Oda and Oda (Child support)

[2019] AATA 2182

Oda and Oda (Child support) [2019] AATA 2182 (3 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016047

APPLICANT:  Ms Oda

OTHER PARTIES:  Mr Oda

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  3 June 2019

DECISION:

The decision under review is varied so that Ms Oda is recorded as providing 35% care to [Child 1], with effect from 26 October 2018, and Mr Oda is recorded as providing 65% care to [Child 1], with effect from 6 August 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court orders “generally” complied with – existing percentage of care determinations revoked and new determinations made – decision under review varied

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

1. Ms Oda and Mr Oda are the parents of [Child 1]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2017. From 9 March 2018, Ms Oda was recorded as providing 21% care and Mr Oda was recorded as providing 79% care to [Child 1].

2. On 6 August 2018 the Federal Circuit Court made new orders concerning the parents’ care of [Child 1]. Broadly speaking, Ms Oda was to provide four nights of care per fortnight during school terms and she was to provide care during half of each school holiday. Mr Oda was to provide the balance of care.

3. On 26 October 2018, Ms Oda informed the CSA of the change in care. The CSA decided to record Ms Oda as providing 33% care, with effect from 26 October 2018, and Mr Oda as providing 67% care, with effect from 6 August 2018: page 113 of the hearing papers. Ms Oda objected to that decision. An objections officer disallowed her objection. She sought further review by the Tribunal.

4. According to the Tribunal registry’s records, it sent letters to Ms Oda and Mr Oda on 15 April 2019 informing them that the hearing would commence at 9:00 am on 31 May 2019, and it sent text messages to Ms Oda and Mr Oda on 30 May 2019 reminding them of the hearing on 31 May 2019.

5. Ms Oda attended the hearing in person. I phoned Mr Oda at the scheduled hearing time. He said he had been unaware of the scheduled hearing. He said he did not receive a letter informing him of the hearing details and he did not receive a text message reminding him of the hearing. Ms Oda said she did receive a letter informing her of the hearing details and she did receive a text message reminding her of the hearing. Mr Oda applied to have the hearing relisted on the basis that he had been unaware of the hearing and he was unable to participate in the hearing. On balance, I considered it likely that the Tribunal registry’s records correctly recorded the issuing of the letter and the text message to Mr Oda, and I considered it unlikely that he did not receive both the letter and the text message. I did not accept his evidence that he was unaware of the hearing. I refused his application to have the matter relisted. He terminated the call. The hearing proceeded in his absence.

6. As I explained to Ms Oda during the hearing, decision-makers are required to determine the parents’ general pattern of care during an appropriate care period. Ms Oda initially stated that her general pattern of care was the provision of the Court ordered care plus additional nights of care. She explained that she maintained a spreadsheet of the parents’ care in which she initially recorded the expected care pursuant to the Court order, and she amended the spreadsheet when the parents’ actual care varied from the expected care. I noted that some variations were recorded as being “in lieu for” other care. Ms Oda explained that the parents are somewhat flexible in their compliance with the Court order. In response to further questions, she agreed that her general pattern of care was the provision of the Court ordered care (as opposed to the provision of the Court ordered care plus additional nights of care).

7. Most school-aged children attend 40 weeks of school and have 12 weeks of school holidays per year. The provision of four nights of care per fortnight during school terms and the provision of care during half of each school holiday is a common pattern of care which usually equates to ((40 / 2 x 4) + (12 x 7 / 2)) / 365 = 33.4% care, however that assumes that the pattern of fortnightly care is suspended at the end of each term, and is resumed at the commencement of the following term. Each case must be assessed on its particular facts.

8. On 16 December 2018, Ms Oda provided the CSA with a copy of her spreadsheet. A copy was forwarded to Mr Oda. On 1 January 2019, Mr Oda provided submissions to the CSA which included the following: “I did not agree to the calendar submitted by the mother and there are overnight stays in there that are not correct.” However, he did not identify the disputed overnight care. On 22 January 2019, he submitted that Ms Oda’s evidence was “clearly false”, but he did not identify in what way he considered her evidence to be false. On 31 January 2019, he reiterated that Ms Oda’s evidence was false, but again he did not identify in what way he considered her evidence to be false. In summary, throughout the course of his dealings with the CSA, he failed to meaningfully engage with the substance of Ms Oda’s evidence.  

