Elwes and Dickson (Child support)

[2024] AATA 2903

Elwes and Dickson (Child support) [2024] AATA 2903 (8 July 2024)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027543

APPLICANT:  Mr Elwes

OTHER PARTIES:  Child Support Registrar

Ms Dickson

TRIBUNAL:Member J Thomson

DECISION DATE:  8 July 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentage determinations for the children are 33% to Mr Elwes and 67% to Ms Dickson from 19 June 2022, notified on 19 October 2022.  

The Tribunal decides not to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and therefore the date of effect of the decision is 21 February 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – existing percentage of care determinations revoked – 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 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. Mr Elwes and Ms Dickson are the parents of [Child 1], born 2012, and [Child 2], born 2014 (the children).

2. Mr Elwes seeks review of an objection decision made by Services Australia (Child Support) made on 13 October 2023. This decision disallowed his objection to an earlier Child Support decision made on 15 November 2022, deciding to reflect the care for the children as 78% to Ms Dickson and 22% to Mr Elwes from 19 June 2022, notified on 19 October 2022.

3. The Tribunal heard the matter on 28 May 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 203) admitted into evidence and marked Exhibit 1 and documentation provided by Mr Elwes (folios A1 to A19), admitted into evidence and marked Exhibit A.

4. Both parents had copies of these documents with them at the hearing, albeit the Child Support documents folios 1 to 191 were not numbered. In the event, the parents were content to proceed with the hearing.

5. At the conclusion of the hearing, the Tribunal directed Mr Elwes to provide a copy of Court Orders dated [in] March 2018 (the Court Orders) reflecting the care pattern for which he contended in his evidence at the Tribunal hearing. Mr Elwes has complied with the Tribunal’s direction and the copy of the Court Orders has been added to his Exhibit A documents. The Tribunal did not consider it necessary to provide a copy of the Court Orders to Ms Dickson as she was a party to those proceedings and indicated that she was familiar with the terms thereof.

ISSUES

1. The issues which arise in this case are:

   ·      Has there been a change in the pattern of care for the children which requires the existing percentages of care to be revoked and new care percentage determinations made? And if so;

   ·      From what date should the new care percentage determinations apply?

   ·      What is the date of effect of the decision?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibits 1 and A before the Tribunal at the hearing and provided post hearing.

2. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, 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, relevantly, 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”.

3. On 19 October 2022, Ms Dickson notified Child Support of a change in care for the children which she said occurred on 19 June 2022. Prior to her notification, the care percentages being assessed by Child Support were 60% to Ms Dickson and 40% to Mr Elwes.

4. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, the approach the Tribunal intends adopting in this case. The Tribunal will therefore consider the parents’ care patterns over the course of the period 19 June 2022 to 18 June 2023.

5. As noted in the background summary above, Mr Elwes provided a copy of the Court Orders of [March] 2022 (see pages A20 to A33 of Exhibit A). Paragraph 12 of these Orders provided relevantly that Mr Elwes would have care of the children in fortnightly cycles during school term, from 4.30pm on Friday to 5.00pm on Sunday and each Wednesday night from 4.30pm until 8.45am the following Thursday plus half the school holidays; effectively 122 nights of care equating to 33% care calculates as follows:

   Half school holidays: 6 weeks (6 x 7 = 42 nights care);

   School term:

   (a)Friday night to Sunday afternoon each fortnight – 20 weeks (20 x 2 = 40 nights of care);

   (b)Wednesday night to Thursday morning each week – 40 weeks (40 x 1 = 40 nights of care).

   Total: 122 nights of care (122 / 365 x 100 = 33.42%, rounded down pursuant to section 54D of the Act to 33%).

6. He also gave evidence of his inexperience in and difficulty with navigating the processes of the Child Support legislation regarding changes of care issues.

7. Mr Elwes gave evidence that prior to 19 June 2022, there was a period when he had 100% care of the children but neither parent had sought to have the care percentage determinations altered to reflect that level of care; his evidence was that the care percentages being recorded prior to Ms Dickson’s notification on 19 October 2022 at 40% to him and 60% to Ms Dickson were based on an agreed variation of the court-ordered care pattern set out above to include occasional additional nights of care due to religious events, birthdays and other special occasions resulting in him having a total of approximately 146 nights of care.

8. There was no evidence before the Tribunal that either parent had sought to have the care percentage determinations changed to reflect the care arrangements set out in the Court Orders.

9. Mr Elwes’s issue at the hearing related to the care percentages of 78% to Ms Dickson and 22% to Mr Elwes determined by Child Support in the original Child Support decision and the objection decision under review, pursuant to Ms Dickson’s notification on 19 October 2022 reflected in Child Support’s file record at page 55 of Exhibit 1, on the premise that Mr Elwes was not having care of the children on Wednesday nights as prescribed in the Court Orders, according him a reduced level of care of 82 nights or 22% care (two nights of weekend care, Friday to Sunday morning per fortnight in school term time and half the school holidays).

