Haddox and Haddox (Child support)

Haddox and Haddox (Child support) [2018] AATA 4001 (13 August 2018)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2018/MC014332 and 2018/MC014343
APPLICANT:  Mr Haddox and Mrs Haddox
OTHER PARTIES:  Mrs Haddox and Mr Haddox
Child Support Registrar

TRIBUNAL:Member F Hewson
DECISION DATE: 13 August 2018
DECISION:

The tribunal decided to set aside the decision under review and substitute its decision to make new care determinations to reflect that from 26 October 2017 Mr Haddox had a percentage of care of [Child 1] of 14% and Mrs Haddox had a percentage of care of 86%, and the date of effect of the determination is 26 October 2017.

CATCHWORDS
Child support - Percentage of care - Change in the likely pattern of care - Existing care percentage determinations revoked - New care percentage determinations made - 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

Mr Haddox and Mrs Haddox are the parents of [Child 1] aged 17, in respect of whom there is a child support assessment. This application is about the percentages of care for [Child 1] used in the child support assessment from 26 October 2017.
From 5 August 2017 the Department of Human Services – Child Support (the Department) recorded that Mr Haddox had a percentage of care of [Child 1] of 100% and Mrs Haddox had a percentage of care of 0%.
On 30 October 2017, Mrs Haddox advised the Department of a change in the care of [Child 1], from 26 October 2017.
On 9 January 2018, an officer of the Department made a decision not to revoke the existing care determinations in relation to [Child 1], so that Mr Haddox continued to be assessed on the basis that he had 100% of the care.
Mrs Haddox lodged an objection to the decision about the percentages of care and on 1 June 2018 an objections officer considered the matter and partly allowed the objection. The objections officer decided to make new care determinations to reflect that from 26 October 2017 Mr Haddox had a percentage of care of [Child 1] of 50% and Mrs Haddox had a percentage of care of 50%.
On 15 June 2018, Mr Haddox lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). Mrs Haddox also lodged an application on 17 June 2018. The applications were heard on 9 August 2018. Mr Haddox spoke to the tribunal by conference telephone. Mrs Haddox also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of the parties at the hearing, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to Mr Haddox and Mrs Haddox, and to additional information provided by Mr Haddox and Mrs Haddox.

ISSUES

The relevant law in this case is in the Child Support (Assessment) Act 1989. 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 that child.

8.Section 54A of the Act sets out how to work out the actual care, and extent of care, a person has of a child. It states:
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.

