Alfred and Jux (Child support)

[2022] AATA 1568

Alfred and Jux (Child support) [2022] AATA 1568 (28 April 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022946

APPLICANT:  Mr Alred

OTHER PARTIES:  Ms Jux

Child Support Registrar

TRIBUNAL:  Member J Nalpantidis

DECISION DATE:  28 April 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care – whether percentage of care correctly - 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 Alred and Ms Jux are the separated parents of a child aged 6 years (the child). This review is about the percentages of care for Mr Alred and Ms Jux that apply in relation to the administrative assessment of child support for the child.

2. A child support assessment has been in place between Mr Alred and Ms Jux since 24 April 2017. Mr Alred was assessed to pay child support to Ms Jux for the support of the child. Services Australia – Child Support (the Agency) had recorded Ms Jux as having 234 nights (65%) and Mr Alred as having 131 nights (35%) of the child’s care from 29 July 2020.

3. On 23 September 2021 Mr Alred advised the Agency that there was a change in the child’s care stating that the school holiday care had not been included in the care and that his level of care should be recorded as 153 nights (41%) and [Ms Jux’s] 215 nights (59%).

4. On 7 October 2021, Ms Jux advised the Agency that Mr Alred’s level of care is 142 nights per year and that she would have to check the calculations before agreeing to the care. Ms Jux then contacted the Agency on the same day and reported she would agree to the care reported by Mr Alred.

5. On 7 October 2021 the Agency decided to record the care of the child as 215 nights (59%) to Ms Jux and 153 nights (41%) to Mr Alred from 16 September 2021, notified on 23 September 2021.

6. On 12 October 2021, Ms Jux objected to the decision on the grounds that, she felt overwhelmed when the Agency had earlier contacted her to ask about the care arrangements for the child and just agreed with the information provided by Mr Alred at the time. On review of the court order dated [in] August 2019, Ms Jux calculated 142 nights for Mr Alred.

7. On 6 November 2021, the Agency spoke with Mr Alred who stated that based on the court order, his care of the child was approximately 149 nights per year, and he would supply evidence with the exact calculation. On 18 November 2021, Mr Alred submitted a statement of his interpretation of the court order in relation to his care of the child being 151 nights, as follows:

   ·     half school holidays which are 12 weeks per year, the child is in his care for 8 nights from Friday night to the following Saturday:

   -    for the school term holidays, the child is in his care for a total of 24 nights; and

   -    for the Christmas break, the child is in his care for a total of 22 nights;

   ·     for the remaining 40 weeks of the year, total care is 100 nights (5 nights per fortnight);

   ·     half of the public holidays totals 5 nights.

8. On 19 November 2021, the Agency advised Ms Jux of Mr Alred’s response and she disagreed with his interpretation of the court order. She submitted that there is no mention in the court order that Mr Alred is to have half of all public holidays. She also disagreed with Mr Alred’s calculation of “half the school holidays” and Mr Alred has care of the child for 7 nights, not 8 nights as claimed by Mr Alred.

9. The objections officer noted both parents have conflicting calculations as per court ordered care and considered the court order and determined Mr Alred’s care of the child per the court order was 142 nights per year. Accordingly, on 6 December 2021, the objections officer partly allowed the objection and determined for the administrative assessment of child support for the child, Mr Alred’s care for the child was 142 nights per year and therefore decided to record the care of the child as 223 nights (62%) care to Ms Jux and 142 nights (38%) to Mr Alred from 16 September 2021, as notified on 23 September 2021.

10. On 15 December 2021 Mr Alred applied to this tribunal for review of the objection decision on 6 December 2021.

11. The tribunal conducted a hearing on 22 April 2022. Mr Alred and Ms Jux participated at the hearing by telephone via Microsoft Teams audio. Mr Alred and Ms Jux gave oral evidence on affirmation and made oral submissions at the hearing. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 156 and 157 to 166 which had been copied to Mr Alred and Ms Jux. Prior to the hearing, on 21 April 2022 Mr Alred provided further material (A1 to A4); a copy of the additional material was exchanged with all parties.

12. On 26 April 2022, the tribunal received further material from Ms Jux (B1 to B31) in response to the additional information provided by Mr Alred, noting that the further evidence was submitted by Mr Alred the day before the hearing and she was not able to submit her response beforehand. A copy of the material provided by Ms Jux was provided to all parties.

13. On 28 April 2022 the tribunal made its decision.

ISSUES

1. The issues for the tribunal to determine are:

   a)What were the actual care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

5. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, there is no contention by the parties that nights were an unsuitable measure of the care of the child and the tribunal finds that nights are an appropriate method of ascertaining the actual care in this case.

7. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

8. In this case, court orders dated [in] August 2019 are in place regarding the care arrangements of the child. However, Mr Alred and Ms Jux disagreed with the calculation of the care arrangements pursuant to the court orders.

9. The tribunal considered the court orders which state the child live with the mother and the child spend time and communicate with the father as follows:

   a) from 27 August 2019 to 28 July 2020:

   i) from 4.45pm each alternate Friday to 9.15am Monday (or the commencement of kindergarten if applicable).

   ii) each Wednesday from 4.45pm to 7.30pm.

   b) from 29 July 2020 to 28 July 2021:

   i) from 4.45pm each alternate Friday to 9.15am Monday (or the commencement of kindergarten if applicable).

   ii) from 4.45pm each alternate Wednesday to 9.15am to Friday (or the commencement of kindergarten if applicable).

   c) from 29 July 2021 onwards:

   i) from the conclusion of school on each alternate Friday (or 4.45pm if a non-school day) to the commencement of school Monday (or 9am if a non-school day).

   ii) from 4.45pm each alternate Wednesday to the commencement of school on Friday (or 9am if a non-school day).

   iii) for the first half of the September school term holidays in 2021 (namely from the conclusion of school until 12noon on the middle Saturday of the holidays)

   iv) for the first half of the school term holidays in 2022 and each alternate year thereafter and for the second half of the school term holidays in 2023 and each alternate year thereafter.

   v) for half of all long summer holidays and in default of agreement weeks 1, 3 and 5 on a week about basis.

10. The court orders refer to particular arrangements for Christmas Day and Boxing Day, and similarly for Easter Saturday until Easter Monday and Holy Thursday to Easter Saturday, to alternate yearly. The court orders also refer to arrangements in relation to Father’s Day, Mother’s Day, the child’s birthday, [and two specified festival days] each year, in the event that the child is not in the care of the mother or father.

11. Clause 10 of the court order states: Where a public holiday occurs on a Monday or a Friday then the party who has the child in their care for the weekend immediately preceding or following the public holiday shall be entitled to have the child in their care on the Monday or Friday public holiday.

Mr Alred’s evidence and contentions

1. Mr Alred submitted in calculating his pattern of care pursuant to the court order he considered the school holiday period, the school terms and also the treatment of public holidays. He submitted there were 12 weeks of school holidays during the 3 term holidays during the year, each term holiday period was for 2 weeks resulting in 6 weeks, and the summer break was for 6 weeks (totalling 12 weeks). He submitted that in the 3 term holidays during the year he had care of the child for 8 nights being from Friday at the conclusion of school until the second Saturday (3 term holidays multiplied by 8 nights each totalling 24 nights). In the summer break, Mr Alred submitted the pattern of care of the child was that the child was in his care from the Friday at the commencement of the school holidays until the second Saturday, which was 8 nights, and then from Saturday to Friday in the following alternate weeks (7 nights each totalling 14 nights). Overall Mr Alred submitted he had care of the child for 46 nights in the school holidays.

2. Mr Alred submitted he had care of the child for 5 nights per fortnight during the 20 weeks of the school term which represents 100 nights.

3. Mr Alred submitted that there were 12 days of public holidays each year, including the 4 nights of Easter Friday, Easter Monday, Christmas Day and Boxing Day. Mr Alred accepted these 4 nights would generally be split between the parents on each alternate year, and may reflect a double counting if he added half these nights as part of his care. However, he submitted the same would not apply to the balance of the 8 public holidays in the year, because on these other (8 public) holidays the child’s care could change pursuant to clause 10 in the court order, depending on whether he or the child’s mother had care of the child on “the weekend immediately preceding or following the public holiday” and therefore “shall be entitled to have the child in their care on the Monday or Friday public holiday”. Mr Alred submitted that on the basis of clause 10 in the court order the balance of the 8 nights of care following public holidays should be split 50:50 between the parents, such that he should be allocated a further 4 nights’ care.

4. Prior to the hearing Mr Alred provided written material, including a letter from the paternal grandparents as well as a calendar of 2021 and 2022 marking the days he had/would have care of the child. The child’s paternal grandparents stated, the court order was followed and depending on when public holidays fell the child was in Mr Alred’s care for 150 or 153 nights, and in calendar 2022 without any public holidays Mr Alred had 148 nights of care.

