Curfman and Curfman (Child support)

[2023] AATA 4281

Curfman and Curfman (Child support) [2023] AATA 4281 (6 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026512

APPLICANT:  Mr Curfman

OTHER PARTIES:  Child Support Registrar

Ms Curfman

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  6 November 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Curfman had 33% care of the children [Child 1] and [Child 2] from 13 February 2023; and

• Ms Curfman had 67% care of the children [Child 1] and [Child 2] from 13 February 2023.

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 Curfman (the father) and Ms Curfman (the mother) are the parents of two children, [Child 1] (the son) and [Child 2] (the daughter). There has been a registered assessment with Services Australia − Child Support (Child Support) in place since 13 February 2023 and child support was collected by Child Support from this date.

2. This application concerns the children’s care from 13 February 2023.

3. From the date of registration, the particulars of the assessment reflected that the father had 0% care and the mother 100% care of the children from 27 January 2023, based on a decision made by Centrelink.

4. On 26 March 2023 Child Support made a new care determination, with effect from 10 March 2023, determining that the father had 0% care and the mother 100% care of the children.

5. The father objected to the decision in a timely manner. On 10 July 2023 the objection was partly allowed, whereby the particulars of the assessment were amended to reflect that the mother had 81% care and the father 19% care of the son and the mother had 74% care and the father 26% care of the daughter.

6. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 1 August 2023.

7. The matter was heard on 6 November 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 190). The Tribunal reached its decision on the day of hearing.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and in the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

2. The issue which arises in this case is whether there was a change to the children’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 Child Support case was registered on 13 February 2023. There was also a separate care determination made on 2 October 2023 whereby the children are reflected as being in each parent’s 50% care. Therefore, the specific care period under review is 13 February 2023 to 1 October 2023.

3. The father explained that the reason for his application is twofold. The first is that his care of the children during the period that the parents were separated under the one roof should be reflected as 50%. From 10 March 2023, the date on which he left the former family home, his calculations are that the daughter was in his 37.26% care and the son in his 31.78% care.

What was the care of the children from 13 February 2023 to 9 March 2023?

1. The father’s position is that while he and the mother were living separately under the one roof, the care of the children was shared, particularly as he was contributing to household expenses during that period and spending time with the children.

2. The father was invited to outline his care during this period. His evidence was that during this 25-day period he continued to work on a full-time basis, leaving home at about 8.45 am and returning at 5.15–5.30 pm. During the same period the mother was working one or two days per week in addition to studying. He slept in the lounge room and the kids, finding the living arrangements “uncomfortable”, would keep to themselves. Generally, the mother would prepare their meals and he would eat separately. He estimates that the mother was not at home about two or three nights per week and on those evenings he would prepare meals for the children. Also, on two nights per week he would take the son to his football training. As to the care of the children on weekends, he initially testified that as it was “awkward” he took the daughter to his friend’s home “for a couple of weekends”. When presented with the statement from his friend in evidence[1] which suggests that this took place on only one weekend, the father conceded that he only cared for the daughter on one of the three weekends during this period. On another weekend he went alone to visit family and friends for the duration of the weekend and on the final weekend he spent time outside the home, only returning in the evening.

   [1] At folio 75

3. The mother’s evidence is that during this period she was the children’s primary caregiver. It was she who continued to take them to and from school. She would take them to and from their activities and spent the weekends with them. She also continued to ensure the children’s medical needs were met, including taking the son to a specialist appointment. She stated that at most the father would prepare two of the children’s meals each week and took the son to some, but not all, of his football training sessions. Apart from that, the father would stay in the lounge room and did not spend time with the children in the other sections of the home. She explained that household costs were being met from a jointly held bank account.

4. The Child Support Guide states at section 2.2.1:[2]

   Where parents are separated but living in the same house, the Registrar will determine each parent’s percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.

   [2] >

   After having the benefit of the parents’ testimony the Tribunal is not persuaded that the parents contributed in similar manner to the care of the children during this period. In reaching this conclusion, the Tribunal took into account the generally consistent description of the care arrangements during the weekdays. The father largely kept to the lounge room, where he was sleeping, unless the mother was away from the home. It is apparent that the mother had responsibility for the children while the father was at work (and they were at school) including organising the son’s medical needs and preparation of most of their meals, with the exception of about two nights per week when she was working. Further, the mother had sole care of the son on all weekends during this period and of the daughter on two out of three of these weekends. The evidence suggests that the financial needs of the children were met by joint funds. The Tribunal concludes that the father had about a third of the care of the son and daughter or 33% care during this period.

5. Having regard to all the circumstances the Tribunal is satisfied that, pursuant to subsection 50(1) of the Act, from 13 February 2023 the actual care of the son and daughter is reflected in a care percentage of 33% to the father and 67% care to the mother.

What there a change of care on 10 March 2023?

1. It is not in contention that the father left the former family home on 10 March 2023. The Tribunal finds accordingly.

2. In statements to Child Support and this Tribunal the father explained that it was always his intention that he and the mother would equally share the care of the children from the time that he secured alternate accommodation. However, the mother refused to share the children’s care and instead insisted that they attend mediation. He was only able to secure mediation some months later.

3. In the absence of any agreement between the parents he would speak directly to the children and advise them when he was able to care for them. The children would then decide if they would come into his care. He stated that he kept a contemporaneous care calendar, marking a cross on the dates the children were in his care. Later in the hearing the father stated that he was not aware that nights were the basis on which care was determined; he was first advised of this in April 2023. To the best of his recollection this was the time from which he kept a contemporaneous care calendar, noting the dates prior to this from memory.

