Hanchett and Hanchett (Child support)

Hanchett and Hanchett (Child support) [2023] AATA 1655 (26 April 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024913
APPLICANT:  Ms Hanchett
OTHER PARTIES:  Child Support Registrar
Mr Hanchett

TRIBUNAL:Senior Member R Ellis
DECISION DATE: 26 April 2023
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Hanchett provides 65 per cent care of [Child 1] and [Child 2] and Mr Hanchett provides 35 per cent care from 1 July 2020, applying to the child support assessment from 1 July 2020 for Ms Hanchett and from 4 September 2020 for Mr Hanchett.

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 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

This review is about a change to the percentage of care determinations for Ms Hanchett and Mr Hanchett in respect of their children [Child 1] (born November 2010) and [Child 2] (born March 2012). There has been a child support assessment in place since 17 February 2012 with collection by the Child Support Agency from 7 May 2021.
From 11 September 2012 the child support assessment reflected Ms Hanchett as having 72 per cent care and Mr Hanchett as having 28 per cent care of [Child 1] and [Child 2].
On 4 September 2020 Ms Hanchett notified the Family Assistance Office (Services Australia) of a change to the care arrangements for [Child 1] and [Child 2] from 1 July 2020.
On 7 September 2020 the Child Support Agency implemented a decision that Ms Hanchett provides 64 per cent care of [Child 1] and [Child 2] and Mr Hanchett provides 36 per cent care from 1 July 2020 but with effect from 1 July 2020 for Ms Hanchett and from 4 September 2020 for Mr Hanchett (the original decision).
On 11 August 2022 Mr Hanchett objected to this decision and on 29 September 2022 the Child Support Agency allowed the objection and made the decision that Ms Hanchett provides 58 per cent care and Mr Hanchett provides 42 per cent care of [Child 1] and [Child 2] from 1 July 2020 (the objection decision).
As the Child Support Agency determined there were no special circumstances preventing Mr Hanchett from lodging his objection within the stipulated timeframe, the objection decision was applied to the assessment from 11 August 2022 being the date Mr Hanchett submitted his objection.
On 26 October 2022 Ms Hanchett applied to the to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.
The Tribunal conducted a hearing into the application on 28 February 2023. Ms Hanchett and Mr Hanchett gave evidence on affirmation by Microsoft Teams audio. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (236 pages).
Following the hearing the Tribunal sought additional potentially relevant information from the Child Support Agency under subsection 37(2) of the Administrative Appeals Tribunal Act 1975. This information, a Centrelink FA012 form relating to care, was received on 17 March 2023 (C1–C9). A copy was also sent to Ms Hanchett and Mr Hanchett.
On 19 April 2023 an officer of the Tribunal attempted to contact Ms Hanchett and Mr Hanchett in relation to this potentially relevant information. No further comments were received from either Ms Hanchett or Mr Hanchett prior to the making of this decision.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).
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.
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. The task of the Tribunal on review is the same.
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 new care determinations to take account of a care change.
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 the existing percentages of care to be revoked and new care determinations made; and, if so,
· from what date should the new percentage of care determinations take effect?