5. Mr Alred reflected on his calculation and submitted that the calculation of his overall care of the child should therefore be 150 nights per year (24 (school term holidays) + 22 (summer long holidays) + 100 (school term) + 4 (public holidays) = 150 nights). In support of his submissions, Mr Alred referred the tribunal to the calendar that he and his parents completed.

Ms Jux’s evidence

1. Ms Jux disagreed with Mr Alred’s calculation and does not agree that Mr Alred should be entitled to add 4 extra nights’ care for the public holidays. She submitted the court order provides the basis for assessing the care arrangements however disagreed with Mr Alred’s assessment of the court order. She agreed that Mr Alred had 100 nights care of the child during the school term (5 nights over 20 fortnights). She also agreed that there were 12 weeks of school holidays during the year, 3 school holiday periods during the year and a 6-week school holiday period in the summer. She said that this represented 84 days and the care was split 50:50, so this reflected 42 days. Ms Jux told the tribunal that she has used a calendar to count the child’s actual nights in care with Mr Alred and counted 143 nights for the year. She could therefore agree on an overall count of 143 nights’ care per year to Mr Alred, but not 150 nights. Ms Jux disagreed with Mr Alred’s methodology of adding a further 4 nights’ care for public holidays because overall public holidays would even out and no allowance should be applied in Mr Alred’s favour for public holidays.

2. In response to Mr Alred’s written submission and his evidence at the hearing, Ms Jux provided a calendar covering the periods September 2021 to December 2022, and January 2023 to December 2023 showing the number of nights the child was/would be in Mr Alred’s care per the court order. This calendar took into account the school term and school holiday periods, and public holidays. The calendar presented by Ms Jux shows the child was/would be in Mr Alred’s care for 143 nights in the period September 2021 to September 2022, and in the period January 2023 to December 2023 the child would be in Mr Alred’s care for 145 nights. Ms Jux submitted that this pattern of care for 143 nights’ care of the child followed by 145 nights was a repeated pattern of care, on each alternate year.

Other evidence

1. The objections officer noted both parents have conflicting calculations as per court ordered care and in order to determine the actual percentage of care for the child interpreted Mr Alred’s court ordered care as follows:

   ·     from the conclusion of school each alternate Friday to the commencement of school Monday and from 4.45pm each alternate Wednesday to the commencement of school on Friday (20 fortnights, 5 nights per fortnight):

   Total care 100 nights

   ·     from the commencement of the September school term holidays in 2021 (from the conclusion of school until 12 noon on the middle Saturday of the holidays (1 week):

   Total care 7 nights

   ·     for the first half of the school term holidays in 2022 and each alternate year thereafter and for the second half of the school term holidays in 2023, and each alternate year thereafter (2 weeks):

   Total care 14 nights

   ·     for half of all summer holidays and in default of agreement weeks 1, 3 and 5 on a week about basis (3 weeks):

   Total care 21 nights

Total annual care: 142 nights

The tribunal’s consideration

1. The issue for the tribunal is the calculation of the pattern of care for the child.

2. There is no dispute between the parties that the care arrangements for the child are as per the court order of [August] 2019. The tribunal accepts that while the court order is detailed and lists nuances, including care in periods involving public holidays, effectively the court order provides: for Mr Alred to have care of the child for 5 nights during the 20 fortnights of the school term, and for half of the school holidays.

3. The parties agree that Mr Alred has care of the child for 100 nights during the 20 fortnights of the school term. The parties agree there are 12 weeks of school holidays during the year, made up of 3 x 2-week term holidays and 1 x 6-week holiday break in the summer period. While the parties broadly agree that the care of the child during school holidays is shared equally, Mr Alred contends that the actual day count represents 46 days.

4. The tribunal accepts the annual school holidays represent an overall period of 84 days (7 days multiplied by 12 weeks). In the tribunal’s view, this reflects a fair and reasonable overall assessment, and in relation to a pattern of care, an overall assessment of 42 days, that is half of the total period, applies to each party. Mr Alred has submitted that a further 4 nights’ care per year should be allowed for him on the basis that he would have an average of 4 extra nights’ care during the year as a result of public holidays. The tribunal does not accept this submission, overall the tribunal accepts that care following public holidays would even out over the years and one party should not be given a favourable allowance over the other party in relation to public holidays.

5. The tribunal has carefully considered the evidence before it and found the Agency correctly assessed the pattern of care of the child as 142 nights (38%) for Mr Alred and 223 nights (62%) for Ms Jux from 16 September 2021, as notified on 23 September 2021.

DECISION

The decision under review is affirmed.