Bronson and Child Support Registrar (Child support)

[2020] AATA 267

Bronson and Child Support Registrar (Child support) [2020] AATA 267 (17 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017409

APPLICANT:  Mr Bronson

OTHER PARTIES:  Child Support Registrar              

TRIBUNAL:Member R King

DECISION DATE:  17 January 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of both [Child 1] and [Child 2] is recorded as 28% to Mr Bronson and 72% to Ms [A] from 8 October 2018. With respect to Mr Bronson, this decision will have effect from 1 December 2018.  With respect to Ms [A], the decision will have effect from 8 October 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - 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 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

BACKGROUND

1. Mr Bronson and Ms [A]are the parents of [Child 1] (dob 3 Feb 2001), [Child 2] (dob 11 Jan 2004), and [a child] (dob 24 Oct 2005).  There is no court order or parenting plan with respect to care of the three children.  From 29 June 2018 the child support assessment was based on Ms [A] having 100% care of all three children. 

2. On 2 December 2018, Mr Bronson advised the Child Support Agency (CSA) that he had been providing care for both [Child 1] and [Child 2] on two nights per week since 3 October 2018.  After speaking with both Mr Bronson and Ms [A] the CSA decided on 18 January 2019 that Mr Bronson had 12% of the care of [Child 1] and 15% of the care of [Child 2] from 8 October 2018 and that Ms [A] had the remaining care.  As Mr Bronson had not notified the CSA of his increased care within 28 days of its commencement, the changed percentage for him took effect from the day of notification (2 December 2018).  The changed percentage took effect for Ms [A] from 8 October 2018.

3. On 1 March 2019, Mr Bronson objected to the care percentage decisions for both children, telling the CSA that he had the care of both [Child 1] and [Child 2] for two nights per week.  

4. On 28 August 2019, an objections officer affirmed both decisions.  The objections officer was satisfied that the original decision maker had properly determined the number of nights that Mr Bronson had care of both children during October, November and December 2018, and appropriately determined the care percentages on this basis.  The objections officer also affirmed the date of effect of the care percentages for both parties.

5. On 18 September 2019 (within 28 days of receiving the objection decision), Mr Bronson applied to the Tribunal for review.  

6. The Tribunal conducted a hearing on 6 January 2020.  Mr Bronson participated by conference telephone and provided sworn evidence. 

7. The tribunal deferred a decision so that Mr Bronson could provide additional evidence.

CONSIDERATION

1. Ms [A]told the tribunal that [Child 1] and [Child 2] commenced regular two night per week care with him in October 2018.  He said that [Child 1] also stayed some nights with the parents of his girlfriend (the [Mr and Mrs A]).  Mr Bronson said that he had gotten to know the [Mr and Mrs A] quite well, as he had dropped [Child 1] at their place before [Child 1] got his driver’s licence.  [Mr and Mrs A] had his contact details and understood that he was the person to contact if there were any problems or concerns about [Child 1].

2. Mr Bronson told the tribunal that the arrangement whereby the boys spent two nights per week with him became less regular from mid-December because of the school holidays.

3. Mr Bronson told the tribunal that he has a diary, an annotated record of expenditures and a letter from [Mr and Mrs A] that substantiated his evidence.  After the hearing, Mr Bronson provided the tribunal with copies of diary entries, annotated records of expenditure and an unsigned letter, dated August 2019, from [Mr and Mrs A] .  The tribunal accepted this evidence.

4. The tribunal notes that Ms [A] was not a party to Mr Bronson’s application and that the only evidence from her consists of records of conversations with the CSA that have been included in the hearing papers.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA had initially determined that Ms [A] had 100% of the care of both [Child 1] and [Child 2].

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

4. Unless there is a basis for an interim care period, if the CSA is notified or becomes aware that the actual care percentages do not reflect the original section 50 determination more than 28 days after the change of care day, the section 54F determination has effect, for the person with increased care, from the date before the notification or the date when the CSA first became aware that the original determination did not reflect actual care percentages. For the person with decreased care, the date of effect is the date when the care percentages changed. The tribunal is satisfied that Mr Bronson notified the CSA on 2 December 2018 of a change of care percentage that occurred in early October 2018. It follows that, any increase in Mr Bronson’s care percentage will have effect from 1 December 2018 and that any decrease in Ms [A]’s care will have effect from 8 October 2018.

5. The tribunal notes that there is no evidence that the care of [Child 1] and [Child 2] was subject to a court order or parenting plan. The evidence suggests that care arrangements were in accordance with informal agreements between the parents and the wishes of the children. It follows that there is no basis for an interim care period under section 51 and section 53A of the Act

6. Under section 54A of the Act, the starting point for any determination of care percentage is the number of nights of care provided by each parent over a designated care period. The Child Support Guide advises that hours of care may be taken into consideration if there is a risk that a calculation based solely on nights misrepresents the level of care provided. As child support payments, defray the cost of care, consideration must be given to the extent to which a pattern of care is consistent with the cost of care.

