Gereben and Gorman (Child support)

[2021] AATA 2900

Gereben and Gorman (Child support) [2021] AATA 2900 (22 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021300

APPLICANT:  Miss Gereben

OTHER PARTIES:  Child Support Registrar

Mr Gorman

TRIBUNAL:Member M Douglas

DECISION DATE:  22 June 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 8 January 2021 the care percentages for [Child 1] are 39% for Miss Gereben and 61% for Mr Gorman.

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 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. The Tribunal is reviewing, on Miss Gereben’s application, an objection decision a delegate of the Child Support Registrar made on 23 April 2021 by which the care percentages for Miss Gereben and Mr Gorman’ son, [Child 1], were determined to be 22% for Miss Gereben and 78% for Mr Gorman. 

2. The Registrar acts through staff employed within the Government department known as Services Australia-Child Support. The delegate who made the objection decision was such an employee.  It is convenient hereafter to refer to the Registrar as Services Australia and hence a reference to Services Australia in this decision is to be read as a reference to the Registrar.

3. The Tribunal conducted a hearing of Miss Gereben’s application on 22 June 2021.  Miss Gereben and Mr Gorman both gave evidence under oath at the hearing.  The Tribunal has had regard to their evidence and also to the documents the Tribunal received into evidence, comprising the papers Services Australia provided that were relevant to its objection decision (which are paginated 1-145, and hereafter referred to as the hearing papers) and documents Miss Gereben provided (marked A1-40),

CONSIDERATION

1. Subsection 54F(1) of the Child Support (Assessment) Act 1989 (the Act) requires the existing care percentages used in an assessment for a child to be revoked if:

   a.the care of a child that is actually taking place does not correspond with the parents’ respective percentages of care for the child, and

   b.a change to the parents’ percentages of care, so as to reflect the parents’ actual care of their child, would result in a change in the parents’ cost percentages used in the assessment.

2. The existing care percentages for [Child 1] as at 8 January 2021 were 72% for Mr Gorman and 28% for Miss Gereben.

3. On 11 January 2021 Miss Gereben contacted Services Australia and told it that she would be having extra care of [Child 1] over the school holidays and that she expected that would continue.  She estimated to Services Australia that she would be having care of [Child 1] for 153 nights of the year and Mr Gorman would be having care of [Child 1] for 212 nights of the year.  She advised that the \change in [Child 1]’s care took place on 8 January 2021.

4. The evidence of both Mr Gorman and Miss Gereben at the hearing was that until 8 January 2021 [Child 1] generally resided with Mr Gorman with the exception of half of each school holiday period and every second weekend on Friday and Saturday nights when he would reside with Miss Gereben, returning to Mr Gorman’ care at 7pm on Sunday.

5. In the 2020/21 summer school holidays, in accordance with the arrangement they had regarding [Child 1]’s care, [Child 1] resided with Miss Gereben from 27 November 2020, which was the last day of the fourth term of the school at which [Child 1] attended, until Christmas Day, when Mr Gorman collected [Child 1].  It was intended that [Child 1] would stay with Mr Gorman until the conclusion of the school holiday period, which the Tribunal understands from the evidence of Mr Gorman and Miss Gereben was 29 January 2021.  However, it is common ground that [Child 1] decided to return to Miss Gereben’s care on 8 January 2021.

6. In other words, [Child 1] spent around 21 more nights in Miss Gereben’s care in the summer school holiday period than what was expected under the general arrangement that had existed between Miss Gereben and Mr Gorman regarding [Child 1]’s care.

7. Miss Gereben’s evidence was that subsequent to the conclusion of the summer school holiday period [Child 1] stayed with her during the first term of the school year on more nights than every alternate weekend on Friday and Saturday evenings.  Specifically, her evidence was that [Child 1] stayed with her on February 3, 10, 11, 16, 17, 18 and 24 and on 2 March 2021 in addition to the two nights every alternate weekend he stayed in accordance with the general arrangement between her and Mr Gorman, which in that school term were 5 and 6 February, 19 and 20 February, 5 and 6 March and 19 and 20 March. Miss Gereben said that [Child 1] had also stayed with her during the subsequent April school holiday period from Friday evening on 2 April until Wednesday 14 April, when he returned to Mr Gorman’s care. 

