Mckay and Mooney (Child support)

[2019] AATA 4354

Mckay and Mooney (Child support) [2019] AATA 4354 (26 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015665

2019/SC015705

2019/SC015778

APPLICANT:  Mr McKay

OTHER PARTIES:  Child Support Registrar

Ms Mooney

TRIBUNAL:Member F Hewson

DECISION DATE:  26 August 2019

DECISION:

The tribunal decided to affirm the decisions that Mr McKay had a percentage of care of the children of 42% and Ms Mooney had a percentage of care of 58% from 20 November 2017, and that the date of effect of the new percentage of care determinations is 2 October 2018 (2019/SC015665 and 2019/SC015778).

The tribunal decided to set aside the decision in relation to the notification of a change of care from 20 September 2018, and substitutes its decision to revoke the existing percentage of care determinations and make new determinations to reflect that from 20 September 2018 Mr McKay’s percentage of care of the children was 50% and Ms Mooney’s percentage of care was 50% (2019/SC015705).

CATCHWORDS

CHILD SUPPORT – percentage of care – multiple changes to pattern of care – multiple care decisions - existing percentage of care determinations revoked and new determinations made – date of effect – two decisions decision under review affirmed, third decision 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 McKay and Ms Mooney are the parents of children in respect of whom there is a child support assessment. This application for review is about the percentages of care for the children to be used in the child support assessment.

2. From 11 November 2016 the Department of Human Services – Child Support (the Department) recorded that Ms Mooney had a percentage of care of the children of 100% and Mr McKay had a percentage of care of 0% (the existing care).

The change of care notified on 20 November 2017

1. On 20 November 2017, Mr McKay advised the Department that the care of the children had changed; that he had care for three nights a week; and Ms Mooney had the remaining care. Ms Mooney disputed that Mr McKay had care on three nights a week, advising that he had care on two nights a week.

2. On 6 March 2018, the Department made a decision to make new percentage of care determinations to reflect that from 20 November 2017 Mr McKay had a percentage of care of the children of 28% and Ms Mooney had a percentage of care of 72%.

3. On 2 October 2018, Mr McKay lodged an objection to the care decision made on 6 March 2018. The objection was considered by an objections officer who, on 14 December 2018, allowed the objection. The objections officer set aside the original decision and made new percentage of care determinations to reflect that from 20 November 2017 Mr McKay had a percentage of care of the children of 42% and Ms Mooney had a percentage of care of 58%. The objections officer also determined that the date of effect of the decision was 2 October 2018, being the date on which Mr McKay lodged the objection.

The change of care notified in September 2018

1. On 8 September 2018 Mr McKay made a further notification of a change in the care of the children, from 21 January 2017, such that he had four nights of care of the older child and three nights of care of the younger each week. Ms Mooney disagreed that Mr McKay had care of either for four nights a week. It was also recorded that Ms Mooney notified of a change of care on 20 September 2018, on the basis that she had four nights of care of the children each week and Mr McKay had care on three nights a week.

2. On 29 October 2018, the Department made a decision to make new percentage of care determinations to reflect that from 20 January 2017 Mr McKay had a percentage of care of the older child of 42% and Ms Mooney had a percentage of care of 58%.

3. On 5 November 2018, Mr McKay lodged an objection to the care decision made on 29 October 2018. The objection was considered by an objections officer who, on 14 December 2018, set aside the original decision and made new percentage of care determinations to reflect that from 20 November 2017 Mr McKay had a percentage of care of the older child of 42% and Ms Mooney had a percentage of care of 58%. The objections officer decided, in effect, that the care changed for both children on 20 November 2017.

4. On 20 December 2018 Mr McKay lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) in relation to the decision arising from the notification of the change in care on 20 November 2017(2019/SC015665). On 4 January 2019 he lodged further applications in relation to the related date of effect decision (2019/SC015778) and the decision arising from the notification of the change of care in September 2018 (2019/SC015705). The application was heard on 4 June 2019. Mr McKay spoke to the tribunal by conference telephone. Ms Mooney also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr McKay and Ms Mooney at the hearing, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties, and to additional documents submitted by Mr McKay.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

11.Subsection 54A(1) of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

1. The issues for the tribunal to determine in this case are:

   ·Whether there should be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period; and, if so,

   ·What percentages of care should be used; and

   ·What is the date of effect of the change?

