Doran and Wakeling (Child support)

[2023] AATA 4460

Doran and Wakeling (Child support) [2023] AATA 4460 (18 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026325

APPLICANT:  Ms Doran

OTHER PARTIES:  Child Support Registrar

Mr Wakeling

TRIBUNAL:Member H Moreland

DECISION DATE:  18 December 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Doran had a care percentage of 84% for [Children 1 and 2] and Mr Wakeling had a care percentage of 16% for [the children] from 18 November 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – calculation of nights 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 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. Ms Doran and Mr Wakeling are the parents of [Children 1 and 2].

2. On 16 March 2022, Services Australia – Child Support (Child Support) determined that from 18 November 2022, Ms Doran had a care percentage of 85% and Mr Wakeling had a care percentage of 15%, for [the children], from 18 November 2022.

3. On 20 March 2023, Ms Doran lodged an objection to the decision. On 7 June 2023, an objections officer decided to disallow Ms Doran’s objection.

4. On 30 June 2023, Ms Doran lodged an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision. The hearing was scheduled for 18 December 2023. On 17 December 2023, the Registry received an email from Mr Wakeling, which stated:

   Unfortunately I will not have the opportunity to access the documents for tomorrow's hearing. 

   I have reviewed the documentation and I'm happy to not attend the hearing and have the matter dealt with by the CSA and AAT. 

   My position is: I agree with the CSA decision in this matter and I have presented all evidence to the CSA. I have no more to add. 

   I will respect the decision of the AAT and the CSA in this matter.

5. The hearing took place on 18 December 2023. Ms Doran participated in the hearing by telephone and gave evidence on affirmation. In making its decision, the Tribunal considered the documents provided by Services Australia (numbered 1-98), which were also sent to Ms Doran and Mr Wakeling. Relevant aspects of the evidence and material before the Tribunal will be referred to in the Tribunal’s consideration of the issues to be decided.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

Has there been a change in the care of [the children]?

1. As shown in the related decision 2023/SC026352, from 3 November 2022, Ms Doran had a care percentage of 100% and Mr Wakeling had a care percentage of 0%.

2. It is uncontroversial that there was no parenting plan from 3 November 2022 and that until 18 November 2022, Ms Doran had 100% care of [the children] and Mr Wakeling had 0% care of [the children].

3. Further, it is uncontroversial that for the period from 18 November 2022 to 23 February 2023, Mr Wakeling had a total of 17 nights of care of [the children]. As noted in the Child Support papers, a parenting plan was in place from 24 February 2023.[1]

   [1] Child Support papers, pp 88 and 91.

10.  As shown in the Child Support papers, this has been calculated as follows:

Mr Wakeling’s care for [the children]
2022:
November: 18, 19, 20, 21, 22 - (5 nights)
December: 9, 10, 11, 30, 31 - (5 nights)

2023:
January: 7, 8, 9, 10, 11, 12, 13 - (7 nights)
February: 1 until 23 - (0 nights)

Total for Mr Wakeling: 17 nights
17/115 X 100 = 14.78% (15%) Mr Wakeling still has regular care.[2]

[2] Child Support papers, p 5.

11.  Ms Doran told the Tribunal that she thought that the outcome of there being two care determinations for the period from 3 November 2022 to 25 February 2023 (one from 3 November 2022 and one from 18 November 2022) produced an unfair outcome because it means that for the period from 18 November 2022 to 25 February 2023, Mr Wakeling is considered to have a care percentage of more than 14% (regular care). Ms Doran said that she believes that the period from 3 November 2022 to 25 February 2023 should be counted as one period, as this would produce what she considers to be a more accurate reflection of the care and a fairer outcome. As noted in the Child Support papers, however, a parenting plan was in place from 24 February 2023 and this has been subject to a Child Support decision.[3] This means that if Ms Doran disputes the care from 24 February 2023, she would need to seek internal review of the care decision from 24 February 2023 before it could be reviewed by the Tribunal.

[3] Child Support papers, pp 82 and 85.

