Parent A and Child Support Registrar Parent B OTHER PARTY
[2014] AATA 199
[2014] AATA 199
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/4581
Re
Parent A
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Parent B
OTHER PARTY
DECISION
Tribunal Mr S. Webb, Member
Date 4 April 2014 Place Perth The decision under review is varied such that the determination of 3 December 2013 is revoked as of 2 April 2013 and from that date Parent A’s percentage of care for C is 70 percent and Parent B’s percentage of care for C is 30 percent.
The matter is remitted to the Registrar to recalculate child support assessments for both Parents consistent with this decision.
.....(Sgd) S Webb....................
Mr S. Webb, Member
In this decision, pursuant to s 110X of the Child Support (Registration and Collection) Act 1989, the actual identities of the parents and the children will not appear. Rather, each will be identified by a letter of the alphabet.
Publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT - percentage of care – care period - pattern of care – actual care of child over 16 – factors relevant to the determination of actual care – change in pattern of care –determination of new percentages of care in a period – decision varied
LEGISLATION
Child Support (Assessment) Act 1989 (Cth), ss 5, 7B, 12, 49, 50, 54A, 54F, 54G
CASES
Polec & Staker & Anor. [2011] FMCAfam 959.
P v Child Support Registrar [2013] FCA 1312.
P v Child Support Registrar [2012] FCA 1398.
Secretary, Department of Social Security v Lowe [1999] FCA 705.
Van Cong Huynh v Secretary, Department of Social Security [1988] FCA 120.SECONDARY MATERIALS
Child Support Agency Guide 2012
REASONS FOR DECISION
Mr S. Webb, Member
4 April 2014
The Parents in these proceedings, who I shall refer to as Parent A and Parent B for privacy reasons,[1] have a daughter, C. A dispute has arisen between the Parents about child support liabilities under the Child Support (Assessment) Act 1989 (the Assessment Act). The sharp focus of this dispute under the legislation is each Parent’s respective ‘percentage of care’ for C. The respective percentages of care are necessary when applying formulae for the assessment and calculation of child support in the Assessment Act.
[1] In this decision, pursuant to s 110X of the Child Support (Registration and Collection) Act 1989, the actual identities of the parents and the children will not appear. Rather, each will be identified by a letter of the alphabet.
Publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
In order to understand the issues to be determined it is helpful to briefly set out the history of decision making that is relevant to exercise of the Tribunal’s jurisdiction.
On 3 December 2012, the Child Support Registrar (the Registrar) issued an assessment for the period 29 November 2012 to 30 June 2013, in which the cost percentage and the percentage of care for C of each Parent was determined - Parent B’s percentage of care for C was 100 percent and Parent A’s percentage of care was 0 percent. This was a continuation of previously existing percentage of care determinations over preceding years.
On 20 February 2013, Parent A challenged the percentage of care determination, alleging that C was not residing with Parent B and was not in Parent B’s care.[2]
[2] T4.
On 12 March 2013, the Registrar decided that as of 20 February 2013 Parent B’s percentage of care was 9 percent and Parent A’s percentage of care was 0 percent.
Parent B objected, disputing Parent A’s assertion that C was not in her care.
Subsequently, on 14 June 2013 an objection decision was made in which the percentages of care of Parent A and Parent B were upheld, but these were applied from 9 December 2012.[3]
[3] T34.
Parent B applied for review by the Social Security Appeals Tribunal. The SSAT decided that the 3 December 2012 determination should not be revoked, effectively re-instating the original percentages of care for C – 100 percent for Parent B and 0 percent for Parent A.
Parent A applied for review by this Tribunal.
In the meantime, on 24 July 2013, the Registrar issued a further determination that, as of 25 April 2013, Parent A’s percentage of care for child C was 70 percent. This decision stands, and it is not presently under review in these proceedings.
This means that the period in which the present issues of care for C must be decided runs from 9 December 2012 to 24 April 2013.
The issues of care to be determined during this period are –
(a)whether the 3 December 2012 determination should be revoked in the particular circumstances; and if so
(b)each Parent’s percentage of care for C, having regard to all of the circumstances and –
(i)whether a pattern of care for child C is established by either Parent during the period, and if so
(ii)the actual care of that Parent for C during the care period.
