Bronson and Bronson (Child support)

Bronson and Bronson (Child support) [2024] AATA 1878 (16 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/SC027041
APPLICANT:  Mr Bronson
OTHER PARTIES:  Child Support Registrar
Ms Bronson

TRIBUNAL:Member J Thomson
DECISION DATE: 16 April 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages for the children of 17% to Mr Bronson and 83% to Ms Bronson should apply from 1 January 2023, notified on 24 March 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – father unable to comply with agreed care pattern based on court orders – fly-in/fly-out worker’s employer persistently required additional hours – change of employer and new roster – discrepancies between parents’ calendar records – dates of care change determination – 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

BACKGROUND

Mr Bronson and Ms Bronson are the parents of [Child 1], born 2012, and [Child 2], born 2016 (the children).
Mr Bronson seeks review of an objection decision made by Services Australia (Child Support) dated 1 November 2023. This decision partially allowed his objection to an earlier Child Support decision dated 23 May 2023 deciding to reflect the care for the children as 0% to Mr Bronson and 100% to Ms Bronson from 21 December 2022, notified on 24 March 2023, with the original decision deciding to reflect the care of the children as 89% to Ms Bronson and 11% to Mr Bronson from 21 December 2022.
The Tribunal heard the matter on 5 March 2024. Both parents attended the hearing by conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 283), admitted into evidence and marked Exhibit 1.
At the conclusion of the hearing, the Tribunal directed Mr Bronson to provide copies of a text message between the parents dated 17 August 2023 regarding his care of the children from Friday 18 August 2023 to Sunday 20 August 2023 and his new work roster from 26 July 2023 onward. Mr Bronson has complied with the Tribunal’s directions and these additional documents have been admitted into evidence and marked Exhibit A.
Copies of Mr Bronson’s Exhibit A documents have been sent to Ms Bronson for her consideration and comment. She has not provided a response.

ISSUES

The issues which arise in this case are:
· whether there has been a change in the pattern of care for the children which requires the existing percentages of care to be revoked and a new care percentage determination made; and if so,
· from what date should the new percentage of care determination apply?

