Caldwell and Caldwell (Child support)

[2024] AATA 374

Caldwell and Caldwell (Child support) [2024] AATA 374 (25 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026829

APPLICANT:  Mr Caldwell

OTHER PARTIES:  Child Support Registrar

Ms Caldwell

TRIBUNAL:Member F Petrone

DECISION DATE:  25 January 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care of [Children 1-3] is 48% to Mr Caldwell and 52% to Ms Caldwell from 1 July 2022, effective in the assessment from 26 September 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – hours of care - decision under review set aside and substituted

REASONS FOR DECISION

BACKGROUND

1. Mr Caldwell and Ms Caldwell are the parents of [Children 1-3], in respect of whom a child support assessment is in place.

2. On 13 June 2023, Ms Caldwell’s application for a child support assessment from 23 May 2023 was accepted and a decision was made to reflect the care of [the children] as 43% to Mr Caldwell and 57% to Ms Caldwell from 1 July 2022, effective in the assessment from 23 May 2023.

3. On 1 August 2023, Mr Caldwell objected to the decision and on 22 August 2023 an objections officer disallowed the objection.

4. Mr Caldwell sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 26 September 2023.

5. Mr Caldwell and Ms Caldwell each attended the hearing on 25 January 2024 by Microsoft Teams audio and spoke with me regarding the application.  The Child Support Registrar (the Registrar) elected not to attend the hearing.

6. The Tribunal had before it a bundle of documents provided by the Registrar numbering 132 pages in total, a copy of which was sent to each of the parents on 26 September 2023.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are:

   ·      whether the percentage of care determination corresponds with the actual care of the children that Mr Caldwell has, or is likely to have, during the care period and

   ·      what is the date of effect of any decision.

CONSIDERATION

Care percentage determination

1. Relevant to this matter, the Act requires the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter. That is also the task of this Tribunal.

2. Mr Caldwell and Ms Caldwell agree that the children are with Mr Caldwell from lunchtime on Wednesday until 9 pm on Saturday each week.  This means that the children spend 3 nights or 81 hours with Mr Caldwell and 4 nights or 87 hours with Ms Caldwell.

3. When calculated on the basis of nights in care the above pattern equates to 43% to Mr Caldwell and 57% to Ms Caldwell using a care period of 365 days.

4. The issue that arises in the circumstances of this matter is whether the percentage of care determination should be identified by reference to nights in care, as suggested by Ms Caldwell, or hours in care, as requested by Mr Caldwell.

5. The legislation provides at section 54A of the Act that actual care of a child 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 a person (my emphasis). 

6. Government policy in the Child Support Guide establishes a norm of calculating care based on nights but recognises there will be situations where different methods may be preferable, for example where one parent provides care every night but the other provides care from 8 am to 6 pm every weekday.  The Registrar will take into account the information from each parent about the care they provide and why they think nights or hours is the better measure of care.

7. There is no statutory definition of care. However, the matter of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 is instructive on what constitutes care. Hughes FM stated at paragraph 56 that it is necessary to consider the following:

   a.     To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?

   b.     To what extent does the person make arrangements for others to meet the needs of the child?

   c.     To what extent does the person pay for the costs of meeting the needs of the child?

   d.     To what extent does the person otherwise provide financial support for the child?

   e.     To what extent does the child provide for his or her own needs or have those needs met from another source?

   f.   To what extent is the child financially independent or financially supported from another source?

8. Ms Caldwell states that she considers nights should be used as the measure of care because that is the norm and she works in [work sector] and is limited in her work hours on a Saturday as she needs to leave work in time to pick the children up by 9 pm.  She therefore believes she is entitled to that night of care.

9. Mr Caldwell considers that the hours the children spend with each parent is a more accurate measure of the care provided in this case.  He states that he also works in [work sector] and is restricted in his ability to work on a Saturday.

10. I accept Mr Caldwell’s submission and consider that in all the circumstances hours of care is a more accurate reflection of the care provided by each parent.  This is because each parent is responsible for providing an almost equal number of meals and roughly equal amount of transport and supervision for the children and their costs of meeting the needs of the children would be comparable.  Although the children are with Ms Caldwell overnight on a Saturday, they spend most of that day with Mr Caldwell.

11. Based on hours of care, the care percentage determination in this matter would be 48% to Mr Caldwell and 52% to Ms Caldwell.

Date of effect of care percentage determination

1. Section 95N of the Child Support (Registration and Collection) Act1988 provides that if the Tribunal varies or substitutes a decision on an objection to a care percentage decision and the application for AAT first review was made more than 28 days after notice of the objection decision was given, then the decision as varied or substituted by the AAT is taken to have had effect on and from the day the application for AAT first review was made.

2. Mr Caldwell sought review in this Tribunal more than 28 days after notice of the objection decision was given to him and he has not raised any special circumstances that prevented the application for AAT first review being made within 28 days.  The date of effect of this decision is therefore 26 September 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care of [the children] is 48% to Mr Caldwell and 52% to Ms Caldwell from 1 July 2022, effective in the assessment from 26 September 2023.