4. The mother’s position can be summarised as follows. She kept a contemporaneous care diary because her friends told her to do so. She agreed that there was no agreement as to the care of the children as the father refused to speak to her directly. Instead, he would instruct the children to contact her. In her view this means that there was no pattern of care.  

5. The parents’ testimonies as to the father’s care from 10 March 2023 to 1 October 2023, supplemented by their care calendars,[3] are summarised below:

   [3] At folios 44, 95, 116 to 118 and 126

Mother’s care calendar			Father’s care calendar
[Child 2]	[Child 1]	Month		[Child 2]	[Child 1]
10, 13, 14, 15, 21, 22, 31	14, 15, 21, 22, 31	10 to 31 March 2023		10, 13, 14, 15, 16, 21, 22, 23, 31	12, 13, 14, 21, 22, 23, 31
1, 2, 3, 8, 12, 13, 14, 15, 16, 17, 19	1, 2, 14, 16	April 2023		1, 2, 3, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20	1, 2, 14, 15, 16, 17, 18
3, 12, 14, 15, 16, 17, 29, 30, 31	3, 12, 14, 15, 16, 17	May 2023		2, 3, 15, 16, 17, 29, 30, 31	1, 2, 3, 12, 13, 14, 15, 16, 17
1, 15, 16, 17, 18, 19, 20, 21	2, 3, 4, 5, 6, 19, 20, 21, 22, 23, 24, 25	June 2023		1, 15, 16, 17, 18, 19, 20, 21	2, 3, 4, 5, 6, 19, 20, 21, 22, 23, 24, 25
6, 7, 8, 9, 10, 11, 12, 23, 24, 25, 26, 27, 28	3, 4, 5, 6, 7, 8, 17, 18, 19, 20, 21, 22	July 2023		6, 7, 8, 9, 10, 11, 12, 23, 24, 25, 26, 27, 28	3, 4, 5, 6, 7, 8, 17, 18, 19, 20, 21, 22
7, 8, 9, 10, 11, 12, 13, 14, 15, 31	7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 27, 28, 29, 30, 31	August 2023		7, 8, 9, 10, 11, 12, 13, 14, 15, 31	7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 29, 30, 31
1, 2, 3, 4, 5, 6	1, 3, 12, 13, 14, 22, 23, 24, 26, 27	September 2023		1, 2, 3, 4, 5, 6	1, 2, 12, 13, 14, 22, 27
1 October 2023
64	65	TOTAL NIGHTS		70	68
32%	31%	%		34%	33%

1. It is apparent that there is a great deal of agreement between the parents as to the father’s care of the children during this period. Overall, the Tribunal preferred the mother’s care calendar. When contesting the father’s record, the mother provided specific and convincing details of the events of each date. By way of example, the mother was adamant that the daughter was in her care on 9 April 2023 as it was Easter Sunday and she recalled giving the children their Easter gifts. She refuted the father’s care record as to the son’s care on 12 March 2023 as she recalled being at the “trots” with the daughter and leaving part way through to transport the son to his workplace. As to the care arrangements on 2 September 2023 she explained that the son was to stay overnight with the father. However, she received a telephone call late that evening from police officers asking that she collect the son who was drunk in a public place; she did so, and the child spent the rest of the night in her care. She recalled that the son was in his father’s care on 3 September 2023 (though this was not claimed by the father) as this was Father’s Day. The father did not contest the mother’s recollection on these dates. Further, he conceded that he may have incorrectly recorded the daughter’s care on 16 March 2023; he may have dropped the daughter to the mother’s home that evening.

2. Though the Tribunal found the mother’s evidence more persuasive, it finds that during the period 10 to 11 April 2023 the daughter was in the father’s care notwithstanding the fact that the mother organised and transported the daughter to her paternal grandparents’ home on these nights. Furthermore, the Tribunal finds that it is more likely that the father had care of both children on 23 March 2023.

3. The Tribunal concludes that the father had 32% care of the daughter and 31% care of the son during this period. In any event, whether the Tribunal preferred the mother or the father’s care calendar, both calendars indicate that the father’s care never exceeded the regular care threshold during the period 10 March to 1 October 2023. Regular care is defined in subsection 5(2) of the Act as having care of at least 14% but less than 35%.

4. The requirements for mandatory revocation of a percentage of care determination under sections 54F and 54G of the Act are not satisfied. Subsection 54G(1) permits revocation where at least one parent no longer has regular care. In this case both parents had at least regular care during the care period. Section 54F of the Act states that a new determination can be made, and existing determination revoked, if there is a change to a parent’s level of care that would change their care percentage and their cost percentage. The Tribunal has already determined that the mother had 67% care and the father 33% care of the son and daughter from 13 February 2023. Amending the care record to reflect that the father had 32% care of the daughter and 31% care of the son would not change the cost percentage.

5. 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. In the circumstances, the Tribunal does not consider it is appropriate or necessary to revoke the existing percentages of care under section 54H of the Act. This means that the care percentages of 33% to the father and 67% to the mother in place from 13 February 2023 will remain.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Curfman had 33% care of the children [Child 1] and [Child 2] from 13 February 2023; and
• Ms Curfman had 67% care of the children [Child 1] and [Child 2] from 13 February 2023.