Hastings and Hastings (Child support)

[2018] AATA 3063

Hastings and Hastings (Child support) [2018] AATA 3063 (3 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014053

APPLICANT:  Mr Hastings

OTHER PARTIES:  Child Support Registrar

Ms Hastings

TRIBUNAL:Member Y Webb

DECISION DATE:  03 July 2018

DECISION:

The Tribunal varies the decision under review and determines that from 7 February 2018 the care percentages in relation to the child were 53% to Mr Hastings and 47% to Ms Hastings.

CATCHWORDS
Child support – Percentage of care – Pattern of care that a parent has had or is likely to have for a child during a care period – Decision under review varied

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 the percentages of care for a care period in relation to the 16-year-old child (the child) of Ms Hastings and Mr Hastings.

2. Ms Hastings contacted the Department of Human Services (Child Support Agency) on 7 February 2018 to make an application for a child support assessment for the child.

3. There are no court orders or written parenting plans in relation to the care of the child.

4. The Child Support Agency spoke with both parents and both parents provided somewhat different information about their care of the child.

5. On 19 March 2018, the Child Support Agency decided to accept Ms Hastings’s application for child support from 7 February 2018 and in the absence of further information from Ms Hastings in relation to the care arrangements, the Child Support Agency determined that the care percentages were 64% (230 nights) to Mr Hastings and 36% (135 nights) to Ms Hastings.

6. On 28 March 2018, Ms Hastings objected to the care percentage decision. 

7. On 11 May 2018, an objections officer allowed Ms Hastings’s objection and determined that the care percentages were 49% (179 nights) to Ms Hastings and 51% (186 nights) to Mr Hastings.

8. On 14 May 2018, Mr Hastings requested review by the Administrative Appeals Tribunal (the Tribunal).

9. Both parents attended the hearing on 3 July 2018 by way of telephone conference and both gave evidence on affirmation.

ISSUES

1. The issues for the Tribunal to determine are:

   a)   What were the care arrangements in relation to the care of the child in the relevant care period?

   b)   Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care under the new determination and from when should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988 (the Registration and Collection Act).

2. Care decisions are made pursuant to Division 4, sections 48 to 54L of the Assessment Act.

3. The legislation requires the Tribunal to determine a percentage of care for a parent based on the pattern of care that a parent has had or is likely to have for a child in a care period.  The pattern can be established either according to a ‘care arrangement’ (such as court orders or a parenting plan) or the actual care that is taking place.  Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law.

4. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has, or is likely to have, a pattern of care. It relevantly provides as follows:

   Determination of percentage of care—responsible person has had etc. a pattern of care for a child

   (1)      This section applies if:

   (a)      either of the following applies:

   (i)       an application is made under section 25 or 25A for a parent to be   assessed in respect of the costs of the child;   

   (ii)       a parent is taken under section 73A to have had a relevant dependent   child from a day specified in that section;

   and the Registrar is satisfied that a responsible person for the child 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; or

   (b)      the Registrar:

   (i)       revokes, under Subdivision C of this Division, a determination of a   responsible person’s percentage of a care for a child that was made   under section 49 or this section; and

   (ii)       is satisfied that the responsible person 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.

   (2)     The Registrar must determine the responsible person’s percentage of care for the child                 during the care period.

   (3)     The percentage determined under subsection (2) must be a percentage that corresponds              with the actual care of the child that the Registrar is satisfied that the responsible person              has had, or is likely to have, during the care period.

5. Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case neither Mr Hastings nor Ms Hastings contended that nights were an unsuitable measure of the care that they were providing to the child. Ms Hastings stated that she does have additional care after school on most Fridays when she picks the child up from school regardless of whether the child is in her care or not.  However, in the Tribunal’s view, given the regularity of overnight care, the Tribunal finds that nights are a more appropriate and reliable method of ascertaining the actual care of the child in this case.

7. It is not in dispute that on 7 February 2018 Ms Hastings made an application to the Child Support Agency for a child support assessment and that it was accepted on 19 March 2018.

8. At the time when Ms Hastings lodged her application she advised that her care of the child was six nights per fortnight.  When Mr Hastings was contacted he advised that his care of the child was 10 nights per fortnight during school term time and that Ms Hastings had care of the child for about 75% of the time during school holidays which he calculated was about 59 nights in school holidays with Ms Hastings and 25 nights in the school holidays with him.  Mr Hastings stated that on average and factoring in the school holidays he believes his care of the child to be 225 nights per year (62%).

