Parent A and Child Support Registrar Parent B OTHER PARTY
[2013] AATA 562
[2013] AATA 562
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/4205
Re
Parent A
APPLICANT
And
Child Support Registrar
RESPONDENT
And
Parent B
OTHER PARTY
DECISION
Tribunal Mr S. Webb, Member
Date 9 August 2013 Place Albury NSW The decision under review is affirmed.
............................[sgd].........................................
Mr S. Webb, Member
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).
CHILD SUPPORT – percentage of care – boarding school – Court orders for equal parental responsibility for youngest child – meaning of ‘care period’ – meaning of ‘pattern of care for the child’ – ‘actual care’ cannot apply to both parents at the same time – determination of the extent of actual care of a child is not strictly limited to the number of nights – discretion to consider alternative methods of calculating actual care – relevant factors – actual care apportioned on an equal basis – decision affirmed
Child Support (Assessment) Act 1989 (Cth), ss 5, 49, 50 and 54A
Re Confidential and Child Support Registrar and Anor. [2013] AATA 426.
P v Child Support Registrar [2012] FCA 1398.
Polec & Staker & Anor. (SSAT Appeal) [2011] FMCAfam 959.
Child Support Agency Guide 2012
REASONS FOR DECISION
Mr S. Webb, Member
9 August 2013
Parents A and B are the divorced parents of two off-spring, a boy “M” and a girl “F”[1]. M is now an adult. A dispute has arisen about each Parent’s percentage of care for M and F from 29 January 2012.
[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.
The Child Support Registrar determined that Parent A’s percentage of care was 49 percent and Parent B’s percentage was 51 percent. This was affirmed on review by the Social Security Appeals Tribunal. Parent A applied for review of that decision.
The respective percentages of care are necessary when applying formulae for the assessment and calculation of child support under the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
The issues for determination are –
(a)the percentage of care each parent had for M from 29 January 2012 until he turned 18; and
(b)the percentage of care each parent has for F from 29 January 2012.
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.
If the actual care is not worked out on the basis of the number of nights, there is a question as to how it should be assessed. Attention must be given to the Child Support Agency Guide 2012 (the Guide). At cl 2.2.1 of the Guide, the following appears –
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.
…[2]
[2] The Guide at T4 folios 38-43.
Matters of this kind were considered in Polec & Staker & Anor (SSAT Appeal)[3], to which reference was made during the hearing and to which I have had regard. I have also had regard to P v Child Support Registrar[4] and to the Tribunal’s decision on remittal - Re Confidential and Child Support Registrar and Anor[5]. P’s case clearly articulates the law even though there may be unresolved issues concerning the apportionment of care (the Tribunal’s decision on remittal is presently under appeal). It has not been put to me that I should delay issuing a decision in these proceedings pending resolution of the remaining issues in P’s case, and I see no compelling reason to do so. The point of law decided by Buchanan J in that case was not taken on appeal to a Full Court and stands as binding authority.
[3] [2011] FMCAfam 959.
[4] [2012] FCA 1398.
[5] [2013] AATA 426.
Furthermore, Polec’s case and P’s case, and other cases to which the parties referred during the proceedings, stand for the principle that each case must be decided having careful regard to the particular facts and circumstances. In this case, the following facts and circumstances are established.
The facts
Parents A and B and the children resided on a farm. M was born in 1994 and F was born in 1997. Both children attended a Public Agricultural High School (the School) as weekly boarders.
The Parents’ marriage broke down, leading to separation and divorce.
There is a history of subsequent disputation about each Parent’s percentage of care for each child. On 23 September 2011, the percentage of care determined in respect of each child was 49 percent to Parent A and 51 percent to Parent B – ending, for M, when he turned 18 in August 2012 and, for F, on 23 November 2012[6].
[6] T21 folios87-90.
Following an objection brought by Parent A, the determination was changed, such that Parent A’s percentage of care in respect of M was 70 percent and in respect of F was 100 percent during these periods. Parent B’s percentage of care for M was 30 percent and for F was 0 percent[7].
[7] T44 folio 138, T45 folio 139 and T46 folios 141-2.