CONSIDERATION

1. A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).

2. The existing care in this case reflects that from 11 November 2016 Ms Mooney had a percentage of care of the children of 100% and Mr McKay had a percentage of care of 0%. As set out above, the Department was notified on 20 November 2017 and on 8 and 20 September 2018 that the care of the children had changed.

The notification of a change in care on 20 November 2017

1. Mr McKay said there had been a verbal agreement between him and Ms Mooney to the effect that he would have three nights of care a week, but that the agreed care did not eventuate. He said he had more than the agreed care, from Thursday night to Sunday night each week, and on occasions more nights. The tribunal noted that his notification on 20 November 2017 was that he had three nights of care a week. Mr McKay referred to copies of text messages he had submitted for the hearing, which he said show that he had the children most weeknights to Sunday nights. He referred to a text message from Ms Mooney which refers to 50/50 care, although this was in 2018. He reiterated a number of times that the text messages show Thursday to Sunday care. He acknowledged, however, that the text messages are an incomplete record of the care and that the care fluctuated. He agreed that at the date of notification on 20 November 2017 he had care of the children for three nights a week, despite what the care may have been in September 2017.

2. In relation to the delay in lodging his objection to the decision the Department made on 6 March 2018 following the notification of a change in care on 20 November 2017, Mr McKay said he was gathering evidence. He said he was also confused because he didn’t understand why the decisions made by the Department kept going in Ms Mooney’s favour. The tribunal noted that at that point the Department had only made one care decision.

3. Ms Mooney said the agreement was that Mr McKay would have three nights of care a week, and she would have the remaining nights of care. Ms Mooney said Mr McKay’s care had been two nights a week before Child 2 was born. She said that at about that time she needed more assistance due to her pregnancy and so Mr McKay had increased care. Ms Mooney said she advised the Department in relation to the notification of the change in care on 20 November 2017 that Mr McKay had two nights of care of the children, because that had been the pattern of the care for Child 1 when they separated in 2016. She said it increased to three nights in about November 2017. Ms Mooney referred to a statutory declaration from Mr McKay’s partner, which stated that Mr McKay had care of both children for three to five days per week from [date]. Ms Mooney said she was still in hospital after having given birth to Child 2 on the previous day, and it certainly wasn’t true that both children were in Mr McKay’s care. Ms Mooney said she is the primary carer of the children.

The notification of a change in care in September 2018

1. Mr McKay said he notified of a change in care in September 2018 because he was having four nights of care of the children and wanted that reflected in the child support record. He referred the tribunal to text messages between him and Ms Mooney, which he said were on 4 November 2018, which he said shows the children were with him until Monday mornings. In the message Ms Mooney wrote “Why bother asking what time when you ask know I come the same time every Monday, you send the same message to me every Sunday night”.

2. Mr McKay referred to diary records he had given to the Department, which he said are accurate with the text messages. He said he started keeping the diary in April 2017, in case he ever had to go to court about the care. Mr McKay said he didn’t give the Department the care diary in relation to the change of care notified by him in November 2017 because he was building it up to show a pattern of the care for use in court. He said he provided it to the Department after someone said it would be good for use in his objection.

3. Ms Mooney agreed that at the date of the text message she was generally picking the children up from Mr McKay on a Monday morning before she dropped them to child care. She said when Mr McKay’s care extended to the Sunday nights, which she said Mr McKay started doing without her agreement, she started keeping them for the Thursday night. She agreed that there were variations to the care, depending on their schedules. She said the agreement between them was an informal verbal agreement, but due to Mr McKay’s attempts to increase his care, she has commenced court proceedings. They are having family dispute resolution before going to court. Ms Mooney said the text messages and diary evidence provided by Mr McKay is not sufficient to accept that he has four nights of care, whereas she has provided the sign-in sheets from day care as well as a statement from the day care director and from Child 1’s NDIS worker. She said she is responsible for all of the children’s health, education and appointments.

4. Ms Mooney said she wanted the tribunal to correct the care recorded by the Department, which she said had resulted in a large Centrelink debt. At various points, recorded in the documents provided by the Department, Ms Mooney has asserted that her percentage of care of the children had for a long time been 72%. At the hearing she said her percentage of care is 60% and Mr McKay has a percentage of care of 40%.