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibits 1 and A.
The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (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’.
To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of approximately 12 months to be appropriate.
However, in this case, neither parent was able to provide any reliable evidence of the care taking place from 21 December 2022, the change in care date nominated by Ms Bronson in her notification to Child Support of the change in care on 24 March 2023, to the end of December 2022. Ms Bronson’s calendar records of care date from March 2023, upon which the Tribunal comments in the Reasons below as regards their accuracy, and Mr Bronson’s calendar records date from 1 January 2023, upon which the Tribunal also comments in the Reasons below. The care period the Tribunal intends to adopt in this case is therefore from 1 January 2023 to 31 December 2023.
It was not disputed at the hearing that there had been a change in care for the children in late December 2022. The circumstances in which this occurred appear below.
Both parents gave evidence that the care issue had arisen because of Ms Bronson’s frustration in December 2022 when it became apparent that Mr Bronson, through no deliberate fault of his own, was unable to comply with the parents’ agreed care patten based on Court Orders made in the [Local Court] on 22 December 2022 (the Court Orders), details of which appeared pages 55 to 70 of Exhibit 1, and which, relevantly, accorded Mr Bronson fortnightly weekend care from 6 pm Friday to 5 pm Sunday, 5 consecutive nights in each of the holiday periods in school terms 1, 2 and 3 (or failing agreement, from 5 pm on the first Thursday of the school holiday period until 5 pm the following Tuesday), and half of the summer holidays – equating to approximately fortnightly weekend care, Friday to Sunday in school term time and half the gazetted school holidays.
These care arrangements were accepted by Child Support as equating to care percentages of 79% to Ms Bronson and 21% to Mr Bronson (see pages 10 to 12 of Exhibit 1).
Both parents acknowledged and agreed that the abovementioned Court Orders had been agreed upon as a consequence of discussions between the parents and their legal representatives in December 2022 and were specifically designed to accommodate Mr Bronson’s fly in/fly out (FIFO) contract employment as [an occupation], at remote [workplaces] in Western Australia.
Both parents acknowledged and agreed that because of the uncompromising and overbearing attitude adopted by Mr Bronson’s then FIFO employer, who, on short notice, persistently required Mr Bronson to work additional hours, outside the scope of his initial work roster in place during the latter part of the 2022 year, Mr Bronson found it impossible, virtually from the commencement of the agreed court-ordered care arrangements, for him to comply with those arrangements, and in frustration, Ms Bronson said she notified Child Support on 24 March 2023 of a change in care for the children which she said occurred on 21 December 2022, submitting that she was providing a level of care equating to 96% and Mr Bronson’s care level was only 4%. Accordingly, the Tribunal will make its decision based on the actual care taking place during the nominated care period.
At the hearing, both parents relied extensively on calendar care records each affirmed in their evidence they had maintained on a day-to-day contemporaneous basis together with third‑party statements, discussed in detail below.
In the decision under review, the objections officer also relied heavily upon the parents’ calendar care records, ultimately finding Ms Bronson’s calendar care records (see pages 82 to 93 of Exhibit 1) the more reliable. However, as appears from the Reasons below, Mr Bronson provided his more recent July 2023 work roster calendar from which more accurate information regarding the actual care of the children taking place was able to be deduced.
At the hearing, Ms Bronson gave evidence that her calendar care records were compiled using Mr Bronson’s work roster he had provided to her on 23 March 2023, covering the period December 2022 to January 2024, the dark highlighted dates in which recorded the days on which he was away on his (FIFO) contract work in Western Australia.
She gave evidence that she had reckoned the care summary appearing in the objection decision at page 7 of Exhibit 1 on the assumption that Mr Bronson could not have had care of the children on those days recorded in his 23 March 2023 work roster on which he was working in Western Australia, and otherwise, in accordance with the days on which she had contemporaneously recorded him as having had actual care of the children.
Mr Bronson’s calendar care records appear at pages 148 to 159 of Exhibit 1 and were compiled on a calendar attached to his home refrigerator.
He gave evidence at the hearing that he resigned his FIFO 23 March 2023 roster contract and accepted a new contract from the more compassionate employer, commencing on 26 July 2023, on a more accommodating court-ordered care roster requiring him to work on a two weeks on/one week off basis (see pages A3 to A11 of Exhibit A provided by Mr Bronson at the Tribunal’s direction post-hearing).
He acknowledged in his evidence that he had not provided a copy of this roster to Ms Bronson prior to the hearing although he said he had used it as the basis for his reckoning of the care of the children he was having from 26 July 2023 onward as reflected in the calendar care records upon which he relied at the hearing (see pages 148 to 159 of Exhibit 1) and which formed the basis of the evidence he gave to the objections officer in the course of the objection process, resulting in the care summary appearing in the objection decision at page 7 of Exhibit 1.