Revocation
The scheme of the Assessment Act provides for progressive decision making. Under this scheme, once a responsible person’s percentage of care has been determined under s 49 or s 50, the percentage of care applies to each day in a care period from the application day unless the determination is revoked under Subdivision C.
Under s 54F (in Subdivision C), the Registrar, and presently this Tribunal, must revoke a determination under s 49 or s 50 –
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1) If:
(a) a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b) if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(c) the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(d) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(e) section 54G does not apply;
the Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
If the conditions precedent to operation of the section are established, revocation of the responsible person’s percentage of care determination must follow.
Nonetheless, each case must be decided having careful regard to the particular facts and circumstances.
Parent B’s percentage of care was determined on 3 December 2012 under s 50. At that time, it was not established that Parent A had, or was likely to have a pattern of care for C during a care period. Without a pattern of care being established in a period, Parent A’s percentage of care must be determined under s 49 as 0 percent. This satisfies s 54F(1)(a).
Sections 51, 52 and s 54G do not apply in the particular circumstances. This satisfies s 54F(1)(b) and (e).
On 20 February 2013, the Registrar was notified by Parent A that Parent B’s actual care for child C did not match the determined percentage of care, being 100 percent. The assertion made was that C was not residing with Parent B, but was residing with her boyfriend and his mother, and that this had been ongoing from the end of November 2012. If this is made out it would satisfy s 54F(1)(c).
Section 54F(1)(d) will be satisfied if Parent B’s percentage of care of C is substantially reduced on the basis of actual care during the period, whereupon Parent B’s cost percentage would change.
In order to determine whether these sections are satisfied, it is necessary to consider the facts arising from the evidence.
For the purposes of the Assessment Act, ‘care’ is multi-faceted. It does not merely refer to the provision of accommodation or financial support for a child, but it carries a broader meaning that may include making arrangements for and decisions about the welfare of a child. In this context, ‘care’ may include looking after, dealing with, providing for, protecting, guiding and supporting a child. The manner and extent to which a person cares for and meets the needs of a child, by providing financial and other support for example, must be considered. This may be more difficult in the case of an older child, where the child is to some degree independent and provides for their own needs to a significant extent. That is so in the present case – during the period I must consider, C was over 16, in part-time employment, providing for some of her needs and exerting her independence from her mother, who had cared for her exclusively over preceding years.
The indicia of care set out in the Child Support Agency Guide 2012 (the Guide) and those referred to in Polec & Staker & Anor[4] at [56] provide a useful guide. But these are not exhaustive. At cl 2.2.1 of the Guide, the following appears –
[4] [2011] FMCAfam 959.
2.2.1: Basics of Care
…
Determining whether care exists
…
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 does the person have 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
o arrangements for others to meet the needs of the child.
·To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricula activities?
·To what extent does the person pay the costs of meeting the needs of the child?
·To what extent does the person otherwise provide financial support for the child?
·To what extent does the child provide for his or her own needs or have those needs met from another source?
·To what extent is the child financially independent or financially supported from another source?
…
Percentage of care
…
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…
…
If the Registrar is not able to determine a care percentage based on the actual care, the Registrar will generally accept that the parents share the care of their children equally. 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.
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time.
Example
A person can provide care for a child who is at boarding school, in hospital or in separate accommodation. A person who simply supervises the child (for example a baby sitter, a child minder such as a grandparent, a school teacher) 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.
…[5]
[5] The Guide at T4 folios 38-43.
Matters of this kind were considered in Polec’s case, P v Child Support Registrar[6] and P’s second case. Each of P’s cases clearly articulates the law and stands as binding authority.
[6] [2012] FCA 1398.
In P v Child Support Registrar[7] (P’s second case), Wigney J said –
107. In my opinion, however, paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.
108. Nor is Polec authority for the proposition, as Mr P contends, that in all cases where a child is not residing with his or her parents, the financial arrangements for meeting the child’s needs are a “paramount consideration”. Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.
[7] [2013] FCA 1312.
I do not accept Parent A’s submission that the principle discussed by the Full Federal Court in in Secretary, Department of Social Security v Lowe[8] at [11] to [14] has no application to the present circumstances. Under the Assessment Act, actual care is not confined to circumstances in which the adult carer and the child are physically present, together. The conception of care is much broader than that, as cases such as Lowe’s case, Van Cong Huynh v Secretary, Department of Social Security[9], albeit under different legislation, and P’s second case clearly demonstrate.
