Peters and Child Support Registrar (Child support)

[2019] AATA 5124

Peters and Child Support Registrar (Child support) [2019] AATA 5124 (17 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016328

APPLICANT:  Mr Peters

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member H Schuster

DECISION DATE:  17 July 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – care percentages correctly determined - 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 is about the percentages of care applicable to Mr Peters and [Ms A] in relation to the child [Child 1] from 10 August 2018 for the purpose of a child support assessment.

2. Mr Peters and [Ms A] are the father and mother of [Child 1] (born in 2014).

3. On 10 August 2018 [Ms A] applied to the Department of Human Services (Child Support) for a child support assessment in relation to [Child 1].

4. Child Support issued the first child support assessment commencing on 31 August 2018. The assessment was based on [Ms A] providing 86% care and Mr Peters providing 14% care to the child for the period commencing 10 August 2018.

5. Mr Peters contacted Child Support on 10 September 2018 to dispute the care percentage. He submitted that his care percentage should be determined to be 46% and the mother’s care percentage 54%. He stated his assessment was based on a pattern of alternate weeks with the child staying with him four nights in week one and one night in week two as well as spending half of all school holidays with each parent.

6. Child Support contacted [Ms A] who stated that [Child 1] spent four nights every second week with his father but did not spend any nights with the father in week two. She also advised that there was no agreement to split the care on a 50/50 basis during school holidays.

7. On 13 December 2018 a decision was made to change the care percentage based on the actual care occurring. Child Support determined that they were satisfied the father had care of [Child 1] on four nights per fortnight, which had been agreed between the parents. On that basis the care percentages were changed to assess Mr Peters as providing 28% care and [Ms A] providing 72% care to [Child 1].

8. Mr Peters objected to the decision.

9. On 5 April 2019 an objection decision was made. The objections officer found that Mr Peters had 38% care of [Child 1] and [Ms A] had 62% care of the child from 10 August 2018. The decision was based on a pattern of care of the father having five nights of care per fortnight as well as half of the school holidays.

10. On 14 April 2019 Mr Peters applied to the Tribunal for review of the objection decision. The Tribunal invited [Ms A] to seek to be made a party to the proceedings but received no response and no further evidence from her.

11. The Tribunal conducted a hearing on 17 July 2019 in relation to Mr Peters’ application. He was represented by his partner [Ms B]. Both Mr Peters and [Ms B] gave evidence on affirmation. The hearing was conducted by telephone.

12. The Tribunal received the following documents as evidence in the matter:

• Documents numbered 1 to 182 produced by the Child Support Registrar (the Registrar) pursuant to section 37 of the Administrative Appeals Tribunal Act 1975;

• Documents numbered A1-A3 provided by Mr Peters.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act), as in force in August 2018, when the child care assessment commenced.

2. The issues which arise in this case are:

• Whether Mr Peters’ care percentage in relation to [Child 1] from 10 August 2018 was greater than 38%.

Overview of the law

1. Child support is payable on the basis of a statutory formula which, among other things, requires the cost of [Child 1] to be taken into account. The cost percentage is determined under section 55C of the Act in relation to each party to the assessment based on the percentage of care provided for each child.

2. The Tribunal has to determine the “actual or likely pattern of care” during a care period: section 50 of the Act. The period to be determined must be appropriate to the circumstances.

3. Under section 54A of the Act, the actual care of a child that the person has may be worked out on the number of nights that the child was or should have been in the person’s care. The child cannot be in the care of more than one person for a particular night.

4. Pursuant to section 54F of the Act, an existing percentage of care must be revoked if it does not correspond with the actual care taking place and the parties’ cost percentages would change if they reflect the current care percentage. Alternatively, pursuant to section 54H of the Act, an existing percentage of care may be revoked if it does not correspond with the actual care taking place.

CONSIDERATION

1. At the outset the Tribunal notes that the decision in this case concerned the pattern of care in effect in August 2018, when the child support application was made.

2. The Tribunal notes that on 8 April 2019 [Ms A] advised Child Support that Mr Peters no longer had any care of [Child 1]. Based on that change of circumstances Child Support made a new decision that from 1 April 2019 that [Ms A] had 100% care of [Child 1]. The Tribunal understands Mr Peters has objected to the new care decision, though he confirmed in his evidence that he has not had care of [Child 1] since that time. The objection decision in relation to the change of care on 1 April 2019 is not the subject of this application and thus the Tribunal’s decision will have effect only from 10 August 2018 until a later decision made by the Registrar takes effect.

Determining the care period and pattern of care

1. The Registrar’s policy in relation to the initial determination of a pattern of care is set out in the Child Support Guide. Chapter 2.2.1 of the Guide provides that the Registrar requires information about the care that has occurred and any agreement about future care. The Registrar is required to have regard to the evidence of each party and, where the evidence conflicts, must weigh each party’s evidence before making a determination. The policy provides that once a pattern is discernible in the care of a child, minor departures from the normal care pattern for the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care.

2. In determining a pattern of care the Registrar can have regard to any formal care arrangement that is being complied with. A care arrangement for the purpose of the Act is defined in section 3(1) of the A New Tax System (Family Assistance) Act 1999 as being either a written agreement between the parents, a parenting plan for the child or certain court orders.  In this case the only written arrangement regarding the care of [Child 1] was undated and unsigned and therefore, those parts of the Act which set out the rules for changes or departures from formal care arrangements do not apply to this case.

