Guthrie and Benbrook (Child support)

[2023] AATA 838

Guthrie and Benbrook (Child support) [2023] AATA 838 (28 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024847

APPLICANT:  Mr Guthrie

OTHER PARTIES:  Child Support Registrar

Ms Benbrook

TRIBUNAL:Member M Douglas

DECISION DATE:  28 February 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Guthrie’s percentage of care for [the child] is 45% and Ms Benbrook’s percentage of care for [the child] is 55%. 

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. Mr Guthrie and Ms Benbrook are the parents of [the child]. On 11 July 2022 Ms Benbrook applied to Services Australia – Child Support (hereafter Child Support) for an administrative assessment of child support to be issued for [the child]. Upon that occurring, Child Support was required, in accordance with section 50 of the Child Support (Assessment) Act1989 (the Act), to determine the percentage of care that Mr Guthrie and Ms Benbrook each had of [the child].  The percentages were required to correspond with the actual care that Mr Guthrie and Ms Benbrook each had of [the child] during a care period.  A care period is stipulated to be such a period as Child Support considers to be appropriate having regard to all the circumstances. 

2. On 1 August 2022 Child Support notified Mr Guthrie and Ms Benbrook that it had determined care percentages for [the child] of 61% for Ms Benbrook and 39% for Mr Guthrie.

3. On 11 August 2022 Mr Guthrie lodged an objection with Child Support regarding that determination.  On 14 October 2022, Child Support disallowed his objection. 

4. Mr Guthrie has now applied to the Tribunal for review of that objection decision.

5. The Tribunal conducted an audio hearing of Mr Guthrie’s application on 28 February 2023 using the Microsoft Teams platform. Both Mr Guthrie and Ms Benbrook participated and both gave affirmed oral evidence. No-one from Child Support participated, which is customary, but in accordance with its obligation under section 37 of the Administrative Appeals Tribunal Act 1975, Child Support provided the Tribunal with a copy of its file relating to its objection decision.  That comprised 120 pages and was received into evidence by the Tribunal. Child Support also provided a copy of that file to Mr Guthrie and Ms Benbrook. 

6. Mr Guthrie and Ms Benbrook also provided the Tribunal, before the hearing, with several documents that were also received into evidence.  Mr Guthrie’s documents were marked A1–A135, and Ms Benbrook’s documents were marked B1–B171. 

7. The Tribunal has had regard to the oral evidence of Mr Guthrie and Ms Benbrook and to the documentary evidence just outlined. 

CONSIDERATION

1. Mr Guthrie and Ms Benbrook separated on 18 November 2020.  Mr Guthrie works as [an Occupation 1] and Ms Benbrook as [an Occupation 2].  Mr Guthrie’s roster requires him to work 4 consecutive days, starting with 2 day shifts that each commence at 8am, and then 2 night shifts which each conclude at 8am.  This 4-day roster is then followed by 4 days off.

2. The oral evidence of both Mr Guthrie and Ms Benbrook was that they came to an arrangement to share the care of [the child] such that, save for those periods throughout the year when either Mr Guthrie or Ms Benbrook take recreational leave and travel away from their respective residences, Mr Guthrie will have care of [the child] commencing shortly after he concludes his final night shift on his roster until the evening before he commences his next day shift.  At all other times, again with the exception of those periods during which either Mr Guthrie or Ms Benbrook have travelled away during their recreational leave, [the child] will be in the care of Ms Benbrook. 

3. The evidence of Mr Guthrie and Ms Benbrook was that [the child] will be delivered to the other by whichever of them has concluded their time with [the child].  It was also their evidence that there is some flexibility regarding the time at which they will drop [the child] to the other but generally it is such that Mr Guthrie will have care of [the child] from 9am on the morning that he concludes his roster until 4 or 5pm on the day preceding his commencing his next roster.

4. Hence, for those periods during which both Mr Guthrie and Ms Benbrook are not travelling away during their recreational leave, Mr Guthrie will have care of [the child] for 6 nights a fortnight and Ms Benbrook will have care of [the child] for 8 nights a fortnight. 

5. The evidence of Mr Guthrie and Ms Benbrook was also that when each of them takes recreational leave and travels away from their respective residences, that parent will have extended care of [the child] during that time.  From Mr Guthrie’s perspective, that enables him to take [the child] to Cairns to visit his parents and extended family.

