Knight and Child Support Registrar (Child support)

Knight and Child Support Registrar (Child support) [2019] AATA 5201 (7 October 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2019/PC016974
APPLICANT:  Mr Knight
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member S Hoffman
DECISION DATE:  7 October 2019
DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Knight provided 43% of the care of the three children, and [Ms A] provided 57% of their care, from 15 November 2017, effective from 28 November 2018.

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

Mr Knight and [Ms A] are the parents of three boys aged between four and eleven years old. According to the Department of Human Services – Child Support (the CSA), since 9 November 2015 [Ms A] provided 57% care of the two older boys and 87% care of the youngest child, [Child 3]. Mr Knight was recorded as providing 43% care of the two older boys and 13% of [Child 3]’s care.
On 28 December 2018 Mr Knight contacted the CSA to advise that since 15 November 2017, he was providing 45% care for all three boys.
On 17 April 2019 the CSA decided that from 15 November 2017 [Ms A] was providing 75% of the boys’ care and Mr Knight was providing 25% of their care (the original decision).
On 2 May 2019 Mr Knight objected to that decision. On 12 July 2019, a CSA objections officer decided that [Ms A] been providing 69% of the children’s care and Mr Knight had been providing 31% of their care (the objection decision).
On 19 July 2019 Mr Knight lodged an application for review by this tribunal. [Ms A] declined an invitation to be a party to this review. The matter was heard on 2 October 2019 via conference telephone. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 206), copies of which were given to Mr Knight before the hearing.
The tribunal deferred making its decision until 7 October 2019 in order to obtain further information from the CSA.

ISSUE

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
The issues which arise in this case are whether there was a change in care from 15 November 2017, what that change was, and the date of effect of that change.

CONSIDERATION

Section 50 of the Act requires the CSA to determine a person’s percentage of care during a care period, if the CSA is satisfied that the person has had, or is likely to have, a pattern of care during the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child that the CSA is satisfied that the responsible person has had, or is likely to have, during the care period.
Section 54D of the Act is about the rounding down or up of a percentage of care. If a percentage is not a whole figure and is less than 50%, then it is rounded down.
Broadly speaking, sections 54F and 54G of the Act provide for the changing of care determinations where there has been a change in the parents’ care of the child.
Section 54F of the Act provides that if the CSA is notified, or becomes aware, within 28 days of a change in care occurring, the date of effect of the new care determination is the date the change occurred. If the CSA is notified more than 28 days after a change in care occurring, the date of effect of the new care determination is the date of notification.
When the CSA is notified or otherwise becomes aware of a change in care, it is of course possible that what was expected to happen from that time going forward did not eventuate, in which case a parent can notify the CSA accordingly and a new care determination can be made.
The legislative test for this review is whether there was a change in care on 15 November 2017, and if so, what was likely to happen following the change in care on that date.
Mr Knight contacted the CSA on 28 November 2018 to notify a change in the care percentages. The CSA record of that contact indicated that Mr Knight was notifying a change in the care for the three boys after [Ms A] relocated to [Town 1] in late 2017.
The tribunal is satisfied that was a misunderstanding. Mr Knight’s evidence at the tribunal was that [Ms A] relocated to Bunbury in early or mid-2016. At that time, [Child 3], who was born in July 2015, did not spend as much time with Mr Knight as the two older boys, but as he grew older this changed, and from November 2017, the three boys would stay with Mr Knight at the same time. Mr Knight’s evidence was that there was no change in the care he provided for the two older boys at that time and the difference was that he started to provide the same amount of care for [Child 3] as he did for [Child 3]’s brothers; there was no difference in the care Mr Knight provided for the three of them.
Mr Knight said that he lived in [Town 2] and [Ms A] lived in [Town 1]. They would meet at [Town 3], which was roughly half way for each of them, for the handover.
With regard to Mr Knight’s claim that there was no change in care for the two older boys, only for [Child 3], from November 2017, the tribunal notes this is not inconsistent with a letter he wrote to the CSA dated 23 January 2019 (although it was not clear from the letter that [Ms A] moved to [Town 1] in 2016 rather than November 2017).
Mr Knight said that as [Child 3] became older it made sense for him (Mr Knight) to take the three boys, which was what he and [Ms A] discussed at the time. It was easier for [Ms A] as that gave her a break from her caring responsibilities.
Mr Knight said that he tried to explain to the CSA many times that the only change in care was for [Child 3] from November 2017, but he could not get through to them.
[Ms A] provided information to the CSA about the care Mr Knight provided from 2 August 2018. She was recorded as stating that there was a court order which was not enforced and that she and Mr Knight did not have a formal arrangement. Mr Knight would text her to ask if he could have the children and she would drop them off at the designated drop-off point, and this has been the case since the date of separation. As [Ms A] chose not to be a party to the hearing, the tribunal was unable to question her about any change in care that occurred in November 2017.
Mr Knight provided text messages between him and [Ms A], and care calendars. These show that in the six-month period between 15 November 2017 and 14 May 2018, Mr Knight provided 81 nights of care out of 182 for the three boys, which equates to 44% care.
As recorded above, the tribunal is required to determine if there was a change in care from 15 November 2017, and what was likely to happen going forward from then. It is not required to determine the care percentages over a period of time.
Given the evidence before it the tribunal accepts Mr Knight’s position as stated at the hearing that he was providing 43% care for the two older boys and is also satisfied that from 15 November 2017, it was agreed between him and [Ms A] that [Child 3] was old enough to accompany his brothers when they went to stay with their father.
Mr Knight often referred to ‘we’ when speaking about the care provided for the boys when they were with him in [Town 2]. He said that his wife and his parents were all involved in caring for the boys.
In summary, the tribunal was satisfied that there was a misunderstanding when Mr Knight first contacted the CSA on 28 December 2018 which has coloured further conversations between Mr Knight and CSA officers. It finds that there was no change in the care percentages for the two older boys on 15 November 2017, but for [Child 3], his care was aligned with his brothers from 15 November 2017, such that Mr Knight provided 43% of his care and [Ms A] provided 57% of his care.
If there has been a change in care since then, or if there is one in the future, either or both of the parents can contact the CSA accordingly.
At times during the hearing Mr Knight seemed to be indicating that he had told the CSA about the change in care that occurred in November 2017 before December 2018 but that was unclear. The tribunal sought extra information from the CSA to ascertain whether or not Mr Knight had notified this particular change in care before 28 December 2018. The CSA advised they had no record of contact with Mr Knight between 1 October 2017 and 27 December 2018.
Mr Knight said he was prompted to contact the CSA about the care percentages when his rate of child support went up to about $4,000 a year. According to child support assessment notices, Mr Knight’s child support liability increased from $1,416 to $4,248 from 28 December 2018. This was because of a change to his adjusted taxable income rather than care percentages. These notices support a finding that Mr Knight was prompted to contact the CSA on 28 December 2018 and not an earlier date.
Given this, and that the CSA has no record of Mr Knight contacting them at an earlier date about a change of care from 15 November 2017, the tribunal finds that the notification date was 28 December 2018.
As Mr Knight did not notify of the change in care that took place on 15 November 2017 within 28 days of it happening, the date of effect of the care percentages determined by the tribunal is 28 November 2018.

DECISION

[2019] AATA 5201

7 October 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies