Paddon and Paddon (Child support)

[2024] AATA 1881

Paddon and Paddon (Child support) [2024] AATA 1881 (16 April 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/SC027292

APPLICANT:  Mr Paddon

OTHER PARTIES:  Child Support Registrar

Ms Paddon

TRIBUNAL:Member S Irvine

DECISION DATE:  16 April 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1] and [Child 2] Mr Paddon has 9% care and Ms Paddon has 91% care from 19 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – existing care determinations revoked – actual pattern of care applied – not enough to have any effect on the amount of child support payable – decision under review set aside 

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. Mr Paddon and Ms Paddon are the parents of [Child 1] born in June 2018 and [Child 2] born in September 2020. A child support assessment commenced on 19 January 2021. The child support assessment reflects that both children are in Ms Paddon’s 100% care.

2. On 19 May 2023, following a notification by Mr Paddon, Services Australia – Child Support (Child Support) made a decision not to change the existing care determinations for [Child 1] and [Child 2].

3. On 7 November 2023 Mr Paddon objected to that decision, and on 28 December 2023 a Child Support objections officer disallowed the objection.

4. On 4 January 2024 Mr Paddon applied to this Tribunal for a review of the care percentage decision. A hearing was held on 8 April 2024. Mr Paddon and Ms Paddon attended the hearing by telephone and gave sworn evidence. The Tribunal also had before it the statement and documents provided by Child Support in accordance with the Administrative Appeals Tribunal Act 1975 (104 pages), a copy of which was provided to both parents prior to the hearing.

5. Following the hearing I adjourned the matter to allow Mr Paddon to file further evidence as to the nights he had care of [Child 1] and [Child 2]. I directed that Mr Paddon should submit any further evidence by close of business on 15 April 2024.

6. No further evidence was received from Mr Paddon. On 16 April 2024 the Tribunal reconvened and made its decision.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues that arise in this review are:

   ·      whether the existing percentages of care for [Child 1] and [Child 2] should be revoked; and if so

   • from what date the existing percentages of care are revoked; and
   • what new care percentage determinations should be made for [Child 1] and [Child 2].

CONSIDERATION

1. Sections 49 and 50 of the Act provide that a determination of a person’s percentage of care for a child must be made in certain circumstances. Relevantly, a determination must be made if an existing care percentage determination is revoked.

2. A care percentage determination can be revoked under section 54F, 54G or 54H of the Act. Section 54G will apply in circumstances where a parent who was to have at least regular care of the child under the existing care determination in fact has had no care or less than regular care if certain other conditions are met. Subsection 5(2) of the Act provides that a person has regular care of a child if the person’s percentage of care for the child is at least 14% but less than 35%.

3. Subsection 54F(1) of the Act provides that a person’s existing care determination for a child must be revoked if:

   (a) the Registrar or 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

   (b) 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

(c) section 54G does not apply; and

(d) subsection (2) applies in relation to the individual.

1. Subsection 54F(2) of the Act relates to a situation where the existing care determination is an “interim determination” made under section 51 of the Act and is not relevant to the current matter.

2. A person’s cost percentage for a child is determined under section 55C of the Act. Section 55C sets out a table showing how a person’s care percentage (determined under section 49 or 50 of the Act) equates to a cost percentage which is used in the child support formula as follows:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Subsection 54H(1) of the Act provides that a person’s existing care determination for a child may be revoked if neither section 54G nor section 54F apply, and, relevantly:

   (a) the Registrar or 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

   (b) the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; …

2. If a person’s existing percentage of care for a child is revoked under any of sections 54F, 54G or 54H of the Act, a new care determination must be made under section 49 of the Act (if the person has no pattern of care) or section 50 of the Act (if the person has a pattern of care). Pursuant to those sections, it is necessary to determine the pattern of care of the child the person has had or is likely to have during such period (the care period) as the Registrar (or the Tribunal standing in place of the Registrar) considers to be appropriate having regard to all the circumstances. Where the person has a pattern of care for the child, subsection 50(2) of the Act requires that the responsible person’s percentage of care for the child during the care period must be determined, and subsection 50(3) requires that the percentage must be a percentage that corresponds with the actual care of the child that the person has had or is likely to have during the care period.

