McCain and McCain (Child support)

[2023] AATA 3413

McCain and McCain (Child support) [2023] AATA 3413 (29 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC025995

APPLICANT:  Mr McCain

OTHER PARTIES:  Child Support Registrar

Ms McCain

TRIBUNAL:Member M Douglas

DECISION DATE:  29 August 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, Mr McCain’s percentage of care for [Child 1] and Ms McCain’s percentage of care for [Child 1] be revoked and, in accordance with paragraph 54F(3)(a), the revocation of those care percentages takes effect on 4 December 2022;

• Pursuant to subsection 50(2) the Child Support (Assessment) Act 1989, Mr McCain’s care percentage for [Child 1] is determined to be 72% for the care period commencing 5 December 2022 and Ms McCain’s care percentage for [Child 1] is determined to be 28% for that care period.

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 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. Mr McCain and Ms McCain are the parents of [Child 1], for whom Child Support (Services Australia – Child Support) has issued an administrative assessment of child support.  As at 25 December 2022 the care percentages used in the assessment of child support for [Child 1] were 51% for Mr McCain and 49% for Ms McCain.

2. On 25 December 2022 Ms McCain notified Child Support electronically that there had been a change in the care of [Child 1] from 10 December 2022 such that she now had care of [Child 1] for 365 nights of the year and Mr McCain consequently had no care of him. 

3. On 27 January 2023 Child Support revoked the existing care percentages for [Child 1], with that revocation taking effect on 9 December 2022, and determined new care percentages for [Child 1] of 100% for Ms McCain and 0% for Mr McCain. 

4. Mr McCain lodged an objection to that decision with Child Support on 30 January 2023.  On 27 March 2023 Child Support allowed his objection in part and determined that the care percentages for [Child 1] from 10 December 2022 were 90% for Ms McCain and 10% for Mr McCain.

5. Mr McCain has applied to the Tribunal for review of Child Support’s objection decision. The Tribunal heard his application on 29 August 2023. Both Mr McCain and Ms McCain participated and gave oral evidence. The Tribunal has had regard to their evidence and also the documents Child Support provided to the Tribunal in accordance with its obligation under sections 37(1) and 38AA(1) of the Administrative Appeals Tribunal Act 1975.

CONSIDERATION

1. Subsection 54F(1) of the Child Support (Assessment) Act 1989 (the Act) requires that the existing care percentages used in an assessment of child support be revoked if:

   a.    the care of a child that is actually taking place does not correspond with the parents’ respective percentages of care for the child; and

   b.    a change to the parents’ percentages of care, so to reflect the parents’ actual care of their child, would result in a change in the parents’ cost percentages used in the assessment.

2. In the event that the parents’ existing percentages of care are revoked, then new percentages of care must be determined under either subsections 49(2) or 50(2) of the Act. Subsection 49(2) is engaged if a parent has had or is likely to have no pattern of care for a child during a care period. Subsection 50(2) will apply if a parent has had or is likely to have a pattern of care for a child during the care period. A care period is such period that Child Support, or the Tribunal in its place, considers to be appropriate to determine the pattern of care that the parents have of their child. Section 2.2.1 of the Child Support Guide says that a care period is generally a 12‑month period from the day upon which the actual care of the child changed.

3. What this means in this case is that the Tribunal when reviewing the objection decision of Child Support must consider what care Mr McCain and Ms McCain had of [Child 1] from the start date of the care period until the time of the original decision of Child Support and what their care would likely be from the point in time of the original decision for the remainder of the care period.  In attending to that task, the Tribunal is able to consider evidence that was not before Child Support.[1]

   [1] Frugtniet v Australian Securities & Investments Commission [2019] HCA 16 at [14]-[15]

4. Ms McCain’s evidence to the Tribunal was that her mother passed away in November 2021.  She said that she and [Child 1] lived in a house with her mother and continued to reside in that house until January 2022 after her mother’s death.  Ms McCain was her mother’s carer and she had received a carer pension from Centrelink.  With her mother’s death she was no longer entitled to that pension and her only income after that was jobseeker payment.  She was not able to afford the rent of the premises in which she was living with that limited income.  She vacated the premises in January 2022 and was unable to secure her own accommodation until May 2022.  In the interim she stayed at a friend’s home that was a long distance from the school where [Child 1] was enrolled.  She said, because of that, [Child 1] was unable to stay with her and stayed with Mr McCain in that intervening period.

5. The accommodation she secured in May 2022 was through Housing South Australia, with the assistance of a social worker named [Ms A].  Ms McCain said that house is only 5 kilometres from [Child 1]’s school.  She said when she secured that accommodation the care arrangement with respect to [Child 1] returned to what was happening preceding January 2022.

