Hart and Gamble (Child support)

[2019] AATA 4868

Hart and Gamble (Child support) [2019] AATA 4868 (27 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC016191

2019/MC016268

APPLICANT:  Mr Hart

OTHER PARTIES:  Child Support Registrar

Ms Gamble

TRIBUNAL:Member F Hewson

DECISION DATE:  27 June 2019

DECISION:

The tribunal decided to:

• set aside the decision to make new percentage of care determinations and substitute its decision not to revoke the existing percentage of care determinations; and

• affirm the decision that special circumstances under section 87AA(2) of the Child Support (Registration and Collection) Act 1988 do not apply in this case.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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

1. Mr Hart and Ms Gamble are the parents of a child in respect of whom there is a child support assessment. This application is about the percentages of care for the child used in the child support assessment.

2. In her application for a child support assessment Ms Gamble advised the Department of Human Services – Child Support (the Department) that she had a percentage of care of the child of 90% and Mr Hart had the remaining care.

3. On 27 April 2017, the Department recorded that Mr Hart had a percentage of care of the child of 14% and Ms Gamble had a percentage of care of 86% (the existing care) from 24 March 2017.

4. On 27 August 2018, Ms Gamble lodged an objection to the care decision of 27 April 2017. The objection was considered by an objections officer who, on 1 February 2019, part allowed the objection. The objections officer made care percentage determinations to reflect that from 24 March 2017 Mr Hart had a percentage of care of the child of 13% and Ms Gamble had a percentage of care of 87%. The objections officer decided that the date of effect of the decision was 27 August 2018, being the date on which Ms Gamble lodged her objection.

5. On 26 March 2019, Mr Hart lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal). The application was heard on 27 June 2019. Mr Hart spoke to the tribunal by conference telephone. Ms Gamble also spoke to the tribunal by conference telephone. The Child Support Registrar did not attend the hearing. As well as the evidence of Mr Hart and Ms Gamble, the tribunal also had regard to the documents provided by the Department, a copy of which was also sent to the parties.  

ISSUES

1. The relevant law in this case is in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). 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.

7.Subsection 54A(1) 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.

1. 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

1. A determination of a percentage of care for a child must be made where an application for an administrative assessment is accepted 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).

2. The original care percentages determined in this case reflects that Mr Hart had a percentage of care of the child of 14% and Ms Gamble had percentage of care of 86%. As set out above, the Department was notified on 27 August 2018 that the care of the child from the start of the case on 24 March 2017 was not correctly reflected in the existing percentage of care determinations. Ms Gamble asserted that Mr Hart did not have regular care of the child and she estimated that his percentage of care was 10%. Mr Hart disputed that this was the case. Both parents provided dates on which they asserted that the child was in the care of Mr Hart. The dates provided by Mr Hart included dates on which the child was staying with her paternal grandparents. Ms Gamble disputed that the child should be regarded as being in the care of Mr Hart on those dates.

3. At the hearing Mr Hart said he had care of the child on 51 nights in the 12 months after the child support case was registered in March 2017. He said he expected to have more nights, but his access to the child was “made difficult”. He said he had 56 nights of care in 2018 and the child is now in his primary care. Mr Hart said there was no formal care arrangement in March 2017. His care was ad hoc because he was living interstate. His capacity to have care of the child was subject to time and money. When he was contacted by the Department in early 2018 about the care, he made arrangements with his employer to increase his annual leave so he could demonstrate his intention and capacity to have at least regular care of the child. He also commenced sending calendar invites in relation to the care he proposed to have to Ms Gamble, but she did not always respond.

4. Ms Gamble said it was her expectation when the child support case was registered in March 2017 that Mr Hart would have the child for all of the school holidays. She said Mr Hart asked for a change in the child support assessment during 2017 on the basis that he would have the care of the child for 26 weekends. She said she objected to the care used in the child support assessment because that level of care was not happening. Ms Gamble agreed that she did not always respond to Mr Hart’s contacts about having care of the child. She indicated that some of the proposed care was too far into the future for her to be able to plan for.

5. Ms Gamble said she disagreed with the inclusion of nights the child spent with her paternal grandparents as nights in Mr Hart’ care. She did not otherwise disagree with the nights Mr Hart said the child was in his care. Mr Hart said he occasionally made arrangements for the child to spend time with her grandparents if he was not able to travel interstate to see her. He said he gave his parents money for the child, and for them to do some activity together. Those arrangements were usually made a week or two in advance.

6. The documents provided by the Department include the application for registration of a child support case, lodged by Ms Gamble on 24 March 2017. In her application Ms Gamble indicated that she expected to have 90% of the care of the child over the next 12 months, and she expected Mr Hart to have 10% of the care. A record of a contact with Ms Gamble on 27 March 2017 includes “Ms Gamble states she has 100% care at this stage”. Also on that date, however, it was recorded that “Ms Gamble advised care will be generally every second weekend to OP – when he returns to town on the weekend. OP did not return weekend just gone and Ms Gamble advised she will be having weekend care also”.

7. The care of the child was discussed during a later contact, on 9 May 2017, including the following:

   Ms Gamble advised she thinks Mr Hart is living in [another city] as he called her and said he would be flying their daughter down every frt or once a mth. I explained we have care listed as 14% for pp and advised to keep a calendar, if this changes and he doesn’t have at least 3 care frts she could lodge for a change in care.