CONSIDERATION

Ms Hanchett told the Tribunal that care of [Child 1] and [Child 2] was the subject of a written agreement signed by both parents. Ms Hanchett said this agreement was set out in a Centrelink form which established care in hours rather than nights of care to reflect that she was providing additional care of the children during the day when Mr Hanchett was working. Ms Hanchett said she was the primary carer for [Child 1] and [Child 2].
Ms Hanchett explained that Mr Hanchett had agreed to hours of care because she was responsible for all school-related matters, for taking care of the children when they were unwell and for arranging all appointments for the children. Ms Hanchett pointed out that [Child 1] had special needs and she was responsible for dealing with the NDIS as well as making all arrangements for his medical and therapeutic requirements. Ms Hanchett said [Child 2] struggled with anxiety and she also took him to all his counselling sessions.
The Tribunal notes the additional evidence received from the Child Support Agency is a copy of a Centrelink FA012 form which sets out the care arrangements for the children. This form may be used as a type of written agreement between parents and in this case was signed by both Ms Hanchett and Mr Hanchett on 1 September 2020. The form, as completed, establishes that Mr Hanchett is to have care of [Child 1] and [Child 2] as follows:
Week A
Tues 2:30 pm to Wed 8:30 am
Wed 2:30 pm to Thurs 8:30 am
Friday 2:30 pm to Mon 8:30 am
Equals 102 hrs
Week B
Wed 2:30 pm to Thurs 8:30 am
Equals 18 hrs
The form states Mr Hanchett will have care of 120 hours per fortnight and this care arrangement starts from 1 July 2020. The form states, relevantly, that:
As Ms Hanchett stays home she does sick days, is responsible for boys during Mr Hanchett’s work hours. She also manages and attends all appointments for and with the children. This is what has been agreed on and works best for all parties involved.
In the section of the form signed by Mr Hanchett it also states, “I agree with: the care arrangements stated on this form.”
Ms Hanchett told the Tribunal she did not dispute that Mr Hanchett was having care of six nights per fortnight and she was having care of eight nights per fortnight but reiterated she was providing additional daytime care in accordance with their agreement. Ms Hanchett said although this pattern of care had been loosely in place prior to their written agreement it was not formalised until the agreement had commenced on 1 July 2020.
Ms Hanchett said even during the afternoons when Mr Hanchett was supposed to be caring for the children she was responsible for taking [Child 1] and [Child 2] to their various appointments. Ms Hanchett said she was happy to negotiate a different care arrangement with Mr Hanchett if required but until then she continued to abide by their agreement.
The Tribunal notes in evidence from the Child Support Agency third party statements from Ms [A] and Mr [B] in support of the care provided by Ms Hanchett.
The statement from Ms [A], a close friend since 2021, says that while Mr Hanchett has had care of six nights per fortnight “in recent years” the parents have an hours in care arrangement and Ms Hanchett “always had the children in school hours and around Mr Hanchett’s current and precious employment schedules”. The statement from Mr [B], Ms Hanchett’s partner since 2016, states that while Mr Hanchett has care of six nights per fortnight Ms Hanchett has responsibility throughout the hours of the school day. Mr [B] also says that Ms Hanchett is responsible for organising and attending paediatric appointments, speech therapy, OT, behavioural therapy, dental appointments, teacher meetings, NDIS appointments and fortnightly counsellor sessions for the children.
Ms Hanchett pointed out to the Tribunal that she had initially contacted the Family Assistance Office (Services Australia) and notified of the change to the care arrangements even though it meant she was to have a reduced level of care. Ms Hanchett said at no time was she advised that hours of care was not an appropriate arrangement for the parents.
Mr Hanchett told the Tribunal the parents initially had a private arrangement in place in relation to child support. Mr Hanchett said although this was an informal arrangement, he was having care of [Child 1] and [Child 2] of six nights per fortnight from 29 March 2017.
Mr Hanchett explained that in week one he would have care of the children on a Wednesday night and in week two he would have care on Tuesday, Wednesday, Friday, Saturday and Sunday nights. Mr Hanchett said when the children were in his care he would do the school drop-off and pick-up for [Child 2], and [Child 1] would catch the assisted school bus as he had special needs. Mr Hanchett said the parents shared responsibility for various activities for the children and pointed out that [Child 1] was now having therapy at school.
Mr Hanchett said there was no change to the pattern of care from 1 July 2020 as advised by Ms Hanchett and his care of the children remained at six nights per fortnight. Mr Hanchett added that he was not aware of a written agreement relating to hours of care, however, he acknowledged there were times when Ms Hanchett took the children to appointments while he was working. Mr Hanchett said when the children were in his care they remained in his care and nothing had changed in that regard.
The Tribunal notes in evidence from the Child Support Agency third party statements from Mr [C] and Ms [D] in support of the care provided by Mr Hanchett.
The statement from Mr [C], a close friend of more than 20 years and work colleague since 2020, says Mr Hanchett has care of six nights per fortnight and “this has always been the arrangement”. The statement from Ms [D] , Mr Hanchett’s partner since 2018, also says he has care of the children of six nights per fortnight and there have been “no changes in care percentage” for the entirety of their relationship.
The Tribunal further notes in evidence a letter dated 19 August 2022 from Beneke Legal, acting for Mr Hanchett, confirming the firm has been instructed that Mr Hanchett has care of six nights per fortnight.
It is not in dispute that Ms Hanchett provides care of the children of eight nights per fortnight and Mr Hanchett provides care of six nights per fortnight. Ms Hanchett argues, however, that she provides additional daytime care of the children and as a result the parents agreed it would be fairer to measure care in hours rather than nights. Mr Hanchett disagrees. Mr Hanchett submits there has been no change in care and he continues to provide care of six nights per fortnight as he has done since 29 March 2017. Mr Hanchett has also told the Tribunal he was not aware of a written agreement between the parents relating to care of the children where hours of care were used.
Section 54A of the Act sets out that care of a child may be worked out based on the number of nights a person has had, or is likely to have, during the care period.
While the number of nights a person cares for a child is the preferred method of measuring a parent’s percentage of care there are occasions when care can be measured other than in nights. The Child Support Guide, at 2.2.1, provides some guidance in relation to measuring care other than in nights. It states:
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.
The Centrelink FA012 form sets out what the Tribunal considers to be a new care arrangement agreed to by both parents. This care arrangement clearly states that Ms Hanchett is to have care of [Child 1] and [Child 2] of 216 hours per fortnight and Mr Hanchett is to have care of [Child 1] and [Child 2] of 120 hours per fortnight. This is equal to 65 per cent care to Ms Hanchett and 35 per cent care to Mr Hanchett.[1] In consenting to this care arrangement Mr Hanchett acknowledges that Ms Hanchett will be providing additional daytime care of the children. The Tribunal does not consider the difference between care measured in hours and care measured in nights to be insignificant and finds, in the circumstances of this case, it is appropriate to calculate care on the basis of hours of care.
[1] Section 54D of the Act established that a percentage of care must be rounded up to the nearest whole percentage if greater than 50% and rounded down to the nearest whole percentage if less than 50%.
A change in care usually takes place when the existing pattern of care ceases and a new pattern commences. The Tribunal is satisfied, based on the evidence provided, that a new pattern of care was established from 1 July 2020 when the parents began following the pattern of care established in their written care arrangement.
The Tribunal finds that Ms Hanchett provides 65 per cent care of [Child 1] and [Child 2] and Mr Hanchett provides 35 per cent care from 1 July 2020.
The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 72 per cent care to Ms Hanchett and 28 cent care to Mr Hanchett. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.
As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Ms Hanchett and Mr Hanchett under section 50 of the Act.
The Tribunal finds that Ms Hanchett provides 65 per cent care and Mr Hanchett provides 35 per cent care of [Child 1] and [Child 2] from 1 July 2020.

