Goffe and Goffe (Child support)

[2020] AATA 1476

Goffe and Goffe (Child support) [2020] AATA 1476 (13 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018172

APPLICANT:  Mr Goffe

OTHER PARTIES:  Child Support Registrar

Ms Goffe

TRIBUNAL:Member K Dordevic

DECISION DATE:  13 March 2020

1. The decision of the tribunal and the reasons for the decision were delivered orally on 13 March 2020.

2. The following paragraphs are the reasons for the tribunal’s decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision under review affirmed

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

1. Relevant to this application, Mr Goffe and Ms Goffe are the parents of [the Child]. This application concerns [the Child]’s care arrangements from 31 August 2019.

2. On 17 June 2019 the Department of Human Services – Child Support (the Department) determined that Mr Goffe had 0% care and Ms Goffe 100% care of [the Child] from 23 April 2019.

3. On 3 September 2019 Mr Goffe advised the Department that [the Child]’s care changed from 31 August 2019. On 3 October 2019 the Department refused his application.

4. Mr Goffe objected to that decision on 31 October 2019. On 3 January 2020 an objections officer disallowed the objection.

5. Mr Goffe sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 7 January 2020. The tribunal notes that Ms Goffe’s request to be represented by her brother and Mr Goffe’s request to have the matter rescheduled were both refused.

6. The matter was heard on 13 March 2020. Mr Goffe appeared by conference telephone. Ms Goffe appeared in person. In reaching its decision, the tribunal considered the sworn evidence of the parties as well as the documentation provided by the Department (folios 1-92). Mr Goffe provided additional documents (folios A1-A30) as did Ms Goffe (B1-B3), copies of which were provided to the Department. The tribunal notes that both parties provided submissions less than 14 days prior to hearing, which the tribunal did not accept into evidence; the parties were invited to provide their submissions orally at hearing.

7. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

10.  Relevant to this matter, section 50 of the Act requires the primary decision‑maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision‑maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

11.  The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter?

12.  Mr Goffe’s evidence can be summarised as follows. He wants at least one night a week care reflected in the care register from 31 August 2019. There is no care arrangement in place, but he states that this is because Ms Goffe prohibits regular care, and that he is willing and able to care for [the Child] on a regular basis.

13.  As to the pattern of care prior to notification, Mr Goffe stated from February to July 2019 he had about 8 to 9 nights care of [the Child]; he cannot be certain as he did not keep a care diary. When he notified the Department of the care change, he was planning on having 2 nights care per fortnight with [the Child].

14.  Ms Goffe does not dispute that overnight care commenced on 31 August 2019. However, she states that there is no set pattern; overnight care is negotiated directly between [the Child] and her father. The tribunal finds that there is generally no dispute between the parties that Mr Goffe had at least 25 nights care between 31 August 2019 and the end of February 2020, but there is no set pattern of nights per week or regular nights of care.

15.  As stated above, section 50 of the Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar (or this tribunal on review) is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. Most usually, the percentage determined will be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

16.  The tribunal is not satisfied that at the time of Mr Goffe’s notification, there was a change to [the Child]’s pattern of care, nor was it likely thereafter for a pattern of care to be established. Mr Goffe certainly expressed his hope when notifying the care change, that he would begin fortnightly care. However, his desire to have regular fortnightly care with his daughter does not mean that there was a new pattern of care in place at the time he notified the Department, or shortly thereafter. The tribunal reached this conclusion notwithstanding the fact that [the Child] did have some erratic overnight care in the following weeks. The tribunal finds accordingly.

17.  As stated above, there is a temporal element when determining care. The tribunal is not persuaded that at the time Mr Goffe notified the Department of the purported care change that there was an actual pattern of care whereby he would regularly care for [the Child]. Therefore, the Department was correct to refuse his application. Of course, if such a regular pattern of care is established going forward, it is open to the parties to notify the Department of this change and seek for a new care determination to be made.

DECISION

The decision under review is affirmed.