9. The Court orders, so far as they relate to holiday care until the end of term 4 of 2019, generally provide that Ms Oda is to provide care during the first half of the holidays and Mr Oda is to provide care during the second half of the school holidays. The Court orders state that Mr Oda is to provide care during the first half of the holidays at the end of term 4 in 2019, and they do not refer to any subsequent holiday care. It may be that it is envisaged that further Court orders will be made before the end of 2019. However, it is not necessary to consider that matter further. So far as the change in care from 6 August 2018 is concerned, I consider the 12-month period from 6 August 2018 to be the appropriate care period over which to assess the parents’ general pattern of care from 6 August 2018.

10. According to Ms Oda’s calendar, her fortnightly care commences around the first weekend of each term of school, regardless of whether she provided care around the last weekend of the previous term. For example, she expected to provide care from 28 to 31 March 2019, which was around the last weekend before the autumn holidays, and she expected to provide care during the first half of the autumn holidays, and she expected to provide care from 25 to 28 April 2019, which was around the first weekend after the autumn holidays. She expected a similar arrangement to occur around the winter holidays. She explained that she provides care around the first weekend of each term because Mr Oda provides care during the second half of each school holiday, and so by the end of the first week of the next term, she has not provided care for some time. She added that it transpired that she actually provided the pattern of care that she had expected to provide.

11. After the hearing, Mr Oda provided written submissions, a copy of the Court orders dated 6 August 2018, and a spreadsheet of care which he stated was “consistent with” those orders. I accepted that documentation into evidence. I did not consider it necessary to hear from Ms Oda in respect of that documentation prior to making my decision.

12. Mr Oda’s spreadsheet is for 2019. He did not explain why he did not provide a spreadsheet that covered the period from 6 August 2018 onwards. Like Ms Oda, he recorded Ms Oda as providing care around the last weekend before the autumn 2019 holidays, and during the first half the autumn holidays, and around the first weekend after the autumn holiday. He recorded her as providing similar patterns of care around the winter 2019 holiday and the spring 2019 holiday.

13. Based on the parents’ calendars, there appears to be no dispute that when Ms Oda reported the change in care, it was likely that she would provide care for four nights per fortnight during school terms, commencing around the first weekend of each school term, and she would also provide care during half of each school holiday. Because her fortnightly care was likely to start around the first weekend of each school term, her care was likely to be more than the 33.4% care calculated above. She calculated that she was likely to provide 136 nights of care during the year commencing 6 August 2018. However, she included six nights which were aberrations to her general pattern of care. Her general pattern of care equated to 130 nights of care per year. 130 / 365 = 35.6%.

14. The relevant law is contained in the Child Support (Assessment) Act 1989 (“the Act”). In particular, so far as the current case is concerned, section 54F of the Act provides for the revocation of the previous care decision and section 50 of the Act provides for the making of a new care decision on the basis of the pattern of care each parent “has had, or is likely to have” over the appropriate care period. For the reasons stated above, when Ms Oda informed the CSA of the change in care, she had been providing, and was likely to continue to provide, a pattern of care that equated to 35.6% care, which is rounded down to 35%: section 54D of the Act. Mr Oda had been providing, and was likely to continue to provide, a pattern of care that equated to 64.4% care, which is rounded up to 65% care: section 54D of the Act.

15. Neither parent notified the CSA of the change in care within 28 days of it occurring, and so Ms Oda’s increased percentage of care has effect from the date of notification, which was 26 October 2018, and Mr Oda’s decreased percentage of care has effect from the date on which the change in care actually occurred, which was 6 August 2018: sections 54B and 54F of the Act.

DECISION

The decision under review is varied so that Ms Oda is recorded as providing 35% care to [Child 1], with effect from 26 October 2018, and Mr Oda is recorded as providing 65% care to [Child 1], with effect from 6 August 2018.