mr Denney has missed having care of [Child 1], and focusing on the evidence taken from Ms Denney’s own records, I was unable to identify that three care events in a row had been missed or that five care events out of eight had been missed between 1 December 2017 and 5 March 2018. 

10. If isolated events when care does not proceed are ignored, I was not persuaded that Mr Denney had missed at least 20% of his care events between 1 December 2017 and 5 March 2018.  Noting that it is undisputed that the usual care arrangements resumed from March 2018, I was also not satisfied that 20% of care over a 12-month period commencing on 1 December 2017 are likely to be missed. 

11. Having considered the evidence, from which it is clear that there have been variations in care, I was not persuaded that those variations are sufficiently significant to constitute a change to the pattern of care that has applied from 1 December 2017.  I therefore concluded that the existing care percentages (42% to Mr Denney and 58% to Ms Denney) should continue to apply.

12. For these reasons, I therefore set aside the decision under review and substituted my own decision as set out below.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that there is to be no change to the care percentage determinations applying in respect of [Child 1].