Marlowe and Dustin (Child support)

Marlowe and Dustin (Child support) [2021] AATA 1277 (9 April 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2020/BC020337
APPLICANT:  Ms Marlowe
OTHER PARTIES:  Child Support Registrar
Mr Dustin

TRIBUNAL:Member J Thomson
DECISION DATE: 9 April 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages to be reflected in the child support assessment as at 15 April 2020 for [Child 1] are 87% care to Mr Dustin and 13% care to Ms Marlowe, and for [Child 2], 100% care to Mr Dustin and 0% care to Ms Marlowe.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether care existed – child in boarding school – 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 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

Ms Marlowe and Mr Dustin are the parents of [Child 1], born 2005, and [Child 2], born 2007 (the children).
On 27 November 2020, Ms Marlowe applied to the Administrative Appeals Tribunal (the Tribunal) for review of an objection decision made by the Child Support Agency (the CSA) on 6 October 2020. This decision allowed Mr Dustin’s objection to an earlier decision of the CSA dated 25 May 2020 to accept Ms Marlowe’s application on 15 April 2020 for an administrative assessment of child support for the children, reflecting the care of [Child 1] as 90% to Mr Dustin and 10% to Ms Marlowe, and the care of [Child 2] is 100% to Mr Dustin and 0% to Ms Marlowe from 1 March 2020 with effect from 15 April 2020.
The objection decision of 6 October 2020 set aside the CSA’s decision of 25 May 2020, and decided to reflect the care for [Child 1] as 100% to Mr Dustin and 0% to Ms Marlowe from 20 December 2017, and the care for [Child 2] as 100% to Mr Dustin and 0% to Ms Marlowe from 1 May 2019.
The Tribunal heard the matter on 2 March 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documents provided by the CSA (Exhibit 1), and documents provided by Ms Marlowe (Exhibit A). Ms Marlowe had copies of these documents with her at the hearing. Mr Dustin did not have copies of these documents with him at the hearing, but was content for the hearing to proceed, notwithstanding he did not have his documents with him.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the CSA makes the point-in-time care decisions on the basis of what has happened up until the change in care is considered, and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent may notify the CSA and a new care determination can be made. However, the legislative test at first instance and on review remains the same: What had happened until the date of the notification and what was likely to happen thereafter?
The issues which arise in this case are:
· The determination of the level of care being provided for the children by each parent as at the date of Ms Marlowe’s application for a child support assessment on 15 April 2020.

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing, and the documents contained in Exhibits 1 and A.
The following facts and circumstances were not in dispute at the hearing.
In January 2017, when Ms Marlowe was living in [Town 1], Western Australia, [Child 1] was enrolled as a full-time student in Year 7 at [School 1] in [Town 1], and [Child 2] was enrolled at the same Senior School in 2019 as a full-time student in Year 7. Statements from the school’s business support officer provided by Ms Marlowe as part of her evidence in Exhibit A confirm those details.
Since January 2018, [Child 1] has been enrolled at [School 2], [Town 2], [in] Queensland, [City 1] [as] a boarding student. A statement from the college’s accounts clerk dated 11 March 2020 contained in the documentation provided by the CSA as part of Exhibit 1 confirms this information.

