Hambleton and Hambleton (Child support)

[2018] AATA 1475

Hambleton and Hambleton (Child support) [2018] AATA 1475 (15 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013332

APPLICANT:  Mr Hambleton

OTHER PARTIES:  Child Support Registrar

Mrs Hambleton

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  15 March 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Hambleton has 14 per cent care of Child 1 and Child 2 and Mrs Hambleton has 86 per cent care effective from 13 September 2017.

CATCHWORDS

Child support - Percentages of care - Change to the likely pattern of care - No change to the cost percentage - Exercise of discretion to revoke existing care percentage determinations - 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

BACGROUND

1. This review is about a change to the percentage of care determination for Mr Hambleton in respect of the children Child 1 and Child 2.

2. Mr Hambleton and Mrs Hambleton are the parents of Child 1 (born November 1999) and Child 2 (born September 2006).  From 1 July 2014 the pre-existing pattern of care for the children was 79 per cent care to Mrs Hambleton and 21 per cent care to Mr Hambleton.  Mr Hambleton is the liable parent under the assessment.

3. On 13 September 2017 Mrs Hambleton notified the Department of Human Services, Child Support (the Child Support Agency) there had been a change of care with Mr Hambleton having a maximum of 50 nights care of the children.

4. On 2 November 2017 the Child Support Agency made the decision to reject the change of care as advised by Mrs Hambleton.

5. On 3 November 2017 Mrs Hambleton objected to this decision and on 15 January 2018 the  Child Support Agency allowed the objection in part and made the decision to record that Mrs Hambleton had 87 per cent care of the children and Mr Hambleton had 13 per cent care from 13 September 2017 (the objection decision).

6. On 22 January 2018 Mr Hambleton applied to the Administrative Appeals Tribunal (the Tribunal) for review of the objection decision.

7. The Tribunal conducted a hearing into the application on 15 March 2018.  Mr Hambleton and Mrs Hambleton gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (198 pages).  Additional evidence was received from Mr Hambleton prior to the hearing (A1-A20).

ISSUES

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

2. The Child Support 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 Child Support 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 (section 50 of the Act).  In other words, the Child Support 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 Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. The issues which arise in this case are:

   ·       has there been a change in the pattern of care for Child 1 and Child 2 which requires existing percentages of care to be revoked and new care determinations to be made; and

   ·       if so, from what date should the new percentage of care determination take effect?

CONSIDERATION

1. Mr Hambleton told the Tribunal at hearing he had care of the children on a Thursday, Friday and Saturday night every second fortnight.  He said this level of care had been consistent since separation and had been decided at mediation.  Mr Hambleton said care had never been formalised and both parents had always allowed for flexibility in the care arrangements.

2. Mr Hambleton said care changed in July 2017 around the time he sent his daughter to school without her school jumper.  He said he and Mrs Hambleton had different rules for the children and this was not unusual in different houses.  After this incident he said he had stopped having care of the children on a Thursday night but, as care was always flexible anyway, he thought the change would only be temporary and he would pick up the time elsewhere.  He said he never worried about missing a few nights here and there.

3. Mr Hambleton said that both children were also involved in [an accident] in late 2016 and had been required to participate in the ongoing investigation through 2017.  He said this had been a difficult period for the children and had impacted on the level of care he had as well.  He said [investigators] had been to Mrs Hambleton’s home in September 2017 to discuss the accident and this had also disrupted his care. 

4. Mr Hambleton also said he felt like Mrs Hambleton was manipulating the children so that they would not stay with him and his level of care would fall below the “magical” 52 nights a year.  He said Mrs Hambleton would often change plans so the children could not stay with him.  He said he felt like Mrs Hambleton was motivated by money at the time she said there had been a change in care to a maximum of 50 nights especially as she knew Child 1 was soon to turn 18 years of age and she would receive less child support.

5. The Tribunal asked Mr Hambleton if both Child 1 and Child 2 stayed with him at the same time and he said that was usually the case.  Mrs Hambleton agreed the children would go to Mr Hambleton’s together.

6. Mr Hambleton said it was not accurate to say his care was now less than 50 nights a year and it was inconceivable he had less than regular care.  He said he felt the pattern of care was now returning to three nights every fortnight and he planned to ensure a more formal care arrangement was put in place in the future either through the courts or mediation.

7. The Tribunal notes the additional evidence provided by Mr Hambleton includes a calendar of care from 1 June 2017 to 6 February 2018.  The calendar shows Mr Hambleton having care of the children for two nights and sometimes three nights every second week.  Mr Hambleton said the calendar proved that for any period during this time his care equated to more than 50 nights a year.

8. The Tribunal calculated the care of Child 1 and Child 2, according to the calendar provided by Mr Hambleton, to be approximately 16 per cent care.

9. Mrs Hambleton said she disputed the level of care Mr Hambleton had of the children following the change of care in July 2017.  She said between July 2017 and January 2018 Mr Hambleton had a maximum of 25 nights with the children.  She said she would often ask Mr Hambleton if he wanted additional care but he was either busy or not interested.  She said she could not see Mr Hambleton’s level of care changing in the future.

