REASONS FOR DECISION

Senior Member Bernard J McCabe

9 February 2012

This case arose out of a dispute in relation to child support payments. I have assigned fictitious names to the parties and their children in order to protect the children’s interests. The father shall be known as Mr Fraser, and the mother shall be known for the purpose of these proceedings as Ms Wilson.

Mr Fraser and Ms Wilson are the separated parents of Eileen, Henry and Irene. On 8 October 2010, a delegate of the Child Support Registrar decided Mr Fraser had 28% care of Henry and Irene and 12% care of Eileen from 9 April 2010 to 8 April 2011. On 11 May 2011 the Social Security Appeals Tribunal (the SSAT) set aside this decision and decided in substitution that Mr Fraser had 9% care of Henry, 13% care of Irene and 12% care of Eileen, while Ms Wilson had 91% care of Henry, 87% care of Irene and 88% care of Eileen during the period. All children were under the age of 18 at the time under review although the percentage of care for Eileen is no longer in contention.

Mr Fraser has asked this Tribunal to reconsider the decision of the SSAT. I must therefore decide the percentage of care he and Ms Wilson had of Henry and Irene for the period 9 April 2010 to 8 April 2011.

Background

Mr Fraser explained the level of child support payments was originally determined with reference to an oral agreement between Mr Fraser and Ms Wilson. Under the terms of that agreement, Mr Fraser had the care of the three children for 28% of the time and Ms Wilson for the remaining 72%. I note Ms Wilson said at the hearing that there was never an agreement as such: she said Mr Fraser told her he expected to have the children on Sundays and Wednesdays. She said she acquiesced without formally agreeing because she accepted the children should spend time with their father. In the circumstances, notwithstanding that she did not formally agree, I accept the registrar was right to proceed on the basis that there was an agreement as to how care was to be managed.

Notwithstanding that informal agreement, Ms Wilson said it became clear the children were not spending the “agreed” amount of time with their father. On 9 April 2010, Ms Wilson applied to the respondent to recognise a change in the care arrangements that would impact on the amount of child support Mr Fraser paid. Mr Fraser opposed her application.

On 30 April 2010, the registrar refused Ms Wilson’s application on the basis there was no evidence to substantiate that a change in care had occurred.

On 3 June 2010, Ms Wilson lodged an objection and on 8 October 2010, the objection officer allowed the objection in part. The officer was not satisfied there was below regular care of Irene and Henry. On 11 February, Ms Wilson applied to the SSAT for review.

On 11 May 2011, the SSAT set aside the decision and substituted a decision that Mr Fraser had 9% care of Henry, 13% care of Irene and 12% care of Eileen during the period. Mr Fraser has now appealed to this Tribunal.

Law

The relevant legislation is found in the Child Support (Assessment) Act 1989 (“the Act”) as it existed at 30 June 2010.

Percentage of care is calculated according to the likely number of nights a person expects to care for a child in a twelve month period: s 48. Where there is a written or oral agreement between the parents, the percentage of care is generally determined according to that agreement: s 49.

The registrar may determine the percentage of care for a period when a parent claims to have at least regular care of the child within the meaning of the Act but the actual level of care has fallen below regular care: s 53. Regular care is defined at s 5(2) of the Act. That section says a person has regular care when the person has at least 14% but less than 35% of care during the period. In the words of the statute, the registrar can make a determination under s 53 if:

(a)a parent (the first parent) was to have at least regular care of the child during the relevant care period under an oral agreement, parenting plan or court order; and

(b)the first parent has no care, or has a pattern of care that is less than regular care, of the child despite the other parent or a nonparent carer making the child available to the first parent; and

(c)the other parent or a nonparent carer of the child applies for the determination.

Percentage of care

The Tribunal needs to decide each parent’s percentage of care for Henry and Irene. That depends on how many days and nights they spent in their father’s care. Henry and Irene did not always stay with their father at the same times. Irene, the youngest of the children, stayed with her father more regularly.

