Comerford and Stansby (Child support)
[2022] AATA 4005
•12 October 2022
Comerford and Stansby (Child support) [2022] AATA 4005 (12 October 2022)
DIVISION:Social Services & Child Support Division
REVIEW NUMBER: 2022/MC024347 and 2022/MC024351
APPLICANT: Ms Comerford
OTHER PARTIES: Child Support Registrar
Mr Stansby
TRIBUNAL:Member A Schiwy
DECISION DATE: 12 October 2022
DECISION:
The decisions under review are affirmed.
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 affirmed
CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist – 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
Ms Comerford and Mr Stansby are the separated parents of [Child 1] who is two years old. This application is about the level of care provided for [Child 1].
The parents separated in late 2020 and an application for a child support assessment was made with Services Australia (‘Child Support’) on 6 April 2021. On 13 April 2021 Child Support decided to register the case from 6 April 2021 and determined that Ms Comerford had 64% care of the child and Mr Stansby had 36% care.
On 10 September 2021 Mr Stansby objected to the care percentages used and on 12 November 2021 an objections officer decided to allow the objection, deciding that Ms Comerford had 58% care of the child and Mr Stansby had 42% care. The objections officer also decided that the date of effect of the care decision was 10 September 2021.
On 28 July 2022 Ms Comerford applied to this tribunal for an independent review of the objections officer’s care decision.
A hearing into the application for review was held by the tribunal on 12 October 2022. Ms Comerford participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.
When Mr Stansby was contacted immediately prior to the commencement of the hearing he informed a tribunal officer that he had work commitments preventing him from attending the hearing. The tribunal noted that Mr Stansby was informed of the hearing on 12 September 2022 and reminded by text message on 11 October 2022. The tribunal decided to proceed with the hearing without Mr Stansby attending.
The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975. A copy of the papers was provided to the parents prior to the hearing.
CONSIDERATION
The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.
The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked.
In this matter the Registrar must determine the actual care of the child; or the likely care during the ‘care period’ commencing from the start of the child support assessment (in accordance with section 50 of the Assessment Act).
When Ms Comerford lodged her claim for child support, she stated that she had 64% care of the child and Mr Stansby did not dispute the level of care when the case registration was discussed with him.
Ms Comerford based her care percentage on the hours the child was with each parent. She stated in her application that Mr Stansby picked up [Child 1] at 5.00 pm Sunday and returned her to Ms Comerford at 7.30 am Wednesday.
Mr Stansby has submitted that the care percentage should be based on nights in care; as he has three nights per week the care percentage should be 58%/42%.
It is not disputed by the parents that Mr Stansby picks up [Child 1] in the late afternoon on Sundays and drops him back with Ms Comerford on Wednesday mornings.
Ms Comerford stated at the hearing that [Child 1] is in childcare two days a week, Tuesdays and Thursdays, and Mr Stansby pays for both days even though he does not have care of the child on Thursdays.
Section 50 of the Assessment Act allows for the determination of a parent’s percentage of care in a care period. Subsection 54A(1) of the Assessment Act provides that:
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.
While section 54A of the Act says that care may be determined by the number of nights a person has care of a child during a care period, the Act does not preclude care being determined by a method other than nights in care. Child Support’s policy on when determining care by other than by nights is appropriate states, in the Child Support Guide at 2.2.1:
Care other than in nights
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.
…
Ultimately, the determining of a percentage of care does not have to be attended with precision or by accounting for expenses incurred. In the case of Watanabe & Watanabe (SSAT Appeal) [2010] FMCAfam 94, Federal Magistrate Slack, as he then was, stated at paragraph [22]:
The Assessment Act does not prescribe the matters or factors that ought to be taken into account in how to assess the percentage of care. The discretion, though, ought to be exercised within the framework provided by the Act, in particular, the objects of the Act (s.4 of the Assessment Act). I do not though consider that this exercise should become an exercise in mathematical accounting. The nature of the consideration is not capable of precision because the costs of children is not confined to their daily needs nor are those costs uniform across the year (and the Assessment Act recognises that fact).
Ms Comerford submitted that hours of care accounting for the time the child was in her care during the daytime is more appropriate because on Sundays she was more likely to do things with the child, and therefore the daily expenses were more expensive. The tribunal noted that the child is very young and both parents have care of the child when they are not working.
After considering the evidence the tribunal decided that the number of nights in care is the best measure of the care provided in this case and there is no compelling reason to contemplate a different approach.
The tribunal therefore decided that the care percentage should be 58% for Ms Comerford and 42% for Mr Stansby, based on Mr Stansby having the child in his care for three nights per week.
Date of effect
Mr Stansby lodged his objection on 10 September 2021, around five months after the original decision was made. Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act) states that in such a case, where an objection is allowed, or allowed in part, the date of effect is the date the person lodged the objection.
However, an application can be made under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing the applicant from lodging the objection on time.
In the Child Support Guide, at chapter 4.1.8, the Registrar sets out the policy for determining if special circumstances exist and states:
In considering special circumstances the Registrar will look at the particular circumstances of the applicant. The applicant must show that their particular circumstances prevented them from lodging an objection within the required timeframe. They must explain why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the period in which to lodge an objection, in order for the objection decision to have effect from an earlier date. Some examples of special circumstances may include:
·the parent was seriously ill or had an accident that stopped them from lodging an objection
·the parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property
·the parent had communication difficulties, including isolation, illiteracy or poor English-language skills
·the parent reasonably relied upon inaccurate or misleading information.
Mr Stansby told Child Support that he did not realise that the assessment was based on hours and did not take into account that he had the child in his care for three nights out of seven.
The tribunal did not think that Mr Stansby’s ignorance of how the care percentage was determined was a special circumstance that prevented him from lodging his objection earlier and therefore the date of effect (for child support purposes) is 10 September 2021.
DECISION
The decisions under review are affirmed.
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