12.  The Tribunal finds that the above calculation, set out in paragraph 10, showing that Mr Wakeling had care for 17 nights, producing a result of 14.78% care (rounded up to 15% care by Child Support), appears to be for the period from 3 November 2022 to 25 February 2023 as it is a period of 115 nights (inclusive).

13.  The Tribunal observes that the period from 18 November 2022 to 23 February 2023 is a period of 97 nights (inclusive). This means that Mr Wakeling had a care percentage of 16.49% for the period from 18 November 2022 to 23 February 2023.

14. The Tribunal notes, however, that according to section 54D of the Act, if a responsible person’s percentage of care is not a whole percentage and the person’s percentage of care is greater than 50%, the percentage is rounded up to the nearest whole percentage and if the person’s percentage is less than 50%, the percentage is rounded down to the nearest whole percentage.

15.  This means the Tribunal finds that even if Mr Wakeling’s care was considered as being 17 nights for the period from 3 November 2022 to 23 February 2023 (113 nights), or from 3 November 2022 to 25 February 2023 (115 nights), Mr Wakeling’s care percentage over that period would be more than 14% because for the period from 3 November 2022 to 23 February 2023 it would be 15.04425%, rounded down to 15%, or from 3 November 2022 to 25 February 2023, it would be 14.78261%, rounded down to 14%.

16.  Putting that to one side, the Tribunal observes that its task in this matter is to review the care of [the children] from 18 November 2022 and is cognisant that there is another decision before it regarding the change of care on 3 November 2022 (review number 2023-SC026352). Accordingly, the Tribunal finds that the care of [the children], from 3 November 2022 was 100% with Ms Doran and 0% with Mr Wakeling.

17.  Based on the evidence before it, the Tribunal finds that there was a change in care for [the children] since it was recorded as Ms Doran having 100% of the care and Mr Wakeling having 0% of the care since 3 November 2022 when Mr Wakeling commenced having care of [the children] from 18 November 2022.

Should the existing care determination in relation to [the children] be revoked?

18. Sections 7A, 25, 49 and 50 of the Act provide for new care decisions to be made. Section 25 stipulates that an application for a new care decision can only be made if “the applicant is not living with the other parent as his or her partner on a genuine domestic basis”. Section 7A states that the new care period commences on the date of application for assessment. Section 49 applies if the parent “has had, or is likely to have, no 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”. Section 50 applies 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”.

19. Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child and section 54G does not apply.

20. Section 54G of the Act applies in cases where: a person was to have at least regular (14-35%) care of a child; the person had less than regular care; the other parent was making the child available; and the other parent notifies the Registrar of the change in care within a period that the Registrar considers to be reasonable in the circumstances. In this case, the Tribunal is satisfied that Mr Wakeling was not to have at least regular care. This means that section 54G does not apply.

21. The Tribunal finds that a care determination was made under section 49 of the Act from 3 November 2022 because Mr Wakeling had no pattern of care and that from 18 November 2022, the care changed, as this was when Mr Wakeling commenced having care of the children.

22.  As noted above, the Tribunal is satisfied that for the period from 18 November 2022 to 24 February 2023, Mr Wakeling had a care of [the children] for 17 nights. The Tribunal also concludes that there are 97 nights from 18 November 2022 to 24 February 2023. The Tribunal concludes that 17 nights out of 97 nights is 16.49% and this means that Mr Wakeling had a care percentage of 16% and Ms Doran had a care percentage of 84% from 18 November 2022.

23. Therefore, paragraph 54F(1)(a) of the Act is satisfied. This means the existing care determination in relation to [the children] is revoked.

24. According to paragraph 54F(3)(a) of the Act, where a notification of a change in care occurs within 28 days after the change of care, the revocation of the determination takes effect the day before the change of care day.

25.  In this case, the care percentage changed on 18 November 2022 and Child Support was notified on 16 December 2022.[4] This means that the existing determination is revoked from 17 November 2022.

[4] Child Support papers, pp 81 and 84.

26.  The Tribunal then makes a new determination that from 18 November 2022, Ms Doran had a care percentage of 84% and Mr Wakeling had a care percentage of 16% in relation to the care of [the children].

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Doran had a care percentage of 84% for [the children] and Mr Wakeling had a care percentage of 16% for [the children] from 18 November 2022.