Parent B appealed to the SSAT[8].
[8] T112 folio 296 refers.
On 23 January 2012, following the provision of further information about a change in care, the Registrar determined that Parent A’s percentage of care in respect of M was 84 percent and in respect of F was 77 percent and that Parent B’s percentage of care for M was 16 percent and for F was 23 percent from 10 October 2011[9]. It appears that this decision was based on the assessment that Parent A was sole financial provider with 100 percent of care for both children during weeknights, when they attended boarding school and that care outside school was assessed on the basis of a calendar and other materials produced by Parent A[10]. Parent B disputes this and alleges that a $10,000 provision was made in the divorce settlement to cover Parent B’s contribution to school fees for both children in the latter part of 2011. It is not necessary for me to resolve this dispute as it is not squarely before me and it is of only incidental relevance to the present proceedings.
[9] T76 folio 210 and T77 folio 212.
[10] T74 folio 205.
On 23 February 2012 Parent B provided additional information in respect of a change in care from 29 January 2012, such that the care percentage of each child should be 50 percent – each Parent was said to be equally responsible for school fees and for day-to-day care[11]. It appears that this was agreed by both Parents[12] and determinations were duly made and issued[13].
[11] T90 folio 239.
[12] T94 folio 246 and T95 folio 247.
[13] T96 folios 248-9 and T97 folios 250-1.
Subsequently, however, it appears that the agreement did not hold and Parent A objected. The objection was heard and rejected as the evidence was apparently not sufficient to justify any different determination[14]. On application by Parent A for review, the SSAT decided to affirm the decision that Parent A’s percentage of care in respect of each child was 49 percent and Parent B’s percentage of care was 51 percent from 29 January 2012.
[14] T112 folios 293-301 and T113 folios 302-311.
Parent A applied for review, commencing these proceedings.
On 28 November 2012, the Federal Magistrates Court issued consent orders in respect of F which remain in force[15], including –
[15] Exhibit R1.
1. That the parents share equal responsibility for the child, [F].
…
3. That [Parent A] be solely responsible for and attend to payment of all costs of an [sic] incidental to any and all upkeep and care of [F’s] horse [Parent A] purchased for her equine studies at [the School], and [Parent A] indemnify [Parent B] against any such liability.
…
4. The parents will consult with each other and make joint decisions with respect to major long term issue decisions as defined by the Family Law Act 1975 including, but not limited to:
a.… education;
b.… religious and cultural upbringing;
c.… health and particularly any specialist medical treatment;
d.… surname; and
e.… any changes to [F’s] living arrangements which would make it more difficult to spend time with the parent.
5. That [F] shall spend time outside of boarding school with each parent in accordance with her wishes.
…
It is not established that any similar orders were made prior to August 2012, in respect of M.
Having heard both Parents and reviewed the materials taken into evidence, I am reasonably satisfied that after January 2012 M and F boarded at the School on a weekly basis during school terms, generally departing from Wagga Wagga by bus early on Monday mornings and returning to Wagga Wagga by bus on Friday afternoons. The parents shared responsibility for collecting and dropping off the children in Wagga Wagga, and conveying the children to other locations, including between their respective residences. M assisted with transport of his sister after he obtained a driver’s licence in 2011.
I am satisfied that Parent B’s circumstances in respect of care for both children changed in January 2012. It is established that Parent B provided accommodation that was suitable for the children and commenced paying for the needs of the children to a greater extent, including paying half of their school fees, at or about this time.
In March 2012, the children’s attendance at the School was affected by flooding, resulting in them staying with Parent A for a short period when, otherwise they would have been attending the School.
Both children maintained horses at the School from at least term 2 in 2012. This required them to spend some weekends at the School – ‘staying-in’. Additionally, both children participated in extra curricula activities at or through the School that required their attendance at the School or on camps or excursions for varying periods on weekends and during school holidays from time to time.
