Dorrigan and Dorrigan (Child support) [2022] AATA 311 (2 February 2022)

Last Updated: 24 February 2022

Dorrigan and Dorrigan (Child support) [2022] AATA 311 (2 February 2022)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2021/AC022487

APPLICANT: Mr Dorrigan

OTHER PARTIES: Child Support Registrar

Ms Dorrigan

TRIBUNAL: Member L Rieper

DECISION DATE: 2 February 2022

DECISION:

The decision under review is affirmed.

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 affirmed

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 Dorrigan and Ms Dorrigan are the parents of [Child 1] and [Child 2] (the children) in respect of whom there has been a child support assessment in place since 2010.

2. Mr Dorrigan has sought review of an objection decision made by Services Australia – Child Support (Child Support) of 7 October 2021 partly allowing an objection to a decision made on 13 July 2021 that Ms Dorrigan had 74% care of [Child 1] and Mr Dorrigan had 26% from 1 November 2020 and that Ms Dorrigan had 87% care of [Child 2] and Mr Dorrigan had 13% from 1 November 2020. The objection decision was that Ms Dorrigan had 68% care of [Child 1] and Mr Dorrigan had 32% from 12 November 2020 and that Ms Dorrigan had 90% care of [Child 2] and Mr Dorrigan had 10% from 12 November 2020.

3. On 8 October 2021, Mr Dorrigan applied to the Tribunal seeking an independent review of the objection decision. The application was heard on 2 February 2022. Mr Dorrigan and Ms Dorrigan both attended the hearing by telephone and gave sworn evidence. No representative of the Child Support Registrar attended the hearing.

4. The Tribunal had before it a Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 in respect of the application. Mr Dorrigan also provided a written statement prior to the hearing (A1-A5).

ISSUES

5. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act). A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period.

6. The issues for the Tribunal to determine in this case are:

(a) Whether there should be a change to the percentages of care in respect of the children;
(b) If so, what percentages of care should be used; and
(c) What the date of effect of the change is.

CONSIDERATION

7. The original care percentage decision was made on 3 July 2021 (folios 76-79). Prior to that date Child Support accepted that Ms Dorrigan had 58% care of [Child 1] and Mr Dorrigan had 42% and that Ms Dorrigan had 72% care of [Child 2] and Mr Dorrigan had 28%.

8. The law relevant to care percentage determinations is found in 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”.

9. Both sections reflect the idea that Child Support makes point-in-time care decisions on the basis of what has happened up until the care decision is made and what is likely to happen thereafter. If for some reason what is likely to happen does not eventuate, a parent can notify Child Support and a new care determination can be made. However, the legislative test in the first instance and on review remains the same: what had happened until the date of the original decision, in this case until 3 July 2021, and what was likely to happen thereafter?

10. Mr Dorrigan told the Tribunal that from November 2020 the children were old enough to be allowed to decide their own care arrangements. He said that [Child 1] chose to stay with him three nights per week and that he did not think that was in dispute. He said that [Child 2] initially intended to stay with him for two nights per week but there were changes from time to time. From February 2021 it was one night per week and from April 2021 it was one night per fortnight. He said that from July 2021 his intended care of [Child 1] continued to be three nights per week and [Child 2] was one night per week. Mr Dorrigan conceded in his written statement that there were missed care nights in November 2020, December 2020 and February 2021. He denied he missed any care nights in January 2021.

11. Ms Dorrigan told the Tribunal that in the period November 2020 to March 2021 she understood it was agreed that the care arrangement was that she would have care of [Child 1] for four nights per week and that she would have care of [Child 2] for five nights per week. This accords with Mr Dorrigan’s evidence. However, Ms Dorrigan said that the actual care from November 2021 was less and that is why she notified a change of care.

12. Ms Dorrigan said that from April 2021 Mr Dorrigan had care of [Child 1] for three nights per week and [Child 2] for one night per week although there were temporary changes to care during June and July 2021 because of COVID-19 lockdowns.

13. Mr Dorrigan set out in his written statement the nights of care he says he had in the period July 2020 to June 2021. Ms Dorrigan does not agree it is accurate. Ms Dorrigan provided Child Support with care calendars covering the period November 2020 to April 2021 showing what Ms Dorrigan says was the planned care and what was the actual care. Unfortunately, they were colour-coded, and the documents Child Support provided to Mr Dorrigan were printed in black and white, so he was unable to make comment on them. The parents agree on the nights of care in December 2020 but in each of the other months in which they have provided their account of the nights of care, Mr Dorrigan has recorded more nights of care than Ms Dorrigan says that he had.

14. The Tribunal is satisfied that the pattern of care changed from November 2020. Even though Mr Dorrigan denies there was any missed care in January 2021, he had, by his own admission, less care in November 2020, December 2020 and February 2021.

15. As the actual or likely pattern of care is assessed over a care period to determine the care percentages for each parent, it is appropriate to first consider the appropriate care period in this case. While “care period” is not defined in the legislation, according to Child Support’s policy, it is generally a 12-month period from the day on which the actual care of a child changed. However, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate.

16. Child Support determined that a 12-month care period of 12 November 2020 to 11 November 2021 was appropriate.

17. In terms of when the care period started, the Tribunal accepts that the evidence shows that the pattern of care changed from 12 November 2020 when the children went away on holidays with Ms Dorrigan. The Tribunal is satisfied that the appropriate care period is 12 November 2020 to 11 November 2021.

18. As already noted, the Tribunal must determine what was likely to happen over the care period. In determining what the care was likely to be from the date of notification going forward, in the absence of agreement between the parents, the best evidence available to the Tribunal is evidence of past care, acknowledging that there would inevitably be ad hoc variations to the care arrangements.

19. The Tribunal is mindful that the parents could not agree on past care days and have come up with different days of care in most of the months between November 2020 and April 2021. Ms Dorrigan provided her calendars to Child Support in March and May 2021, prior to the making of the objection decision. The Tribunal accepts that they are contemporaneous records whereas Mr Dorrigan did not submit his list of care nights until after he commenced the Tribunal proceedings. The Tribunal is satisfied that Ms Dorrigan’s records are more likely to be accurate given they were prepared contemporaneously.

20. The Tribunal notes that Child Support used the care days shown on the calendars submitted by Ms Dorrigan to determine that:

(a) Care of [Child 1] by Mr Dorrigan prior to 3 July 2021 averaged nine nights in a 28-day cycle which equates to a care percentage of 32%; and
(b) Care of [Child 2] by Mr Dorrigan prior to 3 July 2021 averaged three nights in a 28-day cycle which equates to a care percentage of 10%.

21. The Tribunal is satisfied the percentages are a fair reflection of the likely or actual pattern of care. This means that the decision under review must be affirmed.

DECISION

The decision under review is affirmed.