Hedrick and Child Support Registrar (Child support)

[2020] AATA 1393

Hedrick and Child Support Registrar (Child support) [2020] AATA 1393 (6 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017991

APPLICANT:  Mr Hedrick

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  06 March 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care from 11 May 2010.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to 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 omitted 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 Hedrick and [Ms A] in respect of their children [Child 1] (born July 2000) and [Child 2] (born September 2001).  The child support assessment commenced on 19 December 2001 and ended on 18 September 2019.

2. From 28 May 2009 the child support assessment reflected Mr Hedrick as having 100 per cent care of [Child 1] and [Child 2] and [Ms A] as having 0 per cent care.

3. On 14 February 2019 the Child Support Agency notified Mr Hedrick that a potential change in care had been identified with Mr Hedrick providing 285 nights care and [Ms A] providing 80 nights care of [Child 1] and [Child 2] from 25 September 2009.

4. On 22 July 2019 the Child Support Agency made the decision to reflect that Mr Hedrick provides 79 per cent care of [Child 1] and [Child 2] and [Ms A] provides 21 per cent care from 30 October 2009 but effective from 11 May 2010.

5. On 23 August 2019 Mr Hedrick objected to this decision and on 13 November 2019 the Child Support Agency allowed the objection in part and made the decision that Mr Hedrick provides 79 per cent care of [Child 1] and [Child 2] and [Ms A] provides 21 per cent care from 11 May 2010 (the objection decision).

6. On 6 December 2019 Mr Hedrick applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 18 February 2020.  Mr Hedrick gave evidence on affirmation by conference telephone.  The Tribunal wrote to [Ms A] on 24 December 2019 inviting her to be added as a party to the application but she did not respond.  [Ms A] did not participate in the hearing.  The Child Support Agency provided the Tribunal and Mr Hedrick with papers relevant to the matter (331 pages).  The Tribunal also received additional information from Mr Hedrick (A1-A13).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).[1]

   [1] As it applied immediately before 1 July 2010

2. 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 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 determination take effect?

CONSIDERATION

1. Mr Hedrick told the Tribunal that care of [Child 1] and [Child 2] did not change in accordance with court orders handed down on 25 May 2009 as suggested by the Child Support Agency.  He said [Ms A] had not followed the care arrangements under the court orders.

2. Mr Hedrick said it was his view that care of the children should be based on actual care given [Ms A] had not adhered to the court orders.  Mr Hedrick pointed out that [Ms A] had not formally objected to any of the assessments issued by the Child Support Agency from 25 May 2009 onwards.  He said this indicated [Ms A] agreed the care was correct.

3. The Tribunal notes in evidence from the Child Support Agency a copy of court orders delivered by the Family Court of Australia on 25 May 2009.  The court orders state in relation to care that, not earlier than one month after the making of the orders, [Ms A] is to have supervised care for a minimum of two hours each day on two consecutive days in each month for three consecutive months.  Upon completion of the three-month period [Ms A] is to have care as follows:

   ·     during school term for two weekends each term (the second and eighth weekend) from Friday to Monday and for one weekend (the fifth weekend) from Saturday to Sunday; and

   ·     during school holidays from the last day of school until the final Wednesday of the holidays at the end of terms one and three and one half of the holidays at the end of term two and the Christmas holiday period.

4. Mr Hedrick told the Tribunal that [Ms A] did not fully complete the period of supervised care and it was at least five months after the court orders were handed down before she had any overnight care of [Child 1] and [Child 2].  Mr Hedrick said that [Ms A] did have some overnight care of the children but her care was erratic and unpredictable.  He said it was not more than 52 nights a year.  Mr Hedrick said because [Ms A] was required to travel to collect the children she would often just not turn up.  He added that he did not have any records of the actual care of [Child 1] and [Child 2] available as it was such a long time ago.

5. Although [Ms A] did not participate in the hearing the Tribunal notes she states in correspondence received by the Child Support Agency on 23 April 2019 that the court orders took effect from 28 May 2009.  [Ms A] also advises that the court orders were adhered to on all occasions with the exception of one weekend.

6. Section 48 of the Act defines a care period, the events that must occur in order to give effect to a change in the percentage of care and how to work out a percentage of care.  It relevantly states:

   Working out percentage of care

   (1)  A person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during the period (the care period) of 12 months from:

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

   (b)  if one of the following events occurs:

   (i)  there is a change of less than 7.1% in the percentage of care for the child that the person has because of an agreement, plan or order mentioned in paragraph 49(a) or (b) (including a variation of such an agreement, plan or order);

   (ii)  there is a change of at least 7.1% in the percentage of care for the child that the person has, and the change alters the person’s cost percentage for the child;

   (iii)  the person’s percentage of care for the child falls below 14%;

   (iv)  the person’s percentage of care for the child increases to 14%, or above 14%;

   (v)  the person’s percentage of care for the child falls below 35%;

   (vi)  the person’s percentage of care for the child increases to 35%, or above 35%;

   whichever of the following days is applicable:

   (vii)  if the Registrar is notified, or otherwise becomes aware, of the event within 28 days after the day on which the event occurs—the day on which the event occurs;

   (viii)  in any other case—the day on which the Registrar is notified, or otherwise becomes aware, of the event; or

   (c)  if the child is a relevant dependent child in respect of whom section 73A applies—the day specified in that section as the first day on which the parent is taken to have had the child.

