Gibbon and Gibbon (Child support)

[2022] AATA 734

Gibbon and Gibbon (Child support) [2022] AATA 734 (22 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/AC022883 and 2021/AC023002

APPLICANTS:  Mr Gibbon and Ms Gibbon

OTHER PARTIES:  Child Support Registrar

Ms Gibbon and Mr Gibbon

TRIBUNAL:Member P Jensen

DECISION DATE:  22 February 2022

DECISION:

The decision under review is set aside and, in substitution:

• Ms Gibbon is recorded as providing 61% care for [Child 1] with effect from 30 June 2021 and Mr Gibbon is recorded as providing 39% care for [Child 1] with effect from 8 September 2021; and

• Ms Gibbon is recorded as providing 65% care and Mr Gibbon is recorded as providing 35% care for [Child 1] with effect from 8 September 2021.

(The second decision to record Mr Gibbon as providing 35% care with effect from 8 September 2021 overrides the first decision to record him as providing 39% care with effect from 8 September 2021.)

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

1. Ms Gibbon and Mr Gibbon are the parents of [Child 1]. By way of background, the Child Support Agency (“the CSA”) recorded Ms Gibbon as providing 86% care and Mr Gibbon as providing 14% care for [Child 1] from May 2019.

2. On 8 September 2021, Mr Gibbon reported a change in care from 18 August 2021. The CSA subsequently decided to record Ms Gibbon as providing 58% care and Mr Gibbon as providing 42% care with effect from 18 August 2021. Ms Gibbon promptly objected to that decision. The objections officer concluded that the change in care occurred on 21 January 2021, at which point Ms Gibbon started providing 65% care and Mr Gibbon started providing 35% care. The objections officer decided to record Ms Gibbon as providing 65% care with effect from 21 January 2021 and to record Mr Gibbon as providing 35% care with effect from 8 September 2021. The different dates of effect were the result of the delay in reporting the change in care and the application of the child support legislation which is discussed below.

3. Both parents applied to the Tribunal for further review. I heard the matter on 22 February 2022. Both parents gave sworn evidence by conference phone. The hearing went for an unusually long time. Both parents acknowledged that they had not kept contemporaneous records of their care of [Child 1]. Both parents provided copies of text messages in an attempt to identify particular nights of care, but they both acknowledged that the text messages were often inconclusive, particularly given that they were an incomplete record of the parents’ broader communications concerning their provision of care. At the end of the hearing I was left with the impression that both parents had honestly recalled events as best they could, but inconsistencies remained and neither parent could identify any further evidence that could be provided to resolve the inconsistencies. Nevertheless, a decision needed to be made and the parents were best placed to identify the broad patterns of care that had been provided, and they were able to do so.

4. In broad terms, the parents agreed that a change in care occurred in mid-2021. It is convenient to focus on Mr Gibbon’ provision of care; Ms Gibbon has always provided the balance of care. On Ms Gibbon’ account of events, Mr Gibbon’ pattern of care at that time increased to five nights per fortnight. On Mr Gibbon’ account of events, his pattern of care at that time increased to six nights per fortnight. They both agreed that since (at least) 8 September 2021, Mr Gibbon has been providing five nights of care per fortnight. Ultimately, the parents agreed that it would be fair to conclude that the mid‑2021 change in care occurred on 30 June 2021, at which point Mr Gibbon started providing eleven nights of care every two fortnights, and that pattern of care continued until 8 September 2021 when he started providing five nights of care every fortnight. I consider the parents’ agreement on those issues to be the best available evidence.

5. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Relevantly, decision-makers are required to determine the pattern of care that each parent has provided, or is likely to provide, during the appropriate care period: sections 50 and 54F of the Act. In this case, an appropriate care period is 30 June 2021 to 7 September 2021. During that period Ms Gibbon provided 17 / 28 = 60.7% care and Mr Gibbon provided 11 / 28 = 39.3% care. Percentages higher than 50% are rounded up to the nearest whole percentage and percentages lower than 50% are rounded down to the nearest whole percentage: section 54D of the Act. It will be recalled that Ms Gibbon was recorded as providing 86% care and Mr Gibbon was recorded as providing 14% care from May 2019. The change in care that occurred on 30 June 2021 was not reported within 28 days of its occurrence, and the decrease in Ms Gibbon’ percentage of care to 61% therefore has effect from the day on which the change in care occurred, i.e. 30 June 2021, and the increase in Mr Gibbon’ percentage of care to 39% care therefore has effect from the day on which the change in care was reported, i.e. 8 September 2021: sections 54B and 54F of the Act.

6. The second change in care occurred on 8 September 2021, which was also the day on which it was reported. Ms Gibbon will be recorded as providing 9 / 14 = 64.3% care, rounded up to 65% care, and Mr Gibbon will be recorded as providing 35% care, with effect from 8 September 2021.

DECISION

The decision under review is set aside and, in substitution:

• Ms Gibbon is recorded as providing 61% care for [Child 1] with effect from 30 June 2021 and Mr Gibbon is recorded as providing 39% care for [Child 1] with effect from 8 September 2021; and

• Ms Gibbon is recorded as providing 65% care and Mr Gibbon is recorded as providing 35% care for [Child 1] with effect from 8 September 2021.

(The second decision to record Mr Gibbon as providing 35% care with effect from 8 September 2021 overrides the first decision to record him as providing 39% care with effect from 8 September 2021.)