Nicol and Griffin (Child support)

[2023] AATA 4299

Nicol and Griffin (Child support) [2023] AATA 4299 (16 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026357

APPLICANT:  Mr Nicol

OTHER PARTIES:  Child Support Registrar

Ms Griffin

TRIBUNAL:Member S Irvine

DECISION DATE:  16 November 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Nicol has 14% care and Ms Griffin has 86% care of [Child 1] from the beginning of the child support assessment, 21 March 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 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. Mr Nicol and Ms Griffin are the parents of [Child 1] who was born in 2016.

2. An application for a child support assessment for [Child 1] was made on 21 March 2023, and the application was accepted on 14 April 2023. Care for [Child 1] was reflected in the assessment as being 88% to Ms Griffin and 12% to Mr Nicol. In making the care determination, an officer of Services Australia – Child Support (Child Support) found that Mr Nicol did not have overnight care of [Child 1] but that it was appropriate to calculate his care in hours. Child Support found that Mr Nicol had care of [Child 1] for 21 hours per week.

3. On 21 April 2023 Mr Nicol objected to the care percentage decision for [Child 1], and on 15 June 2023 his objection was dismissed by an objections officer in Child Support.

4. Mr Nicol applied to the Administrative Appeals Tribunal for a review of Child Support’s decision on 5 July 2023.

5. A hearing of the matter was held on 10 November 2023. Mr Nicol and Ms Griffin both attended the hearing by telephone. Ms Griffin was represented by [Mr A] of [Law Firm 1].

6. On 9 November 2023 and on 10 November 2023 prior to the hearing of the matter, [Mr A] on behalf of Ms Griffin submitted documentation to the Tribunal including a summary of the hours Ms Griffin said Mr Nicol had care of [Child 1] since the beginning of 2023. As Mr Nicol did not have an opportunity to inspect those documents prior to the hearing, the Tribunal deferred its decision for a short period to allow Mr Nicol time to inspect the documents and make any submissions. In response, a further written submission was received from Mr Nicol on 16 November 2023. A copy of that submission is attached for the information of the parties.

7. In considering the application, I have also taken into account the documentary material provided by Child Support marked pages 1 to 115.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Tribunal may also have regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how Child Support legislation is to be applied. While the Tribunal should consider relevant executive policy enacted to guide the exercise of statutory power, and may apply that policy where appropriate, the Tribunal is not bound by such policy, and policy may not control the making of a decision (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; G v MIBP [2018] FCA 1229).

3. The issue arising in this case is what care determinations should be reflected in the child support assessment for [Child 1] from 21 March 2023.

CONSIDERATION

1. Sections 49 and 50 of the Act relevantly require that, where an application for a child support assessment in relation to a child has been made, the Child Support Registrar must determine each responsible person’s percentage of care for the child during the care period. The “care period” is defined only as “such period … as the Registrar considers to be appropriate having regard to all the circumstances”.

2. It is not disputed that Ms Griffin applied for an administrative assessment of child support in respect of [Child 1] on 21 March 2023, and consequently care determinations must be made in respect of [Child 1].  

3. At the hearing of the matter Mr Nicol and Ms Griffin agreed that a parenting order has recently been made which will change the care arrangements for [Child 1], including working toward overnight care for Mr Nicol. Mr Nicol explained that Child Support has been notified of the order and the new care arrangements, and that a change in care notification has been pended. Given that the care arrangements are about to change, I find that the appropriate care period to consider in this matter is the period from 21 March 2023 to the date of the hearing on 10 November 2023. This is a period of 235 days or 5,640 hours.

4. It is not disputed that during that period [Child 1] has lived with Ms Griffin, and Mr Nicol has not had any overnight care of [Child 1]. Rather, Mr Nicol has had care of [Child 1] on a regular basis on Tuesdays, Thursdays and Sundays, but the actual hours of care on those days is in dispute.

