Venteman and Venteman (Child support)

[2022] AATA 3077

Venteman and Venteman (Child support) [2022] AATA 3077 (13 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC023728

APPLICANT:  Mr Venteman

OTHER PARTIES:  Child Support Registrar

Ms Venteman

TRIBUNAL:Member J Prentice

DECISION DATE:  13 July 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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 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 Venteman and Ms Venteman are the parents of [Child 1] (born May 2006) and [Child 2] (born January 2004).  This review is with respect to a decision by Services Australia – the Child Support Agency (CSA) – about the recorded care for [Child 1] (only) in relation to a child support case which has been registered with the CSA since 18 December 2012.

2. The existing percentage of care determinations recorded by the CSA in the case in relation to [Child 1] were 86% for Ms Venteman and 14% for Mr Venteman from 1 July 2016; when Ms Venteman contacted the CSA on 30 November 2021 and advised a change of care from 3 November 2021 to 100% to Ms Venteman and 0% to Mr Venteman.

3. On 31 January 2022 the CSA determined that the care had changed on 3 November 2021 and revoked the existing percentage of care determinations; and determined that new percentage of care determinations be recorded as 100% for Ms Venteman and 0% for Mr Venteman.

4. Mr Venteman lodged an objection with the CSA on 28 February 2022.  On 8 April 2022, a CSA objections officer disallowed the objection.

5. On 21 April 2022 Mr Ventemani lodged an application for review with the Administrative Appeals Tribunal (the Tribunal) stating that he disagreed with the CSA decision as there had not been any change in the care of the children for the last 12 years.

6. Mr Venteman and Ms Venteman spoke to the Tribunal by conference telephone at a hearing on 12 July 2022 and gave evidence on affirmation.

7. In considering the application, the Tribunal took into account the oral evidence of Ms Venteman and Mr Venteman and documentary material provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1).

ISSUE

1. The issue is whether the existing percentage of care determinations for [Child 1] from 3 November 2021 are to be revoked and new percentage of care determinations are to be made.

CONSIDERATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. That legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Tribunal is not bound by government policy, such as the Guide. However, where policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60).

1. The scheme of the child support legislation is that existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made and requires consideration of the likely pattern of care when a change is notified.

2. Where a parent has a pattern of care for a child, the child support legislation provides for the determination of 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, care decisions are made at a point in time based on what has happened up until the change in care is considered and what will likely be the care thereafter. What is likely to happen may not eventuate or may subsequently change and when that is the case, a parent can notify the CSA and a new percentage of care determination can be made. However, the legislative test at first instance and on review requires assessment of the pattern of care for the care period based upon what had happened until the date of notification and what is likely to happen thereafter.

3. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.1 of the Guide, which includes the following:

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

   Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

4. The child support legislation provides for revoking of care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and the making of new care determinations to take account of a care change.

16.Any new percentage of care determinations take effect from the date that care changed or, if the Registrar is not notified within 28 days of care changing, then the date of the notification as regards the increased level of care. It follows that there is the possibility of differential dates of effect for the increased care percentage to one parent and the decreased care percentage to the other parent depending upon when the CSA is notified of the change.

17.The legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes, so that a new percentage of care determination decision or decisions can then be considered and made if appropriate.

1. Mr Venteman informed the Tribunal that he objects to the decision made by the CSA as his daughter, [Child 1] still stays with him, as she has done for the last 10 years.  Mr Venteman commented that like all teenagers, his daughter will sometimes ask his permission to stay overnight with a friend and not stay with him – which he agrees to.

2. Mr Venteman told the Tribunal that he was unable to remember the exact nights that [Child 1] stayed with him and he does not keep a care diary as he has never needed to do so previously; and he didn’t expect to need to do so now after so many years of the same arrangements.

3. Mr Venteman advised the Tribunal that he believes that [Child 1] has stayed with him on two or three occasions this year but agreed that there was no pattern to the arrangement, and it would understandably be considered as random – not regular.

4. Both parties agreed that [Child 1] stays in contact with Mr Venteman and also visits him; however, Ms Venteman stated that [Child 1] has not been in Mr Venteman’s overnight care since 1 November 2021.

5. Mr Venteman commented that he is not happy with the amount of child support he is paying, however he acknowledges that is not a matter for discussion at this hearing.

6. Ms Venteman confirmed her previous comment that [Child 1] has visited her father, but she has not stayed overnight since 1 November 2021.

7. The Tribunal notes that the two parties have provided conflicting information about the care arrangements for [Child 1].

8. However, Mr Venteman does concede that there is no pattern to the care arrangements and that [Child 1] has only stayed with him on two or three occasions in a six-month period.  Clearly this is not reflective of a pattern of two nights per fortnight, as per the agreement of July 2016 and the previous arrangement of 14% care to Mr Venteman and 86% care to Ms Venteman.

9. The Tribunal does acknowledge that it is often difficult to establish a pattern of care when teenagers decide to randomly stay with friends.  However, in the circumstances of the case, the Tribunal is satisfied that there was a change in the likely pattern of actual care of [Child 1] from 3 November 2021 with Ms Venteman providing 100% overnight care for [Child 1]. The Tribunal acknowledges that there may have been two or three occasions when [Child 1] has stayed with Mr Venteman. In the circumstances, the Tribunal considers that they are minor departures from what is otherwise a pattern of care of 100% to Ms Venteman since 3 November 2021.

10. Having had regard to all of the evidence, including the documentary evidence provided to the CSA and the oral evidence before the Tribunal, the Tribunal is satisfied that Mr Venteman was to have at least 14% care (regular care) of [Child 1] under the pre-existing percentage of care determinations made under section 50 of the Act, and has had no care of [Child 1]; and that from 3 November 2021 Ms Venteman has had 100% care and Mr Venteman has had 0% care of [Child 1].

11. As regards whether Ms Venteman was making [Child 1] available to Mr Venteman, Chapter 2.2.3 of the Guide includes the following guidance:

    The Registrar will consider that care is not taking place despite the genuine attempts of both parties to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).

    In these circumstances, the Registrar will generally consider that the parent or non-parent carer is making the child available, and a below regular care determination can be made.

12. [Child 1] was over 15 years of age at all relevant times and the Tribunal is satisfied in the circumstances that she was deciding the extent of time she was having with Mr Venteman. In those circumstances the Tribunal is satisfied that Ms Venteman was making [Child 1] available. Further, Ms Venteman notified the CSA of this change on 30 November 2021, which the Tribunal considers within a reasonable period in the circumstances. Section 54G of the Act therefore applies and the existing percentages of care of 86% for Ms Venteman and 14% for Mr Venteman are therefore required to be revoked and new percentage of care determinations of 100% to Ms Venteman and 0% to Mr Venteman are to apply.

13. Pursuant to subsection 54G(2) of the Act, as Mr Venteman had previously had a pattern of care of 14% which ceased, the revocation of each percentage of care determination takes effect at the end of the day before the day on which the person ceased the previously established pattern of care. Therefore, the existing percentage of care determinations are revoked from 2 November 2021.

14. As the change in care was notified by Ms Venteman on 30 November 2021 (within 28 days after the change) the Tribunal has found the change occurred on 3 November 2021, the increased percentage of care from 86% to 100% to Ms Venteman and the decreased percentage from 28% to 0% to Mr Venteman both take effect from 3 November 2021 (the date of the care change).

15. As this is the same decision as that reached by the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.