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

A new determination of a percentage of care for a child must be made where an existing determination has been revoked and the Registrar, or the tribunal standing in the shoes of the Registrar, is satisfied that each person has had, or is likely to have, no pattern of care, or that the person has had, or is likely to have, a pattern of care (sections 49 and 50 of the Act).
As set out above, Mrs Haddox notified the Department on 30 October 2017 of a change in the care of [Child 1] from 26 October 2017. She advised that she would have 100% of the care from that date. Mr Haddox disputed that [Child 1] had returned to live with Mrs Haddox and advised that he continued to have 100% of the care. Mrs Haddox subsequently provided a care calendar for October and November 2017 and statements from third parties which state that [Child 1] has been in Mrs Haddox’s care since late October 2017. The care calendar indicated [Child 1] had been in the care of Mr Haddox on some nights. In a contact dated 30 November 2017 the Department recorded that Mrs Haddox advised that [Child 1] would likely spend one night a week at Mr Haddox’s home.
Mr Haddox also provided statements from third parties, including his partner, son and neighbour, which state that [Child 1] continued to live with Mr Haddox. In a contact dated 1 December 2017, the Department recorded that Mr Haddox advised that [Child 1] ‘was with Mrs Haddox for 2 nights on a holiday, however there is no ongoing plan for Mrs Haddox to have care. He advised [Child 1] is with him 100%’.
After she lodged her objection to the care decision, Mrs Haddox submitted further evidence, including:
·     A statutory declaration dated 14 January 2018, which states that [Child 1] returned to her full-time care on 26 October 2017.
·     A letter dated 13 January 2018 from Mrs Haddox about the care since 26 October 2017.
·     An Undertaking of Bail which Mrs Haddox said provides for [Child 1] to live at her address.
·     Documents from [a named bank] and [Service 1] which Mrs Haddox stated record that [Child 1’s] address is her address.
·     An invoice for a mobile telephone account which Mrs Haddox stated is for [Child 1’s] telephone, which Mrs Haddox pays.
·     A letter dated 11 January 2018 from [Solicitor A], who confirms that his office acts on behalf of [Child 1]. He also confirms that Mrs Haddox and [Child 1] had attended his office and at [Court 1] on various dates.
In response to Mrs Haddox’s objection, Mr Haddox also provided further evidence, including:
·     Third party statements to the effect that [Child 1] is in his care
·     A statutory declaration dated 25 February 2018
·     Statements refuting the content of the third party statements provided by Mrs Haddox
·     Photographs of [Child 1’s] bedroom
·     A statement dated 23 February 2018 to the effect that the address for [Child 1] on the Bail Undertaking provided by Mrs Haddox was changed to his address by an email dated 22 October 2017 to [Officer A], from [Police Station 1].
·     A Letter from [Court 2], addressed to [Child 1] at Mr Haddox’s address.
Mr Haddox submitted further documents before the hearing, including:
·     A Statutory Declaration dated 16 July 2018, in which he declared that [Child 1’s] address was recorded with [Police Station 2] and [another named station] and the [Court 1] as his address.
·     Further third party statements to the effect that [Child 1] lives with Mr Haddox.
·     A card left at Mr Haddox’s address on 8 July 2018 for [Child 1] to contact [Police Station 2].
·     A notice from [Court 3] addressed to [Child 1] at Mr Haddox’s address.
·     Photographs, including of [Child 1’s] room.
Mrs Haddox also submitted further documents before the hearing, including:
· A letter dated 2 July 2018 from [Solicitor A], which states he acts on behalf of [Child 1] in her criminal law matters. [Solicitor A] stated he commenced acting for [Child 1] in late September 2017 and her matter progressed through the Court system until she was sentenced [in] May 2018. He noted that [Child 1] was released on bail, with the condition that she reside at [an address] which, at that time, was Mrs Haddox’s address. The bail conditions were later varied to Mrs Haddox’s current address. [Solicitor A] stated that he had spoken to Mrs Haddox on ‘countless’ occasions, she had attended conferences at his office with [Child 1] on two or three occasions and had attended on all nine court dates. [Solicitor A] said it was his understanding that [Child 1] had been residing with Mrs Haddox in the time he has known her, although he had not seen this for himself, and he had not had any contact with Mr Haddox.
· A letter dated 3 July 2018 from [Ms A], Student Wellbeing Worker, [School 1]. [Ms A] stated that ‘I am writing in support of Mrs Haddox the mother of [Child 1] who is a full-time student at [School 1]. We have had consistent contact and involvement from Mrs Haddox since her daughter [Child 1] has been enrolled at the school in December of 2015. … Myself and the rest of the team at [School 1] that have worked with [Child 1] and her family over the years can verify that [Child 1] lives with Mrs Haddox at [address]. In addition to this, we have had frequent contact with Mrs Haddox who has been present for Student Support Group meetings, parent teacher interviews and has been in frequent correspondence with staff at the school. In the last year [Child 1] has needed extra support from the school around legal matters and with her WWCC submission, Mrs Haddox has had huge involvement around supporting her and facilitating this to happen with the school’.
An amended letter, dated 8 August 2018, was received from [Ms A] from the [School 1]. It stated, in part:
I am writing to verify that Mrs Haddox is the mother of [Child 1] who is a full-time student at [School 1]. We have had consistent contact and involvement from Mrs Haddox since her daughter [Child 1] has been enrolled at the school in December of 2015.
…
[School 1] have worked with [Child 1] and her family over the years. We can verify that on our school system it states she is living at [address]. We have had frequent contact with Mrs Haddox who has been present for Student Support Group meetings, parent teacher interviews and has been in frequent correspondence with staff at the school. In the last year [Child 1] has needed extra support from the school around legal matters and with her Working with Children Check Submission, Mrs Haddox has had involvement around supporting her and facilitating this to happen with the school”.
The tribunal discussed the care of [Child 1] with Mr Haddox and Mrs Haddox at the hearing. Mr Haddox said [Child 1] got into serious trouble with the police in about September 2017. She was in a car accident and had to go to hospital. He agreed that [Child 1] spent some time with Mrs Haddox around that time and that one of the conditions of her bail was that [Child 1] reside with Mrs Haddox. He said, however, that the bail conditions were amended so that [Child 1] could stay with him. He said he sent an email to [Officer A] at [Police Station 1] who approved the amendment. Mr Haddox said [Child 1] was back and forth between him and Mrs Haddox for about three weeks, but was not with Mrs Haddox full-time. He agreed that [Child 1] stayed overnight with Mrs Haddox when she had appointments with her solicitor or was required to be in court the following day. He did not attend any of the appointments or court dates as he works and Mrs Haddox is able to take her. He conceded that since October 2017 [Child 1] had been in his care for only 80% of the time.
Mr Haddox referred to documents from the [Court 3], which are addressed to [Child 1] at his address. He said this showed that his address is recorded as the address at which [Child 1] resides. He also referred to a card left at his address on 8 July 2018 for [Child 1] to contact [Police Station 2]. He said the police came to see [Child 1] at his address, but she wasn’t there at the time.