5. Subsections 49(2) and 50(2) require that the Registrar determine the responsible person’s actual care for the child during the care period. Subsection 54A(1) provides that the actual care may be worked out based on the number of nights the child was, or is likely to be, in the care of the person during the care period. However, the Guide (at 2.2.1) acknowledges that there may be some situations where the number of nights a child is in a person’s care over the care period will not accurately reflect the caring arrangements for a child, and in those situations the Child Support Registrar may consider whether it is more appropriate to calculate the number of hours of care for each parent.

6. In this case, I am satisfied that while Mr Nicol has not, over the care period, had any overnight care of [Child 1], he has provided daytime care on a regular and ongoing basis, to the extent that it is not reasonable to say he has no care. I find that this is an appropriate case in which to calculate Mr Nicol’s care on the basis of the hours he has cared for [Child 1].

7. Mr Nicol’s evidence at the hearing of this matter was that he has always cared for [Child 1] on Tuesdays, Thursdays and Sundays – although occasionally one of those days will be swapped for a different day during the week, or he may have an extra day from time to time. His evidence, in summary, was as follows:

   ·      On Tuesdays, Thursdays and Sundays he collects [Child 1] from Ms Griffin’s home at around 8.15 am and returns her at around 8 pm.

   ·      On days when [Child 1] has school he first takes her to his home, where she has breakfast and gets ready for school if necessary. Sometimes she will be already dressed for school when he picks her up, and sometimes she will have her school clothes with her and he will get her ready at his house. He takes her to school, leaving her there at 9 am, and he collects her at 3 pm and continues to care for her until he drops her back to Ms Griffin’s home between 8 pm and 9 pm.

   ·      The school is aware that he and Ms Griffin are separated, and the school communicates with each of them separately. He isn’t sure if the school has a protocol as to which parent to contact if they need to be contacted during the school day. There has only been one occasion during the year when [Child 1] has needed to be picked up from school as she was unwell. That was on Thursday 18 May, and on that day the school contacted Mr Nicol at around 9.30 am, and he collected [Child 1] from school and cared for her for the rest of the day.

   ·      On Sundays and during school holidays the hours were the same, at a minimum he cares for [Child 1] from 8.15 am to 8 pm on Sundays, and the same times on Tuesdays and Thursdays during school holidays.

8. Ms Griffin provided the Tribunal with a written summary of the hours of care she says Mr Nicol has provided for [Child 1] from 8 January to 30 June 2023. In summary, her written evidence was as follows:

   ·      7 hours per day on Tuesdays and Thursdays during school holidays

   ·      8 hours per day on Sundays during the January school holidays

   ·      45 minutes before school and 5 hours after school on Tuesdays and Thursdays during the school term

   ·      11 hours per day on Sundays during the school term, and also during the April school holidays

9. In response to questions from the Tribunal Ms Griffin, through her representative, said that on Sundays up until June Mr Nicol cared for [Child 1] from around 9 am until around 8 pm, and that is how the 11 hours were calculated. However, she conceded that since June Mr Nicol has been providing care from 8.15 am to 8 pm on Sundays. She said there was no particular reason for the change in time.

10. Mr Nicol disagreed, stating that he had always had care on Sundays from at least 8.15 am to 8 pm. He said that he takes [Child 1] to swimming lessons on Sunday mornings, and they start at 9 am. During school holidays there are no organised swimming lessons but he still takes [Child 1] swimming.

11. In response to further questions from the Tribunal Ms Griffin explained, through her representative, that the seven hours of care on Tuesdays and Thursdays during the school holidays was based on information that Mr Nicol gave to the objections officer. Ms Griffin’s representative pointed to page 95 of the Child Support documents, which is a record of a discussion between Mr Nicol and the objections officer. Child Support has recorded the following as part of the statement Mr Nicol made in support of his objection (with emphasis added):

    I pick [Child 1] up at 8am on a Tuesday and Thursday to take her to school. I pick her up after school on these days and have her till between 8-10pm. I am also the contact for the school therefore she is in my care Tuesdays and Thursday. She also spends Sunday with me from 8am until between 8-10pm. During school holidays I have her Tuesdays and Thursday from 12 or 1 until 8-10 and Sunday from 8am until between 8-10pm. When I drop her off at school and pick her up on Tuesday and Thursday I am also the contact at school therefore this should be my care. The hours of care would then be around 13 hours Tuesday, Thursday and Sunday during the school term and around 9 hours Tuesday and Thursday and 13 hours Sunday during the school holidays.

