Coombes and Bostock (Child support)

[2023] AATA 4007

Coombes and Bostock (Child support) [2023] AATA 4007 (9 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026053

APPLICANT:  Ms Coombes

OTHER PARTIES:  Child Support Registrar

Mr Bostock

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  9 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 9 October 2022 and a new care determination is made to reflect that Mr Bostock has 10% care and Ms Coombes has 90% care of the child [Child 1] from 10 October 2022.

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 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 Bostock (the father) and Ms Coombes (the mother) are the parents of one child, [Child 1] (the child). There has been a registered assessment with Services Australia − Child Support (Child Support) in place since 3 February 2022. From the date of registration the care record reflected that the father had 4% care and the mother 96% care of the child.

2. This application concerns the child’s care from 10 October 2022.

3. On 10 October 2022 the father notified Child Support that there was a change in the child’s care arrangements from that date, whereby he would have 28% care and the mother 72% care, as he would be caring for the child two and a half days per week.

4. On 11 December 2022 Child Support refused to amend the care record.

5. On 13 January 2023 the father objected to the decision. On 17 April 2023 the objection was allowed, whereby the care record was amended to reflect that the father had 14% and the mother 86% care of the child.

6. The mother sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 3 May 2023.

7. The matter was heard on 15 September 2023. The mother and father appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The Tribunal also considered the documentation provided by Child Support (folios 1 to 206) and additional documents provided by the mother (marked folios A1 to A35).

8. The matter was deferred to allow the father further time to provide evidence of his contemporaneous care records. At hearing he stated that it was sufficient to provide him until close of business on 18 September 2023 to provide these documents. The mother requested 14 days to consider the father’s additional documents and provide written submissions in response.

9. The father provided further documents on 18 September 2023 (marked folios B1 to B11). These documents were exchanged with the mother and on 4 October 2023 the mother provided a response (marked folios A36 to A38), a copy of which was provided to the father.

10. The Tribunal reached its decision on 9 October 2023.

ISSUES

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

2. The issue which arises in this case is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

1. Relevant to this matter, section 50 of the Act requires a decision maker to be satisfied that a person has had or is likely to have a pattern of care, by reference to a care period, and then determine the person’s percentage of care during that care period. That percentage of care must correspond with the actual care of the child that the person had, or is likely to have, during that care period.

2. The father’s statements to Child Support can be summarised as follows. He emailed the mother in August 2022 advising that he intended to care for the child two nights per week. He had three consecutive weeks of care from 10 October 2022, being 10, 17 and 24 October 2022. On 15 November 2022 he advised Child Support that his care would usually be a Sunday and Monday night or a Monday and Tuesday night. He also stated that he would refuse to provide supporting evidence in the same contact.[1] The child then went on a three-month exchange program to [Country 1]. His understanding is that because he had three weeks of care in a row this constitutes a change to the pattern of care. In March 2023 the father advised Child Support that he and the child agreed that going forward he would provide care on Wednesday and Thursday nights.

   [1] At folio 44

3. The father’s evidence at hearing can be summarised as follows. At the time he made the care notification he planned to have two nights care per week. He had thought it would either be Sunday/Monday nights or Monday/Tuesday nights and has always “endeavoured” to have the child two nights per week. However, he now accepts given the child’s age and commitments that was “not working that well” and there is “no consistency”. He would be satisfied for the care record to reflect that he has one night of care per week ongoing. He confirmed that there is no set arrangement as to care; even this morning, he asked the child to just pick a regular day that they could spend time together. He makes himself available on Thursday nights, but this often changes based on his daughter’s health and availability. He considered that 44 nights care per annum “sounds about right” but stressed that the mother has proved to be an impediment in the child having regular contact with him. There is “always something” that impacts on his care, such as the child being unwell, or wanting to stay overnight at a friend’s home and so he has been unable to have his regular weekly care despite always making himself available. As he now cares for his elderly mother from Sundays to Tuesdays he cannot risk contracting an illness, so allows the child to stay with her mother when she is unwell. He wishes that the child would commit to certain nights. However, he is not willing to insist as this is not the type of father he wishes to be. If the mother does not agree with one day a week he “will increase it to two”. He finds the whole situation incredibly frustrating, as he wants to spend as much time as he can with his daughter.

