Eddison and Hewitt (Child support)

[2018] AATA 2283

Eddison and Hewitt (Child support) [2018] AATA 2283 (10 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC013702

APPLICANT:  Mr Eddison

OTHER PARTIES:  Child Support Registrar

Ms Hewitt

TRIBUNAL:Member K Timbs

DECISION DATE:  10 May 2018

DECISION:

The Tribunal sets aside the decision under review and substitutes the decision that the care percentages for both children from 20 October 2017 are 33% for Mr Eddison and 67% for Ms Hewitt.

CATCHWORDS
Child Support – Percentage of care – Determination of the likely pattern of care – Pattern of care changed – 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. Mr Eddison and Ms Hewitt are the parents of [Child 1] and [Child 2]. At relevant times, the Department of Human Services made child support assessments for them on behalf of the Child Support Registrar. Mr Eddison is the parent liable to pay child support.

2. From July 2012, the Department used care percentages in the assessment of 0% for Mr Eddison and 100% for Ms Hewitt for both children. On 18 November 2017, the Department changed the care percentages in the assessment to 40% for Mr Eddison and 60% for Ms Hewitt.

3. On 23 November 2017, Ms Hewitt objected to that decision. On 8 March 2018, an Objections Officer of the Department allowed the objection and decided the care percentages would be 31% for Mr Eddison and 69% for Ms Hewitt.

4. On 16 March 2016, Mr Eddison applied for review of that decision. The Tribunal heard the application for review on 10 May 2018.

ISSUES

1. The Registrar makes child support assessments using a formula in the Child Support (Assessment) Act 1989. The elements of the formula include care percentages for each parent for each child.

2. The Registrar determines care percentages that correspond to the actual care a parent has, or is likely to have, during a care period (section 50). The care percentage must be 0% if a parent has, or is likely to have, no pattern of care for a child (section 49).

3. The Registrar revokes care percentages in the circumstances set out in sections 54F and 54G (discussed below). New care percentages will then apply from the day after the revocation day.

CONSIDERATION

1. The Tribunal considered documents relevant to the review provided by the Department and Mr Eddison. Mr Eddison and Ms Hewitt gave evidence at hearing.

Revocation of care percentages

1. Section 54G applies if a parent was to have at least 14% care of a child (at least regular care) and ceases to do so. The parties do not assert that is the case and section 54G therefore does not apply.

2. Section 54F applies in this case if:

   ·the existing care percentages no longer correspond to the actual care of the children, and

   ·the cost percentages in the assessment would change if the Registrar made new care percentages that correspond to the actual care of the children.

3. According to the table in section 55C, the cost percentages in this case would change if Mr Eddison had a care percentage that corresponded with at least regular care of the children. Both parties agree that was the case on 20 October 2017 when Mr Eddison contacted the Department and advised that he had more than 0% care of the children. In that case, section 54F applies and the existing care percentages must be revoked.

4. Both parties agree that was the case for some time before Mr Eddison notified of a change in care on 20 October 2017. He did not notify of a change in care within 28 days. In that case, the revocation day is 19 October 2017, the day before the notification day.

New care percentages

1. The Tribunal must therefore determine new care percentages under section 50 that correspond to the actual care each party had, or was likely to have, in an appropriate care period. They will apply from 20 October 2017.

2. On that day, the Department recorded that Mr Eddison advised he had care of the children every Friday and Saturday night and half the school holidays and that he calculated that to be approximately 40% of the nights in any relevant 12-month care period. On 18 November 2017, the Department made a note that said only that Ms Hewitt “accepted care…as 60% to herself and 40% to [Mr Eddison]”. The Department then determined the new care percentages in accordance with Mr Eddison’s estimate of care of 40%. It did not calculate them in accordance with his advice about the pattern of care of two nights per week and half the school holidays. That pattern provides for him to have overnight care during a 12-month care period of 122 days ((40 weeks in school term x 2 days) + (7 days x 6 weeks in school holidays)). That corresponds with a care percentage of 33%.

3. Mr Eddison repeated his advice about the pattern of weekend and holiday care in a statement provided to the Objections Officer. He also provided a care calendar showing mainly weekend care for two nights per week from mid-July to the end of October 2017. It did not show a pattern of care for the September/October 2017 school holidays.

4. Mr Eddison also gave the Objections Officer a statement made on 30 November 2017 from [Ms A]. She described herself as a “regular visitor” to Mr Eddison’s home and her statement is consistent with Mr Eddison’s advice to the Department about the pattern of care. She advised he cared for the children at that time every Friday and Saturday night and on the “occasional visit from them during the week when his ex-wife is busy”.

