Heatcote and Marge (Child support)

[2018] AATA 3083

Heatcote and Marge (Child support) [2018] AATA 3083 (27 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013976

APPLICANT:  Mr Heatcote

OTHER PARTIES:  Child Support Registrar

Mrs Marge

TRIBUNAL:Member S Hoffman

DECISION DATE:  27 June 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child support - Percentage of care - Change in the likely pattern of care - Existing percentages of care revoked - New care percentages determined - 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. Mr Heatcote and Mrs Marge are the parents of [Child 1], [Child 2] and [Child 3]. This review is about the care of [Child 3] who is 12 years old. At the time a change in his care was notified to the Department of Human Services - Child Support (the CSA), he was recorded as being in Mr Heatcote’s 79% care and Mrs Marge’s 21% care.  

2. On 29 August 2017, Mrs Marge contacted the CSA to notify a change in [Child 3]’s care from 14 August 2017, such that she and Mr Heatcote were each providing 50% of his care. On 20 December 2017 a departmental officer decided that [Child 3]’s care was shared equally by the parents from 14 August 2017 (the original decision).

3. On 9 January 2018 Mr Heatcote lodged an objection to the original decision and on 9 March 2018, an objections officer decided the original decision was correct (the objection decision).

4. On 2 May 2018 Mr Heatcote lodged an application for review by this tribunal. The matter was heard on 27 June 2018 with Mr Heatcote and Mrs Marge giving evidence via conference telephone. The tribunal had before it a bundle of documents provided by the CSA (numbered 1 to 152), copies of which were given to the parties before the hearing.

ISSUES

1. 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 Registration and Collection Act).

2. The issue which arises in this case is the percentages of care for [Child 3]. 

CONSIDERATION

1. Section 50 of the Act requires the Department to determine a person’s percentage of care during a care period, if the Department is satisfied that the person has had, or is likely to have, a pattern of care during the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child that the Department is satisfied that the responsible person has had, or is likely to have, during the care period.

2. Broadly speaking, sections 54F and 54G of the Act provide for the changing of care determinations where there has been a change in the parents’ care of the child.

3. Subsection 54F(1) of the Act provides for a change in a care determination if “the care of the child that is actually taking place does not correspond with the…existing percentage of care for the child.”

4. Subsection 54F(2) of the Act provides that if the Department is notified within 28 days of a change in care occurring, the date of effect of the new care determination is the date the change occurred.

5. When a parent notifies the Department that there has been a change in care, it is of course possible that what was expected to happen when the change was notified does not eventuate. The legislative test for this review is what was likely to happen when the change in care from 14 August 2017 was notified to the CSA on 28 August 2017.  

6. If there is a further change of care, a parent can notify the CSA accordingly and a new care determination can be made. This has occurred in this case. According to a CSA decision made 15 May 2018, from 15 January 2018 Mr Heatcote has had 85% care of [Child 3] and Mrs Marge has had 15% of his care.

7. When considering if there has been a change of care, the tribunal looks at the usual pattern of care and if that has changed. A temporary disruption to the pattern of care that might occur if a parent is ill or taking holidays or for some other reason does not necessarily mean that there has been a change in a child’s care.

8. Drawing from evidence given at hearing and various documents provided by the CSA, when Mr Heatcote was providing 79% of [Child 3]’s care, they were living in [Town 1] and Mrs Marge was living in [Town 2], which are about 280 kilometres apart. Mrs Marge returned to [Town 1] and [Child 3] told his parents he wanted to spend more time with his mother. Over time an agreement was reached whereby [Child 3] would spend a week with each of his parents.[1]

   [1] [Town 1] is a small town with a population, according to the 2016 census, of about [number] people.

9. Mr Heatcote’s position is essentially that although a week about arrangement was made, it fell apart very quickly as Mrs Marge was going backwards and forwards between [Town 1] and [Town 2], and [Child 3] was only with Mrs Marge when it was convenient to her.

10. Mrs Marge agreed that the week about arrangement was not strictly maintained. She provided a list of dates when she claimed [Child 3] was in her care. The table below, which draws from that list, records the dates when Mrs Marge claimed [Child 3] was in her care between 14 August 2017 and 30 November 2017.

