Wolfe and Wolfe (Child support)

[2023] AATA 2145

Wolfe and Wolfe (Child support) [2023] AATA 2145 (2 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025400

APPLICANT:  Ms Wolfe

OTHER PARTIES:  Child Support Registrar

Mr Wolfe

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  02 June 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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. This review is about a change to the percentage of care determinations for Ms Wolfe and Mr Wolfe in respect of their child [Child 1] (born December 2007).  Ms Wolfe and Mr Wolfe are the parents of five children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place for [Child 1] since 1 May 2015.

2. From 18 December 2021 the child support assessment reflected Ms Wolfe as having 72 per cent care and Mr Wolfe as having 28 per cent care of [Child 1].

3. On 23 June 2022 Ms Wolfe notified Services Australia – Child Support (Child Support) of a change to the care arrangements stating that she provides 100 per cent care of [Child 1] and Mr Wolfe provides 0 per cent care from 1 June 2022.

4. On 18 October 2022 Child Support made the decision to refuse the change of care as notified by Ms Wolfe.

5. On 26 October 2022 Ms Wolfe objected to this decision and on 16 December 2022 Child Support disallowed the objection (the objection decision).

6. On 10 January 2023 Ms Wolfe applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 2 June 2023.  Ms Wolfe and Mr Wolfe gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (180 pages).

8. At the commencement of the hearing Ms Wolfe advised she had provided evidence to the Tribunal on 1 June 2023 which was important to her case.  The Tribunal agreed to accept this additional information and a copy was sent to Mr Wolfe for his review and comment (A1–A5).  Written comments were received from Mr Wolfe on 7 June 2023 (B1–B3).

ISSUES

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

2. Child Support 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, Child Support 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, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations 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 the 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. Ms Wolfe told the Tribunal there were court orders in place regarding the care of [Child 1], however, the pattern of care had never followed the court orders.  Ms Wolfe explained that [Child 1] was nearly 16 years old and made up his own mind about where he stayed.

2. Ms Wolfe said despite the court orders stating Mr Wolfe was to have care of five nights per fortnight, [Child 1] had stayed overnight with his father on only one night since 1 June 2022 and that was on 17 August 2022.  She said [Child 1] had not stayed with Mr Wolfe since then.

3. The Tribunal notes in evidence from Child Support a Minute of Final Consent Orders dated 24 December 2021.  It states the children are to spend time with Mr Wolfe for five nights per fortnight during school term in a four-weekly cycle.  During either Term 1, Term 2 or Term 3 school holidays the orders state each parent may elect for the children to spend time with them for one week and for one additional week during the Term 4 school holidays.  The orders also state, relevantly, that [Child 1] may choose to spend alternative time with Mr Wolfe.

4. Ms Wolfe informed the Tribunal that [Child 1] had a dirt bike accident on 18 August 2022 and spent considerable time at her home recovering.  Ms Wolfe reiterated that [Child 1] had not stayed overnight with Mr Wolfe since his accident.  Ms Wolfe said she had provided numerous statements from third parties in relation to the care of [Child 1].

5. The Tribunal notes in evidence from Child Support a statement from [Ms A] dated 7 October 2022, statements from [Mr B] dated 7 October 2022 and 3 December 2022, a statement from [Ms C] dated 7 October 2022, a statement from [Ms D] dated 3 December 2022 as well as undated statements from [Ms E] and [Mr F].  The additional four statements provided by Ms Wolfe on 1 June 2023 are not, in the view of the Tribunal, relevant to the care of [Child 1] during the period under consideration.

6. The statement from [Ms A], a close family friend, says that since 1 June 2022 [Child 1] has only stayed one night with Mr Wolfe being 17 August 2022.  The statement from [Mr B], Ms Wolfe’s partner, states from 1 June 2022 “until the present day” [Child 1] has only stayed one night with Mr Wolfe being 17 August 2022.  In his second statement [Mr B] says he was off work from 1 September 2022 to 8 November 2022 and [Child 1] did not stay with Mr Wolfe during this time.  The statement from [Ms C], a close family friend, says that for at least the past three months [Child 1] has stayed with Ms Wolfe.  The statement from [Ms E], Ms Wolfe’s stepmother, says during a visit with Ms Wolfe from 8 October 2022 to 4 November 2022 [Child 1] did not stay with his father.  [Ms E] also says she believes [Child 1] has only stayed with Mr Wolfe once since 1 June 2022.  The statement from [Mr F], Ms Wolfe’s father, says similarly.  The statement from [Ms D], Ms Wolfe’s mother, says from 1 June 2022 [Child 1] has only stayed one night with Mr Wolfe being 17 August 2022.

