CHILD SUPPORT - percentage of care - whether there was a change to the likely pattern of care - disputed facts - existing percentage of care determinations revoked and new determinations made - decision under review set affirmed

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.

1. This review is about the percentages of care of Ms Rainforth and [Mr A] in relation to their eldest daughter (the child) who is now 12 years old.

2. A child support assessment in this case was first registered on 14 May 2014 and child support has been collectable by Services Australia (Child Support Agency) since 21 December 2020.

3. Since 1 November 2019 the pre-existing percentages of care for the child were recorded by the Child Support Agency to be 56% care to [Mr A] and 44% care to Ms Rainforth.

4. On 14 December 2020 Ms Rainforth contacted the Child Support Agency and advised that there had been a change in the care of the child. She advised that, since 1 November 2019 the child was in her care for 279 nights (77% care) and [Mr A]'s care for 86 nights (23% care).

5. On 21 December 2020 Ms Rainforth was contacted by the Child Support Agency and she updated the commencement of the change in care to 12 November 2019.

6. On 1 March 2021 the Child Support Agency decided that there was insufficient evidence from both parties regarding their percentages of care. It determined that the care was 50% to each of the parents.

7. On 13 April 2021 Ms Rainforth objected to that decision.

8. On 12 May 2021 an objections officer disallowed Ms Rainforth's objection and affirmed the original decision.

9. On 3 June 2021 Ms Rainforth requested a review by the Administrative Appeals Tribunal (the Tribunal).

10. Ms Rainforth attended the hearing by way of a telephone conference on 19 August 2021 and gave sworn evidence.

11. [Mr A] was invited to participate in the hearing but he did not respond and was removed as a party.

12. The Child Support Agency provided papers relevant to this matter and these were marked (as a bundle) as Exhibit C1 (pages 1-154) and Exhibit C2 (pages 155-182).

1. What were the care arrangements in relation to the child in the relevant care period?
2. Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

14. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

15. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person's percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

16. The Assessment Act provides that the care percentage must be determined for a "care period" which is effectively defined as "...such period...as the Registrar considers to be appropriate having regard to all of the circumstances". Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period, commencing from 12 November 2019 was appropriate in this case (noting that this will apply only unless or until a further care determination is made). The Tribunal further notes that a subsequent more recent change of care was notified and has been determined to be 66% care to Ms Rainforth and 34% to [Mr A] from 9 May 2021.

17. Section 54A provides that the Registrar may assess the level of care based on the number of nights that a parent has the child during a care period.

18. In this case, neither parent contended that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the actual care of the child in this case.

19. In addition, both parents agreed that there were no court orders or written parenting plans in existence during the care period and the Tribunal therefore considered the actual care of the child.

20. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for the child and whether the care that was occurring did not correspond with the pre-existing care determination of 56% care to [Mr A] and 44% care to Ms Rainforth.

21. Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked.

22. For the purpose of determining whether a person "has had, or is likely to have, a pattern of care for the child"[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and evidence of the pattern of care the person is, or was, likely to have at that point in time.

23. The phrase "pattern of care" which is referred to in subsections 49(1) and 50(1) of the Assessment Act is not given any special meaning by the Assessment Act. In Parent A and Child Support Registrar and Anor[2] the AAT stated that:

...a pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations on which the prediction of successive or future events may be based.....The pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.

24. [Mr A] stated that his care of the child was two weeks in November 2019, two weeks in December 2019; two weeks in January 2020; four weeks in February 2020 and three weeks in March 2020.[3] Notwithstanding, [Mr A] stated that he believed the care should be recorded as 50% to each of the parents as he said that he and Ms Rainforth had agreed to a two weeks on and two weeks off arrangement.[4] [Mr A] provided a care calendar from November 2019 to April 2020 and this showed that from 1 November 2019 to 30 April 2020 he had 102 nights of care out of a possible 182 nights (which is 56%).

