Anson and Neale (Child support)

[2019] AATA 4860

Anson and Neale (Child support) [2019] AATA 4860 (18 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC016945

APPLICANT:  Mr Anson

OTHER PARTIES:  Child Support Registrar

Ms Neale

TRIBUNAL:Member M Kennedy

DECISION DATE:  18 September 2019

DECISION:

The decision under review is affirmed.

(The initial care percentage determination)

CATCHWORDS
CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment – 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. Mr Anson and Ms Neale are the parents of [Child 1] and [Child 2], in respect of whom an application for a child support assessment was accepted on 10 December 2018, with effect from 29 September 2018.

2. Upon accepting an application for a child support assessment, the Child Support Registrar (i.e. the Department) must make a care percentage determination in respect of the parents so that the child support formula can be applied.

3. On 10 December 2018, the Department decided that the care percentage determination should reflect the children in Mr Anson’s care 28% and in Ms Neale’s care 72%.

4. Mr Anson disagreed with that decision, but the review process became complicated when I suspect Mr Anson’s contact with the Department about the matter on 15 January 2019 was partially misinterpreted as notification of a change to care arrangements.  A process commenced in that regard, which has ultimately found its way to the Tribunal in matter AC016965, which was heard jointly with this review and is the subject of separate reasons, albeit influenced by the outcome of this review.

5. On 6 May 2019, Mr Anson’s objection in respect of the initial care determination was acknowledged and then proceeded.  The objection was allowed on 3 July 2019.  The discretion allowing the favourable outcome to the objection to be given effect from the date of the commencement of the assessment was exercised in Mr Anson’s favour in circumstances where his contact on 15 January 2019 appeared to have been partially misunderstood by the Department.

6. In the course of the objection process, common ground emerged between the parents to an extent that it was then clear that it was intended that Mr Anson would have a pattern of care where he would have care of the children four nights each fortnight during term time, and half of each school holiday period.  The objections officer calculated a percentage of care on that basis of 34% to Mr Anson and 66% to Ms Neale. 

7. Mr Anson applied to the Tribunal for review on 15 July 2019. 

CONSIDERATION

1. In the course of the hearing, Mr Anson and Ms Neale confirmed that the ongoing pattern of care for the children will be as understood by the objections officer: namely, Mr Anson will have care of the children four nights each fortnight during term time, and half of each school holiday period.  It was also accepted that this pattern established itself from the beginning of the December 2018 school holidays, even though there were a few extra nights the children remained in Mr Anson care during those holidays.

2. The issue to be resolved in this matter is whether that pattern of care was in place from the commencement of the assessment on 29 September 2018, or whether a slightly different pattern was in place between September 2018 and December 2018.

3. In this regard, Mr Anson’s evidence was that he had understood the children were to be in his care 5 nights each fortnight and half the school holidays from September 2018 onwards, until the new pattern of four nights per fortnight and half the school holidays emerged from December.  Ms Neale disagreed, but acknowledged there may have been occasions when Mr Anson did in fact have care of the children for five nights in a fortnight between September 2018 and December 2018.  Ms Neale’s position was that if that happened, it was not reflecting an ongoing intention or pattern.

4. I am mindful that the period in focus was a period when the child support assessment was very new (indeed it predates the formal acceptance of the application), and inevitably arrangements for care of the children were potentially unsettled.  In this regard, the parents have made their ongoing care arrangements by informal agreement and understanding.  There are no orders or formal care arrangement in place.

5. Ultimately, having examined the material in the Tribunal papers, I am of the view that the best evidence of the actual care that took place between September 2018 and December 2018 can be found in Mr Anson’s calendar at page 117.  Ms Neale has a similar calendar but Ms Neale concedes it was not contemporaneous prior to December 2018.  I have considered statements of third parties relied upon by Ms Neale, but I view these as inconclusive in circumstances where there is dispute about whether Ms Neale delivery of their daughter to sport training necessarily meant that the children therefore spent that night in her care. 

6. I am wary of adopting an incorrect approach of reaching findings about a pattern of care solely by reference to an historical audit of what actually happened.  As explained to the parents, the child support scheme does not provide for a reconciliation or audit of care, but instead care determinations are intended to operate prospectively and indefinitely unless and until the Department is notified of a change to the pattern that will actually affect the assessment.  In this particular situation, an examination of what actually happened between September and December 2018 is useful to identify what the pattern of care was, even where there were elements of dispute between the parents as to future arrangements at the time (which are now settled).

7. Mr Anson’s calendar identifies three fortnightly cycles where he had four nights care, and two fortnightly cycles where he had five nights care.  I accept that evidence as demonstrating what took place. The question is therefore which of those reflects the pattern and which reflects an exception to the pattern. 

8. Given Ms Neale’s evidence that there was no agreed pattern of five nights per fortnight (even though it did happen on occasion), and given the four nights per fortnight pattern has subsequently been settled between the parents, I prefer to interpret Mr Anson’s calendar as demonstrating a pattern of four nights per fortnight, with the two five-night per fortnight cycles demonstrating the exception.

9. I am therefore satisfied that the pattern of care from the commencement of the assessment has been constant (in the sense of a constant pattern, regardless of occasional exceptions to that pattern).  This pattern is reflected by the objections officer’s decision. 

10. I agree that the objections officer has correctly determined a care percentage of 34% to Mr Anson and 66% to Ms Neale, by reference to suitable care period.  This determination is made pursuant to paragraph 50(1)(a)(i) and subsection 50(2) of the Child Support (Assessment) Act 1989.

11. I also agree that the objections officer’s exercise of the discretion at section 87AA(2) of the Child Support (Registration and Collection) Act 1989  is entirely appropriate given the procedural hiccough I have described above.  Alternatively, I would also view the contact of 15 January 2019 as including an objection to the initial care percentage determination made within the prescribed time in any event.  Either way, the objection officer has correctly identified the date of effect in my view.

DECISION

The decision under review is affirmed.