During the course of the hearing, he was able to identify inaccuracies in Ms Bronson’s care calendar as a consequence of which she conceded that he had additional care not reflected in her calendar records for the period 17 March 2023 to 19 March 2023, the Easter holiday period 6 April 2023 to 10 April 2023, the weekends of Friday 9 June 2023 to 11 June 2023, Friday 18 August 2023 to Sunday 20 August 2023, Friday 15 September 2023 to Sunday 17 September 2023, and the September/October school holiday period, 30 September 2023 to 8 October 2023. However, Ms Bronson contended that he had returned the children to her on 7 October 2023 which is recorded in her calendar at page 33 of Exhibit 1 as her weekend of care and appears to be corroborated by the parents’ text message exchange at page 248 of Exhibit 1. Her evidence on this point was not challenged by Mr Bronson.
In identifying these anomalies, Mr Bronson relied on a series of text message exchanges between him and Ms Bronson at pages 181 to 253 of Exhibit 1 and a further text message exchange the Tribunal directed him to provide at page A38 of Exhibit A. The relevant text messages were discussed with Ms Bronson during the course of the hearing, and their contents accepted by her as accurate.
As noted above, both parents provided third-party statements in support of their care submissions. Mr Bronson provided a joint statement by his parents, [Mr and Mrs A] (see page 254 of Exhibit 1), in which they attest to their having stayed at Mr Bronson’s house during the September/October 2023 school holidays from Saturday 30 September 2023 to Monday 9 October 2023, corroborating his evidence above regarding his care of the children during that period. He also provided a brief statement from his current partner, [Ms B], at page 162 of Exhibit 1, which, because of its brevity, the Tribunal found to be of limited assistance.
Ms Bronson provided for statements at pages 37 to 40 of Exhibit 1, two of which were from her neighbours, [Ms C] and [Mr D], and afforded limited assistance as regards evidence of the care of the children actually taking place on a day‑to‑day basis. The statement from her current partner, [Mr E], and her mother, the children’s maternal grandmother, provided only general background information as to the circumstances giving rise to the care dispute, but little insight into the actual care taking place on a day-to-day basis. The Tribunal found these statements of limited assistance.
As noted above, Ms Bronson was sent copies of the additional documentary evidence provided by Mr Bronson at the Tribunal’s direction and was afforded ample opportunity to comment thereon but has not responded.
The Tribunal finds Mr Bronson’s evidence regarding the care he provided for the children as reflected in his calendar records referred to above, supported by his parents’ evidence, and the care periods conceded by Ms Bronson as outlined above the more reliable reflection of his care during the period 1 January 2023 to 31 December 2023.
Based on that evidence, the Tribunal calculates Mr Bronson’s care over the relevant 12‑month care period as recorded in his care calendars at pages 148 to 159, his 26 July 2023 new work roster calendar and the care dates reflected in his evidence to the objections officer recorded in the decision under review at the top of page 7 of Exhibit 1 as follows:
2023:
January 4, 5, 6, 7, 8, 9 (Wednesday to Monday) – 6 nights of care;
February 3,4, 5 (Friday to Sunday) – 3 nights of care;
March: 17, 18, 19 (Friday to Sunday) – 3 nights of care;
April 6, 7, 8, 9, 10 (Thursday to Monday), 28, 29, 30 (Friday to Sunday) – 8 nights of care;
May – no care;
June 9, 10, 11 (Friday to Sunday), 29, 30 (Thursday to Friday) – 5 nights of care;
July 1, 2, 3, 4 (Saturday to Tuesday), 21, 22, 23, 24 (Friday to Tuesday) – 8 nights of care;
August 18, 19, 20 (Friday to Sunday) – 3 nights of care;
September 15, 16, 17 (Friday to Sunday), 30 (Saturday) – 4 nights of care;
October 1, 2, 3, 4, 5, 6 (Saturday to Saturday) – 6 nights of care;
November 10, 11, 12 (Friday to Sunday) – 3 nights of care;
December 8, 9, 10 (Friday to Sunday), 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 (Tuesday to Sunday) – 16 nights of care.
Total nights of care: 65 nights
The Tribunal therefore finds Mr Bronson has established a pattern of care equating to 17% care of the children (65/365 x 100 = 17.80% rounded down pursuant to section 54D of the Act to 17%). Ms Bronson is accorded 83% care of the children (300/356 x 100 = 82.19% rounded up pursuant to section 54D of the Act to 83%).
As neither parent was able to offer any reliable evidence of the actual care taking place from 21 December 2022, the Tribunal finds the change in care date to be 1 January 2023.
As the Tribunal has reached a different conclusion regarding the care percentages to be accorded to each parent for the children to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and, in substitution, decides that care percentages for both children of 17% to Mr Bronson and 83% to Ms Bronson should apply from 1 January 2023, notified on 24 March 2023.
As Ms Bronson notified the change more than 28 days after the accepted change in care date occurring and the Tribunal has determined Mr Bronson’s care percentage pursuant to section 50 of the Act at 17%, the Tribunal finds subsection 54H(1) of the Act applies in this case. The Tribunal therefore revokes the existing care percentages of 21% to Mr Bronson and 79% to Ms Bronson with effect in the assessment for Mr Bronson as the responsible person with reduced care (see subparagraph 54H(3)(b)(ii) of the Act) from 31 December 2022, that being the day before the Tribunal’s determined change in care date of 1 January 2023, and for Ms Bronson as the responsible person with increased care (see subparagraph 54H(3)(b)(i) of the Act) the effective date of revocation will be 23 March 2023, that being the day before she notified the Child Support Registrar of the change in care on 24 March 2023. In consequence of the revocation dates above, the care change determination will have effect for Mr Bronson from 1 January 2023, and for Ms Bronson from 24 March 2023.

DECISION

[2024] AATA 1878

16 April 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness

Appeal