Beckner and Hudson (Child support)

[2020] AATA 1395

Beckner and Hudson (Child support) [2020] AATA 1395 (26 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017903

APPLICANT:  Ms Beckner

OTHER PARTIES:  Child Support Registrar

Mr Hudson

TRIBUNAL:Member J D'Arcy

DECISION DATE:  26 February 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – minor variations but no change to overall pattern – existing percentage of care determinations not to be revoked – decision under review 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.

REASONS FOR DECISION

BACKGROUND

1. This review concerns the care percentages used in a child support assessment made by the Department of Human Services – Child Support (Child Support) for [Child 1] and [Child 2], the sons of Ms Beckner and Mr Hudson.

2. The child support assessment commenced on 21 January 2019 with Child Support recording Ms Beckner as having 86% of care of the children and Mr Hudson as having 14% of care.

3. On 19 July 2019 Ms Beckner advised of the change in care from 16 June 2019 stating that she had 100% of care of the children and Mr Hudson had 0% of care because he had not had any care since 16 June 2019.

4. On 3 August 2019 Child Support made a decision to change the percentage of care to 100% to Ms Beckner and 0% to Mr Hudson from 28 June 2019.

5. Mr Hudson objected to the decision on the basis that Ms Beckner had withheld care on 28 and 29 June, 12 and 13 July and he had missed one night on 26 July 2019 due to his grandfather’s death.

6. On 21 November 2019 an objections officer allowed Mr Hudson’s objection.

7. On 25 November 2019 Ms Beckner applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal).

8. Child Support provided Ms Beckner and Mr Hudson and the tribunal with the subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (118 pages).

9. The hearing took place with Ms Beckner and Mr Hudson by telephone on 26 February 2020. Ms [A] also attended the hearing with Ms Beckner.

ISSUES

1. The issues which arise in this case are:

   ·      whether there should be a change to the care percentages used in a child support assessment for the period; and, if so,

   ·      what care percentages should be used? and

   ·      what is the date of the change to the care percentages?

CONSIDERATION

Has there been a change to the care pattern for [Child 1] and [Child 2]?

1. Ms Beckner and Mr Hudson agreed that there was no formal or written arrangement in place about care of their sons in 2019. Their informal agreement was for Mr Hudson to have [Child 1] and [Child 2] in his care fortnightly on Friday and Saturday nights.

2. In February 2020 an interim court agreement was reached under which Mr Hudson has care of the children every second weekend and one week in each school holidays.

3. Ms Beckner contended that their 2019 arrangement broke down in June 2019 and that Mr Hudson did not have the children in his care on 28 and 29 June, 12 and 13 July and 26 July. However she had recorded  his care of the children on following nights:

   July   27

   August                10, 24, 25

   September         21, 22

   October              19

   November          2, 16

   December          14, 23, 24, 27, 28

   January              10, 11, 20, 21, 22, 23, 24

   February            7, 8, 21, 22

4. Ms Beckner explained that Mr Hudson did not have care of the children on 28 and 29 June and 12 and 13 July because he would not provide her with the address of the house in which the children were staying with their father on those two weekends. Further Friday nights were missed because Mr Hudson would not agree to transport the children to their sporting events on the Saturdays when he had his sons in his care.

5. Mr Hudson agreed with the evidence given by Ms Beckner about the nights he cared for the children between August 2019 and February 2020 but stated that she had withheld the children from him on 28 and 29 June and 12 and 13 July because he would not provide his address. Ms Beckner had refused to allow him to care for his sons on his allocated Fridays in September, October and November because he would not sign an agreement that he would take them to sporting events.

Should the existing care determinations be revoked?

1. The law 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.

2. Child Support makes determinations of each parent’s percentage of care under sections 49 to 54L of the Assessment Act. These provisions require Child Support to determine each parent’s percentage of care when it first makes a child support assessment and when it revokes a determination because of the changes in the pattern of care for a child.

3. Section 49 applies 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”.

4. Section 50 applies 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”.

5. A care period is defined in the Assessment Act and is the period that the Registrar considers to be appropriate having regard to all of the circumstances of the case.

6. The appropriate care period in Ms Beckner and Mr Hudson’s case is the period commencing on 21 January 2019 when the child support assessment commenced and concluding on 20 January 2020.

7. The issues for the tribunal to consider are whether there was a pattern of care over Ms Beckner’s care period and whether due to the change in the pattern of care Ms Beckner had 100% care of the children. In doing so the tribunal considered the actual care up to the time of the original determination by the Registrar and evidence of what care Mr Hudson had, or was likely to have at the point in time of making of the original determination. Evidence of care that Mr Hudson has had since the original determination is also relevant to prove or disprove the likelihood or otherwise of a pattern of care at the date of the Registrar’s determination.

8. There was no evidence that Mr Hudson did not have fortnightly care from January to May 2019 and so the dates of care in that period are as follows:

   January              25, 26

   February            8, 9, 22, 23

   March                 8, 9, 22, 23

   April                    5, 6, 19, 20

   May  3, 4, 17, 18, 31

   June                   1, 14, 15

9. Mr Hudson had 22 days of care until Ms Beckner reported a change in care arrangements.

10. Ms Beckner then withheld care on 28 and 29 June, 12 and 13 July, 9 August, 6 September, 1 and 18 October and 1 and 15 November – a total of at least 10 nights.

11. From July to 19 January 2020 Mr Hudson had 16 nights of care. His total nights of care in the care period were around 48 nights. The exact number cannot be specified because there was scant evidence about the nights of care in October and November 2019.

12. This calculation clearly indicates that Ms Beckner did not have 100% of care when she reported the change in care from 16 June 2019. Mr Hudson was available to care for his children on 28 and 29 June, 12 and 13 July and on the Friday nights of his care weekends but Ms Beckner decided to withhold care.

13. Given that the parties did not provide dates of care for each weekend in the care period, it is likely that Mr Hudson may have missed some care nights due to work or other commitments such as the death of his grandfather. Although the tribunal’s calculations fall short of the 52 nights to establish a care percentage of 14%, the tribunal was not satisfied that overall there was any change to the pattern of care – a finding which is supported by the most recent interim court agreement about the care of [Child 1] and [Child 2].

14. In these circumstances the tribunal decided that the existing care determination should not be revoked.

DECISION

The decision under review is affirmed.