Ogilvie and Sadiq (Child support)

[2020] AATA 5119

Ogilvie and Sadiq (Child support) [2020] AATA 5119 (28 October 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/MC019602

2020/MC019611

APPLICANTS:  Ms Ogilvie

Mr Sadiq

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member R Anderson

DECISION DATE:  28 October 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that the percentage of care attributed to Mr Sadiq in respect of [Child 1] and [Child 2] is 44% and the percentage of care attributed to Ms Ogilvie in respect of [Child 1] and [Child 2] is 56%, the effective date being 24 December 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – whether daytime care should be taken into account – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

REASONS FOR DECISION

BACKGROUND

1. Mr Sadiq and Ms Ogilvie are the separated parents of [Child 1] and [Child 2]. While the parents separated several years earlier, it was not until 24 December 2019 that Ms Ogilvie lodged an application for registration of a child support assessment with Services Australia – Child Support (the Agency). On 4 February 2020, the application for a child support assessment was accepted on the basis that care of the children was attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2] at 57% and 43% respectively.

2. On 14 February 2020, Ms Ogilvie objected to the decision of 4 February 2020 on the basis that the Agency had failed to consider the evidence she provided. On 14 July 2020, an objections officer of the Agency decided to allow the objection and determined that care of the children was attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2] at 43% and 57% respectively.

3. On 4 August 2020, Ms Ogilvie lodged an application with this tribunal for an independent review of the objections officer’s decision. On 5 August 2020, Mr Sadiq lodged an application with this tribunal for an independent review of the objections officer’s decision. The matter was heard on 6 October 2020. Mr Sadiq and Ms Ogilvie both participated by conference telephone and gave oral evidence on affirmation.

4. At hearing, both parties confirmed receipt of documents provided by the Department numbered 1 to 272. Information provided prior to the hearing from Mr Sadiq, numbered B1 to B39, was deemed not to be relevant as it did not relate to the relevant period. As discussed at hearing, photographs demonstrating care of the children in the period May to August 2020 and December 2017 is not relevant to this review.  Consequently, it was not exchanged with the parties or considered by this tribunal.

5. On 6 October 2020, the tribunal decided to defer making a decision in order to allow time for both parties to provide further supporting evidence to the tribunal. Additional information was received from Ms Ogilvie on 6 October 2020, numbered A1 to A19 and sent to the parties for comment. Mr Sadiq’s response was received on 13 October, numbered B40 to B46, and sent to the parties for comment.  Ms Ogilvie’s response, numbered A20 to A23 was received on 22 October 2020 and provided to the parties.  As no new information was included, documents A20 to A23 were provided to the parties for information only.  The tribunal then proceeded to make a decision.

ISSUES

1. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issues for determination in this review are:

   ·What is the correct level of care to be attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2]? And

   ·What is the effective date?

CONSIDERATION

1. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non‑parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

2. In accepting an application by a parent for registration of a child support assessment under section 25 of the Act, relevantly section 50 of the Act requires the Registrar (and the tribunal on review, standing in the shoes of the original decision maker) to determine the “pattern of care” a parent has had or is likely to have during a “care period” in regard to the children of the assessment.

10.The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care.  The “care period”  is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Agency’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 of a child began or changed. While the tribunal is not bound by such policy, in Drake and Minister for Immigration and Ethnic Affairs 1979 2 ALD 60 the Full Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case, the tribunal is satisfied that an appropriate care period is the 12-month period commencing 24 December 2019 and finds accordingly.

Issue 1 – What is the correct level of care to be attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2]?

11.Both parties confirmed to the tribunal that there were no court orders or written agreements in relation to the care of the children that were being complied with immediately prior to Ms Ogilvie lodging an application with the Agency to register a child support assessment on 24 December 2019.

12.The Agency has determined the care percentages attributable to the parents based on the pattern of care in respect of the number of nights that the children were likely in the care of Mr Sadiq and Ms Ogilvie in the care period.  The tribunal observed that there was no dispute in respect of the expected pattern of care from 24 December 2019 based on the number of nights in the week that each parent had care of the children, which had been so since [Child 1] commenced school in February 2019.  That is, that Ms Ogilvie had the children on a Monday, Tuesday and Wednesday night, while Mr Sadiq had care of the children on a Thursday, Friday, Saturday and Sunday night.  It was also undisputed that prior to Term 1 holidays in March 2020, there had been no change in care arrangements between school terms and school holidays.  Therefore, based on the number of nights, the tribunal calculates that the likely pattern of care provided by Mr Sadiq to [Child 1] and [Child 2] in the 12‑month period commencing 24 December 2019 to be 208 nights. This equates to a percentage of care of 57% (208/365), based on the rounding provisions under section 54D of the Act. Consequently, the percentage of care attributable to Ms Ogilvie in respect of [Child 1] and [Child 2] is 43%.

