Lawns and Lawns (Child support)

[2018] AATA 3207

Lawns and Lawns (Child support) [2018] AATA 3207 (24 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013922

APPLICANT:  Mrs Lawns

OTHER PARTIES:  Child Support Registrar

Mr Lawns

TRIBUNAL:Member W Kennedy

DECISION DATE:  24 July 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child support – Percentage of care – Pattern of care – Third party statements – 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. Mrs Lawns and Mr Lawns are the parents of three children in respect of whom there is or has been a child support assessment.  The children are [Child 1], who has since ceased to be a child of the assessment, [Child 2] and [Child 3].  This application concerns the percentages of care of the children used in the child support assessment.

2. The case has been registered with the Child Support Agency of the Department of Human Services (the Department) since 21 January 2014.  From that date the child support assessment was based on Mr Lawns having 0% care and Mrs Lawns having 100% care of the children.

3. On 25 October 2017, Mr Lawns advised the Department that he had had 14% care of the children from 1 April 2016.  On 9 December 2017, the Department decided to not accept Mr Lawns’ advice and did not change the child support assessment.

4. On 15 December 2017, Mr Lawns objected to the decision.  Both parties provided third party statements in support of their assertions.  On 19 April 2018, a Department objections officer determined that Mr Lawns had 14% care of the children and that Mrs Lawns had 86% care of the children.  The Department decided that these figures were to apply to the child support assessment with effect from 25 October 2017.

5. On 23 April 2018, Mrs Lawns applied to the Administrative Appeals Tribunal.  The Tribunal considered the application and determined the matter on 24 July 2018.  In considering the application, the Tribunal took into account the oral evidence of Mrs Lawns and Mr Lawns together with the documentary material provided by the Department (folios 1 to 278), as well as other documentation provided by Mrs Lawns (folios A1 to A4).  Copies of these documents were provided to both parties prior to the hearing.  The day prior to the hearing Mrs Lawns provided further documentation which Mr Lawns acknowledged having received and which the Tribunal took into evidence.  The evening prior to the hearing Mrs Lawns sent an email to the Tribunal, which the Tribunal decided to not take into evidence.  Mrs Lawns attended the hearing by telephone and gave her evidence under an affirmation.  Mr Lawns attended the hearing in person and gave his evidence under an affirmation.  The Child Support Registrar did not attend the hearing and was not represented.

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each of the parents has or is likely to have of the children in the care period.  If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

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

2. The Department (acting for the Child Support Registrar) makes child support assessments using the statutory formula found in Part 5 of the Act.  The formula contains a number of elements called ‘particulars of the assessment’.  This includes the ‘percentage of care’ for each parent in relation to the children.

3. The Department makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.  These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and for those determinations to be revoked and remade in specified circumstances.

10.  At the hearing Mrs Lawns said that she did not accept that Mr Lawns had the amount of care that he had claimed.  She said that on some of the nights claimed he did not have all of the children.  She said that Mr Lawns had more care during school holidays than during the school term.  On 6 February 2018, Mrs Lawns had provided to the Department a list of dates on which she accepted that Mr Lawns had care of the children (folios 202 to 204).  Mrs Lawns had identified that Mr Lawns had care for 56 nights over a 426-day period.  This amounts to 13% care.  At the hearing Mrs Lawns said that she had identified the days by use of her work roster and schedules for the professional care of [Child 3].  Mrs Lawns’ dates thus rely on the assertion that she always had care of the children when she was not working and that she always had overnight care on days when [Child 3] had professional care provided for her.

11.  At the hearing Mr Lawns said that he does not accept that Mrs Lawns always had care of the children when she was not working, nor does he accept that Mrs Lawns always had overnight care when [Child 3] had professional care provided for her.  At the hearing Mr Lawns identified a particular date when Mrs Lawns was not working but the children spent the night at his home.  Mrs Lawns acknowledged the particular date but asserted that it was an exception.  Mr Lawns also stated that it was not unusual for [Child 3]’s professional caregivers to drop her off at his home where she would stay overnight.  He said that this happened often enough that he had got to know some of the caregivers.

12.  Both parties have provided third party letters.  Mrs Lawns has provided three letters from a particular neighbour.  One of these letters provides hearsay evidence from the children which the Tribunal excludes from consideration.  The other two letters are the same, but with different dates.  They acknowledge that the children do not live exclusively with Mrs Lawns.  Mrs Lawns has also provided two other letters, which are inconclusive, one saying simply that the children are living with Mrs Lawns and the other making no comment about care arrangements.

13.  Mr Lawns has provided two letters co-signed by the same two parties.  The letters are inconclusive as to care other than to assert that Mr Lawns has care of the children ‘at minimum once to twice a week on average’.  Mr Lawns has also provided extracts from his diaries and an analysis he did, both of which support his position that he has care of the children for at least 14% of the time. 

