NYVN and Child Support Registrar (Child support second review)
[2023] AATA 249
•21 February 2023
NYVN and Child Support Registrar (Child support second review) [2023] AATA 249 (21 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4276
Re:NYVN
APPLICANT
AndChild Support Registrar
RESPONDENT
AndMQJP
OTHER PARTY
Decision
Tribunal:Ms A E Burke AO, Member
Date:21 February 2023
Place:Melbourne
The Tribunal sets aside the AAT1 decision of 10 May 2022 and in substitution NYVN has 39% care of the children from 31 August 2021 and MQJP has 61% care of the children from 19 July 2021.
...........................[sgd].............................................
Ms A E Burke AO, Member
Names used in all child support 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 sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – review of care percentage determinations –change in care – actual care not varied from arrangements as provided for in Court orders – interpretation of the percentage of care in dispute – conflicting evidence of extent of impact of special days on actual care provided – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)Cases
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Manifold and Manifold (Child support) [2019] AATA 1214
Peters and Child Support Registrar (Child support) [2019] AATA 5124
QXPD and Child Support Registrar (Child support second review) [2021] AATA 318
Rainforth and Child Support Registrar (Child support) [2021] AATA 3851
Stone and Lamalfa (Child support) [2020] AATA
Ware and Ware (Child support) [2021] AATA 3607Secondary Materials
Australian Law Reform Commission, Family Violence and Commonwealth Laws – Improving Legal Frameworks (Report No 117, February 2012)Department of Social Services, Child Support Guide (Guides to Social Policy Laws, version 4.69, 6 February 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
21 February 2023
The Applicant, NYVN, is seeking a second-tier review by the General Division of the Administrative Appeals Tribunal (AAT2) of a decision by the Social Security and Child Support Division of this Tribunal (AAT1) of 10 May 2022. The AAT1 set aside the decision of the Child Support Agency (CSA) of 5 November 2021 and substituted a new decision that from 31 August 2021 NYVN had 38% care and from 19 July 2021 MGJP had 62% care.
The application was heard on 23 November 2022 by telephone. NYVN and MQJP (the Other Party) were both self-represented. Mr Anthony Gardner, Solicitor at Minter Ellison, appeared for the Respondent, the Child Support Registrar.
BACKGROUD
The Applicant, NYVN, and the Other Party, MQJP, are the separated parents of three children born in 2008, 2010 and 2013 respectively, who the Tribunal will refer to as ‘the children’.
On 11 April 2018, NYVN and MQJP entered into a Binding Child Support Agreement pursuant to the Child Support (Assessment) Act 1989 (the CSA Act) when NYVN was living interstate.
On 31 August 2021, NYVN notified the CSA that a change in care arrangements from 19 July 2021 had resulted in a new care percentage calculation. CSA assessed NYVN would have the children for 142 nights (39%) and MQJP for 223 nights (61%). Previously the percentage of care which had been recorded and applied was NYVN with 37% care and MQJP with 63% care.
On 31 August 2021 a Child Support case officer made a care percentage decision that:
Decision is to accept the customer's request for a new determination of care percentage…
MQJP (current Receiving parent)
NYVN (current Paying parent)
Summary of the decision
Actual Care decision to be implemented for MQJP: 61%
Actual Care decision to be implemented for NYVN: 39%
Care recorded in the Child Support system for MQJP prior to decision: 63%
Care recorded in the Child Support system for NYVN prior to decision: 37%
The facts
Date of Event : 19/07/2021
Date of Notification: 31/08/2021
Discussions with the initiating customer:
‐ Advised change in care for children that occurred early July ‐ explained to customer how DOE works, and determined that correct DOE is 19/07/2021. Advised care is 5 nights per fortnight in term, and half and half care over 12 weeks of school holidays.
Discussions with the other party:
‐ Agreed to 5 nights per fortnight care with half and half school holidays, as well as to DOE 19/07/2021.
The evidence
Only parental statements were considered in making this decision. No further evidence was requested or provided.
The reasons for the decision
As there is agreement between the parents as to the percentage of care and date of event, the decision has been made to accept the care change as lodged
On 3 September 2021 CSA identified an error which it had made in the 31 August 2021 decision as it had calculated the percentage of care on the basis that NYVN had the children for 143 nights, however this was an error as CSA had recorded parties had agreed NYVN had the children for 142 nights. Accordingly, CSA determined that NYVN had 38% care and MQJP had 62% care of the children (the Original Care Determination).
On 7 September 2021 NYVN lodged an objection to the original care determination as he believed that he had the children for 150 nights per year or 41% care. He stated this was because in addition to having care of the children five nights per fortnight and half the school holidays, he also had them five of the nine school term weekends, half the school holidays, the night prior to and after his birthday, and an extra night before or after the children’s birthdays, depending on the year. NYVN further advised that in the past 12 months he had actually had care of the children for a total of 154 nights.
On 5 November 2021, the Registrar partially allowed NYVN’s objection (the Objection Decision):
We are writing to advise you that we have allowed in part the recent objection to our decision on 3 September 2021 to reflect the care of the children as 38% to NYVN (142 nights) and 62% to MQJP (223 nights) from 19 July 2021, notified on 31 August 2021.
…
SUMMARY OF OBJECTION DECISION
The outcome of this decision is that it has been part allowed.
We make the decision to apply the care arrangements for [the children] as 218 nights (60%) to MQJP, and 147 nights (40%) to NYVN from 19 July 2021
WHEN WILL THIS CHANGE TAKE EFFECT?
This change will be applied to the child support assessment from 19 July 2021
The effect of the objection decision is: The liability will decrease by $350.00
On 1 December 2021 MQJP applied to AAT1 for review of the Objection Decision as she believed the care arrangement was calculated incorrectly as the three extra nights added by the CSA had ignored the diary entries she had provided.
