Mair and Mair (Child support)

[2018] AATA 4894

Mair and Mair (Child support) [2018] AATA 4894 (26 October 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/HC014843

APPLICANT:  Ms Mair

OTHER PARTIES:  Child Support Registrar

Mr Mair

TRIBUNAL:Member A Schiwy

DECISION DATE:  26 October 2018

DECISION:

The decision under review is affirmed.

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 affirmed

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. Ms Mair and Mr Mair are the separated parents of [Child 1] (nine years old) and [Child 2] (five years old).  This application for review is about the respective percentages of care that each parent has for the children.

2. The child support case was registered in February 2017 and the Department of Human Services (“Child Support”) made a care determination that each parent had 50% care of the children.

3. A court order issued on 29 November 2017 providing for 50/50 care of the children.

4. On 9 January 2018 Mr Mair contacted Child Support requesting a change in care and stated that since 1 October 2017 that there had been a gradual increase in the amount of time he had the children in his care, despite the subsequent court order, and he now had 57% care of the children.

5. On 14 February 2018 Child Support decided that there had been a change in care and determined that Ms Mair had 43% care and Mr Mair had 57% care from 1 October 2017 with the date of effect being 9 January 2018. 

6. On 27 February 2018 Ms Mair objected to the care decision and on 8 June 2018 the objection was disallowed. 

7. On 20 August 2018 Ms Mair applied to this tribunal for an independent review of the objections officer’s decision.    

8. A hearing into the application for review was held by the tribunal on 26 October 2018 in Hobart.  Ms Mair attended the hearing in person and Mr Mair participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

9. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsections 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 186.   At the hearing Ms Mair also provided additional documentation (A1 to A4).  Mr Mair did not have the opportunity to see the A documents prior to, or at, the hearing.

EVIDENCE

1. Both parents provided calendars setting out care. 

2. Mr Mair provided Child Support with a calendar from 1 August 2017 to 31 December 2017 and from 1 January 2018 to 15 March 2018 (up to the time of the Child Support review).  For the period 1 August 2017 to 31 December 2017 he recorded he had [Child 1] for 90 nights and [Child 2] for 86 nights (out of 153 nights).  The first two months showed 50/50 care and then in October 2017 Mr Mair recorded having the children for 18 nights and in November and December he recorded having the children for 21 nights.  Over the 74 nights from 1 January 2018 to 15 March 2018 he has recorded that he had the children for 47 nights (Ms Mair had them for 27 nights).

3. Ms Mair provided a calendar from 1 January 2018 to 30 June 2018 and at the hearing provided a calendar from 1 July 2018 to 31 October 2018. 

4. For the period 1 January 2018 to 15 March 2018 she has recorded that she had the children for 35 nights (Mr Mair for 39 nights).

5. For the period 1 January 2018 to 31 October 2018 Ms Mair has recorded that she will have had the children for 155 days (it was noted that she has recorded care for 26^th to 28^th October 2018 but Mr Mair was to have them those nights).

6. Ms Mair stated the following:

   ·The parents lived under the same roof for about a year after separating.

   ·When the family home was sold in August 2017 they lived separately and agreed to 50/50 care.

   ·This worked for a little while but Mr Mair wanted extra time and she would reluctantly agree.  He would communicate this through the children.  This went on for about a month and then court orders issued.  She said that since the court orders issued, it has been 50/50 care. 

   ·Ms Mair then said that after the court orders issued, her lawyer wrote to Mr Mair as he had been taking the boys for extra days in contravention to the orders (Ms Mair may have meant that care was 50/50 after the mediation interview that was held in August 2017 and then Mr Mair started having extra time.)  Since the letter was sent from her lawyer, Mr Mair has been following the court orders.

   ·She sometimes had the children for more time due to Mr Mair’s work.

   ·She has no family support in [a city] and if she is ill, she relies on Mr Mair to look after the children.  Although Mr Mair has looked after the children on occasion, when she was meant to have the children, she did not think he would raise this as an issue for child support.  Mr Mair’s family looks after the children for him sometimes.

   ·The calendar she provided to Child Support was filled in about a month at a time, partly from memory and partly from using her work diary (to work out when she had shifts).  After a few months she started to write down when the agreed timetable for care was not being followed.