Date of effect of new care percentage determinations

The Tribunal finds that Ms Hanchett notified the Child Support Agency of the change in care on 4 September 2020. As this is more than 28 days after the change occurred on 1 July 2020, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.
The new determinations can be made from 1 July 2020 for Ms Hanchett and from 4 September 2020 for Mr Hanchett.
An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged (subsection 87AA(1) of the R&C Act). The Child Support Agency may, if special circumstances exist that prevented the person from lodging the objection within the relevant period, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days were a reference to such longer period as determined to be appropriate.
In this case the Child Support Agency allowed the objection made by Mr Hanchett and subsequently refused to make a determination under subsection 87AA(2). The objection decision was, therefore, applied to the assessment from 11 August 2022.
The Tribunal has found differently and instead determined that Ms Hanchett provides 65 per cent care and Mr Hanchett provides 35 per cent care of [Child 1] and [Child 2] from 1 July 2020. Given the late objection made by Mr Hanchett the decision of the Tribunal will also apply from 11 August 2022. Up until 11 August 2022 the care percentages determined in the original decision made by the Child Support Agency will remain in place.
The Tribunal notes that on 22 July 2022 Mr Hanchett notified the Child Support Agency of a separate change to the care arrangements stating that care of the children changed from 29 March 2017. This was not progressed by the Child Support Agency and Mr Hanchett may wish to consider pursuing this matter further if he considers it appropriate to do so.

DECISION

[2023] AATA 1655

26 April 2023

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness