Barker and Manville (Child support)

[2022] AATA 3050

Barker and Manville (Child support) [2022] AATA 3050 (7 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023516

APPLICANT:  Ms Barker

OTHER PARTIES:  Child Support Registrar

Mr Manville

TRIBUNAL:Member P Jensen

DECISION DATE:  7 June 2022

DECISION:

The decision under review is set aside and, in substitution, Ms Barker is recorded as providing 40% care and Mr Manville is recorded as providing 60% care for [Child 1] with effect from 4 November 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – decision under review set aside and substituted

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

1. Ms Barker and Mr Manville are the parents of three children, the youngest of whom is [Child 1]. On 4 November 2021, Mr Manville applied to register a child support case with the Child Support Agency (“the CSA”). On 27 November 2021 an original decision-maker decided to register a child support case from 4 November 2021 and to record Ms Barker as providing 28% care and Mr Manville as providing 72% care for [Child 1] “from 27 July 2021, effective in the assessment from the start date of liability, 4 November 2021”. Ms Barker objected to that decision. An objections officer decided to record Ms Barker as providing 28% care and Mr Manville as providing 72% care for [Child 1] “from 8 September 2021, effectively in the assessment from the start date of liability, 4 November 2021.” Ms Barker applied to the Tribunal for further review. I heard the matter on 7 June 2022. Ms Barker and Mr Manville gave sworn evidence via MS Teams.

2. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Decision-makers are required to determine the pattern of care each parent has had, or is likely to have, during such period (“the care period”) as the decision-maker considers appropriate: sections 49 and 50 of the Act. The original decision-maker concluded that the appropriate care period commenced on 27 July 2021. The objections officer concluded that the appropriate care period commenced on 8 September 2021. However, the care period does not form part of the care decision: see, in particular, sections 49, 50, 54B, 54F and 54G of the Act. With respect, the original decision-maker’s findings should have led to a decision to record Ms Barker as providing 28% care and Mr Manville as providing 72% care for [Child 1] with effect from 4 November 2021, and the objections officer’s findings should have led to the same decision. In any event, Ms Barker disputed those percentages of care. She stated that her pattern of care from at least when the child support case was registered equated to approximately 50% care.

3. Ms Barker provided summaries of her nights of care from the beginning of September 2021. There were slight inconsistencies in her summaries. Mr Manville provided summaries of Ms Barker’s nights of care from 23 September 2021. There were slight inconsistencies in his summaries. I decided to focus on the period from 23 September 2021 (when Mr Manville started recording Ms Barker’s provision of care) to 27 November 2021 (when the CSA made its care decision), and I proceeded on the basis that the parents’ provision of care during that period would be the best indication of their likely patterns of care during the 12‑month period starting on 23 September 2021. Of course, what is likely does not always eventuate, and if there was a subsequent change in the parents’ pattern of care, either parent could report that change in care to the CSA. The hearing papers indicate that the CSA has been advised of a possible change in care from 7 February 2022.

4. At the hearing, Ms Barker explained that she had not kept precise records of her nights of care from 23 September 2021 to 27 November 2021 and she had tried to determine her nights of care from other documentation such as text messages between herself and [Child 1]. She provided copies of those text messages. Mr Manville explained that he had kept records of Ms Barker’s nights of care during that period but he was not confident that the records were precise. Notwithstanding those concessions, Ms Barker was adamant that she had provided more than 28% care and Mr Manville was adamant that Ms Barker had provided less than 50% care.

5. The hearing mainly consisted of me working chronologically through the dates on which Ms Barker claimed she had provided overnight care, noting some minor inconsistencies in her summaries, noting that Mr Manville agreed with some of Ms Barker’s dates, noting some minor inconsistencies in Mr Manville’s summaries, and referring to the additional evidence that Ms Barker had provided in support of her various accounts of events. By the end of that process both parents had acknowledged that it was apparent that they had inadvertently made some mistakes in the recording of Ms Barker’s provision of care and the evidence did not allow for a precise calculation of her provision of care. After further discussion, both parents agreed that recording Ms Barker as providing 40% care and Mr Manville as providing 60% care from 4 November 2021 would fairly (if not precisely) reflect the parents’ pattern of care from that date. Based on the evidence provided, I agree with that conclusion, and a care decision will be made accordingly. Finally, out of an abundance of caution, I note that that decision will be unrelated to any possible change in care from 7 February 2022. The CSA will make a separate decision about that reported change in care in due course.

DECISION

The decision under review is set aside and, in substitution, Ms Barker is recorded as providing 40% care and Mr Manville is recorded as providing 60% care for [Child 1] with effect from 4 November 2021.