Michelmore and Newhook (Child support)

[2021] AATA 691

Michelmore and Newhook (Child support) [2021] AATA 691 (9 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019917

APPLICANT:  Mr Michelmore

OTHER PARTIES:  Child Support Registrar

Ms Newhook

TRIBUNAL:Member M Douglas

DECISION DATE:  09 February 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 28 January 2020 Mr Michelmore’s percentage of care for [Child 1] is 40% and Ms Newhook’s percentage of care is 15%.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – child living part of time with grandparent – 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 Michelmore and Ms Newhook are the parents of [Child 1].  A child support assessment was issued for [Child 1] with effect from 1 April 2018.  As at 28 January 2020 the care percentages used for [Child 1] in the assessment were 90% for Mr Michelmore and 10% for Ms Newhook.

2. On 28 January 2020 Ms Newhook contacted the Department of Human Services (now Services Australia), which is the Commonwealth Government instrumentality through which the Child Support Registrar acts, and told the officer with whom she spoke that there had been a change in the care of [Child 1] such that [Child 1] would be living with her mother, that is, [Child 1’s] maternal grandmother, from Sunday to Thursday night each week.  Ms Newhook also told the officer that it was unknown where [Child 1] would be residing on the weekends. 

3. On 16 March 2020 Services Australia revoked the extant care percentages for [Child 1], with that revocation taking effect on 27 January 2020, and determined that the care percentages for [Child 1] were 0% for Mr Michelmore and 0% for Ms Newhook from 28 January 2020.  That had the consequent effect of the assessment of child support ending for [Child 1] on 28 January 2020.

4. On 7 April 2020 Mr Michelmore lodged an objection to that decision.  On 26 August 2020 Services Australia disallowed his objection.  Mr Michelmore then applied to the Tribunal for a review of the objection decision.

5. The Tribunal heard his application on 9 February 2021. Both he and Ms Newhook participated in the hearing using the software technology Microsoft Teams. Both gave affirmed oral evidence. The Child Support Registrar did not appear, but in accordance with its obligation under section 37 of the Administrative Appeals Tribunal Act, it provided the Tribunal with a download of pages from its database, comprising 216 pages, that related to its objection decision (the hearing papers). These documents were received into evidence. Mr Michelmore also provided the Tribunal by email, before the hearing, written submissions and a statement from his sister, [Ms A], dated 22 December 2020. These documents were marked A1-8 and received into evidence. 

CONSIDERATION

1. The task of the Tribunal is to decide what the correct or preferable decision the original decision maker should have made. 

2. That decision contains a temporal element, and because of that, the Tribunal must consider the issue of what the correct and preferable decision should have been from the point in time at which the decision was made, which was 16 March 2020. 

3. The decision contains a temporal element because sections 49 and 50 of the Child Support (Assessment) Act 1989 (the Act), which are the provisions that empower Service Australia to determine the care percentage of a parent for a child, require consideration of what if any pattern of care a parent will have of their child during a care period. A care period is a period that Services Australia (or the Tribunal in its place) chooses as being appropriate to discern a pattern of care for a child. The care percentage determined pursuant to either subsection 49(2) or subsection 50(2), based on that consideration, is to be applied, in accordance with subsection 54B(1A), for each day of a child support period until the determination is revoked. Hence, because what is being decided is a parent’s care percentage that is to be applied for a period of time, which involves consideration of what the parent’s pattern of care is likely to be of their child over a care period, the decision necessarily involves a temporal element.

4. Because the Tribunal must in its review of the decision consider the matter from the point in time at which the original decision was made, the Tribunal cannot take into account events that occurred subsequent to the date.[1]  Whilst the Tribunal may consider evidence that came into existence after that time, and hence evidence that was not before Services Australia at the time the original decision, or indeed when the objection decision was made, that evidence must relate to events that occurred before 16 March 2020, and again, this is because the care percentage decision contains a temporal element.

   [1] See Shi v Migration Agents Registration Authority [2008] HCA 31 per Kiefel J at [143] and Frugtniet v Australian Securities & Investments Commission [2019] HCA 16 at [15]

5. Restated simply, what the Tribunal is doing is considering, based on what was known as at 16 March 2020, what the likely pattern of care for [Child 1] would be for the relevant care period.

6. There is no controversy between Mr Michelmore and Ms Newhook that there was a change in the pattern of care of [Child 1] that occurred on 28 January 2020.  [Child 1] had in March 2019 ceased her secondary education, but after being disqualified late in 2019 from holding a driver’s licence, she decided to recommence her secondary education in 2020, which she would do at [School 1].  To enable her to do that, without having a driver’s licence, she intended to live with her maternal grandmother, namely [Ms B], who [worked] at the school.

7. Given that there was an agreed change in the pattern of care of [Child 1] consequent upon her returning to school, it seems to the Tribunal that the appropriate care period by which to consider what Mr Michelmore’s and Ms Newhook’s respective pattern of care for [Child 1] would be, would be a period of 12 months commencing 28 January 2020.  Hence, consistent with what has been explained earlier, what the Tribunal must do in this case is determine what Mr Michelmore’s and Ms Newhook’s care of [Child 1] would have been for that care period based upon what was known as at 16 March 2020.

8. There is great controversy between Mr Michelmore and Ms Newhook regarding how frequently [Child 1] would be staying at her maternal grandmother’s house and how frequently she would be staying at their respective residences.  In other words, there is controversy between them regarding what the pattern of care of [Child 1] was likely to be following her recommencing her secondary schooling on 28 January 2020.  The only point of agreement between them is that it was expected she would be living a considerable time with [Ms B] and would be under care.  Further, it was known before 16 March 2020 that [Ms B] would be away during the April 2020 school holidays, and the evidence of both Mr Michelmore and Ms Newhook was that [Child 1] would be residing with Mr Michelmore during that holiday period.