8. On 23 June 2017 it was recorded, in relation to a change of assessment application lodged by Mr Hart, that it was his intention to have care of the child every second weekend and one week of each school holiday period, but that he was not having this level of care due to the cost of travel costs to have care.  In a later contact, on 27 June 2017, it was recorded that Mr Hart stated that he expected to have at least 52 nights of care. The decision in relation to the change of assessment application recorded that Mr Hart was seeking a departure from the administrative assessment of child support so that he could have care of the child.

9. On 5 February 2018 the Department recorded that Ms Gamble advised of a change in the care of the child, from 20 January 2018. It was recorded that:

   Rp advised that pp was to have 52 nights /year (26 weekends p/year) and pp has not had this. PP has had 37 nights in total since case was reg’d 24/03/17. Ms Gamble explained that COA decision was made on pp stating that he would have every second weekend care of the child. Under R1. PP has not had this contact – PP had 10 nights over Christmas and 27 random nights since March 2017. Rp is not aware of any planned nights in the future as pp will not communicate with her. Rp considers the date of change 20^th Jan as the child return from 10 days with Pp on the 10/01 and she had the next week-end and pp was to have the next weekend 20/01/2018 – PP has had no care since, yet has been up to stay with his parents 5 mins away from Rp and not contacted the child for a visit”.

10. A record of a contact with Mr Hart on 13 February 2018, in relation to Ms Gamble’s notification of a change in care of the child, included the following:

    PP said the regular care arrangements that were in place have not changed. PP said he & RP live in two separate states. PP said he has ensured he is capable of providing regular care to to the chd … at a minimum of at least 52 nights regular care. PP said he last had care over xmas school holiday period and will have care over the next school holiday period. PP said before that though he will also have care in March whether chd comes to his care or he goes up to state chd lives in.

11. On 20 February 2018 Mr Hart notified the Department that he had negotiated eight weeks of annual leave and, with public holidays and ad hoc weekends, there was “ample opportunity to meet the minimum level of support over the current year”. He subsequently submitted a letter from his employer confirming his leave arrangements.

12. On 20 April 2018 the Department made a decision to refuse to make new percentage of care determinations based on Ms Gamble’s notification on 5 February 2018 of a change in the care from 20 January 2018.  In a later discussion about this decision, on 27 August 2018, it was recorded that Ms Gamble said the significance of 20 January 2018 was that that was when it occurred to her that Mr Hart was having less than 52 nights a year care.

13. The tribunal considered the pattern of care in this case. The pattern of care is assessed having regard to the care that is likely to occur for a care period, which is such period as the Registrar considers to be appropriate having regard to all the circumstances of the case. The Child Support Guide (the Guide) provides that this is usually a 12 month period.  As set out above, the tribunal is reviewing the decision about the percentages of care used in the child support assessment from date of registration on 24 March 2017. The tribunal concluded that the appropriate care period in this case is from 24 March 2017 to 23 March 2018.

14. During the registration process Ms Gamble acknowledged that she expected Mr Hart to have some care of the child in the following 12 months, stated in the application for registration to be 10% of the care and later recorded as “generally every second weekend”.  Due to an error recording his contact details, Mr Hart was not contacted in relation to the child support case. Nevertheless, on 27 April 2017, the Department made the decision to make percentage of care determinations to reflect that Mr Hart had 14% of the care and Ms Gamble had 86% of the care.

15. Having regard to the evidence of the parties at the hearing, and the documents provided by the Department, set out above, the tribunal concluded that the best evidence at the date of the original decision, on 27 April 2017, was that Mr Hart was likely to have a percentage of care in the care period from 24 March 2017 to 23 March 2018 of at least 14%. This is consistent with Ms Gamble’s contact with the Department on 27 March 2017, and with later evidence that Mr Hart was supposed to have 52 nights care, but this had not occurred. On 5 February 2018 Ms Gamble notified the care had changed from 20 January 2018, and later said the significance of that date was that it was when it occurred to her that the care had changed.

16. There is no dispute that Mr Hart did not have 52 nights of care in the care period. It was his evidence that he had 51 nights of care, although this includes eight nights when the child was in the care of his parents. In any case, this does not change the fact that the care that was likely to occur at 27 April 2017, being the date of the original decision, was the care that was recorded in the percentage of care determinations from the date of registration; that is 14%. There was no evidence at that date that Mr Hart was not likely to have at least regular care of the child, through a combination of weekend and school holiday care. It is clear that by 5 February 2018 Ms Gamble did not consider that Mr Hart was having the care that had been assessed, and she notified the Department accordingly. The care that had occurred since registration of the case could reasonably have informed the decision that was made in relation to that notification for the care period (in that case from 20 January 2018 to 19 January 2019), to the extent that it might indicate the care that was likely to occur. The decision maker appears to have accepted, however, that Mr Hart had made arrangements, including by increasing his annual leave to eight weeks, so he could have at least regular care of the child. That decision means, in the tribunal’s view, that even if it accepted that Mr Hart was likely to have less than regular care from the date of registration of the child support case, any change in the percentage of care determinations could not apply after 20 January 2018. This is moot, however, because the tribunal decided not to revoke the existing percentage of care decisions, and the existing percentage of care determinations remain in effect from the start of the case.

17. As the tribunal decided not to revoke the percentage of care determinations, it is not necessary to consider the date of effect provisions in section 87AA of the Registration and Collection Act. In the circumstances the tribunal agreed that special circumstances under section 87AA(2) do not apply in this case.

DECISION

The tribunal decided to:

• set aside the decision to make new percentage of care determinations and substitute its decision not to revoke the existing percentage of care determinations; and

• affirm the decision that special circumstances under section 87AA(2) of the Child Support (Registration and Collection) Act 1988 do not apply in this case.