    Monday           14 August to 21 August   8 nights        

    Monday           28 August to 31 August   4 nights

    Sunday           10 September to 17 September   8 nights

    Sunday           24 September to 12 October  19 nights

    Friday             27 October to 9 November   14 nights

    Thursday        16 November to 23 November   8 nights

11. Based on the list, [Child 3] was with Mrs Marge for 39 nights out of 60 (65%) from 14 August 2017 to 12 October 2017 and 61 nights out of 109 (57%) from 14 August 2017 to 30 November 2017.

12. Mr Heatcote strongly disputed the dates on the list, which Mrs Marge had given to the CSA on 31 January 2018. Asked how she knew those were the dates when [Child 3] was in her care, Mrs Marge said that she knew they were right, and she had worked them out by going through her phone messages.

13. According to the list, the longest period when [Child 3] was with Mrs Marge was 19 nights from 24 September 2017 to 12 October 2017. Mrs Marge could not explain why [Child 3] was with her for such a long period at that time and Mr Heatcote was adamant the dates were wrong.

14. During the hearing Mrs Marge went through her phone and found some messages that appeared to corroborate some of the dates in her list but not all of them. For example, Mrs Marge said [Child 3] texted Mr Heatcote from her phone on 20 August “Dad, I’ll stay at mum’s tonight”.

15. Mrs Marge said that on 24 August 2017 she texted Mr Heatcote to ask if he was going to [City 1] and on 29 August 2017 she texted to say she was going to [Town 2] on the Friday and [Child 3] would go to Mr Heatcote’s on 1 September 2017.

16. Mrs Marge found other messages but they were not particularly helpful in ascertaining dates. Mr Heatcote did agree that [Child 3] was with Mrs Marge for the 14 days from 27 October 2017 to 9 November 2017 as he was [overseas] during that time. The tribunal is not satisfied that all the dates on Mrs Marge’s list are correct because of the time that had elapsed before the list was put together, plus Mrs Marge could not explain the longest period which would suggest it was wrong,

17. Mr Heatcote did not have details of the dates when [Child 3] was in his care. He provided a letter dated 11 February 2018 from his mother[which] indicated that the week about arrangement lasted for about a month, after which [Child 3] was in Mrs Marge’s care for three days out of 14 as part way during her care week, Mrs Marge would go to [Town 2] and leave [Child 3] with Mr Heatcote. Mrs Heatcote’s evidence was that this became an unbroken routine. That is clearly inaccurate as there was a 14 day period during which Mr Heatcote was overseas and Mrs Marge cared for [Child 3]. For that reason the tribunal gives minimal weight to Mrs Heatcote’s letter.

18. An email from [Ms A] dated 30 January 2018 records that Mrs Marge moved back to [Town 1] in April 2017 and sometime after that [Child 3] expressed a wish to live with her on a week about basis. This arrangement started in August 2017 by which time Mrs Marge had got back together with her partner which was why she was going back to [Town 2]. [Ms A] wrote that the care pattern for about six weeks was that [Child 3] was with his mother for about three days every other week, and then he then went back to Mr Heatcote so Mrs Marge could go back to [Town 2], and thereafter [Child 3] only went to stay with Mrs Marge on random weekends. Again this email fails to acknowledge something agreed by both parents which was that there was a 14 day period when Mrs Marge cared for [Child 3] that started 27 October 2017. 

19. Mr Heatcote also provided copies of text messages which seem to show that there were times when [Child 3] was at Mrs Marge’s home under the supervision of his 16 year old sister as Mrs Marge was away in [Town 2].  A text message from Mr Heatcote refers to the children being with Mrs Marge when it was convenient for her. These messages are not dated and do not give dates when [Child 3] was with one parent or the other. They are not particularly useful in trying to ascertain respective percentages of care.

20. Mrs Marge provided a letter from [Mr B] dated 29 January 2018. This letter stated that [Mr B] is a Justice of the Peace and owns the local [supermarket]. Mr Heatcote queried whether the letter was from [Mr B] as the signature did not look like [Mr B]’s signature as it appeared on another document Mr Heatcote provided.