   ·In closing, Ms Mair stated that Mr Mair continually asks for extra time but was not honest about his intentions.  He has sent her texts seeking full custody.  He knows she does not have any family support.

7. Mr Mair started that:

   ·Ms Mair moved out of the marital home [in] July 2017.

   ·He has kept a record of his care of the children in his personal diary on a daily basis ever since.  The calendar provided to child support was completed using this diary.

   ·He and Ms Mair had agreed to 50/50 care but he often had them more, particularly on weekends, because the children preferred to stay with him.

   ·He encourages the children to keep to the 50/50 arrangement.

   ·Ms Mair would often ask him to care for the children when it was her turn due to illness or because she had extra work shifts.  For example, Ms Mair was meant to be looking after the children the weekend following the hearing but she decided to stay in [another city] and asked him to look after them.

   ·According to his personal diary, from 1 January 2018 to 31 October 2018 Mr Mair will have had the children for 175 nights and Ms Mair will have had them for 125 (58/42% care).

8. Ms Mair and Mr Mair were asked to consider some specific days where their diaries conflict.  Mr Mair was able to look up his diary and give detailed information about what happened.  For example, on 16 July 2018 Ms Mair stated she had the children but Mr Mair had noted that he took them to Devonport (it was school holidays).  On 16 February 2018 Ms Mair stated she had the children and Mr Mair said there was parent teacher night on the 15^th which Ms Mair could not make because she was working.  He took the children and recalls taking them to [City 1] on Saturday the 17^th and then dropping them off.

9. Ms Mair was not found to be a reliable witness; she had difficulty in recalling events with clarity and she also completed her calendar a relatively long time after the days recorded (up to a month) and this means she would need to rely on her memory.  Her own evidence is that she has no support to assist with looking after the boys.  This would make it reasonable to assume that if she was sick or obtained extra shifts, she would call on Mr Mair to assist.  The tribunal decided that Mr Mair’s calendar is likely to be more accurate given that he writes up his diary daily.

10. After the considering the evidence the tribunal found that:

    ·Both parents intend on having 50/50 care in accordance with the court orders.

    ·In November 2017 and December 2017 Mr Mair started having the children more than 50/50 and then Ms Mair’s lawyer wrote to him about enforcing the court orders that issued in November 2017.

    ·Since then Mr Mair, although only intending to have the children 50/50, has had them for some extra nights due to Ms Mair being unable to care for them.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations, and therefore also of the new determinations, depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, and to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.  In this case the tribunal was satisfied that an appropriate care period would be 12 months as no significant changes are anticipated.

4. In circumstances where many months have passed before the tribunal conducts the review, as in this case, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support, so that a new primary care percentage decision can be considered, and made if appropriate.  

5. The primary decision-maker’s essential task is to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.  It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support.

6. Mr Mair rang Child Support on 9 January 2018 and stated that the pattern of care had been changing.  The evidence provided indicated that this change began in October 2017 when he recorded having the children for 18 nights and then 21 nights in November and December 2017.

7. The tribunal noted that around that time Ms Mair had commenced action, through her lawyer, to have the court order adhered to and so that care would revert to 50/50.   However, given that Ms Mair has no support to assist caring for the children, it was more than likely that Mr Mair would have the children for some extra days but not as much as he had in November and December 2017.

8. The tribunal therefore decided that as at 1 October 2017 the likely pattern of care for the children was 43% for Ms Mair and 57% for Mr Mair.  This would allow for some extra days where Ms Mair was unable to care for the children due to sickness or work.

9. Section 54F of the Assessment Act provides that an existing care percentage decision must be revoked if Child Support is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment of child support.

10. A change in care from 50% to 43% results in a change in cost percentages and therefore the existing care determinations must be revoked.

11. Child Support was notified on 9 January 2018 that the change in care occurred and it has been found that the change occurred on 1 October 2017.  As the notification was not within 28 days from the date the change occurred, the new determination takes effect from 9 January 2018.

12. If the care arrangements change back to 50/50, it is open to Ms Mair to seek a new care percentage determination.

DECISION

The decision under review is affirmed.