13.However, Ms Ogilvie disputes that this is a fair way to calculate the care percentages, given that she provides significant care for the children during the day and early evening on a Thursday and during the day on a Saturday when Mr Sadiq has been attributed with the overnight care.

14.The Guide suggests that a pattern of care is generally based on the “number of nights”, thereby the parent attributed with a particular night is also attributed with care of the child during the same day.  Yet at 2.2.1 of the Guide, it is recognised that there may be occasions where such a means of determining the “pattern of care”  does not accurately reflect the actual care provided by the parents.  It goes on to state that, “In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.”  In this case the tribunal regards the policy as a useful guide to applying the legislation and considers it consistent with the objects of the legislation.

15.In considering care based on the hours provided by each parent, the tribunal considers it appropriate to consider a 24-hour care period each day of the week commencing at 9.00am, when the children are generally dropped off at school and kinder/childcare. It is common ground that Mr Sadiq generally drops off [Child 1] and [Child 2] to school and kinder respectively on Monday morning and Ms Ogilvie collects them at around 1.45pm and 3.30pm in the afternoon.  This equates to 72 hours of care provided by Ms Ogilvie from 9.00am Monday to 9.00am Thursday (3days x 24hours). The children then remain in the care of Ms Ogilvie until she takes them to Mr Sadiq on a Thursday evening around 6.30pm to 6.45pm, already bathed, fed and ready for bed.  Mr Sadiq works on a Thursday. Ms Ogilvie stated that she also takes [Child 1] to [tutoring] classes on a Thursday afternoon. It is also undisputed that Mr Sadiq does the drop-off and pick-up for school and childcare on a Friday and the children stay overnight with him on a Friday evening. Consequently, the care of the children attributed to Mr Sadiq on a Thursday is approximately 14.5 hours from 6.30pm Thursday to 9.00am on Friday and 9.5 hours to Ms Ogilvie from 9.00am to 6.30pm on a Thursday. 

16.While it is agreed that the children stay overnight with Mr Sadiq on a Saturday, Ms Ogilvie maintains that she had care of the children from around 7.30am to approximately 7.00pm at night, as Mr Sadiq is required to work.  She acknowledged that since March 2020, Mr Sadiq’s mother has had care of the children on a Saturday. 

17.Ms Ogilvie further stated that she took [Child 1] to [Religious] classes every Saturday morning. Ms Ogilvie provided evidence after the hearing in the form of a letter from [Mr A] of [a Religious] School stating that Ms Ogilvie brought [Child 1] to and from classes every Saturday morning between 18 February 2019 and 16 March 2020.

18.Ms Ogilvie provided text messages after the hearing  in support of her oral evidence.  Of relevance is the following:

·Text message from Ms Ogilvie Saturday 9 November 2019, 18.54 –

“We are outside your house”

·Text message from Ms Ogilvie Saturday 30 November 2019, 18.57 –

“We are outside your house”

·Text message from Ms Ogilvie Saturday 7 December 2019, 19.12 –

“We are outside your house”

·Text message from Ms Ogilvie Saturday 14 December 2019, 14.19 –

“The kids will stay the night, am not working tomorrow, I will bring them to you at 1.30 tomorrow [foreign language expression].  So enjoy.”

·Text message from Ms Ogilvie Saturday 18 January 2020, 07.37 –

“am at the [Suburb] police station waiting to pick up my children”

·Text message from Ms Ogilvie Saturday 1 February 2020, 18.54 –

“We are at the [Suburb] police st”

Mr Sadiq – “15 minutes away”

·Text message from Mr Sadiq Saturday 8 February 2020, 7.29am –

“Bring them back with what they’re wearing this evening and they will come back to you with what they wore yesterday.”

·Text message from Mr Sadiq Saturday 8 February 2020, 18.27 –

“I’ll be there to collect the kids at 7.30pm.”

·Text message from Mr Sadiq Friday 6 March 2020, 10.16 –

“I’ll not require your assistance any period of time with the kids on Saturday. Please pick up the kids from [Suburb] police station on Monday at 9:am as there’s no school on Monday.”

Response from Ms Ogilvie:

“as u already know my daughter goes to [religious] studies on Saturday mornings.  I also get her hair breaded (sic) on Saturday because I know that you can’t do hair. No one will take the responsibility of looking after my children if it isn’t you! This is because I know that you work on Saturdays!  For that reason I expect my children in the morning please.”

19.Mr Sadiq strongly denied that there was an arrangement on a Saturday, stating that he generally works only three to four hours on a Saturday morning and that the children are cared for at his mother’s house.  A letter provided by Mr Sadiq from [Mr B] on [Employer] letterhead is undated and [Mr B]’s position is not noted.  The letter is clearly written during an earlier period when Ms Ogilvie was overseas, which would generally fall outside of a general “pattern of care” and also falls short of confirming Mr Sadiq’s usual working hours on a Saturday.  It merely states that his overall working hours are flexible. 

