Rakestraw and Nordin (Child support)

[2023] AATA 3300

Rakestraw and Nordin (Child support) [2023] AATA 3300 (22 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC025873

APPLICANT:  Mr Rakestraw

OTHER PARTIES:  Child Support Registrar

Ms Nordin

TRIBUNAL:Member C Breheny

DECISION DATE:  22 August 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the care of the child – date of change – existing percentage of care determinations 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 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. Ms Nordin and Mr Rakestraw are the separated parents of [Child 1], born Sepember 2004. There is an older child, not subject to this review. A child support case has been registered with Services Australia – Child Support (Child Support) since 30 November 2007 and child support has been payable on the basis that Ms Nordin had 86% care and Mr Rakestraw had 14% care of [Child 1] from 8 April 2011. Mr Rakestraw was liable to pay child support to Ms Nordin. The child support case for [Child 1] ended on 17 December 2022.

2. On 2 August 2022 Ms Nordin contacted Child Support and advised that she has had 100% care of [Child 1] from 1 January 2013. She indicated that court orders made in 2011 provided for Mr Rakestraw to have 14% care but the orders had not been followed.

3. Mr Rakestraw disputed that a care change occurred in 2013 and stated that it occurred much later. He noted it was a gradual process and he could not indicate a date on which a care change did occur. On 18 October 2022 a decision was made that Ms Nordin had 100% care and Mr Rakestraw had 0% care of [Child 1] from 1 January 2013. 

4. On 25 October 2022 Mr Rakestraw objected to the decision and on 17 January 2023, a Child Support objections officer partly allowed the objection. The objections officer determined that Ms Nordin had 100% care and Mr Rakestraw had 0% care of [Child 1] from 30 April 2017.

5. On 28 March 2023, Mr Rakestraw applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 22 August 2023. Ms Nordin and Mr Rakestraw attended the hearing by telephone. Mr Rakestraw gave evidence on affirmation and Ms Nordin gave sworn evidence. I had before me the Statements and Documents provided by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, received on 4 May 2023 (documents numbered 1-498). I also considered evidence provided by Ms Nordin, marked B1-B2.

ISSUES AND CONSIDERATION

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

2. Sections 49 and 50 of the Act provide that a care determination must be made following an application for a child support assessment and requires consideration of the actual, or likely, pattern of care that the parents will have in relation to the children in a particular care period.

3. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

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. In this case, Child Support records indicate that since 8 April 2011, child support liability had been calculated on the basis that Ms Nordin had 86% care and Mr Rakestraw had 14% care of [Child 1] (folio 462). Records also show that Ms Nordin contacted Child Support on 21 November 2012 to indicate that she had 100% care of [Child 1] from 6 October 2012 and this care change notification was ultimately rejected (folio 462).

2. On 20 May 2013 Child Support accepted a decision made by the Family Assistance Office (the FAO) such that Mr Rakestraw had 14% care of [Child 1] from 8 April 2011 to 17 September 2012 and from 18 September 2012 (folio 82) and on 2 August 2022 Ms Nordin contacted Child Support to advise that she had 100% care of [Child 1] from 1 January 2013 (folio 323).

Mr Rakestraw’s evidence

1. Mr Rakestraw stated that court orders were made in 2011 to ensure that he could have care of [Child 1] and [Child 1]’s older sister more regularly, as previous care arrangements had been on an “ad hoc” basis. As a result, he had care of the children every second weekend for two nights.

2. Mr Rakestraw said that he lived with his parents at the time and the children would stay with him in his parents’ home. He had been in a relationship from 2012 to about 2015 and the children would also stay at his ex-partner’s home.

3. Mr Rakestraw noted that he was self-employed at the time and was not always home during the day, as he was working. His parents would then look after the children until he returned home.

4. Mr Rakestraw agreed that there were times when he did not have care of [Child 1] on “his regular weekend” because [Child 1] and his sister had other activities/appointments, but he would “make up” the care on another weekend.

5. Mr Rakestraw said that care may not have been as “constant” after April 2017, as [Child 1] was getting older and had other activities planned on weekends, but he still had care of [Child 1] regularly. He was also working a lot and when he could not look after the children, due to his work commitments, their grandparents would look after them.

6. Mr Rakestraw acknowledged that Ms Nordin provided a letter from the director of [Child 1]’s school, which stated that he (Mr Rakestraw) did not have any contact with the school. He submitted that he was never told which school [Child 1] attended or advised of any school events. Ms Nordin had made all those decisions without consulting him.

