Donelan and Donelan (Child support)

[2024] AATA 4121

Donelan and Donelan (Child support) [2024] AATA 4121 (27 September 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2024/AC028030, 2024/AC028151 and 2024/AC028383

APPLICANT:  Mr Donelan

OTHER PARTIES:  Child Support Registrar

Mrs Donelan

TRIBUNAL:Senior Member S Trotter

DECISION DATE:  27 September 2024

DECISIONS:

2024/AC028030

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 1] and to record new percentage of care determinations of 11% to Mr Donelan and 89% to Mrs Donelan from 3 March 2023, with the new percentage of care of 11% for Mr Donelan applying from 3 March 2023 however with the new percentage of care of 89% for Mrs Donelan only applying from 22 September 2023.

Decision of the Tribunal

The Tribunal sets aside the decision under review and substitutes a new decision that there was no change in the care of [Child 1] and the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan are not revoked.

2024/AC028151

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] and to record new percentage of care determinations of 6% to Mr Donelan and 94% to Mrs Donelan from 3 February 2023, with the new percentage of care of 6% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 94% for Mrs Donelan only applying from 22 August 2023.

Decision of the Tribunal

The decision under review is varied such that the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] are revoked with new percentage of care determinations of 8% to Mr Donelan and 92% to Mrs Donelan from 3 February 2023, with the new percentage of care of 8% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 92% for Mrs Donelan only applying from 22 August 2023.

2024/AC028383

Decision under review

There were no special circumstances preventing Mr Donelan from lodging his objection to the 23 October 2023 decision under review in relation to [Child 2] within 28 days of being notified of the decision.

Decision of the Tribunal

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – changes to the pattern of care – one new determination made – one existing percentage of care determination not revoked – special circumstances preventing lodging of the objection – 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 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

BACKGROUND

1. This application relates to the care percentages recorded for Mr Donelan and Mrs Donelan for each of [Child 1] (born 2011) and [Child 2] (born 2007) in relation to a child support case registered with Services Australia – Child Support (Child Support).

2. The existing percentage of care determinations applying for both [Child 1] and [Child 2] were 14% to Mr Donelan and 86% to Mrs Donelan from 18 October 2021.

3. On 22 August 2023, Mrs Donelan advised Child Support that the actual care of [Child 2] had changed to 7% to Mr Donelan and 93% to Mrs Donelan from 30 November 2022.

4. On 22 September 2023, Mrs Donelan advised Child Support that the actual care of [Child 1] had changed to 7% to Mr Donelan and 93% to Mrs Donelan from 3 March 2023.

5. On 23 October 2023, Child Support decided to:

   (a)  revoke the existing percentage of care determinations for [Child 1] and record new percentage of care determinations of 11% to Mr Donelan and 89% to Mrs Donelan from 3 March 2023. As Mrs Donelan notified the change of care on 22 September 2023, more than 28 days after the change of care was found to have occurred on 3 March 2023, the recorded decreased percentage of care determination from 14% to 11% for Mr Donelan applied from 3 March 2023 (the date of the care change) however the recorded increased percentage of care determination from 86% to 89% for Mrs Donelan only applied from 22 September 2023 (the date of notification).

   (b)  revoke the existing percentage of care determinations for [Child 2] and record new percentage of care determinations of 7% to Mr Donelan and 93% to Mrs Donelan from 3 March 2023. As Mrs Donelan notified the change of care on 22 August 2023, more than 28 days after the change of care was found to have occurred on 3 March 2023, the recorded decreased percentage of care determination from 14% to 7% for Mr Donelan applied from 3 March 2023 (the date of the care change) however the recorded increased percentage of care determination from 86% to 93% for Mrs Donelan only applied from 22 August 2023 (the date of notification).

6. Child Support have recorded that on 29 November 2023 Mr Donelan objected to the decision made in relation to [Child 1] and, on 31 January 2024, objected to the decision made in relation to [Child 2].

