Dudfield and Oakley (Child support)

[2024] AATA 481

Dudfield and Oakley (Child support) [2024] AATA 481 (2 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026705

APPLICANT:  Ms Dudfield

OTHER PARTIES:  Child Support Registrar

Mr Oakley

TRIBUNAL:Member M King

DECISION DATE:  02 February 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Dudfield be recorded as having 94% care of [Child 1] and [Child 2], and Mr Oakley be recorded as having 6% care of [Child 1] and [Child 2], from 19 June 2022, notified to Child Support on 22 July 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern 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. As relevant to this application, Ms Dudfield and Mr Oakley are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2009) and [Child 2] (born 2012).

2. Ms Dudfield had been recorded as having 73% care of the children, and Mr Oakley 27% care of the children, from 7 May 2016.

3. On 22 July 2022, Ms Dudfield advised Child Support that she had 94% care of the children, and Mr Oakley had 6% care of the children, from 19 June 2022.

4. On 6 September 2022, Child Support decided to record that Ms Dudfield had 94% care of the children, and Mr Oakley had 6% care of the children, from 19 June 2022.

5. On 16 January 2023, Mr Oakley objected to that decision.

6. On 23 August 2023, a Child Support objections officer allowed the objection and decided there should no change to the previously recorded percentages of care. The objection decision was to have effect from 16 January 2023.

1. On 4 September 2023, Ms Dudfield lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 9 January 2024. Ms Dudfield and Mr Oakley attended the hearing by conference telephone and gave sworn evidence. The Tribunal deferred making a decision to allow time for the parties to provide any further evidence they wished to have considered.

2. Ms Dudfield provided further evidence which the Tribunal provided to Mr Oakley. Mr Oakley did not provide any further evidence or any comment on the additional material provided by Ms Dudfield.

3. In considering the application, the Tribunal took into account the oral evidence of Ms Dudfield and Mr Oakley, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 152) and additional material provided by Ms Dudfield, marked A1–A21.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal 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. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, 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 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 the Tribunal adopts that approach.

3. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

1. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.

2. The term pattern of care is not defined in the legislation. 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 states 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 after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentages of care determination and the requirements of the legislation are satisfied for new percentages of care determinations to be made.

3. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the 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.

4. The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

5. 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 either consider what care a person ‘has had’ or ‘is likely to have’ relative to the care period for which the decision is being made.

6. At pages 97 to 103 of Exhibit A are copies of text messages between the parents relating to the care of the children. Pages A3–A21 also contain copies of text messages between the parents relating to care of the children.

7. At page A2 Ms Dudfield states that for the 2022 calendar year Mr Oakley had care of [Child 1] for 15 nights and care of [Child 2] for ten nights. She states that for the 2023 calendar year Mr Oakley had care of [Child 1] for 18 nights and care of [Child 2] for 0 nights.

8. Ms Dudfield states that Mr Oakley had care of both children from 4 March 2022 to 6 March 2022; care of [Child 1] from 1 [Child 1] 2022 to 3 [Child 1] 2022 and from 13 May 2022 to 15 May 2022; and care of both children from 17 June 2022 to 19 June 2022, from 6 August 2022 to 7 August 2022, from 25 November 2022 to 27 November 2022 and from 26 December 2022 to 30 December 2022.

9. Ms Dudfield states that Mr Oakley had care of [Child 1] from 18 [Child 1] 2022 to 22 [Child 1] 2022, from 18 September 2022 to 25 September 2022, and from 26 December 2023 to 2 January 2024.

10. Ms Dudfield told the Tribunal that the information set out at page A2 was based on text messages she has kept, which are at pages A3–A21. She said text messages are the only way she and Mr Oakley communicate.

11. She said it was difficult to know exactly what percentages of care should be recorded as Mr Oakley’s care of the children is inconsistent.

12. When Ms Dudfield contacted Child Support on 22 July 2022, she advised that Mr Oakley was caring for the children for two nights per month and half of school holidays. She told the Tribunal that even that was overstating Mr Oakley’s care of the children.

13. Mr Oakley told the Tribunal that the amount of time he has care of the children has reduced significantly. He said the care used to be 50% for each parent. Now he does not see the children much because of the extensive hours he is working. It is a 1,200 km trip to pick up and drop off the children.

14. He said his care of the children started to reduce when Ms Dudfield’s youngest child was born, which was in May 2018. He said [Child 2] does not spend time in his care currently.

15. Mr Oakley said he has kept some text messages relevant to the care he has had of the children. Mr Oakley did not provide a copy of those messages to the Tribunal.

16. On the evidence available, the Tribunal accepts that the information provided by Ms Dudfield at page A2 is accurate as to the days the children spent in Mr Oakley’s care during the 2022 and 2023 calendar years.

17. The initial care percentages of 73% for Ms Dudfield and 27% for Mr Oakley were based on Mr Oakley having care of the children for two nights per fortnight and half of school holidays.

18. Based on the dates provided by Ms Dudfield, it is clear that Mr Oakley was not having that level of care of the children throughout 2022 and 2023. However, the Tribunal accepts Ms Dudfield’s original advice to Child Support that the pattern of care changed from 19 June 2022. The dates provided by Ms Dudfield show that Mr Oakley’s care of the children reduced further from 19 June 2022.

19. Whilst there does not seem to have been a regular pattern to Mr Oakley’s care of the children, on balance, the Tribunal finds the preferable decision is to accept Ms Dudfield’s initial advice in that regard. That is, Ms Dudfield be recorded as having 94% care of the children and Mr Oakley be assessed as having 6% care of the children.

20. Accordingly, in accordance with section 54F of the Act, the Tribunal revokes the pre‑existing care percentages, and pursuant to sections 49 and 50 of the Act determines new care percentages for the children as 94% for Ms Dudfield and 6% for Mr Oakley from 19 June 2022, notified on 22 July 2022.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Dudfield be recorded as having 94% care of [Child 1] and [Child 2], and Mr Oakley be recorded as having 6% care of [Child 1] and [Child 2], from 19 June 2022, notified to Child Support on 22 July 2022.