7. Mr Rakestraw further submitted that he always paid child support for [Child 1] when he could do so. He may have missed some payments when he was self-employed and without a steady income, but he would later pay the arrears. The child support for [Child 1] has now ended and it was highly unfair that his child support liability should be reassessed. He noted that Ms Nordin could have advised a care change much earlier, if she was dissatisfied with the care percentage used by Child Support in its assessment.

Ms Nordin’s evidence

1. Ms Nordin stated that Mr Rakestraw was never very involved in raising the children. She felt like a “single mum” even prior to their separation. She agreed that Mr Rakestraw had “some care” of [Child 1], but not on a consistent basis. Care “fluctuated a lot” and depended on whether Mr Rakestraw was in a relationship. If he was, he would lose all contact with the children.

2. Ms Nordin said that she and the children have a good relationship with Mr Rakestraw’s parents, and, on occasion, she would take the children to stay with their grandparents. If Mr Rakestraw had a new partner, he would often stay at their place and the children would be looked after by their grandparents.

3. Ms Nordin noted that Mr Rakestraw was not really involved in [Child 1]’s life. He would not know which school [Child 1] attended, what activities [Child 1] is involved in or any medical issues that [Child 1] might have.

4. Ms Nordin agreed that Mr Rakestraw provided several support letters for his case but suggested that these should be disregarded. His parents could not recall writing a letter to Child Support when [Child 1] asked them about it and she did not know who the other persons were and how they would have any direct knowledge of where [Child 1] was staying.

5. Ms Nordin further stated that she often questioned the care percentages but was always told that “it made no difference” whether Mr Rakestraw had 0% or 14% care. She had directed her questions to theCentrelink FAO, however, not Child Support. It was only when she mentioned the issue to a Child Support staff member during her discussions about extending the child support assessment past [Child 1]’s 18^th birthday, that she was told that a care percentage below 14% would affect the child support assessment. This is when she reported the care change.

Mr Rakestraw: Additional evidence

1. Mr Rakestraw provided a letter from [Ms A] (a friend) dated 6 December 2022 (folio 397), stating that Mr Rakestraw had “custody of the children every other weekend from 2013” and that they would catch up for lunch and dinner on those weekends. [Ms A] further writes that she noted “on many occasions [Mr Rakestraw] being disappointed that his ex-wife would make appointments for child/children [sic] on the days he was allowed access so missed out on his time with them”.

2. Mr Rakestraw provided a letter from his parents, dated 1 December 2022 (folio 398). He acknowledged that he had written the letter on their behalf, as their English was not very good. He said that they were fully aware of the contents of the letter and agreed with what he had written. The letter states:

   …my son, [Mr Rakestraw] who lived with us at the time has always done his best in picking up the children every second weekend from 2013, as a grandmother I always looked forward to spending time with my grandchildren…

   [Child 1] came on his own most of the time because he was so much younger…

   We are confirming that [Child 1] did stay over every second weekend spending time over night & looked after by his dad, [Mr Rakestraw] and us grandparents every second weekend from 2013.

3. Mr Rakestraw also provided a letter from [Mr B] (a work colleague), dated 28 November 2022 (folio 399). [Mr B] writes:

   I am writing this reference confirming that [Child 1] did stay over every second weekend spending time over night & looked after by his dad, [Mr Rakestraw] and grandparents every second weekend from 2013.

   [Mr Rakestraw] & I worked together on some weekends and week days, I had to make sure when scheduling work where I needed assistance from [Mr Rakestraw] that it wasn’t a weekend that he had his children as to not intervene with his family time.

Ms Nordin: Additional evidence

1. Ms Nordin provided a letter from “[Ms C]” (director of Primary School) dated 19 May 2023 (folio B2). [Child 1] was a Year 4 student, when [Ms C] commenced work at the school in 2015. The letter states:

   [Child 1] was always supported by his mother, [Ms Nordin], who was the only contact that I have ever had any dealings with. His Father was absent and never made himself available for Parents Teacher interviews, sporting activities and events that related to [Child 1]’s Primary school journey.

   In fact, when Father’s Day came around and the boys were asked to make cards or other simple gifts for their father’s [Child 1] always chose to do something for his grandfather, as he said that he didn’t have much contact with his father.

2. [Ms C] notes that [Child 1] attended the school until 2019 and she never had any contact from Mr Rakestraw during that time.

Other evidence

1. Mr Rakestraw stated in his objection form dated 25 October 2022 (folio 384):

   [The children] had sleep overs on school holidays as well as every second weekend. As they got older in their teenage years they wanted to be out with their friends so this made it hard for me to organise sleep overs on the required weekends but I was still able to organise stay overs. Then covid came [and] lock down problems….

