Essington and Corben (Child support)

[2020] AATA 3677

Essington and Corben (Child support) [2020] AATA 3677 (9 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019159

APPLICANT:  Ms Essington

OTHER PARTIES:  Child Support Registrar

Mr Corben

TRIBUNAL:Member J Longo

DECISION DATE:  9 July 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Essington has a percentage of care of 64% for [Child 1] and 71% for [Child 2] and Mr Corben has a percentage of care of 36% for [Child 1] and 29% for [Child 2] with effect from 1 August 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – pattern of care from start of child support case – decision under 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.Mr Corben and Ms Essington are the parents of [Child 1] and [Child 2]. Mr Corben is the parent liable to pay child support. On 9 December 2019 the Department of Human Services – Child Support (the Department) accepted a child support assessment application by Ms Essington. As part of the particulars of the assessment, the Department determined that Ms Essington had a percentage of care of 64% for [Child 1] and 71% for [Child 2] and Mr Corben had a percentage of care of 36% for [Child 1] and 29% care for [Child 2] with effect from 1 August 2019.

2.On 18 December 2019, Mr Corben objected to the Department’s determination of care, stating that he had equal shared care of [Child 1] and [Child 2].

3.On 6 May 2020, the Department allowed the objection and determined that Mr Corben had a percentage of care of 50% for [Child 1] and [Child 2] and Ms Essington had a percentage of care of 50% from 1 July 2017 with effect from 14 January 2020.

4.On 1 June 2020, Ms Essington lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 July 2020. Mr Corben and Ms Essington spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (153 pages), which were also sent to Ms Essington and Mr Corben. The tribunal also considered the information provided by Mr Corben (A1 to A3), which was exchanged with both parties and provided to the Department.

CONSIDERATION

5.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1] and [Child 2]?

6.It is not in dispute that Ms Essington applied to the Department on 20 November 2019 to register her application for child support. In making this application, Ms Essington stated in the application that her care of [Child 1] was 64% and her care of [Child 2] was 71% and that Mr Corben had 36% care of [Child 1] and 29% care of [Child 2] from 1 August 2019. Mr Corben stated to the tribunal that there were no court orders or parenting plans in relation to the care of [Child 1] and [Child 2] and that the care of the children was arranged between them with the children alternating on a weekly basis between Ms Essington and Mr Corben when they first separated in October 2016. However, this was no longer the case when she applied to the Department for the collection of child support.

7.Ms Essington stated that the care changed on or about March 2017 due to Mr Corben’s overseas travel until July 2017. During this period the children were in her care and then in December 2017 until approximately March 2018, the children were in Mr Corben’s care due to Ms Essington being unwell. Ms Essington stated that while the children were with Mr Corben, they also resided with her friend during this period. Ms Essington submitted that the children’s time was equally split between her friend and Mr Corben while Mr Corben stated that they occasionally spent time with Ms Essington’s friend. The exact division of the children’s time from December 2017 to March 2018 is not material to the decision before the tribunal.

8.Ms Essington stated that when she applied for collection of child support with the Department, she provided a calendar of the children’s care to the Department[1]. She told the tribunal that the calendar was created from her diary entries, where she had recorded the care arrangements for the children when they occurred. While Ms Essington was unable to state the exact date the care reduced from shared care, it certainly had reduced when she made her application for child support to the Department. Ms Essington stated that the evidence provided by Mr Corben was incorrect as he has included time spent with the children as care even when he did not have overnight care. She stated that Mr Corben had provided a card sent by her to the children, indicating that the card was written in December 2019 while the children were in his care. Ms Essington stated that the card was given to the children in September 2019, prior to Ms Essington travelling to [a named location] between 7 September and 17 September 2019.

[1]Page 35 of the subsection 37(1) Statement and Documents.

9.Mr Corben confirmed at the hearing that there were no formal care arrangements in place for the children: no court order or parenting plan. He confirmed that the care had been equally shared from October 2016 and that for the periods stated by Ms Essington, the children had spent time exclusively with each parent due to holiday and illness. Mr Corben’s view was that care returned to shared care after these periods some time in 2018. The tribunal referred Mr Corben to the calendars provided to the Department. He stated that these were created from text messages and some diary entries which indicated he had care of the children. Mr Corben conceded that these were not contemporaneously recorded at the time the care occurred. Mr Corben stated that [Child 2] decided in mid-November 2019 not to see him but this only lasted for about a week and the care returned to shared care after this period. He stated that between approximately 25 September 2019 and 21 October 2019, the children were either on school camp ([Child 1]) or on holiday and spent their time predominately with Ms Essington during this period. Mr Corben conceded during the hearing, based on Ms Essington’s evidence, that the card was sent earlier than he had thought it was sent.

10.It is not in dispute that Ms Essington applied for an administrative assessment of child support on 20 November 2019, which was granted by the Department on 9 December 2019. The tribunal is satisfied that Ms Essington meets the requirements under the Act for her application for an administrative assessment of child support to be granted. In determining the particulars of the administrative assessment, the Department must make a determination in relation to the level of care of a child (or children), which is the subject of the application.

11.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. In Ms Essington’s application, she stated that her and Mr Corben’s care of [Child 1] and [Child 2] was that [Child 1] was 64% in her care and that [Child 2] was 71% in her care and that Mr Corben had 36% care of [Child 1] and 29% care of [Child 2]. Accordingly, the Department made a decision to register the application for an administrative assessment on 9 December 2019, and determined the care, with effect from 1 August 2019, as specified by Ms Essington in her application to the particulars of the assessment.

12.The tribunal is required to consider what care for Mr Corben and Ms Essington was intended for [Child 1] and [Child 2] at the time of the application. The records provided by Ms Essington show that week about care was not occurring in August 2019 and onwards from this date, but rather, she had greater care of both children. Ms Essington’s calendar was prepared from the contemporaneous records she kept of the care of the children in her diary. Mr Corben stated that his calculation of care was reconstructed from messages and some diary notes. He had also relied upon a card written by Ms Essington that the children were in his care in December 2019 but concedes it was not the case. The tribunal has determined that the record of care as provided by Ms Essington is preferred, on the balance of probabilities, as providing a more accurate record of the actual care of the children from August 2019.

13.Accordingly, the tribunal has determined that the care of [Child 1] and [Child 2] should be determined as Ms Essington having 64% care of [Child 1] and 71% care of [Child 2] and Mr Corben having 36% care of [Child 1] and 29% care of [Child 2] with effect from 1 August 2019 as originally determined by the Department.

14.The Tribunal notes that Ms Essington notified the Department on 27 January 2020 that the care of [Child 1] and [Child 2] would return to equal shared care from the start of term I of school in 2020. This change in care, has not been given effect by the Department, given they have recorded the care as equal shared care from an earlier date. Accordingly, if the care has returned to equal shared care from the start of the first term of school, such a change in the care can be considered by the Department and a new determination could be made, if the Department is so satisfied, from the date such a change commenced. It is not open to the tribunal to make such a further determination of care in this matter as this decision is not before the tribunal.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Essington has a percentage of care of 64% for [Child 1] and 71% for [Child 2] and Mr Corben has a percentage of care of 36% for [Child 1] and 29% for [Child 2] with effect from 1 August 2019.