6. Mr Guthrie’s evidence was that he travels to Cairns for 12 days at a time and stays 11 nights.  He said that since separation he had travelled to Cairns 6 to 7 times.  Ms Benbrook did not dispute that.

7. Ms Benbrook’s evidence was to the effect that she travels away from her residence for the purposes of holidays for approximately a fortnight each year.

8. As the Tribunal understood the evidence of Mr Guthrie and Ms Benbrook that arrangement has been in place since they separated, although if circumstances required, there was some variation to suit the particular circumstances.

9. Based on that evidence it seems to the Tribunal that in any particular year Mr Guthrie is likely to have care of [the child] for 166 nights and Ms Benbrook have care of [the child] for 199 nights.  The Tribunal calculates that on the basis that for all but 2 fortnights in the year, when Mr Guthrie will likely take recreational leave and travel to Cairns, he would have care of [the child] on 6 nights a fortnight, amounting to 144 nights a year, and during the 2 fortnights in which he travels to Cairns, he would have care of [the child] for 22 nights.  Ms Benbrook has care of [the child] on all the remaining nights of the year.

10. Child Support based its determination of Mr Guthrie’s and Ms Benbrook’s percentages of care of [the child] on what it computed would be the nights that each of them would have care of [the child].  More will be said shortly about whether its calculation was correct, but Mr Guthrie’s case was that Child Support ought to have based its calculation on the hours that [the child] was in his care rather than the nights.  He submitted that his overall cost in caring for [the child] would be the same or similar to Ms Benbrook’s overall cost.  He referred to paragraph 2.2.1 of the Child Support Guide which lists various factors that Child Support will consider when determining the level of care that a parent provides for a child.  Several matters are therein listed including the extent to which a parent pays for the cost of meeting the needs of the child and the extent to which a parent otherwise provides financial support for the child. 

11. There is no requirement under the Act that percentages of care be assigned by reference to particular aspects of care: P v Child Support Registrar [2015] FCA 116 at [89]. Apportioning percentages of care between parents is not an exact science. A precise calculation is often not possible: P v Child Support Registrar [2015] FCA 116 at [88].

12. Subsection 54A(1) of the Act permits Child Support, and consequently the Tribunal in its place, to work out the actual care that a parent has of a child based upon the number of nights the child is in the parent’s care.  Whilst that method is not mandatory, the Child Support Guide instructs at paragraph 2.2.1 that generally the number of nights a parent cares for a child will be the best measure of the parent’s percentage of care.  The Guide instructs that there may be occasions where counting the nights in care does not accurately reflect the care of the child and in such cases, at the request of a parent, the number of hours of care may be calculated for each carer so as to determine the pattern of care of the child and convert that into a care percentage.

13. The Tribunal does not consider that this is a case where the percentages of care should be based on the hours of care that Mr Guthrie and Ms Benbrook respectively provide for [the child].  There is no cogent evidence to support Mr Guthrie’s contention that he and Ms Benbrook each provide equal financial support for [the child].  Indeed, it seems to the Tribunal that it is likely the cost of [the child]’s accommodation, and cost associated with that, such as the costs of utilities, would be the largest cost involved with the care of a child of [the child]’s age and given that [the child] spends more time within Ms Benbrook’s abode than Mr Guthrie’s abode, Ms Benbrook probably would spend more in caring for [the child] than Mr Guthrie.  Further, the cost of provisions such as clothing and meals for [the child] would also likely be borne between Mr Guthrie and Ms Benbrook in proportion to the time that [the child] spends with each of them. 

14. Consequently the Tribunal considers, as Child Support did, that the actual care of [the child] that Mr Guthrie and Ms Benbrook each have of her ought to be worked out based on the nights that [the child] is likely to be in each of their care. 

15. As indicated at the outset, Child Support considered that was to be likely 39% to Mr Guthrie and 61% to Ms Benbrook.  However, noting the analysis above as to what likely care that Mr Guthrie has had and Ms Benbrook has had of [the child] from the date of their separation and what is likely to continue, that calculation is wrong.  In other words, it is likely, based on the evidence of the parties, that Mr Guthrie will have care of [the child] for 45% of the time and Ms Benbrook for 55% of the time.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Guthrie’s percentage of care for [the child] is 45% and Ms Benbrook’s percentage of care for [the child] is 55%.