20.Mr Sadiq asserted that it was only on a rare occasion that Ms Ogilvie would be responsible for the care of [Child 1] and [Child 2].  His response after the hearing was that Ms Ogilvie has occasional care of the children on a Saturday when his family are required to run errands. He further stated that Ms Ogilvie lived five minutes from his mother’s home and as such spent time there with the children on a Saturday, an assertion disputed by Ms Ogilvie.  Due to an issue between Ms Ogilvie and his family, Mr Sadiq submitted that since 6 March 2020, Ms Ogilvie no longer attends his mother’s home.  Based on the text messages provided by Ms Ogilvie, it is evident that prior to March 2020 her care of the children on a Saturday into the early evening occurred on more than a sporadic occasion. Ms Ogilvie does not dispute that the care arrangements have changed since March 2020.

21.Mr Sadiq submitted that Ms Ogilvie brought [Child 1] to [Religious] School together with a member of his family on a Saturday and that she attended with his other three children.  However, a letter provided by Mr Sadiq from [Religious] School fell well short of discrediting the letter provided by [Mr A].  The letter was not from an individual, rather, it was from the “[Religious school] Management” with no name identified and made no mention of who brought [Child 1] to and from the school on a Saturday, nor did it make mention of the attendance by Mr Sadiq’s other children.  On balance, the tribunal is satisfied that the general pattern of care of the children as expected at 24 December 2019 was that Mr Sadiq has care of the children for a 22.5 hour period from 9.00am Friday to around 7.30am Saturday, Ms Ogilvie having care for 1.5 hours.  In respect of the 24 hour period from 9.00am Saturday to 9.00am Sunday, the tribunal is satisfied that the general pattern of care of the children as expected at 24 December 2019 was that Mr Sadiq has care of the children from 7.00pm Saturday evening to 9.00am Sunday, equating to 14 hours and Ms Ogilvie for 10 hours from 9.00am to 7.00pm on a Saturday. It is undisputed that Mr Sadiq has care of the children from 9.00am Sunday to 9.00am Monday, equating to 24 hours.

22.The tribunal calculates the likely hours of care provided for [Child 1] and [Child 2] by Mr Sadiq and Ms Ogilvie on a weekly basis in the care period from 9.00am Monday to 9.00am the following Monday to be 75 (0+0+0+14.5+22.5+14+24) and 93 (24+24+24+9.5+1.5+10+0) respectively. Consequently, based on the rounding provisions under section 54D of the Act, the percentage of care attributable to Mr Sadiq and Ms Ogilvie in the care period commencing 24 December 2019 in respect of [Child 1] and [Child 2] is 44% (75/168) and 56% (93/168) respectively.

1. The tribunal notes that there was mention at the hearing of a change to 50/50 care of the children during school holidays commencing from the first term school holidays in March 2020.  It appears that there is also a change in the care of the children on a Saturday from March 2020.  However, as discussed at hearing, the role of the tribunal is to consider the expected pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). As noted above, the tribunal’s task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.  This review is confined to the likely pattern of care in the care period commencing 24 December 2019, and any subsequent change requires notification to the Agency so that a new primary care percentage decision can be considered and made, if appropriate.

24.Accordingly, the tribunal finds that the care percentages attributable to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2] in accordance with section 50 of the Act are 44% and 56% respectively.

Issue 2 – What is the effective date of the percentage of care attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2]?

25.The Agency decided to register the care attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2] from 2 February 2019. The tribunal considers the effective date being set prior to registration of the child support assessment to be problematic under the child support legislation. Subsection 54B(1) of the Act sets out the days upon which a percentage of care determination is to apply as “each day in a child support period on and from the application day”. Paragraph 54B(2)(a) of the Act relevantly defines “application day” as the day on which the application referred to in subparagraph 50(1)(a)(i) refers. Subparagraph 50(1)(a)(i) of the Act refers to the application made under section 25 of the Act, being the initial application for an administrative assessment of child support. As such, under the child support legislation, the commencement date of the percentages of care attributed to Mr Sadiq and Ms Ogilvie is limited to 24 December 2019. Consequently, the tribunal finds that commencing 24 December 2019, being the application day, the percentage of care attributed to Mr Sadiq and Ms Ogilvie in respect of [Child 1] and [Child 2] is 44% and 56% respectively.

26.In the tribunal’s view, the relevant decision here for child support purposes required that care percentages be determined with effect from 24 December 2019, when Ms Ogilvie registered her child support application. Percentages of care attributable to Mr Sadiq and Ms Ogilvie in relation to an earlier period are required to be considered under the family assistance legislation.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that the percentage of care attributed to Mr Sadiq in respect of [Child 1] and [Child 2] is 44% and the percentage of care attributed to Ms Ogilvie in respect of [Child 1] and [Child 2] is 56%, the effective date being 24 December 2019.