Kendrick and Dunajski (Child support)

[2019] AATA 3839

Kendrick and Dunajski (Child support) [2019] AATA 3839 (17 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC015693

APPLICANT:  Mrs Kendrick

OTHER PARTIES:  Child Support Registrar

Mr Dunajski

TRIBUNAL:Member F Hewson

DECISION DATE:  17 June 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision not to revoke the existing percentage of care determinations.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – existing percentage of care determinations should not be 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. Mrs Kendrick and Mr Dunajski are the parents of children in respect of whom there is a child support assessment. This application is about the percentages of care for the children used in the child support assessment.

2. From 2 November 2018, the Department of Human Services – Child Support (the Department) recorded that Mrs Kendrick had a percentage of care of the children of 76% and Mr Dunajski had a percentage of care of 24% (the existing care).

3. On 24 October 2018, Mr Dunajski advised the Department of a change in the care of the children, so that for about four weeks from 17 October 2018 he expected to have a percentage of care of 100%.

4. On 24 October 2018, the Department made a decision to make new percentage of care determinations for the child, to reflect that from 17 October 2018 Mrs Kendrick had a percentage of care of the children of 0% and Mr Dunajski had a percentage of care of 100%.

5. On 16 November 2018, Mrs Kendrick lodged an objection to the care decision of 24 October 2018. The objection was considered by an objections officer who, on 11 December 2018, disallowed the objection.

6. On 2 January 2019, Mrs Kendrick lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 9 April 2019. Mrs Kendrick spoke to the tribunal by conference telephone. Mr Dunajski also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mrs Kendrick and Mr Dunajski, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.  

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

8.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)   The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. As set out above, the Department was notified on 24 October 2018 of a change in the care of the children, from 17 October 2018. Mr Dunajski advised that he expected to have a percentage of care of 100% for a one-off block of care for at least four weeks. The Department’s records also show that Mrs Kendrick had called on the previous day to enquire about the care, and advised that Mr Dunajski would have 19 nights of additional care of the children from 17 October 2018, when she had an accident, until her care was to resume on 12 November 2018. Mrs Kendrick was advised that this change would not affect the child support assessment.

3. At the hearing Mrs Kendrick said she did not consider that the care of the children had changed when she was injured on 17 October 2018, but she required short-term assistance from Mr Dunajski while she recovered. She said she expected it to be a period of about two weeks, based on the medical advice she had received. That was what she discussed with Mr Dunajski, but he said he would drop the children off immediately if she didn’t agree to the longer period. She disagreed but he didn’t give her any options.

4. Mr Dunajski said he became aware that Mrs Kendrick was injured and that he would have increased care of the children when he spoke to the principal of the children’s school. He was advised that the period would be 3 – 4 weeks. He proceeded based on what the school advised him. He went with the worst case scenario and Mrs Kendrick confirmed that he would have the children until 12 November 2018 in a text message exchange. Mr Dunajski said he changed his work arrangements on that basis. He agreed that, in fact, he only had increased care of the children until 2 November 2018, when the care resumed in accordance with the previous pattern.

5. The documents provided by the Department include medical reports submitted by Mrs Kendrick which indicate that she would be unfit for work or for driving for two weeks from 17 October 2018, and text message exchanges between Mrs Kendrick and Mr Dunajski about the care of the children. It is evident from those exchanges that from the outset Mrs Kendrick expected that she would not be able to care for the children for about two weeks, due to her reduced mobility and the effects of the medication she was taking. On a number of occasions Mr Dunajski insisted that he would have the children for three weeks, based on the message received from the school. On occasion he stated that he would not agree to have the increased care of the children unless Mrs Kendrick agreed to half/half care going forward. On 21 October 2018 he referred to having the children until 12 November 2018 and indicated that if Mrs Kendrick did not agree to that date he would drop them off to her that evening. According to Mr Dunajski’s evidence Mrs Kendrick agreed on 23 October 2018 that he would have the children until 12 November 2018. That date is not clear from the text messages, but is consistent with Mrs Kendrick’s contact with the Department, also on 23 October 2018.

6. The tribunal considered whether the existing pattern of care changed in this case. The pattern of care is assessed for a care period, which is such period as the Registrar considers to be appropriate having regard to all the circumstances of the case. The Child Support Guide (the Guide) provides that this is usually a 12 month period. Chapter 2.2.2 sets out circumstances in which it may be appropriate to have regard to a shorter care period, including in circumstances where a parent or carer unexpectedly and temporarily has a one-off block of 100% care. This would generally apply for periods of at least four weeks, although a shorter care period could be considered, especially where there is a possibility that the care period will be extended.

7. The evidence shows that when Mr Dunajski notified of a change in the care on 24 October 2018 it was recorded that he had care of the children from 17 October 2018 and they would remain in his care until 12 November 2018, unless the period was extended. The period from 17 October 2018 to 12 November 2018 is just short of four weeks. It is apparent from the text message exchanges between the parties that Mrs Kendrick was seeking assistance from Mr Dunajski for about two weeks. Whatever information Mr Dunajski received from the children’s school following Mrs Kendrick’s injury on 17 October 2018, by the morning of 18 October 2018 she had clearly stated that she expected to be incapacitated for a maximum of two weeks, and she continued to assert that in their exchanges in the following days. It is not in dispute that the care reverted to the existing pattern of Mrs Kendrick having 76% of the care and Mr Dunajski having 24% of the care from 2 November 2018. Having regard to the overall circumstances of the case, the tribunal was not persuaded that there was a change in the existing pattern of the care. Rather, there was a one-off departure that was not likely to be more than about two weeks, as ultimately proved to be the case. The tribunal decided not to revoke the existing percentage of care determinations.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision not to revoke the existing percentage of care determinations.