The evidence of both Parents is that both are emergency contacts registered with the School, and both make decisions about the children’s education and activities at the School. Parent A asserted that he is always the one the School contacts. Parent B challenged this on two bases. Firstly, Parent B gave examples that stand contrary to Parent A’s assertion, where direct communications between Parent B and the School had taken place in respect of decisions about the children’s education, enrolment and activities. Secondly, Parent B asserted that Parent A was a personal friend of the School Principal and this relationship does not and should not be taken to indicate that Parent A has had any greater responsibility for or involvement in the care of the children while attending the School than Parent B.
Parent A and Parent B both gave evidence that, responsibility for decision-making processes relating to the children’s well-being, education, health and significant recreational or social activities, including in relation to arrangements and costs, vested in both Parents, with a substantial measure of choice being conferred upon each child. This permissive approach to choice appears to have extended to the children’s activities out of school, on weekends and during school holidays: each child could choose whether they would stay with Parent A, with Parent B, or with someone else, on any particular night. Both Parents confirmed this in their evidence. I note, however, that in the course of the evidence, both Parents gave examples of unilateral decision-making by the other Parent, in which consultation did not occur. To my mind, this does not upset the overall framework of shared responsibility and related decision-making between the Parents that is evident from January 2012, to which, for the most part, they adhered to, and that is provided for in the consent orders of the Court in respect of F.
Parent A asserts that care of the children out of school is not equally shared. In Parent A’s submission, the children spend approximately 30 percent of the time out of school with Parent B. Parent A relies on coded records set out in Year Planner pages in diaries[16]. Parent A gave sworn evidence that these were true records and informed me that the notations were entered on a weekly basis into the Year Planner. On these records, Parent A says that:
(c)in the period from 1 February to 15 August 2012, M spent 125 nights at school; 43 nights with Parent A; 11 nights with Parent B; and 18 nights with friends; and
(d)in the period from 1 February 2012 to 8 April 2013, F spent 183 nights at school; 168 nights with Parent A; 59 nights with Parent B; and 22 nights with friends.
[16] Exhibit A2.
Parent B’s evidence is that, out of school, the children spent roughly equal time with each Parent and that since August 2012 this is ongoing in respect of F. Parent B told me that that the time F spends with each Parent cannot properly be assessed on the basis of nights, alone. For example, F might spend most of Saturday, including all meals, with Parent B and then go to Parent A after dinner, to stay the night. This, Parent B says, holds generally, subject to occasional variations, such as when the children travelled to Tasmania for a holiday with Parent A, or when F decided not to stay with Parent B for several weeks following a dispute about school enrolment prior to the start of term 4 in 2012. Parent B disputes the accuracy and the veracity of Parent A’s diary records, citing a number of examples when F is recorded to be with Parent A, when she was with Parent B, such as attending a camp with Parent B for 9 days in January 2013[17].
[17] T56 folio 161 refers.
There is evidence that both Parents meet the costs of their children’s needs and activities. Both Parents retain private health insurance (effectively in duplication). From January 2012, liability for school fees was divided equally, although Parent A paid additional costs associated with the maintenance of F’s horse at the school and made discretionary payments into a school account to fund consumable items for F, including school uniforms. Parent A relies on receipts of purchases of various kinds, including monthly mobile telephone recharge costs, clothing and consumable items of various kinds[18]. Parent B gave sworn evidence in respect of consumable items and other purchases, including a school uniform, additional telephone credit purchases, internet access and peripheral costs, and motor vehicle expenses in respect of M before August 2012[19]. Both Parents gave evidence of taking F on excursions or short holidays.
[18] See receipts in Exhibit A1 and T62 folios 173-180, for example.
[19] Exhibit OP1, T49 folio 149, T81folio 229 and T86 folios 234-5.
I note the evidence of other people, in the form of statements of various kinds that appear in the T documents[20]. None of these people were called to give evidence, so the content of their statements could not be tested.
[20] See T51 folios 151-5 for example.
I also note the extensive records in the T documents detailing contacts between each Parent and the Registrar, and officers of the Child Support Agency, and containing relevant information to which I have had regard.
Pattern of care during a care period
Turning to the matters I must decide to properly address the issues, the first question is whether either Parent has had, or is likely to have a ‘pattern of care’ for each child during a ‘care period’.
The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. 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. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, 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. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care[21].
[21] The Guide at T4 folio 47 and T4 folios 54-55.
