Tuttle and Riddle (Child support)

[2024] AATA 1890

Tuttle and Riddle (Child support) [2024] AATA 1890 (2 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC026821

APPLICANT:  Ms Tuttle

OTHER PARTIES:  Child Support Registrar

Mr Riddle

TRIBUNAL:Member M King

DECISION DATE:  02 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• From 17 February 2023, Ms Tuttle be recorded as having 90% care of [Child 1] and Mr Riddle be recorded as having 10% care of [Child 1].

• From 9 June 2023, Ms Tuttle be recorded as having 84% care of [Child 1] and Mr Riddle be recorded as having 16% care for [Child 1].

• The change to the pattern of care was advised to the Child Support Registrar on 10 May 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of care – care arrangement as supported by the evidence – 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

BACKGROUND

1. As relevant to this application, Ms Tuttle and Mr Riddle are parties to a child support case registered with Services Australia – Child Support (Child Support) in relation to financial support to be provided for [Child 1] (born 2014).

2. Ms Tuttle had been recorded as having 79% care of [Child 1], and Mr Riddle 21% care of [Child 1], from 28 May 2020.

3. On 10 May 2023, Ms Tuttle advised Child Support that she had 93% care of [Child 1], and Mr Riddle had 7% care of [Child 1], from 17 February 2023.

4. On 8 June 2023, Child Support decided to record Ms Tuttle as having 93% care of [Child 1], and Mr Riddle 7% care of [Child 1], from 17 February 2023.

5. On 22 June 2023, Mr Riddle objected to that decision.

6. On 20 September 2023, a Child Support objections officer partly allowed the objection and decided to record Ms Tuttle as having 84% care of [Child 1], and Mr Riddle as 16% care of [Child 1], from 17 February 2023.

1. On 25 September 2023, Ms Tuttle lodged an application with the Tribunal seeking an independent review of Child Support’s decision.

1. The hearing of the application before the Tribunal was held on 5 April 2024. Ms Tuttle and Mr Riddle attended the hearing by telephone conference and gave sworn evidence. The Tribunal deferred making a decision to allow Ms Tuttle and Mr Riddle to provide any further evidence they wished the Tribunal to consider.

2. In considering the application, the Tribunal took into account the oral evidence and submissions of Ms Tuttle and Mr Riddle, the documentary material provided by Child Support to the Tribunal (Exhibit 1, pages 1 to 242), additional evidence provided by Ms Tuttle (Exhibit A, pages 1 to 12) and additional evidence provided by Mr Riddle (Exhibit B, pages 1 to 14).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). The legislation provides the Registrar, that is, Child Support, and the Tribunal on review, with rules for assessing and changing percentage of care determinations which are then used as part of the child support formula to assess child support rates.

2. The issue to be determined by the Tribunal is the percentage of care determinations to apply in the assessment for each parent.

CONSIDERATION

1. Sections 49 and 50 of the Act require initial percentage of care determinations to be made upon initial registration of a child support case, and generally for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is first required as to whether there is a pattern of care or no pattern of care for a child during a care period.

2. The term pattern of care is not defined in the legislation. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Child Support Guide states that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware that the actual care taking place does not correspond with the existing percentage of care determinations and the requirements of the legislation are satisfied for new percentage of care determinations to be made.

3. Both sections 49 and 50 first require consideration of whether the relevant person has had, or is likely to have, no pattern of care or a pattern of care for a child. If applicable, section 49 then requires a percentage of care determination of 0% for a person with no pattern of care. If applicable, section 50 then requires that the percentage of care determined for the relevant person must be a percentage that corresponds with the actual care the person has had, or is likely to have, during the care period.

4. The legislative test therefore first requires consideration of whether a person has had, or is likely to have, a pattern of care of a child for a care period, and if so, then assessment of the actual care a person has had, or is likely to have, during the care period is required.

5. As was recognised by Thomas J in the Federal Court case of Child Support Registrar v BKCZ [2023] FCA 1109 at [72], section 50 allows a decision-maker flexibility to either consider what care a person ‘has had’ or ‘is likely to have’ relative to the care period for which the decision is being made.

6. Ms Tuttle told the Tribunal that, in February 2023, Mr Riddle requested a change to the care arrangement for [Child 1], whereby he did not have care of [Child 1] on Thursday nights. She agreed to that change. After a few months, when the changed care arrangement continued, she reported the change of care to Child Support.

7. Ms Tuttle said her concern is only about the percentages of care recorded from 17 February 2023 until May or June 2023. She said Mr Riddle’s care of [Child 1] increased from that time and she does not dispute the percentages of care recorded from that time.