Ms Marlowe’s evidence

Ms Marlowe cave evidence that while she was living and working in [Town 1], both children were living with her and attending the [School 1], as noted above. She gave evidence that she enrolled [Child 1] as a boarding student at [School 2], [Town 2], commencing in January 2018. Meanwhile, [Child 2] remained at the [School 1] , where she had been enrolled as a Year 7 student from 4 February 2019, until she was transferred to the [School 3] in Queensland, commencing at that school on13 May 2019 until 2 June 2020.
Ms Marlowe said that after [Child 1] went to board at [School 2] in January 2018, she had care of him when he came to stay with her in [Town 1] during the school holidays in 2018 and 2019. According to evidence contained in the airline tickets and flight date in Exhibit 1, [Child 2] went to stay with Mr Dustin in Queensland during her school holidays for various periods in 2018 and 2019.
Ms Marlowe said she returned to Queensland in May 2019 on long service leave with [Child 2], where she resided with various family members in [City 1], [City 2] and [another named city], It was during her stay in Queensland that she said she decided to return to live permanently in Queensland. She returned to [Town 1] in July 2019 to finalise her working arrangements with her [Town 1] employer, returning to Queensland to live permanently in September 2019. While she was in [Town 1] for the period July to September 2019, the children remained in Queensland in the care of Mr Dustin. [Child 1] was still enrolled as a boarding student at [School 2], and [Child 2] was enrolled at [School 3] from 13 May 2019.
Ms Marlowe said the care arrangements for the children being followed by the parents prior to her return to live permanently in Queensland in September 2019 were set out in a Child Support Agreement between her and Mr Dustin. This document was not in evidence before the Tribunal. However, a copy of Final Orders made by consent of the parents in the Family Court of Western Australia, at Perth dated [date]September 2016 (the Family Court Orders) was provided by Ms Marlowe as part of Exhibit A. Relevantly, these orders provided that the children reside with Ms Marlowe, and that they spend time with Mr Dustin from 2 January 2017 to 24 January 2017, and that in future, they should spend time with Mr Dustin as follows:
(a) During the term for Christmas school holiday period as follows:
(i)In each even year from 2 January to 24 January;
(ii)In each odd year from the day following the last day of school to 2 January;
(b) During the July school holiday period from the day following the last day of school to the mid-Sunday of the school holiday period;
(c) At any other times as agreed between the parents.
Significantly, pursuant to these orders, Mr Dustin was to have care of both children from 2 January 2018. As noted above, Ms Marlowe enrolled [Child 1] as a boarding student at [School 2], [Town 2] from January 2018.
Following her return from [Town 1] in September 2019, Ms Marlowe said she took up residence in [City 1] and the children returned to her care. While she was living in [City 1], Ms Marlowe said she obtained employment in [an] industry at a [workplace] outside [City 2], She said she was working alternating shifts of four days on, four days off and five days on, five days off, and commuting between [City 1] and [City 2] on her days off. She acknowledged that during this period, Mr Dustin was providing care for the children in her absence, although they were in her care when she returned to [City 1] on her days off.
In February 2020, Ms Marlowe said she moved to [City 2] with the children. However, having regard to the letter from the accounts clerk at [School 2], dated 11 March 2020, it seems [Child 1] was still enrolled as a boarding student at the college, at least until 11 March 2020. The letter provided by the Principal of the [School 3] dated 13 July 2020 states that [Child 2] was enrolled as a student at that school from 1 May 2019 until at least 2 June 2020.
The Tribunal considers it unlikely the children went to live with Ms Marlowe when she moved to [City 2] in February 2020. Ms Marlowe also acknowledged in her evidence that while she was working [outside] [City 2], the children were in Mr Dustin’s care. The evidence, on balance, seems to suggest Mr Dustin was providing most of the care for both children during the period February 2020 to 2 June 2020 while Ms Marlowe was [working].
Ms Marlowe said she finished working [in] April 2020, and that both children returned to her care from April 2020 onward.
Ms Marlowe gave evidence that while [Child 1] was at boarding school at [School 2] in [Town 2], she provided some level of financial support for him, contributing to his school fees, and the cost of his uniforms, sporting fees and clothing, and provided some level of emotional support for him in the form of regular telephone contact more than once or twice per week in term time.
The CSA file reflects that Ms Marlowe applied for a child support administrative assessment on 15 April 2020. A document completed and provided to the CSA by Mr Dustin on the same date, apparently related to Ms Marlowe’s application, reflects the care percentages for the parents as at that date as 90% to Mr Dustin and 10% for Ms Marlowe for both children

