Passey and Passey (Child support)

[2021] AATA 1986

Passey and Passey (Child support) [2021] AATA 1986 (6 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC020762

APPLICANT:  Mr Passey

OTHER PARTIES:  Child Support Registrar

Ms Passey

TRIBUNAL:Member J Longo

DECISION DATE:  6 May 2021

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – whether care other than in nights ought to be considered – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted from this decision and replaced with generic information 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.Mr Passey and Ms Passey are the parents of [Child 1], [Child 2], [Child 3] and [Child 4]. Mr Passey is the parent liable to pay child support.

2.On 23 July 2020, Ms Passey contacted Services Australia – Child Support (Child Support) and lodged an application for a child support assessment. As part of the application, Ms Passey advised that she had 100% care for [the children] and that Mr Passey had 0% care of the children from 16 June 2020.

3.On 29 September 2020 Child Support made a care determination, determining that Ms Passey had 100% care for [the children] and that Mr Passey had 0% care for [the children].

4.On 26 October 2020, Mr Passey lodged an objection to the above care decision. On 12 January 2021, Child Support disallowed Mr Passey’s objection.

5.On 9 February 2021, Mr Passey lodged an application to the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. Mr Passey and Ms Passey spoke to the Tribunal via conference telephone and gave sworn evidence. In making its decision, the Tribunal took into consideration the documents provided by Child Support (166 pages), which were also sent to Mr Passey and Ms Passey prior to the hearing.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [the children]?

7.Ms Passey and Mr Passey both confirmed at the hearing that there were no court orders or parenting plans in place for the care of [the children]. Mr Passey stated that he moved out of the home and into a shed on the property. Mr Passey stated there was an agreement that when Ms Passey wasn’t home, he would look after the children and cook and clean for the children, in particular when she was working late.

8.Mr Passey stated that the children were independent in getting ready for school – they would make their own lunches and the younger two children would either ride, if not raining, to school while the older children would catch the bus. Ms Passey would take the children to school if raining as he started work at 6 am. He stated that he would cook and clean for the children if Ms Passey worked late, which he stated occurred three to four times per week. Mr Passey also stated that the children would come to the shed to watch TV with him or talk to him. He would also supervise the children when they were riding their motorbikes in the backyard, as well as taking the boys on day trips motorbike riding. Mr Passey stated that he was cutting firewood for the household and paying a share of the bills.

9.Ms Passey stated that the children were home schooled from July 2020 and were home for much of the period. Ms Passey also stated that she organised the children’s medical appointments during this period. She stated that she did not work late until after 15 July 2020 and on the occasions that she worked late, [Child 1] would do the cooking if she had not made arrangements for their dinner. Ms Passey stated that she was required to stay at work overnight on one occasion and Mr Passey chose not to sleep in the house on this occasion. Ms Passey stated that she normally made decisions about the children but at this time they did not go out much due to the weather and also due to the pandemic. Ms Passey stated that she thought Mr Passey did provide care for the children at this time but the care was limited.

10.Section 50 of the Act requires a determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances.

11.The Tribunal has decided that the care for Ms Passey and Mr Passey should not be changed from the care percentages as determined by Child Support in the objection decision. There is no dispute between the parties that the children were living in the family home with Ms Passey, and Mr Passey was providing intermittent supervision of some of their outdoor activities. The care on a day to day basis was undertaken by Ms Passey as well as their overnight care.

12.Care is usually determined on the basis of the overnight arrangements in place. While other factors can be taken into account, it is usually only in circumstances where the care cannot be readily ascertained from the overnight care that these factors are considered. In this matter, it is clear that the nights of care of the children were in Ms Passey’s care. Furthermore, the evidence of Ms Passey and Mr Passey indicates that they were both doing other care tasks for their children. Accordingly, as the care for [the children] can be readily ascertained by reference to the nights in care, the Tribunal has determined that it is not necessary to examine the other factors in determining the care. Even if the other factors were to be incorporated in the decision, these factors are not sufficient to persuade the Tribunal that Mr Passey had more than regular care of the children.

13.The Tribunal notes that Mr Passey has referred to other matters in the context of this application, including reference to the payment of household expenses and other tasks for the benefit of Ms Passey and the children. These matters cannot be taken into account in regard to the determination of the care arrangements, but may be considered by Child Support as non-agency payments. Mr Passey would need to apply to Child Support for these matters to be considered and it is not open to the Tribunal to consider these in this application.

14.Accordingly, the Tribunal has decided that the care determination should reflect that Ms Passey has 100% care of [the children] and Mr Passey had 0% care of [the children] from 16 June 2020.

DECISION

The Tribunal affirms the decision under review.