The term ‘care period’ is given meaning under s 5(1) by reference to the terms of the sections in which it appears; namely, s 49(1)(a) and (b), and s 50(1)(a) and (b). As can be seen under these sections, a ‘care period’ is not of any fixed duration – it is a period ‘the Registrar considers to be appropriate having regard to all the circumstances’. The Guide provides that “a care period is generally a 12 month period from the day on which the actual care of a child changed”[22].
[22] Ibid.folio 41.
To my mind, the conception of ‘care period’ is sufficiently broad to encompass recurrent cycles or patterns of care for a child. It may commence or end upon a change of significance in the actual care of the child, whereby an existing arrangement or pattern of care for the child is broken or changed. The duration of a period of care is to be determined having regard to all the circumstances.
At this point it is appropriate to note that the word ‘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 determinants of care set out in the Guide and referred to in Polec’s case confirm this broad meaning.
Having regard to all the circumstances, I am satisfied that the care arrangements for M and F changed on or about 29 January 2012, when Parent B commenced providing stable accommodation for the children and paying half of the school fees. That change marks the commencement of a new ‘care period’ for M and for F.
The duration of each care period is a matter of discretion, having regard to all of the circumstances. In M’s case, I am satisfied that the period came to an end when he turned 18 in August 2012. Having considered the circumstances in F’s case, I am satisfied that it is appropriate to adopt the general proposition set out in the Guide that a care period is generally for a 12 month period. This care period came to an end on 28 January 2013, and a new care period commenced the following day. No issue was taken on this point by any party to these proceedings. I am satisfied that no significant or sufficient change in actual care for M or F occurred to justify curtailing the care periods that commenced on 29 January 2012 to any shorter period.
I do not accept Parent A’s proposition that short periods in which either child did not stay with Parent B represent a significant change in actual care, sufficient to end a care period. Parent A argued that arrangements for the actual care of F changed at the beginning of term 4 in 2012. It appears likely that F chose to spend time with Parent A and not with Parent B for a period of weeks as a result of tensions about F’s school enrolment at the time. On the present evidence, it appears that F’s choice was short-lived and temporary, and to my mind it was not sufficient to disturb the on-going pattern of care for F – the pattern of care appears to have been sufficiently flexible and robust to accommodate periods of weeks in which F elected to spent time with one Parent and not the other, such as during a holiday in Tasmania with Parent A or, on Parent B’s evidence, during the latter part of term 3 in 2012. I am not persuaded that there is a sufficient or compelling reason to treat the circumstances of F’s actual care in or about October or November 2012 any differently. Even though F may have decided to stay with Parent A and not Parent B for a period of weeks on commencement of term 4 in 2012, when all of the circumstances and evidence are considered, it does not follow that a significant change in actual care occurred. I am reasonably satisfied that it did not.
I have reached a similar conclusion in respect of the floods in March 2012, when the children stayed with Parent A and not with Parent B during a short period when they were not able to attend the School.
As may already be apparent, I am reasonably satisfied that a broad pattern of care in respect of each of the children is established during each care period. The pattern of care that emerges from the evidence can be seen in the broad framework both Parents agreed to, and for the most part adopted, in respect of shared responsibility for key decision making and actual care, including looking after, providing for and meeting the needs of both children on a regular and predictable basis during the care periods that commenced on 29 January 2012. This is supported by the consent orders issued by the Court in respect of F and, substantially, by the evidence given by both Parents.
It is a framework that provides regularity and substantial flexibility. Regularity of the pattern can be seen in the shared responsibilities and arrangements of the Parents for the care of each child while boarding or undertaking activities at or through the School, and in the support and contributions of each Parent on weekends and during school holidays. The Parents’ decision to allow the children to make choices about who each spent time with out of school introduces a great deal of flexibility to the pattern of care for each child. The flexible attitude of both Parents in permitting the children to make such choices does not negate the existence of a pattern of care, rather, it establishes a pattern of care that is capable of accommodating variations in the amount of time each child spent with one Parent or the other.
