Crowley and Utton (Child support)

[2018] AATA 5035

Crowley and Utton (Child support) [2018] AATA 5035 (20 December 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC014908

APPLICANT:  Mr Crowley

OTHER PARTIES:  Child Support Registrar

Ms Utton

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  20 December 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Utton’s and Mr Crowley’s care percentages are 65% and 35% respectively, with effect in the child support assessment from 15 February 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – care in accordance with court orders – different care arrangements in alternating years – appropriate care period – 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 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. The applicant father seeks review of an objection decision made by the CSA on 8 August 2018. This decision allowed the mother’s objection to an original decision dated 23 May 2018 and determined care percentages of 66% to the mother and 34% to the father should continue to be reflected in the child support assessment. The original decision had determined care percentages of 64% and 36% respectively.   

2. A hearing was conducted on 20 December 2018. I heard affirmed evidence by phone from both parents and had before me a copy of documents provided by the parties.

CONSIDERATION

1. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care percentage 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 CSA makes point-in-time care percentage 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 CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the original decision and what was likely to happen thereafter? It is not the Tribunal’s task in this application to assess care in retrospect, taking account of actual care to the date of hearing.

2. Here, court orders governing care were made on 20 July 2017. The evidence is that, for the most part, the orders were complied with. In general terms, the parents agreed the father’s care under the orders was four nights per fortnight during school terms and half the school holidays. The CSA was assessing care percentages of 66% to the mother and 34% to the father when, on 15 February 2018, he notified of an increase to his level of care. This led to the original decision in his favour and, subsequently, the objection decision in the mother’s favour.

3. At hearing, the father’s case was that the court orders made slightly different provision as to care in the changeover from mid-term holidays to the resumption of school term, depending on the particular year. So, for example, in even-numbered years, such as 2018, the mother would have the first seven nights of mid-term holiday care and he would then have care from the second Friday night until the resumption of school. In this way, despite the orders stating each parent was to have half the care in mid-term holidays, he had at least three additional nights in the changeover from the end of the mid-term holidays to resumption of school. Indeed, given pupil free days or mid-term holidays of more than two weeks, he may have as much as six additional nights of holiday care in this context. These increases in 2018 formed the basis for the father’s claim of additional care.

4. The mother evidence was that she had not interpreted the orders in the manner the father had. So, for example, he had the first seven nights of care in the September/October 2017 school holidays, she then had the next seven nights after which she returned the children to the father’s care. This was not the father’s view, although he did not raise this until later on. He told me he did not do so at the time because he wanted to maximise his time with the children. The mother agreed that the father had the additional nights of care he claimed at the end of the April 2018 holidays. She also agreed he had an additional five nights of care over the Easter period in early April 2018. She considered the original assessment of 66% to her and 34% to the father to be appropriate.

5. The father notified of an increase to his care in February 2018. Looking only at the 2018 calendar year, on his approach to mid-term holiday care, a slight increase can be seen. However, he accepted that the mother would have the benefit of a similar increase in 2019. The parents told me that this changeover issue had been resolved by more recent court order; however, my task is to assess the actual or likely pattern of care as at the point of the original decision in May 2018. More recent court orders as to care are therefore not strictly relevant.

6. In my view, the critical issue here is to determine the appropriate care period, by reference to which to assess the pattern of care, in the circumstances of this case. The CSA’s policy is to usually assess care over a 12 month period. That approach would suggest a care period of the 2018 calendar year, which would accord with what that father says he was told by the CSA and recognise the court orders’ different provisions for odd and even-numbered years. 

7. However, on closer reflection, the orders specifically provide for each parent to have care for “half of all mid-term school holidays”. Taking into account the father would have some additional care in 2018 referable to mid-term holidays and the mother would have a corresponding increase in 2019, I have decided it is appropriate here to assess the pattern of care by reference to a two-year care period, from the start of 2018 to the end of 2019. In this way, the general intent of the court orders is better reflected.

8. The result is the father’s increased care referable to mid-term holiday care in 2018 is balanced by a similar increase for the mother in 2019. The children go to a private school, and so have an additional two weeks of summer holidays compared with public schools. The evidence suggests there are also a few additional days in some mid-term holidays (July 2018, for example). In the circumstances, I consider it appropriate to assess 29 weeks of holiday care over the two years. This equates to 203 nights of which I allocate 102 to the father. For the 75 weeks of school term, at effectively two nights per week, the father would have an additional 150 nights of care. To this total should be added the additional five nights for Easter 2018: 102 + 150 + 5 = 257. Since Easter is likely to fall within mid-term holidays in 2019, no similar increase for 2019 is included. As a care percentage, 257/730 = 35%.               

9. A care percentage of 35% results in a change to the father’s cost percentage in the child support assessment. It follows there should be a change to his care percentage to 35%, with effect in the child support assessment from notification on 15 February 2018.   

10. Should either parent consider the more recent court orders result in a further change to this assessment of care percentages, they should contact the CSA in that respect.      

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Utton’s and Mr Crowley’s care percentages are 65% and 35% respectively, with effect in the child support assessment from 15 February 2018.