Ramsay and Ramsay (Child support) [2019] AATA 2520 (28 June 2019)

Last Updated: 14 August 2019

Ramsay and Ramsay (Child support) [2019] AATA 2520 (28 June 2019)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2018/AC015667

APPLICANT: Mr Ramsay

OTHER PARTIES: Child Support Registrar

Ms Ramsay

TRIBUNAL: Member J Thomson

DECISION DATE: 28 June 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Ramsay is to be recorded as having 14% care and Ms Ramsay is to be recorded as having 86% care of the children, [Child 1], [Child 2] and [Child 3] from 23 July 2017 with effect from 18 September 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – whether there were special circumstances that prevented the objection being lodged in time - special circumstances do not exist - 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. Mr and Ms Ramsay are the parents of [Child 3], born 2006 [Child 1], born 2009, and [Child 2], born 2013, (the children).
2. Mr Ramsay seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) dated 17 December 2018. This decision disallowed his objection to an earlier decision by the Department dated 16 August 2017 to reflect the care of the children as 0% care to Mr Ramsay with respect to [Child 3], and 3% care with respect to [Child 1] and [Child 2], and 100% care to Ms Ramsay with respect to [Child 3], and 97% care with respect to [Child 1] and [Child 2] from 4 January 2017, with effect from 23 July 2017.
3. On 18 September 2018, Mr Ramsay objected to the Department’s decision of 16 August 2017, and on 17 December 2018, the Department’s objections officer disallowed Mr Ramsay’ objection and affirmed the Department’s earlier decision of 16 August 2017.
4. The Tribunal heard the matter on 26 March 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documents provided by the Department. Both parents had copies of these papers with them at hearing, and the Department’s documents were admitted into evidence and marked Exhibit 1.
5. At the conclusion of the hearing, the Tribunal directed that Mr Ramsay provide further written submissions and supporting documentation in response to a schedule of care provided by Ms Ramsay, in evidence before the Tribunal at pages 138 to 154 of Exhibit 1.
6. Mr Ramsay’ responsive submissions and supporting documentation, including his chronology of events have been admitted into evidence and marked Exhibit A. Copies of these documents were provided to Ms Ramsay, and her responsive submissions and supporting documents have been admitted into evidence and marked Exhibit B. Copies of Ms Ramsay submissions and supporting documentation will be sent to Mr Ramsay with the Tribunal’s decision.