I have already noted Mr Fraser claims he and Ms Wilson made an oral agreement that he would have care of the children on Sundays and Wednesdays. Ms Wilson disputes that she agreed to that arrangement, although she acknowledged she was prepared to go along with her husband’s wishes to some extent. But whether or not there was a formal agreement or simply an understanding, it is apparent from the actual pattern of care that the children did not regularly visit their father on Wednesdays in particular.

The parties agreed Mr Fraser cared for Henry for at least 34 nights during the period. The parties also agreed Mr Fraser had care of Irene for at least 47 nights in the period. But there are a number of other dates that are in contention between them. Should any of these additional dates be attributed to Mr Fraser? That is a question of fact, and it turns on the evidence provided by the parties. Some of the evidence was included in statements and oral evidence from Mr Fraser and Ms Wilson. (Mr Fraser’s new partner also gave evidence but it was not ultimately of any assistance.) Some of the evidence was included in diaries and other documents purporting to offer contemporaneous records of what occurred.

Ms Wilson provided the Tribunal with her 2010 and 2011 diaries (exhibit 6). Her diaries were very detailed, containing entries concerning many aspects of the daily life of Ms Wilson and the children, including notations of the nights the children spent with Mr Fraser.

Mr Fraser also provided some documentation recording time spent with the children. He provided his 2011 diary (exhibit 5) which appeared to be principally used for recording his time with the children. It contained notations of the nights he spent with the children and detailed notes of conversations he had with the children and circumstances surrounding the nights in contention. Mr Fraser also provided a spreadsheet (annexure to exhibit 3) setting out when he cared for the children. It includes annotations addressing some of the nights in contention. Mr Fraser admitted during the course of his evidence that the annotations may have been added after the event. He also conceded some of the annotations were inaccurate. It seems some of Mr Fraser’s records are reconstructions; it is not clear how many of the documents were in fact compiled after the event. I also note the spreadsheet did not cover all of the relevant period: it commenced from 30 June 2010.

Mr Fraser did not provide the diary or spreadsheet to the SSAT despite claiming it was in existence at the time of the SSAT hearing. That is troubling given it is apparent the documents are at least partial reconstructions. That leaves open the possibility the documents might have been reconstructed or amended recently. Mr Fraser denies that this is so. He said he did not provide the spreadsheet to the SSAT because he was not asked to do so.

Ms Wilson’s record keeping appears to be meticulous. The diaries include a number of entries relating to other events in her life that strongly suggest she is a faithful diarist who carefully records events in her daily life, including what happens with her children. Given the inaccuracies in some of Mr Fraser’s records and the fact that Ms Wilson’s diaries appear to offer a contemporaneous record, the Tribunal prefers Ms Wilson’s record-keeping over Mr Fraser’s where there is inconsistency on whether the children stayed with the applicant.

There were a number of dates in contention where Mr Fraser and Ms Wilson’s record-keeping differ. For example, Mr Fraser claims he cared for Irene and Henry on 3 August 2010. I note the SSAT resolved the dispute over that date in Mr Fraser’s favour. There is nothing in Ms Wilson’s diary on that date that calls the SSAT’s finding into question, and I do not understand that Ms Wilson disputes that outcome. That is to her credit. But there were also at least two unspecified days in April that Mr Fraser says should be attributed to him. Mr Fraser has not provided any evidence in relation to those dates beyond an assertion. Ms Wilson has no diary entries indicating the children were in the care of Mr Fraser on any of the dates under review in April. Given she is a meticulous record-keeper, I would have expected her to note the absence of the children. I prefer Ms Wilson’s evidence in relation to these and other dates.

There was also a dispute about how I should account for the Sundays and Wednesdays where the children were not physically residing with Ms Wilson, but were not otherwise with Mr Fraser. Mr Fraser says those days should stand to his credit – or should not stand to the credit of Ms Wilson, at any rate.

Some examples would assist. In late-June to early-July 2010, Ms Wilson travelled overseas without Henry and Irene. Ms Wilson arranged for the children to stay with their maternal grandparents on the nights of 30 June, 1 July and 2 July. The children stayed with Mr Fraser on the nights of 3-7 July (although I note Mr Fraser’s records state that the children were not with him on those nights). On 8, 9 and 10 July, Henry went camping with a friend’s family. Irene stayed over at a friend’s house on 8 July and then returned to Mr Fraser on 9 July for the night. Mr Fraser says he did not agree to the arrangements for the children to stay with their grandparents, Henry to go camping or Irene to stay with her friend. He claims that Ms Wilson should not be seen as having cared for the children on these nights and care should be allocated in his favour because the children were not made available for him by virtue of Ms Wilson making other arrangements.