14.  On 22 December 2017, Mr Lawns provided the Department with dates that he asserted he had care of the children (folio 152).  The period covered by this information is from September 2016 to October 2017, the same period covered by the information provided by Mrs Lawns.  The nights identified by Mr Lawns total 155.  This represents 36% of the 426 days during the period.  Mr Lawns said that he identified these dates through a diary that he kept.  An extract from the diary is provided in the hearing papers (folios 89 to 97). At the hearing Mr Lawns acknowledged that he did not have care of all three children on every night identified.  He said that would estimate that he had all the children of the assessment at the time for about half of the nights identified.

15.  Clearly there is a significant disagreement between the parents.  The case is complicated by the working arrangements of the parents.  Mr Lawns is a pilot and Mrs Lawns is a flight attendant.  They both work on the basis of a changeable roster and it is thus difficult to establish a regular pattern of care.  The case is also complicated by there being three relevant children, one of whom has since ceased to be a child of the assessment, and one of whom has special care needs.

16.  The dates provided by Mrs Lawns suggest that Mr Lawns had 13% care but Mrs Lawns acknowledged that Mr Lawns may have had slightly more care.  In this regard the Tribunal notes that if during the 426-day period Mr Lawns had four nights more care than Mrs Lawns has been able to identify, his care would amount to 14%.  The dates provided by Mr Lawns suggested that he had significantly more care.  After carefully considering all of the evidence available to it the Tribunal has determined that from 1 April 2016 Mr Lawns had 14% care of the children and Mrs Lawns had 86% care of the children. 

17.  The Tribunal notes that on 8 November 2017 Mr Lawns advised the Department of a further change of care concerning [Child 2] and that on 15 June 2018 Mrs Lawns advised the Department of a further change of care.  The decision of the Tribunal does not affect any decisions that the Department may have made or may make in relation to those subsequent events.

18.  Subsection 54F(1) of the Act provides that the Department may revoke a percentage of care determination if a number of criteria are met.  At the time of the decision subsection 54F(1) of the Act stated:

Determination must be revoked if there is a change to the responsible person's cost percentage

(1) If:

(a) a determination of a responsible person's percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and

(b) if section 51 or 52 applied in relation to the responsible person--the interim period for the determination has ended; and

(c) the Registrar or the Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and

(d) the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

(e) section 54G does not apply;

the Registrar must revoke the determination.

Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

19.  The Tribunal is satisfied that a determination has been made under section 50 of the Act thus satisfying paragraph 54F(1)(a).  That determination is that Mrs Lawns has 100% care and Mr Lawns has 0% care.  Sections 51, 52 and 54G do not apply to this case and thus paragraph 54F(1)(b) and paragraph 54F(1)(e) are not relevant.  Through the provision of information from Mr Lawns on 25 October 2017, the Secretary has become aware that the actual care does not correspond with the existing percentage of care determination, thus satisfying paragraph 54F(1)(c).  The change in percentage of care is such that, in accordance with section 55C of the Act, there will be a change in the cost percentages of the parties, thus satisfying paragraph 54F(1)(d).  It follows that a determination under section 50 of the Act would not be the same as the existing determination and thus the Registrar must revoke the existing determination.

20.  Subsection 54F(2) of the Act determines the date of effect of the revocation of the existing determination.  At the time of the decision subsection 54F(2) of that Act stated:

(2) The revocation of the determination takes effect at the end of:

(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

(i) in a case where that change of care day occurs during the interim period for the determination--the day on which the interim period ends; or

(ii) otherwise--the day before that change of care day; or

(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended--the day on which the interim period ends; or

(c) otherwise--the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.

21.  As the Department became aware of the change of care on 25 October 2017, which is more than 28 days after the change, in accordance with paragraph 54F(2)(c) of the Act the date of revocation is the day before the Department received the notification.  Thus the existing determination is revoked on 24 October 2017.

22.  Section 50 of the Act provides that the Department must determine new percentages of care in the following circumstances:

Determination of percentage of care - responsible person has had etc. a pattern of care for a child

(1) This section applies if:
….
          (b) the Registrar:

(i) revokes, under Subdivision C of this Division, a determination of a responsible person's percentage of a care for a child that was made under section 49 or this section; and

(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

(2)The Registrar must determine the responsible person's percentage of care for the child during the care period.

(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

23.  The existing determination has been revoked, thus satisfying subparagraph 50(1)(b)(i).  Subparagraph 50(1)(b)(ii) and subsection 50(2) require the Tribunal to consider the likely pattern of care that Mr Lawns and Mrs Lawns will have of the children in a care period. 

24.  The Tribunal has determined that the most appropriate care period is 12 months from the change of care date.  Notwithstanding the subsequent changes of care claimed by Mr Lawns and by Mrs Lawns, the Tribunal finds that during the care period Mr Lawns is likely to have had 14% care of the children and that Mrs Lawns is likely to have had 86% care.

25.  Section 54B of the Act provides that the determination will have effect from the day immediately after the date of revocation of the earlier percentage of care determination.  Thus the date of effect is 25 October 2017. 

26.  The Tribunal’s decision is the same as that of the Department objections officer and, accordingly that decision is affirmed.

DECISION

The decision under review is affirmed.