Jowett and Ewings (Child support)

[2018] AATA 4514

Jowett and Ewings (Child support) [2018] AATA 4514 (1 November 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015008

APPLICANT:  Ms Jowett

OTHER PARTIES:  Child Support Registrar

Mr Ewings

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  01 November 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care on 4 May 2018.

CATCHWORDS
CHILD SUPPORT – percentage of care – no change to the likely pattern of care changed – existing percentage of care not revoked – 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. This review is about a change to the percentage of care determination for Ms Jowett and Mr Ewings in respect of the child [Child 1].

2. Ms Jowett and Mr Ewings are the parents of [Child 1] (born January 2011).  From 21 March 2017 the child support assessment reflected Ms Jowett as having 72 per cent care and Mr Ewings as having 28 per cent care of [Child 1].

3. On 25 May 2018, Mr Ewings advised the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating that he had care of [Child 1] for 143 nights per year from 4 May 2018.

4. On 18 July 2018, the Child Support Agency made the decision to refuse to change the care for [Child 1].

5. On 20 July 2018, Mr Ewings objected to this decision and on 6 September 2018 the Child Support Agency allowed the objection and made the decision to reflect that Ms Jowett provides 63 per cent care and Mr Ewings provides 37 per cent care of [Child 1] from 4 May 2018 (the objection decision).

6. On 11 September 2018, Ms Jowett applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

7. The Tribunal conducted a hearing into the application on 1 November 2018.  Ms Jowett gave evidence on affirmation by conference telephone.  The Tribunal wrote to Mr Ewings on 10 October 2018 advising the hearing had been scheduled for 1 November 2018 at 12:30 pm.  On 31 October 2018 Mr Ewings advised the Tribunal he was unable to attend the hearing and requested it be rescheduled.  The request was denied.  The Tribunal attempted to contact Mr Ewings by telephone at approximately 12:30 pm on 1 November 2018 and on one other occasion but was not successful.  The Tribunal was satisfied that Mr Ewings was given appropriate notice of the date and time of the hearing and proceeded in his absence. 

8. The Child Support Agency provided the Tribunal with papers relevant to the matter (192 pages).  Ms Jowett told the Tribunal she had not seen these papers but wished to proceed with the hearing.

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for [Child 1] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Ms Jowett told the Tribunal there were no court orders, parenting plans or written agreements in place regarding the care of [Child 1].  She said the care Mr Ewings had for [Child 1] was intermittent and irregular until around the time she applied for agency collection of child support at the beginning of 2018.  Ms Jowett said Mr Ewings then wanted to see more of [Child 1] which she welcomed.

2. As a result of the renewed interest Mr Ewings had for seeing [Child 1], Ms Jowett said the parents agreed on an informal care arrangement.  Ms Jowett told the Tribunal that under this arrangement Mr Ewings has the following care:

   ·     two nights per weekend on three out of every four weekends;

   ·     one week in the July school holidays and one week in the October school holidays;

   ·     a forecast two weeks in the Christmas school holidays; and

   ·     a forecast week in the April 2019 school holidays.

3. Ms Jowett said there were a few occasions when Mr Ewings had an extra night of care on a weekend, however, there were also occasions when he had less care.  She said even though Mr Ewings wanted to continue with this extra night of care on a regular basis, generally speaking care had taken place in accordance with their informal verbal agreement.

4. The Tribunal notes in evidence provided by Ms Jowett to the Child Support Agency on 25 June 2018, a series of text messages between the parents relating to this agreement.  These show Mr Ewings initially suggesting that he have care on a Friday and Saturday night every weekend from May to October as well as a week in both the July and October school holidays.  Ms Jowett agrees but requests one weekend of care to her and three weekends to Mr Ewings.  Mr Ewings then confirms his agreement to this proposal.

5. Ms Jowett said she was happy that Mr Ewings was spending more time with [Child 1] and the agreement was largely working.  She told the Tribunal Mr Ewings did have a week of additional care in both the July and October school holidays in accordance with the agreement.  Ms Jowett also said she felt the agreement would continue into the future.

6. Although Mr Ewings did not participate in the hearing, the Tribunal notes that a third-party statement was given to the Child Support Agency on 28 June 2018 in support of the care he provided for [Child 1].  The third-party statement from [Ms A], who is Mr Ewings’ partner, states that she has been present and involved in the care of [Child 1] on the following dates:

   ·     4, 5 and 6 May 2018;

   ·     11, 12 and 13 May 2018;

   ·     18, 19 and 20 May 2018;

   ·     1, 2 and 3 June 2018;

   ·     8, 9, 10 and 11 June 2018; and

   ·     16, 17 and 18 June 2018.

7. Ms Jowett said she agreed with most of the dates provided by [Ms A] but disputed four of these nights.  Ms Jowett told the Tribunal she had provided the Child Support Agency with a calendar of care and text messages showing the amount of care each parent had for [Child 1] from 1 May 2018 to 21 August 2018 as well as predicted care to the end of October 2018.  She said the calendar confirmed that care was consistent with the verbal arrangement but this had not been taken into account when the Child Support Agency made the objection decision.

8. The Tribunal notes in evidence, a care calendar and text messages provided by Ms Jowett to the Child Support Agency on 21 August 2018.  The care calendar shows Mr Ewings providing 29 nights care for [Child 1] in the period from 1 May 2018 to 21 August 2018.  It also shows expected care through to the end of October 2018 of an additional 22 nights to Mr Ewings, which Ms Jowett said took place.

9. The Tribunal reviewed the text messages provided in the evidence and is satisfied these support the nights of care as set out by Ms Jowett in her care calendar.

10. Ms Jowett told the Tribunal the care arrangement between the parents was flexible enough to allow for contingencies.  She reiterated that actual care continued to be in line with this agreement and the care calendar she provided did not establish that Mr Ewings had 37 per cent care of [Child 1].

11. Text messages between the parents confirm that an arrangement was reached for care of [Child 1] from 1 May 2018.  The care calendar provided by Ms Jowett is consistent with the level of care as set out in the verbal care arrangement.  While the nights of care outlined in the third-party statement provided by [Ms A] do not align exactly with those in the calendar of care provided by Ms Jowett, the Tribunal is satisfied with the explanation provided by Ms Jowett for these differences.

12. The care arrangement agreed upon by the parents gives Mr Ewings annual care of 103 nights or 28 per cent care of [Child 1].  The care calendar provided by Ms Jowett for the period 1 May 2018 to 31 October 2018 gives Mr Ewings care of 51 nights or 27 per cent care.  The Tribunal notes that even if the additional four nights in dispute were added to the care provided by Mr Ewings as set out in this calendar, it would not impact on his cost percentage.

13. On balance, after weighing up the evidence provided, the Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by Mr Ewings.  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care on 4 May 2018.