Gaffney and Oakes (Child support)

[2018] AATA 1731

Gaffney and Oakes (Child support) [2018] AATA 1731 (6 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013275

APPLICANT:  Ms Gaffney

OTHER PARTIES:  Child Support Registrar

Mr Oakes

TRIBUNAL:Member S Letch

DECISION DATE:  06 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Pattern of care changed - Decision under review affirmed

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. Ms Gaffney and Mr Oakes are the parents of [Child 1] and [Child 2] (the children).

2. Prior to 22 January 2016, care for the children had been recorded as 50% each to both Ms Gaffney and Mr Oakes. On 22 January 2016, Mr Oakes advised the Department of Human Services (the Department) that, from 15 January 2016, he had 100% care of the children. On 8 February 2016, an officer of the Department decided not to accept Mr Oakes’ advice and declined to revoke the existing pattern of recorded care.

3. On 16 February 2016, Ms Gaffney contacted the Department to end the child support case. The Department wrote to Ms Gaffney (and Mr Oakes) the same day to advise her request had been accepted.

4. On 18 February 2016, Mr Oakes objected to the decision of 8 February 2016. On 7 April 2016, an objections officer allowed Mr Oakes’ objection – care for the children was recorded as 100% to Mr Oakes, and 0% to Ms Gaffney, from 15 January 2016.

5. On 11 January 2018, Ms Gaffney applied for review by the Tribunal (notably, more than 28 days after receiving the objections decision). The Tribunal conducted a hearing on 12 March 2018. Ms Gaffney attended the hearing in person; Mr Oakes participated by conference telephone.

CONSIDERATION

1. Ms Gaffney told the Tribunal that she considers there was no change to the pattern of care – care should have continued to be recorded as it always has been, namely “50/50” (subject to some flexibility or variations as agreed between the parties, which both parties generally agreed “balanced out”). Mr Oakes told the Tribunal he had 100% care from the date he advised to the Department; that persisted until late April or early May 2016 (Mr Oakes recalled this was around the time as this was the time of [a specified event] on 7 May 2016). Care reverted to “50/50” – on a week about basis – from that time.

2. Ms Gaffney indicated that the children may have been with Mr Oakes for “a couple of weeks” in January 2016; however, they returned to the “50/50” care thereafter.  Ms Gaffney told the Tribunal her personal circumstances changed in July 2017 – she was surprised when advised by the Department that she incurred a child support debt as a result of the way the Department recorded care.

3. Mr Oakes told the Tribunal there had been an incident involving police when the children were with Ms Gaffney – he said they did “not feel safe”; this is why they chose to stay with Mr Oakes. Mr Oakes said that he told the Department in late April or early May about the return to “50/50” care; he was told that the “case had been closed”. Mr Oakes’ evidence to the Department included a signed letter from his sister dated 12 February 2016 confirming the children had been in Mr Oakes’ 100% care from 15 January 2016.

4. Ms Gaffney denied there were police involved; she said there were no safety issues for the children. She had an argument with [Child 1]. She reiterated the children returned to her care “within a couple of weeks”; she rejected the statement by Mr Oakes’ sister. Mr Oakes told the Tribunal that he was present when police were in attendance; he told the Tribunal he is able to obtain police reports to confirm his side of events. He said he had received a text from [Child 1] seeking assistance; he also received a text from Ms Gaffney’s partner, who was also present during the incident. Mr Oakes said Ms Gaffney’s partner had told him he had to “separate” Ms Gaffney from [Child 1] during the incident. Mr Oakes said three police cars were in attendance, and the children gave statements to police.

5. Ms Gaffney told the Tribunal she had gone to a girlfriend’s house after the argument with [Child 1]; she said this (the hearing) was the first she had heard that police had attended her home during her absence. Mr Oakes confirmed Ms Gaffney was not present at the residence whilst police were there; Ms Gaffney said “not even my partner told me about it”. Mr Oakes did not have a specific recollection of advising Ms Gaffney that police had been involved in email communication with her about the children staying with him. Ms Gaffney said neither of her daughters had advised her they had made statements to police.

6. Ms Gaffney supplied a statutory declaration dated 25 January 2018 during the hearing, which briefly stated that, consistent with her representations to the Department and to the Tribunal, she has had 50% care of the children week on, week off, since November 2007. Ms Gaffney was provided the opportunity to provide additional materials within seven days following the hearing; the Tribunal received an email in which Ms Gaffney essentially reiterated her previous submissions.

7. In response to the Tribunal’s questions regarding her late application to the Tribunal, Ms Gaffney said that she was still grieving from the loss of her mother, and that the Department had not had any “major role” in providing assistance for the children. At the relevant time, she did not need financial support as her (then) partner had a good income. She said that Centrelink had advised her that she was entitled to child support when she had sought their assistance. Mr Oakes told the Tribunal that there were no special circumstances which prevented Ms Gaffney making her application to the Tribunal within 28 days.

8. The law relevant to this decision is contained in the Act. Sections 49 and 50 of the Child Support (Assessment) Act 1989 (the Act) require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination ought to be revoked. The date of effect is when the previously determined pattern of care ceased: subsection 54G(2).

9. If section 54G does not apply, section 54F provides that if the Department was notified, or otherwise became aware, of the change within 28 days after that day, then revocation takes effect the day before the change of care day (subparagraph 54F(2)(a)(ii)). However, if the Department is notified or becomes aware more than 28 days after the change of care day that the care of the child no longer corresponds with the existing care determination, the revocation takes effect on the day that the Department was so notified.

10. The Child Support Guide, at 2.2.2, reflects the general approach adopted by the case law in determining whether there has been a change to the pattern of care:

    What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

    ·     the parent misses 3 care events in a row,

    ·     the parent misses 5 events of care out of 8, or

    ·     the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

11. The Tribunal found Mr Oakes a consistent and forthright witness, and accepted his evidence. The Tribunal had some difficulty accepting Ms Gaffney’s evidence that she was not aware until the Tribunal’s hearing that police had been involved in the incident with her daughter; it seemed implausible that her partner, children and neighbours would not have discussed with her the involvement of police.  To the extent of any inconsistency, the Tribunal preferred Mr Oakes’ evidence.

12. The Tribunal accepts that the children remained in Mr Oakes’ 100% overnight care from 15 January 2016 to around late April 2016.

13. The Tribunal is satisfied that this change in the care arrangement was a material, and not minor, change to the pattern of care. The existing percentage of care reflecting “50/50” care should be revoked from 14 January 2016, and a new percentage of care recorded as 100% to Mr Oakes and 0% to Ms Gaffney with effect from 15 January 2016.

14. Given the Tribunal has reached the same conclusion as the objections officer, there is no requirement to consider whether there should be a determination under section 95N of the Child Support (Registration and Collection) Act 1988.

15. The decision under review will be affirmed.

DECISION

The decision under review is affirmed.