5. Mr Eddison also gave the Objections Officer a statement from his brother, [Mr B], who said he had been staying at Mr Eddison’s home from 18 November 2017. The Tribunal notes that his short stay means he did not have first-hand knowledge of the pattern of care over time. However, it notes the statement is consistent with all other evidence provided by Mr Eddison to the Department and the Objections Officer about the regular weekend contact. However, [Mr B] claimed Mr Eddison had almost daily after school contact with the children and that is inconsistent with [Ms A’s] statement.

6. [Mr B] did not suggest the children stayed overnight during the week in term time. The Objections Officer recorded that Mr Eddison said that he “sees the children everyday (sic) but they only sleep over on the weekend.”

7. The Objections Officer made the following record of the statement made by Ms Hewitt.

   Ms Hewitt stated that when we contacted her about the change on 18 November 2017 she only said that they were intending to implement a change and that it had not yet occurred. Ms Hewitt stated at no stage did we ask her about a date of event for May 2017. Ms Hewitt stated that she had been through mediation with Mr Eddison and they reached agreement on a parenting plan. Ms Hewitt stated that the parenting plan provided for Mr Eddison to have care of the children every Friday and Saturday night plus half of the school holidays. Ms Hewitt stated that this would not equate to 40% care for Mr Eddison either. Ms Hewitt stated that the care arrangements as per the plan were meant to commence on 17 November 2017 however Mr Eddison did not have care of the children and therefore the arrangements have not commenced and there has been no change.

8. At hearing, both parties gave evidence that was inconsistent with the information provided to the Objections Officer.

9. Ms Hewitt told the Tribunal that Mr Eddison’s evidence of weekend and holiday care from mid-2017 to the Objections Officer was correct. She said they often went to Mr Eddison’s home after school after dinner but they did not sleep over. She did not explain the inconsistency in her evidence outlined above and the Tribunal finds it affects her credibility.

10. Mr Eddison told the Tribunal he had significantly more care than he told the Objections Officer and he provided a new care calendar that was inconsistent with the earlier care calendar. He said he prepared it after consulting [Child 1’s] diary. He said he gave incorrect information to the Department and later to the Objections Officer because the Department told him the pattern of care he described was consistent with a 40% care percentage. The Tribunal suggested that did not explain why he did not provide correct information to the Tribunal and he said he had that pattern of care and many extra nights care when they were ill, when Ms Hewitt was busy and when her car needed fixing. The Tribunal asked again why he did not tell the Department about that additional care. He did not answer the question directly but said the new care calendar was the truth and that the Department told him the care in the incorrect calendar was sufficient to give him a care percentage of 40%.

11. The Tribunal finds Mr Eddison has not explained the inconsistencies in the evidence provided to the Tribunal and to the Department. Rather, his evidence suggests he provided incorrect information to the Department and Objections Officer because he thought that would result in a particular outcome. That affects his general credibility and means the Tribunal cannot rely on the new information he has provided to it.

12. Mr Eddison provided evidence to the Tribunal that he cared for the children while Ms Hewitt went overseas in February 2017, which is not relevant to the pattern of care in October 2017. He also provided copies of text messages between Ms Hewitt and him and the children about the children coming to and from his home. Many relate to disputes between him and Ms Hewitt and are not relevant to the determination of a pattern of care. Others are undated and the few that have dates are consistent with the evidence of weekend care he provided to the Department and the Objections Officer. None of these additional documents supports his case.

13. The Tribunal does not accept the oral evidence provided to it of either party. Rather, it relies on the statements that Mr Eddison made to the Department and to the Objections Officer about his pattern of care over the weekends and school holidays. They were consistent with statements provided by [Ms A’s] and his brother. They were also consistent with Ms Hewitt’s evidence at hearing. The Tribunal infers that Mr Eddison incorrectly calculated his corresponding pattern of care to be 40% when he spoke to the Department and to the Objections Officer. Given the very brief record of contact by the original decision and Ms Hewitt, it infers she relied on calculations made by either the decision-maker or Mr Eddison when she agreed to the proposition that they had care corresponding to care percentages of 40% and 60%. The Tribunal is satisfied the information referred to above that she provided to the Objections Officer was not true.

14. On that basis, the Tribunal finds that Mr Eddison had an actual pattern of caring for the children that corresponded with care percentages of 33% during any relevant care period. It therefore sets aside the decision under review and determines that from 20 October 2017 the care percentages for both children are 33% for Mr Eddison and 67% for Ms Hewitt.

DECISION

The Tribunal sets aside the decision under review and substitutes the decision that the care percentages for both children from 20 October 2017 are 33% for Mr Eddison and 67% for Ms Hewitt.