Kareford and Kareford (Child support)

[2022] AATA 3370

Kareford and Kareford (Child support) [2022] AATA 3370 (21 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023708

APPLICANT:  Ms Kareford

OTHER PARTIES:  Child Support Registrar

Mr Kareford

TRIBUNAL:Member P Jensen, Presiding Member

Member J Prentice

DECISION DATE:  21 July 2022

DECISION:

The decision under review is varied so that Ms Kareford is recorded as providing 50% care and Mr Kareford is recorded as providing 50% care for [Child 1] with effect from 24 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – decision under review varied

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

Introduction

1. Ms Kareford and Mr Kareford are the parents of [Child 1] who was born in 2006. A child support case was registered with the Child Support Agency (“the CSA”) in 2007. This case concerns a change in the parents’ care of [Child 1] on or around 3 January 2022.

2. By way of background, a change in care occurred on 5 March 2020 when Mr Kareford started providing 100% care. Another change in care occurred on 9 July 2021 when Ms Kareford started providing 100% care.

3. On 5 January 2022, Mr Kareford reported a change in care. The CSA subsequently decided to record each parent as providing 50% care with effect from 3 January 2022. Mr Kareford objected to that decision. An objections officer disallowed the objection. Ms Kareford applied to the Tribunal for further review. The matter was heard on 21 July 2022.

Procedural matters

1. The matter was originally listed for hearing on 22 June 2022. The Tribunal’s usual practice when reviewing child support decisions is to conduct a hearing in which each parent can hear the other parent’s evidence but is not allowed to question the other parent directly: section 26 of the Child Support Review Directions. Ms Kareford refused to participate in such a hearing and the matter did not proceed on 22 June 2022. Such a position by an applicant would normally result in the dismissal of their application for review: subsection 42A(2) of the Administrative Appeals Tribunal Act 1975. However, in the particular circumstances of this case, the Tribunal decided to conduct a “shuttle hearing” whereby each parent would give their evidence separately and the Tribunal would relay each parent’s evidence to the other parent and give them an opportunity to respond. A shuttle hearing was conducted on 21 July 2022. The Tribunal heard firstly from the applicant, Ms Kareford. That part of the hearing proceeded in an orderly manner. The Tribunal then heard from Mr Kareford and it very quickly became apparent why Ms Kareford had refused to participate in a hearing with him. He persisted in interrupting proceedings, even when directed to desist. He used profanities throughout the proceedings, including when he was insulting the Tribunal. If Ms Kareford had been present, Mr Kareford would have been promptly excluded from the remainder of the hearing on the basis of his misconduct. However, given that Ms Kareford was not present, Mr Kareford was allowed to continue. In the Tribunal’s experience, belligerence sometimes wanes. Mr Kareford’s did not.

2. Prior to the hearing on 21 July 2022 it had appeared prudent to note in due course that Ms Kareford should not assume that any future proceedings before the Tribunal would be conducted via a shuttle hearing. However, it now appears more pertinent to note that Mr Kareford should not assume that similar misconduct by him in any future proceedings before the Tribunal would not result in his immediate removal from the remainder of the hearing.

The change in care

1. As noted earlier, Mr Kareford reported a change in care on 5 January 2022. According to the CSA’s file note, he said that [Child 1] was staying with both parents on a week-on-week-off basis. The file note does not state when the change in care occurred.

2. Mr Kareford contacted the CSA again on 14 January 2022. He effectively said that he provided nights of care from 24 December 2021 to 2 January 2022 and from 8 January 2022 to date.

3. The CSA, via a voicemail message and a letter, asked Ms Kareford to contact it about the reported change in care. She did not respond to those requests. Meanwhile, on 3 February 2022, Mr Kareford provided an undated statement from his partner, [Ms A], in which she effectively stated that she had observed Mr Kareford providing the following nights of care: 24 December 2021 to 2 January 2022; 8 January 2022 to 16 January 2022; 19 January 2022 to 23 January 2022; and 30 January 2022 to date.

4. On 7 February 2022 the CSA decided to record each parent as providing 50% care from 3 January 2022. The CSA subsequently noted that there was no evidential basis for concluding that the change in care occurred on 3 January 2022.

5. Mr Kareford objected to the CSA’s decision. He provided a list of his nights of care which, so far as the period to 7 February 2022 is concerned, consisted of the nights listed in [Ms A]’s statement as well as 30 January 2022 to 4 February 2022. He also provided some time-and-date-stamped photographs of [Child 1].

