Dowling and Kovacich (Child support)
[2024] ARTA 207
•2 December 2024
Dowling and Kovacich (Child support) [2024] ARTA 207 (2 December 2024)
Applicant/s: Mr Dowling
Respondent: Child Support Registrar
Other Parties: Ms Kovacich
Tribunal Number: 2024/MC028459
Tribunal: Member L McDonald
Place:Brisbane
Date:2 December 2024
Decision:
The Tribunal sets aside the decision under review and in substitution decides:
The percentage of care determination of 14% to Mr Dowling is revoked from 31 December 2023 and replaced with a new care percentage of 8% from 1 January 2024.
The percentage of care determination of 86% to Ms Kovacich is revoked from 18 April 2024 and replaced with a new care percentage of 92% from 19 April 2024.
The Tribunal determines that pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, that section 87AA applies as if the reference to in section 87AA(1)(b) was a reference to a longer period, extending until 2 July 2024.
CATCHWORDS
CHILD SUPPORT – change to percentage of care – delay in notification, no contemporaneous records, father’s absences for work and mother and child’s move interstate – mother did not make child available on all occasions – sporadic pattern of care – dates of change to pattern of care and of revocation of existing percentage and application of new percentage – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
Mr Dowling has sought review of a Services Australia, (Child Support) percentage of care decision made initially on 23 May 2024 reflecting 92% care of his son [the child] to Ms Kovacich, and 8% to Mr Dowling from 1 January 2023. On 19 April 2024, Ms Kovacich notified Child Support of a change in care, which triggered consequential changes for the child support assessment pertaining to [the child]. The pre-existing care determinations assessed in 2019 reflected care of [the child] being 86% to Ms Kovacich and 14% to Mr Dowling.
Mr Dowling raised an objection to this original decision with the Child Support Registrar on 2 July 2024. Child Support did not allow the objection on 2 August 2024, on the basis that Child Support stated that Mr Dowling had not provided relevant evidence in support of his claims. The records reflect that Child Support made unsuccessful attempts to contact Mr Dowling to discuss this decision prior to their decision on 23 May 2024. They also reflect that Chid Support had advised that Mr Dowling had not provided relevant evidence.
On 23 August 2024, Mr Dowling sought review of this decision in the Tribunal, claiming that the change was backdated to 2023, when he had had [the child] for 70 days of that year. He further stated that he had provided the Child Support agency with text messages and third-party evidence in support of this. This evidence was on the Child Support file provided by the Child Support Registrar to the Tribunal. The application for review went to hearing before the Tribunal on 8 November 2024.
Documents numbered 1- 171 were admitted and marked – Exhibit 1. All documents were exchanged between the parties. I also considered the oral evidence of the parties given at the hearing. After the hearing, Mr Dowling filed further material, (numbered A1-A93), identifying in an email to the registry that the Child Support documents before the Tribunal did not relate to the relevant period for the year of 2023. This matter was not raised at the hearing, which had proceeded on the basis that the relevant documents were before the Tribunal. The further documents were exchanged between the other parties, and Ms Kovacich was provided an opportunity to respond. In these subsequent submissions, Mr Dowling subsequently submitted that these records evidenced that he had 69 days of care of [the child] in 2023.
All of these documents filed contained extensive text message exchanges between Mr Dowling and Ms Kovacich. At the hearing, the Tribunal made directions for the material to be provided in a more coherent form to the Tribunal, referencing relevant page numbers. This direction was only partially complied with.
This is essentially a factual dispute about when and how the change in [the child]’s care pattern occurred that affects the legal decision under the Child Support legislation about the percentage of care each party has relative to the amount of child support that is payable for [the child].
Exhibit 1 at page 9 is a document that evidencing an online notification made by Ms Kovacich on 19 April 2024, which notified that there was a change in care of 92% to her and 8%to Mr Dowling and date of the change of care was 1 January 2023.