7. On 3 May 2024, a Child Support objections officer:

   (a)  disallowed the objection in relation to [Child 1]; and

   (b)  partly allowed the objection for [Child 2], revoking the existing percentage of care determinations for [Child 2] and recording new percentage of care determinations of 6% to Mr Donelan and 94% to Mrs Donelan from 3 February 2023. As Mrs Donelan notified the change of care on 22 August 2023, more than 28 days after the change of care was found to have occurred on 3 February 2023, the recorded decreased percentage of care determination from 14% to 6% for Mr Donelan applied from 3 February 2023 (the date of the care change) however the recorded increased percentage of care determination from 86% to 94% for Mrs Donelan only applied from 22 August 2023 (the date of notification). Child Support however further determined that as Mr Donelan had objected to the decision in relation to [Child 2] on 31 January 2024, more than 28 days after notification of the 23 October 2023 decision, and as there were not special circumstances preventing objection within 28 days, the date of effect of the changed decision was 31 January 2024. Notably, in any event there was no effect of the date of effect decision because there was no practical difference to the resulting child support liability whether percentages of care of 7% and 93% respectively applied or whether percentages of care of 6% and 94% respectively applied.

8. On 31 May 2024, 27 June 2024 and 9 August 2024 respectively, Mr Donelan lodged applications with the Tribunal seeking an independent review of Child Support’s decisions in relation to each of the decisions regarding [Child 1] and [Child 2] and, further, the date of effect of the decision in relation to [Child 2].

9. Mr Donelan and Mrs Donelan participated in a hearing before me on 26 September 2024. Mr Donelan and Mrs Donelan both gave evidence on affirmation at the hearing.

1. A representative for the Child Support Registrar does not usually appear at hearings in this Division of the Tribunal. However, Child Support has provided copies of relevant documents from Child Support’s files. In addition to Mr Donelan’s and Mrs Donelan’s oral evidence and submissions at hearing, I took into account the relevant documents provided by Child Support to the Tribunal and Mr Donelan and Mrs Donelan prior to hearing (pages 1 to 292, 1 to 279 and 1 to 280, marked Exhibits 1, 2 and 3 respectively). I also took into account relevant documents provided by Mr Donelan (Exhibit A, pages A1 to A14) and Mrs Donelan (Exhibit B, pages B1 to B13) exchanged with the parties.

1. There are a number of background and other circumstances of understandable importance to both Mr Donelan and Mrs Donelan which were raised in evidence which are not relevant to the issues before me relating to the identified decisions of Child Support. Many of the matters raised by both Mr Donelan and Mrs Donelan in the documents they have each provided to the Tribunal are not relevant to the issues arising in relation to these applications. I have confined the evidence addressed in these Reasons to that pertinent to the relevant issues.

CONSIDERATION

12.  The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act). Unless otherwise noted, references to legislative provisions in these Reasons are references to the Act.

1. I have also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. I acknowledge that while I may be guided by policy, I am not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the case of G v MIBP [2018] FCA 1229 at [204], the Federal Court observed that it is clear from earlier authorities, ‘that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant fact, or factor, for the Tribunal to take into account in performing its review task’. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and I adopt that approach.

14.  The child support legislation provides for assessment of child support using a formula taking into account numerous variables, including relevant care percentages of each child for each party to a child support assessment.

15. Sections 49 and 50 of the Act require percentage of care determinations to be made upon initial registration of a child support case, usually based upon the actual overnight care of a child that parties to a child support case have. Subsequently, existing percentage of care determinations are usually required to be revoked when the care of a child that is actually taking place does not correspond with the existing percentages of care for the child.

16.  As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to consider what care a person ‘had or is likely to have’ depending upon when, relative to the relevant care period, the decision is being made.

17.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply including after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care percentage determination to be made for either or both parents.

18.  Given the relevant times the subject of this application have now passed, my role on review is to ascertain what care of [Child 1] and [Child 2] actually occurred during the care periods I determine appropriate for each, based on all evidence before me up to the date of my consideration.

19.  The issues to be determined by me are as follows:

(a)Did the care of [Child 1] and [Child 2] actually taking place change and, if so, when? And, if so,

(b)Are the existing percentage of care determinations for Mr Donelan and Mrs Donelan for each of [Child 1] and [Child 2] to be revoked? And, if so,

(c)What is the date of application of the revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations? And

(d)What is the date of effect of the Tribunal’s decision?

Issue 1: Did the care of [Child 1] and [Child 2] actually taking place change and, if so, when?

