Diver and Child Support Registrar (Child support)

[2020] AATA 1765

Diver and Child Support Registrar (Child support) [2020] AATA 1765 (10 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017894

APPLICANT:  Mr Diver

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member R King

DECISION DATE:  10 February 2020

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alteration is made to the decision:

The decision is altered to read: DECISION DATE               10 February 2020

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017894

APPLICANT:  Mr Diver

OTHER PARTIES:  Child Support Registrar 

TRIBUNAL:Member R King

DECISION DATE:  10 February 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of [Child 1] is recorded as 93% to Mr Diver and 7% to [Ms A], with effect from 3 May 2014.

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 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. Mr Diver and [Ms A] are the parents of [Child 1] (DOB [August 2003]).  Mr Diver and [Ms A] separated more than 10 years ago and Mr Diver was granted custody of [Child 1] under a court order.  As part of an administrative assessment, the Child Support Agency (CSA) determined that Mr Diver had 93% of the care of [Child 1], with effect from 3 May 2014.

2. On 5 June 2019, [Ms A] contacted the CSA and advised that Mr Diver was no longer providing care for [Child 1].  After speaking with [Ms A] and Mr Diver, the CSA decided that [Child 1] was not spending nights with either parent, but rather was staying with and being provided care by one or more third parties.  On 19 September 2019, the CSA recorded [Child 1]’s care as 0% with Mr Diver and 0% with [Ms A], with effect from 30 May 2019.

3. On 20 September 2019, Mr Diver objected to the care percentage decision for [Child 1], telling CSA that there had been no change in the care arrangements, and he continued to have full care of [Child 1].  

4. On 22 November 2019, an objections officer disallowed Mr Diver’s objection and affirmed the original decision.  After speaking with Mr Diver, the objections officer was not satisfied that Mr Diver was providing [Child 1] with regular care and found no basis for setting aside the original decision.

5. On 24 November 2019 (within 28 days of receiving the objection decision), Mr Diver applied to the tribunal for review.  

6. [Ms A] did not apply to be joined as a party to Mr Diver’s application.

7. The tribunal conducted a hearing on 10 February 2020.  Mr Diver attended the hearing and provided sworn evidence.  [Child 1] provided evidence by telephone.

CONSIDERATION

1. Mr Diver told the tribunal that he has had sole custody of [Child 1] since he and [Ms A] separated more than 10 years ago.  He said that since the separation, he has re-partnered and that he has another child with his current partner.  He and his partner, [Ms B], jointly care for [Child 1] and their younger child.

2. Mr Diver told the tribunal that for much of the past 10 years, he, [Child 1], [Ms B] and their other child lived in his family home, in [Suburb 1], with his parents.  Mr Diver described the family home as being large and commodious.  Mr Diver said that he owned a townhouse in [Suburb 2], which he rented out until around August last year.  He said that when his parents decided last year to downsize and move to [Town 1], he and his immediate family decided to move to the townhouse.  However, he had to wait until the lease expired and they stayed with his sister, who also had a very large house in [Suburb 1] while waiting for the lease to expire.   Mr Diver told the tribunal that there was a period when he and [Child 1] alternated between staying with his sister and staying in his parents’ house because they were doing painting and other renovations to prepare the family home for sale.

3. Mr Diver provided the tribunal with a record of [Child 1]’s overnight stays from 1 July 2019 to 9 February 2020.  He said that [Child 1] had signed each entry and had told Mr Diver that he wanted to attend the hearing to provide evidence.  The tribunal called [Child 1] and spoke briefly with him.  He confirmed that he had signed the entries in the document and stated that he believed they were “99% accurate” but that he could not say with certainty where he was on any specific night in the past.  The tribunal asked [Child 1] whether he believed that the document provided an accurate picture of the percentage of nights he stayed with his father and he stated that it did.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act when a person applies to the CSA for an assessment, the pattern of care must be determined and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Mr Diver had 93% of the care of [Child 1] and that [Ms A] had 7% of his care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. As a general rule, if the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination more than 28 days after the change of care day, the section 54F determination has effect, for the person with increased care, from the day before the notification or the date when the CSA first became aware that the original determination did not reflect actual care percentages. However, if special circumstances prevented a party from notifying a change of care within 28 days, the new care determination can have effect from an earlier date.

5. The CSA found that [Ms A]’s notification that [Child 1] was no longer in the care of his father required a determination that the care percentage for both parents was 0%.  The record was changed accordingly.  The objections officer affirmed the change of care percentage decision, with effect from 30 May 2019.