6. Ms McCain provided Child Support with a screenshot of an email she received from [Ms A], which read as follows:

   Good morning Ms McCain I hope my email finds you well.  I am writing in response to the request you sms me last week.  I apologise for the time in which it has taken me to get to the letter you asked me to write. 

   To endeavour to help confirm my knowledge in a formal aspect of the living arrangements that took place which has for some time ago now placed [Child 1] in your care fully.  Obviously residing with you at [an] Avenue since December last year.

   From the conversations between [Child 1], yourself and I just after [Child 1]’s birthday in December [Child 1] had come to live in your care due to [Child 1]’s father Mr McCain and [Child 1] had several arguments that during that evening resulted in [Child 1] being asked to leave his father’s home.

   [Child 1] has told me that he was a bit afraid so only walked as far as the park a few doors from his father’s house.  Then calling you to ask if you had a way of picking him up to then return home with you.  As you had told me Ms McCain.  You didn’t have a vehicle or any means at that time to be able to go and get [Child 1] at all.

   You then made a quick call [to] ask that they retrieve [Child 1] from the park as soon as possible because [Child 1] was alone in the dark by that time and was getting increasingly afraid of being there alone.

   As I previously mentioned in my email to you today and of course you are aware Ms McCain.  My knowledge of these events are based upon several conversations with both [Child 1] and yourself in the months since then.

   These chats of course taking place on a few different occasions during my monthly home visits as your social and support worker for [a] Service.

   It is my hope that my email to you and the facts I have outlined within will be helpful to you as a formal statement of my knowledge of the matters covered here.  And that you will now be able to forward to any parties concerned requesting confirmation of [Child 1]’s full time residence and care arrangement.

   Please feel free to email or phone me if there is anything further I can help with Ms McCain.  Otherwise I look forward to my next visit which will be as we have discussed on Friday 24 February at 4pm.

   See you then, and in the meantime take care.

   Regards

   [Ms A]

   (Verbatim)

7. Both the screenshot and the email depicted in it that Ms McCain provided Child Support were undated.  Ms McCain told the Tribunal that she requested [Ms A] provide that email so she could send it to Child Support as evidence for Child Support to consider when considering Mr McCain’s objection to its care percentage determination.  Given that, and noting that [Ms A] referred in her email to a further appointment with Ms McCain on 24 February and that Mr McCain did not lodge his objection of 30 January 2023, it would seem that the email was provided by [Ms A] to Ms McCain at around the start of February this year.

8. Ms McCain’s evidence was that [Ms A] visits her approximately once a month but “if things were not going great” [Ms A]’s visits may be as frequent as once a fortnight.

9. Ms McCain’s evidence was that [Child 1] has been spending more time recently with Mr McCain.  She said that she has been having problems with [Child 1] because [Child 1] does not like the fact that she requires him to be home by a certain time.  She said that on one occasion [Child 1] wanted a takeaway meal but she would not buy that for him because she did not want to reward [Child 1] for bad behaviour.  She said that [Child 1] went to Mr McCain’s place for a long time after that.  She said that this has happened on other occasions.  She said that Mr McCain allows [Child 1] to do anything that he wants, which she believes is why [Child 1] now stays with Ms McCain more often.

10. Mr McCain’s evidence was that since at least the start of December, [Child 1] has been staying with him for most of the time.  He provided Child Support with a copy of a calendar for the period 5 December 2022 to 5 February 2023, in which he recorded the nights on which [Child 1] has stayed with him in that period.  He said that he had been in the habit for numerous years of keeping a calendar electronically on his laptop, in which he recorded when [Child 1] stayed with him, following earlier disputes between him and Ms McCain regarding their care percentages for [Child 1].  He said that he would update the calendar every couple of days, and certainly no longer than each week.  He said that his calendar revealed that more recently Ms McCain has only had care of [Child 1] on three nights in February 2023 and on 18 and 19 August 2023.

11. Mr McCain’s evidence was that whilst [Child 1] had made the decision to spend more time with him, he always encourages [Child 1] to spend time with Ms McCain at her home.  He said that he has always wanted [Child 1] to think that he had two homes, that is, with him and with Ms McCain.

12. Mr McCain said that he is employed by [Company 1].  He attached to his application to the Tribunal for review of Child Support’s objection decision a letter from the Managing Director of his employer, namely [Mr B], dated 22 April 2023.  In that, [Mr B] said that Mr McCain has been employed by his company for over six years and that in that time Mr McCain had taken numerous days and hours off work to look after [Child 1]. [Mr B] also said in his letter that his children have becomes friends with [Child 1].  He said he has spent time outside of work with “the kids”, meaning his children and [Child 1].  He said that to his knowledge for four years or more Mr McCain and Ms McCain had 50/50 care of [Child 1] and Mr McCain’s care of [Child 1] “has increased since then”. 