1. Mrs Donelan’s position is that Mr Donelan was having care of both [Child 1] and [Child 2] corresponding to 14% for many years. However, since 2020 Mr Donelan’s care of [Child 2] had been reducing. By the end of 2022, it had dropped right off including because Mr Donelan was unable to drive and [Child 2] had commenced working part-time and also had study commitments. She rang Child Support and she began keeping records, contemporaneous calendars, and she noticed that Mr Donelan’s care of [Child 1] had also reduced significantly. Mrs Donelan referred me to her summary of the nights of care Mr Donelan had of [Child 1] and [Child 2] from 15 April 2023 to 15 April 2024 (Exhibit 3, page 198) followed by copies of the calendars from which she took that information (Exhibit 3, pages 199 to 211). I discussed with Mrs Donelan that her letter of 15 October 2023 to Child Support (Exhibit 3, page 92), suggests that Mr Donelan had care of [Child 1] and [Child 2] for four nights in April 2023, however, the summary at Exhibit 3, page 198 suggests that Mr Donelan only had one night of care of each of [Child 1] and [Child 2] from 15 April 2023 to 30 April 2023. Mrs Donelan said there was some confusion in April about which care weekend was Mrs Donelan’s and which was Mr Donelan’s. Mrs Donelan’s evidence is that looking at her calendar for the whole of the month, Mr Donelans had three nights care of each of [Child 1] and [Child 2] in April 2023. Mrs Donelan’ records, as summarised at Exhibit 3, page 92, show that Mr Donelan had care of [Child 1] for four nights and care of [Child 2] for two nights in February 2023 and in March 2023 had care of [Child 1] for two nights and care of [Child 2] for zero nights. Mrs Donelan’s recorded care by Mr Donelan of [Child 1] and [Child 2] is therefore as follows:

   [Child 1]  [Child 2]

   February 2023  4 nights  2 nights
   March 2023  2 nights  2 nights
   April 2023  3 nights  3 nights
   May 2023  3 nights  3 nights
   June 2023  3 nights  3 nights
   July 2023  3 nights  3 nights
   August 2023  3 nights  3 nights
   September 2023  3 nights  3 nights
   October 2023  3 nights  3 nights
   November 2023  3 nights  3 nights
   December 2023  3 nights  3 nights
   January 2024  3 nights  3 nights
   February 2024  3 nights  3 nights

   March 2024   3 nights  3 nights

2. Mr Donelan’s position is that care of both [Child 1] and [Child 2] had been occurring corresponding to 14% to him and 86% to Mrs Donelan for many years and continued on that basis in 2023. I asked Mr Donelan if he had any response to Mrs Donelan’s general submission that his care of both [Child 1] and [Child 2] commenced reducing over time and in particular from late 2022. Mr Donelan agreed that his care of the boys did become very inconsistent at some point including because of his inability to drive, an injury and also because of COVID-19. I discussed with both parents that there can be minor variations to a pattern of care that do not change the pattern but at some point sometimes it reaches a point that there is a change in care. Mr Donelan said that a lot of the changes happened because of sick days and he also acknowledged that Mrs Donelan helped a lot when he didn’t have his licence.

3. Mr Donelan told me that he used to have care of [Child 1] and [Child 2] every weekend and then he asked Mrs Donelan if he could take one night out on the weekends for himself. His care of the boys then became two nights one weekend and one night the following weekend. Mrs Donelan then sought further time with the boys and following mediation his care of the boys was reduced to two nights every second weekend and it was then like that for the majority of the boys’ life. Mr Donelan said it is possible that his care of [Child 2] dropped below 14% but [Child 1’s] care definitely did not change apart from the odd day here or there when he was sick or some other reason prevented his care.

4. Mr Donelan said that he was told that text messages were valid to use as a form of proof of when he had care and he commenced having the boys message him when they were coming over to his place and the text messages show that he continued to have 14% care in 2023. I referred Mr Donelan to Mrs Donelan’s 15 October 2023 letter and the summary at Exhibit 3, page 198. Mr Donelan said that he had been through Mrs Donelan’s dates before and there is only one night that is incorrect but he can’t now locate his notes as to which night it was.

5. I discussed with Mr Donelan his email of 31 January 2024 to Child Support, with attached text messages (Exhibit 3, pages 130 to 157), noting that Mr Donelan had set out a summary of his care from July 2023 based on text messages. I acknowledge [Mr Donelan’s] evidence was that he was told that text messages are valid form of evidence to use however reliance may equally be placed on contemporaneous calendars noting what care occurred and text messages are not necessarily required.