6. Under section 54A of the Act, the starting point for any determination of care percentage is the number of nights of care provided by each parent over a designated care period. The Child Support Guide advises that hours of care may be taken into consideration if there is a risk that a calculation based solely on nights misrepresents the level of care provided. As child support payments defray the cost of care, consideration must be given to the extent to which a pattern of care is consistent with the cost of care.

7. The tribunal notes that the hearing papers contain an unsworn statement from Mr Diver’s partner ([Ms B]), dated 22 September 2019 and an unsworn statement from Mr Diver’s father ([Mr C]), dated 24 September 2019.  [Ms B] advised that she had Mr Diver have provided [Child 1] with full-time care and meeting nearly all his care costs since 2005 and that this remains the case.  [Mr C] stated that he and his wife play an active role as grandparents but that this involves activities like picking up [Child 1] from school and rarely involves overnight care.  [Mr C] stated that his son reimburses him for any costs incurred in the course of their assistance at times when the parents are at work.

8. The tribunal notes that this evidence is consistent with the record of overnight care provided by Mr Diver and endorsed by [Child 1].  In summary, the evidence indicates that [Child 1] spends most of his nights with Mr Diver and [Ms B].  From time to time he stays overnight at the home of his girlfriend, with friends or with his grandparents, but this is infrequent and does not involve any relinquishment of care on the part of Mr Diver.  Rather it is what might be considered a typical or characteristic pattern for a 16-year-old who lives at home with his parents.

9. The hearing papers contain evidence that [Ms A] maintains contact with [Child 1] and, aside from child support payments, makes a modest financial contribution to his care.  However, the evidence does not indicate that he spends nights with [Ms A].

10. Under section 54F of the Act, the tribunal has to determine the pattern of care for [Child 1] as at 5 June 2019, when [Ms A] contacted the CSA to advise a change in the pattern of care for [Child 1]. This is around the time when the grandparents were preparing to downsize but prior to their move to [Town 1]. It also precedes the time when Mr Diver, [Ms B] and [Child 1] moved (with their other child) to the townhouse where they currently reside. It is a period when, according to Mr Diver’s evidence, they spent time living nearby with his sister and also, at times at the grandparents’ place, assisting with preparing the house for sale.

11. The evidence in the hearing papers suggests that the CSA substantially relied on evidence provided by Mr Diver to the effect that [Child 1] was living with his grandmother (Mr Diver’s mother) and that she was providing [Child 1] with regular care, which Mr Diver reimbursed.  During the hearing, Mr Diver told the tribunal that the CSA misinterpreted his evidence because they did not understand that they (he, [Ms B] and the two children) had been living with his parents for years and that, while the parents owned the property, it was his and [Ms B]’s home. 

12. The tribunal found Mr Diver to be credible in his evidence and is satisfied that his evidence is consistent with statements made by [Ms B] and by [Mr C].  The evidence in the hearing papers suggests that Mr Diver may have been, at times, upset and even combative in his dealings with the CSA.  Such states are not conducive to effective communication and the tribunal is of the view that there is a reasonable presumption that the CSA did not fully understand Mr Diver’s domestic arrangements. 

13. The tribunal accepts that there was significant disruption to the usual living arrangements, around the time when [Ms A] contacted the CSA and it is possible that [Ms A] learned something of this and formed the impression that there had been a change in the pattern of care.  The evidence before the tribunal is not consistent with such an impression.  Rather the evidence indicates that the usual pattern of care was sustained throughout this relatively brief period of disruption. 

14. The tribunal notes that Mr Diver’s record of care commences on 1 July 2019 and therefore does not include the date when [Ms A] contacted the CSA.  Furthermore, the evidence does not include any statement from Mr Diver’s sister.  However, the tribunal is not satisfied that the absence of such evidence is sufficient to warrant any conclusion that there was an uncharacteristic change in the pattern of care for a few weeks.  The tribunal is of the view that, on the balance of probabilities, the pattern of care remained unchanged, notwithstanding some temporary changes in abode.  The tribunal does not accept that there was any transfer of care to Mr Diver’s mother at or around the time that [Ms A] contacted the CSA.

15. The tribunal is satisfied that [Ms A] continued to play an ongoing but minor role in [Child 1]’s care and is of the view that her pre-existing care percentage of 7% appropriately represented her contribution to the costs of care.

16. This means that the CSA had no basis for changing the existing care percentage, in response to information provided by [Ms A], and the objections officer wrongly affirmed an unwarranted change to the pre-existing care percentages for [Child 1]

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of [Child 1] is recorded as 93% to Mr Diver and 7% to [Ms A], with effect from 3 May 2014.