Hammond and Hayes (Child support)

[2019] AATA 5114

Hammond and Hayes (Child support) [2019] AATA 5114 (19 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/PC016820

APPLICANT:  Mr Hammond

OTHER PARTIES:  Child Support Registrar

Miss Hayes

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  19 September 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – decision under review affirmed

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. This review is about a change to the percentage of care determinations for Mr Hammond and Miss Hayes in respect of their child [Child 1] (born June 2007).[1] There has been a child support assessment in place since 18 September 2007 and Mr Hammond is the liable parent.

   [1] Mr Hammond and Miss Hayes have a second child, [Child 2], however, this review relates to [Child 1] only.

2. From 8 June 2012 the child support assessment reflected Mr Hammond as having 31 per cent care and Miss Hayes as having 69 per cent care of [Child 1] and [Child 2].

3. On 27 July 2017 Miss Hayes notified the Department of Human Services, Child Support (the Child Support Agency) of a change of care for [Child 1] and [Child 2] stating that Mr Hammond provides care for two nights per fortnight from 21 April 2017.

4. On 4 October 2017 the Child Support Agency made the decision to reject the change in care as notified by Miss Hayes on 27 July 2017. Neither parent objected to this decision.

5. On 13 October 2018 Mr Hammond notified the Department of Human Services, Centrelink (Centrelink) of a change of care for [Child 1] and [Child 2] stating that he provides 50 per cent care and Miss Hayes provides 50 per cent care of both children from 1 April 2017.

6. On 4 December 2017 the Child Support Agency made the decision to reflect that Mr Hammond provides 50 per cent care and Miss Hayes provides 50 per cent care of [Child 1] from 1 April 2017 but with effect from 22 September 2017. The decision was also made to reject the change in care for [Child 2].

7. On 6 February 2018 Miss Hayes objected to this decision and on 12 June 2018 the Child Support Agency allowed the objection and made the decision to refuse a change of care for [Child 1] from 1 April 2017 (the objection decision).

8. On 25 June 2019 Mr Hammond applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

9. The Tribunal conducted a hearing into the application on 19 September 2019. Mr Hammond and Miss Hayes gave evidence on affirmation by conference telephone. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (515 pages).

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 the likely care is thereafter. The task of the Tribunal on review is the same.

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] 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 determinations take effect?

CONSIDERATION

1. Mr Hammond told the Tribunal there was no court order, parenting plan or written agreement in place regarding the care of [Child 1]. He said care was based on a verbal agreement between the parents and had always been 50-50 shared care. Mr Hammond said his care was always greater than the Child Support Agency had previously recorded.

2. Mr Hammond explained that his care was usually every Wednesday, Friday, Saturday and Sunday night but also sometimes on other additional nights, for example, after [Sport 1] training. He said when [Child 1] was with him he would take [Child 1] to school and to his sports events. Mr Hammond said he and Miss Hayes would regularly discuss care arrangements and work around what each other was doing. Mr Hammond told the Tribunal he always recorded care in diaries which confirmed his care of [Child 1] was shared on a 50-50 basis.

3. Mr Hammond said the parents had been to mediation many times but Miss Hayes would not acknowledge that care was 50 per cent to each of them.

4. During the hearing, the Tribunal asked Mr Hammond about the number of different care diaries provided in evidence by the Child Support Agency which set out his level of care for [Child 1] and [Child 2]. He said one version was a copy of the care diary provided to the Child Support Agency by Miss Hayes to which he had added his care for ease of comparison. Mr Hammond said the others were copied from the same original diary which his mother had written. Mr Hammond explained that due to a disability he found it difficult to spell, and his mother kept the diary on his behalf. He said because he lived with his parents, his mother would usually record the nights in the calendar when the children stayed with them.

