Hamlet and Sawyer (Child support)

Hamlet and Sawyer (Child support) [2023] AATA 2165 (14 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC025412
APPLICANT:  Mr Hamlet
OTHER PARTIES:  Child Support Registrar
Ms Sawyer

REVIEW NUMBER:  2023/BC025469
APPLICANT:  Ms Sawyer
OTHER PARTIES:  Child Support Registrar
Mr Hamlet

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 14 June 2023
DECISION:

The decision under review is varied so that the care of [Child 1] is recorded as 27% to Mr Hamlet and 73% to Ms Sawyer from 10 June 2022. This care determination is revoked from 24 July 2022 and replaced with a new care determination from 25 July 2022 where Mr Hamlet has 100% care of [Child 1] and Ms Sawyer has 0% care of [Child 1].

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 omitted 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

Ms Sawyer and Mr Hamlet are the parents of [Child 1]. The existing care determination in place was 100% care to Ms Sawyer which applied from 10 May 2011. There has been a registered child support assessment in place with Services Australia (Child Support) from 6 November 2006. Mr Hamlet has been the parent liable to pay child support. The case was registered for collection by Child Support from 22 October 2007.
On 4 July 2022 Mr Hamlet notified Child Support that there had been a change in the care for [Child 1] and he now had 100% care; he said the care changed on 10 June 2022. On 20 September 2022 Child Support made the decision to accept the care change for [Child 1] advised by Mr Hamlet and made a new care determination that [Child 1] was in Mr Hamlet’s 100% care and Ms Sawyer’s 0% care from 10 June 2022.
On 11 October 2022 Ms Sawyer lodged an objection to this decision. On 3 January 2023 an objections officer disallowed Ms Sawyer’s objection. The care of [Child 1] remained as 100% to Mr Hamlet and 0% to Ms Sawyer from 10 June 2022.
On 12 January 2023 Mr Hamlet applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. On 23 January 2023 Ms Sawyer also lodged an application to the Tribunal for an independent review of this decision. The Tribunal had before it a bundle of documents (referred to as the hearing papers) in relation to Mr Hamlet’s matter 2023/BC025412 (219 pages) and in relation to Ms Sawyer’s matter 2023/BC025469 (173 pages).[1] Ms Sawyer also provided additional documents prior to the hearing (B1–B16). Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

[1] These are the subsection 87(1) and section 38AA Statement and Documents provided in accordance with the Administrative Appeals Tribunal Act 1975 from Child Support. The Tribunal refers to these documents as the hearing papers. Both parties confirmed they had received these.

The issues which arise in this case are:
·      Should the existing care determinations be revoked? If so,
·      From what date should the existing care determinations be revoked?
·      What are the new care determinations for each parent and what is the date of effect of the new care determinations?

LAW AND CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise, as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]
[2] [1979] AATA 179.
The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.
The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The government’s policy in this regard, as set out in section 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. The Guide states:
In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.
The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

Issue 1 – Should the existing care determinations be revoked?

Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Part 5, Division 4, Subdivision C of the Act can be considered.
Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.
Mr Hamlet notified Child Support on 4 July 2022 that [Child 1] had come into his 100% care from 10 June 2022. Ms Sawyer disagreed with this.
In relation to the change of care Mr Hamlet said that in his view [Child 1] was in his 100% care.
Ms Sawyer gave background information about how [Child 1] came to be in Mr Hamlet’s care. She said [Child 1] turned 17 years old [in] June 2022. Ms Sawyer said Mr Hamlet asked if [Child 1] could come and stay with him for a few nights. Ms Sawyer said [Child 1] stayed with Mr Hamlet from 10 June 2022 to 13 June 2022. Ms Sawyer said [Child 1] stayed again with Mr Hamlet from 25 June 2022 until 27 June 2022. [Child 1] then stayed again with Mr Hamlet from 25 July 2022 to 3 August 2022.
Ms Sawyer said [Child 1] was admitted for surgery for a broken collarbone for an injury she had sustained on 23 March 2022 which had not healed. As the bone was not fusing, Ms Sawyer arranged for [Child 1] to have surgery privately which she underwent on 3 August 2022. [Child 1] was discharged on 4 August 2022 to stay with Mr Hamlet. She remained in Mr Hamlet’s care until 14 October 2022. Ms Sawyer said Mr Hamlet had asked her if [Child 1] could stay with him while his mother ([Child 1’s] grandmother) was visiting and for her grandmother to be able to look after [Child 1] post surgery. Ms Sawyer agreed with this.
Ms Sawyer said she did not expect [Child 1] would be in Mr Hamlet’s 100% care from 10 June 2022. She said there was never an arrangement between herself and Mr Hamlet that [Child 1] would remain in Mr Hamlet’s 100% care and that was not the care that occurred after 10 June 2022. Ms Sawyer said [Child 1] had not been in her father’s care prior to 10 June 2022 and this arrangement was new to both Mr Hamlet and [Child 1].
Mr Hamlet said in his view [Child 1] was in his 100% from 10 June 2022 and he expected [Child 1] to be in his 100% care on an ongoing basis from this date. Mr Hamlet submitted that this was his view even during the times [Child 1] was not staying overnight at his home, when she might be staying with her best friend [Friend A] or whether she had returned to have an overnight stay at Ms Sawyer’s home she was still in his 100% care. Mr Hamlet held this view because he was providing food and shelter for [Child 1]. Ms Sawyer did not agree that during this period [Child 1] was in Mr Hamlet’s 100% care because she was still providing funds to [Child 1] for day-to-day living expenses and at times [Child 1] was staying with her.
The Act does not provide a definition of care but section 4 of the Act explains that the principal object of the Act is to ensure that children receive the proper level of financial support from their parents. The particular objects of the Act in subsection 4(2) relevantly include ensuring:
(c) that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; …
In the absence of the Act defining what constitutes ‘ongoing daily care’, the Tribunal will have regard to the Guide which provides a number of factors that may be relevant in determining to what extent the parents are caring for a child. Some of the following factors may be relevant in determining who has ongoing daily care of a child:[3]
·To what extent the person has control of the child, including having overall responsibility for the child and making
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o arrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
[3] The Guide at 2.2.1.
Taking into consideration Ms Sawyer’s and Mr Hamlet’s evidence the Tribunal is satisfied that from 10 June 2022 there was no agreement between the parents that [Child 1] would be in Mr Hamlet’s 100% care. There continued to be no agreement about this between the parents, but it is evident from 25 July 2022 leading up to [Child 1’s] admission and then discharge from hospital, and after her surgery on 4 August 2022, she remained in Mr Hamlet’s 100% care.
It is the Tribunal’s view that even though there existed no agreement between Mr Hamlet and Ms Sawyer about [Child 1’s] care it is evident from the text messages between Mr Hamlet and Ms Sawyer on 11 August 2022 that Mr Hamlet was concerned about the ongoing care arrangements for [Child 1] as he had been providing increased care to [Child 1].[4] By this stage Mr Hamlet had already notified Child Support that a change of care had occurred for [Child 1].
[4] Page 70 of the hearing papers relating to 2023/BC025412.
There were inconsistencies with the parents’ evidence to the Tribunal, as well as in the material evidence contained in the hearing papers. It seems for the periods [Child 1] was not in Mr Hamlet’s overnight care, she may have stayed with her friend [Friend A] or she may have stayed with Ms Sawyer. It is evident that both parents did not always know where [Child 1] was staying from 10 June 2022. But by 25 July 2022 it was evident that [Child 1] was in Mr Hamlet’s 100% care. Both parents said they were still providing ongoing daily care to [Child 1] which Ms Sawyer said was financial and emotional support to [Child 1] and Mr Hamlet said he was providing food, accommodation and support to [Child 1].
The Tribunal is satisfied that there had been a change to the existing care arrangements for [Child 1] and the existing care percentage of 100% to Ms Sawyer and 0% to Mr Hamlet should be revoked.

