Dyer and Dyer (Child support) [2019] AATA 4872 (13 August 2019)

Last Updated: 21 November 2019

Dyer and Dyer (Child support) [2019] AATA 4872 (13 August 2019)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2019/BC016656

APPLICANT: Ms Dyer

OTHER PARTIES: Mr Dyer

Child Support Registrar

TRIBUNAL: Member P Jensen

DECISION DATE: 13 August 2019

DECISION:

The decision under review is affirmed. Note post-hearing additions

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 – leave to provide post-hearing submissions and evidence refused – 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

1. Ms Dyer and Mr Dyer are the parents of [Child 1] and [Child 2]. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) on 10 November 2018, and from that date, Ms Dyer was recorded as providing 91% care and Mr Dyer was recorded as providing 9% care to the children. For convenience, I will predominantly refer to Mr Dyer’s care.
2. On 3 January 2019, Mr Dyer informed the CSA that there had been a change in care from 21 December 2018. The CSA subsequently decided to record him as providing 11% care from 21 December 2018. He promptly objected to that decision. An objections officer allowed his objection and decided to record him as providing 14% care from 21 December 2018. Ms Dyer promptly applied to the Tribunal for further review. I heard the matter on 13 August 2019. I spoke to Ms Dyer and Mr Dyer by conference phone.
3. Ms Dyer lives in Brisbane. Mr Dyer lives in Perth. At the hearing the parents confirmed that there was a change in care from 21 December 2018, when Mr Dyer provided a short block of care, and that both parents expected Mr Dyer to provide three nights of care per month, and four additional nights of care during school holidays. Mr Dyer said he provided an additional night of care during January 2019 and an additional night of care during April 2019. For the reasons that follow, nothing of any practical significance turns on that issue.
4. For the sake of completeness I note that the CSA contacted Ms Dyer on 20 February 2019 and noted, in part:

First contact with [Ms Dyer]

...

[Ms Dyer] agrees that since December 2018, [Mr Dyer] has been having care of the children for 3 nights per month. ...

In regards to school holidays, [Mr Dyer] had a week of care in January 2019, they have agreed [Mr Dyer] will have a week in April 2019. [Ms Dyer] does not think [Mr Dyer] will have care in July because he is travelling to [City], and to date no arrangements have been discussed for October 2019 [or] for December 2019 / January 2020.

...

[Ms Dyer] is not disputing that [Mr Dyer] has 3 nights per month care, nor is she disputing that he has a week of care in January and will have another week in April. Rather, she is unsure if this pattern of care during the school holidays will continue.

[Ms Dyer] is aware that the current pattern of care of 3 nights per month and 1 week of each school holidays, seems to provide [Mr Dyer] with a [sic] regular care and this would result in objection being allowed.

5. On the same day, Mr Dyer informed the CSA that he planned to provide holiday care during the July 2019 school holidays, and he would not be travelling to [City] during that time. He subsequently provided the CSA with evidence that he was booked to fly to [City] on 2 August 2019 and to fly home on 21 August 2019.
6. On 22 February 2019, Ms Dyer contacted the CSA and it noted:

[Ms Dyer] stated she had checked her records and the care of the children is 3 nights per month to [Mr Dyer] however school holiday care is not an extra 7 nights, it is an extra 4 nights a month not the whole week as the other 3 nights is part of his reg care.

They have agreed to [Mr Dyer] having the extra 4 nights in April school holidays and no other additional care for the other school holidays have been discussed.

7. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Relevantly, section 50 of the Act provides for the making of new care decisions. The decision maker is required to determine the pattern of care each parent “has had, or is likely to have,” over the appropriate care period. When Mr Dyer contacted the CSA, he had started providing three nights of care per month, and he had provided an additional four (or five) nights of care during the January 2019 school holidays, and he was expected to provide an additional four nights of care during the April 2019 school holidays. During the hearing Ms Dyer indicated that Mr Dyer’s future care remained uncertain. However, as at January 2019, the care that he had provided, and the care that the parents expected him to provide until at least the end of the April 2019 school holidays, suggested that it was likely that he would provide an ongoing general pattern of care of three nights’ care per month and an additional four nights of care during school holidays. The appropriate care period is a 12-month period. 12 months x 3 nights + 4 holidays x 4 nights = 52 nights, and 52 / 365 = 14.2%. Even if Mr Dyer provided an occasional extra night of care, I consider the pattern of care just described fairly reflects the general pattern of care he had been providing, and was likely to provide, as at January 2019 when he reported the change in care. He was likely to provide 14.2% care, which is rounded down to 14% care: section 54D of the Act. For those reasons, the decision under review was the appropriate decision.
8. It is worth noting that if a parent is recorded as providing at least 14% care and less than 35% care, their actual recorded percentage of care within that range does not alter the rate of child support payable: section 55C of the Act.
9. During the hearing, Ms Dyer indicated that there had been a more recent change in care, and she had notified the CSA accordingly. If there has been a more recent change in care, it is not relevant to the decision under review in the current proceedings.
10. After the hearing, Ms Dyer provided three emails and written submissions. She effectively applied for leave to provide post-hearing evidence and submissions. Subsection 30(1) of the Child Support Review Directions states: “Unless the presiding member has given you permission to give us submissions or other documents after the hearing, such documents will not usually be taken into account and we will return them to you.” Of course, each application must be assessed on its particular merits. The first and second emails were copies of emails that already formed part of the hearing papers. She provided very brief submissions in respect of the second email. They were submissions she could have made during the hearing. The third email was dated 17 April 2019; it could have been provided prior to the hearing pursuant to subsection 10(7) of the Child Support Review Decisions. I decided to refuse her application for leave to provide post-hearing submissions and evidence.

DECISION

The decision under review is affirmed.