5. The Tribunal reviewed the care diary provided by Mr Hammond to Centrelink on 25 October 2017 which records care from 1 April 2017 to 29 September 2017. In relation to [Child 1], the diary shows Mr Hammond had the following care:

Month	Date and day	Total
April	1 (Sat), 2 (Sun), 3 (Mon), 4 (Tues), 6 (Thu), 7 (Fri), 8 (Sat), 9 (Sun), 13 (Thu), 14 (Fri), 15 (Sat), 16 (Sun), 19 (Wed), 20 (Thu), 21 (Fri), 22 (Sat), 23 (Sun), 24 (Mon), 25 (Tue), 26 (Wed), 27 (Thu), 28 (Fri), 29 (Sat), 30 (Sun).	24 nights
May	3 (Wed), 4 (Thu), 5 (Fri), 6 (Sat), 7 (Sun), 10 (Wed), 11 (Thu), 12 (Fri), 13 (Sat), 14 (Sun), 18 (Thu), 19 (Fri), 20 (Sat), 21 (Sun), 24 (Wed), 25 (Thu), 26 (Fri), 27 (Sat), 31 (Wed).	19 nights
June	1 (Thu), 2 (Fri), 3 (Sat), 5 (Mon), 6 (Tue), 8 (Thu), 10 (Sat), 11 (Sun), 13 (Tue), 14 (Wed), 15 (Thu), 16 (Fri), 17 (Sat), 21 (Wed), 23 (Fri), 24 (Sat), 25 (Sun), 27 (Tue), 28 (Wed), 29 (Thu), 30 (Fri).	21 nights
July	1 (Sat), 2 (Sun), 6 (Thu), 7 (Fri), 9 (Sun), 11 (Tue), 13 (Thu), 14 (Fri), 15 (Sat), 16 (Sun), 17 (Mon), 18 (Tue), 19 (Wed), 20 (Thu), 21 (Fri), 24 (Mon), 25 (Tue), 26 (Wed), 27 (Thu), 28 (Fri), 29 (Sat), 31 (Mon).	22 nights
August	2 (Wed), 3 (Thu), 4 (Fri), 5 (Sat), 9 (Wed), 10 (Thu), 11 (Fri), 12 (Sat), 17 (Thu), 18 (Fri), 19 (Sat), 22 (Tue), 24 (Thu), 25 (Fri), 26 (Sat), 27 (Sun), 31 (Thu).	17 nights
September	1 (Fri), 2 (Sat), 5 (Tue), 6 (Wed), 8 (Fri), 11 (Mon), 12 (Tue), 13 (Wed), 14 (Thu), 15 (Fri), 16 (Sat), 17 (Sun), 18 (Mon), 19 (Tue), 21 (Thu), 22 (Fri), 23 (Sat), 24 (Sun), 25 (Mon), 26 (Tue), 27 (Wed), 28 (Thu).	22 nights

1. Based on his care diary, for the 182-day period from 1 April 2017 to 29 September 2017, Mr Hammond provided 125 nights or 69 per cent care of [Child 1].

2. The Tribunal notes in evidence that on 3 November 2017, Centrelink received from Mr Hammond a number of third party statements in support of his care of [Child 1]. These are from Mr [A] (President of [Sport 1] Club), Mrs [B] (Principal of [Primary School]), Ms [C] (Club Secretary of [Sport 2] Club) and Mr [D].

3. The third party statements provided by Mr [A], Mrs [B] and Ms [C] all confirm that Mr Hammond is regularly involved in [Child 1]’s life but do not provide an indication of his level of care. The statement from Mr [D] declares that he sees [Child 1] and [Child 2] reside at the [Street] home with Mr Hammond “more than 3–4 times a week”. Mr Hammond told the Tribunal that Mr [D] was a neighbour who lived two houses away.

4. Miss Hayes told the Tribunal she believed there were a number of discrepancies in the care calendar provided by Mr Hammond. Miss Hayes said she disagreed with Mr Hammond as care had never been 50-50 at any time. She said Mr Hammond lived with his parents in a two-bedroom home and it was not set up for the children to stay there for any length of time. Miss Hayes said [Child 1] would spend Friday, Saturday and Sunday night with Mr Hammond each fortnight and this was the only consistent pattern of care. She said Mr Hammond had never had week-about care but acknowledged that [Child 1] would sometimes spend an extra night with Mr Hammond during the week after [Sport 1] or [Sport 2] training. Miss Hayes added there were also other occasions Mr Hammond might have additional care when he would not return the children after school.

