Sammons and Child Support Registrar (Child support)

[2021] AATA 2912

Sammons and Child Support Registrar (Child support) [2021] AATA 2912 (13 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021405

APPLICANT:  Mr Sammons

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member P Sperling

DECISION DATE:  13 July 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Sammons had a percentage of care of 35% and Ms Sammons had a percentage of care of 65% from 6 July 2020, effective from 17 September 2020 when the assessment started.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was 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

BACKGROUND

1. Ms Sammons and Mr Sammons are the parents of [Child 1], born [in] 2006 (the child). Mr Sammons is the parent liable to pay child support.

2. On 17 September 2020 Ms Sammons registered a child support case for assessment and, as part of that process, she notified the Department that she had care 11 nights per fortnight (or 79% care) and Mr Sammons had three nights per fortnight (or 21% of care) from 6 July 2020.

3. On 14 October 2020, as part of granting the application, the Department determined that from 6 July 2020, with effect from 17 September 2020, Ms Sammons had 79% care of the child and Mr Sammons had 21% care of the child.

4. On 26 November 2020 Mr Sammons disagreed with the decision regarding the percentage of care of the child and lodged an objection to the decision of the Department. On 6 April 2021, an objections officer disallowed Mr Sammons’s objection.

5. On 4 May 2021 Mr Sammons lodged an application to this tribunal for a review of the decision. Ms Sammons was invited to participate in the hearing but did not apply to be a party, and so was not made a party to this review. The hearing took place on 13 July 2021. Mr Sammons participated in the hearing via conference telephone and gave sworn evidence. The tribunal had before it a bundle of documents taken from the Department file (pages 1 to 98) which were copied to Mr Sammons.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues for the tribunal to consider in this case are:

   ·what was the care of the child from 6 July 2020; and

   ·what is the date of effect of the tribunal’s decision?

What was the care of the child from 6 July 2020?

1. It is not in dispute that Ms Sammons applied for an administrative assessment of child support on 17 September 2020, which was granted by the Department on 14 October 2020, with effect from the date of application, that is 17 September 2020. The tribunal is satisfied that Ms Sammons meets the requirements under the Act for her application for an administrative assessment of child support to be granted. In determining the particulars of the administrative assessment, the Department must make a determination in relation to the level of care of a child (or children), which is the subject of the application.

2. During discussions with the Department both parents confirmed that there were no formal care arrangements in place for the child: no court order or parenting plan. During the hearing Mr Sammons reconfirmed this. The tribunal finds accordingly.

10.In a discussion with the Department on 5 October 2020 prior to the registration of this case, Mr Sammons is recorded as advising that he had 28% care of the child on the basis that he provided care four nights per week. He is also recorded as advising that the care was generally random, in that it might be one night in the week and one night on the weekend or, alternatively, two nights on the weekend. At the time the Department asked Mr Sammons to provide evidence of the care arrangements; however, there is no record of Mr Sammons providing any evidence of the care arrangements in place prior to the original decision being made on 14 October 2020.

11.During the Department’s subsequent review of this matter Mr Sammons told the Department that he had overnight care of the child two or three times each week since 10 July 2020.

12.On 3 November 2020 Mr Sammons provided copies of his personal diary in which he recorded the overnight care he had of the child. This information recorded that Mr Sammons had overnight care of the child on 19 nights out of 44 nights between 19 September 2020 and 31 October 2020.

13.During a discussion with the Department on 5 November 2020 Mr Sammons advised that he had five nights of care per fortnight, that is 35% care, since 10 July 2020. In his objection application of 26 November 2020 Mr Sammons again stated that he had five nights of care per fortnight, usually two nights in one week and three nights in the following week.

14.In subsequent advice of 14 January 2021 Mr Sammons is recorded as advising that, more often than not, he has three to four nights of care per week. He stated that the child might stay a couple of nights at her friends’ houses during holidays, and at those times he might only have two nights care in the week, but she normally stays three to four nights per week. He also restated that this pattern of care had been the care in place since July 2020 and not just from September 2020. He is also recorded as advising that, when he separated from Ms Sammons, he assumed that they would get back together, and so he signed papers to agree that the child would only be in his care 20%. However he reiterated that this level of care never occurred and, from the separation date onwards, he always had much more than 20% care.