7. Under section 54F of the Act, the tribunal has to determine the pattern of care for [Child 1] and [Child 2] as at 2 December 2018, when Mr Bronson contacted the CSA to advise a change in the pattern of care. The tribunal notes that the CSA has determined the pattern of care by taking a three-month period (1 October 2018 to 31 December 2018) and determining what percentage of nights Mr Bronson had the children during that period. It would appear that the CSA gave greater weight to Ms [A]’s evidence than it did to Mr Bronson’s evidence.

8. The tribunal is of the view that the use of a three-month period distorts the actual pattern of care at the time of notification.  The commencement date of the changed pattern of care is in contention.  Ms [A] claimed that it was 8 October, which means that the dates of care she provided cannot be applied to a period prior to 8 October.  Furthermore, the evidence indicates that the changed care arrangement ended some time in December.  By including care days that both pre-dated and post-dated the changed pattern of care advised by Mr Bronson on 2 December 2018, the CSA necessarily under-estimates his care percentage.

9. The records of conversation between the CSA and Ms [A] indicate that, on 20 December 2018, Ms [A] said that [Child 2] had been in the care of his father for two nights per week, during the previous five weeks.  On 28 December 2018, Ms [A] made reference to an arrangement commencing 8 October 2018 that she described as a trial.  She subsequently advised that, during October, [Child 2] had been in the care of his father on six nights, commencing 8 October and that, during November, he had been in the care of his father on four nights.  Mr Bronson told the CSA that, during October, he had the care of [Child 2] for eight nights, commencing 8 October 2018 and that, during November, he had the care of [Child 2] for nine nights.  If, as seems likely that pattern of care changed on 8 October, there were a total of 53 nights of care available during this period.  Ms [A]’s evidence would suggest that Mr Bronson had 17% of the available care, whereas Mr Bronson’s evidence is consistent with 32% of the care. 

10. The tribunal notes that Ms [A]’s advice to the CSA concerning the dates that she said [Child 2] spent four nights with his father in November, is not consistent with her earlier evidence to the CSA that [Child 2] had been spending two nights per week with his father for a period that takes in part of November.

11. The tribunal sees no reason to prefer Ms [A]’s evidence regarding the dates that [Child 2] was in the care of Mr Bronson to that of Mr Bronson.  Ms [A] told the CSA that there was an arrangement by which [Child 2] spent two nights a week with Mr Bronson and that this arrangement was in place on 2 December 2018 when Mr Bronson spoke with the CSA to notify a change of care percentage.  The details of such an arrangement are more consistent with the dates provided by Mr Bronson than the dates provided by Ms [A], suggesting that Mr Bronson’s dates of care are probably more reliable.

12. The tribunal is therefore satisfied that Mr Bronson had the care of [Child 2] for two nights a week and that it is more likely than not that this arrangement was in place from 8 October 2018.  Care of two nights per week means that his care percentage was 28%.  This care percentage has effect from 1 December 2018, in accordance with paragraph 15 of this decision.  Ms [A]’s care percentage was 72% from 8 October 2018.

13. With respect to [Child 1], on 28 December 2018, Ms [A] told the CSA that [Child 1] had stayed with his father on a total of eight nights between 8 October 2018 and the end of November 2018.  On 9 January 2019, Ms [A] told the CSA that [Child 1] has his own car and decides where he stays.  Mr Bronson provided the tribunal with copies of diary entries that indicated that [Child 1] spent nine nights with him during this period.  The letter from [Mr and Mrs B] (parents of [Child 1’s] girlfriend) advises that [Child 1] has had a driver's licence since August 2018 and that, during the period between September 2018 and end of November 2018, [Child 1] was staying at their place on average two nights per week. 

14. The evidence does not allow a finding that Mr Bronson was providing [Child 1] with two nights per week of direct care when he contacted the CSA on 2 December 2018 to advise a change in care percentage.  However, the evidence indicates that [Child 1] also spent nights at the home of [Mr and Mrs B] who saw themselves as providing care on behalf of Mr Bronson and not on behalf of Ms [A].  The tribunal is of the view that assigning those nights (for which there is no exact record) entirely to Mr Bronson would constitute a distortion of the care percentage as it is likely that both parents incurred some costs when [Child 1] was staying overnight with [Mr and Mrs B].  However, the evidence indicates that Mr Bronson was the responsible parent on these nights, and it is therefore reasonable to assign most of the care to him. 

15. While exactitude is not possible, the tribunal is satisfied that Mr Bronson’s care of [Child 1], when he notified the CSA on 2 December 2018, was broadly consistent with the arrangement that Ms [A] later told the CSA was in place from 8 October 2018, for what she described as a trial period, whereby both boys would spend two nights a week with their father.  Care of two nights per week means that Mr Bronson’s care percentage for [Child 1] was 28%.  This care percentage has effect for Mr Bronson from 1 December 2018, in accordance with paragraph 15 of this decision.  Ms [A]’s care percentage for [Child 1] was 72% from 8 October 2018.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the percentage of care of both [Child 1] and [Child 2] is recorded as 28% to Mr Bronson and 72% to Ms [A] from 8 October 2018. With respect to Mr Bronson, this decision will have effect from 1 December 2018.  With respect to Ms [A], the decision will have effect from 8 October 2018.