4. The father denied the veracity of the mother’s 2022 care record which reflects that he had no care of the child in January and February 2022. He said that such a suggestion that he would go two months without seeing the child is both “insulting and incorrect”. He certainly would not go a week without seeing her as this would make him “depressed”; if he did not see the child every Thursday he would “be crying”. That the mother asserts otherwise is completely false. He relies on his emails to Child Support, which he states represent a contemporaneous account of his care. He was adamant that he had provided care emails for the periods April to September 2023 but could not explain why they were not part of the Child Support documents. Instead, he would provide his contemporaneous care records post hearing. Unfortunately, as he dropped his mobile phone in a toilet, he cannot retrieve his text messages between him and the child which would support his care calendar, though it may be possible for him to download his older messages. Further, as he paid half of the exchange program fee for the child to go to [Country 1], in addition to child support whilst she was overseas, he feels that there was “double-dipping”. He confirmed that he did not provide any financial support to the child or her carers whilst she was in [Country 1]. However, he did speak to the child at least twice a week whilst she was in [Country 1].

5. The mother’s testimony can be summarised as follows. The father has had inconsistent care of the child for a long time. In mid-October 2022 the property settlement was completed. This allowed the father to move from the former marital home. Since then, she has done what she can to support the child spending time with the father. She has left the arrangements between the child and father as she has not had direct contact with the father since 2021. She refutes the suggestion that the child was regularly unwell. She states that from January 2022 until September 2023 her recollection was that only four or five nights of planned care did not eventuate due to the child being unwell.

6. The mother asserts that whatever care period is determined, the father’s care is never more than 14% per annum. She has kept a meticulous care record and this demonstrates that the father’s care is sporadic and so asserts there is no pattern of care at all. She asserts that whilst the child was in [Country 1] (from 28 October 2022 to 20 January 2023) she provided care of the child, in that she liaised with the exchange parents, was the point of contact, remained in regular contact with the child and provided pocket money. In support of her contention, she has provided two letters from the maternal grandmother confirming the care as stated below by the mother and a copy of her care calendars.[2] The Tribunal gave little weight to the unsworn statements from the maternal grandmother, given her relationship with the mother.

   [2] At folios A17, A25 to A35

7. The following table reflects each parent’s submissions regarding the father’s overnight care:

Mother’s care calendar[3]	Father’s care calendar[4]
January 2022	0
February 2022	0
March 2022	10, 11, 12
April 2022	10, 11, 12, 13, 14
May 2022	0
June 2022	12, 26, 27, 28 and 29
July 2022	0
August 2022	0
September 2022	19, 20, 21
October 2022	10, 19 and 24	10, 16, 17 and 24
November 2022	0	0
December 2022	0	0
January 2023	28 and 29	28 and 29
February 2023	15, 27 and 28	6, 7[5] and 28
March 2023	8, 9, 16, 23 and 24	8, 9, 16, 23 and 24
April 2023	8, 16, 17 and 18	8
May 2023	18 and 29	18[6] and 29[7]
June 2023	8, 15 and 24	0
July 2023	7, 20 and 27	20 and 27[8]
August 2023	10 and 19	0
Total nights	43	19

[3] At folios 130, A19 to A20 and A22 to A24

[4] Consistent with his submissions to Child Support and as clarified at hearing, noting that he did not provide a care record for the period January to September 2022

[5] At folio 115

[6]  At folio B9

[7] At folio B9

[8] At folio B9

1. At hearing the parents were questioned about the discrepancy in the October 2022 record; the mother states that the father had care on 19 October and the father 16 and 17 October. The father advised Child Support in writing on 2 March 2023 that he considered that he had care on 16 and 17 October 2022 as he drove the daughter to and from a sleepover with a friend.[9] At hearing the father stated that he simply could not recall the October 2022 care given the passage of time. As to the April 2023 records, he stated that he would be surprised if had missed four days of care in the month, but otherwise did not contest the mother’s care record. Similarly, he thought that the care of the child in June 2023 was accurately recorded by the mother, stating that at that time it was “decreasing to one night a week”. He also thought the mother’s August 2023 care record was correct, though stressed that this was largely because the child was sick.

