Fehrman and Digne (Child support)

[2021] AATA 472

Fehrman and Digne (Child support) [2021] AATA 472 (15 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/BC020081 & 2020/BC020087

APPLICANT:  Ms Fehrman

OTHER PARTIES:  Mr Digne

Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   15 January 2021

DECISIONS:

The decisions under review are set aside and, in substitution:

• Ms Fehrman is recorded as providing 100% care and Mr Digne is recorded as providing 0% care to [Child 1] with effect from 20 January 2020; and

• Ms Fehrman is recorded as providing 100% care and Mr Digne is recorded as providing 0% care to [Child 1] with effect from 26 April 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decisions 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 DECISIONS

1. Ms Fehrman and Mr Digne are the parents of three children. In 2013 a child support case was registered with what is commonly called the Child Support Agency or CSA. The current proceedings concern the recorded care of the parents’ oldest child, [Child 1], who was born in 2004.

2. By way of background, in 2019 the CSA decided to record Mr Digne as providing 80% care and Ms Fehrman as providing 20% care to [Child 1].

3. On 13 February 2020, Ms Fehrman reported a change in care from 20 January 2020.

4. On 26 March 2020, Mr Digne reported a change in care from 4 March 2020.

5. On 15 May 2020, Ms Fehrman reported a change in care from 26 April 2020.

6. On 19 June 2020 the CSA made three care decision: it decided to record Ms Fehrman as providing 100% care from 20 January 2020; Mr Digne as providing 100% care from 4 March 2020, and Ms Fehrman as providing 100% care from 26 April 2020.

7. Mr Digne promptly objected to the first and third care decisions. Neither parent objected to the second care decision.

8. On 16 October 2020 an objections officer allowed Mr Digne’s two objections and decided to not record a change in care from 20 January 2020 or 26 April 2020.

9. Ms Fehrman promptly applied to the Tribunal for review of those two decisions. I conducted a hearing on 15 January 2021. Ms Fehrman and Mr Digne gave sworn evidence by conference phone.

10. Ms Fehrman gave evidence of the periods during which [Child 1] was in her care. Put simply, she stated that [Child 1] was in her full-time care during the nights of 20 January 2020 to 2 March 2020 (apart from the night of 27 January 2020) inclusive, and she was in her full-time care from 26 April 2020 until December 2020.

11. Mr Digne disagreed with Ms Fehrman’s evidence, but he appeared reluctant to discuss when Ms Fehrman had provided overnight care. In his opinion, the issue was irrelevant because (on his account of events) the parents had reached an agreement whereby, regardless of the actual care being provided, neither of them was to report a change in care to the CSA, and the payment of child support was to be a private matter. Ms Fehrman stated that the parents had not made such an agreement. In the absence of any further evidence on point, I find that the parents had not reached such an agreement. As an aside, even if they had reached such an agreement, the CSA would still have been required to make care decisions upon receipt of information that a change in care may have occurred.

12. Mr Digne stated that he was unable to identify when Ms Fehrman had provided care. However, the CSA’s file notes of its various conversations with Mr Digne include the following:

• “[Mr Digne] stated when [Child 1] went to stay with [Ms Fehrman] on 20 January 2020, he and [Ms Fehrman] had an arrangement …”: page 136 of the hearing papers in matter 2020/BC020087.

• “[Child 1] is only staying there to help out [Ms Fehrman]”: page 19 of the hearing papers in matter 2020/BC020087, in a file note dated 18 February 2020.

• “[Mr Digne] mentioned that the child did go to the mother’s but then attempted to harm herself [on 3 March 2020] and ended up in hospital. He advised that the children refused to go to the mother’s for about 6 weeks after this. That the child went to the mother’s again after the April school holidays”: page 44 of the hearing papers in matter 2020/BC020087.

1. During her dealings with the CSA, Ms Fehrman specified the nights on which she claimed to have provided care. Mr Digne had ample opportunity to provide evidence to the contrary, if it existed. He has not provided such evidence, and, as noted earlier, he was reluctant to engage in a detailed discussion of the nights of care that Ms Fehrman claimed to have provided. On balance, I accept Ms Fehrman’s evidence on that central issue. I find that Ms Fehrman starting providing a pattern of full-time care from 20 January 2020, and again from 26 April 2020.

2. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Decision-makers are required to ascertain the pattern of care each parent has provided, and is likely to provide, during the relevant care period: sections 49 and 50 of the Act. Ms Fehrman started providing 100% care from 20 January 2020, and again from 26 April 2020. Both changes in care were promptly reported to the CSA. For those reasons, Ms Fehrman will be recorded as providing 100% care and Mr Digne will be recorded as providing 0% care from those dates pursuant to sections 49, 50, 54B and 54F of the Act.

DECISIONS

The decisions under review are set aside and, in substitution:

• Ms Fehrman is recorded as providing 100% care and Mr Digne is recorded as providing 0% care to [Child 1] with effect from 20 January 2020; and

• Ms Fehrman is recorded as providing 100% care and Mr Digne is recorded as providing 0% care to [Child 1] with effect from 26 April 2020.