[8] [1999] FCA 705.
[9] [1988] FCA 120.
By his own account, Parent A does not have immediate contemporaneous knowledge of Parent B’s actual care of C from October 2012 until March 2013. He told me that he “lost contact” with C during this period following a dispute about a mobile telephone and there were no communications between them. It appears that he did not communicate with Parent B during this period. The information he provided the Registrar on 20 February 2013, that C was not living with Parent B, was obtained by Parent A’s partner from a friend. Parent A told me that, later, in discussions with C, she confirmed the information provided – that she had not been residing with her mother from the end of November 2012, but had been living with her boyfriend at his mother’s house. For privacy reasons, I will refer to C’s boyfriend as ‘J’.
Parent A obtained an unsworn statement from J’s mother, in which she confirmed that C had been living with her for the “past 3 months”[10]. J’s mother was not called to give evidence, so this aspect of her statement could not be tested. Against this is Parent B’s sworn evidence, that C was residing with her throughout this period, albeit that during the last school term of 2012, C spent weekends and, rarely, week nights at J’s mother’s house. Parent B gave evidence that C would return late on Sunday nights from J’s mother’s house, having not completed her homework. This was the cause of some conflict in their relationship. Parent B informed me that C decided to change schools in the latter part of 2012. She acceded to this and made the necessary arrangements, including in relation to the selection of subjects that C wanted to take and administrative arrangements for communication between herself and the new school.
[10] T9 folio 24.
I am satisfied that Parent B’s evidence is to be preferred over that of J’s mother. Parent B gave sworn evidence that was subject to testing during the hearing, whereas J’s mother was not called. Her statement was not sworn and it could not be tested in the usual way. Furthermore, it is not consistent with aspects of Parent B’s evidence that I accept are reliable.
It appears that C’s sleeping arrangements at J’s mother’s house was a cause of some conflict with her mother. Parent B told me that J’s mother gave her an undertaking that C would sleep in a room separate from J while staying in her house, but in or about November 2012, she became aware that this was not being adhered to. She was not happy with this and discussed it with C and J, and with other family members. She told me that nothing came of this as C was over 16 and able to make her own decisions. Thereafter, by her own account, she maintained regular communication with C and with J, who sought her advice on various relationship issues involving C from time to time, although C did not like this and it, too, was a cause of minor incidental conflict.
On Parent B’s evidence, during the summer holidays C spent more time with her boyfriend and at his mother’s house than during the preceding school term - four or five nights and sometimes more nights each week. I accept Parent B’s evidence that she maintained frequent regular contact with C while she was staying at J’s mother’s house, and that she maintained an ongoing role in providing emotional support to C and in making decisions about C’s education.
It appears that C turned to her mother for emotional support when she encountered difficulties in her relationship with J, including on 1 April 2013 following the breakdown of that relationship. This is indicative of Parent B’s continuing role providing emotional support and care for C. Parent A may have increased the level of support for C from on or about 10 March 2013, but this followed a period of several months in which he had no contact whatsoever with C.
On commencement of the first school term of 2013, C attended her new school and undertook some subjects at TAFE. Parent B gave evidence of extensive discussions with C about her year 12 course and subject selections, and subsequent changes. This is consistent with Parent B providing ongoing care for C. Parent A was not included in such discussions with C or in related decision-making.
I accept Parent B’s oral evidence that she provided financial support to C, at least in terms of providing a home and paying for school fees. On this point, however, I note that the absence of documentary evidence about the extent of Parent B’s financial support for C from 9 December 2012 makes assessing this aspect of care difficult.
That notwithstanding, Parent A’s assertion that Parent B did not provide any financial support for C in the period from 9 December 2012 is not consistent with facts and the evidence, and it appears conjectural – during this period, Parent A had no direct involvement with C until 11 March 2013.
Parent A provided evidence of his financial support for C in Exhibits 1 and 2. I note that these documents specify expenses after 11 March 2013.
C was in part-time employment over the summer of 2012-2013, and I accept that she paid for some of her own needs.
It is possible that C’s boyfriend J contributed to help C meet her needs from time to time, as Parent A asserts, but this is not established on the present evidence. It is also likely that J’s mother provided C with support, in the form of meals for example, when C was staying at her house. J’s mother stated that C contributed $50 towards household costs, but it is not established when this occurred. It is not alleged, and it is not established, that J’s mother provided ‘care’ for C for the purposes of the Assessment Act.
