Parthav and Parthav (Child support)

[2018] AATA 531

Parthav and Parthav (Child support) [2018] AATA 531 (25 January 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/BC012642

APPLICANT:  Mr Parthav

OTHER PARTIES:  Mrs Parthav

Child Support Registrar

TRIBUNAL:  Member P Jensen

DECISION DATE:  25 January 2018

DECISION:

The decision under review is varied so that Mr Parthav is recorded as providing 44% care and Mrs Parthav is recorded as providing 56% care to [Child 1] from 27 April 2017.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Decision under review varied

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

1. Mr Parthav and Mrs Parthav are the parents of [Child 2] who was born in 2001 and [Child 1] who was born in 2005. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) in 2012 and the CSA recorded Mrs Parthav as providing 100% care to both children.

2. On 27 April 2017, Mr Parthav reported a change in the parents’ care of [Child 1] from 27 January 2017. The CSA decided not to record a change in care. Mr Parthav promptly objected to that decision and an objections officer varied the decision so that Mr Parthav was recorded as providing 14% care and Mrs Parthav was recorded as providing 86% care to [Child 1] from 27 April 2017. Mr Parthav promptly sought further review and I heard the matter on 25 January 2018. Mr Parthav attended the hearing in person. Mrs Parthav attended the hearing by conference phone.

3. On 27 April 2017 the CSA noted:

   Mr Parthav advised he has had the following care of [Child 1] since the 27/01/2017:

   - Every Friday, Saturday and Sunday night

   - Full 2 weeks in term school holidays

   - Half of the Christmas school holidays (alternate weeks)

4. On 1 May 2017 the CSA spoke to Mrs Parthav and noted:

   Mrs Parthav advised Mr Parthav does not have regular care at all; stating he has started having care on Friday and Saturday nights but it is not regular.

   She confirmed he did have [Child 1] in the last school holidays but stated it was only for a week not the full two weeks.

5. On 8 May 2017, Mr Parthav provided the CSA with copies of hand-written monthly calendars for February, March and April 2017 on which were marked the nights on which he claimed he provided care to [Child 1], as well as comments concerning his care of [Child 1], e.g. “took [Child 1] to [group swimming]”. He also provided a spreadsheet in which was recorded his nights of care. According to the spreadsheet, he provided 39 nights of care over the 91 days from 30 January 2017 to 30 April 2017. 39 / 91 = 42.8%. After the CSA decided not to record a change in care, he provided further monthly calendars for subsequent months as well as numerous photographs of the children. Dates were written beside the photographs.

6. At the hearing, Mr Parthav stated that when he reported the change in care the parents were following a general pattern of care whereby he provided overnight care on Friday, Saturday and Sunday during school terms. He said there was no general agreement concerning the parents’ care during school holidays; the parents left it to the children to decide where they would spend their time but both parents provided some care during school holidays.

7. Mrs Parthav disagreed with Mr Parthav’s evidence. She said that when Mr Parthav reported the change in care he rarely provided care on Friday nights and he only sometimes provided care on Saturday and Sunday nights. She agreed that the children decided where they would spend their holidays. She said the children sometimes spent some time with Mr Parthav during school holidays.

8. I referred Mr Parthav to the hand-written monthly calendars that he had provided. He stated that he had created them. Mrs Parthav queried that evidence and Mr Parthav stated that his wife had created them from information that he had recorded in his diary. He had brought his diary to the hearing and he invited me to check the information contained in his diary against what was, in effect, his wife’s summary of that information.

9. Subsection 10(7) of the Child Support Review Directions states, relevantly, that “any document on which you intend to rely at the hearing must be given to [the Tribunal] at least 14 days before the hearing”. If Mr Parthav had complied with that direction, both I and Mrs Parthav would have had an opportunity to compare his diary against his wife’s calendars prior to the hearing. The direction is intended to ensure procedural fairness between the parties and prevent one party from “ambushing” the other party. Nevertheless, on a quick viewing of the documents I noticed one discrepancy between Mr Parthav’s diary and his wife’s calendars. Mr Parthav conceded that point. I accept that it was an inadvertent error. The matter was left on the basis that Mr Parthav’s diary was not admitted into evidence and it was conceded by Mr Parthav that the hand-written calendars were an imperfect reflection of the relevant information contained in his diary.

