Keller and Cassidy (Child support)

[2019] AATA 5023

Keller and Cassidy (Child support) [2019] AATA 5023 (12 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016525

APPLICANT:  Mr Keller

OTHER PARTIES:  Child Support Registrar

Ms Cassidy

TRIBUNAL:Member P Sperling

DECISION DATE:  12 August 2019

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision to revoke existing percentage of care determinations and make new determinations - 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. Mr Keller and Ms Cassidy are the parents of [Child 1] (the child). Mr Keller is the parent liable to pay child support.

2. From 24 April 2018, the Department of Human Services – Child Support (the Department) had determined that Ms Cassidy had a percentage of care of 91% for the child and Mr Keller had a percentage of care of 9% for the child.

3. On 12 December 2018, Mr Keller notified the Department that there had been a change in the care and that the care had changed from 1 September 2018 to 44% (161 nights) care for Mr Keller and 56% care (204 nights) for Ms Cassidy.

4. On 8 January 2019, the Department decided to change the care determination to reflect that Mr Keller had 44% care of the child and Ms Cassidy had 56% care of the child from 1 September 2018, with effect from 12 December 2018. Ms Cassidy disagreed with the decision and lodged an objection on 8 February 2019. On 7 May 2019, an objections officer partly allowed Ms Cassidy’s objection and the care was changed to reflect that Ms Cassidy had 70% (252 nights) care of the child and Mr Keller had 30% (113 nights) care of the child from 1 September 2018, with effect from 12 December 2018.

5. On 13 May 2019, Mr Keller lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 12 August 2019. Ms Cassidy participated in the hearing via conference telephone and gave sworn evidence. On 26 July 2019, prior to the hearing, Mr Keller advised the tribunal that he would not be available to participate in hearing on the scheduled day due to work commitments and that the hearing should proceed in his absence, which the tribunal agreed to.

6. In making its decision, the tribunal took into consideration the documents (numbered 1 to 107) provided by the Department, which were also sent to Mr Keller and Ms Cassidy. Prior to the hearing, Mr Keller provided some additional documents (A1 to A5) and Ms Cassidy provided some additional documents (numbered B1 to B20) which were all copied to the other parties.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of the child?

1. The Department’s documents show that on 12 December 2018, Mr Keller advised online that he had increased his nights of care to 44% care since 1 September 2018.

2. During the hearing, Ms Cassidy stated that she had recommenced work on a part-time basis from sometime in August 2018 and that a court parenting order of 27 April 2018 was in place (a copy of which is contained in the Department’s documents). Under the court order, from April 2018 to September 2018 during the periods that Mr Keller was in Melbourne, he was to have three nights’ care per fortnight which would increase to five nights’ care per fortnight from September 2018 and increase again to seven nights’ care per fortnight from September 2019. Ms Cassidy also acknowledged that the court order provided for Mr Keller to have care at other times, as agreed between the parents. Consistent with this, she said that from 1 September 2018, she fully expected Mr Keller to have care of the child for about nine nights per month plus around five additional nights’ care over the following year. She told the tribunal that, as it happened, these care arrangements were not implemented in full until about December 2018, because of various work and other commitments that Mr Keller had between September and December 2018. However, she acknowledged that from 1 September 2018, she had been expecting that Mr Keller would have about 113 nights of care in the course of the year.

10.In his discussions on this matter with the Department, the Department’s records show that Mr Keller advised that he works interstate in a fly-in-fly-out job with a rotating roster. He provided the Department with a copy of his work roster which showed that, between 1 January 2018 and 31 December 2018, he was rostered off or in transit to or from interstate, and therefore potentially available to care for the child, on 161 nights.

11.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to the child be revoked?

12.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if, among other things, the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children (paragraph 54F(1)(a)).

13.In his evidence to the Department, Mr Keller maintained that he had care of the child every Tuesday, Thursday, Friday and Saturday night when he was in Melbourne. In addition, he said that from 1 September 2018, his mother, the child’s paternal grandmother (the grandmother), was providing two nights of care per week, or eight nights per month, on his behalf when he was not in Melbourne, and that this allowed Ms Cassidy to work early shifts on the following mornings. He advised the Department that this equated to a total of 161 nights per year or 44% of the care of the child.