8. Ms Tuttle noted in her written submissions that, when Mr Riddle returned from his overseas travel, she received a phone call from him demanding that the care arrangement revert to Mr Riddle also having care of [Child 1] every Thursday night, as he did not want to pay the increased rate of child support.

9. Ms Tuttle’s submissions state that Mr Riddle then had care of [Child 1] on Friday                  9 June 2023.

10. Mr Riddle told the Tribunal that he thinks Child Support made the correct decision. He said he never agreed to the arrangements proposed by Ms Tuttle in emails or text messages.

11. He said the care arrangement for [Child 1] changed as Ms Tuttle booked [Child 1] into [specified] classes on Thursday nights. [Child 1] finished her [classes] at 6.30 pm and Ms Tuttle refused to drive [Child 1] to his home after the class. He therefore decided it was not in [Child 1]’s best interests to spend Thursday nights with him. He would then pick [Child 1] up on Friday mornings and take her to before-school care.

12. He does not think it is fair that Ms Tuttle reported that as a change of care when he was overseas. He said he did not reply to Ms Tuttle’s emails and text messages agreeing to the requested changes.

13. Mr Riddle said he currently has care of [Child 1] for three nights per fortnight.

14. At page 32 of the hearing papers is a copy of court orders made on 9 September 2019. The orders provide that Mr Riddle would have care of [Child 1] on certain dates and then, from 6 March 2020, he would have care of [Child 1] on alternate weekends from Friday afternoon to Sunday afternoon. From 2 April 2020, Mr Riddle would also have care of [Child 1] each week from Thursday afternoon to Friday morning.

15. At page 36 of the hearing papers is an email dated 14 February 2023, from Mr Riddle to Ms Tuttle. In the email, Mr Riddle proposes changing the care arrangement for [Child 1] as the current arrangement involves too much driving back and forth for him. He proposes that [Child 1] no longer spend Thursday nights with him. He also proposes that, from 17 February 2023, he would care for [Child 1] on Friday nights in one week and he would not have any overnight care of [Child 1] in the alternate week.

16. On 15 February 2023, Ms Tuttle responded to Mr Riddle’s email agreeing to the change to the nights of care for [Child 1] and proposing some changes to the handover arrangements for [Child 1].

17. A further email from Mr Riddle, dated 19 June 2023, notes that the agreement does not take into account school holidays and special occasions. He proposes dates for him to have care of [Child 1] over Christmas 2023.

18. On 22 June 2023, Ms Tuttle responded to Mr Riddle’s email querying the arrangements proposed by Mr Riddle.

19. Based on the written submissions provided by the parents after the hearing, for the month of February 2023, Ms Tuttle states that Mr Riddle had care of [Child 1] on the night of Friday 17th of February. Mr Riddle states that he had care of [Child 1] on the nights of Friday 17th and Saturday 18th of February.

20. For the month of March 2023, Ms Tuttle states that Mr Riddle had care of [Child 1] on the nights of Friday 10th, Friday 17th and Friday 31st of March. Mr Riddle states that he had care of [Child 1] on the nights of Friday 10th, Friday 17th, Saturday 18th and Friday 31st of March.

21. For the month of April 2023, Ms Tuttle states that Mr Riddle had care of [Child 1] on the nights of Thursday 6th, Friday 14th and Friday 28th of April. Mr Riddle states that he had care of [Child 1] on the nights of Saturday 1st, Thursday 6th, Saturday 7th, Friday 14th and Friday 28th of April.

22. For the month of May 2023, Ms Tuttle states that Mr Riddle had care of [Child 1] on the night of Friday 12th of May. Mr Riddle states that he had care of [Child 1] on the night of Friday 12th of May.

1. For the month of June 2023, Ms Tuttle states that Mr Riddle had care of [Child 1] on the nights of Friday 9th, Thursday 15th, Friday 23rd and Thursday 29th of June.  Mr Riddle states that he had care of [Child 1] on the nights of Friday 9th, Saturday 10th, Thursday 15th, Friday 23rd and Thursday 29th of June.

2. There is no dispute that the care percentages recorded up until 17 February 2023 were accurate, being 79% care for Ms Tuttle and 21% care for Mr Riddle. Ms Tuttle states that Mr Riddle’s care of [Child 1] reduced from 17 February 2023, consistent with the proposed changes to the care arrangement set out in Mr Riddle’s email to her of 14 February 2023. Ms Tuttle said it was only in May or June 2023 that Mr Riddle’s care of [Child 1] increased again.

