Simonds and Devine (Child support)

[2019] AATA 4870

Simonds and Devine (Child support) [2019] AATA 4870 (13 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016668

APPLICANT:  Ms Simonds

OTHER PARTIES:  Mr Devine

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  13 August 2019

DECISION:

The decision under review is set aside and, in substitution, Ms Simonds is recorded as providing 35% care and Mr Devine is recorded as providing 65% care to [Child 1] from 17 January 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – 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 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. Ms Simonds and Mr Devine are the parents of [Child 1] who was born in 2004. A child support case is registered with the Department of Human Services – Child Support (“the CSA”). By way of background, it appears that the CSA recorded Ms Simonds as providing 22% care and Mr Devine as providing 78% care to [Child 1] from 14 November 2016.

2. In November 2017, Court orders were made whereby [Child 1] was to reside in [City 1] with Mr Devine, and Ms Simonds was to provide certain care. “[F]rom 2019 onwards”, Ms Simonds was to provide three blocks of two nights’ care during each school term, and further, “[i]f the mother is in [City 1] during the year then provided that she gives the father 48 hours’ notice of her arrival in [City 1] the father shall not unreasonably refuse a request by the mother for the child to spend time whether her provided that the time does not interfere with the child’s school, sporting or extra-curricular commitments or family activities already planned by the father.”

3. In May 2018, Court orders were made whereby Ms Simonds was to provide certain care during school holidays. Both parents agreed that the May 2018 orders applied in addition to the November 2017 orders. Relevantly, during the 2018-19 Christmas school holidays, Ms Simonds was to provide care from the first day of those school holidays until 17 January 2019 (so her last night of care would be 16 January 2019).

4. On 15 January 2019, Ms Simonds reported a change in care from 21 December 2018. The CSA decided to not record a change in care. Ms Simonds objected to that decision. An objections officer disallowed her objection. She sought further review by the Tribunal. I heard the matter on 13 August 2019. Ms Simonds and Mr Devine attended the hearing by conference phone.

5. Ms Simonds lives [in City 2]. For reasons that are not relevant to the current proceedings, she believed that [Child 1] would start living with her at the end of the 2018-19 school holidays, and Mr Devine believed that [Child 1] would continue living with him. Ms Simonds subsequently explained that when the parents’ different views were identified, she (Ms Simonds) decided to apply to the Court for an order that [Child 1] live with her and “[Child 1] said she would stay in [City 1] until this happened”.

6. On 15 January 2019, Ms Simonds also provided the CSA with a calendar onto which she had marked her days of care during 2018 and her planned days of care during 2019. The distance between Ms Simonds’s home and Mr Devine’s home would have ordinarily suggested that Ms Simonds’s planned care was overly ambitious, but Ms Simonds explained that she can work remotely, and when [Child 1] decided to continue living in [City 1], Ms Simonds planned her future care around family activities and other events, and she informed her employer of her plans.

7. The parents are largely in agreement as to the care Ms Simonds has actually provided since the 2018-19 Christmas school holidays, which is also largely consistent with the care she originally planned to provide.

8. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Relevantly, section 50 of the Act provides for the making of new care decisions. The decision maker is required to determine the pattern of care each parent “has had, or is likely to have,” over the appropriate care period. The appropriate care period is often a twelve-month period, but each case needs to be assessed on its particular facts. In the current case, Ms Simonds planned to provide a pattern of care that involved her living away from home for significant periods of time while she sought Court orders that would allow [Child 1] to live with her. Also, Ms Simonds planned to provide care based on various family activities and the like. Such planning tends to be more tentative in respect of more temporally distant events. I consider the appropriate care period to be a six-month period.

9. Ms Simonds submitted that the change in care occurred on 20 December 2018 when she started her 2018-19 Christmas holiday care, but she had been expected to provide care during those holidays up until, and including, the night of 16 January 2019 pursuant to the Court orders. I find that the change in care occurred on 17 January 2019, when Ms Simonds continued to provide overnight care.

10. During the six-month period from 17 January 2019 to 16 July 2019 — which is a period of 181 nights — Ms Simonds expected to provide approximately 70 nights of care but it transpired that she provided 64 nights of care. The parents’ evidence concerning the nights of care she provided can be summarised as follows:

    Jan 2019The parents agreed that Ms Simonds provided care from 17 to 26 January, i.e. 10 nights.

    Feb & Mar 2019     Ms Simonds said she provided care on 8, 9, 22 and 23 February, and 13 to 25 March. Mr Devine said she provided care on 8 and 9 February, and 1, 2, and 13 to 25 March. He noted that the total number of nights of care during February and March was not in dispute, i.e. 17 nights.

    Apr 2019Ms Simonds said she provided care from 12 April. Mr Devine said she provided care from 15 April. He said he and [Child 1] attended a wedding on 13 April. In response to further evidence, Ms Simonds acknowledged that she might have provided care from 15 April, and I find that she did.

    Ms Simonds said that she and [Child 1] flew to [City 3], and flew home on 26 April, and she provided care up until, and including, the night of 26 April. Mr Devine said that [Child 1] spent time with other family members while she was in [City 3]. There is no dispute that Mr Devine remained in [City 1]. On balance, I find that [Child 1] remained in Ms Simonds’s care, and not Mr Devine’s care, while [Child 1] and Ms Simonds were in [City 3]. I find that Ms Simonds provided care from 15 to 26 April, i.e. 12 nights.

    May 2019The parents agreed that Ms Simonds provided care on 10 to 12, and 19 to 26 May, i.e. 11 nights.

    June 2019The parents agreed that Ms Simonds provided care from 17 to 23 June, i.e. 7 nights.

    July 2019The parents agreed that Ms Simonds provided care from 6 to 12 July, i.e. 7 nights.

11. 64 / 181 = 35.3%. However, it is important to note that the above analysis suggests a degree of mathematical precision in the calculation of the parents’ percentages of care that their pattern of care does not allow. If I had considered a different care period, the calculations would be different. Further, I am required to determine, as at January 2019, the future pattern of care that Ms Simonds was likely to provide, rather than determine, with the benefit of hindsight, the pattern of care she actually provided. Ms Simonds expected to provide more care than she actually provided, but I consider it likely that some of her planned care would not have occurred due to likely changes in family plans and the like. Viewing the case as a whole, I find that, as at January 2019, it was likely that Ms Simonds would provide a pattern of care over the following six months that would be fairly reflected for child support purposes in percentage of care of 35% care. It follows that the preferable decision at first instance was to record Ms Simonds as providing 35% care from 17 January 2019.

1. During the hearing, Mr Devine indicated, in effect, that Ms Simonds had more recently failed to provide some of her planned care. If there has been a subsequent change in care, that is something that either parent can report to the CSA.

DECISION

The decision under review is set aside and, in substitution, Ms Simonds is recorded as providing 35% care and Mr Devine is recorded as providing 65% care to [Child 1] from 17 January 2019.