Lawler and Dugan (Child support)

[2023] AATA 1041

Lawler and Dugan (Child support) [2023] AATA 1041 (23 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC025111

APPLICANT:  Ms Lawler

OTHER PARTIES:  Child Support Registrar

Mr Dugan

TRIBUNAL:Member C Breheny (Presiding)

Senior Member K Dordevic

DECISION DATE:  23 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of notification of care change - 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 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 Lawler and Mr Dugan are the separated parents of [Child 1], born September 2004. There is another child not subject to this review. A child support case has been registered with Services Australia (Child Support) since 23 June 2017 and since that time child support has been payable on the basis that the parents had equal shared care of [Child 1].

2. On 19 May 2022, Mr Dugan contacted Child Support to notify that he had 100% care of [Child 1] from 28 February 2022. Ms Lawler agreed that [Child 1] spent additional time with Mr Dugan but contested that it was not a full-time arrangement. On 5 August 2022 a decision was made that Mr Dugan had 100% care of [Child 1] from 28 February 2022. On 8 August 2022 Ms Lawler objected to this decision and on 8 September 2022, a Child Support objections officer decided to disallow the objection.

3. On 22 November 2022, Ms Lawler applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 23 March 2023. Ms Lawler and Mr Dugan attended the hearing by telephone and gave evidence on affirmation. The Tribunal had before it the statement and documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 12 December 2022 (documents numbered 1–174).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The issue which arises in this case is whether there was a change to [Child 1’s] care arrangements and, if so, should the existing care percentage decision be revoked and from what date.

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to [Child 1]. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. In this case, Child Support records indicate that child support liability had been calculated on the basis that Ms Lawler had 50% care and Mr Dugan had 50% care of [Child 1] from June 2017 (folio 154). Records also show that Mr Dugan contacted Child Support on 19 May 2022 to advise that he had 100% care of [Child 1] from 28 February 2022 (folio 25).

2. Ms Lawler agreed that prior to commencing her Year 12 studies [Child 1] was in the shared care of the parents. She understood that [Child 1] wished to spend additional time at Mr Dugan’s home so she could receive assistance with her Year 12 studies, particularly in the areas of her father’s expertise.

3. Ms Lawler noted that this was a “vague” arrangement and that [Child 1] had made the decision. There was no discussion between the parents. [Child 1] is a “free spirit” and she often moves between homes. Ms Lawler agreed to this arrangement but she never expected that Mr Dugan would seek financial support from her.

4. Ms Lawler did not dispute that Mr Dugan had the majority of care, but she did not believe that it was 100% care. She also had [Child 1] in her care from time to time. Ms Lawler stated that she did not seek supporting evidence from her friends or colleagues as they would not know the actual care arrangements. She could not understand how the statutory declarations that Mr Dugan provided are relevant or appropriate. In her view the correct care percentages correspond with the care calendar she provided (folio 50). The calendar indicates that she had 29 nights care in the period 28 February 2022 to 3 July 2022 (125 days). This amounts to 23% care.

5. After further questioning, Ms Lawler conceded that she did not keep a contemporaneous calendar or rely on communications with [Child 1] or Mr Dugan but instead she created the calendar from memory in early July 2022. She did not keep a care calendar from the date that she was made aware of Mr Dugan’s care change notification (this being 23 May 2022, folio 38).

6. Mr Dugan stated that at some time early in 2022 he spoke to [Child 1] and raised concerns that the shared care arrangements would not be conducive to her Year 12 studies. He asked that she consider living with one parent on a full-time basis to minimise disruption to her studies. [Child 1] agreed that this was a good idea and ultimately continued to stay at his home.

7. Mr Dugan noted that he realised in late February 2022 that [Child 1] had not returned to her mother’s care. He only reported the care change in May 2022 as he had previous experience of reporting care changes which were not accepted. He also realised at that time that he would require additional financial support for [Child 1].

8. Mr Dugan estimated that [Child 1] spent no more than three nights in Ms Lawler’s care from 28 February 2022 until the July school holidays. He was certain that the dates provided by Ms Lawler in her care calendar were incorrect. He agreed that Ms Lawler had about ten nights care in the July 2022 holiday period, but after that time the care arrangement did not return to the shared care pattern previously established. Rather, [Child 1] only stayed infrequently with Ms Lawler, including a night around her ([Child 1’s]) birthday in September 2022.

