Murphy and Hernandez (Child support)

[2018] AATA 4416

Murphy and Hernandez (Child support) [2018] AATA 4416 (24 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014375

APPLICANT:  Mr Murphy

OTHER PARTIES:  Child Support Registrar

Ms Hernandez

TRIBUNAL:Member S Letch

DECISION DATE:  24 August 2018

DECISION:

The decision under review is varied so that, with effect from 14 March 2018, care for [Child 1] is to be recorded as 67% to Mr Murphy and 33 % to Ms Hernandez.

CATCHWORDS

CHILD SUPPORT – Percentage of care – Pattern of care – Determination revoked and new determination made – Decision under review varied

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

BACKGROUND

1. On 14 March 2018, Ms Hernandez made an application for a child support assessment in respect of her son, [Child 1]. The application was accepted. She advised she had care of [Child 1] for 57% of the time, with the balance of time being spent with Mr Murphy, [Child 1]’s father. 

2. Mr Murphy advised the Child Support Agency (the CSA) that he had 56% care of [Child 1], not 43%. On 13 April 2018, the CSA determined that care for [Child 1] should be recorded as 50% to each parent from the date of the application.[1]

   [1] The issue before the Tribunal is the child support assessment and how care is to be recorded from the commencement of that assessment on 14 March 2018. The Tribunal is not required to consider the care situation from 1 September 2013, as referenced in the CSA materials.

3. On 17 April 2018, Ms Hernandez objected to the decision. On 12 June 2018, her objection was disallowed.

4. On 20 June 2018, Mr Murphy applied for review by the Tribunal. The Tribunal conducted a hearing on 24 August 2018; both Mr Murphy and Ms Hernandez participated in the hearing by conference telephone.

CONSIDERATION

1. The Tribunal observes Mr Murphy received some confusing and contradictory correspondence from the CSA. On 6 July 2018 (folio A63), a letter to Mr Murphy indicated from 14 March 2018 to 1 June 2018 (there was a subsequent care change with effect from 2 June 2018, which is not before the Tribunal), his child support assessment was ‘nil’. However, a detailed assessment notice issued on the same date records that, for the period 14 March 2018 to 1 June 2018, Mr Murphy was liable to pay around $400 per month. This was consistent with the CSA computer records. The Tribunal proceeded on the basis that Mr Murphy had been assessed to pay child support for this period in accordance with the notice at folio A71 of the materials.

2. Mr Murphy told the Tribunal that he has kept a diary in more recent times following Ms Hernandez’s application to the CSA. In the 55 days prior to his letter to the CSA dated 24 May 2018 (at folio 75), Mr Murphy recorded in his calendar that [Child 1] had spent 37 nights in his care (67%). He said he made those records every night [Child 1] was with him, along with other notes. He said this accorded with his general estimate that he had a minimum of 70% care. [2] He said Ms Hernandez had simply nominated a percentage in her application without having to provide any evidence; the onus was put on him to disprove Ms Hernandez’s unsubstantiated representations.

   [2] The Tribunal observe that whether care is recorded as 67% or 70%, the ‘cost percentage’ for the purposes of the child support formula is the same; in other words, child support liability will be the same in either case.

3. Ms Hernandez said she had [Child 1] for four nights a week for over four years prior to March 2018. She had [Child 1] Saturday, Sunday, Monday and Tuesday nights. She said ‘sometimes’, there were different arrangements during school holidays. However, she said the usual pattern was always four nights a week (or 57% to her). She said Mr Murphy has now ‘taken her son away from her’.

4. Mr Murphy said that Ms Hernandez’s evidence was ‘absolute nonsense’. He said [Child 1] was with him most Saturday nights, in addition to Wednesday, Thursday and Friday nights. [Child 1] would go back to Ms Hernandez late on a Sunday. He had [Child 1] for ‘weeks at a time’ during school holidays. Every long weekend he had [Child 1]. Mr Murphy said he has presented statements from a variety of people to the CSA proving [Child 1] is predominantly in his care. He said he has met nearly all of [Child 1]’s expenses. Mr Murphy suggested no weight should be given to the statement submitted from [Ms A] about Ms Hernandez – he said ‘she would not know what was going on’.

5. Ms Hernandez disputed [Child 1] regularly staying with Mr Murphy on Saturday nights – she said ‘there might have been a couple’. She said the statements submitted by Mr Murphy included a statement from a person living in [another State]; she said ‘they could not know’ the actual nights [Child 1] was with Mr Murphy. In relation to Mr Murphy’s recording of 37 nights out of 55 nights immediately prior to 24 May 2018, Ms Hernandez said her diary ‘doesn’t quite say that’. When pressed, she said she recorded 32 nights; when pressed for further detail, she indicated her records included June 2018 when there was a subsequent change in care. She said he has kept diary records since March 2018 — she said she made records ‘every second or third day’. Ms Hernandez told the Tribunal her diary shows what she has always maintained — namely, that she has four nights per week every week.

6. The Tribunal assessed Mr Murphy as a credible and straightforward witness. Ms Hernandez’s evidence was sometimes vague and unconvincing. To the extent of inconsistency in the parties’ evidence, the Tribunal preferred Mr Murphy’s account of events.

7. It appears that Mr Murphy, in the usual course, would have [Child 1] in his overnight care for four nights a week (including Saturdays), and additional periods in school holidays and public holidays. The Tribunal considers the best evidence of the likely pattern of care as of 14 March 2018 is the contemporaneous records kept by Mr Murphy in the 55-day period referred to above. The Tribunal finds Mr Murphy had [Child 1] for 37 nights in that 55-day period, or 67% of the time.

8. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be varied.

DECISION

The decision under review is varied so that, with effect from 14 March 2018, care for [Child 1] is to be recorded as 67% to Mr Murphy and 33% to Ms Hernandez.