When asked at the hearing why it took her 16 months to notify Child Support of this change, Ms Kovacich gave evidence that she had initially told Child Support on 19 April 2024 that care was going to change when she was moved interstate, in May 2024. She said that during her discussion with Child Support on that date, she was led to believe that anytime less than every second fortnight equated to her having [the child] full time. I was unable to locate any record of this conversation in the documents that were before the Tribunal from the Child Support file. It appears that exhibit 1 page 9 is the only record of Ms Kovacich’s communication with Child Support on that date. At the hearing, Ms Kovacich stated that she did not believe that Mr Dowling had [the child] fortnightly throughout 2023, because there were blocks of time when he worked away and was unable to see [the child]. She stated that she had concluded that the care had actually changed from 1 January 2024. She stated that Child Support had incorrectly recorded the date that she notified of the change in the pattern of care as 1 January 2023, when it should have been 1 January 2024. Ms Kovacich did not maintain any records of the time [the child] spent with either parent to provide as evidence of the pattern of care. She said her recollection was that Mr Dowling cancelled several nights due to his work commitments throughout 2023. She further stated that she would accept that Mr Dowling had between 30 and 40 nights based on her recollection. Mr Dowling claimed that his care of [the child] had reduced from 1 January 2024 due to cancellations across scheduled care and further reduced when [the child] and Ms Kovacich moved interstate on 12 May 2024.
Mr Dowling provided Child Support with 100 pages of text messages followed by a further 93 pages to the Tribunal in his subsequent submission containing dialogue between Mr Dowling and Ms Kovacich about details of times for pick up and drop off arrangements for [the child]. Mr Dowling confirmed that his evidence of his pattern of care was in the text exchange between the parties. Mr Dowling was directed to provide the Tribunal with a list of dates from this stream of text communication that cross referenced and evidenced nights that [the child] was in his care from 1 January 2023. Mr Dowling’s written submission stated that he had actual care of [the child] for 69 days between 1 January 2023 and 31 December 2023 which he identified as the following periods. January 7-13; 20-23; February 10-12 March 3-5, 17-19; April 6-16; 28-30; May 9-17; June 2-4; 26-29 ; July 7-9, 28-30; August 19-20; September 31-1; October 27-29; November 17-20; December 2-4, 15-19, 26-28. There is no evidence to the contrary before the Tribunal. In Mr Dowling’s evidence regarding 2024, he noted several cancellations each month of intended contacts until May, with the result stated that he had [the child] in January from 13 -20, and again 28 January to 2 February; a dinner on 26 February, 16-17 March; 1-2 April 20-21 April and a dinner on 9 May.
Ms Kovacich provided submissions in reply to Mr Dowling’s evidence in relation to the period from 1 January 2024. She provided no submissions in relation to 2023. Her summary denied that the text correspondence represented evidence that the care happened on those dates. This noted that that ”6-16 January contact did not occur as due to not wanting to meet halfway”; “had for one night on 20-23 January 2024”; February “10-12 was just a question. Mr Dowling works Friday and Saturday, Could not pick him up from school” “17-19 no evidence of a weekend. No evidence of 3-5 March – goes to 8 March” “17-19 March had for one night. Had for one night in April 1-2; , 20-22; Nothing in May.”
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989, (The Assessment Act) and the Child Support (Registration and Collection) Act 1988, (The Registration Act). The Child Support Guide, which contains departmental guidelines and policy as to how the legislation is to be applied, has been a relevant in this decision. The Tribunal is not bound by policy guidelines, (Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634),but they are a relevant factor to take into consideration to guide decision making (G v MIBP [2018] FCA 1229).
The issues which arise in this case are:
When did the care change? What is the relevant care period?
Are the pre-existing percentage of care determinations for Mr Dowling and Ms Kovacich to be revoked.
What are the new percentage of care determinations for Mr Dowling and Ms Kovacich?
What is the date of revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?
When did the care change? What is the relevant care period?
Care percentages are to be determined on the basis of the actual care a person has had, or is likely to have, during a care period. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.
The appropriate care period is defined in the Assessment Act to be the period the decision maker considers appropriate having regard to all the circumstances. The Guide provides that this care period is usually a 12-month period starting from the actual date that the care changed. Section 54 A provides that actual care may be established by the number of nights the child was or is likely to be in a person’s care.
There is conflicting evidence about how Ms Kovacich advised child support of when the care changed. The Child Support records reflect that on 19 April 2024 she has provided an online update that stated that care had changed on 1 January 2023. At hearing, she said that child support “mucked up the date” and wrongly recorded this as 1 January 2023 when she had advised 1 January 2024. She stated that she had believed that Mr Dowling’s care of [the child] had reduced, and she estimated that it was more in the vicinity of 30- 40 nights but she did not have any evidence to support this. Mr Dowling did not consider that there had been substantial changes throughout 2023 and believed it had been incorrectly backdated.