Mrs Haddox said [Child 1] had been living with her full-time since October 2017. She said [Child 1] got into trouble on [a specified night in] June 2017. Charges were subsequently laid and she was bailed to Mrs Haddox’s address. Mrs Haddox agreed that the bail conditions were amended so that if [Child 1] was with Mr Haddox during her curfew hours, from 9:00pm to 6:00am, she would not be in breach of bail. In relation to Mr Haddox’s evidence that the bail conditions were amended following approval from [Officer A], Mrs Haddox said a new bail undertaking was issued by the court, not the police, at each court date (every four weeks for nine months). On each occasion [Child 1] was bailed to Mrs Haddox’s address. In relation to mail from the [Court 3], which was addressed to [Child 1] at Mr Haddox’s address, Mrs Haddox said this was in relation to a separate matter. She noted that the informant in that case was [Mr A], whereas in the other matter the informant was [Officer A]. Mrs Haddox said she believes that in the latter case [Child 1’s] address was identified as Mr Haddox’s address by the person who brought the complaint, who was not aware of [Child 1’s] actual address.
Mrs Haddox said her address is recorded as [Child 1’s] address with the [School 1]. She said she is in regular contact with the school and attends parent teacher interviews. She said there has been a lot of back and forth with the school to facilitate [Child 1] getting a working with children check for work experience. Mrs Haddox said she takes [Child 1] to doctor’s appointments and she is listed on her health care card.
Mrs Haddox said [Child 1] was initially required by the court to attend drug testing twice a week and, on the advice of her solicitor, she continued to have twice weekly drug testing throughout the period the court proceedings were ongoing. Mrs Haddox said she had to take her to [Service 1] early in the morning on a Tuesday and Thursday for the testing. She said she drove [Child 1] there on each occasion. Mrs Haddox said [Child 1] has been in her care 98% of the time since October 2017, including 100% of the overnight care.
Mr Haddox confirmed that he did not take [Child 1] for any of her her regular drug testing. He agreed that she stayed with Mrs Haddox before she attended those appointments, which he said was ‘where the 80% comes in’. He later said there was only one document related to [Service 1] and [Child 1] didn’t attend for drug testing as claimed by Mrs Haddox. In relation to Mrs Haddox’s evidence that the correspondence from the [Court 3] to his address was in relation to another matter, Mr Haddox said it showed that his address was recorded as [Child 1’s] address, and the court would not allow two residential addresses to be recorded for the same person. He agreed that he does not generally have contact with the [School 1], although he did contact them after he saw the original letter from [Ms A]. He said [Child 1] told him she has had little contact with [Ms A], who has only been at the school for a few months. He said the school could only confirm that [Child 1’s] address is recorded as Mrs Haddox’s address, but they are not in a position to confirm where [Child 1] lives. He said it takes [Child 1] two hours to get to Mrs Haddox’s address in [specified town] and she doesn’t go there. He said [Child 1] didn’t adhere to her bail conditions and was out every night. He said she had a boyfriend and was staying there some nights. He referred to a reference in the objections officer’s decision to a statement by Mrs Haddox to the effect that [Child 1] is 17 and comes and goes as she pleases.
In relation to the outcome of [Child 1’s] court matter, Mr Haddox said she lost her licence and has community based service/course. He said he doesn’t have all of the details because he wasn’t at court. He later said he attended at court on two dates when the matter was adjourned. Mrs Haddox disagreed that this was the case. She said the solicitor had never met Mr Haddox.
Mrs Haddox said she thought the final court date was [in] May 2018. She said [Child 1] was very lucky. The charges were upheld, but no conviction was recorded. She has to attend [Agency 1] every 12 weeks, youth justice every week, a court appointed psychologist every week and a drug and alcohol counsellor every week. She cannot drive for 12 months and has to do a course before she can get her licence back. Mrs Haddox said she takes [Child 1] to all of her appointments. She said she and [Child 1] were also in daily contact with [another agency] for two weeks in about July 2018, after they attended on three occasions to see [Child 1] at Mrs Haddox’s address, due to a crisis. Mrs Haddox said [Child 1] had regular appointments with [Agency 1], a psychologist and a drug and alcohol worker throughout the period of the court matter, and she also saw a psychiatrist. Mrs Haddox said she took [Child 1] to all of her appointments.
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 provides, so far as is relevant in this case, that the Registrar must revoke a determination of a responsible person’s percentage of care (made under section 49 or 50) if the Registrar is notified that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and, if a new determination were made under section 49 or 50, the other percentage of care would change the responsible person’s cost percentage; and section 54G does not apply.
In this case, the tribunal found that there were existing percentage of care determinations made under section 50 in relation to [Child 1], and that the Registrar was notified that the care that was actually taking place does not correspond with those determinations, and if new determinations were made, the cost percentage in the child support assessment for Mr Haddox and Mrs Haddox would change.
The tribunal considered the available evidence. During the objection process both Mr Haddox and Mrs Haddox maintained they had full-time care of [Child 1]. In discussions with the Department Mrs Haddox acknowledged that [Child 1] stayed with Mr Haddox on the night of 30 October 2017, before he went overseas, and then stayed with her brother at Mr Haddox’s address while Mr Haddox was overseas in November 2017, and for several days in the weeks after he returned (on 13, 15, and 26 November 2017). She indicated that she expected that [Child 1] would stay with Mr Haddox for one night a week. At the hearing she stated that that did not eventuate, but acknowledged that [Child 1] does visit Mr Haddox in his home. Mrs Haddox provided evidence from [Child 1’s] solicitor which indicates that he believed [Child 1] lived with Mrs Haddox and he has had no contact with Mr Haddox, in relation to what was a very serious criminal matter, whereas he has been in frequent contact with Mrs Haddox who attended all appointments and all court dates with [Child 1]. The letter dated 8 August 2018 from the [School 1] confirms that its records show that [Child 1] lives with Mrs Haddox, with whom they are in regular contact. At the hearing Mr Haddox agreed that [Child 1] stayed with Mrs Haddox on the nights before she had appointments with her solicitor, had to attend court, and on the nights before she had drug testing each week. As noted above, he later said he did not believe such testing had taken place. Although the Department’s records indicate that Mr Haddox maintained until the objection was finalised in June 2018 that he had 100% of the care, at the hearing he conceded that since October 2017 he has had about 80% of the care of [Child 1], because Mrs Haddox took her to her to court and to her various appointments. Both parties also provided third party statements to the effect that they had the care of [Child 1]. Overall the tribunal found Mrs Haddox’s evidence to be more credible and persuasive, particularly as it was supported by objective evidence from [Child 1’s] solicitor and school. While Mr Haddox did submit evidence from the [Court 3] which shows that correspondence was addressed to [Child 1] at his address, the tribunal was not persuaded that she was living there in the period under review. Having regard to the available evidence, the tribunal was persuaded that the care in relation to [Child 1] did change from 26 October 2017, and the care that was likely to occur in the care period from 26 October 2017 to 25 2018 is most accurately reflected in a percentage of care of 14% for Mr Haddox and 86% for Mrs Haddox. Although the tribunal was not persuaded that Mr Haddox has had care to that extent (on average one night a week), it concluded that that was what was likely based on the evidence available in the period to the date of the original decision on 9 January 2018.