Mr Dustin’s evidence

Mr Dustin gave affirmed evidence at the hearing and also provided a written statement dated 16 July 2020 at page 60 of Exhibit 1, in which he records that [Child 1] came into his care on 20 December 2017, in anticipation of his court-ordered care pursuant to the Family Court Orders referred to above. In reliance on the material set out in his statement, Mr Dustin’s evidence was to the effect that, because Ms Marlowe had already enrolled him as a full-time boarder at [School 2] in [Town 2] from the commencement of the 2018 school year, [Child 1] did not return to Ms Marlowe’s care until the 2018 Easter holidays, when he spent two weeks with Ms Marlowe in [Town 1]. He confirmed that [Child 1] also spent two weeks of the 2018 mid-year school holidays and three weeks of the 2018/19 Christmas holidays with Ms Marlowe in [Town 1].
His statement records that [Child 1] spent the first two weeks of the first term for 2018 living at [School 2] as a boarding student, but as he found boarding school disagreeable, after serving out the college’s compulsory two-week “living in” requirement, he spent the next 20 months living with Mr Dustin at his house in [Town 3], on average, at least three to four nights per week, and over the weekends. Mr Dustin’s statement records his assertion that [Child 1] was effectively in his care from 1 February 2018 until 30 May 2020, when he returned to Ms Marlowe’s care, following her decision to quit her job [outside] [City 2] in April 2020.
In his statement, Mr Dustin records that during the period 1 February 2018 until 30 May 2020, while [Child 1] was living in his house at [Town 3], and with the exception of the periods when [Child 1] was spending time with Ms Marlowe in consequence of the Family Court Orders as reflected above, he was providing for [Child 1]’s accommodation, transport, food, clothing, general support and comfort, both physically and emotionally. He acknowledged that although he was not paying all of [Child 1]’s school fees, he was contributing to those costs, with the support of Ms Marlowe and her parents.
Ms Marlowe challenged Mr Dustin’s evidence regarding [Child 1]’s departure from the college to live with Mr Dustin, asserting that [Child 1] could not have left the college without her permission, as the enrolling parent. Mr Dustin gave evidence that he, in concert with Ms Marlowe’s mother, had sought, and obtained, the college’s permission for [Child 1] to live with him. The Tribunal prefers Mr Dustin’s evidence to Ms Marlowe’s on this issue.
With respect to [Child 2], Mr Dustin gave evidence that his daughter spent time with him in accordance with the care provisions set out in the Family Court Orders in 2017 and 2018. From 1 May 2019, however, when Ms Marlowe came to Queensland for her long service leave holiday, [Child 2] stayed with Mr Dustin at his [Town 3] house, and was enrolled as a student at the [School 3] from 13 May 2019, and remained in his care from that date until she returned to Ms Marlowe’s care on 21 May 2020.
It is always difficult in cases such as this, where one parent has been residing in [Town 1], Western Australia, and the other in [Town 3] [in] Queensland, and, as is the case with [Child 1], where the child is attending a boarding school [in] Queensland, approximate to his father’s residence in [Town 3], to determine with precision the level of care being provided by the respective parents, and in those circumstances, the courts have adopted a broad brush approach to determining the percentages of care to be attributed to each parent. The Tribunal will adopt a similar approach in this case.
Applying the provisions of the relevant legislation set out above, in sections 49 and 50 of the Act and the point-in-time principle, the Tribunal finds that the pattern of care the parents were following with respect to [Child 1] up until he came to spend time with Mr Dustin pursuant to the Family Court Orders from 20 December 2017, ceased on that date, when [Child 1] did not return to Ms Marlowe’s care in [Town 1], but remained in Mr Dustin’s care from that date onward, commencing, initially, as a boarding student at [School 2] in January 2018, and ultimately, from at least February 2018, residing on weekends and for at least three to four nights in the week with Mr Dustin at his [Town 3] house.
The evidence suggests Ms Marlowe’s care of [Child 1] from 20 December 2018 until her return to live permanently in Queensland from September 2019 was confined to the two weeks of care she had during the 2018 Easter holidays and the 2018 mid-year holidays – equating to 28 nights of care – and three weeks of care in the 2018/19 Christmas holidays – equating to 21 nights of care.
In the period from September 2019, following Ms Marlowe’s permanent return to Queensland, until [Child 1]’s return to live with Ms Marlowe on 21 May 2020, the evidence suggests Ms Marlowe was employed as a rostered days on/days off [worker] commuting between [City 1] and [City 2], during which period she conceded the children were in Mr Dustin’s care.
As regards [Child 2], the evidence, on balance, suggests the care pattern being followed by the parents accorded with the Family Court Orders up until May 2019, when Ms Marlowe and [Child 2] came to Queensland for her long service leave holiday, [Child 2] was enrolled as a full-time student at [School 3] from 13 May 2019, and commenced living with Mr Dustin at his [Town 3] house from at least 13 May 2019 until she returned to live with Ms Marlowe on 21 May 2020.
Ms Marlowe applied to the CSA for an administrative assessment of child support on 15 April 2020, and as part of that application, she reported the parents’ care percentages for both children were 10% to her and 90% to Mr Dustin. She later retracted those care percentages and acknowledged that both children had been in Mr Dustin’s 100% care at the time she lodged her application.
On 25 May 2020, after some discussion with the parents regarding the care issue, the CSA made its decision to accept Ms Marlowe’s application for a child support assessment, recording the care percentages for [Child 1] as 90% to Mr Dustin and 10% to Ms Marlowe, and 100% to Mr Dustin and 0% to Ms Marlowe for [Child 2], from 1 March 2020.
On objection by Mr Dustin, the CSA objections officer determined his care percentage for [Child 1] as 100% and Ms Marlowe’s care percentage at 0% from 20 December 2017, and with respect to [Child 2], 100% to Mr Dustin, and 0% to Ms Marlowe from 1 May 2019
The Tribunal finds that as at the date of Ms Marlowe’s assessment application on 15 April 2020, [Child 1] had been in Mr Dustin’s primary care since 20 December 2017, and Ms Marlowe had a total of 49 nights of care in the school holidays throughout 2018, equating to 13% of care (49 nights / 365 x 100 = 13.42, rounded down to 13%). The Tribunal therefore determines Mr Dustin’s care percentage for [Child 1] is 87%, from 20 December 2017.
With respect to [Child 2], the Tribunal finds that as at the date of Ms Marlowe’s assessment application, on 15 April 2020, [Child 2] had been enrolled as a student at the [School 3] from 13 May 2019, and had been living with Mr Dustin since at least 13 May 2019, while she was attending that school. The Tribunal therefore considers it appropriate to record him as having 100% care of [Child 2], and Ms Marlowe’s care percentage for [Child 2] as 0%, from 13 May 2019.
The Tribunal therefore sets aside the objection decision under review, and, in substitution, decides that, as at the date of Ms Marlowe’s assessment application on 15 April 2020, with respect to [Child 1], Mr Dustin’s care percentage is recorded as 87% care, and Ms Marlowe’s care percentage is recorded as 0% care from 20 December 2017, and with respect to [Child 2], Mr Dustin’s care percentage is recorded as 100% care, and Ms Marlowe’s care percentage is recorded as 0% care, from 13 May 2019.

DECISION

[2021] AATA 1277

9 April 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Judicial Review

Remedies