Marson and Marson (Child support)

[2024] AATA 2909

Marson and Marson (Child support) [2024] AATA 2909 (18 July 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/PC027913

APPLICANT:  Ms Marson

OTHER PARTIES:  Child Support Registrar

Mr Marson

TRIBUNAL:Member K Hamilton

DECISION DATE:  18 July 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in [Child 1’s] pattern of care from 5 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – no change to the likely pattern of care – pre-existing care determination retained – 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. Ms Marson and Mr Marson are the parents of [Child 1] (born 2007).  Prior to 5 May 2023, Ms Marson was recorded for child support purposes as having 70% care and Mr Marson 30% care of [Child 1].  Those care determinations had been applied from 26 October 2015 and reflected the parties’ respective care of [Child 1] pursuant to court orders dated [in] November 2014.

2. On 10 August 2023, Mr Marson advised Services Australia – Child Support (Child Support) that he had 42% care of [Child 1] from 5 May 2023. 

3. On 6 December 2023, Child Support made a decision to refuse to reflect the care of [Child 1] as 42% to Mr Marson and 58% to Ms Marson. 

4. Mr Marson objected to that decision on 21 December 2023.  On 16 April 2024, a Child Support objections officer allowed his objection in part and decided to record care of [Child 1] as 58% to Ms Marson and 42% to Mr Marson from 5 May 2023.

5. Ms Marson then applied to the Administrative Appeals Tribunal (the Tribunal) for further review.

6. I heard the matter on 18 July 2024. Ms Marson and Mr Marson both participated by telephone and gave evidence. 

7. The Tribunal had regard to the following documents:

   ·Documents produced by Child Support pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, numbered 1–182;

   ·Further documents provided to the Tribunal by Ms Marson, numbered A1–A17; and

   ·Further documents provided to the Tribunal by Mr Marson, numbered B1–B26.

ISSUES

1. The legislative provisions relevant to this application are contained in the Child Support (Registration and Collection) Act 1988 (the Act) and the Child Support (Assessment) Act 1989 (the Assessment Act).

2. Care decisions are made pursuant to the Assessment Act. If a person applies for an administrative assessment of child support and has had, or is likely to have, a pattern of care for the child during the relevant care period, then the decision-maker must determine that parent’s percentage of care for the child during the care period: section 50 of the Assessment Act.

3. If a responsible person who was to have at least regular care of a child during a care period (at least 14% care) under a care determination made under section 50, had no care of the child, or a pattern of care that was less than regular care of the child, the care determination must be revoked and a new determination made: section 54G in Division 4, Subdivision C of the Assessment Act.

4. Where section 54G does not apply, a responsible person’s existing percentage of care must be revoked if the actual care of the child does not correspond with the existing percentage of care and, if a new percentage of care were determined, the responsible person’s cost percentage would change: section 54F in Division 4, Subdivision C of the Assessment Act.

5. The legislation requires that if a determination of a responsible person’s percentage of care is revoked under Division 4, Subdivision C, and the responsible person has had, or is likely to have, a pattern of care during a care period, the responsible person’s percentage of care must be determined based on their actual care of the child during the care period: section 50 of the Assessment Act.

6. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide reflects government policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

7. The issues which arise in this case are:

   ·Was there a change in [Child 1’s] pattern of care from 5 May 2023? If so,

   ·What are the new percentage of care determinations for Ms Marson and Mr Marson?

   ·What is the date of application of the revocation of the pre-existing percentage of care determination and the date of application of the new percentage of care determination for Ms Marson and Mr Marson?

CONSIDERATION

1. Ms Marson told the Tribunal that there has been no change in the care of [Child 1] and the court orders that have been in place since 2014 have continued to be followed.  Those orders provide for Mr Marson to have care of [Child 1] from Friday to Tuesday morning in alternate weekends, and the first week of each school holidays, other than the December/January school holidays where Mr Marson was to have a total of 2 weeks of care.

2. Ms Marson said that under the court orders, Mr Marson was supposed to have care of [Child 1] from 24 December 2023 to 1 January 2024, and then a further 4 nights in January around the Australia Day weekend.  However, at the end of school in December 2023, Mr Marson asked [Child 1] to stay with him until Christmas.  This was not in accordance with the court orders which provided a structure that she made plans around, and Ms Marson did not agree to this change.  However, she said that [Child 1] stayed with Mr Marson from 15 to 25 December 2023, and then again from 1 to 8 January 2024.

