Bigden and Warnock (Child support)

[2023] AATA 3745

Bigden and Warnock (Child support) [2023] AATA 3745 (24 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:             2023/SC026546

APPLICANT:  Ms Bigden

OTHER PARTIES:               Child Support Registrar

Mr Warnock

TRIBUNAL:Member I Sheck

DECISION DATE:                 24 October 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – parents living under same roof – 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. Ms Bigden and Mr Warnock are the parents of [Child 1], born 15 January 23007, [Child 2], born 21 July 2010 and [Child 3], born 15 May 2019.  A case was most recently registered with the Services Australia – the Child Support Agency (“Child Support”) for the assessment and collection of child support on 31 March 2023.  The assessment of child support was based on care percentages of 100% for Ms Bigden and 0% for Mr Warnock with effect from 16 March 2023.  On 17 April 2023 the parties were notified of the assessment details including the care percentages for each parent.

2. On 12 May 2023 Mr Warnock sought review of the decision.  On 1 August 2023 an objections officer of Child Support allowed his objection and determined that the care percentages were 50% to each of Ms Bigden and Mr Warnock with effect from 16 March 2023.

3. By application received on 8 August 2023, Ms Bigden asked this Tribunal to review the decision of the objections officer.  On 24 October 2023, the Tribunal conducted a hearing at which Ms Bigden and Mr Warnock gave evidence by MS Teams audio.  The Tribunal had before it the relevant documents from Child Support (pages 1 to 150), which had been copied to the parties. 

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act1989 (“the Act”) and the Child Support (Registration and Collection) Act 1988 (“the Collection Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

2. The term “care” is not defined in child support legislation. Subsection 54A(1) of the Act provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the child was, or is likely to be, in the care of each parent during the care period.  In some situations an assessment of the number of nights a child spends in the care of a person will not accurately reflect the pattern of care for the child. In those cases, it is open to the Tribunal to consider other factors in determining the pattern of care. 

3. In this case, since the separation of Ms Bigden and Mr Warnock in March 2023, they have remained (until very recent changes) resident in the family home, together with their three children.  It is not therefore appropriate to determine the care percentages on the basis of whether the children are staying with one or the other parent at any point in time.  At the hearing the parties gave some evidence regarding the planned future care arrangements, once the current living situation ends.  The Tribunal advised Ms Bigden and Mr Warnock that its decision will be based on the arrangements to date, and that a future change to these arrangements should be promptly notified to Child Support for a fresh determination.

4. The basis of Ms Bigden’s case is that she pays for the majority of the children’s needs and this should be reflected in the care percentage.  In her discussion with the objections officer, Ms Bigden advised that Mr Warnock:

   does not pay any mortgage, she pays the mortgage herself. [Mr Warnock] only puts $500 towards a bill account for electricity, rates, etc, but she does this, too matched up dollar for dollar.

   Ms Bigden told the Tribunal that after Mr Warnock was assessed to pay child support he ceased contributing to the household bills but has resumed payment now that the child support rate is nil. Ms Bigden asserted that she paid for all of the children’s clothes and personal/lunch money and Mr Warnock responded that he too buys clothes and items for the children and makes payments into their accounts.  The Tribunal finds that both parents contribute to the children’s personal costs. 

5. In terms of the household expenses, in particular the mortgage, utilities, rates, insurance and so on, the Tribunal accepts Ms Bigden’s evidence that she pays a greater proportion of this than Mr Warnock.  The Tribunal notes that these payments are for the benefit of not only the children but herself and Mr Warnock.  In considering whether this should be taken into account in determining the appropriate care percentages of the parties, the Tribunal concluded it should not.  The parties advised that they are currently going through a property settlement, and the Tribunal was of the view that the individual contributions of Ms Bigden and Mr Warnock to the upkeep of the family home (both before and after separation) is an issue better dealt with in that forum.

6. The Tribunal is not bound by government policy but has had regard to the Child Support Guide at point 2.2.1 “Basics of care”.  This states in part:

   Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

7. Turning then to the actual care of [Child 1], [Child 2] and [Child 3], Mr Warnock has a regular work pattern of 8am to 4pm, Monday to Friday.  Ms Bigden has more recently worked a regular night shift, but over the course of this year has sometimes worked evening shifts or a “double shift”.  Ms Bigden contended that during the evenings, Mr Warnock mainly stays in his room and does not provide care for the children; however, Mr Warnock responded that this is only the case when Ms Bigden is also in the house during the evening.  The Tribunal accepts Mr Warnock’s evidence on this point. The Tribunal is therefore satisfied that in the absence of one of the parents due to work, the other parent provides the children with all care that is needed, including provision of meals, personal care and emotional support. 

8. Although there have been no health crises or major care incidents regarding the children so far this year, the parties agreed that in the event of a crisis they would work together to resolve the issue.  [Child 1] has had some health issues this year and both parents have been involved in taking her to appointments.  The children are not currently involved in sport.  The Tribunal accepts that Mr Warnock has been involved with [Child 1]’s school due to absences this year and Ms Bigden with [Child 2]’s school following a recent suspension.

9. Clearly the actual care needs of the children differ due to their ages, with the needs of [Child 3], age four, being quite different to those of her sister [Child 1], age 16.  Notwithstanding this, and having regard to the evidence of Ms Bigden and Mr Warnock, the Tribunal was of the view that overall, they contribute in a broadly similar manner to the care of their three children.  They should each be assessed as having a care percentage of 50% from the commencement of the assessment, 16 March 2023.

DECISION

The decision under review is affirmed.