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

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).
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.
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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 2009
Decision Date: 21 December 2016

CaseChat Overview and Summary

This matter concerned a review of a child support assessment, brought before Deputy J Walsh P. The dispute centred on the percentage of care each parent had for their two children, specifically whether the father, Mr Cummins, retained a care percentage of 14% or more as at March 2016, which would entitle him to a reduction in his child support liability. The mother, Mrs Chadwick, contended that Mr Cummins' care had diminished to a level below this threshold.

The primary legal issue before the court was to determine the appropriate percentage of care for Mr Cummins in late March 2016, considering both the actual care provided up to the date of Mrs Chadwick's notification of a change in care and the likely pattern of care thereafter. This determination was to be made in accordance with sections 49 and 50 of the Child Support (Assessment) Act 1989, which govern the making of new care decisions based on past and anticipated care arrangements.

Deputy J Walsh P found that the original Tribunal decision was affected by jurisdictional error due to Mr Cummins not being notified of the hearing. Consequently, a new hearing was conducted. The court applied the principle that care percentage decisions are made based on actual care up to the point of notification of a change and the likely pattern of care following that notification. The court noted that Mr Cummins' intention to make up for missed care periods was relevant to the assessment of likely future care, but the critical question was whether his care percentage met the 14% threshold at the relevant time.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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. 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? 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. 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.