Considering these matters, it is probable that Parent B provided some degree of financial support to C, in respect of living, social and recreational expenses, although I am not able to determine the extent of her support with any precision.
On 11 March 2013, it appears that C informed Parent B that she wanted to stay with J at his mother’s house, full time. Parent B was adamant that this was the only time in which C stayed full time at J’s mother’s house, and that it was simply a temporary arrangement[11]. I understand that C’s relationship with J was volatile and it did not last beyond 1 April 2013. On that day, there was an altercation and C returned to her mother’s house that night.
[11] Exhibit 3, page 2.
The following day, C attended a doctor with her mother in order to obtain treatment for a minor leg injury, after which she stayed with Parent A. I accept Parent A’s evidence that he had discussed this injury with C and arranged a doctor’s appointment. I also accept that Parent A’s partner collected six garbage bags of C’s possessions from J’s mother’s house soon thereafter. But this does not establish that C was residing at that house, rather than staying there temporarily with her boyfriend. Parent B’s evidence that C kept most of her clothes and personal items in her bedroom at home stands contrary to this proposition.
Parent A and Parent B agree that from 2 April 2013, C divided her time between their respective houses as follows (by nights) –
(a)2 to 24 April 2013 – with Parent A;
(b)25 to 30 April 2013 – with Parent B;
(c)1 May 2013 – with a friend;
(d)2 to 7 May 2013 – with Parent A;
(e)8 to 13 May 2013 – with Parent B;
(f)14 to 17 May 2013 – with Parent A;
(g)18 May 2013 – with Parent B;
(h)19 May to 1 June 2013 – with Parent A;
(i)2 to 12 June 2013 – with Parent B;
(j)13 to 29 June 2013 – with Parent A;
(k)30 June to 2 July 2013 – with Parent B;
(l)3 to 31 July 2013 – with Parent A.
Even though these dates are apparently agreed between the Parents, Parent A challenges much of Parent B’s evidence. He points to alleged inconsistencies and unfounded assertions in Parent B’s evidence that are contra-indicated by documents he produced. For example, Parent B’s father stated that he gave C driving lessons on most nights during the period under consideration,[12] but C’s learner driver log book records that this occurred on only two occasions in the preceding period.[13]
[12] T7 folio 22.
[13] Exhibit 4.
Parent B explained that on many occasions her father gave C short driving lessons after school, of only 10 to 20 minutes duration that commonly were not recorded in C’s learner driver log book as C often left the log book at home or in J’s car. As there is no evidence that J was a supervising driver for C, why C’s log book would be in his car is not explained. To my mind this is a rather dubious assertion, but it is not difficult to accept that some short lessons with her grandfather after school may not have been recorded in the log book. This alleged inconsistency, and other inconsistencies concerning dates that Parent A raised, are not sufficient to satisfy me that Parent B’s evidence is not reliable, or that it should not be accepted.
While Parent A has formed views about changes in Parent B’s care for C that are supported by certain documents, his views and the documents on which he relies permit more than one explanation, especially as he was not directly involved for much of the period I must consider. The minor discrepancies he has identified in accounts Parent B has given over time may have a reasonable explanation, consistent with her evidence. I do not accept Parent A’s submission that Parent B’s evidence is not reliable and should not be accepted. That is not established. Parent B gave her evidence in a forthright manner, as did Parent A.
I am not persuaded that the periods in which C stayed with her boyfriend at his mother’s house, from 9 December 2012, should be construed as C taking up residence at J’s mother’s house. To my mind, the days C spent at J’s mother’s house were but temporary absences from her usual residence with her mother. I do not accept and the present evidence does not establish that C moved out of her mother’s house in or about November 2012 to take up residence elsewhere, with her boyfriend. Even if it was established that C took up residence at J’s mother’s house, it would not follow that Parent B’s care for C came to an end at the commencement of such a change.
The fact that C spent periods of time, extending to a number of weeks, away from her mother’s house over the summer holidays of 2012-2013 does not mean that she was not in Parent B’s care. Assessment of Parent B’s ‘actual care’ for C is not confined to the method set out in s 54A in respect of nights. To my mind, C’s absence from the home where she had lived with her mother for many years may be likened to a child of 16 spending a number of weeks away from home at a boarding school, or during the summer recess from school, camping with friends or undertaking a holiday in a different place for example. When a child is absent from his or her home in this way, it does not follow that the existing pattern of care comes to an end or that the level of care being provided by the parent with whom she has lived, exclusively, for several years is reduced to the extent that the parent’s percentage of care should be reduced, although that may arise in some circumstances.