6. I discussed with Mrs Donelan that generally speaking her summary of the care position seems consistent with Mr Donelan’s position that it continued to be two nights of care to Mr Donelan every second weekend, with the odd occasion missed when [Child 1] was sick. Mrs Donelan said that Mr Donelan’s care has always been about 20% less than 52 nights care per year. For the period 15 April 2023 to 15 April 2024 (Exhibit 3, page 198), she has calculated Mr Donelan had 44 nights of care of [Child 1] – well below the 52 nights which equates to 14%. I suggested to Mrs Donelan that looking at [Child 1’s] nights overall with Mr Donelan, there seems to continue to be a pattern of mostly two nights per fortnight, with some variations which might be seen to be minor variations that otherwise didn’t alter the pattern of care Mr Donelan was having of [Child 1]. Mrs Donelan said that she can see that might be the case and noted that more recently, since she notified the change in care, Mr Donelan has been less flexible with the boys not being in his care every second weekend for two nights if something else arises. Mrs Donelan said the missed care of [Child 1] has been for various reasons – life events. On one occasion Mr Donelan just didn’t show up and sometimes he needs to not have the boys for a particular reason. The missed care has not just been because [Child 1] has been sick.

7. I discussed with Mr Donelan and Mrs Donelan that the recorded nights of Mr Donelan’s care of [Child 2], at Exhibit 1, page 198, is clearly less than the care of [Child 1]. I noted that Mr Donelan has recognised that there was a change in the care of [Child 2]. Mrs Donelan said that she thinks it is a bit misleading for Mr Donelan to put, for example, three dates in his list of dates, because the last night of the three dates [Child 2] was not in Mr Donelan’s care. I acknowledged my understanding that if Mr Donelan noted a series of dates, it did not include overnight care on the last noted date.

8. I note that, as discussed with Mrs Donelan and Mr Donelan at hearing, the Guide recognises that not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

   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.

9. I accept Mrs Donelan’s evidence that Mr Donelan’s care of [Child 1] and [Child 2] was reducing over time more particularly from late 2022 and that she commenced keeping records of Mr Donelan’s care from February 2023.  Details of exactly what care did occur throughout the period leading up to February 2023 is not available as neither Mrs Donelan nor Mr Donelan kept records at that time. I am satisfied that up until February 2023 various changes may have occurred consistent with not unexpected matters that arise in life such that although there were deviations, at that point it did not constitute a new pattern of care for either [Child 1] or [Child 2].

1. With the benefit of Mrs Donelan’s contemporaneous care calendars and summary and corresponding summaries for February and March 2023 and 15 April 2023 to 15 April 2024, and Mr Donelan’s text messages and corresponding summary from July 2023 to January 2024, I considered whether there was deviation to the pattern of care for either [Child 1] or [Child 2] or both from February 2023 that constitutes a change to the pattern of care.

2. I note that Mr Donelan submitted that in addition to overnight care, up until late 2023, he also had care of both [Child 1] and [Child 2] every Wednesday (for well over a decade) picking them up straight after he finished working, taking them to his place for dinner and then dropping them back to Mrs Donelan by 8pm, with that arrangement only ending because Mrs Donelan moved further away making the timing unworkable. I acknowledge that additional time that [Child 1] and [Child 2] were in Mr Donelan’s care however do not consider that changes the usual position that care is calculated based upon overnight care. Further, I acknowledge Mr Donelan’s documentary evidence (bank statements) and written submissions as to the additional money he has paid each week on top of child support for things such as camps, excursions and school fees. However, this is not relevant in the circumstances to the issue to be determined by me as to the actual overnight care of each of [Child 1] and [Child 2]. I considered the position in relation to each of [Child 1] and [Child 2] in turn.

[Child 1]

1. Mrs Donelan commenced keeping contemporaneous care diaries from February 2023. Those diaries show that Mr Donelan had his usual four nights of care of [Child 1] in February 2023 but that in March 2023, he only had two nights of overnight care of [Child 1] with the first night of care in March 2023 being 4 March 2023.

