Haddad and Lester (Child support)

[2019] AATA 5941

Haddad and Lester (Child support) [2019] AATA 5941 (9 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC017341

APPLICANT:  Ms Haddad

OTHER PARTIES:  Mr Lester

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  9 December 2019

DECISION:

The decision under review is varied so that the care percentages for the child [Child 1] are 100% to Mr Lester and 0% to Ms Haddad, effective in the child support assessment for both parents from 1 May 2019.

This means that the application for review is partly successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – decision under review varied

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. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as a fact.

2. Mr Lester and Ms Haddad are the parents of two children – [Child 1] now aged 16, and [Child 2] now aged 10.

3. The child support case was first registered on 19 April 2005. It has been Registrar Collect since 21 March 2013.

4. From 11 October 2013 onwards the care percentages for both children were recorded by the CSA as 67% to Mr Lester and 33% to Ms Haddad. These percentages followed court orders made at that time.[1]

   [1] C94

5. Ms Haddad was then, and continued to be, the payer of child support.

6. On 1 May 2019 Mr Lester contacted the CSA.[2]

   [2] C17

7. In that contact, Mr Lester advised the CSA that the care of [Child 1] which was taking place gave him a higher percentage of care than the CSA had been recording. He stated that this had been the case since 30 April 2016 (i.e. three years earlier).

8. The CSA were unable to contact Ms Haddad at that stage.[3]

   [3] C31

9. On 28 May 2019 a delegate decided to change the care percentages for [Child 1] to 93% to Mr Lester and 7% to Ms Haddad, the change of care being effective in the child support assessment from different dates for each parent. This caused a significant debt to Ms Haddad, going back to 30 April 2016.[4]

10.Ms Haddad lodged an objection to that decision on 4 June 2019.[5]

11.On 7 August 2019 an objections officer disallowed the objection.

12.On 5 September 2019 Ms Haddad sought a further review by this Tribunal.

13.On 3 September 2019 a delegate decided to change the care percentages for the other child, [Child 2], to 100% to Mr Lester and 0% to Ms Haddad, the change of care being effective in the child support assessment from 29 July 2019.[6]

14.That matter is not before the Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

15.The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C244.

[4] See C33 and the enclosed assessments, and see further below

[5] C70

[6] C193

1. Both parties attended the hearing via teleconference and gave evidence and made verbal submissions.

2. Ms Haddad provided further information before the hearing, namely a lawyer’s letter to Mr Lester dated 4 September 2019 (A1 to A2) and some care calendars (A3 to A6).

ISSUES

18.The issues to be decided by the Tribunal are:

·which of the care provisions contained in the Child Support (Assessment) Act 1989 (“the Assessment Act”) apply to the circumstances?; and

·what are the correct care percentages in this case and from when do they apply?

CONSIDERATION

The relevant child support law

19.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

20.The legislative scheme requires the CSA to determine if a new care percentage should be fixed following notification to it of a change of the care arrangements.

21.If a parent has no pattern of care at all during the “care period”, then that parent’s care percentage must be fixed at nil: section 49 of the Assessment Act.

22.Care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Assessment Act.

23.Actual care may be worked out based on the number of nights that the child was or is likely to be in the care of the person: section 54A.

24.Whether a pattern exists, and what that pattern is, is to be assessed over a “care period”. A care period is not of defined duration: it is generally 12 months, but can be shorter or longer in a particular case.

25.However, if section 51 of the Assessment Act applies, then section 50 does not apply: this is provided for by subsection 50(4).

26.Section 51 of the Assessment Act is concerned with court-ordered care, where the court orders are not being complied with.

27.Sections 51 to 53A provide that in some circumstances care percentages should follow the terms of court orders, although those court orders are not being complied with. These decisions, if made, are put in place for a limited time only, and are known as “interim care determinations”.

28.These provisions are intended to cover situations where one parent has reduced care because of the actions of the other parent in depriving that parent of care, and it is a requirement in this scenario that the parent with the reduced care “is taking reasonable action to ensure” that the court orders are being followed (see subparagraph 51(1)(d)).