5. Miss Hayes told the Tribunal when Mr Hammond notified Centrelink that care had changed to 50-50 care, this was based on what he wanted and not the actual level of care. She said there had been no change in care from that time. Miss Hayes said she also recorded care in a calendar which confirmed Mr Hammond did not have shared care of [Child 1].

6. The Tribunal reviewed the care calendar provided by Miss Hayes to the Child Support Agency on 23 February 2018. According to her calendar, Mr Hammond had the following care of [Child 1] during the period from 1 April 2017 to 29 September 2017:

Month	Date and day	Total
April	1 (Sat), 2 (Sun), 9 (Sun), 14 (Fri), 15 (Sat), 18 (Tues), 19 (Wed), 20 (Thu), 22 (Sat), 28 (Fri), 29 (Sat), 30 (Sun).	12 nights
May	5 (Fri), 6 (Sat), 7 (Sun), 14 (Sun), 19 (Fri), 20 (Sat), 21 (Sun), 26 (Fri), 27 (Sat), 28 (Sun).	10 nights
June	1 (Thu), 2 (Fri), 9 (Fri), 10 (Sat), 11 (Sun), 16 (Fri), 17 (Sat), 18 (Sun), 25 (Sun), 30 (Fri).	10 nights
July	1 (Sat), 2 (Sun), 7 (Fri), 8 (Sat), 15 (Sat), 22 (Sat), 26 (Wed), 27 (Thu), 29 (Sat), 30 (Sun).	10 nights
August	11 (Fri), 12 (Sat), 21 (Mon), 22 (Tue), 25 (Fri), 26 (Sat), 28 (Mon), 29 (Tue).	8 nights
September	9 (Sat), 15 (Fri), 16 (Sat), 17 (Sun), 22 (Fri), 23 (Sat), 24 (Sun), 29 (Wed).	8 nights

1. Based on her care diary, for the 182-day period from 1 April 2017 to 29 September 2017, Mr Hammond provided 58 nights or 32 per cent care of [Child 1].

2. The Tribunal notes in evidence that on 23 February 2018 Miss Hayes provided the Child Support Agency with three statements from third parties in support of her care of [Child 1]. These are from Ms [E] (a close family friend), Ms [F] (her mother) and Mr Hayes (her adult son from another relationship).

3. In her statement, Ms [E] says she has known Miss Hayes for 28 years and sees her for family events on a weekly basis. Ms [E] says that since 1 February 2017, [Child 1] has stayed with Mr Hammond weekly from Friday to Sunday. In her statement, Ms [F] says she spends time with her grandchildren regularly and [Child 1] sees Mr Hammond most weekends and sometimes on a Wednesday after [Sport 2]. The statement from Mr Hayes, who resides at home with Miss Hayes, says [Child 1] is with Mr Hammond on weekends.

4. Mr Hammond has told the Tribunal he has care of [Child 1] on a Wednesday, Friday, Saturday and Sunday night every week and his level of care is 50-50 with Miss Hayes. His care calendar for the nearly six-month period from 1 April 2017, when he advised Centrelink that care changed, shows he has 69 per cent care of [Child 1]. Miss Hayes has told the Tribunal Mr Hammond has fortnightly care of [Child 1] on a Friday, Saturday and Sunday night with additional care on some nights. Her care calendar for the same period from 1 April 2017 shows Mr Hammond has 32 per cent care of [Child 1]. Only one of the third party statements provided by Mr Hammond supports his level of care of [Child 1]. The third party statements provided by Miss Hayes do not support the level of care she says Mr Hammond has of [Child 1].

5. Given the contradictory evidence provided by Mr Hammond and Miss Hayes and in light of the conflicting views of the parents, the Tribunal is not satisfied the pattern of care from the date of the existing determination had changed.

6. The Tribunal therefore finds the existing percentage of care determinations that Mr Hammond provides 31 per cent care and Miss Hayes provides 69 per cent care of [Child 1] had not changed.

DECISION

The decision under review is affirmed.