The tribunal decided that it is appropriate in the circumstances of this case to revoke the existing determinations of the percentages of care for [Child 1] under section 54F of the Act. Subsection 54F(3) of the Act sets out when the revocation of the determination takes effect. The date of effect depends on whether the Department was notified of the change within 28 days after it occurred. The tribunal found that the Department was notified on 30 October 2018, which is within 28 days of the date the care changed on 26 October 2017. The revocation of the existing determinations therefore takes effect in accordance with section 54F, on 25 October 2017, being the day before the notification of the change in care.
As the existing determinations have been revoked, new determinations of Mr Haddox and Mrs Haddox’s percentage of care under section 50 of the Act must be made. To make new determinations, the actual care of [Child 1] that was likely to occur during the care period must be considered, as discussed above. Under section 50 of the Act, the tribunal determined that Mr Haddox’s percentage of care of [Child 1] was likely to be 14% from 26 October 2017 and Mrs Haddox’s percentage of care was likely to be 86%.
Section 54B of the Act sets out the date of effect of the new determinations of percentage of care. The percentage of care applies to each day in a child support period on and from the application day. In accordance with subparagraph 54B(2)(c)(ii), the application day for the new determinations is the day after the revocation of the existing determinations. It follows, therefore, that the new determinations apply from 26 October 2017.

DECISION

[2018] AATA 4001

13 August 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Remedies

Judicial Review