On 4 February 2022, Final Family Court Orders were entered into by consent between NYVN and MQJP.
On 10 May 2022, AAT1 set aside the decision under review. The Presiding Member at AAT1 decided:
The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of the children:
1. the existing care percentage determination of 63% to MQJP is revoked from 18 July 2021 and replaced with a new care percentage determination of 62% with effect from 19 July 2021; and
2. the existing care percentage determination of 37% to, NYVN is revoked from 30 August 2021 and replaced with a new care percentage determination of 38% with effect from 31 August 2021.
The Member stated in their decision:
The Tribunal notes that the Court Orders detail the treatment of special nights but do not reflect the corresponding percentages care.
…
Both parties agree that nights allocated “will vary slightly from year to year and are also dependent on which time frame is selected”.
The Tribunal does not consider that every deviation from an existing pattern of care constitutes a new pattern of care…
Both MQJP and, NYVN believe the Court Order requires the CSA to take into account the treatment of special days when calculating care percentage. The ‘special days’ related to occasions such as birthdays, Christmas, each parent’s birthdays, and Mother’s Day and Father’s Day. Sometimes the care each parent has for these special days will fall on nights of care they are already exercising. However, sometimes a parent will have care for a ‘special day’ at a time they would not otherwise have care. The position changes depending upon when the date upon which the special occasion falls and depending upon the various time frames for certain dates from time to time. Overall the Tribunal is satisfied that there is a consistent and equitable allocation of these types of special days. The Tribunal considers these variations are in the nature of minor variations in care and, of note, over time any extra special days of care to one parent or the other balance out. As discussed at the hearing it would not be a workable process for a change in care to require notification and a separate care decision each time there is a change for a day here or a day there and that is not what is contemplated by the legislation. Having had regard to all matters, the Tribunal considers the percentages of care determinations to be reflected for CSA purposes should be consistent with the agreed care occurring without additional care for special days to be taken into account.
As already noted at paragraph 22 of these Reasons, both parties agree that pursuant to the Court Orders, that from 19 July 2021 the likely pattern of actual care of the children by NYVN was 142 nights per year, that is, 38%, with minor variations for special nights, which are already noted, the Tribunal considers there are minor variations that are balanced out over time between the parties and should not alter the care percentages recorded.
It follows that the Tribunal determines that the likely actual care of the children from 19 July 2021 was 62% to MQJP and 38% to NYVN from 19 July 2021.
On 19 May 2022, NYVN requested a review of the AAT1 decision by AAT2 on the basis that:
·Significant evidence (i.e., actual nights per calendar) was ignored when establishing likely pattern of care
·Evidence provided by Mother was incorrect, actual nights in my care for the year from 19 July proving so
·Significant deviation between actual and prescribed care by the Member, greatly impacted % of care in period
·Material deviation which would not “balance out” as Member stated. This is inequitable to me as the Father
·Case law was ignored when considering pattern of care
issue
The issue for determination before the Tribunal is whether there has been a change in the pattern of care from 19 July 2021 and if so, what percentage of care applies.
LEGISLATIVE FRAMEWORK
The relevant legislation, the CSA Act, contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing the child and is often guided by a care agreement. In this case, the original determination of care was based on the court orders issued in 2022.
The term ‘percentage of care’ is defined in section 5 of the CSA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Subdivision B—Determination of percentage of care, Division 4 of the CSA Act contains the following provisions:
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and
(ii) is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
Section 54A of the CSA Act states:
54A Working out actual care, and extent of care, of a child
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 52 or 54.
The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the CSA Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide clearly outlines that the guiding principle of the CSA Act is the duty of care a parent owes to their child, which is not affected by the duty any other person has to maintain the child. The Guide states at 1.3.1:
Principal Object
·The principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents.
Particular objects
The particular objects of the CSA Act include:
·that the level of financial support is provided in accordance with the parents' capacity to provide financial support - parents with a like capacity should provide like amounts
·that the level of support should be determined in accordance with the costs of the children
·that carers should be able to have the amount of financial support assessed without the need for court proceedings
·that children share in changes in the standard of living of both of their parents, whether or not they live with both or either of them, and
·that Australia is in a position to give effect to its obligations under international agreements or arrangements which relate to maintenance obligations arising from a family relationship, parentage or marriage.
Duty of parents to maintain their children
·The CSA Act also states that a parent has a primary duty to maintain their child. This duty: is not lower in priority than the duty of a parent to maintain any other child or person
·has priority over all commitments of the parents apart from necessary commitments for self-support or necessary commitments to support another child or person that the parent has a duty to maintain, and
·is not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to receive an income tested pension, benefit or allowance.
The Guide, at 2.2.2, provides the following guidance on determining types of care determinations:
When determining a percentage of care, the Registrar can make the following types of determinations:
·a determination of the percentage of the actual care that each parent provides (sections 49 and 50)
….
The Registrar will usually determine a percentage of care based on the actual care that each parent or non-parent carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or non-parent carer is not complying with a written agreement, court order or parenting plan and an interim care determination is in effect
When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances.
The Guide provides definitions used to describe care for child support assessments at 2.2.1:
Once a care percentage has been determined, there are 5 different terms that may be used by the Registrar to describe a parent or non-parent carer's care:
Below regular care: A care percentage of 0% to less than 14%. This level of care does not affect the child support assessment.
Regular care: A care percentage of 14% to less than 35% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent or carer will not receive child support if they have a care percentage of less than 35% for a child.
Shared care: A care percentage of 35% to 65% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent with shared care can receive or be required to pay child support. A non-parent carer with at least shared care can receive child support.
Primary care: A care percentage of more than 65% to 86% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent will not be assessed to pay child support if they have more than 65% care.
Above primary care: more than 86% to 100% - will be recognised in the child support assessment as meeting all of the costs of the child. A parent with this amount of care is not required to pay child support.
The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.