12. Ms Griffin confirmed that her evidence was that during school holidays Mr Nicol has care of [Child 1] from 1 pm to 8 pm on Tuesdays and Thursdays. In response, Mr Nicol stated that if he said that to Child Support it would have just been referring to a particular week, and he reiterated the usual practice was that he had care from at least 8.15 am to 8 pm on Tuesdays and Thursdays, including during the school holidays.

13. In relation to the six hours per school day when [Child 1] is at school, Mr Nicol contended that he continues to have care of [Child 1] during those hours on Tuesdays and Thursdays. As an example, Mr Nicol pointed to the occasion on 18 May when [Child 1] was unwell and he picked her up from school and cared for her for the day.

14. Mr Nicol’s evidence was that he does not keep school uniforms or a school bag for [Child 1] at his home, [Child 1] brings those with her when he picks her up in the mornings. In relation to her food during the day, Mr Nicol was previously ordering and paying for [Child 1]’s school lunches via the school’s online portal, however at some point during the year that has changed and Ms Griffin now sends food for the school day with [Child 1] in the morning. However, Mr Nicol stated that while he does not keep [Child 1]’s uniform or school bag at his home, he did buy her school bag and her school uniforms were either paid for by him or donated second-hand from family friends. Mr Nicol reiterated this in his written submission received after the hearing of the matter.

15. Ms Griffin, through her representative, provided a copy of [Child 1]’s school enrolment form, which lists Ms Griffin as the parent to contact first and Mr Nicol as the parent to contact second. I note that this form was signed by both parents in June 2021, which Ms Griffin confirmed was prior to the parents separating. Ms Griffin also provided screen shots of a text message that she sent to Mr Nicol, apparently in September, listing various school expenses totalling $284.50, which Ms Griffin said remain unpaid.

16. In his response to that evidence, received after the hearing, Mr Nicol reiterated his evidence at hearing, which was that the school is now aware that the parents are separated and therefore communicates with the parents separately, and that he is in regular contact with [Child 1]’s teacher and is an involved school parent.

17. It appears from the evidence provided that Ms Griffin concedes that Mr Nicol has had care of [Child 1] at least during the following times within the care period:

    ·      Tuesdays and Thursdays during school term – 5 hours and 45 minutes per day

    ·      Tuesdays and Thursdays during school holidays – 7 hours per day

    ·      Sundays up until the end of June – 11 hours per day

    ·      Sundays from the beginning of July – 11 hours and 45 minutes per day

18. Leaving aside the consideration of how care during school hours should be allocated, the points of disagreement are that Mr Nicol contends that his care on Tuesdays and Thursdays during school holidays is not 7 hours per day, but is 11 hours and 45 minutes per day, in other words the same pick up and drop off times as during school terms, and that he contends that he has always cared for [Child 1] on Sundays from 8.15 am to 8 pm, there was no change in June.

19. In relation to school holiday weekday care, Ms Griffin’s initial evidence was that the calculation of 7 hours per day on those days was based on Mr Nicol’s notification to Child Support that he had care of [Child 1] from 1 pm to 8 pm on those days referred to above, although Ms Griffin then reiterated that those were the actual times. I note that Mr Nicol’s actual notification as recorded by Child Support was that he cared for [Child 1] on Tuesdays and Thursdays during school holidays from 12 pm or 1 pm until between 8 pm and 10 pm – so a range of 7 to 10 hours.