21. Mrs Marge said that [Mr B] typed the letter in front of her and used an electronic signature. The letter said that [Mr B] saw [Child 3] leaving for school and coming home to Mrs Marge’s home every second week, and that Mrs Marge told him that [Child 3] was staying with her every second week. Both parents referred to Mrs Marge living close to the school and that sometimes [Child 3] would drop in after school and then later go to Mr Heatcote’s home; Mr Heatcote said that happened a lot. Mr Heatcote queried how [Mr B] would know [Child 3]’s movements as [Mr B] would most likely be elsewhere in [Town 1] at the times [Child 3] would be going to and from school.

22. The tribunal notes that Mr Heatcote’s position was that Mrs Marge provided care for [Child 3] for three nights every second week. When stating in his letter what he saw, [Mr B] did not clarify how often he saw [Child 3] going to and from Mrs Marge’s home during her care weeks; that is, if he saw [Child 3] going to and from school on one, three or five consecutive days every second week. The tribunal gives little weight to this letter as it does not provide sufficient detail regarding care provided by Mrs Marge at the relevant times.

23. While the parents agreed there was a new care arrangement that started on 14 August 2017, the tribunal notes some difficulty in ascertaining how long it continued; that is, was it too brief to be regarded as a change in care rather than a temporary disruption to the usual pattern of care. Based on the documents provided by the CSA, after Mrs Marge notified the CSA on 29 August 2017 using the online facility that there had been a change of care, nothing happened about it until 5 December 2017 when the CSA rang Mr Heatcote. He did not answer the call and the CSA wrote to him the same day. Having heard nothing from him by 20 December 2017, the CSA then proceeded to make its decision. The parents were only asked to provide evidence regarding their respective positions after Mr Heatcote had lodged his objection on 9 January 2018. By this time it was difficult for both of them to reconstruct exactly what had occurred around the time the change of care was notified.   

24. The tribunal is satisfied that the parents did agree to a change in care to a week about starting 14 August 2017 as they both said this was the case. The tribunal is also satisfied that this arrangement was not strictly adhered to beyond the first 18 or so days; both parents gave evidence to this effect. However after considering the conflicting and not totally reliable evidence as provided by each party, the tribunal considers that it is more likely than not that there was a change of care such that it was shared on a 50/50 basis from 14 August 2017 which was sustained for a period of time.

25. The tribunal notes the dates provided by Mrs Marge and that she was able to give explanations for some of them by reference to phone messages, and that it was agreed there was a 14-day period when Mr Heatcote was overseas and she cared for [Child 3]. The tribunal has already noted that according to Mrs Marge’s list, she cared for [Child 3] for 39 nights out of 60 (65%) from 14 August 2017 to 12 October 2017. The tribunal is satisfied this is overstated because Mrs Marge did not care for [Child 3] for 19 consecutive nights starting from 24 September 2017.

26. The tribunal rejects claims as made in the letters in support of Mr Heatcote’s position that Mrs Marge provided care for only 3 nights out of 14. This may have occurred on occasion but the tribunal does not accept that this was the regular pattern for reasons already given. The tribunal finds therefore that there was a change of care on 14 August 2017 such that each parent provided 50% of [Child 3]’s care.

27. For the record, Mr Heatcote did not lodge his application for review by the tribunal within 28 days of being notified of the objection decision. He said that was because he was self-employed and worked long hours, sometimes 80 or 90 hours a week. He tended to let the paperwork accumulate and go through it in one go every few weeks which was why he did not see the objection decision for some weeks after the letter was sent to him.

28. If the tribunal had made a decision in Mr Heatcote’s favour, without special circumstances being found to have prevented him from lodging his application for review with the 28-day timeframe, the date of effect of the tribunal’s decision would be the date Mr Heatcote lodged his application for review, being 2 May 2018.[2] By this time there had been a further change in care. According to a letter from the CSA to the parents dated 5 May 2018, from 15 January 2018 Mr Heatcote was providing 85% of [Child 3]’s care. This means that if a decision favourable to Mr Heatcote was made, it would have no practical effect on his child support liability.

    [2] Section 95N of the Registration and Collection Act is about the date of effect of a tribunal decision following a review of an objection decision about percentages of care. If the tribunal varies or substitutes a care percentage decision made by an objections officer, and the person lodged their application for review more than 28 days after the notice of the objection decision was given, then the date of effect of the tribunal decision is the date the person lodged their application for review. Subsection 95N(2) provides for the 28 day period to be extended if there are special circumstances which prevented the person from lodging their objection within 28 days.

DECISION

The decision under review is affirmed.