Harvey and Harvey (Child support) [2019] AATA 2531 (5 June 2019)

Last Updated: 14 August 2019

Harvey and Harvey (Child support) [2019] AATA 2531 (5 June 2019)

DIVISION: Social Services & Child Support Division

REVIEW NUMBER: 2019/SC016083

APPLICANT: Mr Harvey

OTHER PARTIES: Child Support Registrar

Ms Harvey

TRIBUNAL: Member M Kennedy

DECISION DATE: 5 June 2019

DECISION:

The decision under review is set aside so as to allow the objection and to determine that Mr Harvey has 2% care of each of the children with effect from 4 September 2018.

(This will not affect the rate of child support.)

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – manifest and clear discrepancies between the statements of the parties - 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. Mr Harvey and Ms Harvey are the parents of [Child 1], [Child 2] and [Child 3]. Ms Harvey applied for a child support assessment on 4 September 2018 which was accepted. This required the Child Support Registrar to make a care determination in respect of the care each parent provided to the children.
2. The Registrar determined that Ms Harvey had 100% care of the children from 1 January 2018, but effective from 4 September 2018 for the child support assessment.
3. Mr Harvey objected to that decision.
4. In the absence of any corroborative evidence from either parent, the objections officer disallowed the objection on 16 February 2019.
5. Mr Harvey applied to the Tribunal for review on 11 March 2019.

CONSIDERATION

6. Upon accepting an application for child support, the Registrar must determine a percentage of care for a person responsible for the care of a child during a care period that corresponds with the pattern of actual care of the child the person has had or is likely to have during the care period: section 50 of the Child Support (Assessment) Act 1989.
7. The Registrar’s policy in the Child Support Guide at 2.2.1 assists in the application of the concept of identifying a ‘pattern of care’.

When an application for a child support assessment is received, or a change in care percentage is being considered, the Registrar will ask for information about the care of the child or children ...

In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

The Registrar must make a determination of the care a parent ... is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

8. The evidence before the Tribunal available to review the determination of the care percentage is limited to a list of dates and circumstances provided by each parent, but without any cogent corroboration. Both parents gave sworn evidence that their list was prepared by reference to a contemporaneous ‘care diary’, and was true and correct. There are nonetheless manifest and clear discrepancies between the two lists.
9. There are no court orders or formal parenting plans in place.
10. Based on the content of the lists of dates provided by both parents, and the discrepancies, the task of identifying a ‘pattern’ in the care Mr Harvey has had is very difficult. Mr Harvey told me that he had care of the children every second weekend, but Ms Harvey’s evidence contradicts that.
11. A draft parenting plan was provided to me by Ms Harvey, but as it has not been accepted by either parent, it is of no assistance to me.
12. In examining the information provided by both parents for the purpose of identifying if there is a pattern of care demonstrated, I have disregarded the care of the children that did not amount to overnight care, or the care that took place during exceptional events, such as overseas travel, as it does not form part of a regular ‘pattern’. The joint evidence available to me commences from 18 September 2018 and ends on 10 March 2019.
13. On Mr Harvey’s list, a percentage of care calculated by reference to the nights a child is in his care as a percentage of the nights addressed by the evidence would be as follows:

[Child 1]: 13.3%

[Child 2]: 11.5%

[Child 3]: 18.4%

14. With the exception of [Child 3], care percentage of this amount would not affect the child support assessment.
15. I refer again to the Registrar’s policy (at 2.2.2) in dealing with situations where it is not possible to identify a pattern. This policy is directed to changes to the care determination rather than the making of an initial care determination but I have nonetheless found it of assistance:

There may be situations where the Registrar is advised that the care of a child will change, or has changed, but no pattern of care exists that will assist in determining the care percentages for a new care period. In these situations, the Registrar will consider the information provided by the parents to decide whether care percentages can be determined. If the information provided by both parents is consistent, then the Registrar will determine the care percentages based on that information.

If conflicting information has been provided by the parents, the Registrar will consider whether there is some common expectation about future care. If the information provided shows that a different care percentage would be calculated, and there is agreement to a certain point on what the new care arrangements will be, then the Registrar will use that 'point of agreement' to determine the new care percentage.

16. Identifying as best I can any points of agreement by reference to Ms Harvey’s list, I note that the agreed nights (that is, periods where Ms Harvey has indicated that a child was in Mr Harvey’s care) during that period is represented as a percentage as follows:

[Child 1]: 3.4%

[Child 2]: 2.3%

[Child 3]: 2.89%

17. Having regard to the Registrar’s policy, and in light of the nature of the evidence before me, I consider that the initial percentage of care determination should reflect the point of agreement between the parents over a care period identified by reference to the available evidence. Neither parent’s evidence struck me as being apparently more reliable than the other, and as mentioned above, neither parent’s evidence has been cogently corroborated. The third party statement of Mr [A] has not assisted me, nor has it corroborated the other evidence.
18. Given the poor quality of the evidence before me, it would be unhelpful to make different care percentage determinations for different children. As care percentage determinations are rounded down when the care percentage is below 50%, the appropriate determination to make in my view is 2% for each of the children. I do so on a modified basis of the Registrar’s policy to identify points of agreement for the purposes of making a determination, and with some reservations as to whether any ‘pattern’ is identifiable.
19. This care percentage determination will not affect the calculation of child support. Indeed, as mentioned above, (with the exception of [Child 3]), even had I accepted all nights of care on the basis of Mr Harvey’s evidence, the outcome would not have affected the calculation of child support.

DECISION

The decision under review is set aside so as to allow the objection and to determine that Mr Harvey has 2% care of each of the children with effect from 4 September 2018.

(This will not affect the rate of child support.)