   [9] At folio 115

2. The Tribunal prefers the mother’s contemporaneous care record over the statements provided by the father. In fact, her care record is largely beneficial to the father as it indicates that he had more care that he had declared. By way of example, he did not provide any statements as to the care that he provided the child in June or August 2023 and the mother states that he had three more nights of care in April 2023 than the father claimed. Even if the Tribunal were to accept that the father had care of the child on 16 and 17 October 2022 by virtue of simply transporting her to and from a sleepover (which it does not) the father still does not have regular care of the child.[10] Further, despite testifying that he did keep his own contemporaneous record of the child’s care, and after being provided with the opportunity to provide this post hearing, no such record was forthcoming. The Tribunal concludes that the father did not keep such a record. After testing the veracity of the mother’s care calendar at hearing, the Tribunal is satisfied that it accurately records the child’s actual care from 1 January 2022 to 31 August 2023.

   [10] Regular care is defined in subsection 5(2) of the Act as having care for a child during a care period of at least 14% but less than 35%.

3. Further, whilst the Tribunal acknowledges that there is no statutory definition of care, after taking into consideration the factors suggestive of care as outlined in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 the Tribunal is satisfied that the mother had care of the child whilst she was undertaking the exchange program in [Country 1], during the period 28 October 2022 to 20 January 2023. The Tribunal reached this conclusion even though both the mother and the father equally met the cost of the exchange program ($4,000 each) and the father spoke to the child once or twice a week whilst she was away. Nevertheless, whilst the child was overseas the mother liaised with the child’s carer,[11] remained in regular contact with the child, provided pocket money for incidentals and the cost of excursions,[12] as well as gave permission for the child to undertake such activities.[13] However, even if this period is disregarded (that is, if it was determined that the child was not in either parent’s care from 28 October 2022 to 20 January 2023) the father’s care is still below 14% when calculating either his care prior to the exchange program and after the exchange program (six nights care from 1 September to 27 October 2022 = 10% care and 24 days of care from 21 January to 31 August 2023 = 10% care).

   [11] At folios 83 to 84

   [12] At folios 62 to 82

   [13] At folio 58

4. The Tribunal concludes that from 10 October 2022 the father had 10% care of the child. Having reached this conclusion, the Tribunal has no doubt that the father sincerely wants to have regular weekly care with the child. However, it appears that his notification of the change in care was aspirational rather than reflective of the actual care arrangements. Certainly, there is no discernible pattern of care and the father expressed his frustration on this being the case.  

5. The Tribunal has determined that there was a change to the care arrangements from 10 October 2022, as reported by the father, whereby he would have 10% care of the child.  However, application of this care percentage means that his care remains within the ‘less than regular care’[14] category and so attracts the same cost percentage of 0%, as did his care under the determination already in place.

   [14] >

   Thus, the requirements for mandatory revocation under sections 54F and 54G of the Act are not satisfied. However, section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions are met. The Tribunal finds that section 54H of the Act is met. While revoking the existing care determination will not make a difference to the cost percentage, in the interests of keeping the Child Support records accurate, the Tribunal considers it is appropriate to revoke the existing percentages of care under section 54H of the Act. The Registrar became aware of the care change within 28 days of the change, and so the date of revocation is 9 October 2022, pursuant to paragraph 54H(3)(a) of the Act.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 9 October 2022 and a new care determination is made to reflect that Mr Bostock has 10% care and Ms Coombes has 90% care of the child [Child 1] from 10 October 2022.