Mr Dowling’s evidence reflects the actual number of nights to total 58 nights, rather than 69 as submitted by Mr Dowling. The nights reflected the 2023 email correspondence are: January 7-13 (6 nights);20-23 (2 nights); February 10-12 (2 nights); March 3-5 (2 nights), 17-19 (2 nights); April 6-16 (10 nights); 28-30 (2 nights); May 9-17 (8 nights); June 2-4 ( 2 nights); 26-29 (3 nights); July 7-9 (2 nights), 28-30 (2 nights); August 19-20(1 night); September, 31-1 (1 night); October 27-29 (2 nights); November 17-20 (3 nights); December 2-4 ( 2 nights) 15-19 (4 nights) 20-28 (2 nights) Based on the evidence provided by the parties, the numbers indicate that Mr Dowling had 59 nights. This would also be the same result if he had 69 days as he asserts, because his cost percentage based under s 55C is classified as, being more than 14 % and less than 35% and according to the Child Support Guide it is regular care. In 2023, Mr Dowling continued to have regular care of [the child] when his care percentage remained 16%, and therefore there is no impact on the cost percentage pursuant to section 55C of the Assessment Act. Therefore, the I find that the care has not changed throughout 2023 for the purpose of Child Support Assessment.
The changes in the care pattern from 1 January 2024 to 1 December 2024 reflect a reduction Mr Dowling’s pattern of care from 2023 to below regular care. In this case, there is no written care arrangement or parenting plan evidencing a pattern of care. On both Mr Dowling’s and Ms Kovacich’s evidence, Mr Dowling’s pattern of care which has changed by negotiation via text message from time to time. Both Mr Dowling and Ms Kovacich’s evidence reflects that a change in the pattern of care occurred from 1 January 2024. I note also Ms Kovacich’s oral evidence at hearing that this was the date that she intended to notify Child Support that the care change, and that the 2023 had been an error on what she believed as on Child Support’s behalf. Further, I note that Ms Kovacich did not report any changes in care to have occurred in the care pattern to Child Support until 19 April 2024 to be indicative that the pattern of care had not substantially changed throughout 2023. Based on the evidence before the Tribunal, I find therefore that the care did not change throughout 2023, however, but did change from 1 January 2024 and the care period I will consider is from 1 January 2024 to 31 December 2024.
Are the pre-existing percentage of care determinations for Mr Dowling and Ms Kovacich to be revoked ?
Sections 49 and 50 of the Assessment Act require initial percentage of care determinations to be made upon initial registration of a child support case and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. I must first consider whether section Section 54G of the Assessment Act applies in determining whether to revoke the pre-existing care determinations. This section 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 has 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. The Child Support Guide 2.2.3 specifies that I must decide if the child was being made available where less than regular care is occurring. is conflicting information has been given by Mr Dowling and Ms Kovacich as to why the care reduced prior to Ms Kovacich and [the child]’s interstate move. Ms Kovacich claims that Mr Dowling cancelled the contact due to work commitments and geographical distance when working away. Mr Dowling claims that Ms Kovacich cancelled scheduled contacts at the last minute. The evidence before me does indicate that during 2024, [the child] was made available for all scheduled contacts that he had with Mr Dowling, and I am therefore not satisfied that Ms Kovacich was making [the child] available for all scheduled contacts in 2024, and that this resulted in a change in the pattern of care. I am satisfied thatMr Dowling was genuinely seeking care of [the child] in this care period. The Guide further specifies that the decisions maker must consider whether Ms Kovacich reported the change in care pattern to the Registrar within a reasonable time. Although not defined in the legislation, the Guide provides guidance that 28 days is considered a reasonable time. The finding that Ms Kovacich reported the care change on 19 April 2024, despite reductions in care in February, March and April 2024, make this notification well outside of the date the care pattern changed. Therefore, I conclude that Section 54G does not apply. I must now consider if section 54F applies.
Section 54F requires the Registrar revoke a care determination, when notified that the care of the child that is taking place does not correspond with the existing percentage of care, and the person’s cost percentage would be different if the care percentage was to change. In 2024, Mr Dowling’s pattern of care reduced to less than regular care, with an infrequent and irregular pattern of care in circumstances where [the child] was not always made available for his care. I find that the evidence indicates that from 1 January 2024, a change in the pattern of care is evident. From that date there is identifiably less contact arising from cancellations and an interstate move. The care pattern has changed and is likely to continue to change due to the interstate move. Section 54F applies, because for the care period commencing 1 January 2024 the care percentage and cost percentage have changed, and there remains a pattern of care albeit sporadic.