25. Ms Rainforth contended that her care was at least 70%. She stated that the care of the child had always been shared care: 70% to her and 30% to [Mr A].[5] Ms Rainforth stated that while she agreed that [Mr A] had two weeks of care in November 2019 she did not agree that he had two weeks of care in December 2019 or in January 2020. She stated that she agreed that [Mr A] had four weeks of care in February 2020 but that was because his mother was visiting from overseas. She stated that from March 2020 the care was 70% to her and 30% to [Mr A].[6] She provided a care calendar on 14 December 2020 which showed that [Mr A] had 12 nights of care in November 2019; four nights in December 2019; two nights in January 2020; 28 nights in February 2020; nine nights in March 2020;18 nights in April 2020; nil nights in May, June and July 2020; one night in August 2020; five nights in September 2020 and seven nights in October 2020.[7]

26. On 21 December 2020 [Mr A] stated that he disagreed with the care change requested by Ms Rainforth. He said that there was no pattern of care for the child. [Mr A] stated that he believed the care had been roughly 50/50 since November 2019. He said that he and Ms Rainforth had mostly have been doing week about "or sometimes seven days and eight days there and vice versa.[8]

27. In her objection to the decision that the care was 50/50 to each of the parents, Ms Rainforth stated that there was no pattern of care as the child decides when she wants to stay with [Mr A]. Based on the care that has occurred Ms Rainforth stated that she has calculated that she had at least 70% care of the child.[9] Ms Rainforth provided a letter from her solicitor dated 9 April 2021 which stated that, "on the basis of information provided to us by [Ms Rainforth] we understand that [Ms Rainforth] has been the primary care giver for (the child) since November 2019...". She also provided a letter (partially redacted) from [a psychology clinic] dated 17 November 2020 which stated that the younger child "has an older sister (11 years) who lives with her mother".[10] She also provided a letter from her cousin, [Mr B], dated 22 April 2021 which states that, "As I have noted from our regular catch ups at [Ms Rainforth]'s place and my place, that [Ms Rainforth] has been the main or primary caregiver for (the child) since November 2019 as (the child) is with her mum on majority (sic) of the occasions".[11] Ms Rainforth also provided a statement from [School 1] dated 22 April 2021 which stated that the child "is currently enrolled at [School 1] and is in the primary care of her mother".[12]

28. At the hearing Ms Rainforth agreed that there was no pattern of care for the child. However, she maintained that the child spent more time with her than with her father. She stated that [Mr A] had stated that the care was 50/50 in retaliation. She stated that the child did not want to stay with her father for a period of time after [Mr A] involved the police but that she had never prevented the child from staying with her father.

29. The Tribunal carefully considered all of the available relevant information. It is satisfied on the basis of the statements of both parents that there was no discernible pattern of care for the child from 12 November 2019. It is also satisfied that both parents were sharing the care of the child in the care period. In relation to the third party statements provided by Ms Rainforth, while the Tribunal accepts that the statements were given in good faith, the Tribunal finds that they were non-specific and lacking in detail in relation to the care arrangements. In some cases the writers did not have firsthand knowledge of the care arrangements. In addition the third party statements were all dated in 2021 (with the exception from the [psychology clinic] which was dated 17 November 2020). The statements did not assist the Tribunal to determine the care percentages from 12 November 2019. Ms Rainforth and [Mr A] both disputed the other's calculation of care although [Mr A] confirmed that he believed that the care was "roughly 50/50 since November 2019".[13]

30. In the absence of a discernible pattern of care and on the basis that both parents were sharing the care of the child, the Tribunal determines that from 12 November 2019 the care of the child was shared by the parents on a 50/50 basis as was decided by the original decision maker and the objections officer who disallowed Ms Rainforth's objection. The Tribunal considers that there is insufficient compelling evidence to overturn the objections officer's decision and the Tribunal therefore affirms the decision under review.

[1] Paragraph 50(1)(a) of the Assessment Act

[2] [2013] AATA 562; 137 ALD 426