3. Ms Marson disputed Mr Marson’s care calendar that indicated he had care of [Child 1] from 21 to 28 January 2024.  She agreed that Mr Marson had [Child 1] on 21 January 2024 but said he then went to Brisbane for work on 22 January 2024.  Ms Marson picked [Child 1] up on 22 January 2024 and had him for the rest of January until school began.

4. Ms Marson said she did not keep calendars showing care arrangements for [Child 1] from 5 May 2023 onwards, as there had been no change in the existing arrangements.  Ms Marson noted that Mr Marson had requested additional days on an ad hoc basis, but she estimated that this would total no more than 10 nights over a period of 18 months.  She denied that Mr Marson has had regular care of [Child 1] for 6 nights per fortnight since May 2023. 

5. Ms Marson said that [Child 1] had also stayed with his grandmother (Mr Marson’s mother) a couple of times on nights when Ms Marson had care of [Child 1].  Ms Marson would arrange or agree to [Child 1] staying at his grandmother’s on these occasions.  For example, Ms Marson told the Tribunal that she had an arrangement with [Child 1’s] grandmother for her to assist [Child 1] with his homework on Tuesday afternoons.  She recalled [Child 1] staying overnight with his grandmother on 2 Tuesdays.

6. During school terms, and particularly since school resumed on 2 February 2024, Ms Marson said that the court orders had been followed which provided for Mr Marson to have care of [Child 1] for 4 nights per fortnight.  Ms Marson said that she had no issue with [Child 1] spending additional time with Mr Marson, however she wanted a clear structure around any changes to be set out in amended orders.

7. Ms Marson emphasised that any additional time [Child 1] spent with Mr Marson was ad hoc and unpredictable.  For example, she agreed that [Child 1] had stayed with Mr Marson for an extra 2 nights on 19 and 20 November 2023 to watch the football.  In late May 2024, Mr Marson also booked a trip to Melbourne for him and [Child 1] without telling her, for 2 nights on 29 and 30 May 2024.

8. Mr Marson told the Tribunal that on 5 May 2023, he moved to a new apartment that was located only 5 minutes from [Child 1’s] school.  It was also located close by where [Child 1] played football and was also close to [Child 1’s] friends and the beach.  As a result, Mr Marson said that from this time, [Child 1] would spend more time at Mr Marson’s home.

9. Mr Marson said that from 5 May 2023, he has had care of [Child 1] for at least 6 nights per fortnight.  Mr Marson confirmed that the additional nights of care he claimed included time when [Child 1] was staying at his grandmother’s place. 

10. Mr Marson said that the court orders no longer apply and that the care arrangements have changed over the years.  However, he confirmed that no orders had been made by the court since the parenting orders dated [in] November 2014.  Those orders are therefore still in force and govern parenting arrangements between the parties. 

11. Mr Marson said that [Child 1] makes his own arrangements and wants to stay over at Mr Marson’s place more to watch football or because he doesn’t want to be at Ms Marson’s place.  Mr Marson said that it was important that [Child 1] spend more time with him over the last 2 years of his schooling.  

12. Mr Marson provided calendars for the months of November and December 2023 and January 2024 showing nights he says [Child 1] was in his care.  Mr Marson said that he has not otherwise kept contemporaneous diaries or calendars showing his care of [Child 1].  There are no care calendars for the period from May 2023 to October 2023, and no care calendars from February 2024 onwards, although Mr Marson provided an electronic diary entry stating that [Child 1] was staying with him for 18 nights over the April 2024 school holidays.  Mr Marson claims his care calendars show that he has had care of [Child 1] over 50% of the time, but says that overall his percentage of care is at least 42%.

13. Even if the care shown on Mr Marson’s care calendars was agreed by Ms Marson (which it is not), I find that the care arrangements claimed in those calendars are atypical as they encompass school holiday periods in which Mr Marson had quite different blocks of care than would be the case during school terms.  Mr Marson’s care calendars therefore do not assist the Tribunal in establishing either that there was a change in [Child 1’s] pattern of care from 5 May 2023 or what his pattern of care was from that time.

14. The Tribunal had regard to 2 statements provided to the Tribunal by Mr Marson from his mother and his current partner.  The statement from Mr Marson’s mother ([Ms A]) says that [Child 1] ‘would stay with either [Mr Marson] or myself for 2 days/nights per fortnight in excess of [Mr Marson] “assessed” 4 days/nights per fortnight’.  The statement also notes ‘this is an accurate reflection of the child care arrangements which has been ongoing for a number of years now’.

15. The statement from Mr Marson’s current partner ([Ms B]) says that she has been Mr Marson’s partner since July 2023, and that [Child 1] ‘definitely stays overnight with [Mr Marson] (sometimes with [Mr Marson] mother as well) between 6-7 nights a fortnight as I have witnessed it first hand …’.

