Quinnett and Monyn (Child support)

[2021] AATA 3350

Quinnett and Monyn (Child support) [2021] AATA 3350 (19 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2021/SC021473

2021/SC021481

2021/SC021482    

APPLICANT:  Ms Quinnett

OTHER PARTIES:  Child Support Registrar

Mr Monyn

TRIBUNAL:Member K Dordevic

DECISION DATE:  19 July 2021

1. The decision of the tribunal and the reasons for the decision were delivered orally on 19 July 2021.

2. The following paragraphs are the reasons for the tribunal’s decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment - decision under review set aside and substituted

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

1. Mr Monyn and Ms Quinnett are the parents of three children, [Child 1] (born 2015), [Child 2] (born 2017) and [Child 3] (born 2019). A child support assessment was registered with Services Australia – Child Support from 13 October 2020. On 24 November 2020 the following care percentages were applied to the assessment, all with different start dates:

Start date	Parent	[Child 1]	[Child 2]	[Child 3]
28 October 2019	Mother	65%
Father	35%
13 October 2020	Mother	65%
Father	35%
29 May 2019	Mother	79%
Father	21%

1. On 3 March 2021 the father objected to the care decision made on 24 November 2020. His objections were allowed on 14 April 2021. The objections officer determined that, with effect from 3 March 2021, the following care percentages would be applied to the assessment:

Start date	Parent	[Child 1]	[Child 2]	[Child 3]
28 October 2019	Mother	50%
Father	50%
13 October 2020	Mother	50%
Father	50%
29 May 2019	Mother	50%
Father	50%

1. The mother sought review of these decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 11 May 2021. The matter was scheduled to be heard on 13 July 2021. However, as the parents’ infant child was unwell, the tribunal rescheduled the matter at the parents’ request. The hearing took place on 19 July 2021. The mother and father appeared by MS Team audio. The Child Support Registrar elected not to attend the hearing. In reaching its decision the tribunal considered the sworn evidence of the mother and father as well as the documentation provided by Child Support (folios 1 to 287).

2. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act) and Child Support (Registration and Collection) Act 1988 (the Registration Act). The tribunal also had regard to the Child Support Guide (the Guide), which sets out Child Support’s policies.

3. The tribunal must determine the parents’ respective percentages of care in respect of the children at the time the case was registered with Child Support.

4. The legislative scheme states that a payee may apply under the Registration Act, to register a liability that arises under that Act. The Registrar is obliged to register the liability within 28 days. Child Support, acting for the Child Support Registrar, generally makes child support assessments using a statutory formula in Part 5 of the Act. This formula contains a number of elements called the particulars of the assessment. They include a care percentage and a cost percentage for each parent in relation to each child. Child Support decides each parent’s care percentage in line with sections 49 to 54L of the Act. These provisions require Child Support to decide each parent’s care percentage when first making a child support assessment and to revoke and remake those decisions in specific circumstances.

5. The tribunal makes the following findings. The parents separated on 28 October 2019 and continued to live in the marital home until 28 October 2020, when the mother left the property. They reached a parenting agreement on 2 November 2020, which states that the two older children are in the mother’s 65% care and the father’s 35% care and that the youngest child is in the mother’s sole care (100% care). Following a care change notification, Child Support amended the care percentages from 2 November 2020 to reflect the care as stipulated by the parenting agreement.

What was the pattern of care at the time the registration was lodged?

10.  The mother’s submissions can be summarised as follows. During the period they were living separated under the one roof she had more than 50% care of the children. In fact, her care of the children changed very little from the period prior to separation, though she does concede that from the date of separation the father was involved a lot more in the children’s care when compared to his care prior to separation. The father was employed, and she was the children’s primary caregiver and had responsibility for managing the household. She submits that her care of the older children was consistent with that as dictated under the current parenting agreement, that is, that she has 65% care of the older children and 100% care of the younger child.

11.  The mother stated that during separation the father continued to work four days per week, until the COVID lockdown (from March to July 2020), where he reduced his work days to about two days per week from home. As [an occupation 1] he did not work set hours; sometimes he would leave early in the morning and return home early, other times he would leave for work late and return home after 6 PM. She would dress the children each morning, pack their lunches and shared with the father the transporting of the older children to school and child care. She was breastfeeding the youngest child and would care for her and settle her to sleep. She agreed that overall it would be fair to say that when the father was not working, he was sharing the care of the older children. Her mother was also living at the home and would assist with preparing meals for the children. The father would only prepare meals for the children about two nights per week.