Mr Fraser is wrong. The fact the children were not physically in Ms Wilson’s custody on a particular date does not mean they were not in her care for the purposes of this exercise. The CSR’s policy, Child Support Agency: The Guide (“the Guide”), states at chapter 2.2.1:

Consideration is given to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is [sic] who is meeting the child’s costs, rather than just the accommodation arrangements themselves.

The Court in Polec and Stalker & Anor [2011] FMCAfam 959 at [56] provided a number of considerations when determining the extent to which a person has care of a child:

To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?

To what extent does the person make arrangements for others to meet the needs of the child?

To what extent does the person pay for the costs of meeting the needs of the child?

To what extent does the person otherwise provide financial support for the child?

To what extent does the child provide for his or her own needs or have those needs met from another source?

To what extent is the child financially independent or financially supported from another source?

The CSA policy and the courts appear to suggest a more nuanced inquiry is required when determining who is responsible for the children at a given time. That seems sensible. One must make a common sense inquiry as to the actual arrangements with respect to the children. In this case, the fact there was some sort of agreement or understanding – albeit one that was not closely observed – that the children would be with Mr Fraser on Sundays and perhaps Wednesdays is one factor to be considered in that inquiry. As it happens, there was only one Sunday that fell while Ms Wilson was overseas: 4 July 2010. The children stayed with the applicant on that evening, which is unremarkable.

But it is also appropriate to look to what arrangements were made for this period, and who made them – before looking at whether those arrangements were carried into effect as anticipated. As the primary caregiver of the children, it would be expected that Ms Wilson would make arrangements for the welfare of her children while she is absent overseas for the days on which she would normally care for the children. That is what occurred. I do not think she could be said to be deprived of responsibility for the children during that period in those circumstances except where Mr Fraser took a direct role. He gets credit for the days where he did take care of the children (even though he did not claim those days) but he had no role in relation to the other days. Those other days are properly attributed to Ms Wilson.

There are also a number of dates where Mr Fraser says Ms Wilson did not make the children available for him, or where she encouraged the children to return home to her before the time allotted to Mr Fraser elapsed.

Chapter 2.2.7 of the Guide provides factors for determining whether a parent is making the child available. They are:

Is the parent, with the greater amount of care, genuinely attempting to facilitate and encourage the care?

Is the parent with the lower amount of care, genuinely seeking this care and making appropriate steps to facilitate the care?

If both parties are genuinely attempting to facilitate the planned care is the child refusing to have the planned care?

There is no evidence that factor 2 is in contention. It is accepted Mr Fraser was genuinely taking appropriate steps to seek care. Mr Fraser claims that on a number of nights, Ms Wilson did not make the children available to him. Mr Fraser also gave evidence that he believed Ms Wilson manipulated the children and placed emotional pressure on them to not see their father (see exhibit 5).

I am not persuaded Ms Wilson failed to make the children available to Mr Fraser on any occasion in the period under review. Ms Wilson explained that she did not wish to have a great deal to do with her ex-husband. She allowed the children to negotiate their own arrangements with their father. She said they were of an age where they were able to manage their own relationship with him, and she supported whatever they chose to do. She also explained that the children had busy school and social lives, and they occasionally chose to spend time with friends rather than with their father.

There were a number of dates where this was an issue. On the nights of 17 October, 30 November and 13 February, Henry arranged to stay at a friend’s house. Mr Fraser said this was done without his consent. The October and February dates were Sundays and the November date was a Tuesday. Irene and Eileen stayed with their father on 30 November. Ms Wilson said that this was an impromptu arrangement. This explanation sounds reasonable, especially considering it was not a Sunday, and it is entirely plausible that Henry may have already made prior arrangements.

