Parnaby and Whittle (Child support)

[2018] AATA 1722

Parnaby and Whittle (Child support) [2018] AATA 1722 (17 April 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC013497

APPLICANT:  Ms Parnaby

OTHER PARTIES:  Child Support Registrar

Mr Whittle

TRIBUNAL:Member Y Webb

DECISION DATE:  17 April 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – No change – Decision under review affirmed

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

REASONS FOR DECISION

BACKGROUND

1. This review relates to a decision of the Child Support Registrar of the Department of Human Services (the “Child Support Agency”) in relation to the care of the child of Ms Parnaby and Mr Whittle.  The child is 17 years old.

2. There are no court orders or written parenting plans in relation to the care of the child.

3. Since 13 April 2017 the care of the child was recorded as 50% to Ms Parnaby and 50% to Mr Whittle.

4. On 25 July 2017 Ms Parnaby contacted the Child Support Agency advising that the care of the child had changed and that she had had 100% care from 23 June 2017.

5. Mr Whittle disagreed.

6. Both parents provided a spreadsheet/calendar detailing their respective periods of care but these were contradictory.

7. Ms Parnaby provided a third party statement supporting her contentions regarding care.

8. On 29 August 2017 the Child Support Agency decided to reject Ms Parnaby’s claim that there had been a care change on 23 June 2017.  The percentages of care remained at 50%/50% to each of the parents.

9. On 30 August 2017 Ms Parnaby objected to that decision.

10. On 19 January 2018 on objections officer disallowed Ms Parnaby’s objection.

11. On 13 February 2018 Ms Parnaby requested review by the Administrative Appeals Tribunal (the Tribunal).

12. Ms Parnaby and Mr Whittle attended the hearing in person on 17 April 2018 and both gave sworn evidence.

13. Prior to the hearing Ms Parnaby provided copies of diary entries in support of her contentions that there was a change of care and a copy was provided to the parties marked as Exhibit A1-A33. 

14. At the hearing Mr Whittle provided a copy of his calendar in support of his contentions and this was marked Exhibit B1-B3.  Ms Parnaby was provided with an opportunity to consider this document during the hearing.

ISSUES

1. The issues for the Tribunal to determine are:

   ·the percentages of care of the child for both parents;

   ·if there has been a change in the level of care, the date of effect of the care change and the extent of the care change.

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

3. The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

4. Section 54A then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period. 

5. In this case, Ms Parnaby and Mr Whittle did not contend that nights were an unsuitable measure of the care of the child and the evidence in the Child Support Agency papers indicates that nights have been the measure of care in relation to the child to date.  The Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

Ms Parnaby’s contentions

1. Ms Parnaby told the Tribunal that for a period of time in 2017 she did not have permanent accommodation and was house sitting which involved her having to frequently move house.  She stated that the child did not want to keep moving house so it was arranged that the child would spend time with each of the child’s parents.  Ms Parnaby stated that this was the basis of the 50/50 care from early 2017.  Ms Parnaby asserted that during 2017 the child made her own decisions about which parent she would stay with. She stated that before May 2017 the child probably stayed mostly with her father but from around May 2017 the care was more like 50/50.  However, she contended that the child resumed living with her on a full-time basis from 23 June 2017.  She stated that this coincided with a longer and more stable house-sitting arrangement which was less disruptive for the child.

2. Ms Parnaby provided diary notes (“A exhibits”) for the period 6 February 2017 to 1 October 2017.  In this diary Ms Parnaby explained that she marked each day with either “MS” to indicate that the child was staying with her father or “MM” to indicate that the child was staying with her.

3. In the period 1 June 2017 leading up to 23 June 2017 the diary was marked with the notation that the child was staying with Mr Whittle (with the exception of 16 June 2017 which indicated that the child stayed with Ms Parnaby) and that from 24 June 2017 and up until Ms Parnaby contacted the Child Support Agency on 25 July 2017, the diary notation showed that the child was staying overnight with Ms Parnaby.  Ms Parnaby told the Tribunal that she made the notations in her diary contemporaneously.

4. Ms Parnaby also provided a spreadsheet which was located within the Child Support Agency papers and this reflected the diary notes.

5. Ms Parnaby also provided a third party statement from a friend dated 8 August 2017.  She explained that her friend is the principal of [a particular] primary school.  The letter stated:

   Re the care of [name of child]

   In an attempt to gather data on where [name of child] has been staying between December 2016 and July 2017 I spoke to [name of child] this evening.

   She confirmed that she has been in her mother’s care on the dates submitted by Ms Parnaby.