CONSIDERATION

7. In reaching its decision, the Tribunal has considered the affirmed evidence of both parents given at the hearing, and the documentation contained in Exhibits 1, A and B.
8. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989, (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what is likely to happen thereafter?
9. Mr Ramsay’ case at hearing centred upon his concern at the child support debt which he said had accrued to him as a consequence of the Department’s decision to record the date of change in care notified by Ms Ramsay on 23 July 2017 as having occurred on 4 January 2017. He asserted in evidence that although he and Ms Ramsay had separated on 4 January 2017, they had remained living under the same roof with the children until he left the family home to reside with his partner at her residential address at [Suburb 1], [City 1] South Australia on 26 June 2017.
10. His evidence at the hearing, in summary, was that, post separation on 4 January 2017, he and Ms Ramsay continued to live under the same roof with the children; both parents were employed by [a] Warehouse company in different capacities and at different locations in or around [City 1], South Australia, in Mr Ramsay’ case, from 16 January 2017, and in Ms Ramsay’ case, from February 2017.
11. Mr Ramsay’ work hours were 6 am to 3 pm during weekdays and every 5^th weekend, and Ms Ramsay’ work hours were 8 am to 5 pm during weekdays and every 2^nd weekend. On the occasions that both parents were working, Mr Ramsay acknowledged that Ms Ramsay’ parents, in particular, her mother, provided care for the children, and also assisted Mr Ramsay in driving the children to and from school. However, he said the both parents were at home during the evenings and providing shared care for the children.
12. Ms Ramsay did not dispute Mr Ramsay’ evidence up to this point in time, other than to assert she provided more of the actual care functions, such as preparing meals and children’s lunches, washing clothes and bathing the children.
13. In April 2017, Mr Ramsay commenced a relationship with a new partner. He acknowledged in evidence that this created tension between him and Ms Ramsay, precipitating an atmosphere of toxicity in the household which only increased as he began to spend more time staying overnight at his new partner’s place of residence. He acknowledged in evidence that he spent a total of approximately 10 nights in May 2017 and 12 nights in June 2017 away from the family home.
14. In mid-May 2017, his work roster changed from 6 am to 3 pm to 11 am to 10 pm or 11 pm. He was responsible for closing the [Warehouse] premises where he was employed, approximately one hour’s drive from the family home, and he did not arrive home until midnight, on occasions. However, when he was not spending time with his new partner, he was living at the family home, driving Ms Ramsay to work, and the children to school.
15. Although Mr Ramsay gave conflicting evidence as to the date he finally moved out of the family home, the chronology of events he provided at pages A5 to A7 of Exhibit A record the date as 26 June 2017 (see page A6).
16. Both parents provided schedules of care. Ms Ramsay gave evidence that the schedule of care she provided at pages 138 to 154 of Exhibit 1 was compiled by her mother based on telephone and text message records, and other recorded notes of care for the period 4 January 2017 to 23 July 2017, and although persuasive, she acknowledged that the schedule was not a contemporaneous record of care taking place during that period.
17. Mr Ramsay’ schedule of care at pages A5 to A7 of Exhibit A was compiled by him in response to the care reflected in Ms Ramsay’ schedule of care referred to in the preceding paragraph, and also based on telephone and text message records, and notebook records of care, and were consequently, persuasive, but not a contemporaneous record of the actual care taking place over that period.
18. Ms Ramsay acknowledged in her evidence to the Tribunal at hearing that from the date the parents separated on 4 January 2017 up until the point in time when Mr Ramsay commenced his relationship with his new partner, sometime in April 2017, the parents were residing under the same roof and providing approximately equal shared care for the children.
19. Both parents acknowledged in evidence that from mid-April 2017, as the relationship deteriorated, and Mr Ramsay began spending more time with his new partner, he spent less time at the family home. Mr Ramsay’ evidence was that from May 2017, he commenced transitioning to his new partner’s home, and it was during this period that he spent periods totalling approximately 10 and 12 days in May and June respectively away from the family home. However, the evidence suggests that during this period, while he was working the 11 am to 11 pm shift at the [Warehouse] where he was employed, he was spending some time at the family home, and assisting Ms Ramsay in the provision of care for the children.
20. Mr Ramsay acknowledged in evidence that the care schedule provided by Ms Ramsay for the period 4 January 2017 to 23 July 2017 was a reasonably accurate record of the actual care taking place during that period. Both parents acknowledged in evidence that Mr Ramsay had overnight care of the children, [Child 1] and [Child 2] at his new partner’s residence on Saturday night 27 May 2017 (according to Mr Ramsay’ chronology of events, [Child 3] stayed overnight on this occasion), Saturday 10 June 2017 (according to Ms Ramsay’ evidence, [Child 3] was invited but declined to accept Mr Ramsay’ invitation), and overnight care for all three children from after school on Friday 21 July 2017 to 4 pm, Sunday, 23 July 2017.