I conclude that I must revoke the 2019 care percentage determinations pursuant to s 54F from 1 January 2024, not 1 January 2023 as the Child Support Decision reflects. I must also make new care percentage determinations pursuant to section 50 of the Assessment Act for the new care period commencing 1 January 2024.
What are the dates of revocation and new percentage of care determinations for Mr Dowling and Ms Kovacich?
In 2024, there is a change in the pattern of care where Mr Dowling’s had 15 nights care of [the child] until May 2024, which was mostly in school holiday time, with no clear pattern or agreed future arrangements. The Child Support Guide at 2.2.3 notes that where there is difficulty reconciling due to conflicting information, I must weigh the evidence and determine the pattern that is likely to occur. In the absence of any documented or agreed arrangements around care arrangements for [the child], it is reasonable to conclude 30 nights, including the care until May for the entire care period are likely to occur, noting patterns of summer holiday contact.
Pursuant to section 50 of the Assessment Act, having revoked the pre-existing care percentage, I determine new care percentages based on the actual care and likely care that takes place in the new care pattern. I find that Mr Dowling’s care percentage for the care period from 1 January 2024 reflects less than regular care and a percentage of 8%. I find that the care percentage for Ms Kovacich is 92%
Pursuant to section 54F(3) noting that Ms Kovacich, whose care increased, notified of the change outside of the 28 day timeframe , the revocation of the her pre-existing care percentages takes effect from the day before notification, being 18 April 2024. Her new care percentage will take effect from 19 April 2024. Pursuant to this section, the revocation of Mr Dowling’s care percentages, which reduced in the new care period, takes effect from 31 December 2023, the day before the care change. The result of this is that the decision to object is partly successful. However, the date of effect provisions are considerations noted below.
What is the date of effect of revocation of the existing percentage of care determinations and the date of application of the new percentage of care determinations?
The objection was received outside of the 28-day window in section 87AA(2) which provides that the decision will take effect take effect from the date the objection was lodged unless there are special circumstances are made out. Mr Dowling’s gave oral evidence that he did not receive the correspondence, being sent to an address that he was absent from Ms Kovacich gave evidence that confirmed that Mr Dowling had three different addresses and moved between locations. I find that due to Mr Dowling’s late receipt of correspondence relating to the decision under review special constitutes special circumstances.
The Child Support Guide cl 4.1.8 provides guidance upon the exercise of the discretion, once special circumstances have been found to exist:
If the Registrar is satisfied that special circumstances exist, the Registrar will then consider whether it is appropriate to exercise the discretion to extend the period in which to lodge the objection (CSRC Act section 87AA(2)). The Registrar will consider if:
· the decision to extend the period in which to lodge the objection will prejudice the other parent. For example, will the extension create a significant overpayment or significant arrears of child support?
· the applicant rested on their rights, as they did not take any action prior to lodging the objection. For example, did the applicant make any efforts to lodge the objection earlier, communicate to Services Australia that the decision was being contested or raised their concerns in other ways - for example, a complaint to Services Australia or the Ombudsman?
I do not consider Mr Dowling rested on his rights and accept the evidence that he was not aware of the decision. I consider in the circumstances that clear admissions at the hearing that the notification of 19 April 2024 were not accurate, it is appropriate in the circumstances that the decision takes effect discretion exercised, such that the parties are not prejudiced by the inaccuracies that founded the initial decision under review. Therefore, the reference to the 28-day timeframe should be extended to include the date that the objection application was made.
This is a different decision to that of Child support in respect of [the child]. I therefore set aside Child Support’s decision and substitute it with a decision in the following terms:
DECISION
The Tribunal sets aside the decision under review and in substitution decides:
The percentage of care determination of 14% to Mr Dowling is revoked from 31 December 2023 and replaced with a new care percentage of 8% from 1 January 2024.
The percentage of care determination of 86% to Ms Kovacich is revoked from 18 April 2024 and replaced with a new care percentage of 92% from 19 April 2024.
The Tribunal determines that pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988, that section 87AA applies as if the reference to in section 87AA(1)(b) was a reference to a longer period, extending until 2 July 2024.
| Date(s) of hearing: | Friday, 8 November 2024 |
0
2
0