There was also evidence about what happened on Christmas Day. Ms Wilson’s side of the family had held a celebration earlier in the week so the children could spend Christmas Day with their father. The children did not stay the night. They texted their mother when they were ready to be collected and Ms Wilson collected them as they requested. Mr Fraser said in evidence that he understood Ms Wilson had texted the children to say she was ‘all alone’. He believed she was trying to manipulate the children so they did not spend the night with their father. He referred to another example on the night of 13 March when the children attended their father’s house for dinner. It was apparently intended the children would stay the night. But Mr Fraser said that did not occur because the children received messages and said: ‘Mum wants us home’. Mr Fraser was not pleased. The children had an argument with their father: apparently they all wanted to return to their mother’s home. The children texted Ms Wilson who collected the children despite the applicant’s protests. Mr Fraser said Ms Wilson frustrated his plans with the children, so she should not get credit for their care on those evenings.

Mr Fraser said Ms Wilson tried to place emotional pressure on the children to discourage them from seeing their father (see exhibit 5). While it is important that the Tribunal be alive to that possibility, I did not see any evidence of it. I did hear from Ms Wilson, who presented as an honest and essentially reasonable person. I am satisfied her evidence was truthful. She made concessions where appropriate. In the circumstances, I am not persuaded that she intentionally did anything to prevent Mr Fraser enjoying time with his children.

Ms Wilson said there were limits to what she could persuade the children to do when it came to convincing them to go to their father’s home. There was evidence to suggest that Henry and his father had a difficult relationship. Henry was 14 years old and turned 15 during the period under review. Henry represents his school in rugby and was described by his mother as a very tall boy for his age. When Ms Wilson was questioned about why she had collected her son when he insisted on returning from his father’s house or not insisted he go see his father on certain dates, she said, ‘I cannot even get him to clean his room. I can hardly force him to spend time with his father’.

Mr Fraser added Ms Wilson should not have acceded to the children’s wishes even if they had expressed a positive preference for staying at home or going to friends rather than spending time with their father. Mr Fraser made much of Ms Wilson’s supposed obligation to honour his expectation that the children would spend time with him.

The failure of the children to cooperate creates problems. When children are younger, their preferences are likely to count for less when it comes to their care. Counsel for the respondent told me the CSA tends to regard children who are 15 years of age or older as being more or less in charge of their own preferences, while younger children are usually expected to conform to their parents’ wishes. But there can be no fixed rules about this, as Deputy President Hack explained in Confidential and Social Security Appeals Tribunal [2010] AATA 1 at [19]:

As it seems to me the issue of whether a child has been made available is not one capable of determination by reference to any overarching principles. It will invariably be a question of fact to be determined by reference to the particular circumstances, but where, as is the case here, there has been no attempt by the applicant to “avail” herself of the care of the child it would seem difficult to see how it could be concluded that the child had not been made available. The applicant did not suggest that she had ever sought to avail herself of the opportunity of care for the child when the child was not made available. There were no circumstances where the applicant sought to contact the child that were refused or rebuffed by the third party. That conduct was that of the child, not of the third party.

Based on the evidence the Tribunal heard from Ms Wilson, I accept she was unable to require Henry to spend time with his father. The boy apparently had strong feelings on the subject. On the occasions where Irene also returned home with her siblings without staying the night with the applicant, I accept she would only have been following her older brother and sister’s actions. In cases where an argument with the children had ensued, it would be unreasonable to expect one child to stay when the others who were involved in the argument were leaving.

The same principle would apply to Henry making arrangements to stay with his friends on nights that Mr Fraser expected him to stay with him. It seems likely that his younger sister also followed her brother’s example in making her own social arrangements that might have conflicted with her father’s expectations, albeit to a more limited extent than her brother. It was not Ms Wilson that obstructed access to the child but Henry (and, to a lesser extent, Irene) refusing to change their plans.

Conclusion

The SSAT’s analysis of the pattern of care was essentially correct. I am satisfied Mr Fraser had the care of Henry for 34 nights (which translates to 9%) during the period under review and Irene for 49 nights (which translates to 13%). Ms Wilson had care of the children for the balance of the period. The decision under review should therefore be affirmed.

I certify that the preceding 38 (thirty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.