Ormandy and Ormandy (Child support)
[2025] ARTA 251
•29 January 2025
Ormandy and Ormandy (Child support) [2025] ARTA 251 (29 January 2025)
Applicant/s: Ms Ormandy
Respondent: Child Support Registrar
Other Parties: Mr Ormandy
Tribunal Number: 2024/MC028564
Tribunal: Senior Member S Trotter
Place:Brisbane
Date:29 January 2025
Decision:The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the children are 62% to Ms Ormandy and 38% to Mr Ormandy from 10 September 2023, effective in the assessment from 3 April 2024.
CATCHWORDS
CHILD SUPPORT – percentage of care – change to the pattern of care – separated under the one roof – new percentage of care determinations made – 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 pursuant to subsection 16(2AB) of the Child Support (Registration and Collection) Act 1988.
Statement of Reasons
BACKGROUND
As relevant to this application, Ms Ormandy and Mr Ormandy are parties to a child support case registered with Services Australia – Child Support (Child Support) from 3 April 2024 in relation to financial support to be provided for [Child 1] (born 2013) and [Child 2] (born 2016) (the children). The application concerns a single decision of Child Support about the percentage of care determinations for each parent for the children utilised in calculation of the child support liability from the commencement of the case on 3 April 2024.
On 30 May 2024, Child Support decided to accept an application for assessment of child support by Ms Ormandy and, based upon care percentages utilised by Centrelink, determined percentages of care of 72% for Ms Ormandy and 28% for Mr Ormandy of [Child 1] and [Child 2] from 10 September 2023 and 25 March 2024 respectively, effective from the assessment start date of 3 April 2024.
On 28 June 2024, Mr Ormandy objected to this decision and, on 5 September 2024, a Child Support objections officer partly allowed the objection determining percentages of care of 50% for each of Ms Ormandy and Mr Ormandy effective from the assessment start date of 3 April 2024.
On 13 September 2024, Ms Ormandy lodged an application with the Administrative Appeals Tribunal (the AAT) seeking an independent review of Child Support’s decision, stating as follows (unedited):
When we were separated under the same roof his objection was that he was having them 50/50 and the factual evidence that I supplied was that he left the house on a Thursday night and came back on a Monday night every second weekend. When he was home he was out the back playing xbox. And while he was paying mortgage I was paying everyday living costs groceries, medical costs and all the care and supports etc. Since moving out it has been said that I have 72percent and he has 28percent but when I put in the nights that I have the girls, CSA does the formula and it said that he had zero percent. Aside from that since moving out I've paid for my daughters [medical procedures] all her medical costs, assessment for ASD. also two older children one with ASD and one with [another conition] and I pay for all those costs as well. The disparity between our wages is about 140k. Since moving out it has only been 6 nights that they have stayed there all night and there are countless times on a Wed night when theyre meant to stay there and he will text me eg. for him to go to State of Origin. Throughout the 2 weeks of recovery from [specified] surgery. So most of the time they are returned home because they don't want to stay there and this week my 11yo has stayed there over the weekend and came home severely anxious scratched all her face and does not feel comfortable going there. So the psych said that she feels that its best atm to just day visit. So now I have to backpay him 5.5k but I am struggling. He has $200k in his bank account and I am accessing comm'y support. So they'll take my tax return and I wont get any child support until its paid back and we could end up homeless. I don't understand how they can make a decision like that based on the evidence that I provided based on week to week basis. I am struggling to get food on the table while he has a lavish life. Its at the point where [Child 1] is so anxious and I agree with the psych re no overnight visits. I wont deny acces.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are taken to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The hearing of the application was held on 16 December 2024. Ms Ormandy participated in the hearing by conference telephone and gave evidence on affirmation. Mr Ormandy was invited to participate in the hearing but chose not to participate. The Child Support Registrar also did not participate in the hearing. I adjourned the hearing to enable Ms Ormandy to provide further documentary evidence. Those documents were provided to Mr Ormandy for comment and his response has also been taken into account.
In considering the application, I took into account the oral evidence of Ms Ormandy, the documentary material provided by Child Support to the Tribunal, the applicant and the second party (Exhibit 1, pages 1 to 178), documents received from Ms Ormandy (Exhibit A, pages 1 to 14) and a documents received from Mr Ormandy (Exhibit B, pages 1 to 2).
ISSUES
The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.
I also had regard to the Child Support Guide (the Guide) where relevant. As recognised by the Federal Court in MDXJ v Secretary, Department of Social Services [2020] FCA 1767:
The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minster for Immigration and Citizenship [2010] FCAFC 20: (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself Minster for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569.
The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent from when the child support case was registered on 3 April 2024.
CONSIDERATION
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case if satisfied that a parent has a pattern of care of a child. The percentage of care then determined is that corresponding to the actual care a person had of the child during the relevant care period. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.
A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. However, it is recognised that there are some circumstances where determining the care over a shorter or longer care period may be more appropriate.
The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determination and the requirements of the legislation are satisfied for new percentage of care determinations to be made.