9. Ms Hastings did not agree that Mr Hastings’s asserted care was correct based on the pattern of care that they had or would be likely to have for the child.  Ms Hastings contended that she had care six nights per fortnight and that Mr Hastings had care for the remaining eight nights per fortnight.  In addition, she stated that she had 75% of the care in the school holidays.  Ms Hastings also advised that in October 2017 she broke her foot and was unable to drive for a period, which altered the care arrangements but only temporarily.  The Tribunal finds that this unexpected and unavoidable change of care arrangement for a short period should not alter the usual pattern of care.

10. Ms Hastings had emailed the Child Support Agency (enclosing an email between herself and Mr Hastings) stating that both she and Mr Hastings agreed that her care was six nights per fortnight and Mr Hastings’s was eight nights per fortnight.  Her email also referred to her having 75% care in the school holidays.  However, the Tribunal accepts that Mr Hastings misinterpreted that email in that he understood the six nights per fortnight to be an average across the whole year factoring in Ms Hastings’s 75% care in the school holidays.  If the school terms and school holidays were being considered separately, he asserted that Ms Hastings’s school term care was five nights per fortnight.

11. At the hearing, both parents agreed that there was some fluctuation in the care due to the child’s age and his activities.

12. At the hearing, Mr Hastings contended that during school terms his care of the child varies between seven nights per fortnight and eight nights per fortnight.  He stated that during school holidays he estimates that he will have approximately 32% care.  He stated that he had nine days of care out of 31 days in January and four days of care out of 14 in the April 2018 holidays.  He stated that he agreed that Ms Hastings was expected to have around 75% care in the school holidays.

13. At the hearing, Ms Hastings contended that during school terms her care of the child varies between six nights and five nights per fortnight.  She stated that even though it is different from her own calculations she is prepared to accept that Mr Hastings had care for nine nights out of 31 in January 2018 but she does not agree that Mr Hastings had four nights of care in the April holidays as she stated that she had virtually all of the care in the April holidays and she expected that she would have most of the care in the upcoming July holidays. 

14. The Tribunal considered the evidence and contentions provided by Mr Hastings and Ms Hastings.  There is not complete agreement about the care arrangements but the Tribunal needs to make a determination based on the likely pattern of care that was occurring in and is expected to occur in the care period.  As the assessment for the child did not commence until 7 February 2018 when the child support assessment commenced, the Tribunal finds that the care period will commence for a 12-month period from 7 February 2018.

15. In relation to the care percentages, the Tribunal has calculated on an ‘averaging’ basis that in school terms Ms Hastings has five nights per fortnight for 10 fortnights and six nights per fortnight for 10 fortnights.  Similarly, in school terms, Mr Hastings has care for eight nights per fortnight for 10 fortnights and nine nights per fortnight for 10 fortnights.  In relation to school holiday periods, while Mr Hastings asserted that he had 32% in school holidays, his percentage in the January holidays was 29% and based on the pattern of care expected in the school holidays this year Ms Hastings expects that her care will be at least 75% in the school holidays.  She referred to having the care for almost every day in the April holidays and an expectation that in July she will have almost all of the care.  The Tribunal accepts her statements about this. Taking those factors into account, the Tribunal determines that the care in the school holidays is 75% to Ms Hastings.  Hence, the care percentages are as follows:

Ms Hastings	Half of school terms 5 nights per f/n = 50 nights	Half of school terms 6 nights per f/n = 60 nights	School holidays 75% of 84 nights = 63 nights	Total per yr = 173 nights = 47%
Mr Hastings	Half of school  terms 9 nights per f/n = 90 nights	Half of school terms 8 nights per f/n = 80 nights	School holidays 25% of 84 nights = 21 nights	Total per yr = 191 nights = 53%

1. In accordance with section 54D of the Assessment Act the lower percentage is rounded down and the higher percentage is rounded up.

2. In the administrative formula, a parent’s notional contribution to the costs of the children by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. The Tribunal’s determination will vary the decision of the objection officer and will result in Ms Hastings having a care percentage of 47% and a cost percentage of 49% and Mr Hastings having a care percentage of 53% and a cost percentage of 51% from the care period commencing 7 February 2018 being the date from which the child support assessment for the child commences.  In the Tribunal’s view, it has no jurisdiction to determine the levels of care prior to that date.

2. Accordingly, the Tribunal finds that these are the percentages of care that apply to Ms Hastings’s new application for an administrative assessment in accordance with subsection 50(1)(a)(i) of the Assessment Act.

DECISION

The Tribunal varies the decision under review and determines that from 7 February 2018 the care percentages in relation to the child were 53% to Mr Hastings and 47% to Ms Hastings.