Caden and Child Support Registrar (Child support)

[2019] AATA 1741

Caden and Child Support Registrar (Child support) [2019] AATA 1741 (23 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC015987

APPLICANT:  Mr Caden

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Douglas

DECISION DATE:  23 April 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care – when did appropriate care period commence – whether care percentages should be determined by reference to nights in care - 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

BACKGROUND

1. Mr Caden has applied to the Tribunal for a review of a decision the Child Support Registrar made on 21 February 2019 disallowing his objection to an earlier decision of the Registrar of 13 August 2018 by which the Registrar determined the percentages of care for his and Ms Orrell’s [son], [Child 1] to be 28% for him and 72% for Ms Orrell from 29 June 2018. 

2. The Tribunal wrote to Ms Orrell notifying her that it had received Mr Caden’s application for review and invited her to apply to be a party to the proceedings before the Tribunal.  Ms Orrell did not apply to be a party and hence she is therefore not a party to these proceedings.

3. The Tribunal heard Mr Caden’s application on 23 April 2019.  He gave oral evidence under affirmation.  The Tribunal has had regard to his oral evidence and also to the papers that the Registrar provided to the Tribunal in accordance with subsections 37(1) and 38AA(1) of the Administrative Appeals Tribunal Act 1975.   Those papers are marked 1-188. 

ISSUE

1. On 29 June 2018 Ms Orrell applied to the Registrar under subsection 25(1) of the Child Support (Assessment) Act 1989 (the Act) for an assessment of child support to be made for [Child 1].  The Registrar was thereupon required under subsection 50(2) of the Act to determine Mr Caden’s and Ms Orrell’s percentages of care for [Child 1] for the care period.  Subsection 50(3) required that the percentages the Registrar determined under subsection 50(2) be percentages that corresponded with the actual care that Mr Caden and Ms Orrell would likely have of [Child 1] during the care period.

2. The issue that the Tribunal, standing in the place of the Registrar, must consider is what Mr Caden’s and Ms Orrell's percentages of care for [Child 1] were likely to be during the relevant care period. 

CONSIDERATION

1. The point of time at which the Tribunal must consider this matter is the time at which the Registrar originally determined the care percentages for [Child 1], which was on 13 August 2018.  The Tribunal’s consideration therefore must be based on what was known or could have been known at that time, and not by reference to what became known after that time.

2. The Tribunal must consider Mr Caden’s and Ms Orrell’s pattern of care for [Child 1] for a care period, which is a period that is appropriate to discern a pattern of care for [Child 1], and generally is a period of 12 months.  

3. The evidence establishes that Mr Caden and Ms Orrell separated at the end of January 2018.  They subsequently went on a family holiday between 29 March 2018 and 25 April 2018.  As mentioned, Ms Orrell then applied on 29 June 2018 for an administrative assessment of child support to be made for [Child 1].  In those circumstances, it seems to the Tribunal that the appropriate care period, by which to discern a pattern of care for [Child 1], would be 12 months from 26 April 2018. 

4. What all that means, in substance, is that the Tribunal’s task is to decide, based on what was known or could have been known as at 13 August 2018, what the pattern of care for [Child 1] would likely be for a care period of 12 months from 26 April 2018.

5. On 27 July 2018 Ms Orrell sent an email to the Child Support Agency, in which she said that her and Mr Caden’s “usual routine” with respect to the care of [Child 1] was as follows:

   Mon – I drop [Child 1] at day care (near Mr Carden’s house), Mr Caden picks him up after work and [Child 1] stays the night with Mr Caden.

   Tues – [Child 1] goes to day care (near Mr Caden’s house), Mr Caden picks him up after work and meets me at [Suburb 1].  [Child 1] stays with me.

   Wed – [Child 1] stays with me.

   Thur – [Child 1] stays with me.

   Friday – [Child 1] stays with me.

   Saturday – Mr Caden picks up [Child 1] at around 8-9am or I drop him off.  [Child 1] stays with Mr Caden.

   Sunday – we meet in [Suburb 1] at around 5pm.  [Child 1] stays with me.

6. In evidence is a spreadsheet that Mr Caden completed, in which he tabulated the hours that he says he spent with [Child 1] from 30 January 2018 to 30 September 2018.  He provided that spreadsheet to the Child Support Agency by way of an email on 3 October 2018.  His evidence to the Tribunal, which the Tribunal accepts, is that he prepared this spreadsheet based on entries he had made in a hardcopy diary he keeps and based on text messages.  His evidence to the Tribunal was that the hours he recorded in that spreadsheet as being time he spends with [Child 1] included the time that [Child 1] was in day care on Tuesday and also time that he was with [Child 1] and with Ms Orrell at Ms Orrell’s place of residence, which is Ms Orrell’s mother’s home.

7. Mr Caden’s evidence to the Tribunal was also that he has overnight care of [Child 1] on Saturday and Monday.  That is consistent with what Ms Orrell emailed the Child Support Agency on 27 July 2018.  Mr Caden said to the Tribunal that his hours with [Child 1] were “dictated” by Ms Orrell, and as an example of that he told the Tribunal that on Saturday he initially collected [Child 1] from Ms Orrell between 7 am and 7.30 am, but Ms Orrell then required him to collect [Child 1] later at 8 am.

