Carden and Carden (Child support)

[2022] AATA 1168

Carden and Carden (Child support) [2022] AATA 1168 (3 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022707

APPLICANT:  Mr Carden

OTHER PARTIES:  Child Support Registrar

Ms Carden

TRIBUNAL:Member S De Bono

DECISION DATE:  3 March 2022

DECISION:

The decision under review is affirmed. (This means the application for review is unsuccessful.)

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Carden and Ms Carden are the separated parents of [Child 1] and [Child 2]. There has been a child support assessment in place since 1 January 2017. From this date care has been determined to be 75% to Ms Carden and 25% to Mr Carden. Mr Carden is the paying parent.

2. On 23 March 2021 Mr Carden reported a change of care for [Child 1] and [Child 2]. Mr Carden said he and Ms Carden have been separated under one roof since 22 August 2020, and the care should be recorded as 50% to each from 22 August 2020.

3. On 1 June 2021 Child Support made the decision not to make a new care determination and left the existing care determination as it applied from 1 January 2017.

4. On 21 June 2021 Mr Carden lodged an objection to the decision to leave the care determination as 75% to Ms Carden and 25% to him. On 27 August 2021 an officer from Child Support made the decision to disallow Mr Carden’s objection.

5. On 11 November 2021 Mr Carden applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 3 March 2022 Mr Carden and Ms Carden gave evidence under affirmation via conference telephone. The tribunal had before it a bundle of documents (186 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      Did the care of [Child 1] and [Child 2] change? If so,

   ·      From what date should the existing care determination be revoked? And,

   ·      What is the new care determination?

LAW AND CONSIDERATION

1. The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

2. The Act sets out the statutory formula for the calculation of child support.  The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

3. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Child Support’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. As noted above, while the tribunal is not bound by such policy, in Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 the Full Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

4. The tribunal’s task on review is to stand in the shoes of the original decision maker.  In this respect there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate. 

5. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care.  The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

Issue 1 – Has there been a change in the care of [Child 1] and [Child 2]?

1. Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the children before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.

2. 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”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

3. Mr Carden said Ms Carden was renting a house but moved back to the former family home on 22 August 2020. Ms Carden agreed she moved back into the former family home but disagreed that she moved back in on 22 August 2020, she thought she moved back in late September 2020. She thought the date was closer to 28 September 2020.

4. Mr Carden said he was providing care to [Child 1] and [Child 2] and he was also paying for groceries, utilities and the mortgage. Mr Carden said he works as a [Occupation 1] full-time and works generally from 7 am to 3 pm weekdays. Mr Carden said he does casual work [and] works [at a venue] on a casual basis, he said this is usually one or two nights a week, but as this is casual his shifts vary. He said the shifts are usually from 11 pm to 7 am and he can work weeknights or weekend nights. He is never sure when he may get a shift but thought overall his shifts would average out to about two shifts a week. He said on the nights he worked [at the venue], if it was a weekday he would go straight from this work to his day job as a [Occupation 1].

5. Mr Carden said Ms Carden has a boyfriend in [City 1] and she stays in [City 1] from Fridays through to Monday mornings. She is also often away on Wednesday night as she is caring for her mother.

6. Mr Carden said he was paying the mortgage at this time, while they were living separated under the same roof, and he was paying half the household expenses. He said he would also contribute to groceries and he would pay the utilities. Mr Carden submitted that because they were now living under the same roof and had equal care, the care should be recorded as 50% to him and 50% to Ms Carden.

7. Ms Carden did not agree with Mr Carden’s evidence to the tribunal. She said she did not stay with her boyfriend three nights a week and only stayed for two nights a week. She said sometimes [Child 1] and [Child 2] come and stay in [City 1] with her, she could not tell the tribunal how many times this had occurred but thought it was a few times. Ms Carden said Mr Carden works more than two nights [per] week and when he is not working, he is often asleep. Ms Carden said she was the person who made the twins lunches, was the contact for the school and continued to be the person who provided day to day care of [Child 1] and [Child 2]. Ms Carden said she works part time and her work allows flexibility to ensure she is available before and after school.

8. The tribunal asked if both parents were absent who would look after [Child 1] and [Child 2] and Mr Carden said there are four older children in the house who are available to ensure [Child 1] and [Child 2] are adequately supervised.

9. Both parents agreed that Ms Carden moved back into the family home but neither parent could agree on what date this occurred. Ms Carden was of the view that her care remained at 75% during the period they were living separated under the same roof because she was the person who continued to be responsible for the day to day care of the children, including providing for them financially and buying groceries; she was the person who was responsible for major decisions relating to the children. She was the contact for the school, she was the person who would drop them off and pick them up from school and she paid the school fees, and for uniforms and haircuts.

10. In this case there is conflicting information about the care each parent was providing once Ms Carden moved back into the family home. The Guide says when there are disputed facts and conflicting information the parents will be asked to provide further information.

11. Ms Carden provided evidence which was contained in the hearing papers which show bank statements and receipts for items paid for by her. However, some of these receipts are dated prior to the period Ms Carden and Mr Carden resumed living separated under one roof with Mr Carden.[1] Receipts provided from Coles and Woolworths do not have legible dates.[2] A letter from [School 1] dated 14 July 2021 certifies that Ms Carden is the first contact for school related issues and she is “100% responsible for the children’s school account”.[3] There are also support letters from two friends who state that Ms Carden has care for the children and is responsible for the day to day care, financial support and is the main carer for the children.

    [1] Page 79 of the hearing papers.

    [2] Page 143 of the hearing papers.

12. In some circumstances the information provided by both parents may be considered inconclusive to be able to determine if the percentage of care each parent is likely to have over the care period. In those instances a new care determination will not be made and the care as it was known at the time continues to apply.

13. In this instance there is not enough evidence for the tribunal to be positively satisfied that the care of [Child 1] and [Child 2] that was actually occurring had changed. Therefore, the tribunal affirms the decision not to make a new care determination for this period and to leave the existing care determination as 75% to Ms Carden and 25% to Mr Carden.

DECISION

The decision under review is affirmed. (This means the application for review is unsuccessful.)