14.During the hearing, Ms Cassidy disputed that Mr Keller had care of the child every night that he was in Melbourne which she said was effectively what he was claiming. She acknowledged that from 1 September 2018, the grandmother had been caring for the child about when she had to work early shifts the next day, but that this represented a maximum of four nights per month. She said that she always arranged this care with the grandmother, she was the primary contact person while the child was in the grandmother’s care (noting that Mr Keller was interstate at these times), she was the parent available to deal with emergency situations, she dropped off and picked up the child, and she fed and bathed the child before she took the child to the grandmother’s house. She confirmed that Mr Keller was not involved in negotiating any of the times the grandmother cared for the child and that she was the parent who asked the grandmother whether she could provide care on a week-to-week basis, depending on her work roster.

1. Mr Keller provided some additional evidence which he claimed showed that Ms Cassidy did not always bathe and feed the child before the child was dropped off with the grandmother. This was basically one text message, dated 22 July 2019, in which Ms Cassidy stated that she had not fed the child dinner before dropping her off at 4.20 pm. When asked about this during the hearing, Ms Cassidy said that this text message was related to one occasion in July 2019 when she had to work a night shift which commenced at 4.45 pm, and so she took the child to the grandmother’s house at 4.30 pm, before dinnertime. The tribunal did not accept that this evidence from Mr Keller was significant or relevant in determining this matter.

16.The tribunal is satisfied that, in accordance with the court order, there was an expectation that Mr Keller would provide about nine nights of care per month, or 108 nights of care per year, for the child. The tribunal also accepts Ms Cassidy’s evidence that she expected that there could be a further five nights of care provided by Mr Keller, as negotiated between the parties throughout the course of the year, and that this would take Mr Keller’s total expected care from 1 September 2018 to 113 nights per annum.

1. In addition, the tribunal accepts that when the child was staying with the grandmother, Ms Cassidy retained care of the child and delegated that care to the grandmother. The tribunal is also satisfied that Ms Cassidy consulted the grandmother on each occasion to arrange for care to be provided on her behalf and that Ms Cassidy had responsibility for negotiating this care and retained responsibility for making decisions about the child’s welfare while the child was in the grandmother’s care. The tribunal put particular weight on the fact that Ms Cassidy dropped off and picked up the child from the grandmother’s house and that she was the parent available and on call in Melbourne to make decisions about the child or deal with emergency situations at these times. In addition, the tribunal had regard to Ms Cassidy’s evidence that she usually bathed and fed the child before taking the child to the grandmother’s house.

2. On the basis of these findings, the tribunal accepts that on the nights when the child was sleeping at the grandmother’s house, the child remained in the care of Ms Cassidy, and that these nights should be taken to be care provided by Ms Cassidy in determining Ms Cassidy’s percentage of care during the period under review. Further, after consideration of all of the available evidence, including the work rosters of both parents, the tribunal accepts Ms Cassidy’s view that the grandmother had care of the child a maximum of four nights per month, rather than eight nights per month as maintained by Mr Keller.

3. In this case, the tribunal notes that conflicting information has been provided by the parents. However, consistent with the court order, the tribunal is satisfied that from 1 September 2018, there was an expected and planned change in the pattern of care such that Mr Keller was expected to have 113 nights of care per year. In reaching this conclusion, the tribunal has accepted the highest point of agreement between Mr Keller and Ms Cassidy; that is, 113 nights’ care of the child from 1 September 2018.

4. On this basis, the tribunal is satisfied that from 1 September 2018, Ms Cassidy had 70% (252 nights) care of the child and Mr Keller had 30% (113 nights) care of the child, and therefore a new determination of care is to be made, as required under section 50 of the Act.

21.The tribunal has determined that a care determination was made under section 50 of the Act from 24 April 2018 such that Ms Cassidy had a percentage of care of the child of 91% and that Mr Keller had a percentage of care of 9% from the same date. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of the child, the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

22.The tribunal is required to consider the actual care of the child during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal, but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the 12-month period from 1 September 2018, being the date on which the court order determines that a change to care arrangements was to occur.

23.As the tribunal has concluded that Ms Cassidy’s and Mr Keller’s care percentages were not the same as their determined care percentages and their cost percentages would change if new determinations were to be made, paragraph 54F(1)(b) of the Act is satisfied, and as section 54G does not apply (paragraph 54F(1)(c)), the tribunal must revoke the existing determinations of percentages of care and make a new care determination that Ms Cassidy has 70% care of the child and that Mr Keller has 30% of care of the child from 1 September 2018. However, as this change in care was not notified to the Department until 12 December 2018, which is more than 28 days after the change in care occurred, the revocation of the existing determination will apply from 31 August 2018 for Ms Cassidy and 11 December 2018 for Mr Keller.

DECISION

The tribunal affirms the decision under review.