10. Mrs Hambleton said she was definitely not trying to get more child support and was not manipulating the children at all.  She said Child 2 had a strained relationship with her father and simply did not want to stay with him as often as he would like.  Mrs Hambleton said the letter she provided from [Ms A], a teacher at Child 2’s school, was evidence of this.  She said she also had a report from a psychologist which indicated the relationship Child 2 had with her father was ambivalent.  Mrs Hambleton also said now that Child 2 was older she would chose when she wanted to stay with her dad.

11. The Tribunal notes in documents provided by the Child Support Agency a letter from [Ms A], a teacher at [Child 2’s] School, dated [in] November 2017.  The letter states that Child 2 does not enjoy spending time with her father “and often chooses not to go to his house on his rostered weekends”.

12. Mrs Hambleton agreed that prior to July 2017, Mr Hambleton had the children for three nights every second fortnight.  Although she said there were often issues even with this level of care as Mr Hambleton would frequently not take the children on the nights they were supposed to stay with him.  She said it was after the incident where Child 2 was sent to school without a jumper that Mr Hambleton’s care changed.

13. Mrs Hambleton said, despite her regularly offering, Mr Hambleton did not want more care of the children.  She said he had never been interested in care during school holidays because he preferred to holiday with his partner or was too busy doing his own thing.  Mrs Hambleton said it came down to differing attitudes to being a parent.  She would always put the children first whereas Mr Hambleton preferred the children to fit in with him and what he wanted to do.

14. Mr Hambleton acknowledged the children were close to their mother but said Child 2 had never raised with him anything about not wanting to stay.  He said he disagreed that Child 2 did not want to stay with him although he accepted that she often made up her own mind.  Mr Hambleton told the Tribunal he did not spend much time in the school holidays with the children.  He said this was partly because he started a new job in March 2016.

15. The Tribunal discussed with both Mr and Mrs Hambleton the text messages they had provided as evidence.  Many of these were not directly relevant to determining the level of care provided by both parents.  The Tribunal did view one particular text message exchange dated [in] November 2017 as significant.  The message, from Mrs Hambleton to Mr Hambleton, states:

    She has said to both of us that she wants to keep things the same, therefore I am happy for Child 2 to be in your care from either 8:30am Friday (when I drop her off to school) until Sunday night like usual…or Saturday morning until Monday 3:00pmn when I pick her up from school.

16. Mr Hambleton said this was evidence his “usual” care was at least two nights every fortnight.  Mrs Hambleton explained that she sent the text message after they had been to court but Mr Hambleton had not agreed to the offer.  When asked by the Tribunal if “usual” care meant two nights every fortnight Mrs Hambleton agreed but said Child 2 didn’t always follow that pattern.

17. Based on the evidence provided the Tribunal finds there was a change of care for Child 1 and Child 2 in July 2017.  The parents do not dispute this.  Mr and Mrs Hambleton disagree, however, about the level of care of the children from that point forward.

18. Mr Hambleton states he has care of at least two nights every second week.  Mrs Hambleton agrees that should be the level of care, but often the children do not stay with Mr Hambleton when they are supposed to and Mr Hambleton does not seek to have any extra time with Child 1 and Child 2 to make up the difference.  Mr Hambleton states this is because he is flexible and is relaxed about the times the children want to stay with Mrs Hambleton instead of him.

19. The Tribunal is of the view that the text message dated [in] November 2017 from Mrs Hambleton stating “usual” care is two nights care for Mr Hambleton every second week strongly suggests this is the new pattern of care.  While the Tribunal accepts that Mr Hambleton may not always have the children overnight on these particular two nights, the evidence does not show enough missed care to warrant less than the agreed two nights every fortnight.

20. The Tribunal therefore finds that Mr Hambleton provides 14 per cent care of Child 1 and Child 2 and Mrs Hambleton provides 86 per cent care from July 2017.

21. In making this finding, the Tribunal notes, however, that if Mr Hambleton’s relaxed attitude to making up the missed care was to become a clear pattern then Mrs Hambleton would be within her rights to notify of a subsequent change in the pattern of care.

22. Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions are met.

23. In this regard, the Explanatory Memorandum to the Bill for the amending Act states that: “This discretion allows the Registrar to maintain accurate records of changes in care and, because of the alignment provisions, this assists in keeping accurate records for FTB and child support."

24. In relation to discretionary revocation, section 2.2.2 of the Child Support Guide can also guide the Tribunal in its deliberations.  It states as follows:

    Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.

25. As section 54H of the Act is met, the Tribunal finds the previous determination can be revoked and replaced with the agreed pattern of care so the records are accurately reflected.

New care percentage decision

1. Having revoked the existing determination, the Tribunal must make a new percentage of care determination for Mr Hambleton and Mrs Hambleton.

2. For the reasons outlined above the Tribunal finds that Mr Hambleton provides 14 per cent care and Mrs Hambleton 86 per cent care of Child 1 and Child 2.

Date of effect of new care percentage decision

1. Mrs Hambleton notified the Child Support Agency of the change in care on 13 September 2017, which is more than 28 days after the change occurred.  Therefore, pursuant to paragraph 54H(2)(c), the revocation is made from 12 September 2017 and the new determination is made from 13 September 2017 pursuant to subparagraph 54B(2)(c)(ii) of the Act.

2. The new determination can be made from 13 September 2017.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Hambleton has 14 per cent care of Child 1 and Child 2 and Mrs Hambleton has 86 per cent care effective from 13 September 2017.