Evidence from third parties

1. Mr McKay submitted copies of eleven statutory declarations, from family and friends familiar with the care he provides for the children, all of which were signed in August 2018. They indicated that the children were in the care of Mr McKay for three to five days a week. Only the statements from Mr McKay and his partner refer to the period to which the pattern of care had applied, which they stated was from [date] (the day after Child 2 was born).

2. Ms Mooney submitted a letter, dated 12 December 2018, from the Director of the [Suburb] Early Learning Centre, Ms [A], which states that Ms Mooney is the person who brings the children to and collects them from daycare, and attends events at the centre, since September 2016. Ms Mooney also submitted the sign-in sheets from [Suburb] ELC, which show that she is the person who routinely signed in and out.

3. A statement from a friend of Ms Mooney, [Ms B], dated 26 November 2018, states that the care arrangement for the children has always been that Ms Mooney has care of the children from Sunday afternoon to Thursday night.

Was there a change in the pattern of care of the children?

1. The tribunal considered the pattern of care in this case, taking into account the evidence of the parties at the hearing, evidence from third parties, and the information in the documents provided by the Department.

2. There is no dispute in this case that at least from early 2017 Mr McKay has had significant care of the children, of at least two nights a week. The evidence indicates, and the parties agreed, that at least from 20 November 2017 there was an agreement that Mr McKay would have three nights of care of the children, on Thursday, Friday and Saturday nights, and they would return to Ms Mooney’s care on Sunday night. Mr McKay’s evidence was confused and at times contradictory, but it appeared to be his case that despite the verbal agreement with Ms Mooney, he had care on four nights a week, which included the Sunday nights. While he stated on a number of occasions that this commenced in early 2017, this contradicts his original notification on 20 November 2017 that he had three nights of care a week. Mr McKay’s explanation for this inconsistency was that his notification was based on the agreement with Ms Mooney. The tribunal did not find this persuasive and concluded that at the date of the notification of the change in care Mr McKay notified that he had three nights of care of the children, because the pattern of care he had at the time was three nights of care of the children. There was generally agreement between Mr McKay and Ms Mooney that there were some variations in the care, and this is reflected in the text messages between them, but the tribunal concluded that the best evidence indicates that the pattern of care at 20 November 2017 was that Mr McKay had three nights of care a week, consistent with his notification of a change in the care. Although Ms Mooney initially stated that Mr McKay had two nights a week care, she subsequently agreed that it was three nights a week from at least 20 November 2017.

3. It was the evidence of Mr McKay that he had increased care of the children from [date], although that is disputed. While it is likely that he had increased care of Child 1 at that time, as Ms Mooney had given birth to Child 2 the day before, the tribunal was not persuaded that any increase in the care at that time amounted to a change in the pattern of the care. The tribunal notes that the diary submitted by Mr McKay was given to the Department in November 2018, and starts from the beginning of 2018. It does not, in any case, indicate that Mr McKay had the level of care he asserted he had (i.e. four nights a week) before October 2018. Furthermore, the care recorded at the beginning of 2018 does not correspond to the pattern Mr McKay said was occurring at that time (i.e. from Thursday nights to Sunday nights).

4. The tribunal notes that although Ms Mooney is recorded as asserting, including in text messages to Mr McKay, that she had 70% or 72% of the care of the children in the period under review, it is clear that she has at the same time acknowledged that Mr McKay had three nights a week of care. That being the case, his percentage of care is 42%. The tribunal did not place any weight on the evidence of either party about the percentages of care they asserted they had, relying instead on the evidence in relation to the nights in care.

Should the percentage of care determinations be revoked?

1. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54F is relevant in this case. It sets out when the Registrar must revoke the existing care determinations, including if the new care percentage determination would change the cost percentage and certain other conditions in subsection 54F(1) of the Act are met.

2. In the circumstances of this case the tribunal decided to revoke the existing percentage of care determinations under section 54F of the Act from 20 November 2017, and not from an earlier date.

3. The tribunal decided to make new percentage of care determinations under sections 50 of the Act to reflect that in the care period from 20 November 2017 to 19 November 2018 Mr McKay was likely to have a percentage of care of the children of 42% (three nights a week) and Ms Mooney was likely to have a percentage of care of 58%.