13. Mr McCain also attached to his application for review an undated letter written by [Mr C].  [Mr C] said that for one and a half years until 5 February 2022 he and his partner lived with Mr McCain in a small flat at the back of Mr McCain’s house.  He said that he and his partner shared with Mr McCain and [Child 1] the bathroom and toilet in the main house.  He said that on numerous occasions he looked after [Child 1]. 

14. [Mr C] said that in the time that he lived in the flat, Mr McCain “spent the first year week on week off picking [Child 1] up and dropping him off at the OSCH in [a city], the school where [Child 1] went in [a grade]”.  [Mr C] said that he and his partner went on “numerous trips for drop off and pick up”.  [Mr C] said that in the time that he lived with Mr McCain, [Child 1] spent more than 50% of the time with Mr McCain and he said that this has only increased.  He said that he works with Mr McCain and that on many occasions Mr McCain has been late to work and had to leave early for school appointments and mentioned other times when he had to care for [Child 1].

15. The Tribunal considers the evidence of Mr McCain to be more reliable than the evidence of Ms McCain.  Mr McCain’s recollection of where [Child 1] has resided is based on a calendar he kept in which he recorded within two days to a week those nights on which [Child 1] was in his care. 

16. Because the Tribunal considers his evidence more reliable than Ms McCain’s evidence, the Tribunal prefers his evidence over the evidence of Ms McCain.

17. The Tribunal notes that what [Mr B] and [Mr C] said in their respective letters does not provide corroboration to Mr McCain’s evidence and that is because with respect to the period from which Mr McCain says there was a change in [Child 1]’s care being the beginning of December 2022, what they each say is not based upon direct observation but rather when Mr McCain was working or what Mr McCain had reported to each of them.

18. The Tribunal also considers that [Ms A]’s email does not provide reliable corroboration of Ms McCain’s evidence.  This is because, similar to the situation with [Mr B] and [Mr C], what she says in her email is not based upon her direct observation, but rather what Ms McCain reported to her. 

19. The Tribunal further notes that Ms McCain’s evidence to the Tribunal tends to support Mr McCain’s case in that Ms McCain’s evidence was to the effect that as a result of her discipline of [Child 1], [Child 1] has been more recently residing more often with Mr McCain and has resided with him for longer periods of time.

20. As said earlier, the Tribunal’s task is to evaluate from the point in time of the original decision, which was 27 January 2023, what care Mr McCain and Ms McCain would likely have of [Child 1] during a care period.  The Tribunal notes that Mr McCain said that there was a change in [Child 1]’s care from the start of December 2022 and Ms McCain said there was a change from 10 December 2022, although the Tribunal observes that the changes they said occurred conflicted with each other.  The Tribunal has found the evidence of Mr McCain more reliable than Ms McCain’s evidence, and it prefers his evidence on what the change was in [Child 1]’s care over the evidence of Ms McCain.  Given that Mr McCain has provided a calendar from 5 December 2022 to 5 February 2023, the Tribunal considers that it is appropriate to use a care period of 12 months commencing from 5 December 2022.

21. Hence, the task of the Tribunal is to establish, based on the evidence before the Tribunal, what the actual care was that Mr McCain and Ms McCain each had of [Child 1] from 5 December 2022 until 27 January 2023, being the date of the original care decision of Child Support, and what likely care they each would have had from 27 January 2023 to the end of the care period.

22. As the Tribunal has said repeatedly, it prefers the evidence of Mr McCain over the evidence of Ms McCain.  Based on his evidence, it is satisfied that the actual care he had of [Child 1] from 5 December 2022 to 27 January 2023 was 72% and Ms McCain’s care was 18%.  The best evidence to establish what Mr McCain’s and Ms McCain’s likely care would have been after 27 January 2023 to the end of the care period is the calendar Mr McCain kept for the period preceding 27 January 2023, which was 72% care for him and 18% care for Ms McCain.  That evidence is not contradicted by the evidence of Mr McCain as to what occurred after that time, which evidence is again based on the calendar he has electronically kept.

23. Accordingly, in accordance with section 54F of the Act the Tribunal revokes the care percentages and pursuant to section 50 of the Act it determines new care percentages of 72% for Mr McCain and 18% for Ms McCain.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Pursuant to subsection 54F(1) of the Child Support (Assessment) Act 1989, Mr McCain’s percentage of care for [Child 1] and Ms McCain’s percentage of care for [Child 1] be revoked and, in accordance with paragraph 54F(3)(a), the revocation of those care percentages takes effect on 4 December 2022;

• Pursuant to subsection 50(2) the Child Support (Assessment) Act 1989, Mr McCain’s care percentage for [Child 1] is determined to be 72% for the care period commencing 5 December 2022 and Ms McCain’s care percentage for [Child 1] is determined to be 28% for that care period.