Hackney and Hackney (Child support)

[2018] AATA 3995

Hackney and Hackney (Child support) [2018] AATA 3995 (23 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014314

APPLICANT:  Mr Hackney

OTHER PARTIES:  Child Support Registrar

Ms Hackney

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 August 2018

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care on 2 November 2017. 

CATCHWORDS

Child support - Percentage of care - No change to the likely pattern of care - Refusal to revoke the existing percentages of care - 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 Hackney and Ms Hackney are the separated parents of [Child 1], who turned 18 on 1 July 2018, and [Child 2].  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. The child support case was registered in January 2016.

3. The Department of Human Services (Child Support) determined that the parents had 50/50 care of [Child 1] from 11 August 2017 (date of effect 24 September 2017). 

4. On 19 December 2017, Ms Hackney advised Child Support that she had 100% care of [Child 1] since 2 November 2017.  On that day, after discussing Ms Hackney’s application with Mr Hackney, a Child Support employee determined that [Child 1] was 100% in Ms Hackney’s care from 2 November 2017 with a date of effect being 19 December 2017 (decision under review).  

5. On 28 December 2017, Mr Hackney contacted Child Support to state that the parents still had 50/50 care of [Child 1].

6. On 7 February 2018, Mr Hackney lodged a formal objection to the care percentage decision and he also requested that special circumstances be considered when determining the date of effect of the objection decision.

7. On 16 May 2018, the objection was partly allowed.  The objections officer decided that Ms Hackney had 67% care of [Child 1], and Mr Hackney had 33% care from 2 November 2017.  The objections officer also decided that special circumstances existed that prevented Mr Hackney from lodging his objection within 28 days of the original decision and therefore the date of effect was from 19 December 2017.

8. On 13 June 2018, Mr Hackney applied to this tribunal for an independent review of the objections officer’s care percentage decision.

9. A hearing into the application for review was held by the tribunal on 23 August 2018 in Hobart.  Mr Hackney and Ms Hackney both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.    

10. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 167.  Mr Hackney and Ms Hackney also provided further written submissions (A1 to A6 and B1 to B3 respectively).  All documents were exchanged with the parties prior to the hearing.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula, which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. In determining whether there has been a change in care the primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

4. The issues to be considered by the tribunal are:

   ·       Should the existing determination of percentage of care be revoked? If so, from when should it be revoked?

   ·       Should a new determination of a percentage of care be made? If so, what is the percentage of care under the new determination? From when should it apply?

CONSIDERATION

1. Mr Hackney provided the following evidence to support his case:

   ·       He and Ms Hackney had agreed to care for their children on a 50/50 basis.

   ·       [Child 2] spends alternate weeks with each parent however it did not suit [Child 1] to move between parents so frequently.

   ·       [Child 1] therefore spends longer periods with each parent but has stated that he wants to be fair and will spend half of his time with each parent but in roughly eight-week blocks.

   ·       [Child 1] commenced seeing a psychiatrist during 2017 when he stopped attending school.  It was recommended that [Child 1] stay with one parent for a longer period of time for stability – for a whole school term.  [Child 1] decided to stay with his father.  When this occurred Mr Hackney contacted Child Support and a new care determination was made (86%/14%).

   ·       From 11 August 2017 [Child 1] recommenced staying with both parents.

   ·       [Child 1’s] time with each parent is ad hoc but he aims to be 50/50 with each.

   ·       On 7 February 2018 Mr Hackney stated he had [Child 1] in his care from 7 October 2017 to 2 November 2017, 26 December 2017 to 19 January 2018, and from 31 January 2018 for three or four weeks.

   ·       At hearing Mr Hackney said that since July 2017 to date, [Child 1] has spent just over half of his time with Mr Hackney.

2. Ms Hackney provided the following evidence to support her case:

   ·       She and Mr Hackney did agree to have 50/50 care of the children.

   ·       When they first separated [Child 1] tended to spend more time with Mr Hackney as he stayed in the family home.

   ·       She requested a change in care in December 2017 because at that stage [Child 1] had spent about six weeks with her and had indicated he would like to stay longer as Ms Hackney lives near the beach.  He ended up staying with her from 1 November 2017 to 1 January 2018.

   ·       [Child 1] has not said to Ms Hackney that he wanted the care to be equal; he stays where he chooses and keeps changing his mind.

   ·       On 13 March 2018 Ms Hackney stated that since 1 January 2018 [Child 1] stayed with her from 19 January 2018 to 21 January 2018, 25 January 2018 to 31 January 2018, 9 February 2018 to 10 February 2018 and then he returned on 12 March 2018.

   ·       At hearing Ms Hackney did not dispute Mr Hackney’s statement that since July 2017 [Child 1] has been in his care for just over 50% of the time.

   ·       Mr Hackney has told [Child 1] that if he doesn’t stay with Mr Hackney he will receive less child support from Ms Hackney.

3. The tribunal found that:

   ·       Both parents intend for [Child 1] to be in their care on a 50/50 basis.

   ·       This was the case initially and then [Child 1] spent a prolonged period with Mr Hackney in 2018 due to his mental health issues.

   ·       From August 2017 [Child 1] was to be in the parents’ care on a 50/50 basis again.

   ·       [Child 1] was 17 years old at the time and stayed with whichever parent he wanted.

   ·       [Child 1] has spent roughly 50% of the time with each parent since July 2017.

4. The tribunal needs to decide what the likely pattern of care was at 2 November 2017 – the date Ms Hackney requested a change in care.  This involves looking at the likely pattern over an appropriate care period.  [Child 1] turned 18 on 1 July 2018.  It would appear from the Child Support papers that the case terminated on that date (page 141).  It would therefore be appropriate to assess the likely pattern of care from 2 November 2017 to 30 June 2018.

5. Given that the parents clearly intended to have 50/50 care of [Child 1] and that over the long term (apart from one period in 2018) this has actually been the case, albeit in an erratic pattern, the tribunal was satisfied that the likely pattern of care at 2 November 2017 was 50/50. 

6. The tribunal therefore decided that there had been no change in care on 2 November 2017.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care on 2 November 2017.