Wickham and Wickham (Child support)

[2019] AATA 1687

Wickham and Wickham (Child support) [2019] AATA 1687 (27 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC015449

APPLICANT:  Mr Wickham

OTHER PARTIES:  Child Support Registrar

Ms Wickham

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  27 March 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care from 6 August 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether any basis to revoke existing percentage of care determinations – 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 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. This review is about the percentage of care determinations for Mr Wickham and Ms Wickham in respect of the child [Child 1].

2. Mr Wickham and Ms Wickham are the parents of [Child 1] (born June 2002) and there has been a child support assessment in place since 28 February 2017.  From 28 February 2018 the child support assessment reflected Mr Wickham as having 75 per cent care and Ms Wickham as having 25 per cent care of [Child 1].  Ms Wickham was the parent liable to pay child support at this time.

3. On 6 August 2018 Ms Wickham notified the Department of Human Services, Child Support (the Child Support Agency) of a change of care stating she provides 42 per cent care and Mr Wickham provides 58 per cent care of [Child 1].

4. On 28 August 2018 the Child Support Agency made the decision to reflect that Ms Wickham has 42 per cent care of [Child 1] and Mr Wickham has 58 per cent care from 6 August 2018.

5. On 29 August 2018 Mr Wickham objected to this decision and on 30 October 2018 the Child Support Agency disallowed the objection (the objection decision).

6. On 19 November 2018 Mr Wickham applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

7. The Tribunal conducted a hearing into the application on 19 February 2019.  Mr Wickham gave evidence on affirmation by conference telephone.  The Tribunal wrote to Ms Wickham on 6 February 2019 advising the hearing had been scheduled for 19 February 2019 at 1:30 pm.  A follow-up SMS reminder was sent on 18 February 2019.  The Tribunal attempted to contact Ms Wickham at the advised time on 19 February 2019 and again on two other occasions but was not successful.  The Tribunal was satisfied that Ms Wickham was given appropriate notice of the date and time of the hearing and proceeded in her absence. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (128 pages).

8. At hearing the Tribunal agreed to allow Mr Wickham to provide further evidence in relation to the matter.  Mr Wickham was given until close-of-business on 20 February 2019 to provide this evidence and it was received by the Tribunal on that date (A1-A4).  Ms Wickham was provided a copy of this evidence and given until 26 March 2019 to provide comment.  Ms Wickham did not respond.

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines 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, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what the likely care is thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for [Child 1] which requires existing percentages of care to be revoked and new care determinations to be made; and if so,

   ·       from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Wickham told the Tribunal that [Child 1] came to live with him around the end of February 2018.  At that time the expectation was that [Child 1] would also spend time with his mother and he agreed with Ms Wickham she would have care of 25 per cent.  Mr Wickham said that as it turned out [Child 1] was with him for just about 100 per cent of the time but that was not the intention.

2. Mr Wickham said in early August 2018 Ms Wickham took [Child 1] to [Town 1] for a few days and [Child 1] had not communicated much with his mother since they returned.  Mr Wickham said he believed they may have had a disagreement.  Mr Wickham added there was no change in the care for [Child 1] in August at all as [Child 1] and Ms Wickham were only away for a short time.  He said he thought Ms Wickham may have applied for a change in care because she did not want to continue paying him child support.

3. Mr Wickham told the Tribunal that [Child 1] was in Year 11 at [a] College which was approximately 20 km from his home.  He said he paid for a bus pass for [Child 1] to catch a [bus] to school every day and he would usually pick him up on most nights.  Mr Wickham said [Child 1] had a part-time job as a kitchen hand on Tuesday, Wednesday, every second Thursday, Friday and Saturday nights and he would pick him up from work around 9:00 pm.  He said sometimes on a Friday or Saturday night [Child 1] might go straight from work to a friend’s place [to] stay the night.

4. Mr Wickham reiterated to the Tribunal that when [Child 1] moved in with him he encouraged [Child 1] to continue seeing his mother and thought that was what would happen.

5. Following the hearing Mr Wickham provided the Tribunal with four statements from third parties in support of his care for [Child 1].  The statement dated 19 February 2019 from Ms Wickham, [Child 1]’s aunt, confirms that [Child 1] has been living with his father since February 2018.  The undated statement from Ms [A], the sous chef where [Child 1] works, states it is her understanding that [Child 1] lives with his father.  Ms [A] also states that [Child 1]’s father drops him to work or pays for him to get transport and always picks him up.  The undated statement from Mr [B], a family friend, says that he has known both Mr Wickham and [Child 1] for three years and [Child 1] has been living “full time” with his father for the last year.  The email statement from Ms [C] dated 19 February 2019 says that she lived with Mr Wickham from 15 September 2018 to 13 February 2019 and [Child 1] was also living with them during that period.

6. The statement from Ms [A] does not confirm the care arrangements for [Child 1] and the statement from Ms [C] is not relevant to the period under consideration.  The statements from Ms Wickham and Mr [B] both confirm that [Child 1] has been living with his father for 12 months, however, the statement from Ms Wickham does not provide any comment on the level of that care.  The Tribunal places the most weight on the statement from Mr [B] although it is undated.

7. Ms Wickham did not participate in the hearing and the Tribunal notes she did not provide evidence during the objection decision process.

8. Mr Wickham has told the Tribunal that he provided almost 100 per cent care for [Child 1] from the end of February 2018.  The third-party statement from Mr [B] tends to support this level of care.  Mr Wickham has also told the Tribunal that when [Child 1] moved in with him it was the intention of both parents that [Child 1] would be in the care of Ms Wickham for at least 25 per cent of the time.

9. On balance, given the evidence provided, the Tribunal is satisfied the likely pattern of care for [Child 1] during the care period from 28 February 2018 was 75 per cent care to Mr Wickham and 25 per cent care to Ms Wickham.  If, as Mr Wickham has stated, care for [Child 1] did not follow this expected pattern then it was always open to Mr Wickham to notify of a further change of care.

10. The Tribunal is not satisfied there has been a change to the pattern of care for [Child 1] as advised by Ms Wickham.  Therefore there is no reason for the existing percentage of care determinations to be revoked.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in care from 6 August 2018.