20. It is not unlikely that there might be some more flexibility in pick up and drop off times during school holidays when [Child 1]’s schedule would be different to what it is during term. However, I am not persuaded on the evidence given that Mr Nicol’s care was as short as 7 hours per day during school holiday weekdays. It is difficult on the evidence to come to a precise figure, but I consider it likely that Mr Nicol had at least 9 hours of care per day on Tuesdays and Thursdays during school holidays.

21. In relation to care on Sundays, I note that Mr Nicol’s evidence is that he always picked [Child 1] up at 8.15 am on Sundays to take her to her swimming lesson that starts at 9 am (at least during school terms), and that the start time for her swimming lesson has not changed through the year. I also note that Ms Griffin was unable to identify any reason for a change to Sunday pick-up times in June. On that basis, I find that Mr Nicol has had care of [Child 1] from 8.15 am to 8 pm on Sundays throughout the care period.

22. By my calculation, this would equate to approximately 817 hours across the whole care period, or 14% of the total hours in the care period. This is calculated as follows:

    ·      28 Tuesdays occurring during term time at 5 hours 45 minutes: 161 hours

    ·      28 Thursdays occurring during term time at 5 hours 45 minutes: 161 hours

    ·      6 Tuesdays occurring during school holidays at 9 hours: 54 hours

    ·      6 Thursdays occurring during school holidays at 9 hours: 54 hours

    ·      33 Sundays at 11 hours 45 minutes: 387 hours

23. Mr Nicol’s contention is that he also has care of [Child 1] during the 6 hours per day that she typically spends at school on Tuesdays and Thursdays during the term. If that contention were accepted, it would add an additional 336 hours of care across the care period, bringing the total hours in care to 1,153 or 20%.

24. The question of which parent has “care” of a child, as that term is used in child support law, while the child is not in the direct care of either parent is a difficult one to determine. In most cases the percentage of care a parent has is calculated based on the number of nights the parents have the child in their care, which renders it unnecessary to divide up day-time care including hours at school with any particularity. In this case, I note that the evidence appears to support a contention that, at least during the care period under consideration, if [Child 1] were ill during the day and needed to be picked up at school, that responsibility would fall to Mr Nicol, at least on Tuesdays and Thursdays. On the other hand, the responsibility for preparing [Child 1]’s clothing, school supplies and food for a school day, including on Tuesdays and Thursdays, seems to fall mainly to Ms Griffin. In addition, I accept that both parents are in regular contact with [Child 1]’s school and involved with her school activities.

25. Subsection 54A(3) of the Act provides that, for the purposes of working out the actual care of the child for the purposes of a child support care determination, a child cannot be in the care of more than one person at the same time, so it is not possible for me to make a finding that [Child 1] is in the care of both of her parents while she is at school.

26. In a child support assessment, the percentage of care is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they provide for the child. The formula used in the assessment does not use the care percentage directly, rather the care percentage is converted to a “cost percentage” as set out in section 55C of the Act, and it is the cost percentage that is then used in the child support assessment.

27. According to section 55C, a cost percentage of 14% to less than 35% equates to a cost percentage of 24%. This means that if a parent has a care percentage for a child that is anywhere between 14% and 34%, the cost percentage will be 24%.

28. I have determined Mr Nicol has a care percentage for [Child 1] of between 14% at the lower end and 20% at the higher end. As any care percentage within that range will equate to a cost percentage of 24%, I find that it is not necessary to consider with particularity exactly how much care (if any) Mr Nicol has in excess of 14%, since additional care within the range he has submitted will not make any further difference to the child support assessment for [Child 1]. It is therefore not necessary for me to come to any conclusion in relation to the allocation of [Child 1]’s care during school hours.

29. On that basis, I find that from 21 March 2023 Ms Griffin’s care percentage for [Child 1] is 86% and Mr Nicol’s care percentage for [Child 1] is 14%.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Nicol has 14% care and Ms Griffin has 86% care of [Child 1] from the beginning of the child support assessment, 21 March 2023.