Kaake and Kaake (Child support)

[2020] AATA 5578

Kaake and Kaake (Child support) [2020] AATA 5578 (16 November 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC020061

APPLICANT:  Ms Kaake

OTHER PARTIES:  Child Support Registrar

Mr Kaake

TRIBUNAL:Member R King

DECISION DATE:  16 November 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution decides that Ms Kaake had 89% of [Child 1’s] care and Mr Kaake had 11% of her care, with effect from 19 November 2019.

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 – 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. Ms Kaake and Mr Kaake are the parents of [Child 1], currently aged 13 years, and [Child 2], currently aged 10 years.  This decision is concerned only with the care percentage each parent had for [Child 1].  The tribunal will make no further reference to [Child 2] unless it has relevance to the care percentage for [Child 1].

2. From 25 October 1999 the Child Support Agency (CSA) recorded Ms Kaake as having 77% of the care of [Child 1] and Mr Kaake as having 23% of the care of [Child 1] for purposes of assessing the amount of child support that Mr Kaake had to pay to Ms Kaake.  This percentage of care was consistent with a parenting plan.

3. On 2 December 2020, Ms Kaake advised the CSA that [Child 1] was spending less time with her father because of [sports] commitments.  After further investigation, on 10 June 2020, the CSA determined that Ms Kaake had 90% of the care of [Child 1] and Mr Kaake had 10% of her care from 19 November 2019.

4. On 24 July 2020, Mr Kaake objected to the care percentage decision for [Child 1], and provided records of dates when he said that she was in his care.  Ms Kaake provided her version of the dates when she believed that [Child 1] was in the care of her father.

5. On 13 October 2020, an objections officer allowed Mr Kaake’s objection.  The objections officer found that, while there was a dispute about the care dates, the overall pattern of care was broadly consistent with the parenting plan and amounted to regular care.  The objections officer decided that Ms Kaake had not established a sufficient basis for disturbing the percentage of care as set out in the parenting plan.  This meant that [Child 1’s] care must be recorded as 77% with her mother and 23% with her father from 25 October 2019.

6. On 15 October 2020 (within 28 days of receiving the objection decision), Ms Kaake applied to the tribunal for review.  The tribunal accepted Mr Kaake’s request to be added as a party to Ms Kaake’s application.

7. The tribunal conducted a hearing on 16 November 2020.  Both Ms Kaake and Mr Kaake participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. During the hearing, Ms Kaake submitted that Mr Kaake did not have [Child 1] in his care on some of the dates provided to the objections officer as care dates for her.  She said that these dates included periods when he had [Child 2] but not [Child 1] in his care, when [Child 1] was at a [sports] camp with her or when [Child 1] was staying with a friend.  She also submitted that the period of time that the objections officer had used to calculate the percentage of care distorted the overall pattern because it included two school holiday periods, when Mr Kaake usually had more care.

2. Mr Kaake told the tribunal that he had maintained accurate records of care which he could support with text message evidence.  He said that the two times that [Child 1] had stayed with her friend should be counted towards his care as they occurred during his care period and he had taken [Child 1] to and picked her up from the friend’s house.  He was responsible for [Child 1] during these periods.

3. During the hearing, the tribunal discussed each of the disputed care periods with Ms Kaake and Mr Kaake.  Mr Kaake said that he accepted that on two of the disputed care periods, [Child 1] was in Ms Kaake’s care and not his.  He said that on the other disputed dates, [Child 1] was in his care, either staying overnight with him or staying with her friend.  Ms Kaake submitted that when [Child 1] was staying with a friend, she was not in Mr Kaake’s care and she disagreed with some of the dates that he had claimed as care dates.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide (the Guide) contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Ms Kaake had 77% of [Child 1’s] care and that Mr Kaake had 23% of her care. These care percentages were based on a parenting plan agreed between the parents.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. The tribunal is satisfied, on the evidence before it, that from 19 November 2019, the actual care of [Child 1] did not correspond with the care percentages recorded by the CSA.  The tribunal notes that the objections officer accepted that the parenting plan was not necessarily an accurate guide to the pattern of care as the parents made care arrangements independently of the plan.  However, the objections officer was satisfied that the percentage of care provided by Mr Kaake was at least regular care (14%-35%) and that it made no difference whether the pattern of care was recorded based on the parenting plan or the actual care dates.

5. The objections officer gave consideration to the pattern of care between 19 November 2019 (the date of effect of the change of care decision under review) and 24 July 2020 (the date of lodgement of Mr Kaake’s objection).  The tribunal is of the view that this a reasonable period to allow a determination as to whether a pattern of care has changed sufficiently to warrant recording a new care percentage with effect from 19 November 2019.

6. In consideration of this period, the tribunal accepts Mr Kaake’s submission that when [Child 1] stays over at a friend’s house during a period when he has care, he maintains responsibility for [Child 1] and such nights should be recorded as him providing care.  This is consistent with care including responsibility, availability and transport.

7. When these nights are included, it is common ground that Mr Kaake had the care of [Child 1] on the nights of the 21^st, 22^nd, 23^rd and 25^th to the 31^st (inclusive) of December 2019 (ten nights); the 4^th of January (one night); the 8^th and 14^th of February (two nights); the 27^th and 28^th of March (two nights); the 24^th and 26^th of April (two nights); the 8^th, 9^th, 16^th and 17^th and 29^th to the 31^st (inclusive) of May (seven nights); and, the 16^th and 17^th of July 2020 (two nights).

8. There are a total of five nights that are disputed by the parties.  The tribunal does not have an evidentiary base for assigning these nights and will subtract five nights from the potentially available nights.

9. The tribunal has calculated that, excluding the five disputed nights, there were a total of 242 potential care nights during the period between 19 November 2019 and 24 July 2020.  The tribunal is satisfied that Mr Kaake had the care of [Child 1] on 26 of these nights.  This is 11% (rounded up) of the available care.  Even if the five disputed nights were counted and assigned to Mr Kaake, his percentage of care would be at most 13% (rounded up), which is still less than regular care.

10. If the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination within 28 days of the change of care day, the revocation of the existing care percentage determinations pursuant to subsection 54F(3) has effect, for the person with increased care, from the day before when the change in care percentage occurs. This date also is the date of effect for the person with the reduced care. It follows that the date of effect of revocation for both parents is 19 November 2019.

11. It follows that, under sections 49 and 50 of the Act, the existing care determinations must be revoked and replaced with new care determinations that reflect the actual percentages of care provided by each parent. The tribunal accordingly determines under sections 50 and 49 respectively that from 19 November 2019, Ms Kaake had 89% of [Child 1’s] care and Mr Kaake had 11% of her care.

12. While the evidence before the tribunal indicates that a parenting plan was in force at the time of the change in care, there is no evidence to suggest that Ms Kaake was withholding [Child 1] or that Mr Kaake was taking reasonable action to ensure compliance with the parenting plan.  It follows that there is no basis for an interim care period that reflects the parenting plan.

DECISION

The tribunal sets aside the decision under review and, in substitution decides that Ms Kaake had 89% of [Child 1’s] care and Mr Kaake had 11% of her care, with effect from 19 November 2019.