32.  I therefore consider the appropriate care period to take into account in respect of [Child 1] is the 12-month period from 4 March 2023 to 3 March 2024.

1. Mrs Donelan’s and Mr Donelan’s submissions as to Mr Donelan’s care of [Child 1], based upon their written records either kept contemporaneously (Mrs Donelan) or summarised from text messages (Mr Donelan), supplemented by oral evidence as necessary, can be summarised as follows:

Mrs Donelan’s position – dates of care of [Child 1] by Mr Donelan	Mr Donelan’s position – dates of care of [Child 1] by Mr Donelan
March 2023	4, 18   = 2 nights
April 2023	1, 9, 15, 29   = 4 nights
May 2023	13, 27   = 2 nights
June 2023	10, 24  = 2 nights
July 2023	8, 21, 22   = 3 nights	8 Otherwise, no note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
August 2023	4, 5, 18, 19   = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
September 2023	1, 2, 15, 16, 29, 30           = 6 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
October 2023	13, 14   = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
November 2023	10, 11, 24, 25                  = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
December 2023	8, 9, 23, 24  = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
January 2024	5, 6, 19, 20   = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
February 2024	2, 3, 16, 17   = 4 nights	No note re [Child 1] – Mr Donelan’s submission is that the usual pattern of care occurred
Total – 43 nights

1. As can be seen, Mrs Donelan’s and Mr Donelan’s evidence as to Mr Donelan’s overnight care of [Child 1] is mostly consistent. It can be seen that other than in the months of March 2023, May 2023, June 2023 and July 2023, Mr Donelan had two nights care of [Child 1] every fortnight as per previous arrangements. As regards the reduced care in those months, although overall the total nights of care is below 52 nights of care, I am satisfied, particularly given the otherwise consistent pattern, that the missed care by Mr Donelan in those four months were minor variations from the otherwise existing pattern of care for [Child 1]. I am therefore satisfied and find that there was no change in the pattern of care of [Child 1] and the existing percentage of care determinations are not to be revoked.

35.  As I have reached a different decision than the decision of Child Support in relation to [Child 1], the decision under review in relation to [Child 1] will be set aside.

[Child 2]

1. Mrs Donelan’s and Mr Donelan’s submissions as to Mr Donelan’s of care of [Child 2], based upon their written records either kept contemporaneously (Mrs Donelan) or summarised from text messages (Mr Donelan), supplemented by oral evidence as necessary, can be summarised as follows:

Mrs Donelan’s position – dates of care of [Child 2] by Mr Donelan	Mr Donelan’s position – dates of care of [Child 2] by Mr Donelan
February 2023	17, 18   = 2 nights
March 2023	Nil  = 0 nights
April 2023	1, 9, 15    = 3 nights
May 2023	13, 27   = 2 nights
June 2023	10, 24  = 2 nights
July 2023	8, 21, 22   = 3 nights	8, 21, 22   = 3 nights
August 2023	5, 18, 19   = 3 nights	5, 18, 19  = 3 nights
September 2023	1, 2  = 2 nights	1, 2, 15  = 3 nights
October 2023	27, 28   = 2 nights	13, 14, 27, 28                  = 4 nights
November 2023	10, 11  = 2 nights	10, 11  = 2 nights
December 2023	8, 9, 23, 24  = 4 nights	8, 9, 23, 24  = 4 nights
January 2024	5, 6  = 2 nights	5, 6, 19, 20  = 4 nights
Total – 27 nights

1. As can be seen, Mrs Donelan’s and Mr Donelan’s evidence as to Mr Donelan’s overnight care of [Child 2] is largely consistent except that Mr Donelan has five additional nights of care of [Child 2] recorded for him, on 15 September 2023, 13 and 14 October 2023 and 19 and 20 January 2024.

38.  As regards 15 September 2023, Mr   Donelan notes that text messages confirm he picked [Child 2] up from work. A text message appearing at Exhibit 3, page 152 is consistent with that occurring and I infer from that that Mr Donelan therefore had overnight care of [Child 2] on 15 September 2023.

39.  As regards 13 and 14 October 2023, Mr Donelan notes that [Child 2] was with him all weekend as normal with no messaging required. As noted there are no text messages confirming the position and this is not consistent with Mrs Donelan’s calendars.

