Chadwick and Cummins (Child Support)

[2016] AATA 2009

Chadwick and Cummins (Child Support) [2016] AATA 2009 (21 December 2016)

DIVISION:Social Services & Child Support Division

APPLICANT:  Mrs Chadwick

OTHER PARTIES:  Child Support Registrar

Mr Cummins

TRIBUNAL:Deputy President J Walsh

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 89% for Mrs Chadwick and 11% for Mr Cummins be recorded, from 30 March 2016.

CATCHWORDS

Child Support – Percentage of care – Determination of the care period – Actual care up to date of notification of change in care and likely pattern of care after – 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. Mrs Chadwick seeks review of an objection decision made by the Department of Human Services - Child Support (the Department) on 1 June 2016. This decision disallowed her   objection to a decision dated 11 April 2016 rejecting her application for a change to the care percentages for the parents’ twin [children] (both 17).

2. The Tribunal had previously conducted a hearing on 12 October 2016 in this matter. Unfortunately, Mr Cummins was not notified of the hearing. Indeed, he had incorrectly been informed there would be no hearing. In the circumstances, I considered the Tribunal’s decision made on 12 October 2016 to be affected by jurisdictional error, so that, in law, it should be regarded as “no decision at all”: see generally Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597.

3. Another hearing, involving both parents, was held on 21 December 2016. I heard affirmed evidence by phone from Mrs Chadwick and Mr Cummins and had before me a copy of documents provided by the parties. Mr Cummins did not have his documents with him, but was content for the matter to proceed in any event. At the conclusion of the hearing, I offered both parents further time to provide any additional written submission or other material they wished. Both declined this offer.

CONSIDERATION

1. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. 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 was likely to happen thereafter?

2. Prior to her notification of a change in care on 30 March 2016, the care percentages being assessed by the Department were 84% to Mrs Chadwick and 16% to Mr Cummins. At hearing, Mrs Chadwick’s case was that there had been a reduction in Mr Cummins’ care of the twins over time, so that 16% was no longer an appropriate assessment at the time she contacted the Department. Mr Cummins’ position was that he always intended to make up for any missed periods of care, so that he should be regarded as remaining entitled to the “discount” in his child support liability due to the level of his care.

3. The “discount” Mr Cummins refers to derives from the way the child support formula operates. As the liable parent, if his care percentage is assessed at 14% or more, his liability is reduced. So the critical question in this case is whether, as at late March 2016, Mr Cummins’ care percentage should be assessed as meeting this 14% threshold.

4. The parents agreed that, in the past, the general pattern of care was that Mr Cummins would have blocks of care during school holiday periods, including about three weeks over the Christmas holidays. It was on this basis that the Department had previously determined his care should be assessed at 60 nights per year (or 16%).

5. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care by reference to an appropriate care period. The Department generally considers a care period of 12 months to be appropriate, an approach I intend to adopt here. But which 12 months?

6. At hearing, both Mrs Chadwick and Mr Cummins focussed on the 2016 calendar year (understandably so, given the reasons of the Tribunal in its October 2016 decision). Both also tended to speak to what had actually happened in 2016, to date (again, quite understandable). However, given the scheme of the Act (existing care percentages generally apply until a change is notified and a new decision with mostly prospective effect is made), the real test is to consider the actual or likely pattern of care when Mrs Chadwick notified the Department in late March 2016. This involves an assessment of past care to notification in March and likely future care (the extent of past and future assessment depending on the care period identified as appropriate to use). It is not the Tribunal’s task here to assess care in retrospect, taking account of actual care to the date of hearing.

7. Initially, I considered a care period from September 2015 to August 2016. In this period, the parents agreed Mr Cummins had care of the twins for 11 nights in the September 2015 holidays and 13 nights over the 2015 Christmas holidays. In fact, Mr Cummins did not have the usual block of care in the April 2016 holiday period. Mrs Chadwick said she was not aware of this when she contacted the Department on 30 March 2016. However, Mr Cummins was aware at that point that he would not be able to have a block of care. His evidence was he spent several weekends in [State] in March/April 2016 and had the twins in his care for up to five nights over this period. Mrs Chadwick doubted this was so.

8. In any event, I propose to proceed on the basis Mr Cummins intended to have care of the twins for a number of nights during March/April, but not in a block. I allow five nights. I also accept he then intended to have a block of care in the July 2016 holidays, despite this not having occurred in recent years. He would ordinarily have care for 10 – 12 nights in this context. I allow 12 nights.

9. On this approach, in a care period September 2015 to August 2016, I would assess Mr Cummins’s actual or likely care at 11 + 13 + 5 + 12 = 41 nights. This is a care percentage of 11%.

10. I also considered a care period from January 2016 to December 2016. This involves a greater degree of prediction of likely future care (from April to December 2016). Another factor is, given the age of the twins, their wishes or preference might not always coincide with Mr Cummins’, a point he was prepared to concede. Ultimately, their wishes would likely prevail.   

11. It was agreed that Mr Cummins had seven nights of care in January 2016. I also allow five nights for March/April 2016. I would then allow 12 nights for both the July and September holiday periods. For December 2016, I would allow a maximum of 14 nights (since past experience is that Mr Cummins’ care over Christmas periods included time in the New Year).        

12. On this basis, for a care period of the 2016 calendar year, I calculate 7 + 5 + 12 + 12 + 14 = 50 nights. This is a care percentage of 13%.

13. It follows, whichever care period is used, Mr Cummins’ care falls below the 14% threshold.

14. On balance, I consider the September 2015 to August 2016 care period more appropriate, since it involves less prediction (and thus less scope for the variable of the twins’ wishes). It follows I would assess Mr Cummins’ care at 11% as at 30 March 2016.

15. Mrs Chadwick’s own case is that Mr Cummins’ reduced care was evident by January 2016, since she claimed he was supposed to have care for 21 nights over those Christmas holidays. On that basis, her notification of a care change was more than 28 days after the change in pattern.

16. In the circumstances, based on the findings made, it is appropriate to revoke the existing care percentages and apply new care percentages of 89% to Mrs Chadwick and 11% to Mr Cummins, from 30 March 2016.

17. I note Mr Cummins had suggested to the Department that some of the expenses he met for the twins (driving lessons, for example) should somehow be factored into the care assessment in his favour. I do not consider that to be appropriate. The general rule is to assess nights of care, an approach which should be applied here.

18. Should Mr Cummins consider his care percentage has increased more recently, he can notify the Department accordingly.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages of 89% for Mrs Chadwick and 11% for Mr Cummins be recorded, from 30 March 2016.