TermPercentage of care Number of nights
Below regular 0 to less than 14% 0 to 51
Regular 14% to less than 35% 52 to 127
Shared 35% to 65% 128 to 237
Primary More than 65% to 86% 238 to 313
Above primary More than 86% to 100% 314 to 365
At 2.2.2 the Guide provides the following on determining a change in pattern of care:
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. The Registrar will need to determine the percentage of care that is likely to occur in the care period.
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
The Guide provides the following on determining whether care exists at 2.2.1:
Determining whether care exists
An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
Also at 2.2.1, the Guide provides the following on percentage of care:
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care.
A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).
…
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.
Consideration is given to who has responsibility for making arrangements for, and decisions about, the child's welfare, as well as who is meeting the child's costs, rather than just the accommodation arrangements themselves. The Registrar will give weight to statements from both parents and any non-parent carers.
EVIDENCE
The Final Family Court Orders of 4 February 2022 provide the care arrangement for the children on special days:
Notwithstanding any other order, the children shall spend additional time with each of the mother and the father on special occasions as follows:
During Christmas:
12.1.1 the children spend time with the father from 3pm on Christmas Day to 3pm on Boxing Day in odd-numbered years and from 3pm on Christmas Eve until 3pm on Christmas Day in even-numbered years;
12.1.2 the children spend time with the mother from 3pm on Christmas Day to 3pm on Boxing Day in even-numbered years and from 3pm on Christmas Eve until 3pm on Christmas Day in odd-numbered years; and
12.1.3 for the purposes of the time referred to in points 12.1.1 and 12.1.2 above, the children are to remain in …, unless otherwise agreed between the mother and the father.
12.2 During Easter:
12.2.1 commencing 2023, the children spend time with the father from after school (or 3pm on a non-school day) on the Thursday immediately prior to Good Friday until 3pm on Easter Monday in odd numbered years;
12.2.2 the children spend time with the mother from after school (or 3pm on a non-school day) on the Thursday immediately prior to Good Friday until3pm on Easter Monday in even numbered years; and
12.2.3 notwithstanding the provisions in 10 above, commencing Easter 2022, if Easter falls during week 1 of the school holiday period at the end of term 1, then the children shall spend the first week of those holidays with the parent they are spending Easter with.
12.3 On each child's birthday:
12.3.1 the children will spend time with the father from after school (or 3pm on a non-school day) on the day before each child's birthday until before school (or 3pm on a non-school day) in even-numbered years;
12.3.2 the children will spend time with the mother from after school (or 3pm on a non-school day) on the day before each child's birthday until before school (or 3pm on a non-school day) in odd-numbered years;
12.3.3 the children will spend time with the father from after school (or 3pm on a non-school day) on each child's birthday until before school (or 3pm on a non-school day) on the day following each child's birthday in odd-numbered years;
…..
12.3.4 the children will spend time with the mother from after school (or 3pm on a non-school day) on each child's birthday until before school (or 3pm on a non-school day) on the day following each child's birthday in even-numbered years; and
12.4 On the Mothers' Day weekend, the children shall spend time with the mother fro5pm on Saturday until before school (or 9.00am on a non-school day) on Monday.
12.5 On the Fathers' Day weekend, the children shall spend time with the father from 5pm on Saturday until before school (or 9.00am on a non-school day) on Monday.
12.6 The children spend time with each parent from 5pm on the day prior to that parent’s birthday until before school (or 9am on a non-school day) on the day after that parent's birthday.
MQJP provided a copy of her diary for the period of 5 July 2021 to 14 August 2022 which recorded the actual nights the children spent in her care.
Contentions
Respondent
Given the nature of the current proceedings, essentially a dispute between the father and mother as to the care provided to the children during the relevant period, the Respondent helpfully contended that the Registrar’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Registrar did not wish to advance a position as to the findings of fact that the Tribunal is called upon to make.
The Respondent submitted in its written material that:
(a) The core issue for the Tribunal to determine on review is whether there was a change in care from 19 July 2021 and if so, the percentage of care that should apply. The factual dispute between the parents appears to be how the special nights affect the pattern of care.
(b) The Applicant argues in his statement dated 7 September 2022 that:
These special nights constitute and should be included in a pattern of care. The question faced centres around the most equitable approach to accounting for these nights.
(c) The Other Party's position in her statement sent on 22 September 2022 is that she:
(i)‘was satisfied with the outcome’ of the AAT1 decision and the way it was explained made sense to her; and
(ii)‘would be willing to meet somewhere in the middle’ to resolve the matter with the Applicant by gaining 1% in the care percentage (from 38% to 39%) and the Other Party losing 1% (decreasing from 62% to 61%).
The Registrar submitted that the issues for the Tribunal's consideration in this review are as follows:
(a) First, the Tribunal should identify the change of care day and the appropriate care period.
(b) Secondly, the Tribunal will be required to determine whether there was a pattern of care during the care period and, if so, the actual percentages of care provided by the parents during that period. The Tribunal will need to make findings on the evidence presented by the parties as to their respective levels of care of the children during the care period.
(c) Thirdly, once the Tribunal has determined the care percentages for the care period, it will need to determine whether the care that took place was in accordance with the existing care percentage determination of 37% for the Applicant and 63% for the Other Party. If so, the decision under review should be set aside and substituted with a decision that no change in care took place from 19 July 2021.
(d) If the Tribunal finds different percentages of care in the care period to the existing care percentages detailed above, it must then determine which of ss 54F or 54H is applicable in deciding whether to revoke the existing determination. If the Tribunal decides to revoke the existing determination, it must make a new care percentage determination under s 49 or s 50.
(e) If the Tribunal finds percentages of care the same as those found in the decision under review (38% for the Applicant and 62% for the Other Party), it should affirm the decision under review.
(f) If the Tribunal finds percentages of care that are different from both the existing care percentages (37/63%) and those found by the AAT1 (38/62%), it should set aside the decision under review and substitute it with a decision that sets those percentages.