The pattern is not disrupted by short periods where one of the children chose to stay with one Parent and not the other without requiring or causing any change to other elements of the pattern of care for the child. Similarly, the overall pattern of care was not disturbed by occasional lapses of communication between the Parents, where one Parent made a decision without consulting the other about an activity involving one of the children without upsetting other elements of the pattern of care for the child. Both of the Parents have made decisions of this kind. Parent A decided unilaterally that F should undergo orthodontic treatment and proceeded to obtain that treatment despite Parent B’s objection. Parent B decided unilaterally to attempt to change F’s school enrolment, but this was stopped when Parent A objected. In the circumstances, these incidents do not negate the underlying pattern of care.
As a pattern of care is established for each child during each care period, s 49 of the Assessment Act does not apply. It follows that the percentage of care for each child must be determined under s 50.
Percentage of care
Under s 50(3) of the Assessment Act, the percentage of care ‘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 care period’. The term ‘actual care’ is not given any special meaning, although s 54A(1) provides that –
The actual care 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.
The use of the word ‘may’ clearly indicates that use of this method when calculating a person’s actual care for a child is discretionary. In P’s case Buchanan J referred to alternative methods, including, where it is not possible to determine a percentage of care based on actual care, that the parents share the care of the child equally, or that “credit may be given to a person ‘who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is [sic] who is meeting the child’s costs, rather than just the accommodation arrangements themselves’”[23].
[23] P v Child Support Registrar [2012] FCA 1398 at [34]; The Guide at T4 folio 43.
Considering the whole of the evidence and all of the circumstances, I am satisfied that the apportionment of care to Parent A and Parent B in respect of each of the children while they were attending boarding school cannot, reasonably, proceed on a night by night basis. The evidence does not reveal any rational or meaningful basis on which to apportion particular nights to one Parent or to the other while the children were attending the School.
Other relevant factors, including the contribution of each Parent to meeting school costs, making educational decisions and providing emotional and other support and guidance for each child, suggest that care should be apportioned on an equal basis. But care for a child cannot be apportioned to both Parents on the same night.
It may be that Parent A pays more to the School in respect of F than Parent B, but a substantial part of the additional amount is likely to relate to costs associated with maintenance of F’s horse at the School or discretionary extra contributions Parent A chooses to make. But it does not follow that this is a sound or reasonable basis on which to apportion nights of care. as I have said, both Parents acted unilaterally, from time to time, making decisions that affected F’s education, attendance or activities at the School without consulting the other Parent. It does not follow that a greater proportion of care should be credited, one way or the other – unilateral decision making of this kind does not reliably point to any change in actual care of the children while at school. The broader pattern of care, with responsibility being equally divided between the Parents, is not disturbed by sporadic incidents of this nature. On Parent A’s evidence, the School would only rarely contact Parent B in case of need. Parent B cavilled with this proposition, suggesting that if this occurred it was only because the School Principal was friendly with Parent A, and this should not be construed to indicate that Parent A had any greater proportion of care for either child during term time. This is not firm ground on which to apportion a greater amount of actual care to one Parent over the other.
There are substantial and irreconcilable conflicts in the evidence given by both Parents in respect of actual care of the children out of school. The diary entries produced by Parent A are contradicted by evidence and the calendar produced by Parent B[24]. The reliability of the evidence of both Parents on this point is questionable. The diary records produced by Parent A are troubling for several reasons. Having viewed the original entries in Parent A’s 2013 diary, it appears to me that the entries for that entire year were made in the same ink, with the same pen. Parent A agreed that this was so, the entries were made using one pen with multiple refills, and explained that the diary is a business diary kept in the farm office. Even if that is correct, it does not address the remarkable consistency in the form of the entries. To my mind, the explanation given as to why the information is recorded in the year planner part of the diary, rather than in the body of the diary itself is not convincing – it is difficult to accept the proposition that Parent A would make apparently meticulous calendar entries about where each child spent each night, but would not record medical or other appointments for the children in the diary. These reservations are reinforced by Parent A’s inability to explain corrections and other marks in the diary calendar. Furthermore, Parent A informed me that the entries were made weekly, in arrears, but this is not consistent with previous accounts given[25]. In sum, there are serious doubts about the reliability of Parent A’s calendar records in respect of the children.