Issue 2 – From what date should the existing care determinations be revoked?

Section 54F of the Act provides that an existing care determination can revoked if there is a change to the responsible person’s cost percentage. The Tribunal is satisfied that there has been a change to cost percentage for both parents.
Subsection 54F(3) provides the revocation date each determination takes effect:
(3) The revocation of the determination takes effect at the end of:
(a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or
(b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i) the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii) the responsible person's care of the child has reduced--the day before the change of care day.
Mr Hamlet notified Child Support of the change of care for [Child 1] within 28 days of the change of care occurring. This means paragraph 54F(3)(a) applies when revoking the existing care determination. This means the existing care determination of 100% care to Ms Sawyer is revoked from the day before the change of care day, in this case 9 June 2022. Mr Hamlet’s 0% care determination is also revoked from 9 June 2022.

Issue 3 – What is the date of effect of the new care determinations?

The Tribunal is satisfied based on the oral and limited material evidence before it that Mr Hamlet had increased care from 10 June 2022 when he notified of the care change. But the Tribunal is not satisfied that Mr Hamlet had 100% care of [Child 1]. This was confirmed when Child Support had discussions with Ms Sawyer on 13 July 2022, when she confirmed [Child 1] was staying with Mr Hamlet but did not agree he was having 100% care at that time.[5]
[5] Pages 62–63 of the hearing papers relating to 2023/BC025469.
During the period 10 June 2022 to 24 July 2022 Mr Hamlet had 27% care of [Child 1] and Ms Sawyer had 73% care.[6]
[6] During the period 10 June 2022 to 24 July 2022 Mr Hamlet had 12 nights of care out of a possible 44 nights. This is 27% care for that period. Page 66 of the hearing papers.
On 11 October 2022 when Ms Sawyer lodged her objection she did not agree that Mr Hamlet had 100% care of [Child 1] from 10 June 2022. But during the hearing Ms Sawyer agreed [Child 1] was staying with Mr Hamlet from 25 July 2022.
On 4 July 2022 Mr Hamlet had a discussion with Child Support where he mentioned that from 10 June 2022 he was having care of [Child 1] 3 nights a fortnight.[7] On 18 August 2022 Mr Hamlet discussed the care change for [Child 1] with Child Support and Child Support confirmed that on 4 July 2022 he indicated he had 21% care of [Child 1]. The Tribunal is satisfied that during that conversation on 18 August 2022 Mr Hamlet was notifying Child Support he had 100% care of [Child 1].[8] But the Tribunal finds the date of effect of Mr Hamlet’s increased care to 100% was 25 July 2022 and not 10 June 2022.
[7] Pages 17–18 of the hearing papers relating to 2023/BC025469.
[8] Page 27 of the hearing papers relating to 2023/BC025469.
As this care change was notified on 18 August 2022 which was within 28 days of the care change occurring on 25 July 2022, the Tribunal is satisfied that the care determination of 27% care to Mr Hamlet and 73% care to Ms Sawyer is revoked from 24 July 2022 in accordance with paragraph 54F(3)(a) of the Act.
The Tribunal is also satisfied from 25 July 2022 a new care determination is made in accordance with section 49 of the Act in which Mr Hamlet has 100% care of [Child 1] from 25 July 2022.

DECISION

[2023] AATA 2165

14 June 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Statutory Construction

Judicial Review

Jurisdiction

Remedies