(g) Fourthly, if a new care determination is made, the Tribunal must then confirm the relevant date of effect in accordance with s 54F or s 54H of the Assessment Act.
Applicant (NYVN)
NYVN provided numerous submissions during these proceedings. His final written submission summarises his contentions:
In summary, the following should be considered in reviewing this case:
· The original and only evidence submitted by the mother is incorrect
· It is impossible, given the pattern and percentage of my care, for special nights to balance out to nil
· Previous cases in similar circumstances, using probability to determine percentage of care over a number of years, have been ignored
Firstly, using probability, given my lower amount of regular custody, my night count in any given year is an average of 146 nights, providing an additional allowance over and above the consistent 142 nights for probability in relation to all special nights (nights for the boy’s birthdays, father’s and mother’s birthdays, Fathers and Mothers Day, Easter).
These special nights constitute and should be included in a pattern of care. The question faced centres around the most equitable approach to accounting for these nights.
…
My position is based on case law, CSA guidelines and past CSA submissions. My submission considers both positions and aligns with the principles of fairness, objectivity and equality.
146 nights is fair and is also validated with regard to all circumstances as required by law.
It is more predictable to apply law of probability (an objective methodology applying facts and consideration to both parties) than provide an invalidated nil position to account for the special nights.
Thorough research has been conducted to understand the approach taken when there are conflicting viewpoints on the nights of care. There was one specific article that supported the approach to be based on probability. Whilst the Tribunal is not governed by articles and recommendations, its’ publication is further reasoning for consideration of special nights based on probability.
Australian Government, Law Reform Commission (ALRC)
Publication 18 August 2011 “Determination of percentage of care”.
…11.105 If the differences in information provided by the parties cannot be reconciled, CSA will determine the care percentage on the balance of probabilities….
As derived from the article, facts and evidence provided are all used to decide based upon logically probative evidence rather than speculation and what ifs.
There are numerous what ifs to the pattern of care in question; what if the holidays start 1-2 weeks later a year, what if term 1 starts on a Friday or a Monday (impacting fortnightly cycle), what if all special night’s land outside my care.
The proposed view is that the standard proof is proof on the balance of probabilities.
More likely than not the facts/ calculation relied on are correct i.e., more likely than not the calculation applying the law of probability to which you can rely your decision on is correct. Or to put another way the closest you can objectively get to being correct without bias to either parent.
A pattern of care position is proved to be true on the balance of probabilities if its existence Is more probable than the others, in this case the Mother’s position.
The question posed is which is more likely over the course of the custody arrangement for the Father;
· 146 based on the law of probability or;
· Numerous referenced years of 142, 144, 145, 147,148, 150, 152
How do you conclude on the correct position?
Which is more reasonable, validated by an objective approach and by probability not possibility?
Applying the Law of Probability provides:
·A comfortable degree of certainty of the night count
·The calculation is very clear o A fair determination and has assessed all possible outcomes
·Removes any subjectivity and is unbiased to either party
·It provides a ‘once and for all’ approach, rather than re-visiting
Manifold and Manifold (Child support) [2019] AATA 1214 (9 April 2019)
“In the absence of other evidence, the tribunal determines that on the balance of probabilities the care provided by Ms Manifold was 87%...”
…
The mother has close to 3 months of additional nights each year, it is inequitable and mathematically impossible to assume these special nights net to NIL based on this fact. The Mother had agreed on numerous occasions to the CSA, these nights do not net to NIL and are varying in nature which is logically reasonable. The Mother in all past submissions to CSA has not debated the approach of special night allocation to the me.
Despite this the Mother’s case in this submission centres on an inaccurate calendar. Her submission centres around one possibility in her favour without any concession to the Father’s position. This very linear and static opinion, which centres around one selected period, is not prospective over the course of the custody arrangement and does not have the ability to hold true for a further 10 years. …
Special nights and Easter nights do not net to NIL and therefore warrant exclusion:
The Member referred to the Father’s request for consideration of the alternating Easter holiday care arrangement but failed to specifically address in their conclusion/decision (unless this forms part of the decision that they net to NIL which is mathematically flawed as it includes a Thursday night which will always be additional to me and never net to NIL).
The Easter break includes an additional 4 nights holiday care each alternating year. The Father and Mother’s care percentage would change each year if the care period was refined to only 1 year i.e. including only one parent’s Easter care arrangement. The night count quoted in calendar count includes only the Mother’s Easter holiday (4 nights) and fails to account for my right to this time every second year. My request to include Easter was to ensure a fair and equitable approach to the night count. The inclusion aligned to the guiding principles in the CSA guide and supported by Case law.
As stated by the Member in their notes:
“The Tribunal has had regard to the Guides to Social Policy Law – Child Support Guide, Department of Social Services (version 4.56) (the “Guide”), which provides guidance for how care should be assessed under the relevant legislative instruments. The Guide assists in the interpretation of how the Act should be, and consistently is, applied. It is, of course, not compulsory for the Tribunal to follow the guide, but as Brennan J (as he then was) reflected in Drake, documents such as the Guide should be followed unless there is some compelling reason not to.[13] As a general principle, consistency in decision making will ensure that like matters are treated similarly, which promotes just and reasonable outcomes.”
The Member failed to provide a compelling reason as to ignore my request for the inclusion of the recurring Easter care arrangement, as the holiday fell within the definition outlined in the guidelines.
Member concluded without validation that special nights balanced out:
As stated by the Member in their notes;
Specifically point 32.
“…Overall, the Tribunal is satisfied that there is a consistent and equitable allocation of these types of special days. The tribunal considers these variations are in the nature of minor variations and balance out.”
“…agreed care occurring without additional care for special days to be taken into account.”
Lastly,
“…over time any extra special days of care to one parent or the other balance out”.