8. Mr Caden’s evidence to the Tribunal was that as at 13 August 2018 he was working full time as a project manager, but his employer allowed him some flexibility in his hours so that he could spend time with [Child 1].  To this end, Mr Caden might start at 8 am and finish at 4 pm so that he could see [Child 1], but on other days when he did not see [Child 1] he might start at 6.30 am and finish at 6 pm. 

9. The Tribunal observes, for the sake of completeness, that in October 2018, which is subsequent to the Registrar’s decision of 13 August 2018, Mr Caden’s employment came to an end.

10. Mr Caden’s evidence to the Tribunal was that at and before the time the Registrar made the decision on 13 August 2018, he was also spending time with [Child 1] on Thursday afternoons at his mother-in-law’s place, which as mentioned is also Ms Orrell’s place of residence.  At the time he did this, Ms Orrell was also there.  Similarly, on Sunday evenings when he took [Child 1] to Ms Orrell’s residence, he would also spend some time at her residence with [Child 1].

11. Mr Caden told the Tribunal that a mutual friend minded [Child 1] during the day on both Mondays and Tuesdays and that [Child 1] attended a child care facility on Thursdays and Fridays.  [Child 1] was in Ms Orrell’s care for the whole of Wednesday.

12. Mr Caden also told the Tribunal that he paid for many of [Child 1]’s costs including paying medical expenses, purchasing clothing and paying for activities and associated travel expenses. 

13. The Tribunal accepts the evidence Mr Caden gave orally during the hearing.

14. Section 54A of the Act reads, so far as is relevant:

    (1)  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 Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

    (2)  The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

15. The Registrar has published guidelines relating to how determinations of care percentages will be made: Child Support Guide, Part 2.2.1.  The Registrar, and the Tribunal standing in the place of the Registrar, should generally apply these guidelines unless they are unlawful or their application produces an unjust result in the circumstances of the particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

16. With respect to whether care percentages should be determined by reference to the nights a child spends with his or her parents or by reference to the number of hours, the guidelines stipulate:

    Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.

    In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.

    …..

    Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.

    If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.

17. The guidelines also provide three examples of how the Registrar would apply these criteria.

18. The first and second examples involve parents working either night or day shifts.  In the first example, a parent works nightshift and provides care for a child during the day time and the other parent provides care during the night time.  In that example the Registrar indicates that a percentage of care based on nights would not properly reflect the parents’ care arrangements and the Registrar would determine the percentages of care based on the hours each parent provides care for the child. 

19. The third example relates to a circumstance where a child lives mainly with one parent and the other parent has care of the child every second Friday and Saturday night and for some of the school holidays but where that parent also on an afternoon during the school week takes the child from school to soccer and has dinner with the child before driving the child to the other parent’s house for the night.  In that example the guidelines state that the mid-week arrangement “does not significantly affect the care arrangements” and the Registrar would base percentages of care on the nights of care that each parent has of the child, and not the hours that each parent has.

20. Apportioning percentages of care is not an exact science.  No precise calculation is possible: see P v Child Support Registrar [2015] FCA 116 at [88]. There is no requirement under the Act that percentages of care be assigned by reference to particular aspects of care: ibid at [89].

21. The Tribunal considers that the circumstances of this case relate better to the third example provided in Part 2.2.1 of the Guidelines than the first two examples.  [Child 1] spends five nights in Ms Orrell’s residence and two nights in Mr Caden’s residence.  [Child 1] is with Mr Caden exclusively between 8 am Saturday and  6 pm Sunday and after Mr Caden completes work on Monday, which based on his evidence would be around 4 pm, until Tuesday morning, which based on his evidence would be around 8 am when he starts work.  In the Tribunal’s view, largely as a consequence of that arrangement, Ms Orrell provides more care for [Child 1] than Mr Caden.  It is true that Mr Caden spends more time with [Child 1] than the days on which he has overnight care of [Child 1], being the times that he spends with [Child 1] on Thursdays in Ms Orrell’s residence and also after taking [Child 1] to Ms Orrell’s residence on Sunday evening, but in the Tribunal’s view the time that Mr Caden spends with [Child 1] whilst at Ms Orrell’s residence is not such that it could be held that the caring responsibilities for [Child 1] during that time have been assumed by Mr Caden.

22. In the Tribunal’s view, when considered at the point of time of 13 August 2018, the actual care of [Child 1] that Mr Caden and Ms Orrell was likely to have of [Child 1] during the care period is best worked out based on the number of nights that [Child 1] is in their respective care.  On that basis, Mr Caden has the actual care of [Child 1] for 28% of the time and Ms Orrell 72% of the time and, in accordance with subsection 50(3) of the Act, the determination of Mr Caden’s and Ms Orrell’s care percentages for [Child 1] under subsection 50(2) of the Act must be respectively 28% and 72%.

DECISION

The decision under review is affirmed.