Oakley and Dexter (Child support)

[2022] AATA 635

Oakley and Dexter (Child support) [2022] AATA 635 (15 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022573

APPLICANT:  Miss Oakley

OTHER PARTIES:  Child Support Registrar

Mr Dexter

TRIBUNAL:Member M Sutherland

DECISION DATE:  15 February 2022

DECISION:

The decision under review is affirmed. This means that the application is unsuccessful.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether existing percentage of care determinations should be 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. This review is about a change to the percentage of care determination for Mr Dexter and Miss Oakley for their children [Child 1], [Child 2] and [Child 3] (born [in] November 2009, [September] 2013 and [September] 2015 respectively).

1. There has been a child support assessment in place since May 2019, Mr Dexter is the parent liable to pay child support under the child assessment. The child support assessment reflected Mr Dexter as having 0 per cent care and Miss Oakley as having 100 per cent care of the children. There was no court order or other written agreement. The care percentage reflected the care provided at the time.

1. On 9 March 2021 Mr Dexter notified Services Australia – Child Support (the agency) of a change to the care arrangements stating that he provided 14 per cent care and Miss Oakley 86 per cent care of the children from 29 August 2020.

1. On 20 August 2021 the agency made the decision not to change the care percentages from 100 per cent to Miss Oakley and 0 per cent to Mr Dexter.

1. On 27 August 2021 Mr Dexter objected to this decision and on 21 October 2021 the agency after considering further evidence provided by Mr Dexter partly allowed the objection (the objection decision) to reflect care at 83 per cent to Miss Oakley and 17 per cent to Mr Dexter from 29 August 2020 effective for child support assessment from 9 March 2021.

1. On 21 October 2021 Miss Oakley applied to the Tribunal for a review of the objection decision.

1. The Tribunal conducted a hearing into the application on 15 February 2022. Mr Dexter and Miss Oakley gave evidence on affirmation by conference telephone.  The agency provided the Tribunal and the parties with papers relevant to the matter.

The law

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

1. Where a parent has a pattern of care for a child, the agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

1. The agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

The issues

1. The issues which arise in this case are:

·      has there been a change in the pattern of care for the children which requires the existing percentage of care determinations to be revoked and new care determinations made? And, if so

·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

The evidence of the parties

1. Miss Oakley said that the care percentages of 100 per cent to her and 0 per cent to Mr Dexter from May 2015 reflected what was happening at the time. Since then Mr Dexter has had some intermittent care, he is a FIFO worker, but she does not concede that it has been 17 per cent or even 14 per cent care since August 2020. He had the children for 36 days (over a 222-day period) from August 2020, 2 days per fortnight on weekends and 12 days over the 2020 Christmas holidays. (In the hearing papers she conceded 38 days of care.) She disputes that care changed in August 2020.

2. Since 9 March 2021, when Mr Dexter reported the care change to the agency he has had about 52 days of care.

3. In the original decision Mr Dexter was not granted a percentage of care. After he objected he provided more evidence of the care he said he had from August 2020 and was granted 17 per cent care.

4. Prior to the objection decision being made, due to a miscommunication with the agency, she did not have the opportunity to put in statements from her mother and boyfriend about the percentage of care she has had since August 2020. The objection decision was made without her further input. The Tribunal invited Miss Oakley to provide further documents if she so wished. She declined and said that she believed that she had provided enough evidence for the original hearing, which were in the papers, to support her claim so would not submit anything further.

1. Mr Dexter said that his child support payments were fluctuating, in August 2020 he telephoned the agency to enquire about how he could apply for a change of care percentage. He was told that he needed to keep a record of care he had and then apply to the agency. He did this and by March 2021 he believed he had sufficient records and applied for a change of care percentage. In April 2021 he sent the agency a handwritten care record which detailed the nights of care he claimed to have provided from 29 August 2020 to 28 March 2021, which totalled 57 nights over 212 days. His application was unsuccessful. He objected to the decision and provided further information regarding care and was granted 17 per cent care from 20 August 2020.

1. Miss Oakley conceded that Mr Dexter had had 38 nights of care from 29 August 2020 to the end of 28 March 2021, see page 13 of the hearing papers, 38 days over 212 days = 17 per cent care. Mr Dexter’s care schedule which detailed the nights of care provided from 29 August 2020 to 28 March 2021 totalled 57 nights over 212 days= 26 per cent care. The schedule reflected a pattern of every second Friday and Saturday night, plus half of the school holidays from October 2020 school holidays onwards. While it is accepted by Miss Oakley that Mr Dexter had some care there is conflicting evidence about the percentage of care Mr Dexter provided.

1. The Tribunal finds that:

   ·      Mr Dexter’s list of dates of 57 nights of care over 212 days amount to 26 per cent care.

   ·      Miss Oakley’s list of dates of 38 nights of care over 212 days amount to 17 per cent care

   ·      There is agreement that Mr Dexter provided care of at least 38 nights, 17 per cent care. 

   ·      based on the evidence provided, a new pattern of care was established from 20 August 2020 with Mr Dexter providing care of at least 38 nights or 17 per cent care, the agency’s objection decision is correct.

   ·      As section 54F of the Act is not met, there is not a different percentage of care to the care determination made by the agency in the objection decision.

   ·      The objection decision should not be revoked and replaced with a different pattern of care.  

2. The cost percentage applied to the assessment if a parent is reflected as having regular care of between 14 and 35 per cent is 24 per cent. Both 17 per cent and 26 per cent fall into the bracket. The cost percentage of 24 per cent does not change or vary regardless of whether a parent has 17 per cent reflected or 26 per cent reflected. A change will only occur to the assessment financially if a parent’s care falls below 14 per cent or increases above 34 per cent care.

DECISION

The decision under review is affirmed. This means that the application is unsuccessful.