The Member concluded and repeated throughout the ruling and without validation that these nights balance out. This is mathematically impossible based on the weighting of nights and law of probability and averages. There appears a failure to consider all circumstances especially around night count weighting as the conclusion is drawn from possibilities as opposed to probabilities. This decision without validation contradicts the AAT Service Charter of being fair and just to both parents. The Member concluded without validation this position would hold true until 2031.
The Mother has 9 nights a fortnight and I have 5 nights. Or to put another way, the Member in the first review allocated me 142 nights and the Mother 223 nights but despite the 81 nights (2.7 months) difference in favour of the Mother, the conclusion was made that the nights would balance out and there is a consistent and equitable allocation of special nights.
Is there a level of reasonableness that despite close to 3 months (22% of the year) of additional care by the Mother these night would balance out?
Is providing the me with no additional nights for these special events fair and equitable?
The Members conclusion suggests the law of probability and the law of averages are flawed. The term equitable would mean the same allocation, despite the significant higher night count for the Mother, would net to NIL. The first decision infers that providing the me with zero count for the additional special nights despite the probability that at least 2 nights will be additional is 41%^^ vs the Mothers probability that 2 nights would be additional of 12%^^, is fair and impartial. The actual probability percentage argues the contrary.
The member failed to validate (and also demonstrate) how the Tribunal was satisfied that these nights balanced out. Without validation and awarding a much more favourable position to the Mother, it raises the question of appropriate regard to all circumstances. Referring to point 1, this decision is of material impact.
Case law also supports the inclusion of Special Nights in certain circumstances, e.g. Ware and Ware (Child support) [2021] AATA 3607 (21 July 2021).
What makes me comfortable in accounting for these special nights based on the balance of probabilities and trying to reach a compromise with the Mother, is that the Mother has agreed that these “special” nights (that total 7 nights as per the Orders plus 4 alternating Easter holiday nights i.e. 9 nights if you average out Easter) always vary are typically between 3 -4 extra nights per year.
…
The goal is to determine care prospectively as opposed to retrospectively, to ensure all circumstances are considered to be fair and equitable to both parties. The Mothers position fails to do so, providing a calendar for a selected period of time, which was also incorrect.
…
Specific circumstances which require consideration for appropriate assessment of care (with specific ref. to the signed Orders):
·When school year starts – this could be between the 1st – 7th February which affects the weekend start position (point 11 in the Orders)
·When school concludes and holidays commence, specifically Easter break which is dictated by Easter Sunday and can shift dramatically i.e. Easter 2022 is on 17 April; however Easter 2024 is much earlier on 31 March (point 12 in the Orders)
·Alt. weeks of holidays – each year the Mother and Father alternate between the first and second week of holidays (point 12.2 in the Orders).
·Alt Easter break – each year parents alternate who has custody of the boys over the Easter break i.e. 4 nights (point 10 specifically 10.1 and 10.2 in the Orders).
·Length of school holidays (most notably Easter which is impacted on when Easter falls i.e. late March to late April, this dictates the holiday break e.g. last year 2021 the Easter break was 3 weeks). Point 9.3.3 in the Orders addressing odd number of holidays. Please note: I have not included the possibility of me having additional nights as a result of a 3 week term holiday, which is still entirely possible
To predict what care looks like that holds true for the next 11 years ASSUMPTIONS must be made. There is no possibility of knowing what each school year looks like now.
Reinforces the need to approach the night count on a probable basis as opposed to possibilities.
…
In the case of, Peters and Child Support Registrar (Child support) [2019] AATA 5124 (17 July 2019), the challenge of set periods over holidays impacting the night count was addressed.
“… the Tribunal notes that the period started at summer holidays, which proportionally increases the holiday periods taken into over that period and therefore cannot be taken as the basis of a full year of care…”
…
Stone and Lamalfa (Child support) [2020] AATA 2138 (29 April 2020)
“…The child support scheme does not provide for a reconciliation or audit of care, but instead care determinations are intended to operate prospectively and indefinitely unless and until the Department is notified of a change to the pattern that will actually affect the assessment. An objection decision, or a review by this tribunal, should not be used as a means of achieving such an audit…”
…
In the case of, QXPD and Child Support Registrar (Child support second review) [2021] AATA 318 (26 February 2021) the question of what is deemed minor was addressed.
…Minor (in this incidence) was defined as 0.45% change to a care percentage.
The percentage difference for my care percentage is significantly higher than the “minor” difference of 0.45%.
Other Party (MQJP)
MQJP provided the following interpretation of the parenting orders:
The care arrangements for the children currently is 5 nights a fortnight with NYVN and school holidays are shared equally between parents.
The five nights a fortnight commenced at the beginning of term 3 2021 (the cycle started on 19 July) and prior to this in term 1 and term 2 2021, NYVN’s care alternated between four nights a fortnight and five nights a fortnight and on school holidays we shared equally between both parents.
From my calculation half of all school holidays is six weeks (therefore 6×7 nights = 42). Subtracting school holidays from 52 weeks in a year lease 40 weeks, 20 footnotes (therefore 20×5 nights = 100). Total 440 nights for NYVN and 223 for me.
There are a number of special occasion nights mentioned in agreement including the children’s birthdays, Christmas, both parents birthdays and mothers and fathers day. These nights are relevant to both parents, and have the potential for being extra night to both parents. These special occasion nights in some cases (in some years) are actually not extra nights as they fall during the allocated care arrangement and sometimes these nights can be true extra night as a fall in the period that the other parent has the children.
For example, the father’s day we just had (5 September) actually fell within NYVN normal routine so was not additional to nights as the children were already with NYVN.
NYVN birthday is another example .. Where it is not an additional night as the boys are already with him as part of his routine 5 nights a fortnight.