I have no difficulty in concluding that Parent B’s previously existing pattern of care for C is not disrupted by periods in which C stayed with her then boyfriend at his mother’s house from 9 December 2012 to 1 April 2013. It appears that C had been staying over at her boyfriend’s house on weekends and occasionally during the week for some time previously. And there is no suggestion that this affected Parent B’s already established pattern of care for C. When C increased the amount of time she spent with her boyfriend over the summer school recess, it does not follow that Parent B’s pattern of care came to an end, or that her percentage of care for C reduced.
Where a child stays overnight (or resides) from time to time is but one of a number of factors to consider when deciding issues of care under the Assessment Act.
On the present evidence, it is reasonably clear that Parent B’s control of C and her responsibility for making major decisions about C’s living arrangements, health, education, discipline and social activities were tested by C during the period I must consider. C was 16 at the time and, it appears, was exerting her independence from Parent B. Parent A had no direct involvement in C’s care until March 2013. It is probable that Parent B’s effort to exert control and to apply rules in these circumstances was a source of conflict with C. That notwithstanding, Parent B continued to pay for C’s school fees and provided her with a sim chip for her mobile telephone when Parent A cut C’s telephone from his service contract in or about October 2012. I am satisfied that she continued to provide a home for C, and that C kept personal items in her bedroom in that house, and that C returned to her home when she felt the need to do so, even though she stayed at her boyfriend’s mother’s house for varying periods each week from 9 December 2012 to 1 April 2013.
I am satisfied that Parent A provided C with increasing emotional, physical and financial support from on or about 10 March 2013, prior to C staying with him on 26 March and for a period from 2 April 2013.
While it is difficult to draw sharp and precise lines around changes in patterns of care in such circumstances, I think that it is reasonable, on the present evidence, to conclude that Parent A assumed a different role providing care for C than previously, and that this crystallised on 2 April 2013, whereupon a new pattern of care commenced.
I am reasonably satisfied that Parent B’s pattern of care changed in a commensurate way at or about this time.
The legislation does not provide for a gradual change in care arrangements, but requires any such change to be fixed in time. While the process of change in Parent B’s care for her daughter over the summer of 2012-2013 may have been gradual, I am reasonably satisfied that the change was not sufficiently formed to constitute a changed pattern of care and the commencement of a new care period for the purposes of the Assessment Act until 2 April 2013.
Two conclusions flow from this.
Firstly, I find that C was in Parent B’s care from 9 December 2012 to 1 April 2013 and, while C’s living arrangements were somewhat unsettled over the summer months, Parent B’s level of care did not change to such an extent that her percentage of care should be reduced before 2 April 2013. But, on that date, the reduction in her level of care and in her percentage of care for C crystallised with the commencement of a new pattern of care and a new care period.
Secondly, the conditions precedent to operation of s 54F, particularly 54F(1)(c) and (d), are established as of 2 April 2013, but not before. This means that the 3 December 2012 determination of percentages of care for Parent A and Parent B must be revoked as of that date, but the determination will stand until 1 April 2013.
Consequently, it is necessary to determined fresh percentages of care for both Parents as of 2 April 2013 and until 24 April 2013.
Percentage of care
The phrase ‘percentage of care’ has a particular meaning under the Assessment Act –
5(1) Definitions
…
Percentage of care, in relation to a responsible person for a child, means the responsible person’s percentage of care for the child that is determined by the Registrar under Subdivision B of Division 4 of Part 5.
In order to consider these issues under Subdivision B it is necessary to determine whether each Parent has had, or is likely to have, a pattern of care in respect of each child during a care period. If no pattern of care is found, under s 49(3) the percentage of care must be 0 percent unless a care arrangement is in force; whereas if a pattern of care is established, under s 50(3) the percentage must be a percentage that corresponds with the ‘actual care’ of the child that the responsible person has had, or is likely to have, during the period. The ‘actual care’ of a child may be worked out on the number of nights that the child was, or is likely to be, in the care of the person during the care period.
