Klein and Klein (Child support)

[2023] AATA 3291

Klein and Klein (Child support) [2023] AATA 3291 (2 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026153

APPLICANT:  Ms Klein

OTHER PARTIES:  Child Support Registrar

Mr Klein

TRIBUNAL:Member S Letch

DECISION DATE:  2 August 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – existing percentage of care determinations revoked and new determinations made – 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

1. Ms Klein and Mr Klein are the parents of [Child 1] and [Child 2]. Care for the children had been recorded by Services Australia – Child Support (Child Support) as 100% to Mrs Klein when, on 23 September 2022, Mr Klein reported a change in care, advising he had 14% care from 2 April 2022. On 11 December 2022, Child Support decided to refuse to revoke the existing recorded care percentage.

2. Mr Klein’s objection made on 25 January 2023 (more than 28 days after he was deemed to have notified of the original decision) was allowed. It is convenient to set out some extracts from the objections officer decision dated 13 April 2023:

   …

   We have made the decision to reflect the care of [Child 1] and [Child 2] as 58 nights (16%) to [Mr Klein] and 307
   nights (84%) to [Ms Klein] from 25 January 2023.

   WHEN WILL THIS CHANGE TAKE EFFECT?

   This change will be applied to the child support assessment from 25 January 2023.
   The effect of the objection decision is: There will be a reduction in child support payable by [Mr Klein].

   DECISION UNDER REVIEW

   The decision made on 11 December 2022 to refuse to reflect the care of [Child 1] and [Child 2] as 52 nights
   (14%) to [Mr Klein] and 313 nights (86%) to [Ms Klein] from 2 April 2022, notified on 23 September 2022.
   [Mr Klein] has objected to this decision because he believes that the care decision does not reflect the

   actual care.

   …

   On 11 December 2022, we made a decision to refuse to reflect the care of [Child 1] and [Child 2] as 52 nights
   (14%) to [Mr Klein] and 313 nights (86%) to [Ms Klein] from 2 April 2022.

   On 25 January 2023, [Mr Klein] objected to this decision.

   On objection, [Mr Klein] claimed that since 2 April 2022, he has had care of both children for 74 nights.
   He stated that there are no written care arrangements in place.

   On objection, [Ms Klein] advised that there is no agreed care arrangement and she does not believe that
   [Mr Klein]`s level of care exceeds 52 nights per year. She agreed that [Mr Klein] has care of the children during
   school holidays but she does not agree with the actual number of nights he has claimed.

   On 11 April 2023, [Mr Klein] submitted evidence being copies of text messages exchanged between the
   parents. These suggest that [Mr Klein] has had care of both children for at least 58 nights since 2 April
   2023.

   We are satisfied, based upon verbal statements from [Ms Klein] that [Mr Klein] has had care of the children
   during all school holidays in 2022.

   We are satisfied, based upon verbal and written evidence provided by [Mr Klein] that he has had care of
   both children for at least 58 nights since 2 April 2022.

   We are satisfied to reflect the care of [Child 1] and [Child 2] as 58 nights (16%) to [Mr Klein] and 307 nights (84%) to [Ms Klein] from 2 April 2022.

   The objection is part-allowed.

   …

3. Ms Klein promptly applied to the Tribunal for further review (against the care percentage determination, and not the separate determination which was adverse to Mr Klein concerning the date of effect of the determination being 25 January 2023). Both parents participated in the Tribunal’s hearing by conference telephone.

4. In short, Ms Klein told the Tribunal that from October 2020, Mr Klein was having only 17 nights a year care. She said the texts he supplied are “selective” and lack context. She agreed Mr Klein has had care when she has had work commitments. She suggested he has had care for “financial reasons” and that he should “do more”. She said Mr Klein chooses to work for six months of the year and chooses to see the children “when it suits him”, and “manipulates” other days such as birthdays. She does not disagree with the number of nights accepted by Child Support that the children were in Mr Klein’s care; however, she says there is no “agreement” or “pattern” – it is “ad hoc” and they “take things as they come”.

5. Mr Klein does not accept the arrangements are “ad hoc”– he has just taken the children for the Easter holidays. As of this year, he has put in for annual leave to take the children for school holidays; he said Ms Klein has recently told Child Support that “he will not be taking them”. He has paid for numerous expenses – the arrangements are not for “financial gain”, but because he wants to see and spend time with the children. Mr Klein said “I have the children for two weeks every school holidays” in addition to some nights during term – he said whilst the nights may be a bit ad hoc during school term, he still always expects to have some nights.

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that these are “point in time” assessments. Every change to the pattern, or likely pattern, of care is subject to separate notification and a separate decision about whether to revoke the existing recorded pattern and replace it. The issue in this matter is the pattern, or likely pattern of care, to be recorded as of 2 April 2022.

3. There was no serious dispute about the number of nights Mr Klein has had the children (58 nights during the sample period selected by Child Support, or some 16%). Mrs Klein accepts there had been a change to the situation as it was prior to April 2022 (from October 2020). However, Ms Klein suggests there is no firm “agreement” and that they “take it as it comes”.

4. Some care arrangements are very rigid and occur to the letter of Court-ordered arrangements. Other arrangements allow a degree a flexibility to the benefit of the parents and the children. The establishment of a “pattern of care” does not require the parents to establish a “formal agreement”. A pattern can be distilled from the actual care that takes place.

5. Here, it seems to me the evidence reveals that a regular pattern developed from April 2022 in which Mr Klein regularly took the children for school holiday periods. Mr Klein also regularly has some care – albeit not on a rigid basis – during school terms.

6. To my mind, the arrangements that have occurred since April 2022 clearly demonstrate a pattern of care is established for the regular care provided by Mr Klein. I am satisfied that recording care at 16% to Mr Klein is a fair reflection of the care he provided from the relevant date (namely, 2 April 2022). I note that the change in care will take effect in the assessment from 25 January 2023 (the date of Mr Klein’s objection) given his late objection.

7. As the Tribunal has reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.