29.Changes to the care percentages are not necessarily reflected in the parents’ cost percentages. A cost percentage is the proportion of the costs of care of a child a parent is deemed to meet via providing care. Cost percentages (not care percentages) are added into the formula for the calculation of child support.

30.Under section 54F of the Assessment Act, if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s cost percentage, then the Registrar must make a new care determination.

31.For care changes which occur after 1 July 2018, if a new care determination is made, and if the care change notification is made more than 28 days after care has changed, then (i) for the person with increased care the revocation of the old care determination takes effect at the end of the day before notification, but (ii) for the person with reduced care the revocation of the old care determination takes effect at the end of the day before care in fact changed: see paragraph 54F(3)(b).

32.For care changes which occur before 1 July 2018, but which are notified to the CSA between 1 July 2018 and 1 July 2019, if the care change notification is made more than 28 days after care has changed, then the “old rules” apply and the change is effective for child support purposes for both parents from date of notification only.[7]

[7] If the care change is in fact notified after 1 July 2019, the new rules apply

33.Importantly, the Tribunal’s role in care percentages cases is that it may only review the legal correctness of the original care decision, which was made in this case on 28 May 2019. This is known as a “point in time” approach.

34.Subsequent care events and care changes must generally be disregarded, as they are properly the subject of further change in care notifications.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

35.Against the above background, the Tribunal has carefully considered all of the information on the CSA file and the evidence and submissions (both verbal and documentary) as presented by the parents both to the CSA, and to it.

36.The Tribunal considered first which provisions of the Assessment Act should be applied.

37.The Tribunal concluded that this matter is to be determined under section 49 of the Assessment Act (no pattern of actual care) rather than section 51 onwards (contravention of court orders).

38.The court orders made on 15 October 2013 gave Mr Lester 67% care of both children.

39.The evidence of the parties was that care stopped following the court orders by at the latest 2017.

40.The parties were agreed (it seemed) that the care of Ms Haddad had been significantly less than the court-ordered level of care (33%) in the last 18 months or 2 years, after Mr Lester and the children had moved away from the [regional] town where they had all formerly lived.

41.Ms Haddad has however only very recently taken steps to have the care issues dealt with via mediation. This process was initiated by the lawyer’s letter of 4 September 2019.

42.The parent with the reduced care must initially take, and must continue to take, reasonable action to ensure that the court orders are being followed (see subparagraph 51(1)(d)). This is an ongoing obligation. Ms Haddad was not doing these things before September 2019, and so sections 51 onwards of the Assessment Act do not apply to the facts of this case.

43.Actual care must therefore be the basis of the decision in this matter.

44.Care records and evidence of care produced by Ms Haddad show that, as at the date of the delegate decision, her care of [Child 1] was sporadic and followed no kind of pattern at all (for whatever reason this occurred is immaterial to this decision).

45.The Tribunal therefore finds that there was no pattern of care for Ms Haddad and section 49 of the Assessment Act applies in the circumstances. Her care percentage is nil, and Mr Lester’s care percentage is therefore 100%.

46.These new care percentages will change the cost percentages of the parents and so section 54F of the Assessment Act applies, and a new care determination in these terms must be made by the Tribunal.

47.As to date of effect, as the care change occurred before 1 July 2018 and the notification was on 1 May 2019, the new care determination is effective for child support purposes for both parents from date of notification, 1 May 2019.

48.The CSA erred in fixing the effective date for the care change (which they decided was 93/7%, which is practically no different to 100/0%) for Ms Haddad at 30 April 2016.

49.Ms Haddad has been significantly over assessed, and new assessments now need to be issued from 30 April 2016.

DECISION

The decision under review is varied so that the care percentages for the child [Child 1] are 100% to Mr Lester and 0% to Ms Haddad, effective in the child support assessment for both parents from 1 May 2019.

This means that the application for review is partly successful.