In the event that the assessment of actual care under s 54A on the basis of nights does not truly reflect the actual care Parent B provided for C during the period from 9 December 2012, I am not bound to apply the method set out in that section – see P v Child Support registrar and P’s second case.
As regards the period from 9 December 2012 to 1 April 2013, it is not necessary for me to determine percentages of care for each Parent as the 3 December 2012 determination stands during this period. As I have said, I am reasonably satisfied that Parent A did not have a pattern of care for C, whereas Parent B’s pattern of care was subject of a process of gradual change that did not solidify until 2 April 2013.
It follows under s 49 that Parent A’s percentage of care for C from 9 December 2012 to 1 April 2013 is 0 percent.
Under the 3 December 2012 determination, Parent B’s percentage of care for C is 100 percent. This will stand until 1 April 2013.
Even if the 3 December 2012 determination is revoked entirely, I am satisfied that the same result would be obtained, for the following reasons.
As I have said, I am reasonably satisfied that Parent B’s pattern of care and her percentage of care for C persisted until 1 April 2013. The present evidence does not support the proposition advanced by Parent A that Parent B ceased to care for C as of the end of November 2012 or from 9 December 2012, such that a termination event occurred for the purposes of s 12. For that to be correct, I would need to be satisfied that Parent B ceased to be an ‘eligible carer’ for C, as defined in s 7B. I cannot make such a finding on the present evidence.
Parent A told me that C supported his evidence that she was not living with her mother from December 2012. Evidence of this kind is far from compelling. Parent A’s evidence about these matters is not drawn from direct experience, but rather from three sources - an allegation by his partner, who heard it from a friend, that C was not living with her mother; by the unsworn statement of C’s boyfriend’s mother; and by an alleged retrospective account he was given by C sometime later. Parent A’s partner and C’s boyfriend’s mother were not called to give evidence and there is no direct evidence from C. I give more weight to Parent B’s sworn evidence than I do to the unsworn statement of C’s former boyfriend’s mother and to Parent A’s evidence on these points, which is little more than hearsay.
Even though I found Parent A to be truthful in his evidence, the evidence he gave does not compel the decision he seeks for the period from 9 December 2012 to 1 April 2013. His assertion that “[Parent B] had a minimal impact on any of these above mentioned points [in the Guide – set out in [23] above]. [Parent B] has not provided any financial support or been involved in any major decisions for [C] since prior to December 2012” is not consistent with the weight of the evidence (scant as it is), and it is not made out. I do not accept that Parent B did not provide care for C during this period and, having regard to the indicia of care in Chapter 2.2 of the Guide to which I have already referred, I am satisfied that she continued to provide care for C without sufficient change to the previously established pattern of care to justify reducing her percentage of care during the period from 9 December 2012 to 1 April 2013.
It follows that, even if the 3 December 2012 determination is revoked entirely, Parent B’s percentage of care from 9 December 2012 to 1 April 2013 would not change.
The same cannot be said for the period from 2 to 24 April 2013. Considering the pattern of care that commenced on this date, and the indicia of care over subsequent periods, I am satisfied that the method for determining actual care set out in s 54A reasonably reflects the actual care provided by both Parents.
Thus, the actual care each Parent provided for C from 2 April 2013 is indicated by the nights C stayed with Parent A and Parent B thereafter, as set out in paragraph 42 above. On this basis, applying s 54A, Parent A’s percentage of care for C from 2 April 2013 is 70 percent and Parent B’s percentage of care for C from that date is 30 percent. I do not accept Parent B’s assertion that her pattern of care for C did not change on and from 2 April 2013. The found facts stand contrary to this assertion.
I note that on 24 July 2013, Parent A’s percentage of care for C was determined to be 70 percent from 24 April 2013. As I have said, this determination is not before the Tribunal in these proceedings. Nonetheless, it is consistent with what I have decided, albeit from 2 April 2013.
Decision
The decision under review is varied such that the determination of 3 December 2013 is revoked as of 2 April 2013 and from that date Parent A’s percentage of care for C is 70 percent and Parent B’s percentage of care for C is 30 percent.
The matter is remitted to the Registrar to calculate child support assessment for both Parents consistent with this decision.
I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
...(Sgd) T Freeman...............
Associate
Dated 4 April 2014
Date of hearing 25 March 2014 Applicant In person Representative for the Respondent Ms S Vahala
Solicitors for the Respondent
Australian Government Solicitor
Other Party
In person
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