An example of where NYVN will get true extra nights (this year) is Christmas and.. Birthday.. I will have to forfeit 2 nights (this year) as Christmas and.. Birthday falls in the first week of term 4 school holidays, which is my week. Next year however NYVN will need to forfeit these nights to me as Christmas and.. will fall in his block of time, so I will get the extra 2 nights.
Another example of gaining nights is Mother’s Day next year when Mother’s Day falls in NYVN time so he will need to forfeit 2 nights to me so therefore I will gain 2 extra nights.
From my calculation 142 nights allocated to NYVN will vary slightly from year to year and is also dependent on which timeframe is selected. From calculations I’ve done the variation is usually 1 to 3 nights (sometimes NYVN will have more than 142 nights sometimes he will have less than hundred and 42 nights).
I have calculated that from July 19 2021 to July 19 2022, NYVN has 144 nights and I have 221. School holidays are not equal in this period of time NYVN has more. From the 25 July 2021 to the 25 July 2022, NYVN has 142 nights and I have 223. School holidays are equal in this block. From 12 August 2021 to 12 August 2022, NYVN has 130 nights and I have 226. School holidays are equal in this block.
MQJP provided the following written submission for these proceedings:
The nights of care are in accordance with the Orders which were finalised on 4 Feb 2022 and have been adhered to by both myself and NYVN.
I have forwarded a copy of the Final Orders for review.
The pattern of care since 19 July 2021 has been 9 nights a fortnight to me and 5 nights a fortnight to NYVN (during term time) and school holidays are shared equally. This gives NYVN a total of 142 nights and me 223 nights per year.
The problem arises with the ‘special occasion’ nights.
I was satisfied with the outcome of the last hearing and the way it was explained made sense to me.
It was described that the ‘special occasion’ nights of care were ‘variations’ in the general pattern of care (9 nights me, 5 nights) NYVN which is exactly what they are. Although the occasion itself does not change from year to year the particular day it falls on obviously changes from year to year and thus which parent has care at that particular time.
CONSIDERATION
The Tribunal is satisfied that there was a change in care from 19 July 2021 when NYVN and MQJP commenced the pattern of care agreed to by consent in family court proceedings which were eventually finalised on 4 February 2022. The agreement fundamentally provided for a two-week cycle of care, with the children spending five nights a fortnight with NYVN and nine nights a fortnight with MQJP. The order also provides that the children split their school holidays between NYVN and MQJP and provide for each parent to have additional nights with the children outside of this pattern to ensure each parent sees the children on special occasions such as birthdays, Christmas, Easter etc.
The Tribunal is satisfied that, at all relevant times since 19 July 2021, there was a ‘pattern of care’ for the children for the purpose of satisfying s 50(1)(b)(ii) of the Assessment Act. This was not in dispute. The percentage of care determined by the Tribunal must be based on the actual care that was provided to the children by each parent during the ‘care period’.
The Act states at section 50:
…the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
NYVN, MQJP and the Respondent all agree that the pattern of care for the children is that which is set out in the final parenting order and that is the actual care which the children are receiving.
NYVN, MQJP and the Respondent all agree that the dispute is not about the pattern of care but how the court orders have been assessed in percentage terms. The issue in contention boils down to whether special nights should form part of the assessment and allocation of care percentages.
NYVN, MQJP and the Respondent all contended and accepted that the assessment of the percentage of care must have regard to:
(a) the Parenting Orders which establish that NYVN has five nights of care of the children each fortnight and MQJP has nine nights of care each fortnight;
(b) the impact of calendar dates from year to year on special nights such as Easter when the parents would not normally have the children with them; and
(c) the impact of calendar dates from year to year, when the parents would normally have the children.
This was summarised in Member Prentice’s AAT1 decision:
Sometimes the care each parent has for these special days will fall on nights of care they are already exercising. However, sometimes a parent will have care for a 'special day' at a time they would not otherwise have care. The position changes depending upon when the date upon which the special occasion falls and depending upon the various time frames for certain dates from time to time.
NYVN contends that The Tribunal should adopt a probability methodology to balance out these special nights for the next 11 years to ensure these disputes do not arise each year. On this basis, NYVN contends that he has an average of 146 nights a year, equating to 40% care of the children. NYVN summarised his position as:
(a) These nine special nights do not net out to nil and therefore for a reasonable and just position, consideration needs to be given to both parents to conclude on an equitable final night count.
(b) These nine special nights each year are known and occur yearly; they are not one-offs, impermanent or temporary in nature and hence fall outside the definition of minor deviations.
(c) These nights are not minor and impact the percentage of care up to 2%.
(d) Objective and clear methodologies which consider each parent’s position support the suggested 146 nights.
(e) Case law supports both the recommendation of including special nights in the count and also the proposed methodologies to do so.
MQJP did not dispute that the pattern of care would be impacted by the special nights and that each year there would be a variance in the number of nights the children spent with each parent. MQJP summarised her understanding of the agreement the parents had arrived at by consent as follows:
From my calculation 142 nights allocated to NYVN will vary slightly from year to year and is also dependent on which timeframe is selected. From calculations I’ve done the variation is usually 1 to 3 nights (sometimes NYVN will have more than 142 nights sometimes he will have less than 142 nights).
MQJP summarised her position as:
I reiterate what I have said previously that I agree the 142 nights allocated to NYVN will vary slightly from year to year and is also dependent on which time frame is selected.
Sometimes he will have more than 142 nights.
I agree that NYVN had 145 nights from 19 July 2021 to 18 July 2022, but school holidays were not equal in that bracket of time.
As I suggested to NYVN recently I would be willing to meet somewhere in the middle to finally resolve this issue and also avoid another hearing process, i.e. him gaining 1% (making him 39%) and me losing 1% (making me 61%).
As the Tribunal has sadly observed on too many occasions, the final parenting orders were not straightforward, and what was an attempt to resolve disputes between the parents about having access to their children for special occasions has become a stumbling block and not a resolution to any future disputation.