   Yours faithfully

   [Name removed]

   Principal

Mr Whittle’s contentions

1. Mr Whittle stated that he does not agree that the child was in the 100% care of her mother from 23 June 2017.  He stated that during June 2017 the child was mostly staying with him.  He agreed that in the school holidays in July 2017 Ms Parnaby started 100% care of the child but that she did not have 100% care from any time in June 2017.  Mr Whittle also stated that it was only in retrospect that he can confirm that the child stayed with Ms Parnaby after the July 2017 school holidays because he did not know at the time that the child would not return to his care after the two week holiday break.

2. Mr Whittle provided a calendar/spreadsheet of his care. This showed that in the period leading up to 23 June, that is, from 1 June to 22 June 2017 Mr Whittle had care for every night in that period except for the night of 17 June 2017 when his calendar showed the child was in the overnight care of Ms Parnaby.  His calendar shows that the child was in the care of Ms Parnaby for the nights of 23 June and 24 June and then in his care for all the remainder of June 2017 and the nights 1 July–8 July 2017.  In his calendar the 100% care of the child by Ms Parnaby did not commence until 9 July 2017; it coincided with the July school holidays and became ongoing thereafter.

3. In addition, Mr Whittle provided a copy of his diary for May, June and July 2017 (the “B” documents).  He asserted that this was an informal day to day diary whereby he and the child made notes for each other about their various activities and commitments.

The Tribunal’s consideration

1. The Tribunal is required to consider the actual care of the child during the care period.  A “care period” is effectively defined as “such period … as the Registrar considers to be appropriate having regard to all of the circumstances”.  Usually the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. In this case, Ms Parnaby asserted that the care had changed from 23 June 2017 and the Tribunal finds that this is the commencement of the 12 month care period under consideration. In practice the Child Support Agency and the Family Assistance Office will continue to apply the care percentage determination until a further change of care is notified and accepted.

2. There was significant agreement between the parents about the care of the child generally over the course of 2017 but there were contradictory assertions about the care commencing from 23 June 2017.  There was also a significant disparity between their calendars and diaries for the month of June and up to 25 July 2017 when Ms Parnaby contacted the Child Support Agency about a change in care from 23 June 2017.

3. The diary notes of Mr Whittle (the B documents) were not of assistance because they did not clearly show on a day to day basis where the child was staying.  However, both parents’ calendars were clearly marked albeit they were contradictory.

4. While the Tribunal accepts that Ms Parnaby’s third party statement was genuinely provided in good faith, it did not assist the Tribunal to determine the care because the information was hearsay information whereby the author relied on information provided by the child and based on Ms Parnaby’s notations.

5. The Tribunal relied on information provided to the Child Support Agency by Ms Parnaby on 4 July 2017 prior to her claim of a change of care.  The contact with the Agency recorded that Ms Parnaby confirmed that the child stayed with Mr Whittle as follows (commencing from June 2017):

   Call to Ms Parnaby (4/7/2017)
   (Name of child) stayed with Mr Whittle on:

   02/06/2017 – 22/06/2017          with Mr Whittle
   23/06/2017 – 24/06/2017          with Ms Parnaby
   26/06/2017 – 01/07/2017          with Mr Whittle
   02/07/2017  with Ms Parnaby
   03/07/2017  with Mr Whittle

6. This contact also states that Ms Parnaby “states there is no pattern of care at present however care will return to 100% in early October”.

7. At the hearing I asked Ms Parnaby about the apparent inconsistency between her claim of a care change from 23 June 2017 when on 4 July 2017 she had asserted that there was no pattern of care and would not be until early October.  Ms Parnaby stated that she was originally meant to be moving to a permanent home in October but a couple of more stable places arose before that so that was why later she amended the date of the care change to 23 June 2017.  However, if Ms Parnaby’s actual care changed from 23 June 2017 this is contradictory to the dates of care provided to the Child Support Agency on 4 July 2017 as detailed above and contradictory to Ms Parnaby’s diary and spreadsheet.  The Tribunal finds that the information provided on 4 July 2017 about dates of care is likely to be more reliable than later information as it is closer to the actual days in question.

8. The Tribunal also accepts that when Mr Whittle was contacted by the Child Support Agency about the change of care claim on 27 July 2017 he stated that the child had been in Ms Parnaby’s care since 9 July 2017 but that he did not know at that stage whether the child would be returning to his care or not.  The Tribunal accepts that he was genuinely unsure whether the child would be returning to his care after the July school holidays.

37.Taking all of the information into account the Tribunal finds that there is insufficient evidence to support a finding that a change of care occurred from 23 June 2017.  The Tribunal is satisfied that due to the unpredictable nature of the care and the difficulty of ascertaining a discernible pattern of care that the percentages of care should remain unchanged, that is, 50% to Ms Parnaby and 50% to Mr Whittle. The cost percentage remains unchanged.  As the Tribunal has found that there is no change in the care percentage, the existing care determination cannot be revoked and the child support assessment is not amended.

DECISION

The decision under review is affirmed.