Manifold and Manifold (Child support)

[2019] AATA 1214

Manifold and Manifold (Child support) [2019] AATA 1214 (9 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC015787

APPLICANT:  Mr Manifold

OTHER PARTIES:  Child Support Registrar

Ms Manifold

TRIBUNAL:Member J Longo

DECISION DATE:  09 April 2019

DECISION:

The Tribunal affirms the decision under review.

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. Mr Manifold and Ms Manifold are the parents of [Child 1], [Child 2] and [Child 3]. Mr Manifold is the parent liable to pay child support. The tribunal notes that child support is subject to private collect.

2. On 13 September 2018 the Department of Human Services – Child Support (the Department) had determined that Ms Manifold had a percentage of care of 86% for [Child 1], [Child 2] and [Child 3] and Mr Manifold had a percentage of care of 14% from 8 August 2018.

3. Ms Manifold disagreed with the decision of the Department and objected on 14 September 2018, stating that Mr Manifold’s care of the children was less than 52 nights per annum.

4. On 27 November 2018 the Department partly allowed the objection and determined that Ms Manifold had a percentage of care of 87% for [Child 1], [Child 2] and [Child 3] and Mr Manifold had a percentage of care of 13% from 8 August 2018.

5. On 18 January 2019 Mr Manifold lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 April 2019. Mr Manifold and Ms Manifold spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department, which were also sent to Mr Manifold and Ms Manifold. Additional information provided by the parties to the tribunal was also exchanged.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1], [Child 2] and [Child 3]?

1. Mr Manifold stated that there were no Court orders or parenting plan in relation to the care of [Child 1], [Child 2] and [Child 3]. The arrangements entered into by the parties were based on Mr Manifold’s and Ms Manifold’s oral agreement. Mr Manifold stated that he had the children for half the school holidays (six weeks per annum) and would also have care of the children during the school term. Mr Manifold stated that he had the children in his care for about 14 nights while in [City 2] in addition to the school holidays.

2. Mr Manifold stated that his parents’ have a second property and he would stay there with the children. Mr Manifold stated that in May 2018 he cared for the children for three nights in the matrimonial home while Ms Manifold was away for work. The other times, he cared for the children while staying at his parents’ property. He didn’t always have all three children in his care, there were occasions where he had two children or just one child, however he had all three children in his care for at least 52 nights.

3. Mr Manifold stated that he did not keep any records of the days the children were in his care as he did not think it was necessary. He stated that while he was based in [City 1], he was flying to [City 2] to see the children. On occasion he would fly to [City 2] when returning from work, rather than [City 1], but more often it was specifically to see the children. Mr Manifold provided flight itineraries for the children which show the children travelling to [City 1] and also a statutory declaration of [Mr A], confirming that Mr Manifold stayed at his house and that he had the care of the children. The statutory declaration also states that [Mr A] was not always present at the house as he was working [in occupation].

10.Ms Manifold confirmed that the children had been in Mr Manifold’s care for half of the school holidays. Ms Manifold also confirmed that Mr Manifold had the care of the children in the matrimonial home from 17 May 2018 to 20 May 2018 as stated by Mr Manifold. In relation to the additional days, Ms Manifold stated that Mr Manifold did not have all three children for an additional 14 nights as stated by Mr Manifold. Ms Manifold stated that the children were in her care during school nights and Mr Manifold would have seen the children only on weekends. If Mr Manifold saw the children after school, he would return them to her care.

11.Ms Manifold stated that she did not keep a record of Mr Manifold’s care during the period but kept SMS messages between them of the arrangements of care when he was in town, and this was the information provided to the Department.

12.The tribunal notes that apart from the agreement of the parents regarding the care arrangements during school holidays and for three days in May 2018, there is no agreement as to additional care of the children. While it is acknowledged that there was care of the children, there was no agreement as to which children and that the care was overnight care. The tribunal also notes that there were no records of care of the children and that neither parent kept records of their care of the children. Ms Manifold has provided some text messages regarding arrangements for care and Mr Manifold provided a statutory declaration but the tribunal is of the view that this information, due to its lack of specificity as to overnight care arrangements, does not assist.

13.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

14.It is uncontroversial that Mr Manifold had care, or was likely to have care, of the children for six weeks of the school holidays. In addition, it is also not in dispute that Mr Manifold had care of the children for three days in the matrimonial home in May 2018.

15.The tribunal is required to consider what the actual care Mr Manifold and Ms Manifold have had or are likely to have of [Child 1], [Child 2] and [Child 3] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case the Department determined that the care period should start on 22 January 2018. However, the Department was not contacted until 8 August 2018. In the absence of other evidence, the tribunal determines that on the balance of probabilities the care provided by Ms Manifold was 87% for [Child 1], [Child 2] and [Child 3] and that Mr Manifold had a percentage of care of 13% from 8 August 2018. This is based on the care of the children during school holidays and the additional days of care in May 2018.

16.The tribunal cannot be satisfied of any additional care Mr Manifold had of the children during the period. The evidence provided to substantiate additional care of the children does not support a positive finding that Mr Manifold had more than 52 nights of care of the children from 22 January 2018. Mr Manifold has not kept any records of his care arrangements with the children. The third party evidence provided, in the form of a statutory declaration does not provide any detail and clarity as to any additional care Mr Manifold had of the children, apart from the agreed dates discussed above. In addition, Mr Manifold’s evidence of when he had the children and which children were in his care was too unclear to enable the tribunal to make a positive finding that he had more than 52 nights of care of the children from 22 January 2018.

17.In the circumstances, the tribunal determines that the care provided by Ms Manifold was 87% for [Child 1], [Child 2] and [Child 3] and that Mr Manifold had a percentage of care of 13%, effective from 8 August 2018 and affirms the decision under review.

DECISION

The Tribunal affirms the decision under review.