7. Mr Wolfe told the Tribunal he agreed the court orders, as they related to the care of [Child 1], were not strictly being followed.  Mr Wolfe said [Child 1] was older than his siblings and moved regularly between both homes.  Mr Wolfe explained this was the reason behind the clause in the court orders stating that [Child 1] could elect to spend alternative time with him.

8. Mr Wolfe said even though his care did not follow a set pattern, [Child 1] continued to stay with him overnight after 1 June 2022.  Mr Wolfe said [Child 1] would usually spend the night when they were going dirt bike riding on the weekends.  Mr Wolfe added that sometimes [Child 1] would also stay with him during the week and they would go dirt bike riding early in the morning as the track was only 15 minutes from his home.  Mr Wolfe said on such occasions [Child 1] might stay for breakfast and he would then drop him back to his mother’s home in time for school or work experience.

9. Mr Wolfe informed the Tribunal that his overnight care had been more consistent in June 2022 as they both became involved with a motocross club and [Child 1] rode regularly during the week.  Mr Wolfe pointed out the record of attendance he had provided to Child Support confirmed he had signed [Child 1] in at the club many times in June 2022 but he conceded this did not prove overnight care.  Mr Wolfe acknowledged [Child 1] had a bad accident at the track on 18 August 2022 and stayed with Ms Wolfe for around a four-week period afterwards.

10. Mr Wolfe said he had provided Child Support with a calendar of care outlining his care of [Child 1] from 1 June 2022 as well as a statement from his partner [Ms G].

11. The Tribunal notes in evidence from Child Support a calendar showing Mr Wolfe had the following overnight care of [Child 1]:

    ·     June 2022 – 3, 4, 9, 11, 17, 18, 19, 15, 27 (nine nights)

    ·     July 2022 – 1, 2, 3, 6, 7, 11, 18, 21, 22, 26, 28 (11 nights)

    ·     August 2022 – 4, 6, 12, 13, 14, 17 (six nights)

    ·     September 2022 – 10, 15, 19, 23, 24, 25, 30 (seven nights)

12. The Tribunal further notes a statement from [Ms G], Mr Wolfe’s partner, dated 5 October 2022.  [Ms G] states [Child 1] was staying overnight during June and July until his accident in August and then care continued in September.  The statement also confirms the dates of overnight care in accordance with the calendar provided by Mr Wolfe.

13. Mr Wolfe pointed out that the statements from Ms Wolfe’s father and step-mother could not be relied upon as they lived in [Country 1] and were only in Australia for a short visit.  Ms Wolfe said she felt the statement from Mr Wolfe’s partner may not have been written by her.

14. Ms Wolfe has told the Tribunal the parents were not following the court ordered care in relation to [Child 1].  Ms Wolfe submits that care changed from 1 June 2022 with [Child 1] staying overnight on only one occasion from this date.  The third party statements provided in evidence to Child Support by Ms Wolfe verify this version of events.  Mr Wolfe argues he continued to provide overnight care after 1 June 2022 and the court orders envisaged that [Child 1] may choose when he stays.  The calendar of care provided by Mr Wolfe shows he had care of 33 nights in the period from 1 June 2022 to 30 September 2022.  This is equal to 27 per cent care which is in the same bracket of regular care reflected in the assessment prior to Ms Wolfe notifying Child Support that care had changed.

15. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences.  Given the completely conflicting views of the parents the Tribunal cannot be satisfied that a change in care occurred on, or around, 1 June 2022.

16. The Tribunal is unable to find, based on the evidence provided, there was a change to the pattern of care for [Child 1] such that the existing pattern of care is incorrect.

DECISION

The decision under review is affirmed.