12.  When questioned about the father’s care diary, the mother stated that they are largely cut and paste and did not reflect the actual care he provided the children. She does not recall much evidence of him reading to the children, for example. She stressed that she had the responsibility to ensure that the older child was home schooled during the lockdown; she only called on the father’s assistance about five or six times (for a morning or afternoon only) during the whole time the child was home schooled, and this was only necessary because she would take one of the younger children to a medical appointment. She confirmed that their son attended day care four days per week since separation and when she returned to work in or around July 2020 the youngest child started child care two days per week, increasing to three days per week from about October 2020.

13.  The father’s case is as follows. There is a real fine line as to who had what percentage of care, and therefore the policy of sharing the care equally is appropriate. The father explained that the mother’s request for a separation took him by surprise. He took some leave immediately, with the hope of a reconciliation. Once he realised that this would not be possible, the lockdown was imposed. He tried to give the children as much time as possible, as he was conscious that their time together as a family would soon be coming to an end. He asserts that the mother overstated his work days prior to the COVID-19 lockdown; he estimates that it was two days per week or a maximum of three days per week. From March to about October 2020 he was home full-time. Even when he was working from home, he stressed that the older child was often at school and their son in day care. If they were not, he would tend to them as well as work.

14.  He denied that the arrangements in place prior to separation were traditional in that he worked and the mother cared for the children and the household. He was adamant that he was always quite involved in the children’s care. To demonstrate this, he kept the care diary, after receiving legal advice to do so. He agreed that his care records do not reflect the days that he worked during the same period. He stressed that if consideration is given to the fact that the mother had the majority of care of the youngest child as she was breastfeeding and settling her, then his additional care of the older children whilst she did this should be reflected in him being awarded 75% care. He also did the bulk of the transporting of the children to school and day care. Also, for a long period of time he has solely cared for the youngest child each Thursday, with the exception of the times the mother was required to feed her.

15.  The tribunal accepts into evidence a letter dated 12 October 2020 from [Ms A], Director, [from a named] Early Learning Centre, which states that the father has “regularly” dropped off and collected [Child 2] and [Child 3] from child care. In the tribunal’s view this letter is not sufficiently specific and does not assist the tribunal in determining each parents’ respective care percentage, and it merely supports their generally consistent testimony that the father did transport the children to and from care.

16.  The tribunal next considered Child Support’s policy on determining the pattern of care other than by way of using the nights of care as set out in 2.2.1 of the Guide:

Percentage of care

The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.

…

Where parents are separated but living in the same house, the Registrar will determine each parent's percentage of care for a child based on the individual circumstances of the case and evidence available. Generally, where the parents contribute in a similar manner to the care of the child, they will be regarded as sharing equally in the care of the child. 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.

1. The parents have provided conflicting reports about their care of the children from the date of separation. In some matters before the tribunal a parent’s care is capable of being quantified by set patterns and work arrangements, whether the care percentage is calculated by reference to nights or hours. After hearing the parents’ testimonies, the tribunal is persuaded that it is likely, given the nature of the household, the age of the children, and the father’s work arrangements, that the mother did have greater care of children. Certainly, she gave a more consistent and credible account of the care she provided. The tribunal also gave particular weight to the fact that she continued to breastfeed the youngest child whilst the parents were separated under the one roof. However, the tribunal is of the view that it is impossible to reach any conclusion with mathematical precision as to the mother and father’s exact care percentages during the care period. Therefore, the tribunal has determined that the parents’ care of the children was similar (though not necessarily equal). In such situations, as stated in the Guide, it is appropriate to find that the parents shared the care of the children equally.

2. Child Support’s care determination in relation to [Child 2] was dated from the date of registration of the maintenance liability. However, different dates were determined for [Child 1] (28 October 2019) and [Child 3] ([from] 29 May 2019). The Social Services and Child Support Division has consistently held the view that the legislation does not permit Child Support, or this tribunal, to make a care percentage decision for a period prior to the registration of the administrative assessment. Applying this reasoning to this review, Child Support simply did not have jurisdiction to determine the care percentages of the children from a date earlier than 13 October 2020.

3. Therefore, the tribunal is only required to make a determination from the date that the case was registered with Child Support. Thus, the relevant care period is 13 October to 1 November 2020, a period of less than three weeks.

4. Therefore, pursuant to subsection 50(2) of the Act, the tribunal determines that the mother has 50% and the father 50% care of the children [Child 1], [Child 2] and [Child 3] from 13 October 2020 (and not before in respect of [Child 1] and [Child 3]). For completeness, the tribunal notes that the subsequent care decision that reflects that the mother had 72% and the father 28% care of the older children and that the mother has 100% care and the father 0% care of [Child 3] from 2 November 2020 remains in place.

DECISION

The tribunal sets aside the decisions under review and, in substitution, decides that the child support care record must reflect that Ms Quinnett had 50% care and Mr Monyn 50% care of the children [Child 1], [Child 2] and [Child 3] from 13 October 2020.