16. Ms Marson told the Tribunal that [Ms B] did not meet [Child 1] until October 2023.  Mr Marson disputed this was the case and told the Tribunal that [Ms B] met [Child 1] on 11 August 2023.  Mr Marson also advised the Tribunal that [Ms B] generally did not stay overnight at his place when [Child 1] was there.  However, he said that [Ms B] was able to confirm Mr Marson’s care of [Child 1] as she would often come over to his place in the morning and see that [Child 1] had stayed the night.

17. Mr Marson also provided the Tribunal with copies of bank statements showing multiple transfers identified as being made to [Child 1] or to purchase items for [Child 1].  Mr Marson says that such transactions generally coincided with times [Child 1] was staying with him or with [Ms A].

18. I do not accept that these bank statements can be relied on as evidence of Mr Marson having overnight care of [Child 1].  Transfers or payments said to be made to or on behalf of [Child 1] could be made at any time and cannot be assumed to coincide only with nights on which Mr Marson actually had care of [Child 1].  It is noted, for example, that transfers to [Child 1] occur on a number of days which are not identified by Mr Marson in his care calendars as days when he had care of [Child 1] – including 2, 7 and 23 November 2023, 31 December 2023, and 10, 14 and 17 January 2024.

19. The statements provided by Mr Marson from third parties also do not assist in establishing that a change in [Child 1’s] pattern of care occurred from 5 May 2023.  While the statement from [Ms A] suggests that [Child 1] would stay overnight with either her or Mr Marson for an additional 2 days or nights per fortnight, I do not accept that nights when [Child 1] stays with his grandmother should automatically be taken as nights when he was in Mr Marson’s care, particularly when such visits were generally organised between Ms Marson and [Ms A], or between [Child 1] and [Ms A] with Ms Marson’s agreement.  [Ms A’s] statement also specifies that any such additional nights have been occurring ‘for a number of years’, which does not suggest that there had been a change in May 2023 to the pattern of care.

20. The statement from [Ms B] also does not establish that a change in [Child 1’s] pattern of care occurred from 5 May 2023.  [Ms B] indicates that her relationship with Mr Marson did not commence until July 2023, and on Mr Marson’s evidence, she did not meet [Child 1] until 11 August 2023.  [Ms B] therefore cannot provide any direct evidence that any change in care occurred from 5 May 2023.

21. The documents produced by Child Support contain records of a discussion with Mr Marson on 29 May 2023 where he noted that he was having one additional night of care per fortnight and that he may lodge a change in care online if he chooses to.  Subsequently a change in care was notified on 10 August 2023 advising that [Child 1] stayed at least 2 additional nights per fortnight.  Mr Marson said that the difference in his reporting to Child Support was because the pattern had become clearer over time.

22. The documents produced by Child Support also contain a record of a discussion with Mr Marson on 7 December 2023 when Mr Marson lodged his objection.  This document records Mr Marson as objecting to the decision on the basis that ‘care should be reflected as 35% to [Mr Marson] instead of being rejected’.  Mr Marson did not recall ever proposing 35% as reflecting his care of [Child 1].

23. Mr Marson did not provide any contemporaneous care calendars to the Tribunal to establish any change in the pattern of care from 5 May 2023.  His care calendars from November 2023 to January 2024 do show him having additional nights of care, however not all dates he claimed were accepted by Ms Marson as being correct.  As noted above, those care calendars also cover a period of atypical care arrangements given the December and January school holiday period, and do not assist in determining what care arrangements were followed during school terms.

24. Even if I were to accept Mr Marson’s care calendars are correct and accept that he had additional nights of care beyond what was provided in the court orders, I am satisfied that any additional nights [Child 1] was in his care occurred on an ad hoc basis.  Those ad hoc arrangements represent a minor departure from the pattern of care established under the parenting orders.  Consistent with the Child Support Guide (at 2.2.1), such minor departures do not justify the parties’ care percentages being changed from what has been calculated by Child Support by reference to care provided for under the parenting orders.

25. Accordingly, I find that there was no change in [Child 1’s] pattern of care from 5 May 2023.

26. As I have reached a different decision to that of the objections officer, the decision of Child Support will be set aside and a decision substituted that there was no change in [Child 1’s] pattern of care from 5 May 2023.  This means that the parties’ percentages of care of [Child 1] will remain as per the pre-existing care determination which recorded Ms Marson as having 70% care and Mr Marson 30% care of [Child 1].

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change in [Child 1’s] pattern of care from 5 May 2023.