Colvin and Howorth (Child support)

[2022] AATA 1699

Colvin and Howorth (Child support) [2022] AATA 1699 (29 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC022940

APPLICANT:  Mr Colvin

OTHER PARTIES:  Child Support Registrar

Ms Howorth

TRIBUNAL:Member J Thomson

DECISION DATE:  29 April 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Howorth has 72% care and Mr Colvin 28% care of [the child] from 6 August 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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

1. Mr Colvin and Ms Howorth are the parents of [the child], born 2012. The case was registered with the Child Support Agency (the Agency) on 6 August 2021.

2. Mr Colvin seeks review of an objection decision made by the Agency on 2 December 2021. This decision disallowed his objection to an earlier Agency decision dated 9 September 2021 to accept Ms Howorth’s application for an administrative assessment of child support for [the child] and record care percentages for [the child] of 73% to Ms Howorth and 27% to Mr Colvin from 10 April 2015 with effect in the assessment from 6 August 2021.

3. The Tribunal heard the matter on 2 March 2022. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documents provided by the Agency (Exhibit 1), Mr Colvin (Exhibit A) and Ms Howorth (Exhibit B). Mr Colvin had copies of these documents with him at the hearing. Ms Howorth had copies of the Exhibit A and B documents with her at the hearing but did not have copies of the Agency’s documents with her. However, she was content for the hearing to proceed, notwithstanding she did not have copies of those documents before her at the hearing.

4. During the course of the hearing, the Tribunal directed Mr Colvin to provide copies of his calendar diary recording his care of [the child] for the period 1 January 2021 to 31 January 2022. The Tribunal is satisfied Mr Colvin complied with the Tribunal’s direction on 3 March 2022 by providing copies of his calendar diaries reflecting his care of [the child] for the period 1 January 2021 to 31 January 2022. These documents have been added to Exhibit A.

5. The Tribunal reached its decision on 29 April 2022.

ISSUES

1. The issue which arises in this case is the determination of the level of care being provided by each parent for [the child] for the purposes of Ms Howorth’s child support assessment application.

2. The law relevant to care percentage determinations is 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”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?

3. The Tribunal finds that there are no written care agreements or court orders in place.

4. It was common ground at the hearing that the parents had separated on 10 August 2015 and that, although there had been various care arrangements for [the child] thereafter, from at least March 2020, the care pattern being followed by the parents was centred around Mr Colvin’s shift work roster as a fly-in/fly-out (FI/FO) [Workplace] worker, reflected in his calendar diary for the period 1 January 2021 to 31 January 2022, copies of which were before the Tribunal as part of Mr Colvin’s documents, Exhibit A.

5. This pattern reflected Mr Colvin having a monthly rotation of approximately 7 nights of care followed by approximately 3 to 4 days of care with Ms Howorth, following which [the child] would return to Mr Colvin’s care for 2 to 3 days prior to Mr Colvin returning to his rostered shift at the [Workplace], at which point [the child] returned to live with the mother until Mr Colvin returned for his routine 2 weeks off.

6. Both parents agreed Mr Colvin returned from the [Workplace] for his 2 weeks off on a Wednesday and returned to the [Workplace] on the Wednesday a fortnight later. During that fortnight period, [the child] was to spend the first 7 nights with Mr Colvin and the next 4 nights with Ms Howorth before returning to Mr Colvin for a short period (usually 2 days) before Mr Colvin flew out to the [Workplace] on Wednesday.

7. On at least one of the nights during Mr Colvin’s periods at home from his FI/FO [Workplace] work, [the child] went to Ms Howorth’s house for a “family dinner”. According to Ms Howorth’s evidence, if it was the Tuesday before Mr Colvin was due to return to his [Workplace] shift work, he spent the night with Ms Howorth, because Mr Colvin was flying out to the [Workplace] that evening to commence work the following Wednesday and did not have care of [the child] on these Tuesday nights.

8. Mr Colvin provided copies of the calendar diary for the period August 2021 through to January 2022 (see pages A6 to A13 of Exhibit A). He affirmed in his evidence that he maintained records of the nights he had care of [the child], the nights [the child] spent with Ms Howorth during Mr Colvin’s periods at home on his days off work, and his FI/FO rostered days when he was away from home working remotely at the [Workplace]. Based on these calendar records, Mr Colvin contended he had an average of 12.5 nights of care per month, the equivalent of 150 nights per year or 41% (12.5 x 12 = 150 nights; 150 / 365 x 100 = 41%).

9. Ms Howorth did not challenge the general pattern of care reflected in Mr Colvin’s calendar diary, but she did challenge the calculation of the precise number of nights of actual care Mr Colvin claimed to have had on the basis that there were some instances when he did not have actual care, generally because, although [the child] was due to return to his care for the latter part of his weeks-off roster, immediately prior to his flying out to resume his [Workplace] roster, [the child] sometimes remained at his mother’s house because Mr Howorth had flown out on the Tuesday evening to resume work at the [Workplace] on the Wednesday.

10. Ms Howorth gave evidence of specific dates in Mr Colvin’s calendar when she said he did not have care (namely 1, 7 and 29 September 2021, 5 and 27 October 2021 and 2 November 2021). Mr Colvin acknowledged in his evidence to the Tribunal that there were errors in his calendar care summary at pages A6 to A13 of Exhibit A, and that he did not have care on these nights.

11. At the hearing, Ms Howorth said she was prepared to accept a care percentage determination based on a pattern of 9 nights of care during the fortnight of Mr Colvin’s weeks off.

12. The Tribunal carefully considered the care calendar diary evidence for the period 1 January 2021 to 31 December 2021 provided by the father (see pages A19 to A30 of Exhibit A) which clearly shows a pattern of care of 7 nights and then 2 nights per fortnight, with minor variations:

2021	Nights
January	9
February	9
March	9
April	9
May	9
June	7
July	13
August	16
September	9
October	10
November	10
December	10
Total nights	104

1. In determining care percentage issues, it is not the Tribunal’s function to conduct an analysis to determine with absolute precision the pattern of care being had by a particular parent. The legislation outlined above requires the Registrar, and the Tribunal on review, to determine the “pattern or likely pattern” of care being had by a parent at the relevant time.

2. There is no evidence that the care calendar evidence provided by the father is not consistent with the care arrangement in place since the date of registration of the child support case. The Tribunal therefore finds on the basis of the care diary provided by the father that Mr Colvin’s pattern of care was 104 nights per annum (28%), noting that section 54D of the Act states that a percentage of care is rounded down if less than 50%. Therefore, pursuant to subsection 50(2) of the Act, the Tribunal determines that the mother has 72% and the father 28% care of the child from 6 August 2021 and not before.

3. In the Tribunal’s view, the Agency’s decision to find that the date of effect of its care decision is 10 April 2015 (the date of separation) is in error. The Social Services and Child Support Division has consistently held the view that the legislation does not permit the Agency, or this Tribunal, to make a care percentage decision for a period prior to the registration of the administrative assessment. Applying this reasoning to this review, the Agency simply did not have jurisdiction to determine the care percentages of the children from a date earlier than 6 August 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Howorth has 72% care and Mr Colvin 28% care of [the child] from 6 August 2021.