Windley and Weller (Child support)

[2023] AATA 2158

Windley and Weller (Child support) [2023] AATA 2158 (9 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025276

APPLICANT:  Mr Windley

OTHER PARTIES:  Child Support Registrar

Ms Weller

TRIBUNAL:Member J Thomson

DECISION DATE:  9 June 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages for [Child 1] of 57% to Ms Weller and 43% to Mr Windley be recorded from 21 April 2022, notified on 14 May 2022.

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 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 Windley and Ms Weller are the parents of [Child 1], born 2018 and recorded as being in the 69% care of Ms Weller and the 31% care of Mr Windley.

2. Mr Windley seeks review of an objection decision made by Services Australia (Child Support) on 25 November 2022. This decision disallowed Mr Windley’s objection to an earlier decision made by Child Support on 7 August 2022 to reflect the care of [Child 1] as 67% to Ms Weller and 33% to Mr Windley from 21 April 2022.

3. The Tribunal heard the matter on 28 April 2023. 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 188), admitted into evidence and marked Exhibit 1, and documentation provided by Mr Windley (folio A1), admitted into evidence and marked Exhibit A.

4. Both parents had copies of the documentation provided by Child Support (Exhibit 1) with them at the hearing. The documentation provided by Mr Windley (Exhibit A) was sent to the Tribunal by email on 27 April 2023. He had a copy of this document with him at the hearing, but a copy had not been provided to Ms Weller prior to the hearing. However, as it was a calendar record for the 2024 calendar year, both parents agreed it was not relevant for the purposes of the hearing. In any event, Ms Weller agreed to proceed with the hearing.

ISSUES

1. The issues which arise in this case are:

   ·      Has there been a change in the pattern of care for [Child 1] which requires the existing percentage of care to be revoked and a new care 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 found 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”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care by reference to an appropriate care period. Child Support generally considers a care period of 12 months to be appropriate, an approach the Tribunal intends to adopt in this case.

4. Mr Windley notified Child Support of a change in care for [Child 1] on 14 May 2022 which he said occurred on 21 April 2022 and was reflected in Minutes of Agreement attached to Court Orders made by consent of the parents, dated 2 March 2022, signed by Ms Weller on 3 May 2022 and by Mr Windley on 9 May 2022. A copy of these Orders was before the Tribunal at pages 16 to 28 of Exhibit 1 (the Court Orders).

5. At the hearing, both parents gave evidence regarding the status of the Court Orders, Ms Weller contending the Court Orders had not been formally sealed by the relevant Court and therefore were not binding on the parents, and Mr Windley contending that the Minutes of Agreement attached to the Court Orders were signed by the parents on the dates referred to above and constituted a binding agreement between the parties.

6. Both parents were also in general agreement that the basis of the care arrangements upon which they had focused in reaching the agreement regarding the care for [Child 1] recorded in the Minutes of Agreement attached to the Court Orders was that Mr Windley should have blocks of fortnightly care of four nights (Thursday to Sunday nights) in term time and half the gazetted school holidays.

7. After discussion with the Tribunal at the hearing, both parents acknowledged and agreed that there had been a change in care for [Child 1] on 21 April 2022 and that the actual or likely pattern of care for [Child 1] from 21 April 2022 to 30 April 2023 was as reflected in the calendars of care at pages 29 and 30 of Exhibit 1, with the agreed dates of care for Mr Windley reflected in blue highlighting and Ms Weller’s agreed dates of care highlighted in green. Both parents agreed that for the month of October 2022, Sunday 3 October 2022 should be accorded to Mr Windley, representing his agreed care for the October 2022 school holiday period.

8. At the hearing both parents acknowledged and agreed that they were content for the Tribunal to make care percentage determinations in accordance with the agreed care patterns reflected in the 2022 and 2023 calendars as set out above from the change in care date of 21 April 2022, notified by Mr Windley on 14 May 2022.

9. The Tribunal has calculated, by reference to the calendars for the 2022 and 2023 years at pages 29 and 30 of Exhibit 1 the blue highlighted dates reflecting Mr Windley’s agreed care pattern according him a total of 159 nights of care for the period 21 April 2022 to 30 April 2023, equating to 43% care (159 / 365 X 100 = 43.56%, rounded down to 43% pursuant to section 54D of the Act for the parent with a care percentage less than 50%), and correspondingly, Ms Weller’s care pattern accords her a total of 206 nights of care equating to 57% care (206 / 365 X 100 = 56.43%, rounded up to 57% pursuant to section 54D of the Act for the parent with a care percentage more than 50%).

10. The Tribunal will therefore revoke the existing care percentages of 67% to Ms Weller and 33% to Mr Windley from 20 April 2022 pursuant to paragraph 54F(3)(a) of the Act, as there is no dispute regarding the change in care date on 21 April 2022 and the change was notified within 28 days on 14 May 2022, and new care percentages of 57% to Ms Weller and 43% to Mr Windley will apply from 21 April 2022.

11. As the Tribunal has reached a different conclusion to the decision under review, the Tribunal sets aside that decision and decides that care percentages of 57% to Ms Weller and 43% to Mr Windley should be recorded from 21 April 2022, notified on 14 May 2022.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages for [Child 1] of 57% to Ms Weller and 43% to Mr Windley be recorded from 21 April 2022, notified on 14 May 2022.