Lister and Daubney (Child support)

[2021] AATA 2899

Lister and Daubney (Child support) [2021] AATA 2899 (28 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021180

APPLICANT:  Mr Lister

OTHER PARTIES:  Child Support Registrar

Ms Daubney

TRIBUNAL:Member L Rieper

DECISION DATE:  28 June 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Lister’s care percentage be recorded as 61% and Ms Daubney’ as 39% with effect from 18 November 2020.

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

1. Mr Lister and Ms Daubney are the separated parents of [Child 1], born in April 2011. A child support case has been registered with Services Australia – Child Support (Child Support) since (at least) 2014, and Mr Lister is assessed as the parent liable to pay child support to Ms Daubney.

2. On 9 May 2017, child support liability was assessed on the basis that Ms Daubney had 32% care and Mr Lister had 68% care of the child.

3. On 18 November 2020, Ms Daubney objected to the decision, advising that her care had been 41% since 27 April 2017.

4. On 5 February 2021, a Child Support objections officer allowed the objection and determined that there had been a change in care from 27 April 2017 of 60% care to Mr Lister and 40% to Ms Daubney and the date of effect was 18 November 2020.

5. On 7 April 2021, Mr Lister applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal seeking an independent review of the objection decision. The application was heard on 22 June 2021. Mr Lister and Ms Daubney both attended the hearing by telephone and gave sworn evidence.  No representative of the Child Support Registrar attended the hearing.

6. The Tribunal had before it the Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (documents numbered 1–142).  After the hearing Mr Lister provided the Tribunal with a bundle of child care statements from [Childcare 1] (140 pages) in relation to [Child 1]’s before and after school care between January 2020 and December 2020.  Ms Daubney advised the Tribunal at the hearing that she did not require an opportunity to respond in relation to those documents.

ISSUES & CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

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 the children. 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.

3. In this case Child Support’s records indicate that from 11 April 2017 Ms Daubney had 51% care of [Child 1] and Mr Lister had 49%. On 3 May 2017 Mr Lister advised that he had 68% care of [Child 1] and Ms Daubney had 32% care (folio 42).  A change in care was accepted from 27 April 2017 (folio 47).  Ms Daubney objected on 18 November 2020 (folio 81) and the objection was allowed (folio 4).

4. The issues for the Tribunal to determine in this case are:

   ·whether the existing determination of percentage of care should be revoked and if so, from when should it be revoked, and

   ·whether a new determination of a percentage of care should be made and, if so, what is the percentage of care under the new determination and from when should it apply.

5. Mr Lister told the Tribunal that the care dates put forward by Ms Daubney (folio 83) are not correct.  He said that he had not prepared an alternative list but had annotated Ms Daubney’ list and would provide it to the Tribunal.  It was not provided with the bundle of documents Mr Lister provided after the hearing.  He said that the care arrangements continue to be consistent with court orders that were made on 27 April 2017 (folios 64–70).  He also said that the statements of entitlement from the [Childcare 1] are relevant because [Child 1] does not attend before and after school child care when she is in the care of her mother.

6. Ms Daubney did not have the documents prepared by Child Support with her at the time of the hearing however she was adamant that the list of care dates she provided to Child Support was correct.  She did not dispute Mr Lister’s claim that [Child 1] does not go to before or after school care when staying with her or that the court orders are generally followed.

Conclusions

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 (section 50 of the Act). 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. Paragraph 54F(3)(b) of the Act provides that a revocation of the existing care determination takes effect on the day before the Registrar is notified that care has increased, if notification was made more than 28 days after the change of care day.

3. Section 87AA of the Registration Act provides for the date of effect of objections relating to care percentage decisions that are allowed. When an objection is lodged more than 28 days after notice of the care decision, the date of effect is the day on which the person lodged the objection unless there are special circumstances that prevented the lodgement of the objection within 28 days.

4. In this case Ms Daubney objected on 18 November 2020.  That is clearly more than 28 days after notice of the care decision.  It was determined that no special circumstances existed and so the date of effect of Ms Daubney’s successful objection was 18 November 2020.  Ms Daubney has not challenged that decision.

5. The legislation essentially requires Child Support to make point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter.  If for some reason what is likely to happen does not eventuate, a parent can notify Child Support and a new care determination can be made.  However, the legislative test in first instance and on review remains the same: what had happened until the date of the original decision and what was likely to happen thereafter?

6. It is clear from the documentary evidence before the Tribunal that court orders were made on 20 March 2017 and revised on 27 April 2017.  The revised orders essentially provide that [Child 1]:

(a)Lives with Mr Lister;

(b)Is in the care of Ms Daubney:

(i)    5 days per fortnight (that is, from the conclusion of school Friday until the commencement of school Wednesday each alternative week); and

(ii)   Half of the school holidays across the year.

The court orders equate to Mr Lister having about 61% care and Ms Daubney having about 39% care.

1. The Tribunal has no evidence of care dates prior to December 2019.  The dates Ms Daubney provided on 18 November 2020 commence in December 2019.  They do not match the court orders.

2. Given that Mr Lister gave uncontested evidence that [Child 1] does not go to before or after school care when she is in the care of Ms Daubney, it is difficult to accept the dates put forward by Ms Daubney.  Many of the dates she listed are dates on which [Child 1] was in care.  For example, in July 2020 Ms Daubney said that [Child 1] was in her care for 17 nights including 13, 14, 17 and 27–30 July but child care was provided on all of those days.

3. The child care records provided by Mr Lister do not cover the whole of 2020 in that there are no records for February, April or May 2020.  However, for most of the rest of the year, they are consistent with [Child 1] requiring before and/or after school care Wednesday-Friday every second week and Monday-Friday the alternative week.  This matches the court orders.

4. It is not the Tribunal’s task to assess care in retrospect, taking account of actual care to the date of hearing.  Rather, the Tribunal is required to assess the actual care that had occurred up to the date of notification, being 3 May 2017, and the future pattern of care that was contemplated to be likely at that point.

5. Mr Lister’s unchallenged evidence was that care continues to be provided in accordance with the court orders of 27 April 2017.  Ms Daubney did not argue that there is any intention that the future pattern of care will differ from what is required by the court orders.

6. Having weighed up the evidence before it, the Tribunal is satisfied that the actual care provided and the future pattern of care contemplated from the date of notification is largely consistent with what is required by the court orders of 27 April 2017, although of course there may well be some small ad hoc variations from time to time.

7. It follows that care of the child should be assessed as 61% to Mr Lister and 39% to Ms Daubney from 18 November 2020. 

8. The decision under review should be set aside accordingly.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Lister’s care percentage be recorded as 61% and Ms Daubney’s as 39% with effect from 18 November 2020.