The orders set out the days and time the children will spend with each parent, but this does not translate into a number of nights or percentage that CSA or Centrelink can adopt.
Whilst the Tribunal is fully aware that the final parenting orders are not about how much money a payer has to pay a payee; they are universally adopted as the basis on which such determinations are made. CSA determines how much a payer has to pay a payee and Centrelink calculates benefits in accordance with this determination.
The Tribunal observes that after the countless inquiries into the family law system in this country, it would be highly desirable to address the simple proposition that orders be drafted in such a way that they can be interpreted by those agreeing to them and that the orders clearly define the actual nights of care so it can easily be calculated as a percentage for each parent. This would be of enormous benefit to all involved, removing much of the angst around such determinations. The children concerned would be the ultimate winners as their parents would not be at constant loggerheads over the interpretation of an agreement to which they have in fact consented.
Regardless of the flaws in the system, the Tribunal finds that the final parenting orders determine the pattern of care for the children and provide the best guide to calculate the number of nights the children spend with each parent.
The Tribunal notes that numerous determinations of the percentage of care of each parent have been made, both by CSA and the AAT1:
(a) Payer NYVN 37% and Payee MQJP 63% - Old care arrangement (prior to 19 July 2021)
(b) Payer NYVN 39% and Payee MQJP 61% – the change in care determination of 31 August 2021
(c) Payer NYVN 38% and Payee MQJP 62% - the Original Care Determination (made on 7 September correcting the error made in the 31 August 2021 determination)
(d) Payer NYVN 40% and Payee MQJP 60% - the Objection Decision of 5 November 2021
(e) Payer NYVN 38% and Payee MQJP 62% – AAT1 decision of 10 May 2022
The Tribunal concurs with NYVN that even a 1% or 2% change in the calculation of a payer and payee’s percentage care is not trivial. Even a small change in percentage can have an impact on all concerned. The Tribunal cannot but agree with Senior Member Puplick in the mater of QXPD and Child Support Registrar [2021] AATA 318 (as cited by NYVN) which states at [12]:
It may appear that issues of 84%, 85%, 86% or 87% care (corresponding to 16%, 15%, 14%, 13% care, respectively) are mere quibbles. However, it is a matter of some significance because of the way in which the child support scheme operates.
The Tribunal also wholeheartedly endorses Senior Member Puplick’s acute observation at [13] that ‘The Acts themselves are models of complexity’. This observation is at the heart of the current review before the Tribunal. The combination of the complexity of the Acts and the complexity of the family court orders have left all concerned trying to ascertain what is the correct and preferable determination of the number of nights which NYVN and MQJP have care of their children.
The Tribunal does not find that the case law supports NYVN’s contentions that:
(a) special nights must be included in the nights of care count; or
(b) the care percentage is always determined on the balance of probabilities.
In the matter of Ware and Ware [2021] AATA 3607 Member Brakespeare concurred with other members that the parenting orders made over a two-year cycle are designed to ensure the nights of care parents have with their children will balance out, however this not the actual end result. The Member noted in that case that the special nights were of concern to the parents but did not make a finding in respect of the special nights, instead relying upon the calendar entries of actual nights of care provided. Member Brakespeare observed at [13]-[16]:
The care of the children is in accordance with a Court Order dated [in] May 2018 (the Order). Both parties agree that the Order is being complied with. Ms Ware said that due to when her special days fall, as per point 2.(c) of the Order she will have extra care in the calendar year commencing from 18 December 2020.
It is Mr Ware’s view that a two-year care period should be used to calculate the care percentages to take into account the odd and even year allowances for both parents in the Order. Ms Ware provided the tribunal with calendars for 2020 through to 2024. He calculated two figures, the first being his nights in care if special days were not counted, and the second being the nights in care if the special days were counted. Mr Ware told the tribunal that the Child Support Agency had advised that the special nights were not counted, as they usually end up with each parent having a similar number of special days.
Ms Ware told the tribunal that she agreed with the calendars provided by Mr Ware. However, she said that the special days should be counted as she ends up having the children in care for more nights once they are taken into account and the percentage of care determinations should be based on actual nights in care.
The tribunal takes the view that the care period in this case should be a two-year period, as the Order provides for care alternating depending on whether it is an even year or an odd year. The change occurs at the start of Term 1 of each year. Calculating the care on individual calendar years results in quite large variations from year to year; for example Mr Ware was entitled to have 174 nights care in 2020 and 160 nights care in 2021 if the Orders were followed strictly. The 2022 and 2023 calendar years are more uniform; they result in Mr Ware being entitled to 168 nights care and 169 nights care respectively. The tribunal is of the view that the point of alternating care between odd years and even years is to even out the care over the two-year period. It may have been assumed at the time the Order was made that each two-year period results in a standard amount of care days for each parent; however that is not the case.
The legislation and case law clearly articulates that the percentage of care determined must be based on the actual care that was provided to the children by each parent during the ‘care period’. A percentage of care determination can be made on the balance of probabilities in the absence of other evidence. This was clearly identified in the evidence which NYVN provided to the Tribunal from the following sources:
(a) The Australian Law Reform Commission’s (ALRC) report Family Violence and Commonwealth Laws – Improving Legal Frameworks (Report No 117, February 2012) which outlined the methodology for calculating child support and percentage of care, noting that CSA will determine the care percentage on the balance of probabilities if they cannot reconcile the information provided by the parties.