8. Miss Gereben said that the reason why [Child 1] was staying with her more often than he did in the past was because his friends live closer to her than Mr Gorman and that he had just commenced casual employment at [a workplace] close to where she resides.  Miss Gereben said that she does not work and consequently she is able to drive [Child 1] to and from his place of work and also to and from his friend’s place.  Miss Gereben also said that [Child 1]’s sister, being Mr Gorman and Miss Gereben’s other child, resides with her most of the time, and [Child 1] staying with her meant he could see his sister more often. 

9. Mr Gorman did not demur to Miss Gereben’s evidence relating to the dates [Child 1] had resided with her subsequent to the summer school holiday period, saying that he could not remember.  He said, however, that he does not expect [Child 1] would stay more than half of the school holidays with Miss Gereben in the coming holiday period because some issues had arisen between [Child 1] and Miss Gereben.  He agreed that [Child 1]’s place of employment and [Child 1]’s friends are nearer to Miss Gereben’s residence, but he said that that was no reason for [Child 1] to want to reside more often with Miss Gereben because if he was unable to drive [Child 1] to work or to his friends, [Child 1] could readily catch public transport.

10. Miss Gereben provided Services Australia with copies of entries from a diary she keeps using an app on her mobile phone.  Her evidence to the Tribunal was that she enters into that diary the days upon which [Child 1] was expected to stay with her in accordance with the general arrangement she and Mr Gorman have.  Further, she said it was her practice that if [Child 1] stays with her nights in addition to those expected nights, she would amend her diary so as to include those nights, and that she made those amendments at the time [Child 1] spent those nights with her. 

11. Her diary relating to the nights [Child 1] stayed with her in February, March and April appear at pages 44-47 and 70-71 of the hearing papers.  They accord with the oral evidence Miss Gereben provided at the hearing with respect to the nights upon which [Child 1] stayed with her over that period.  Noting that Mr Gorman did not cavil with Miss Gereben’s evidence with respect to when [Child 1] stayed with her over those periods of time, given that at the hearing he could not recall what they were, the Tribunal accepts Miss Gereben’s evidence with respect to this matter.  As mentioned, there was no controversy between the parties that [Child 1] stayed additional nights with Miss Gereben during the Christmas school holiday periods.

12. Based on that, the Tribunal considers that in all likelihood [Child 1] will be staying with Miss Gereben for more than half of the nights during each of the school holiday periods and, based upon what happened in the Christmas school holiday period and the April school holiday period, the Tribunal considers in all likelihood the proportion of nights that [Child 1] will stay with Miss Gereben in school holiday periods will be 68%,  That would amount to around 57 nights a year.  Further, the evidence confirms that [Child 1] has continued to stay with Miss Gereben on the Friday and Saturday evenings every alternate weekend during school terms.  That would amount to around 80 nights of the year.  

13. [Child 1] also stayed more nights with Miss Gereben in February and an extra night with Miss Gereben in March and, based on that it seems to the Tribunal that the pattern for [Child 1] would be for him to stay some nights during school terms with Miss Gereben in addition to the standard two nights every alternate weekend.   That said however, noting that whilst [Child 1] stayed six extra nights in February 2021 with Miss Gereben he only stayed one additional night in March, it seems to the Tribunal, based upon that, that going forward the number of additional nights are likely to be infrequent. 

14. Apportioning percentages of care between parents is not an exact science.  A precise calculation is often not possible.[1]  The task involves establishing by what is apparent from the evidence as to what has occurred to date in the care period what is likely to occur for the remainder of the care period.  Necessarily, because it involves a projection of what might occur, that projection might be inaccurate.  If events change, however, with respect to the care of [Child 1], the parties can of course notify Services Australia regarding that further change to seek a further determination of the care percentages based on that change.

    [1] See P v Child Support Registrar [2015] FCA 116 at [88]

15. Adopting a care period of 12 months commencing on 8 January 2021, within which to discern a pattern of care for [Child 1], it seems to the Tribunal that Miss Gereben will have care of [Child 1] for 68% of the nights during school holiday periods plus two nights every alternate weekend during school terms and in all likelihood some additional but infrequent nights during school terms during the course of that care period.  The Tribunal considers, doing the best it can with the evidence, that it is likely those additional nights would be around eight over the course of a care period. 

16. Given the findings of the Tribunal, it seems that [Child 1] will be residing with Miss Gereben in all likelihood for 145 nights of the year in the care period and 220 nights with Mr Gorman.  In other words, he will be staying 61% of the time with Mr Gorman and 39% of the time with Miss Gereben.  Consequently, the Tribunal must set aside the objection decision and determine the care percentages accordingly.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 8 January 2021 the care percentages for [Child 1] are 39% for Miss Gereben and 61% for Mr Gorman.