9. Mr Michelmore’s evidence to the Tribunal was to the effect that preceding the change in [Child 1’s] care on 28 January 2020, [Child 1] spent virtually all of the time with him and very little time with Ms Newhook.  He said that sometimes [Child 1] would go months without seeing Ms Newhook or calling Ms Newhook.  He said that after [Child 1] went to stay with her grandmother to enable her to recommence her secondary schooling, she would still stay at his place every weekend.  His evidence was to the effect that, as had happened in the past, after she recommenced her schooling she would also be staying with him for all of the school holidays in 2020.  Mr Michelmore also said that after 28 January 2020, [Child 1] would also come and stay with him approximately once during the week, because her best friend was living in his house and [Child 1] was keen to spend time with her friend.  He said that he would collect [Child 1] from school and take her to school on the next day when that occurred. 

10. As mentioned above, Mr Michelmore’s sister, [Ms A], provided a statement that she signed on 22 December 2020.  In that she said that she and her husband and their young child had moved in to Mr Michelmore’s place on 7 January 2020 and remained there until August 2020.  She said that [Child 1] lived with Mr Michelmore on weekends over that period of time.  She said that between February and May, [Child 1] would “generally” return to her grandmother’s care on a Sunday night but that either she, her husband or Mr Michelmore would sometimes drive her to school on the Monday morning or during the week. 

11. Within the hearing papers is a statutory declaration that [Ms B] made on 27 July 2020 (pages 161-163).  In that [Ms B] declared that she [works at School 1] and that [Child 1] came to live with her on 28 January 2020 so that she could attend [School 1].  She attached to her statutory declaration a list of the days on which [Child 1] had resided with her between January 2020 and May 2020.  That list revealed that [Child 1] was with [Ms B] on 29 and 30 January 2020 and also for 14 nights in February.  She was not with [Ms B] between 28 February and 21 March.  During February [Child 1] stayed every Sunday night with [Ms B].  She was never with [Ms B] on any Friday evening in that period.  On some week nights she also was not with [Ms B].

12. Ms Newhook provided to Services Australia a calendar that she had prepared for the period 28 January 2020 to 10 May 2020 in which she had noted the days that [Child 1] stayed with her, her mother or Mr Michelmore (hearing papers page 164).  That calendar revealed that, according to Ms Newhook, [Child 1] resided with her on  28 and 31 January, on eight nights in February and on 10 nights in March before 16 March 2020.  According to that calendar, [Child 1] only resided with Mr Michelmore on three nights in February and four nights in March before 16 March.  It revealed that, consistent with what both she and Mr Michelmore had expected before 16 March 2020 would be the case with respect to the April school holidays, [Child 1] stayed with Mr Michelmore all of those holidays. 

13. Ms Newhook’s evidence to the Tribunal was that she prepared that calendar based upon entries she had made in her diary.  She also said that she checked it with [Child 1], prior to submitting it to Services Australia, and [Child 1] advised her that “it seems right”.

14. Mr Michelmore disputed the accuracy of Ms Newhook’s calendar. 

15. Ms Newhook’s evidence was also that there was no motivation for [Child 1] to return to Mr Michelmore’s place as a consequence of her close friend living there because [Child 1] and her friend had a falling out.  Mr Michelmore responded to that by saying that the falling out was merely just an argument which resulted in their not speaking for a couple of days only.  The Tribunal accepts Mr Michelmore’s evidence on this point.

16. Apportioning percentages of care between parents is not an exact science.  A precise calculation is often not possible.[2]

    [2] See P v Child Support Registrar [2015] FCS 116 at [88]

17. The Tribunal is satisfied by the evidence, and particularly [Ms B’s] statutory declaration, that [Child 1] would be spending more time with [Ms B] than with either of her parents following her recommencing secondary school on 28 January 2020. That is to say, in the Tribunal’s view the only certainty that emerges from the evidence is that [Child 1] would be spending far greater time at her maternal grandmother’s home following her recommencing her secondary schooling on 28 January 2020 than she would be spending at either Mr Michelmore’s or Ms Newhook’s respective homes. 

18. It is difficult to reconcile the conflict in the evidence between Mr Michelmore and Ms Newhook relating to where [Child 1] would reside when she was not residing at her grandmother’s house.  Given that before [Child 1] recommenced her secondary schooling she spent most of the time with Mr Michelmore, and given that it was always planned that [Child 1] would be spending the April school holidays with Mr Michelmore, and given further that [Child 1’s] closest friend was residing in Mr Michelmore’s residence, it seems to the Tribunal that, based on what was known as at 16 March 2020, [Child 1] would most likely be spending most weekends, that is, Friday and Saturday nights with Mr Michelmore and most of the school holidays. 

19. However, the Tribunal accepts that [Child 1] was spending some time with Ms Newhook and it is likely, noting that [Child 1] was spending more time with her maternal grandmother, that there would as a consequence be greater contact between [Child 1] and Ms Newhook and so consequently a greater likelihood of [Child 1] spending more time with Ms Newhook than she had in the past.

20. Doing the best it can on the evidence, the Tribunal considers that, when viewed based on what was known as at 16 March 2020, during the relevant care period it was likely that [Child 1] would be spending approximately 40% of the time with Mr Michelmore and 15% of the time with Ms Newhook, and the remainder of the time with her maternal grandmother. The Tribunal determines the percentages of care for Mr Michelmore and Ms Newhook accordingly.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 28 January 2020 Mr Michelmore’s percentage of care for [Child 1] is 40% and Ms Newhook’s percentage of care is 15%.