15.On 1 December 2020, during the Department’s review of this matter, Ms Sammons advised that Mr Sammons had a maximum of four nights care per fortnight and often only had three nights care per fortnight. She maintained that Mr Sammons did not have five nights of care per fortnight from July 2020. She indicated that she would provide further evidence about the care of the child; however, the tribunal has no further evidence before it from Ms Sammons, and in particular no specific information about the dates of care from Ms Sammons.

16.During the hearing Mr Sammons told the tribunal that he wasn’t really sure why Ms Sammons applied for a child support assessment in September 2020. He said that, following their separation in July 2020 he was paying directly for a lot of the child’s costs and he was giving extra money to Ms Sammons to cover some of the child’s additional costs. He said he also offered to give Ms Sammons more money at the time, but on reflection he thinks that she may have applied for a child support assessment in order to get even more money from him.

17.Mr Sammons told the tribunal that, from as early as 5 July 2020 when he separated from Ms Sammons, he had been having at least five nights care of the child per fortnight. He said he consistently had care two to three nights per week, usually on Wednesday, Friday and Saturday nights. He conceded that the child stayed with her friends on one weekend night per fortnight. On this basis he considers it fair and reasonable to record his care as five nights per fortnight from 6 July 2020.

18.Mr Sammons said that, in all his discussions with the Department since the original application was submitted by Ms Sammons, he has consistently maintained that he has had an average of five nights per fortnight, but that his advice has been ignored in the Department’s care decisions.

19.Mr Sammons also said that, at the suggestion of the Department, he started contemporaneously  recording his care in a diary. He provided his care diary evidence to the Department in early November 2020 and it set out the care he had between 19 September 2020 and 31 October 2020. He said he was frustrated that his diary evidence was not properly taken into account by the Department in making its decisions.

20.In summary, Mr Sammons maintained that he had at least five nights care per fortnight of the child from 6 July 2020 which equates to 35% care, and that his care diary contains evidence of this.

21.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.

22.The tribunal is required to consider what actual care Mr Sammons and Ms Sammons have had or are likely to have of the child during ‘the care period’. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Department’s Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. The tribunal therefore decided to calculate the care for the care period for 12 months from 6 July 2020.

23.In determining a responsible person’s percentage of care, the tribunal must have regard to the ‘pattern of care’. This term is not defined in the legislation. The tribunal had regard to the policy as set out in the Guide at Chapter 2.2.2. 

24.Actual care is generally worked out based on the number of nights the child was, or is likely to be, in the care of the person in accordance with subsection 54A(1) of the Act. In this matter Mr Sammons maintains that the child was in his care for at least five nights per fortnight since July 2020 when he separated from Ms Sammons.

25.The tribunal notes that neither parent has provided evidence regarding the exact dates they provided care between 6 July 2020 and 18 September 2020. However, Mr Sammons provided the Department with a diary showing that he had care for 19 nights out of 44 for the period 19 September 2020 to 31 October 2020. No dates of care have been provided for any of this period by Ms Sammons.

26.The tribunal is satisfied that the diary of care provided by Mr Sammons for the period 19 September 2020 to 31 October 2020 is a contemporaneously documented record which shows that he had more than 21% care during that 44-day period.

27.While this record of care does not contain details of the care he provided between 6 July 2020 and 18 September 2020, the tribunal accepts Mr Sammons’ evidence that he had more than 21% care from 6 July 2020 and that his care did not suddenly increase in mid-September 2020. The tribunal also noted that, in his ongoing discussions with the Department on this matter, Mr Sammons has consistently maintained that he had about five nights of care per fortnight from July 2020.

28.Given all of these factors, the tribunal is satisfied that Mr Sammons had more than 21% care of the child from 6 July 2020. Further, having regard to the care calendar Mr Sammons provided covering a significant part of the relevant period as well as Mr Sammons’s evidence during the hearing and his consistent evidence since the case was registered, the tribunal is satisfied that Mr Sammons had five nights of care per fortnight, or 35% care, from 6 July 2020.

29.The tribunal therefore determines that Mr Sammons had five nights of care per fortnight, or 35% care, from 6 July 2020, and Ms Sammons had 65% care from 6 July 2020. Finally, the tribunal determines that the date of effect of this decision is 17 September 2020, which is the start date of the assessment.  

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Sammons had a percentage of care of 35% and Ms Sammons had a percentage of care of 65% from 6 July 2020, effective from 17 September 2020 when the assessment started.