6. Ms Kareford provided calendars on which she had marked Mr Kareford’s nights of care. Relevantly, she provided calendars for December 2021 and February 2022. At the hearing she said she had also provided a calendar for January 2022, but it does not appear in the hearing papers. In any event, she said she had the calendar for January 2022 with her during the hearing and she read out the nights on which she had recorded Mr Kareford as providing care.

7. On 13 May 2022, Ms Kareford provided an undated letter from her father, [Mr B]. He stated that she provided more than 50% care “in the last 12 months”.  On the same day, Ms Kareford provided an undated letter from [Mr C] whom she described as a friend. He said she provided 70% care. Neither [Mr B] nor Mr Webb identified the precise periods over which they had calculated Ms Kareford’s percentage of care. The Tribunal was not assisted by their statements.

8. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). The original care decision was made on 7 February 2022. The original decision-maker was required to determine the pattern of care each parent “has had, or is likely to have,” during the relevant care period: section 50 of the Act. On review, the Tribunal is also required to determine the pattern of care each parent “has had, or is likely to have,” as at 7 February 2022.

9. The Tribunal initially focused on Mr Kareford’s care during December 2021. According to Ms Kareford’s calendar, he provided care on the nights of 27 and 28 December 2021. According to Mr Kareford, he provided care on the nights of 24 to 31 December 2021. In response to the Tribunal’s questions, Ms Kareford said Mr Kareford collected [Child 1] from her house late on 24 December 2021 and she spent the night at his home. Ms Kareford had not marked those details on her calendar. The Tribunal referred to photographs provided by Mr Kareford which suggested that [Child 1] was at his home at 10:55 pm on 26 December 2021 and at 10:58 pm on 31 December 2021. Ms Kareford queried whether the time-and-date stamps were reliable, but she was unable to take the matter further. The Tribunal attempted to question Mr Kareford about the photographs but he interrupted and otherwise avoided the Tribunal’s questions.

10. For the sake of completeness, the Tribunal notes that Ms Kareford stated that Mr Kareford’s nights of care to 7 February 2022 were 24, 26 and 27 December 2021, 10, 11, 12, 19, 20, 21, 22 and 23 January 2022 and 2, 3, 4, 5 and 6 February 2022.

11. Both parents had, at different times, sought review of the original care decision. It will be recalled that when Mr Kareford contacted the CSA on 5 January 2022 he reported a week-about pattern of care. At the hearing, Ms Kareford said [Child 1] had indicated a desire to spend equal time with both parents. Ms Kareford said that as at 7 February 2022, it had been likely that each parent would provide 50% care for [Child 1].

12. At the hearing, Ms Kareford said the change in care occurred on 10 January 2022. Mr Kareford said the change in care occurred on 24 December 2021.

13. The Tribunal finds that Ms Kareford inadvertently omitted to record Mr Kareford’s care on 24 December 2021 on her calendar. Mr Kareford appeared incapable of entertaining the possibility that he might inadvertently make a mistake and he adopted a strategy of interrupting proceedings in order to avoid being questioned about the evidence he had provided. The Tribunal is not persuaded that either parent’s evidence is entirely accurate, but a decision still needs to be made. Given the date on which Mr Kareford reported the change in care, it seems likely that the change in care preceded 10 January 2022. There is no evidence to support the CSA’s conclusion that the change in care occurred on 3 January 2022. The Tribunal finds that it occurred on 24 December 2021.

14. On either parent’s account of events, Mr Kareford was not providing a regular pattern of care; i.e. his provision of care was somewhat ad hoc. There is some evidence that [Child 1], who had just turned 15, was seeking to spend equal time with both parents. The Tribunal concludes that, as at 7 February 2022, it had been likely that each parent would provide 50% care over an appropriate care period, namely the 12-month period starting on 24 December 2021. For those reasons, the decision under review will be varied so that each parent is recorded as providing 50% care from 24 December 2021.

15. As an aside, the CSA’s computer records as at 12 May 2022 show that Mr Kareford was required to pay $83 per annum in child support until the recorded change in care on 3 January 2022 and $42 per annum thereafter. The Tribunal’s care decision will reduce Mr Kareford’s child support liability in respect of the 10 days from 24 December 2021 to 2 January 2022 by approximately ($83 - $42) / 365 x 10 = $1.12.

DECISION

The decision under review is varied so that Ms Kareford is recorded as providing 50% care and Mr Kareford is recorded as providing 50% care for [Child 1] with effect from 24 December 2021.