Both sections 49 and 50 first require consideration of whether the relevant person has had or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for the person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care … (the) person has had, or is likely to have, during the care period. Section 54A provides that 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 a child was, or is likely to be, in the care of a person.
The legislative test therefore first requires consideration of whether there is a pattern of care of a child for a care period and then assessment of the actual care a person has had, or is likely to have, during the care period.
Ms Ormandy’s position is that although at the relevant time she and Mr Ormandy continued to live separately under the one roof, she was providing substantially more care for the children including because Mr Ormandy spent a number of nights per fortnight away from the household and, further, even when he was at the house he was often playing Xbox and not participating in the care of the children. She therefore does not consider that the care should be recorded as 50/50.
Ms Ormandy’s evidence was that she and Mr Ormandy separated on 10 September 2023 and she and the children continued to reside in the family home until they moved out on 22 July 2024. From the time of separation she paid for all of the children’s expenses as she was cut off from Mr Ormandy’s finances.
Ms Ormandy referred to a three page document she provided to Centrelink (Exhibit 1, pages 56 and 57) where she set out the care routine for the children after separation prior to her and the children moving out. In summary, Ms Ormandy’s written document states as follows:
(a)Tuesday – Ms Ormandy woke [Child 1] and took her to swimming training on the way to work. Mr Ormandy picked [Child 1] up from swimming and took both children to school. She would pick the children up from school taking [Child 2] to gymnastics with [Child 1] either coming with her or being dropped home. Mr Ormandy occasionally offered to cook dinner on Tuesday night. When he was home he would be gaming online.
(b)Wednesday – Ms Ormandy left for work early while everyone was in bed and Mr Ormandy took the children to school. Wednesdays were Mr Ormandy’s allocated night with the children so she would leave the home for the evening coming back late.
(c)Thursday – Ms Ormandy woke [Child 1] and took her to swimming training on the way to work. Mr Ormandy picked [Child 1] up from swimming and took both children to school. Ms Ormandy picked the children up from school and usually purchased Subway for dinner prior to returning home to start the evening routine. Mr Ormandy left the home every second week on a Thursday morning returning on Monday night.
(d)Friday – Mr Ormandy usually made lunch for the children whilst Ms Ormandy was exercising but was not required to. Ms Ormandy dropped the children to school. On Ms Ormandy’s weekends, she picked the children up from school and had them 100% in her care until Tuesday morning.
(e)From the start of separation, the children were in her care 5/8 weekends as Mr Ormandy had commitments in Melbourne – Mr Ormandy would leave $40 for takeaway for the children but she paid the remainder of their daily living costs including groceries, entertainment, birthday parties, medication and medical appointment fees, haircuts, gymnastics (for [Child 2]), [Child 1’s] phone recharge and the majority of their clothing expenses.
(f)Mr Ormandy contributed to some of the household chores but less than 50%. Mr Ormandy was paying the mortgage because of the disparity in their wages, however, every cent she had went to the children’s costs.
At hearing, Ms Ormandy said that Mr Ormandy was meant to have the children every Wednesday night and every second weekend but that didn’t really happen. She has two older [children] who were in the house and invariably if she was not home, the older girls would be looking after the children rather than Mr Ormandy. He may have been there but he was usually playing Xbox and not actually caring for the children. Ms Ormandy said for the first eight weekends after separation in September 2023, she had care five weekends as Mr Ormandy was away in Melbourne with friends.
Ms Ormandy said the agreement about Wednesday nights and every second weekend for Mr Ormandy was reached in mediation in April 2024 and there was no concrete plan prior to then, however, Mr Ormandy was often away on weekends in Melbourne. Every second weekend he was away at least four nights, being Thursday, Friday, Saturday and Sunday nights and sometimes he would also be away on Monday nights. She recalls a text from Mr Ormandy in April 2024 when she was meant to be doing a trek when she ended up having the children for the whole weekend because Mr Ormandy had to be in Melbourne. Further, Mr Ormandy was in [Country 1] for a week in January 2024.
I discussed with Ms Ormandy that Mr Ormandy had provided a letter dated 25 July 2024 to Child Support (Exhibit 1, pages 58 and 59) confirming that they remained living in the same house until Ms Ormandy and the children moved out on 22 July 2024. Mr Ormandy states that from separation until 22 July 2024, the care of the children was equal and he paid the mortgage, utilities, home phone and internet and home and contents insurance. Further, Mr Ormandy had provided credit card statements showing the payment of household expenses including groceries, chemist, bakery, Netflix, swimming lessons and school expenses. Mr Ormandy submitted that care should be recorded as 50/50 from 3 April 2024 to 22 July 2024.
Ms Ormandy stated that she disagrees that they cared equally for the children stating again that even when Mr Ormandy was home he was usually off by himself playing Xbox. She did not dispute that Mr Ormandy had paid the expenses stated by him but said that she did not have access to his money and did not have capacity to work more than she did and she paid for the same sorts of household expenses as Mr Ormandy and also additional things such as medical expenses, haircuts and [Child 2’s] gymnastics fees.