Determinations by the CSA
11.100 Amendments to the Child Support (Assessment) Act 1989 (Cth) have changed the rules for determining percentages of care from 1 July 2010.[103] From 1 July 2010, the CSA will usually determine the percentage of care based on the actual care that is occurring.[104] Actual care is generally based on the number of nights a person has cared for a child, or is likely to care for a child, over a 12-month period.[105]
11.101 The CSA may request information from the parties in order to determine care patterns. The Child Support Guide recognises that actual care may be reflected in care arrangements agreed upon by the parties.[106] Since the July 2010 amendments, care arrangements are defined by the Child Support (Assessment) Act as written agreements, parenting plans and court orders—including parenting orders and state and territory protection orders.[107]
When parties dispute the care that is occurring
11.102 Parties may disagree about the actual care that is occurring, and provide conflicting information about how much care each is providing. The Child Support Guide indicates that the CSA encourages parents to resolve such disputes. If the parties cannot resolve the issue, the CSA will request additional information and evidence from the parties.[108] The CSA will determine a percentage of care based on this information.
11.103 The Child Support Guide states that CSA will consider a ‘wide range of evidence’.[109] This may include documentary records, such as diary entries, and records of visits to services, such as health care providers. The CSA may consider its records of customer contact, as well as Centrelink information. The CSA may also consider third party statements, if the third party is willing to be identified as the source of information, and the statement is provided to the other parent.[110] The CSA has a policy not to obtain or consider information from children.[111]
11.104 The Family Assistance Guide is more illustrative than the Child Support Guide in relation to types of evidence that may be taken into account in determining percentage of care.[112] As the FAO and the CSA use the same rules to verify the actual care that is occurring,[113] it is likely that the CSA has regard to the same or similar evidence. Examples of evidence which may be taken into account by the FAO are outlined below.
11.105 If the differences in the information provided by the parties cannot be reconciled, CSA will determine the care percentage on the balance of probabilities. If the CSA cannot reach a conclusion on the balance of probabilities, then the CSA will assume that the state of affairs at the time the assessment occurred will continue, and the care percentage will not change.[114] It is unclear how the CSA makes a determination where there has not been a prior assessment.
(b) Members Y Webb and D Lambden stated in Rainforth and Child Support Registrar [2021] AATA 3851 at [22]-[23]:
For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and evidence of the pattern of care the person is, or was, likely to have at that point in time.
The phrase “pattern of care” which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[2] the AAT stated that:
...a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based.....The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.
(c) Member Longo stated in Manifold and Manifold [2019] AATA 1214 at [15]-[16]:
The tribunal is required to consider what the actual care Mr Manifold and Ms Manifold have had or are likely to have of [Child 1], [Child 2] and [Child 3] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case the Department determined that the care period should start on 22 January 2018. However, the Department was not contacted until 8 August 2018. In the absence of other evidence, the tribunal determines that on the balance of probabilities the care provided by Ms Manifold was 87% for [Child 1], [Child 2] and [Child 3] and that Mr Manifold had a percentage of care of 13% from 8 August 2018. This is based on the care of the children during school holidays and the additional days of care in May 2018.
The tribunal cannot be satisfied of any additional care Mr Manifold had of the children during the period. The evidence provided to substantiate additional care of the children does not support a positive finding that Mr Manifold had more than 52 nights of care of the children from 22 January 2018. Mr Manifold has not kept any records of his care arrangements with the children. The third party evidence provided, in the form of a statutory declaration does not provide any detail and clarity as to any additional care Mr Manifold had of the children, apart from the agreed dates discussed above. In addition, Mr Manifold’s evidence of when he had the children and which children were in his care was too unclear to enable the tribunal to make a positive finding that he had more than 52 nights of care of the children from 22 January 2018.
The Tribunal was at a loss to understand how NYVN could assert that each year there were nine known nights which would impact the care determination or that it was objective and clear that each parent’s position supports the 146 nights which NYVN asserted he had the children in his care. The Family Court order outlines special nights on which NYVN and MQJP will each have the children on alternative years, but this does not equate to additional nights of care as many of these occasions will fall on the night the children were already meant to be with that parent.
The Tribunal found both NYVN and MQJP to be credible witnesses with neither party disputing the actual care taking place. Where NYVN and MQJP differed was on the calculation of the special nights, though both agreed that the nights of care will vary from year to year.
The Tribunal notes both NYVN and MQJP expressed a desire to see their children on the special occasions agreed in the final parenting orders. As in the matter of Ware and Ware, the Family Court orders have been based on an alternating care pattern between odd and even years; the Member in that decision assumed this was so the nights of care even out overtime. The Tribunal does not make that assumption. Instead, the Tribunal finds that the orders reflect the normal family juggling act that one year you get Christmas day with the children, and another you don’t. As the Tribunal noted earlier, the Family Court orders do not take into account or make provision for translating the orders into nights of care or percentages.
The Tribunal finds that however you cut and dice it, there are still only 365 nights in each year and each year there will be a slight variance in the number of nights the children spend with NYVN and MQJP, but this does not need to be assessed on the balance of probabilities as it can be assessed on the actual nights of care as the children can only be in one place at a time. There is no dispute that the pattern of care will alter from year-to-year, factoring in the special nights of care. In some years NYVN will have more than 142 nights and some years he will have less. Likewise in some years the children will be in MQJP’s care more than 223 nights and some years less. To formulate this precious number seems beyond the wit of everyone and we cannot predict the future, when say the children refuse to attend on one or other parent on a special night of care. The only guide for the Tribunal is the nights of care in the court orders.
The Tribunal finds the actual nights of care contained in the court orders is the correct and preferable decision, that being 142 nights with NYVN and 223 with MQJP, including a factor for the special nights which results in NYVN having 39% care and MQJP as having 61% care.
Decision
The Tribunal sets aside the AAT1 decision of 10 May 2022 and in substitution decides that NYVN has 39% care of the children from 31 August 2021 and MQJP has 61% care of the children from 19 July 2021.
I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
............................[sgd]............................................
Associate
Dated: 21 February 2023
Date of hearing: 23 November 2022 Applicant: Self-Represented Other Party: Self-Represented Advocate for the Respondent: Mr Anthony Gardner Solicitors for the Respondent: Minter Ellison
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Statutory Construction
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Remedies
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Jurisdiction
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