[24] T56 folio 161.
[25] T62 folio 168; T74 folio 207.
Little was made of Parent B’s calendar records during the hearing. These records are not recorded in a calendar and are less extensive than those produced by Parent A. Theyhey are not supported by original diary records. The origin of these records remains opaque. Clearly, there are serious questions about the reliability of Parent B’s calendar records.
I am not able to reconcile conflicts in the evidence given by both Parents about these matters. Weighing the present evidence, there is no firm and reliable basis to apportion care on the basis of nights each Parent cared for each of the children. It follows that calculating actual care for M and F on the basis of nights is not appropriate during the subject care periods from 29 January 2012.
Another method of calculating actual care must be applied.
The legislation does not provide guidance in respect of any alternative method.
Having regard to what Buchanan J said in P’s case, to my mind it is necessary to assess all of the facts and circumstances in order to ascertain whether the apportionment of actual care may reasonably be derived from some feature or element of significance in the contribution of each Parent to the care of each child during each of the particular care periods.
Major decision making in respect of the care and welfare of the children during the care periods from 29 January 2012 was shared by both Parents, despite minor variations and unilateral actions taken from time to time. Within this overall framework, decisions about where each child would spend time, and with whom, was largely left to the children, albeit under the over-arching supervision or guidance of both Parents.
This suggests that it may be appropriate to apportion care on a roughly equal basis.
I have reached a similar conclusion in respect of the evidence addressing other relevant factors. There is no sound basis to accredit one Parent with a greater proportion of care than the other Parent on the basis of the provision of accommodation, clothing, food, health care, emotional support, supervision, transport, guidance and extra curricula activities for each of the children during the respective care periods. Despite occasional lapses, responsibility for key decision-making about the welfare of each child and providing actual and necessary care for each child during these periods vests in both Parents and is shared in roughly equal measure.
Evidence concerning the extent to which each Parent provides financial support to each child and pays the costs of each child’s needs is not conclusive. This evidence does not reveal any clear and reliable basis for apportioning actual care. Parent A relies on documentary records, in the form of receipts. Parent B has fewer documents but gave sworn evidence of the nature and extent of costs paid in respect of the children. It appears to me that both parents contribute financially to meet the costs of their children. It may be that one Parent may pay more than the other, from time to time. That is indicated by the documents produced by both Parents. But the whole of the present evidence does not reveal a substantial difference that it would be appropriate to reflect in the apportionment of actual care for either child during the care periods from January 2012.
In all of the circumstances, I do not accept that it is reasonable to calculate care percentages on the basis of receipts tendered in evidence alone, or on the basis of the evidence of one Parent over the other. I do not accept Parent A’s submission that paying for discretionary items, such as orthodontic treatment, costs relating to F’s horse or other discretionary expenses, should result in Parent A being accredited with a greater proportion of care. Paying for such items, alone, is not sufficient in the circumstances of this case; it is but one of the factors that must be considered.
Having considered all of the circumstances and all of the relevant factors, I am reasonably satisfied that the actual care each Parent provides for each of the children during the care periods since 29 January 2012 is in sufficiently equal measure that each Parent’s percentage of care for each child should be calculated on that basis.
Conclusion and decision
In sum, when all of the circumstances are considered, considering all of the evidence, it appears to me that there is no firm basis on which to upset the decision under review.
The present evidence is not sufficient to assess each Parent’s percentage of care for each child on the basis of nights. When all the circumstances and relevant factors are considered, I am reasonably satisfied that each Parent’s percentage of care for each child is in roughly equal measure during each of the care periods.
For the purposes of s 50(2) and Subdivision B of Division 4 of Part 5 of the Assessment Act, the present evidence does not establish that the percentage of care of either Parent in respect of each child during the care periods since 29 January 2012 is different than that previously determined.
The decision under review is affirmed.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member ..............................[sgd]..........................................
Associate
Dated 9 August 2013
Date of hearing 21 June 2013 Applicant In person Advocate for the Respondent Mr N Gouliaditis Solicitors for the Respondent Australian Government Solicitor Other Party In person
46
3
0