Natt and Deller (Child support)

[2022] AATA 732

Natt and Deller (Child support) [2022] AATA 732 (11 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022934

APPLICANT:  Mr Natt

OTHER PARTIES:  Child Support Registrar

Ms Deller

TRIBUNAL:Member P Jensen

DECISION DATE:  11 March 2022

DECISION:

The decision under review is set aside and, in substitution, Mr Natt is recorded as providing 15% care and Ms Deller is recorded as providing 85% care with effect from 9 August 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether it is appropriate to consider daytime care – appropriate to consider daytime care – 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

1. This case concerns the recorded care of Mr Natt and Ms Deller’s [youngest child]. By way of background, the Child Support Agency (“the CSA”) recorded Mr Natt as providing 86% care and Ms Deller as providing 14% care for [the child] with effect from 5 July 2021. For convenience, I will predominantly refer to Mr Natt’s provision of care. Ms Deller has always provided the balance of care.

2. On 10 August 2021, Ms Deller reported a change in care from 9 August 2021: see the notation in the computer screenshot on page 188 of the hearing papers. The CSA has not provided its file note of that contact with Ms Deller. It appears that the CSA decided to record Mr Natt as providing 0% care with effect from 9 August 2021. The CSA has not provided documentation in respect of that care decision.

3. On 30 August 2021, Mr Natt informed the CSA that he had been providing hours of care (rather than nights of care) since 9 August 2021. Properly construed, Mr Natt was objecting to the decision to record him as providing 0% care from 9 August 2021. However, the CSA did not proceed on that basis. On 27 September 2021, the CSA made a second care decision in respect of the same change in care: it decided to not record a change in care from 9 August 2021. However, that decision was made in the context of the CSA having already decided to record Mr Natt as providing 0% care from 9 August 2021; it effectively made a second identical decision to record Mr Natt as providing 0% care from 9 August 2021.  

4. On 1 September 2021, Mr Natt objected to the CSA’s decision/s to record him as providing 0% care from 9 August 2021 and, notwithstanding those preceding irregularities, an objections officer reviewed the decision/s. The objections officer disallowed Mr Natt’s objection. Mr Natt promptly applied to the Tribunal for further review. I commenced a hearing on 1 March 2022 but it was quickly discovered that the CSA had omitted to send a copy of the hearing papers to Ms Deller. The hearing resumed on 11 March 2022, by which time Ms Deller had received a copy of the hearing papers. Mr Natt and Ms Deller gave sworn evidence by conference phone.

5. There is no dispute that a change in care occurred on 9 August 2021, at which point Mr Natt ceased providing overnight care. However, he continued to provide some care most days. On 30 August 2021 he stated that he generally provided care on weekdays from 3pm to 7pm and on weekends from 10 am to 7 pm. If that were correct, he would be providing (4 x 5) + (9 x 2) / (24 x 7) = 22.6% care. At the hearing he stated that he had informed the CSA that he was providing that general pattern of care because the CSA had told him that he was required to identify a particular pattern of care. He explained that his actual pattern of care was more flexible, but generally consisted of afternoon care and weekend care. On 10 September 2021 he provided the CSA with details of the actual hours of care that he had provided each day since 9 August 2021. On 24 September 2021 he provided the CSA with an updated list of his hours of care. At the hearing, Ms Deller stated that she did not dispute Mr Natt’s evidence as to when [the child] arrived at Mr Natt’s house and when he left his house. [The child] attended Mr Natt’s house most days, but not every day. According to Mr Natt’s evidence, which I accept, [the child] was at (or near) Mr Natt’s house for 179.75 hours during the 1128 hours from 9 August 2021 to 24 September 2021, which equates to 15.9% of the time.

6. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Relevantly, decision-makers are required to identify the pattern of care each parent has had, or is likely to have, during the relevant care period: section 50 of the Act. Percentages of care that are less than 50% are rounded down to the nearest whole percentage: section 54D of the Act. On Mr Natt’s account of events, his general pattern of care equated to 15% care.

7. On 5 November 2021 the CSA discussed Mr Natt’s provision of care with Ms Deller. Its file note of the conversation concludes as follows (with minor typographical errors in the original):

   Ms Deller does agree that Mr Natt provides regular care (or 15%) of [the child]. Ms Deller added there are times that she provides food for [the child] to take with him when he goes to Mr Natt’s. Ms Deller explained that Mr Natt does not pay for anything for [the child] ie school fees, uniofrms, extra cirricular.

8. As an aside, the objections officer who disallowed Mr Natt’s objection incorrectly read that paragraph as stating that Ms Deller had stated on 5 November 2021 that she “does not agree that Mr Natt provides regular care (or 15%) of [the child]”: page 17 of the hearing papers. At the hearing, Ms Deller said that when she agreed that Mr Natt was providing 15% care she was being generous and she had made the statement in the hope that it would bring the matter to an end.

9. On 8 November 2021 the CSA contacted Ms Deller again. Its file note of the conversation includes the following:

   Ms Deller did not allow me to explain anything or exchange any evidence provided by Mr Natt. Ms Deller refused to accept, Mr Natt has any care for [the child].

10. At the hearing, Ms Deller stated that when Shavin goes to Mr Natt’s house, it is often to visit the family dog or play on a computer. She said Mr Natt is not always at his house; he sometimes leaves the house to work as [an Occupation]. She said [the child] sometimes leaves Mr Natt’s house to play with a friend and later returns to Mr Natt’s house. In response to my questions, Ms Deller acknowledged that [the child] sometimes leaves her house to play with a friend and later returns to her house, and in her opinion, [the child] remains in her care during such times. Ms Deller’s broad claim appeared to be that, in her opinion, the care that she provides for [the child] is of a higher quality than the care that Mr Natt provides for [the child]. I do not consider it necessary to make a finding of fact on that issue. In my opinion, [the child] was in Mr Natt’s care from the time he arrived at Mr Natt’s house until the time he left Mr Natt’s house to return to Ms Deller’s house. For the reasons stated above, it follows that Mr Natt’s pattern of care from 9 August 2021 equated to 15% care.

DECISION

The decision under review is set aside and, in substitution, Mr Natt is recorded as providing 15% care and Ms Deller is recorded as providing 85% care with effect from 9 August 2021.