   Note: The Registrar is not entitled to amend an administrative assessment in respect of a person’s percentage of care unless the Registrar becomes aware of an event mentioned in paragraph (1)(b) (see subsection 75(2)).

7. Section 49 of the Act provides that agreements, parenting plans and court orders may determine the percentage of care a parent is likely to have during a care period if such agreements, parenting plans and court orders allow such a percentage to be determined.

8. The Tribunal is satisfied the terms of the court order dated 25 May 2009 allow a percentage of care to be determined for the parents and the requirements of section 48 are met.

9. Mr Hedrick has told the Tribunal that the court orders dated 25 May 2009 were not followed by [Ms A] particularly in relation to the overnight care arrangements.  He believes care should be based on actual care and argues that [Ms A] did not have care of more than 52 nights a year.  [Ms A] did not participate in the hearing but told the Child Support Agency she adhered to the court orders except for one missed care event.

10. Mr Hedrick provided a persuasive and rational argument at hearing as to why [Ms A] had less than regular care of the children during the period under consideration.  There is no evidence to suggest [Ms A] raised ongoing concerns about her level of care despite the notices of assessment that were issued at the time. The Tribunal prefers the evidence of Mr Hedrick.

11. When establishing changes to percentages of care section 53 of the Act allows a determination to be made where a parent’s care falls below 14 per cent.  It states:

    (1)  The Registrar may determine the percentage (if any) of care of a child that a parent or non‑parent carer is likely to have during a care period if:

    (a)  a parent (the first parent) was to have at least regular care of the child during the relevant care period under an oral agreement, parenting plan or court order; and

    (b)  the first parent has no care, or has a pattern of care that is less than regular care, of the child despite the other parent or a non‑parent carer making the child available to the first parent; and

    (c)  the other parent or a non‑parent carer of the child applies for the determination.

    Note: If the Registrar refuses to make a determination under this section, the Registrar must give the applicant a notice under section 54.

    Day on which determination commences

    (2)  The determination must specify, in accordance with subsections (4) and (5), the first day in the child support period to which the determination is to apply.

    (3)  The determination applies to the day specified, and later days in the child support period.

    (4)  If the Registrar is satisfied that the other parent or the non‑parent carer who applied for the determination failed, within a reasonable period, to notify the Registrar that the first parent had no care, or less than regular care, of the child during the relevant care period, the day specified must be the day on which the determination is made.

    (5)  Otherwise, the day specified must be:

    (a)  if the first parent never established a pattern of care in accordance with the oral agreement, parenting plan or court order—the day on which the plan or court order was entered into or made; or

    (b)  if the first parent established a pattern of care in accordance with the oral agreement, parenting plan or court order, but later ceased the established pattern of care—the day on which the parent ceased the previously established pattern.

    (6)  To avoid doubt, a parent never establishes a pattern of care if:

    (a)  the parent could not have established the pattern of care until a particular period that occurs later in the child support period; and

    (b)  the parent does not establish that pattern during that particular period.

    (7)  The Registrar may revoke or vary a determination made under this section.

    Registrar to make determination under this section (and not interim determination)

    (8)  If the Registrar could make a determination under section 52 and this section in respect of the percentage of care for a child, the Registrar must make a determination under this section and not section 52.

12. The court orders dated 25 May 2009 provide for [Ms A] to have overnight care of 28 nights during school term and 52 nights during school holidays which equals 21 per cent care.  Mr Hedrick has stated [Ms A] had less than regular care of the children and there is no suggestion he was not making them available to [Ms A].  The Tribunal notes in evidence that Mr Hedrick raised his concerns about [Ms A] having “no pattern of regular care” in correspondence to the Child Support Agency dated 4 March 2019.  The Tribunal is satisfied this constitutes an application under section 53 of the Act and a determination can be made that [Ms A]’s care of the children fell below 14 per cent.

13. The Tribunal must also specify the day on which the determination under section 53 commences.  This depends on Mr Hedrick notifying the Child Support Agency within a reasonable period that [Ms A] had less than regular care of [Child 1] and [Child 2].  The court orders state [Ms A] was to have overnight care of the children upon “the completion of the three month period” which commenced not earlier “than one month after the making of these orders” on 25 May 2009.  Mr Hedrick has pointed out, however, that he was not aware the court orders would be used to determine care until he received correspondence from the Child Support Agency dated 14 February 2019 that a potential change in care had been identified.  The Tribunal has found Mr Hedrick notified the Child Support Agency that [Ms A] was having less than regular care in correspondence dated 4 March 2019.  This was less than three weeks after 14 February 2019.

14. The Tribunal finds, in the circumstances of this case, that Mr Hedrick applied within a reasonable timeframe and the determination under section 53 can be made on 28 May 2009 (the date the court orders were entered into).

15. The existing percentages of care reflected in the child support assessment were 100 per cent care to Mr Hedrick and 0 per cent care to [Ms A].  As the Tribunal has found [Ms A] had less than 14 per cent care from 28 May 2009 the Tribunal is satisfied there is no reason to amend the assessment.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides there was no change in the level of care from 11 May 2010.