1. As regards 19 and 20 January 2024, Mr Donelan notes that [Child 2] was with him all weekend as it was still holidays. No text messages confirm this position which, notably, is not consistent with Mrs Donelan’s calendars.

2. Although there is no corroboratory evidence of [Child 2] being in Mr Donelan’s care on 13 and 14 October 2023 and on 19 and 20 January 2024, I will nevertheless include these four additional nights of care, plus the additional night on 15 September 2023 for calculation purposes with a consequential total of 32 nights care of [Child 2] by Mr Donelan in the care period.

42.  The care percentage corresponding to 32 nights care over a 12-month period is 8.76% which is rounded down to 8%.[1] There was clearly a change to Mr Donelan’s pattern of care of [Child 2] from at least 3 February 2023 and I find that the pattern of care of [Child 2] by Mr Donelan changed from 3 February 2023 to care corresponding to 8%.

Issue 2: Are the existing percentage of care determinations for Mr Donelan and Mrs Donelan for each of [Child 1] and [Child 2] to be revoked?

[1] Pursuant to paragraph 54D(b) of the Act which applies where the responsible parent’s care is less than 50%.

43. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

[Child 1]

1. I have found that there was no change in care for [Child 1] and the existing percentage of care determinations for Mr Donelan and Mrs Donelan for [Child 1] are therefore not to be revoked.

[Child 2]

45.  Section 54G provides that if a person (the first person) was to have at least regular care (that is, at least 14%) of a child during a care period under a recorded percentage of care determination and the other responsible person (the other person) was to have more than 0% care, and the child was being made available for care by the other person but the first person had no care or a pattern of care less than regular care, and the other person has notified the change of care within a period that is reasonable in the circumstances, both recorded percentage of care determinations must be revoked.

46.  Mrs Donelan notified the change in care of [Child 2] on 22 August 2023, many months after I have found the change occurred. I acknowledge Mrs Donelan’s position had been changing gradually over time and she did not immediately notify the change waiting to see what ended up happening. Nonetheless I do not consider this change was notified within a period that was reasonable in the circumstances. Section 54G therefore does not apply.

47.  Section 54F provides that an existing care percentage determination must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentage of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment, and section 54G does not apply and section 51 does not apply or no longer applies.

48.  Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

49.  I have found that section 54G does not apply. Section 51 is not applicable.

1. Care of 8% to Mr Donelan and the balance 92% to Mrs Donelan does not correspond with the existing percentage of care determinations recorded by Child Support as at 3 February 2023 of 14% to Mr Donelan and 86% to Mrs Donelan. A change in care to 8% to Mr Donelan and 92% to Mrs Donelan would change each parent’s cost percentage pursuant to the table in section 55C.

51.  The existing percentages of care of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] are therefore required to be revoked pursuant to section 54F.

Issue 3: What is the date of application of the revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?

[Child 2]

1. Pursuant to paragraph 54F(3)(b), as the change in care of [Child 2] was notified by Mrs Donelan on 22 August 2023, more than 28 days after I have found the change occurred on 3 February 2023, there are different dates of effect for the revocation of the parents’ respective existing care percentage determinations. Revocation of the existing percentage of care determination of 14% recorded for Mr Donelan takes effect the day before the change of care, that is on 2 February 2023, however revocation of the existing percentage of care determination of 86% recorded for Mrs Donelan only takes effect the day before the date of the notification of the change in care, that is on 21 August 2023.

53.  Pursuant to section 54B, new percentage of care determinations apply from the application day, that is, the day immediately after revocation of the previous percentage of care determinations. Therefore, a new percentage of care determination of 8% for Mr Donelan applies from 3 February 2023 however a new percentage of care determination of 92% for Mrs Donelan only applies from 22 August 2023.

54.  As this decision is slightly different to the decision of the objections officer, the decision under review will be varied. Notably however, the resulting child support liability in respect of [Child 2] will remain the same as determined following both the original 23 October 2023 Child Support decision and the 3 May 2024 objection decision, given there is no change in cost percentages (see the section 55C table) between care percentage determinations of 7%/93% (the original Child Support decision), 6%/94% (the objections officer’s decision) and 8%/92% (my decision) respectively.

Issue 4: What is the date of effect of the decision?

