Gilligan and Hallam (Child support)

[2022] AATA 3075

Gilligan and Hallam (Child support) [2022] AATA 3075 (29 July 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC023835

APPLICANT:  Ms Gilligan

OTHER PARTIES:  Child Support Registrar

Mr Hallam

TRIBUNAL:Member M Sutherland

DECISION DATE:  29 July 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 is about a change to the percentage of care determinations for Ms Gilligan and Mr Hallam for their daughter, [the child], born 26 July 2006.

2. Prior to the decision under review there has been a registered child support assessment in place since 2 July 2021 which reflected Ms Gilligan having 86 percent care and Mr Hallam as having 14 percent care. Mr Hallam was the parent liable to pay child support under the child support assessment. There was no court order or written agreement in place regarding the care of [the child], Ms Gilligan and Mr Hallam had worked things out themselves.

3. On 6 December 2021 Ms Gilligan notified the Child Support Agency (the agency) of a change to the care arrangements stating that she provided 100 percent care and Mr Hallam 0 percent care of [the child] from 23 October 2021.

4. On 1 February 2022 the agency made the decision to reflect that Ms Gilligan still provided 86 percent care and Mr Hallam provided 14 percent care from 23 October 2021.

5. On 1 February 2022 Ms Gilligan objected to this decision maintaining that Mr Hallam has not had regular fortnightly care of [the child] from 23 October 2021. On 13 April 2022 the agency disallowed the objection (the objection decision).

6. On 9 May 2022 Ms Gilligan applied to the Tribunal for a review of the objection decision. The Tribunal conducted a hearing into the application. Ms Gilligan and Mr Hallam gave evidence on affirmation by conference telephone. The agency provided the Tribunal and the parties with papers relevant to the matter.

7. In making its decision the Tribunal has considered the evidence, the hearing papers and applied the law.

THE LAW

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period, see section 50 of the Act. In other words, the agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.

4. The agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

THE ISSUES

1. The issues which arise in this case are:

   ·      whether there has there been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made, and if so,

   ·      from what date should the new percentage of care determinations take effect?

CONSIDERATION

The evidence of the parties

1. Ms Gilligan said she has supplied multiple statements from people who live in her household and who regularly visit and have witnessed her care arrangements for [the child]. She has provided a care diary, see page 100 of the hearing papers, which was seemingly not considered when the objection decision was made. The statutory declaration submitted as evidence of the care Mr Hallam provided to [the child] was from his girlfriend who lives up the coast and has no idea of what was happening with the care of [the child]. She said that it was easy for anybody to commit care dates to paper. She accepts that Mr Hallam does see [the child] sometimes during the day and on some weekends however she very rarely stays with him overnight (only on special occasions) and there is no regular overnight care pattern for [the child]. [The child] has said that she does not want to spend time with her father, this is supported by the various statements she has provided. She says that she has photographs showing where [the child] has been at various times. [The child] is being seen by a psychologist to deal with her mental health. Mr Hallam has suggested that she has applied for 100 percent care for [the child] as he has 100 percent care for their other child [Child 2]. This is not the case she raised the care change to get the care into line with what was occurring.

2. In support of her position Ms Gilligan has provided third party statements from [Persons A-F].

3. Mr Hallam said that Ms Gilligan regularly raises the care matter for [the child] as he has 100 percent care of their other child, [Child 2], and she does not want to pay him child support for [Child 2]. He has had the care for [the child] every second weekend. His partner [Ms F] can confirm this pattern of care from January 2020 to December 2021 and also care on special occasions. Although they live separately he sees [Ms F] regularly and she is aware of what care he provides to [the child]. He said he could also provide photographic evidence of the times he has spent with [the child].

4. In support of his position Mr Hallam provided a statutory declaration from his partner [Ms F] dated 14 January 2022. A statutory declaration dated 26 July 2022 by [Ms F] received after the hearing does not provide any additional information to take the matter further.

5. When considering what weight is to be given to third party statements the relationship of the parties to the writers must be considered, they may not be impartial. In order for significant weight to be given to a third party statement, the statement should be provided by an independent and impartial source. The Tribunal pointed out to Ms Gilligan that as [the child] had had extensive counselling it would have been of help to the Tribunal if a report had been received from the person providing the counselling who is independent. In reaching this decision the Tribunal has attributed limited weight to the third party statements of Ms Gilligan’s family members and of Mr Hallam’s partner given that they may not be completely impartial.

6. As regards the care calendar which Ms Gilligan has provided, it commences on 26 August 2021 and shows that [the child] went to her father on 29 August and 26 September and 6 and 20 November for the day and stayed overnight on 11 and 25 September and 18 December 2021. The Tribunal finds that the diary entries provided by Ms Gilligan are not comprehensive and are at odds with the information provided in the statutory declaration of [Ms F] for the period ending December 2021 which shows regular care, see page 50 of the hearing papers. Mr Hallam’s evidence and the dates that [Ms F] says [the child] spent with Mr Hallam seem to show that [the child] spent every alternate weekend with Mr Hallam almost without fail. The Tribunal finds that care Mr Hallam provided for [the child] would be somewhere between that stated by Ms Gilligan and that stated by Mr Hallam.

7. A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is not satisfied, based on the evidence provided which is contradictory, that a new pattern of care for [the child] was established from 23 October 2021. The existing percentages of care for [the child] are to remain at 86 percent to Ms Gilligan and 14 percent to Mr Hallam. The objection decision is affirmed.

DECISION

The decision is affirmed.