Hackett and Baxter (Child support)

[2019] AATA 1689

Hackett and Baxter (Child support) [2019] AATA 1689 (24 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015302

Ms Hackett

OTHER PARTIES:  Child Support Registrar

Mr Baxter

TRIBUNAL:Member F Hewson

DECISION DATE:  24 May 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – occasional departures from the pattern of the care – existing percentage of care determinations revoked and new determinations made – 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. Ms Hackett and Mr Baxter are the parents of a child, aged [age], in respect of whom there is a child support assessment.  This review is about the percentages of care for the child used in the child support assessment.

2. The Department of Human Services – Child Support (the Department) recorded that from 28 June 2016 Ms Hackett had a percentage of care of the child of 100% and Mr Baxter had a percentage of care of 0% (the existing care).

3. Following notification by Mr Baxter on 25 May 2018 of a change in the care, the Department made a decision on 17 August 2018 to make new percentage of care determinations on the basis that Ms Hackett had a percentage of care of the child of 86% and Mr Baxter had a percentage of care of 14% from 4 May 2018.

4. On 21 August 2018, Ms Hackett lodged an objection to the care decision and on 24 October 2018 an objections officer decided to disallow the objection.

5. On 25 October 2018, Ms Hackett lodged an application for review by this tribunal. The application was heard on 12 March 2019. Ms Hackett spoke to the tribunal by conference telephone. Mr Baxter also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Ms Hackett and Mr Baxter at the hearing, the tribunal had regard to the documents provided by the Department, a copy of which was sent to the parties, and by Ms Hackett after the hearing.

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. A parent or non-parent carer’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

2. The issues for the tribunal to determine in this case are:

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

   ·     What percentages of care should be used? And

   ·     What is the date of effect of the change?

CONSIDERATION

1. In this case, the existing care determinations, from 28 June 2016, reflected that Ms Hackett had a percentage of care of the child of 100%. The issue before the tribunal is whether, in the particular circumstances of the case, the existing care determinations should be revoked and new care new determinations made to reflect a change in care, in accordance with Mr Baxter’s notification on 25 May 2018.

2. The documents provided by the Department include evidence provided by both parties, including text message exchanges in relation to pick-up arrangements for the child.

3. At the hearing Ms Hackett agreed that the care arrangements for the child changed in May 2018, due to changes in Mr Baxter’s work arrangements. She said the new care arrangement was a flexible fortnightly arrangement. She said the expectation was that Mr Baxter would have care every second weekend on Friday and Saturday night if nothing interfered with the arrangement. She said the care was never guaranteed and flexibility was important. She noted that on two occasions when she had asked Mr Baxter to have care on alternate dates, he told her he already had other plans. Ms Hackett said at the time he notified of the change of care he had already missed a night of care, and had subsequently missed further care events. She argued that Mr Baxter had not established a pattern of care of 14%. Ms Hackett also argued, at the hearing and in her written submissions, that the care arrangements were made fortnightly.

4. Mr Baxter said when he notified of a change in the care he expected to have care every second weekend, based on the discussions he had with Ms Hackett. He said his family make arrangements around when he will have care of the children. He did not dispute that he had missed some nights of care, following contact with Ms Hackett.

5. The provisions applying in relation to the revocation of a determination of a person’s percentage of care are in Subdivision C of Division 4 – Percentage of Care, of Part 5 of the Act. Section 54F is relevant in this case. It sets out when the Registrar must revoke the existing care determinations, including if the new care percentage determination would change the cost percentage and certain other conditions in subsection 54F(1) of the Act are met.  

6. In this case, the tribunal found that there were existing percentage of care determinations made under sections 49 and 50 in relation to the child, and that the Registrar was notified that the actual care of the child did not correspond with the percentage of care in the existing care determinations.

7. There is no dispute that the care of the child changed in May 2018, such that Mr Baxter’s care had increased. At issue is the extent of the change in the care.

8. In this case, Mr Baxter commenced having increased care of the child from 4 May 2018. In the period until the date of the original decision was made, on 17 August 2018, Mr Baxter missed three out of 18 care events (on 18 May 2018, 15 June 2018 and 27 July 2018), none of which were consecutive. The record of text message exchanges between Ms Hackett and Mr Baxter show that Mr Baxter contacted on 18 May 2018 and 15 June 2018 to advise that he could pick up the children (including the child of the assessment) at 7:00pm and 6:30pm respectively on Friday night or, if Ms Hackett preferred, on Saturday morning. On both occasions Ms Hackett preferred that Mr Baxter pick the children up the following day. The exchanges demonstrate that there was an expectation that Mr Baxter would have care of the child on the Friday and Saturday night. As with all care arrangements, occasional departures from the pattern of the care may occur. As reflected in the Department’s policy (at Chapter 2.2.2 of the Child Support Guide), which in the tribunal’s view is not inconsistent with the legislation, such departures do not necessarily change the underlying pattern of the care. Where three care events in a row or five care events out of eight are missed, however, this may indicate a change in the pattern of the care. Where care events equivalent to 20% or more are missed over a period of 12 months, that may also indicate the pattern of the care has changed. The tribunal was satisfied that the expectation of the parties in early May 2018 was that Mr Baxter would generally have care of the child every second Friday and Saturday nights. This is demonstrated in the text message exchanges between them. The tribunal concluded that the pattern of the care which had been established was for Mr Baxter to have care of the child for two nights a fortnight. Departures from that pattern have generally been agreed between Ms Hackett and Mr Baxter and, to the extent that is relevant to the decision under review, do not change the underlying pattern of the care.

9. The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for the child under section 54F of the Act, as the new percentage of care determinations would change the cost percentage and the other requirements of subsection 54F(1) are met. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect, in this case on 3 May 2018, being the end of the day before the day on which the previously established pattern of care ceased.

10. As the existing determinations have been revoked, new determinations of Ms Hackett’s and Mr Baxter’s percentage of care, under section 50 of the Act, must be made. To make new determinations, the actual care of the children that was likely to occur during the care period (in this case from 4 May 2018 to 3 May 2019) must be considered. As discussed above, the tribunal determined that Ms Hackett’s percentage of care of the child was likely to be 86% and Mr Baxter’s percentage of care was likely to be 14%. The date of effect of the tribunal’s decision is 4 May 2018.

DECISION

The decision under review is affirmed.