4. The date of effect of the new determinations is subject to section 87AA of the Registration and Collection Act. An objection to a care percentage decision does not have to be lodged within the usual 28 days that apply to other child support decisions. However, if it is lodged outside 28 days and the objection is either allowed in full or in part, the date of effect of the decision is the date on which the objection was lodged, unless there are special circumstances which prevented the person from lodging the objection within 28 days.

5. In this case Mr McKay did not lodge his objection to the care decision of 6 March 2018 until 2 October 2018. As set out above, he indicated that the delay in lodging his objection was due to gathering evidence in relation to the care. Having weighed the evidence, the tribunal was not persuaded that this amounts to special circumstances that warrant extending the 28-day period which applies in determining the date of effect in this case. The date of effect of the new care determinations therefore is 2 October 2018, being the date on which Mr McKay lodged his objection. As this is consistent with the decision of the objections officer, the tribunal decided to affirm the decision under review.

Was there a further change in the pattern of care of the children?

1. As set out above, the documents provided by the Department show that both Mr McKay and Ms Mooney notified of changes in the care of the children in September 2018. Mr McKay’s notification was made online, and indicated that he had care of one child for three nights a week and care of the other child for four nights a week. The notification lodged by Ms Mooney was to the effect that Mr McKay had care of the children on three nights a week. As set out above, however, she agreed that Mr McKay’s care of the children had increased to three nights a week from about November 2017.

1. At the hearing Mr McKay did not indicate that his care of either child was different to the other child, and neither did Ms Mooney, although the flexibility in the care arrangements suggests that may well happen from time to time. It was not clear from Mr McKay’s evidence what had changed in September 2018 to cause him to notify of a change in the care, which he reiterated on a number of occasions was four nights a week from early 2017 (although he also made statements that seemed to contradict that that was the case).

2. While Ms Mooney asserted that Mr McKay’s care remained three nights a week, she agreed that he was by November 2018 regularly having care of the children on Sunday nights. This is clear from the text messages between them. Ms Mooney said that as a result of this change she would not always give the children to Mr McKay on a Thursday night. She indicated, however, that there were occasions when Mr McKay did have the children from Thursday nights and return them on Monday morning. It was not clear to the tribunal when this commenced or how often the children remained with Ms Mooney on a Thursday night. According to Mr McKay’s diary, he did not have care of the children on any Thursday in September 2018; but did have care on every Thursday in October 2018.

3. In the circumstances the tribunal concluded there was a change in the care of the children from 20 September 2018 and decided to revoke the existing percentage of care determinations under section 54F of the Act. The date of the revocation is, in accordance with subsection 54F(2), 19 September 2018.

4. The tribunal decided to make new percentage of care determinations under sections 49 and 50 of the Act to reflect that in the care period from 20 September 2018 to 19 September 2019 Mr McKay was likely to have a percentage of care of the children of 50% (about seven nights a fortnight) and Ms Mooney was likely to have a percentage of care of 50%. In making this determination the tribunal took into account the evidence of the parties that Mr McKay regularly had care of the children on Sunday nights, and it accepted that he continued to have care on some, but not all, Thursday nights. The date of effect of the new care determinations is 20 September 2018. As discussed with the parties at the hearing, the tribunal did not consider whether there had been further changes in the care.

5. As the tribunal’s decision that Mr McKay and Ms Mooney each had 50% of the care of the children from 20 September 2018, it decided to set aside the decision of the objections officer. This means that the earlier decision, the date of effect of which is 2 October 2018 under section 87AA, has no effect in the child support assessment.

DECISION

The tribunal decided to affirm the decisions that Mr McKay had a percentage of care of the children of 42% and Ms Mooney had a percentage of care of 58% from 20 November 2017, and that the date of effect of the new percentage of care determinations is 2 October 2018 (2019/SC015665 and 2019/SC015778).

The tribunal decided to set aside the decision in relation to the notification of a change of care from 20 September 2018, and substitutes its decision to revoke the existing percentage of care determinations and make new determinations to reflect that from 20 September 2018 Mr McKay’s percentage of care of the children was 50% and Ms Mooney’s percentage of care was 50% (2019/SC015705).