3. Subsection 54A(1) of the Act provides that 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 the child was, or is likely to be, in the care of the person. However, it is recognised that the number of nights in care is not always an appropriate way to measure the care of a child in the particular circumstances of a case.

Should the existing care determinations for [Child 1] and [Child 2] be revoked?

1. Mr Paddon’s oral evidence at the hearing was that he has been having care of both [Child 1] and [Child 2] since around 2021, both during the week and on weekends. There were times when he had them on Wednesday nights or Thursday nights and took them to school the next day, and there were times when he had them every weekend. More recently he doesn’t usually have care during the week but he still has weekend care. 

2. He has had weekend care most weekends. He hasn’t kept a care calendar and doesn’t have any evidence of his care other than text messages and photos.

3. He said he has tried to tell Child Support this many times but he kept getting knocked back.

4. Ms Paddon’s oral evidence at the hearing is that currently Mr Paddon generally doesn’t have care during the week, the usual pattern is that he has them for one night every second weekend. He would only have care on weekdays occasionally if there is a public holiday.

5. Ms Paddon said that she does keep records of when the children are in Mr Paddon’s care. Usually Mr Paddon has care when Ms Paddon works a night shift.

6. Most recently before the hearing Mr and Mrs Paddon agreed that Mr Paddon had had care of the children on the nights of 2 March, 16 March, 29 and 30 March (for Easter), and 6 April. Going forward, Ms Paddon said that her roster is that she works a night shift every second weekend, and on those weekends Mr Paddon will have care of the children for the Saturday night. There might be an occasional extra night if she picks up an additional night shift, but even if that happens often her mother will care for the children.

7. I also considered evidence that Ms Paddon provided to child support showing Mr Paddon’s care in August, October and November 2023. That evidence, which was confirmed by Ms Paddon in the hearing, is that Mr Paddon had care of the children for 2 nights in August 2023, 4 nights in October 2023 and 3 nights in November 2023.

8. Mr Paddon didn’t clearly agree or disagree with Ms Paddon’s evidence about the ongoing care of the children, but he did say that if you went back he had them more often in the past. He said it has been “a little bit” since he’s done that, but couldn’t provide an actual timeframe when that had happened.

9. Mr Paddon also did not clearly confirm or deny the information that was provided to Child Support by Ms Paddon. He said he would have to go back through all his records, which might be on a different phone. Mr Paddon said he would like an opportunity to present his evidence to the Tribunal but he has to go through it.

10. As set out above, following the hearing I allowed Mr Paddon time to provide further evidence about what care he has had of the children, but no further evidence was received from Mr Paddon.

11. On the basis of the evidence provided, I am satisfied that Mr Paddon had care of the children for 2 nights in August 2023, 4 nights in October 2023, 3 nights in November 2023 and 4 nights in March 2024. Ms Paddon’s evidence is that at the time of the hearing Mr Paddon had care of the children for one night in April 2024, and was likely to have care on one further night in April 2024. I am satisfied that Mr Paddon likely did have at least 2 nights care per month in other months, but there is no definitive evidence before me as to that.

12. I am prepared to find that, at least since 19 May 2023, it is likely that Mr Paddon has had care of the children for one night every second weekend, plus on average one additional night in each calendar month. This is by necessity an estimate of Mr Paddon’s actual care but it appears to be the pattern that is supported by the evidence. This would give Mr Paddon a total of 38 nights care over the course of a year, or 9% care.

13. Pursuant to section 54H of the Act I find that the existing care determinations of 100% to Ms Paddon and 0% to Mr Paddon should be revoked from the day before the change of care day (on the basis that Mr Paddon notified Child Support of the change on 15 June 2023, which is within 28 days of 19 May 2023).

14. Pursuant to section 50 of the Act I find that the actual pattern of care for [Child 1] and [Child 2] from 19 May 2023 is 91% to Ms Paddon and 9% to Mr Paddon, and those care percentages should be applied from 19 May 2023.

15. As discussed in the hearing, a care percentage of 9% to Mr Paddon will not be enough to have any effect on the amount of child support he is required to pay. However, in light of the evidence I am satisfied that it is appropriate to reflect that Mr Paddon does have a regular pattern of care for the children.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that in respect of [Child 1] and [Child 2] Mr Paddon has 9% care and Ms Paddon has 91% care from 19 May 2023.