10. I also noted, and Mr Parthav conceded, that even if I were satisfied that the photographs that he provided were taken on the dates stated, they simply recorded points in time and did not necessarily establish overnight care.

11. Mr Parthav also provided a letter from [a reverend] of [a church] which stated, relevantly:

    Mr Parthav and [his wife] have been actively attending this congregation since March of 2016. I also have had the privilege of conducting their wedding in November 2016 and they have been actively part of our congregation since then.

    Mr Parthav’s sons [Child 1] and [Child 2] have also been part of our [youth group] which regularly meets [weekly]. Occasionally, [Child 2] would attend but [Child 1] is a regular attendee almost every [occasion] we meet.

12. Mrs Parthav stated that she also kept a diary of the care that Mr Parthav had provided but she did not provide a copy of her diary. Further, she did not provide a list of the nights on which she claimed that Mr Parthav provided care. In support of her statement that Mr Parthav rarely provided care on Friday nights she provided an undated letter from [a] speech pathologist, who stated that [Child 1] “has been attending weekly speech therapy during school terms since June 2016” and Mrs Parthav “has been bringing him to” the sessions. [The speech pathologist] did not state when those sessions occurred.

13. Each parent’s evidence has its shortcomings but I am nevertheless required to make findings of fact on the balance of probabilities. Mr Parthav listed the nights on which he claimed to have provided care, and Mrs Parthav was consequently provided with an opportunity to obtain evidence to refute Mr Parthav’s account of events if it was incorrect. She did not provide any such evidence. In contrast, Mrs Parthav claimed that she kept records of the care that Mr Parthav provided but she did not provide those records, or a summary of those records, and Mr Parthav was consequently not given an opportunity to obtain evidence to refute Mrs Parthav’s (undisclosed) account of events. On balance, I consider Mr Parthav’s records of his care to be the more reliable evidence on point. Those records, which have been imperfectly summarised in the hand-written calendars, broadly support his submission that he provided a general pattern of care during school terms of three nights of care per week. Both parents agreed that each parent provided some care during at least most school holidays. In the absence of any more precise evidence on point, I find that when Mr Parthav reported the change in care it was likely that each parent would provide care during half the school holidays.

14. The relevant law in this case is contained in the Child Support (Assessment) Act 1989. Sections 54F and 54G allow for the cessation of previous care decisions where there has been a change in care. When Mr Parthav reported the change in care of [Child 1] on 27 April 2017, there had been a change in care. Sections 49 and 50 provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.” Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.” Both sections reflect the idea that the CSA makes point-in-time care decisions on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the CSA and a new care decision can be made from the date of divergence. However, the legislative test at first instance and on review remains the same: what had happened until the date of notification and what was likely to happen thereafter?

15. When Mr Parthav notified the CSA of the change in care of [Child 1], his care had been, and was likely to continue to be, a general pattern of care whereby he provided care for three nights per week during school terms as well as half the school holidays. There are 40 weeks of school terms and 12 weeks of school holidays per year. ((40 x 3) + (1/2 x 12 x 7)) / 365 = 44.3%, which is rounded down to 44% pursuant to section 54D of the Act. At all relevant times there was no formal care arrangement in force, such as a Court order or written parenting plan. There is no dispute that neither parent notified the CSA of the change in care within 28 days of it occurring. In those circumstances, the change in care has effect for child support purposes from the date of notification, which was 27 April 2017: sections 54F, 50 and 54B of the Act.

DECISION

The decision under review is varied so that Mr Parthav is recorded as providing 44% care and Mrs Parthav is recorded as providing 56% care to [Child 1] from 27 April 2017.