9. Mr Dugan provided statutory declarations from his parents ([named]) to the effect that “[Child 1] has been staying with her father full-time since February 2022 and will continue to do so”.

Conclusion

1. Care is generally calculated over a “care period”, which is a period that the Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter. Child Support’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, but it may be a shorter period depending on the circumstances of the case.

2. In this case Mr Dugan notified Child Support on 19 May 2022 that a care change had occurred from 28 February 2022. The previously established pattern of “week about” shared care had ceased and he now had full-time care of [Child 1]. Ms Lawler did not dispute that a care change occurred on 28 February 2022 and that she had less care from that date. She did not however believe that she had 0% care.

3. In her letter to Child Support dated 26 May 2022 (folio 42) Ms Lawler acknowledges that [Child 1] was spending “extra time” with Mr Dugan but that this was not a “full-time arrangement”. Ms Lawler notes that [Child 1] is “completely self-sufficient”, has part-time work and also “babysits her younger sibling” while at Mr Dugan’s home. Ms Lawler contends that [Child 1] is not a “financial burden” on either parent and she states that Mr Dugan should not be “gaining financially to help his daughter study”.

4. The Tribunal notes that, according to the care calendar which Ms Lawler later submitted, she already had [Child 1] in her care for 26 nights at the time the letter was written but there is no mention of those “care nights” in the letter.

5. Given that the care arrangement was in contention it would appear reasonable to expect that such an important point would be mentioned by Ms Lawler at that time.

6. Ms Lawler recalled being told by Child Support to provide evidence of her care, but she could not find anyone who would know the actual care arrangements. She also did not wish to involve friends or family in this case. Ms Lawler also acknowledged that she did not keep a contemporaneous care calendar. She constructed the calendar which she submitted on 4 July 2022 from memory.

7. Ms Lawler did not think that there was a regular “pattern of care” after 28 February 2022, as [Child 1] was “very independent” and would “just show up on your doorstep”. Ms Lawler contended however that the previous “week about” pattern of care recommenced after the July school holidays.

8. The Tribunal considered the care calendar submitted by Ms Lawler and noted that it appears to suggest that between 28 February 2022 and 27 May 2022 she had [Child 1] in her care almost consistently every week for two to three nights which would indicate a “pattern of care”.

9. Overall, the Tribunal was not persuaded by Ms Lawler’s evidence. There were a number of inconsistencies between her oral evidence to the Tribunal and her written material. Ms Lawler described [Child 1] as an independent young person, who was focussed on her studies and generally “showed up when she felt like it”. Yet, Ms Lawler’s care calendar indicates regular weekly overnight care (if not on the same days of the week) and a resumption of a more rigorous “week about” care pattern towards the latter half of the school year when [Child 1] would reasonably be expected to increasingly focus on her studies. It would therefore be unlikely that [Child 1] would resume spending alternative weeks at each parent’s home at such an important stage in her school year.

10. Mr Dugan’s evidence was that he had no need to keep a calendar as [Child 1] stayed at his place consistently, apart from a period of ten days during the July school holidays and no more than three nights from 28 February 2022 to the end of June 2022.

11. Based on the evidence before it the Tribunal finds that a care change occurred on 28 February 2022. The Tribunal accepted that Ms Lawler had occasional care of [Child 1] from 28 February 2022 but that this was only minimal.

12. When Mr Dugan notified Child Support of the change of care of [Child 1] on 19 May 2022, it was necessary to revoke the existing care percentages of 50% and 50% under section 54F of the Act. The Tribunal was satisfied that all of the requirements of that section are satisfied and a care determination that Mr Dugan had 100% care of [Child 1] should be made.

13. In working out the date of effect of the revocation under subsection 54F(2) of the Act, it is necessary to ascertain the change of care day. The “change of care day” is defined as the first day on which the care of the child that was actually taking place ceased to correspond with the parents’ percentages of care under the determination that is being revoked. In the present case, the Tribunal found that the care of [Child 1] changed on 28 February 2022.

14. The new percentages of care under sections 49 and 50 of the Act are 0% for Ms Lawler and 100% for Mr Dugan from 28 February 2022. This affirms the decision under review.

DECISION

The decision under review is affirmed.