Whiberley and Gilagen (Child support)

[2024] AATA 2530

Whiberley and Gilagen (Child support) [2024] AATA 2530 (31 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/AC027442

APPLICANT:  Mr Whiberley

OTHER PARTIES:  Child Support Registrar

Ms Gilagen

TRIBUNAL:Member J Thomson

DECISION DATE:  31 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care of the children on 1 February 2023 and that care determinations of 42% to Mr Whiberley and 58% to Ms Gilagen should continue to apply in the assessment from 1 February 2023 to 9 Jul 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the pattern of care – existing percentage of care determinations revoked – previous care determinations restored – decision under review set aside and substituted

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 Whiberley and Ms Gilagen are the parents of [Child 1], born 2016, and [Child 2], born 2018 (the children).

2. Mr Whiberley seeks review of an objection decision made by Services Australia (n Child Support) on 27 January 2024. This decision disallowed his objection to an earlier decision by Child Support dated 3 August 2023 and decided to reflect the care of the children as 67% to Ms Gilagen and 33% to Mr Whiberley from 1 February 2023 to 9 July 2023, notified on 4 May 2023.

3. The Tribunal heard the matter on 17 April 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 196), admitted into evidence and Marked Exhibit 1. Both parents had copies of these documents with then at the hearing.

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 percentages of care to be revoked and a new percentage determination made? And if so;

   ·      From what date should the new percentage of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.

2. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, but a shorter period may be considered, depending on the circumstances of the case.

4. Ms Gilagen notified Child Support of a change in care for the children on 4 May 2023 which she said occurred on 25 January 2023 when Mr Whiberley departed from the pre- existing care arrangements reflected in the care percentages being assessed by Child Support up until her notification of 58% to Ms Gilagen and 42% to Mr Whittembury. She later modified her earlier notification to reflect the change in care date to 1 February 2023, consistent with the date reflected in her email at page 64 of Exhibit 1. 

5. Both parents acknowledged and agreed at the hearing that Mr Whiberley’s pre-existing care pattern reflected in the preceding paragraph was based on him having care on a weekly basis in school term time on Tuesday and Wednesday nights, and fortnightly care on either Saturday or Sunday nights – effectively, five nights of care per fortnight, and half the school holidays – six weeks or 42 nights of care, a total of 142 nights per annum, and that this pattern had continued up until 25 January 2023.

6. Ms Gilagen’s case at the hearing, in summary, was that from 1 February 2023, Mr Whiberley ceased having his regular fortnightly Sunday night care periods in early February 2023 and was away on a business trip to [Country 1] from 26 April 2023 to 7 May 2023. However, she acknowledged and agreed that from 9 July 2023, he had resumed his pre-existing care pattern of five nights per fortnight in school term time and half the school holidays.

7. Child Support made a further care decision on 3 August 2023, determining new care percentages of 63% to Ms Gilagen and 37% to Mr Whiberley from 10 July 2023 (see CUBA screen ay page 175 of Exhibit 1).

8. The care period the Tribunal will adopt for consideration in this matter is therefore from 1 February 2023 to 9 July 2023.  

9. Ms Gilagen provided a comprehensive calendar record of the care she submitted was taking place during this period (see pages 44 to 60 of Exhibit 1) and Mr Whiberley acknowledged and agreed in his evidence at the hearing that this calendar was a reasonably accurate reflection of the parents’ care pattern in the nominated care period, give or take a couple of days.

10. Mr Whiberley’s evidence at the hearing was to the following effect.

11. He acknowledged and agreed he had temporarily suspended having some of his Sunday night care periods from late January/early February 2023. He said he had done so in order to allow him time to meet his business commitments which required him to start work early on Monday mornings at that time [while working] for his family business, travelling interstate on Monday mornings and returning in time to be available to have his regular weekly Tuesday and Wednesday nights of care.  He gave evidence that in the period 25 January 2023 to 9 July 2023, he missed approximately six nights of his regular five nights of fortnightly care as a consequence of these business-related commitments.

12. The email exchange between the parents at pages 29 to 31 of Exhibit 1 affords some insight to the parent’s discussions regarding likely incidental changes to the care arrangement for the children in consequence of Mr Whiberley’s forthcoming business travel commitments from 23 March 2023, in particular his forthcoming travel to [Country 1] from 26 April 2023 to 7 May 2023.

13. Mr Whiberley also provided a comprehensive calendar recording his nights of care (see pages 84 to 89 of Exhibit 1).

14. At the hearing, neither parent gave specific evidence of the actual fortnightly Saturday or Sunday nights of care missed by Mr Whiberley in the nominated care period, 2 February 2023 to 9 July 2023 other than as recorded in their respective care calendars referred to above.

15. However, by reference to Ms Gilagen’s calendar records at pages 44 to 60 of Exhibit1, she records a total of six missed Saturday/Sunday care nights over the nominated care period, 2 February 2023 to 9 July 2023. Although recording some instances of his having care of the children on additional nights not reflected in Ms Gilagen’s calendar, the two calendars were largely in agreement as to the overall pattern of care he was having in the nominated care period under consideration which accorded, relevantly, with the pre-existing pattern of five nights per fortnight in school term time.

16. In his evidence to the Tribunal at the hearing, Mr Whiberley acknowledged and agreed he had missed approximately six nights of care in the nominated care period.

17. The Tribunal finds these minor deviations from Mr Whiberley’s agreed care pattern of five nights per fortnight do not constitute a permanent change in his care pattern and are essentially ‘one-off’ temporary events primarily to accommodate incidental interruptions to the care pattern due to his business commitments, and, as acknowledged by both parents and the care records of both parties his pattern of care or likely pattern of care from 1 February 2023  was consistent with five nights per fortnight in school term time and half the school holidays. The Tribunal finds there was no permanent change in Mr Whiberley’s care pattern on 1 February 2023 and the existing care percentage determinations of 42% to Mr Whiberley and 58% to Ms Gilagen should continue to apply in the assessment from 1 February 2023.

18. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside the decision under review and, in substitution, decides there was no change in the care of the children from 1 February 2023 and care percentages of 48% to Mr Whiberley and 52% to Ms Gilagen should continue to be applied in the assessment from 1 February 2023

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in care of the children on 1 February 2023 and that care determinations of 42% to Mr Whiberley and 58% to Ms Gilagen should continue to apply in the assessment from 1 February 2023 to 9 Jul 2023.