Dowson and Murnan (Child support)

[2022] AATA 3080

Dowson and Murnan (Child support) [2022] AATA 3080 (20 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023970

APPLICANT:  Mr Dowson

OTHER PARTIES:  Child Support Registrar

Ms Murnan

TRIBUNAL:Senior Member J Longo

DECISION DATE:  20 July 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Dowson had a percentage of care of 25% for [Child 1] and Ms Murnan had a percentage of care of 75% for [Child 1] from 20 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – parents living under the same roof - 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. Ms Murnan and Mr Dowson are the parents of [Child 1]. No child support assessment was in place prior to 17 March 2022.

2. On 17 March 2022, Ms Murnan made an application to Services Australia – Child Support (Child Support) to register for child support and reported that the care for [Child 1] was 100% to her and 0% to Mr Dowson from 2 September 2021.

3. Child Support accepted this application on 24 March 2022, acknowledging the start of the care arrangement as being 20 December 2021, which was to take effect from a child support perspective from 17 March 2022 (the date of the application to Child Support).

4. On 24 March 2022 Mr Dowson objected to the original decision, stating that the care of [Child 1] was equally shared as they were living under one roof. On 18 May 2022, Child Support disallowed the objection.

5. Mr Dowson requested a review of the decision with the Tribunal on 26 May 2022. On 20 July 2022, Mr Dowson and Ms Murnan spoke to the Tribunal via conference telephone and gave sworn evidence. In making its decision, the Tribunal took into consideration the documents provided by Child Support (104 pages). Copies of these documents were provided to both parents prior to the hearing.

CONSIDERATION

1. The issues which arise in this case are:

   ·      What is the correct level of care to be attributed to the parents? and

   ·      What is the effective date of the care determination?

2. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act). Sections 7A, 25, 49 and 50 of the Act provide for new care decisions to be made. Section 25 stipulates that an application for a new care decision can only be made if “the applicant is not living with the other parent as his or her partner on a genuine domestic basis”. Section 7A states that the new care period commences on the date of application for assessment.

3. The Child Support (Registration and Collection) Act 1988 (the Registration Act) allows a person who is entitled to receive child support, under section 30 of the Registration Act, to register a registrable maintenance liability on the Child Support Register. The Child Support Registrar is then required to make a decision to refuse or accept an application. Once accepted, a determination of the particulars of the assessment is made to determine the child support payable.

4. Ms Murnan made such an application to Child Support on 17 March 2022. In the application, Ms Murnan stated that she and Mr Dowson stopped living together on 25 May 2021. Mr Dowson was contacted by Child Support on 22 March 2022 and confirmed that he and Ms Murnan separated on 25 May 2021 and continued living under one roof. The Tribunal also notes that [Child 1] was born  [in] September 2021. The documents provided by Child Support show that the application on 17 March 2022 was accepted by Child Support on 24 March 2022 and Child Support accepted that the date of separation was 25 May 2021.

10.Mr Dowson’s evidence to the Tribunal, however, was that he and Ms Murnan only separated two or three weeks prior to 17 March 2022 and that prior to this date they were still in a relationship and trying to reconcile the relationship. He stated that prior to their separation, they shared the care of [Child 1]. Mr Dowson stated that after they separated under one roof, he still continued to provide care for [Child 1], including feeding, changing, bathing and playing with her, as well as putting her down to sleep and sharing chores and cooking. He stated that although he was working, usually between 8.30-9am until 5-5.30pm he was still caring for [Child 1] before he went to work and when he arrived home. He stated that he usually works five to six days per week, but would usually collect his daughter [Child 1] from day care. Mr Dowson stated that [Child 1] was also attending day care on Mondays and, on occasion, another day, but Ms Murnan would drop her off and collect her. Mr Dowson stated that he was the primary income earner and was paying for groceries, fuel and utilities. He stated that he has recently moved out and is no longer living under one roof with Ms Murnan and he is trying to implement contact with [Child 1].