Ms Ormandy sought to provide information after the hearing, namely a record of the nights when she said Mr Ormandy was absent from the household during the relevant period. She said that text messages would assist her in preparing the summary. I allowed time after the hearing for Ms Ormandy to provide that summary in calendar format based upon her review of text messages. The summary provided (Exhibit A, pages 2 to 13) reflected the nights both Ms Ormandy and Mr Ormandy were home (or Ms Ormandy had no record), the nights she had care of the children and the nights Mr Ormandy had care. The total nights in each category between 10 September 2023 and 21 July 2024 (316 nights) were as follows:
(a)Both Ms Ormandy and Mr Ormandy were at home or no record kept – 179 nights
(b)Nights Ms Ormandy had care – 104 nights
(c)Nights Mr Ormandy had care – 33 nights
Although Mr Ormandy elected not to participate in the hearing, as a party to the application he was provided with a copy of Ms Ormandy’s summary and given an opportunity to comment on it after the hearing. Mr Ormandy in response stated that while separated but living in the same house, during school terms of the period in question he would prepare and drive the children to school on Tuesday, Wednesday and Thursday as Ms Ormandy started work early on those days. Every second weekend, when it was his turn to be in the house, he would prepare the children for school on Monday and Friday while Ms Ormandy also worked.
Mr Ormandy further queried the validity of a calendar of the nature provided by Ms Ormandy in circumstances where the dates now date back 12 months and he has difficulty recalling specific dates unless he attended a specific event. In that regard, I observe that absent exact records of the actual care occurring, Ms Ormandy’s reconstruction of the care that occurred based upon text messages, together with her sworn oral evidence, is the best evidence before me upon which to reach a conclusion as to what care was occurring.
As to what care period is appropriate to consider, as already noted a care period is generally the 12-month period starting from the date the actual care of the child began or changed, however, in some circumstances a shorter or longer period may be appropriate. Given the undisputed evidence that the care position initially changed upon separation on 10 September 2023 and, further, changed again from 22 July 2024, I find that the appropriate care period in the circumstances is 10 September 2023 to 21 July 2024.
When parents are separated but living in the same house, care may be recognised as 50% to each parent. This is recognised at 2.2.1 of the Guide which states as follows:
…
Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. In this case, the Registrar will determine that each parent has a care percentage of 50%. This care percentage will remain in place until either parent is able to demonstrate that the actual care of the child is something other than equally shared.
…
However, as is also recognised, it depends upon the circumstances of each case. I accept that Mr Ormandy paid the mortgage, house and household costs noted by him. I do not accept that as initially submitted by Ms Ormandy at hearing that she paid all the expenses of the children. Rather I am satisfied that both parents paid for various expenses. However, I accept Ms Ormandy’s sworn evidence that Mr Ormandy was absent from the household overnight on a number of occasions during the relevant period and on those occasions he provided no care of the children such that I do not consider the usual position of 50/50 care for parents separated under one roof should apply. I accept Ms Ormandy’s calendar as the best evidence of the actual care of the children occurring during the care period. I accept Ms Ormandy’s evidence that on some occasions when Mr Ormandy was at home, he was separate from the children and otherwise engaged. Nonetheless it is clear he was providing care to the children, including for example in preparing the children for school and dropping them at school. I am satisfied that on the dates that both parents were at home, it is appropriate to record 50/50 care to each parent. As to the other dates, I am satisfied that Ms Ormandy provided 100% care on the nights indicated in her calendar in pink (104 nights) and that Mr Ormandy provided 100% care on the nights indicated in Ms Ormandy’s calendar in blue (33 nights). The percentages of care corresponding with those nights is 62% to Ms Ormandy and 38% to Mr Ormandy.[1] I further observe that I accept that the care position at all times from separation and during the care period was the same for [Child 1] and [Child 2].
[1] Ms Ormandy – 89 nights of 179 nights + 104 nights = 193 nights out of a 316 day period = 62% rounded up pursuant to paragraph 54D(a). Mr Ormandy 90 nights of 179 nights + 33 nights = 123 nights out of a 316 day period = 38% rounded down pursuant to paragraph 54D(b). Notably, the percentages remain the same whether the 179 nights is calculated with one extra night to Ms Ormandy or one extra night to Mr Ormandy.
Therefore percentage of care determinations of 62% for Ms Ormandy and 38% for Mr Ormandy for the children will apply from the start of the child support case.
As this is different to the decision of the objections officer, the decision under review will be set aside and a new decision substituted.
DECISION
The Tribunal sets aside the decision under review and, in substitution, decides that percentage of care determinations with respect to the children are 62% to Ms Ormandy and 38% to Mr Ormandy from 10 September 2023, effective in the assessment from 3 April 2024.
| Date(s) of hearing: | Monday, 16 December 2024 |
| Representative for the Applicant: | Self-represented |
| Representative for the Other party: | Self-represented |
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