3. The hearing papers record that, on 10 May 2023, Ms Tuttle advised Child Support that Mr Riddle had care of [Child 1] for one night every fortnight (7% care), from 17 February 2023.

4. Child Support was unable to contact Mr Riddle before it made a decision, on 8 June 2023, to accept the change of care advised by Ms Tuttle.

5. Mr Riddle contacted Child Support on 20 June 2023 and advised that the care arrangement had not changed. He advised he had care of [Child 1] for one night every fortnight as well as five weeks’ holiday care of [Child 1]. He advised that he had been overseas from 17 May 2023 until 5 June 2023.

6. The Tribunal notes that the court orders made on 9 September 2019 do not make any specific arrangements for school holiday care of [Child 1]. It does make provision for special occasions, such as birthdays, Mother’s Day, Father’s Day, Christmas Eve and Christmas Day. However, the care of [Child 1] for special occasions would not significantly alter the underlying pattern of care for [Child 1]. On each such occasion during the year, either parent may have one more or one less night of care for [Child 1].

7. The emails between Mr Riddle and Ms Tuttle, in February 2023, also do not outline any different care arrangement for school holiday periods.

8. The NSW school holiday periods for 2023 were from 7 April 2023 to 25 April 2023; 3 July 2023 to 14 July 2023; 25 September 2023 to 6 October 2023; and 20 December 2023 to 29 January 2024.   

9. The list of nights Mr Riddle states he had care of [Child 1] does not reflect that he had the extra care of [Child 1] during those school holiday periods, that he stated he would have.

10. The Tribunal finds that the pattern of care for [Child 1] was based on the weekly or fortnightly care arrangement for [Child 1] and there was no separate arrangement for care of [Child 1] during school holiday periods.

11. Pursuant to the court orders made on 9 September 2019, Mr Riddle was to have care of [Child 1] for two nights per fortnight and an additional one night per week. That is, four nights per fortnight, which equates to 28% care.

12. If Mr Riddle’s care was reduced to one night per fortnight, as he proposed in his email to Ms Tuttle of 14 February 2023, that would reduce his care to 7% care.

13. It is difficult for the Tribunal to reconcile the parents’ evidence as to the exact nights each parent had care of [Child 1] from 17 February 2023. Both parents have provided what they consider supporting evidence for a number of those nights in the form of photographs, text messages and emails.

14. In general terms, Ms Tuttle states that, from 17 February 2023, Mr Riddle had care of [Child 1] every alternate Friday night. Mr Riddle states that he had care of [Child 1] every alternate Friday and Saturday nights. Both parents agree that Mr Riddle had less care of [Child 1] in May 2023 (when he travelled overseas) and that his care of [Child 1] increased again from 9 June 2023 when he had care of [Child 1], after returning from overseas.

15. Mr Riddle has provided a number of photographs of [Child 1] at various events, between 17 February 2023 and 8 June 2023. The photographs are date and time stamped on Saturdays or Sundays. He submits that those photographs evidence that [Child 1] stayed with him on those Saturday nights and returned to Ms Tuttle’s care on Sunday.

16. Whilst Ms Tuttle’s list of nights that Mr Riddle had care of [Child 1] do not include those Saturday nights, she has not provided any evidence or comment to support her claim that Mr Riddle did not have care of [Child 1] on those Saturday nights.

17. On balance, the Tribunal prefers and accepts Mr Riddle’s evidence in that regard.

18. Based upon Mr Riddle’s submissions, during the period 17 February 2023 to 8 June 2023, he had care of [Child 1] for 12 nights. That equates to 10% of the nights during that
    112-night period.

19. The Tribunal therefore finds that Ms Tuttle should be recorded as having 90% care of [Child 1], and Mr Riddle 10% care of [Child 1], from 17 February 2023.

20. Neither parent disputed that the care percentages currently recorded of 84% for Ms Tuttle and 16% for Mr Riddle have been correct from 9 June 2023. That is consistent with the submissions provided by both parents.

21. The Tribunal therefore further finds that Ms Tuttle should be recorded as having 84% care of [Child 1], and Mr Riddle 16% care of [Child 1], from 9 June 2023.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• From 17 February 2023, Ms Tuttle be recorded as having 90% care of [Child 1] and Mr Riddle be recorded as having 10% care of [Child 1].

• From 9 June 2023, Ms Tuttle be recorded as having 84% care of [Child 1] and Mr Riddle be recorded as having 16% care for [Child 1].

• The change to the pattern of care was advised to the Child Support Registrar on          10 May 2023.