1. The Registration and Collection Act provides a mechanism for parents who are dissatisfied with a care percentage decision to seek a review of the decision by lodging an objection. However, if an objection concerning care percentages is lodged more than 28 days after notice of the care percentage decision is given, section 87AA of the Registration and Collection Act provides that the date of effect in relation to variation to or new determination is the date of the objection. The effect of an objection decision can only be backdated if there are special circumstances which prevented the person from lodging their objection within 28 days.

[Child 1]

1. Child Support’s 23 October 2023 decision is recorded as having been sent to Mr Donelan by mail with Mr Donelan recorded as lodging an objection in relation to the decision regarding [Child 1] on 29 November 2023. As recognised by Child Support (Exhibit 1, page 126), allowing time for posting and receipt of notice of the decision, Mr Donelan’s objection in relation to [Child 1] was lodged in time. There is therefore no limitation on the date of effect of my decision to set aside the decision under review in relation to [Child 1].

[Child 2]

57.  On 29 November 2023, Mr Donelan was recorded by Child Support as stating that the ‘decreased care for [Child 2] to 7% from 3 March 2023 was probably okay’. However, subsequently, on 31 January 2024, Mr Donelan emailed Child Support stating that the claim in relation to [Child 2] was inaccurate and an objection was then also recorded to the decision in relation to [Child 2]. When queried by both Child Support and me about the delay in lodging an objection in relation to [Child 2], Mr Donelan explained issues that he had had with myGov. I accept that Mr Donelan had issues with myGov however Mr Donelan was able to and did lodge an objection within time in relation to [Child 1] and, notably, said at that time he thought the decision in relation to [Child 2] was probably ‘okay’. If Mr Donelan had chosen to, he could have lodged an objection to the decision as regards [Child 2] at the same time as he lodged an objection in relation to [Child 1] and it would then have been in time. I am not satisfied on that basis that there were special circumstances preventing an objection in relation to [Child 2] being lodged within 28 days of notification of the 23 October 2023 decision. It follows that the varied percentage of care determinations of 8% to Mr Donelan and 92% to Mrs Donelan can only apply from the date of the 31 January 2024 objection in relation to [Child 2]. However, as already canvassed, given the varied percentages of care to 8%/92% compared to both the original percentages determined by Child Support of 7%/93% and those determined by the objections officer of 6%/94% do not alter the cost percentages, there is no impact of the date of effect being limited to 31 January 2024.

58.  As I have reached the same decision as Child Support in relation to the date of effect in relation to [Child 2’s] decision, that decision will be affirmed.

OTHER MATTERS

59.  As already noted, the legislative scheme deals with any subsequent change to the care of children by requiring further notification to be made to Child Support of such changes, and Child Support then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. If it is contended by either parent that there has been a further change in care of either child subsequent to the time relevant to this application, each parent has the option of notifying Child Support of the subsequent change.

DECISIONS

2024/AC028030

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 1] and to record new percentage of care determinations of 11% to Mr Donelan and 89% to Mrs Donelan from 3 March 2023, with the new percentage of care of 11% for Mr Donelan applying from 3 March 2023 however with the new percentage of care of 89% for Mrs Donelan only applying from 22 September 2023.

Decision of the Tribunal

The Tribunal sets aside the decision under review and substitutes a new decision that there was no change in the care of [Child 1] and the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan are not revoked.

2024/AC028151

Decision under review

The decision to revoke the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] and to record new percentage of care determinations of 6% to Mr Donelan and 94% to Mrs Donelan from 3 February 2023, with the new percentage of care of 6% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 94% for Mrs Donelan only applying from 22 August 2023.

Decision of the Tribunal

The decision under review is varied such that the existing percentage of care determinations of 14% to Mr Donelan and 86% to Mrs Donelan for [Child 2] are revoked with new percentage of care determinations of 8% to Mr Donelan and 92% to Mrs Donelan from 3 February 2023, with the new percentage of care of 8% for Mr Donelan applying from 3 February 2023 however with the new percentage of care of 92% for Mrs Donelan only applying from 22 August 2023.

2024/AC028383

Decision under review

There were no special circumstances preventing Mr Donelan from lodging his objection to the 23  October 2023 decision under review in relation to [Child 2] within 28 days of being notified of the decision.

Decision of the Tribunal

The Tribunal affirms the decision under review.