Dyson and Marsden (Child support)

[2019] AATA 1690

Dyson and Marsden (Child support) [2019] AATA 1690 (22 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC015458

APPLICANT:  Ms Dyson

OTHER PARTIES:  Child Support Registrar

Mr Marsden

TRIBUNAL:Member F Hewson

DECISION DATE:  22 May 2019

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision that from 9 August 2018 Ms Dyson’s percentage of care of the child was 14% and Mr Marsden’s percentage of care was 86%. The date of effect of the decision is 9 August 2018.

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 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. Ms Dyson and Mr Marsden are the parents of a daughter aged 16 (the child), in respect of whom there is a child support assessment. This application is about the percentages of care for the child used in the child support assessment from 9 August 2018.

2. From 1 July 2008 the Department of Human Services – Child Support (the Department) recorded that Ms Dyson had a percentage of care of the child of 0% and Mr Marsden had a percentage of care of 100% (the existing care).

3. On 9 August 2018, Mr Marsden applied to the Department for a child support assessment in respect of the child. In his application Mr Marsden indicated that Ms Dyson had a percentage of care of the child of 5% and he had the remaining care. On 24 August 2018 the Department accepted the application on that basis.

4. Ms Dyson lodged an objection to the care decision and on 24 October 2018 an objections officer considered the matter and disallowed the objection.

5. On 20 November 2018, Ms Dyson lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 26 February 2019. Ms Dyson spoke to the tribunal by conference telephone. Mr Marsden also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Dyson and Mr Marsden, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child.

7.Section 54A of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:

(1)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.

(2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

(3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.

(4)This section does not limit section 50, 51, 53B or 54.

1. The issues for the tribunal to determine in this case are:

   ·Should there be a change to the percentages of care in respect of the child used in the child support assessment for the relevant period? And if so,

   ·What percentages of care should be used? And

   ·What is the date of effect of the change?  

CONSIDERATION

1. A determination of a percentage of care for a child is made under sections 49 and 50 of the Act, if the Registrar is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care.

2. In this case the objections officer determined under section 50 that at the date of his application for a child support assessment Mr Marsden had a pattern of care of the child and that his percentage of care was 95%. It was also determined under section 50 that Ms Dyson’s percentage of care was 5%.

3. The tribunal discussed the care arrangements with the parties at length at the hearing. Ms Dyson said she had compiled the dates she had care of the child based on her calendar, where recorded the child’s name and a smiley face. She agreed that her calendar may include some dates on which the child visited but did not stay overnight, but said she was confident that most dates were for overnight stays. Ms Dyson noted that on some occasions the child stays late in the evening before returning to Mr Marsden. Ms Dyson said the care arrangement is flexible. She believes her calendar is accurate, and the child was in her care on 75 days, which is about 20% of the time.

4. Mr Marsden indicated that he arrived at the amount of 5% for Ms Dyson’s care of the child, as stated in the application for a child support assessment, based on his impressions. He said Ms Dyson’s care is not regular. He disputed some of the dates recorded by Ms Dyson. The child never stays overnight with Ms Dyson on a Sunday. Ms Dyson conceded that the child may not have stayed with her overnight on the Sundays. Mr Marsden said he has gone back through his own records, on his phone, and identified dates on which he believes the child was in Ms Dyson’s overnight care. On the basis of these records Ms Dyson had overnight care of the child 12% of the time. The tribunal noted that neither party had specifically kept records of the overnight care of the child, because they did not anticipate that that information would be required, and asked Mr Marsden whether the actual care might be somewhere between the 12% in his calendar and the 20% in Ms Dyson’s. It noted that if Ms Dyson was determined to have 14% of the care of the child, she would be assessed on the basis that she meets 24% of the costs of the child. Mr Marsden conceded that the records of both his and Ms Dyson’s care of the child may not be 100% accurate. He noted, however, that since August last year Ms Dyson’s care has been reduced. Ms Dyson conceded that she didn’t have any care in August 2018, but said she expects her care this year to be similar to last year.

5. The tribunal considered the available evidence, including the evidence of the parties at the hearing. It is clear from the evidence of both parties that Ms Dyson’s care of the child is flexible and does not follow a particular pattern. This is not unusual in the case of older teenagers, particularly where the parents, as in this case, generally allow the child to choose where they stay. The tribunal was not persuaded that either parent’s record of the care of the child, assessed having regard to the 12 months before Mr Marsden made his application for a child support assessment, was an accurate reflection of the overnight care of the child. It was of the view, as put to the parties during the hearing, that the percentage of care over that period was likely somewhere between the 12% based on Mr Marsden’s records and the 20% based on Ms Dyson’s records, and is the best indicator of the care and the likely pattern of care in the care period from 9 August 2018 to 8 August 2019. Whether that has subsequently changed is not a matter that is before the tribunal.

6. The tribunal concluded, based on the evidence relevant to the original decision, that in the care period from 9 August 2018 to 8 August 2019 the child was likely to be in Ms Dyson’s care for nights equivalent to a care percentage of 14%, and Mr Marsden was likely to have the remaining care. This applies to each day in the child support period, commencing from 9 August 2018, in accordance with section 54B of the Act.

DECISION

The tribunal decided to set aside the decision under review and substitute its decision that from 9 August 2018 Ms Dyson’s percentage of care of the child was 14% and Mr Marsden’s percentage of care was 86%. The date of effect of the decision is 9 August 2018.