10. Ms Dickson gave evidence that Mr Elwes ceased having his regular Wednesday night care of the children from 6 July 2022 until approximately 19 October 2022. She said that during this period, the parents were experiencing difficulty in communicating with each other regarding the care arrangements for the children, and consequently she notified Child Support of the change in care on 19 October 2022, nominating 19 June 2022 as the change in care event.

11. Ms Dickson also acknowledged and agreed that she had not maintained any contemporaneous record of the actual care of the children taking place during the period from July 2022 to October 2022. She also acknowledged and agreed that neither of the third party witness statements she provided from her sister, [named] (see pages 152 to 153 of Exhibit 1) and her friend, [named] (see page 154 of Exhibit 1) afforded any assistance in identifying, with particularity, the actual care of the children taking place during this period.

12. Following discussions with the Tribunal during the course of the hearing, both parents acknowledged and agreed that, from 19 June 2022, they had agreed to follow the care arrangements set out in the Court Orders referred to above, according Mr Elwes 122 nights of care equating to 33% care and 243 nights of care equating to 67% care to Ms Dickson. The Tribunal finds the parents’ care during the care period of 19 June 2022 to 18 June 2023 reflects court-ordered care.

13. The Tribunal is satisfied there was a change in care for the children on 19 June 2022 from the pre-existing care pattern reflected in the care percentages of 60% to Ms Dickson and 40% to Mr Elwes and that since that date, the care pattern being followed by the parents has been the care pattern reflected in the Court Orders as set out above.

14. The Tribunal considers section 54G has no application in this case. However, as the Tribunal is satisfied the care of the children actually taking place does not correspond with the existing care percentages for the children, and as the cost percentages of the parents will change as a consequence to the new care percentage determinations the Tribunal intends applying, the Tribunal finds section 54F of the Act applies in this case.

15. The Tribunal therefore revokes the pre-existing care percentage determinations of 40% to Mr Elwes and 60% to Ms Dickson pursuant to section 54F of the Act .

16. Pursuant to subsections 50(2) and (3) of the Act, the Tribunal determines new care percentages of 33% to Mr Elwes and 67% to Ms Dickson.

17. Pursuant to section 54B, the new care percentage determination of 33% to Mr Elwes applies from 19 June 2022 and the new care percentage determination of 67% to Ms Dickson applies from 19 October 2022.

18. Ms Dickson did not notify the change in care of the children she said occurred on 19 June 2022 until 19 October 2022, more than 28 days after the change in care event occurred. Pursuant to subparagraph 54F(3)(b)(i) of the Act, as the responsible person whose care has increased, the revocation of the pre-existing care percentage determinations will take effect for Ms Dickson on 18 October 2022, that being the day before she notified the Registrar of the change in care of the children on 19 October 2022.

19. For Mr Elwes the responsible person whose care has decreased pursuant to subparagraph 54F(3)(b)(ii), the revocation of his pre-existing care percentage determination will take effect on 18 June 2022, the day before the change of care day on 19 June 2022.

20. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal will set aside the objection decision and, in substitution, decides that care percentage determinations for the children of 33% to Mr Elwes and 67% to Ms Dickson are to apply from 19 June 2022, notified on 19 October 2022.

Date of effect of the Tribunal’s decision

1. Mr Elwes’s application for AAT first review of the objection decision dated 13 October 2023 was lodged on 21 February 2024, more than 28 days after notification of the objection decision on 13 October 2023 (see page 5 of Exhibit 1).

2. At the hearing he acknowledged and agreed he had received Child Support’s letter of 13 October 2023 notifying him of the objections officer’s decision of that date “online” and that it also notified him of his appeal rights.

3. He gave evidence that he contacted Child Support on 13 October 2023 to discuss his appeal rights and seek procedural advice but said he did not know how to go about that process.

4. The Tribunal is not satisfied Mr Elwes has established the existence of special circumstances, as contemplated in paragraph 95N(2)(b) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), which prevented him from lodging his application for AAT first review of the objection decision of 13 October 2023 within time and accordingly, pursuant to paragraph 95N(1)(a) of the Registration Act, the date of effect of the Tribunal’s decision for Mr Elwes will be 21 February 2024, that being the day his application for AAT first review was made.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentage determinations for the children are 33% to Mr Elwes and 67% to Ms Dickson from 19 June 2022, notified on 19 October 2022.  

The Tribunal decides not to make a determination pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and therefore the date of effect of the decision is 21 February 2024.