21. It was not disputed that Ms Ramsay applied for a child support assessment on 23 July 2017. However, Mr Ramsay disputes that the child support assessment should apply from 4 January 2017.
22. The Tribunal considers it inappropriate, in this case, to make a determination of the respective parents’ percentages of care by reference to specific nights of care. In accordance with the legislation outlined above, the Tribunal intends making a point in time decision, based on the pattern, or likely pattern of care provided by the parents up until the date of notification of the change in care is considered, and the likely pattern of care thereafter.
23. In her post hearing submissions responding to Mr Ramsay’ comments on the schedule of care compiled by Ms Ramsay’ mother at pages 140 to 154 of Exhibit 1, Ms Ramsay submits that she had a higher proportion of care for the children during the post separation period, 4 January 2017 to the date of Mr Ramsay’ departure from the family home on 26 June 2017.
24. The documentary evidence and the affirmed evidence of the parents at hearing suggest that Mr Ramsay was not residing in the family home for significant periods of time in that period. The Tribunal finds that the likelihood was that Ms Ramsay was responsible for a higher proportion of the care for the children during that period, and considers it reasonable to assess her percentage of care of the children from the date of separation on 4 January 2017 to the date of Mr Ramsay’ departure from the family home on 26 June 2017 as 60%, and Mr Ramsay’ percentage of care during that period as 40%.
25. The Tribunal also finds the evidence on balance is that a change in care for the children occurred on 26 June 2017 when Mr Ramsay left the family home to take up residence with his new partner at her home in [Suburb 1], [City 1], and not 4 January 2017.
26. As regards the pattern or likely pattern of care for the care period from 26 June 2017 onward, Mr Ramsay gave evidence that following his departure from the family home on 26 June 2017, he was having care of the children from Friday, after school, to Sunday afternoon at least every second weekend, i.e. two nights per fortnight. Ms Ramsay agreed in evidence that this was the likely pattern of care post 26 June 2017, although she said [Child 3] did not always go to stay with Mr Ramsay at his partner’s house at [Suburb 1] on those weekends.
27. Adopting a broad brush approach to the schedule of care provided by Ms Ramsay (Exhibit 1, pages 140 to 154), Mr Ramsay’ chronology of events (Exhibit A, pages A5 to A7), and Ms Ramsay’ post hearing submissions relating to the care issues (Exhibit B, pages B1 to B4), the Tribunal finds the evidence on balance is that the likely pattern of care for the children from 26 June 2017 onward was that Mr Ramsay would have care of the children for two nights per fortnight (Friday and Saturday nights), which equates to 14% care (2 x 26 / 365 x 100 = 14.25; rounded down to 14 % pursuant to section 54D of the Act), and, correspondingly, Ms Ramsay’ care percentage, for the care period from 26 June 2017, would be 86%.
28. Ms Ramsay made an application for an administrative assessment on 23 July 2017. The Tribunal has determined the care percentages for the care period from 26 June 2017 when Mr Ramsay left the family home as 14% for Mr Ramsay and 86% for Ms Ramsay. The date from which these percentages are to apply in the administrative assessment is 23 July 2017 (paragraph 54B(2)(a) of the Act).
29. As pointed out in the analysis of the relevant legislation set out above, if the care pattern determined into the future either does not eventuate, or changes, the Act provides for either parent to notify the Department of a change in care, and seek a fresh care determination.
30. The Department’s documentation contained in Exhibit 1 suggests that there have been further change in care determinations made by the Department with respect to the children since the Department’s care percentage determination on 16 August 2017.
31. Mr Ramsay acknowledged in his affirmed evidence to the Tribunal at hearing that he received a letter from the Department dated 18 August 2017 notifying him of its change in care decision on 16 August 2017, and the 28 day period from the date of receipt of notification of that decision in which he had to lodge an objection to that decision.
32. Mr Ramsay did not lodge an objection until 18 September 2018, and has not provided any satisfactory explanation for his failure to lodge his objection within the 28 day statutory period for doing so.
33. The Tribunal is not satisfied as to the existence of special circumstances which prevented Mr Ramsay from lodging his objection within the prescribed statutory 28 day period. Accordingly, pursuant to the provisions of section 87AA(1) of the Child Support (Registration and Collection) Act 1988, the date of effect of the Tribunal’s decision in this matter will be the date he lodged his objection – 18 September 2018.
34. The Tribunal will therefore set aside the objection officer’s decision under review, and, in substitution, decides that Ms Ramsay is to be recorded as having 86% care, and Mr Ramsay is to be recorded as having 14% care of the children from 23 July 2017, with effect in the assessment from 18 September 2018.
35. As there have been further changes in care determinations by the Department since 16 August 2017, the Tribunal’s decision will have no effect on the child support assessments in place since 16 August 2017, but will have effect for the purposes of the parents’ entitlements to Centrelink benefits.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Ramsay is to be recorded as having 14% care and Ms Ramsay is to be recorded as having 86% care of the children, [Child 1], [Child 2] and [Child 3] from 23 July 2017 with effect from 18 September 2018.