Mr Peters’ evidence

1. Mr Peters stated that he was unaware of [Child 1’s] existence until 2017 and first met him on 9 October 2017. Since becoming aware of having a child, Mr Peters has made efforts to have regular contact with the child.

2. In November 2017 Mr Peters and Ms [Ms A] had attempted to strike an agreement through mediation about a pattern of care for [Child 1]. Mr Peters provided an unsigned mediated agreement drawn up in November 2017 which he said captured that agreement. Though, as noted above, the document is not a formal care arrangement, it provides some evidence of the basic agreement reached in mediation.

3. The draft proposal did not provide any overnight care of [Child 1] by Mr Peters until September 2018, after which time he was to have overnight care once a week. Only from November 2018 was the father to have care each Friday for 10 hours (during the day) as well as two nights of care Friday to Sunday every second weekend. In addition, from the 2018 Christmas school holidays, the proposal was that the father have three nights with the child, after that he was to have seven nights of care of the child in school holiday periods. The informal agreement confirms that care of [Child 1] increased over time between late 2017 and August 2018, though it appears to have increased faster than either party may have envisioned in November 2017.

4. On 10 September 2018 Mr Peters first advised Child Support that his care of [Child 1] had increased over time and the current agreed pattern was that Mr Peters would have care of [Child 1] on four nights every second week as well as one night in the alternate week, that is five nights per fortnight, as well as half the school holidays. [Ms A] at that time was also contacted by Child Support and advised that from 10 August 2018 the child had been with the father four nights every second week, but denied that overnight care had been provided on alternate weeks. She denied there was an agreement of 50/50 care during the school holidays.

5. According to the evidence of both Mr Peters and [Ms A], by August 2018 Mr Peters had care of [Child 1] for at least four to five nights a fortnight. Thus, the Tribunal cannot rely on the proposed agreement between the parties struck in November 2017.

6. As evidence of the actual care that had taken place before 10 August 2018 Mr Peters provided a care calendar, text messages and a statement by his partner.

7. Images of text messages between him and [Ms A] were not sufficiently clear or comprehensive enough to allow the Tribunal to determine a pattern of care, as it was not clear in relation to each message where the child was on every day in a period. However, the Tribunal accepted that they generally corroborated the care calendar provided for the months from June 2018 to January 2019. As the best available evidence, the Tribunal relied in part on the care calendar. It showed that the number of nights of care in July 2018 was higher than the expected 10-12 nights per month, consistent with the school holidays that month. However, a similar increase was not evident in October 2018. During the 2018 Christmas holidays, based on the care calendar, Mr Peters had care of [Child 1] for half the holidays.

8. The only information provided by [Ms A] to Child Support was oral evidence given to the objections officer on 22 March 2019. [Ms A] acknowledged that Mr Peters generally had five nights of care per fortnight. She also agreed that Mr Peters had had additional care during the Christmas school holiday periods, due to a family trip taken by Mr Peters, but denied an intention that all future holiday period would result in 50% care for each parent.

9. Nonetheless, the objection officer determined Mr Peters’ care percentage as 38% based on having care for five nights per fortnight over 20 fortnights during school terms and half of the 12 weeks of school holidays over a year.

10. Mr Peters’ evidence at the hearing was that the actual care that had taken place was closer to 50% and he was of the view the percentage of care should be increased to reflect this.

11. The Tribunal asked about the relevance of the school holiday periods in relation to [Child 1], since he is not of school age. [Ms B] gave evidence that she has two school age children and would ordinarily go on holidays with the children and expected to take [Child 1] with them. She noted that in December 2018 they had gone on a family trip with [Child 1] for a period of over a week, and then went on another trip in January which he also participated in.

12. The Tribunal had regard to the actual care that occurred, based on Mr Peters’ care calendar. According to that calendar, Mr Peters had care of 108 nights out of 245 nights in the period, which equates to about 44% of the period. However, the Tribunal notes that the period included the summer holidays, which proportionally increases the holiday periods taken into over that eight month period and therefore cannot be taken as the basis of a full year of care.

13. While Mr Peters’ evidence was that the mother at times asked them to keep [Child 1] for an additional night, for example, when her other child was ill, the Tribunal did not find significant evidence that there was an intention that Mr Peters’ care would increase beyond what was practically in effect as at August 2018.  

14. In Mr Peters’ initial application to Child Support, the expectation and ultimately the actual care that occurred was that he have overnight care of [Child 1] for five nights each fortnight and half the school holidays. On the Tribunal’s calculation, and leaving aside some variations due to Mr Peters’ family’s travel plans and variations due to illness, the percentage of care determined by the objection officer reflects that expectation.

15. The Tribunal finds that [Ms A] at no stage agreed that there was an intention that Mr Peters exercise care for 50% of the time for each school holiday period and expressed some misgivings about the child being kept for additional nights at time. The Tribunal finds it unlikely that care was going to increase beyond the pattern already established by September 2018, given the mother’s disagreement on that point.

16. The Tribunal finds that the pattern of care that best reflects the intention of both parties, as it stood in August 2018, was that Mr Peters was to have care for five nights per fortnight during school term and no more than half the school holidays thereafter. The Tribunal agrees with Child Support’s assessment that his care percentage from 10 August 2018 should be assessed as 38%, and [Ms A’s] care percentage should be assessed as 62%.

17. In conclusion, the Tribunal affirms the decision under review.

DECISION

The decision under review is affirmed.