2. Mr Rakestraw told Child Support on 23 November 2022 that he involved himself as much as he could with the children, but as they got older the children had their own agendas on weekends and he just caught up with them for dinner (folio 387).

3. Mr Rakestraw made the following statement to Child Support on 29 November 2023:

   ·I was in a relationship from before the date of event 2013.

   ·From the date of event was in a relationship for four years.

   ·I had care every second weekend during this time, the number of nights varied from one night to three nights.    

   ·Generally, it was two nights per fortnight. However I would make up missed care.

   ·When I stayed in the suburb of [Suburb 1], Vic I would pick up [Child 1] from [Address 1].

   ·When I was staying in [Suburb 2], Vic I would pick him up from McDonald [Suburb 3].

   ·I took the kids out every Tuesday night for dinner. The children live in [Suburb 4], Vic.

   ·From April 2017 the care was not as consistent as [Child 1] was a teenager and due later to   COVID impacts as I live with my elderly parents.

4. Ms Nordin told Child Support on 4 December 2022 (folio 395) that she encouraged Mr Rakestraw to spend as much time as possible with the children and there was a time when the children stayed with him on occasion, but it was usually at his parents’ place, where he lived. She noted that Mr Rakestraw was reluctant to have the children stay overnight, as the school was too far away from where he lived, so the children would be dropped off on a Sunday afternoon, rather than stay until Monday morning. Ms Nordin said that there was no regular pattern of care and that they stayed overnight maybe once or twice per year and she could not recall the last time [Child 1] stayed overnight with Mr Rakestraw.

Conclusion

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). The relevant policy in this regard, as set out in section 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. I therefore first considered from what date the actual care for [Child 1] changed.

2. In this case Ms Nordin notified Child Support on 2 August 2022 that she had 100% care of [Child 1] from 1 January 2013, however, based on Ms Nordin’s submissions, she appears to be suggesting that Mr Rakestraw never had 14% care of [Child 1] and [Child 1]’s sister. She noted that court orders made in 2011 were not followed and whilst she agreed that Mr Rakestraw had “some care”, it was never consistent. She provided a letter from [Child 1]’s school indicating that they had not had any contact with Mr Rakestraw since (at least) 2015.

3. Mr Rakestraw disagreed with Ms Nordin’s evidence and provided several letters supporting his view that he had regular care (every second weekend for two nights) since (at least) 2013. I note that one of the letters was written by Mr Rakestraw on behalf of his parents and that the letter from [Mr B] contains very similar wording to the letter from Mr Rakestraw’s parents. It is possible that Mr Rakestraw also wrote the letter on behalf of [Mr B]. I thus do not place much weight on these two letters, as I am unable to verify that the purported authors of the letters were aware of and agreed with the letters’ contents.

4. I place some weight on the information provided by [Ms A], as it appears to be independently written. I note, however, that [Ms A] states she recalls Mr Rakestraw being “disappointed” because the children had “other activities on the days he was allowed access” and so he would miss out.

5. I accept the letter from [Child 1]’s school in that Mr Rakestraw may not have had any contact or attended any of the school events. This, however, does not necessarily lead to a conclusion that he did not have overnight care of [Child 1] on weekends.

6. It is difficult to reconcile the evidence from both parties, as they represent opposing views. Mr Rakestraw submits that there was no care change for [Child 1] until much later, whilst Ms Nordin is adamant that the care did change (at least) from January 2013. 

7. In this case the objections officer accepted Mr Rakestraw’s evidence provided in his statement on 29 November 2022. Mr Rakestraw stated that as the children got older, care was more inconsistent and care for [Child 1] changed in about April 2017 as he reached his teenage years. This appears to be the most compelling evidence and a point of agreement in this case. It would indicate that Mr Rakestraw had less than 14% care from April 2017. There is no evidence before me to indicate how many nights per week or per month [Child 1] stayed with Mr Rakestraw after this time. I note that in accordance with section 55C of the Act the cost percentage remains the same whether Mr Rakestraw had 0% or 13% care of [Child 1] after April 2017.

8. Based on these deliberations I have therefore decided and find that a care change did occur on 30 April 2017 and that Mr Rakestraw had 0% care and Ms Nordin had 100% care of [Child 1] from that date. This is the same conclusion as that of the objections officer and I therefore affirm the decision under review.

DECISION

The decision under review is affirmed.