Mattingly and Fesperman (Child support)

[2023] AATA 1647

Mattingly and Fesperman (Child support) [2023] AATA 1647 (2 May 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025211

APPLICANT:  Mr Mattingly

OTHER PARTIES:  Child Support Registrar

Ms Fesperman

TRIBUNAL:Member P Jensen

DECISION DATE:  2 May 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

1. Mr Mattingly and Ms Fesperman are the parents of [Child 1] who was born in 2014 and [Child 2] who was born in 2017. A child support case was registered with the Child Support Agency (the CSA) in 2019. From 28 February 2021, Mr Mattingly was recorded as providing 14% care for the children. Ms Fesperman has always provided the balance of care and, for convenience, I will focus on Mr Mattingly’s care. 

2. On 13 May 2022, Mr Mattingly reported a change in care. He stated that from 20 June 2021, he was providing 35% care. The CSA decided to not record a change in care. Mr Mattingly objected to that decision. An objections officer disallowed the objection. Mr Mattingly applied to the Tribunal for further review. I heard the matter on 2 May 2023. Mr Mattingly attended the hearing in person. Ms Fesperman attended via conference phone.

3. It is worth noting at the outset that sections 5 and 55C of the Child Support (Assessment) Act 1989 (the Act) provide that if a parent is recorded as providing at least 14% care and less than 35% care, the parent’s “cost percentage” is 24% and their care is described as “regular care”. The cost percentage is a variable in the formula for calculating the rate of child support payable. It follows that if, for example, Mr Mattingly was providing 34% care, he would still be providing regular care and the change in care, from 14% to 34%, would not affect the rate of child support payable. If a parent is providing between 35% care and 48% care, their cost percentage is 25% plus 2% for every percentage point over 35%: section 55C of the Act.

4. Mr Mattingly and Ms Fesperman were separated but living in the same house until 20 June 2021, when Mr Mattingly moved out. He stayed with a friend for a couple of months and then, on 27 August 2021, he leased his own premises.

5. At the hearing, Mr Mattingly said that from 20 June 2021 his pattern of care consisted of two nights of care every weekend, plus additional care during school holidays, plus some additional ad hoc care. Ms Fesperman said Mr Mattingly provided two nights of care “most weekends”, but not every weekend. In response to further questions, Mr Mattingly said he provided care “pretty much” every weekend, and for “nine out of ten” weekends. They both stated that, at the time, they had not agreed on a particular pattern of care.

6. Ms Fesperman provided copies of text messages that were exchanged between the parents on 2 September 2021. In the course of that conversation, Ms Fesperman asked Mr Mattingly where he was living (i.e. where the children would be whilst in his care). Mr Mattingly provided a false address. Later, the following exchange occurred:

   Ms Fesperman:      And I just googled the address and showed [Child 1] and [Child 2] the photos and [Child 1] said that’s not your house. So I’ll be dropping them.

   Mr Mattingly:       Get off your high horse. Just because you’re the mum and have the boys 80% of the time, doesn’t mean you can run the roost.

7. At the hearing, Mr Mattingly said that his reference to 80% was a reference to Ms Fesperman’s care as recorded by the CSA, rather than her actual care. However, Ms Fesperman was recorded as providing 86% care. Further, Mr Mattingly’s statement referred to Ms Fesperman having the boys for 80% of the time, rather than being recorded as having some percentage of care. Mr Mattingly’s text message weighs against a finding that he was providing 35% care from 20 June 2021.

8. In June 2022, Mr Mattingly provided three witness statements in support of his account of events. All three witnesses stated that Mr Mattingly provided care “every” weekend. I consider Mr Mattingly’s acknowledgement that he did not provide care every weekend to be the more reliable evidence. In July 2022, Ms Fesperman provided a statutory declaration from her mother who stated that from 20 June 2021, or thereabouts, until late November 2021, Mr Mattingly did not provide any care for the children: “OUR DAUGHTER HAD 100% CARE IN THIS TIME”. I consider Ms Fesperman’s evidence that Mr Mattingly did provide care during that period to be the more reliable evidence.

9. On 14 July 2022, Mr Mattingly provided a written statement which commenced:

   Apart from having my sons every weekend (Friday/Saturday nights) these are the extra nights that I did have them in my care, which include school holidays, public holidays/long weekends and just times that Ms Fesperman needed me to have them for her to have a break.

   1st of July 2021 - Thursday night

   5th & 6th of July 2021- Monday & Tuesday night

   8th – 10th of August 2021 – Sunday, Monday & Tuesday night

   19th & 20th of September 2021 – Sunday & Monday night

   …

   Some of these dates I have time stamped on photos on my phone, along with some days are showing in my payslips with annual leave.

10. Mr Mattingly did not provide the time-stamped photographs and payslips that he stated he had relied upon, but it is not necessary to consider that issue further.

11. Section 50 of the Act relevantly provides that when considering whether to make a care decision, the decision-maker is required to consider the pattern of care each parent has had, or is likely to have, during the appropriate care period. At the hearing, Mr Mattingly stated that, in broad terms, his overall care of the children had increased since 20 June 2021. He also stated that there had recently been a significant change in care. I am not considering that recent change in care.

12. I noted, and neither parent disputed, that the 2021 winter school holidays started on 26 June 2021 and ended on 11 July 2021, and the spring school holidays started on 18 September 2021. I consider the appropriate care period to be the period from 20 June 2021 (which was the Sunday before the winter school holidays and the day when the change in care was said to have occurred) to 11 September 2021 (which was the Saturday before the spring school holidays). That period roughly equates to one school term and one school holiday.

13. The period from 20 June 2021 to 11 September 2021 is 84 nights. There are 24 Friday and Saturday nights during that period. According to Mr Mattingly’s statement dated 14 July 2022, he provided weekend care and an additional 6 nights of care during that period. If that evidence were correct, he would have provided (24 + 6) / 84 = 35.7% care. However, he acknowledged during the hearing that he did not provide care evidence weekend. He said he provided care for nine out of ten weekends. If he missed one weekend during those 12 weeks, the calculation would be (22 + 6) / 84 = 33.3%. Percentages of care that are less than 50% are rounded down to the nearest whole percentage: section 54D of the Act.

14. In summary:

    ·    Neither parent provided details of every night of care that Mr Mattingly provided during the period from 20 June 2021 to 11 September 2021, which I consider to be the appropriate care period. Mr Mattingly provided details of the care he provided in addition to his weekend care, but he acknowledged that he did not provide care every weekend and he did not identify his missed weekend care.

    ·    Mr Mattingly’s general description of his pattern of care suggested that, on average, he provided two nights of care per week. He almost always provided those two nights of care on Friday and Saturday, but he sometimes missed a weekend of care and he sometimes provided additional care. That evidence suggests that his general pattern of care equated to 2 / 7 = 28.6% care, which would be rounded down to 28% care.

    ·    If one were to adopt a more mathematical approach, his care during the appropriate care period equated to 33.3%, which would be rounded down to 33% care.

15. On either analysis, Mr Mattingly’s care fell short of 35% care. He continued to provide regular care. Section 54H of the Act grants a discretion to record a change in care even if the change in care will not affect the rate of child support payable. In this particular case, there does not appear to be any reason to do so. The decision to not record a change in care was the preferable decision.

DECISION

The decision under review is affirmed.