11.Ms Murnan told the Tribunal that [Child 1] usually went down between 5.15-6.15 each night, and usually slept through until the morning. She stated that on the odd occasion, Mr Dowson would change [Child 1] in the evening. Usually, she would get [Child 1] up in the morning and on occasion, Mr Dowson would give her a bottle, usually 2 to 3 times in the morning. On occasion, he would change her in the morning as well. She stated that on occasion Mr Dowson might bath [Child 1] and put her down if he came home early. Ms Murnan stated that if Mr Dowson was not working on the weekend, he was spending time with his other daughter. She stated that he would often go to the gym when he came home of an evening, usually for several hours. Ms Murnan confirmed that Mr Dowson was paying for groceries and utilities but stated that she was on maternity leave until recently and was paying towards the mortgage.

12.Section 50 of the Act requires a determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

13.The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act).  The government policy in this regard, as set out in 2.2.1 of the Child Support Guide (the Guide) and followed by Child Support, provides that a care period is generally assumed to apply for the subsequent 12‑month period, unless otherwise advised.

14.The Tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the Tribunal’s hearing – and evidence as to care for this period is not likely to be relevant – save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the Tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate. The term “pattern of care” is not defined in the legislation. The Tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

15.Care is usually determined on the basis of the overnight arrangements in place. However, other factors can also be taken into account. These include such things as:

·      To what extent the person has control of the child, including having overall responsibility for the child and making:

o   major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and

o   arrangements for others to meet the needs of the child (delegated care).

·      To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities.

16.In this matter, it is clear that Ms Murnan and Mr Dowson were separated under one roof while providing care of [Child 1]. The Tribunal notes that [Child 1] is not of an age where she is able to provide for her own needs, such as feeding and toileting, and is therefore more reliant on both parents for the provision of all of her care needs. Accordingly, the Tribunal has determined that these other factors should be considered in determining the care.

17.The Tribunal finds that Ms Murnan was providing the majority of care for [Child 1], including during the day when Mr Dowson was at work. Nonetheless, Mr Dowson was contributing to the care of [Child 1] when home before and after work, and on occasion on weekends. In addition, Mr Dowson was also contributing to the costs associated with the care of [Child 1], such as food and utilities. Ms Murnan was also contributing to these costs, through payments of the outstanding mortgage. In taking account of all of these factors, the Tribunal has determined Ms Murnan’s care amounts to 75% of the care of [Child 1], or approximately 18 hours per day, and Mr Dowson’s care of [Child 1] amounts to 25% of the care, or approximately 4 hours per day.

18.The Tribunal also notes that Mr Dowson stated he and Ms Murnan were not separated until just before Ms Murnan contacted Child Support to register a registrable maintenance liability regarding [Child 1]. However, this assertion was in contrast to his statements to Child Support at the time. Ms Murnan stated that they were separated prior to March 2022 and did not agree with the date stated by Mr Dowson. The Tribunal finds that there is insufficient evidence to be satisfied, on the balance of probabilities, that Mr Dowson and Ms Murnan were living with the other parent as his or her partner on a genuine domestic basis until 17 March 2022 when Ms Murnan contacted Child Support. Accordingly, the Tribunal has determined the care percentages for [Child 1] of 25% to Mr Dowson and 75% to Ms Murnan from 20 December 2021.

19.The Tribunal notes that the care may have changed since this decision, as Mr Dowson is no longer living under the same roof with Ms Murnan. It is unclear whether this information has been conveyed to Child Support and it does not appear that further care determinations have been made. The legislation allows for the revocation of the existing care determination and a new care determination to be made from the date care changed, or the date Child Support was notified, depending on the circumstances of the matter. Any care changes since the application on 17 March 2022 would be a new determination of care and the Tribunal is unable to consider a subsequent care determination as the decision is not properly before the Tribunal, in that, no objection decision has been made by Child Support.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Dowson had a percentage of care of 25% for [Child 1] and Ms Murnan had a percentage of care of 75% for [Child 1] from 20 December 2021.