Hilfiger and Hilfiger (Child support)

[2018] AATA 2230

Hilfiger and Hilfiger (Child support) [2018] AATA 2230 (24 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC013655

APPLICANT:  Ms  Hilfiger

OTHER PARTIES:  Child Support Registrar

Mr Hilfiger

TRIBUNAL:Member J Longo

DECISION DATE:  24 May 2018

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Hilfiger has a percentage of care of 16% for [Child 1] and [Child 2] and Ms Hilfiger has a percentage of care of 84% for [Child 1] and [Child 2] from 18 February 2015 with effect from 26 April 2017.

CATCHWORDS
Child support - Percentages of care - Court ordered care - Whether the actual pattern of care has changed - 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 Hilfiger and Ms Hilfiger are the parents of [Child 1] and [Child 2]. Mr Hilfiger is the parent liable to pay child support.

2.From 1 July 2010 the Department of Human Services – Child Support (the Department) had determined that Ms Hilfiger had a percentage of care of 100% for [Child 1] and [Child 2] and Mr Hilfiger had a percentage of care of 0%.

3.On 27 April 2017 Mr Hilfiger notified the Department that the care of [Child 1] and [Child 2] had changed. Mr Hilfiger stated that the children were in his care 16% of the time and that Ms Hilfiger had 84% care of the children from approximately February 2015.

4.On 10 October 2017 the Department decided to change the care determination to show that that Mr Hilfiger had a percentage of care of 16% for [Child 1] and [Child 2] and Ms Hilfiger had a percentage of care of 84% from 26 April 2017.

5.Ms Hilfiger disagreed with the decision and lodged an objection to the decision of the Department on 18 October 2017. On 12 February 2018, an objections officer decided to partly allow Ms Hilfiger’s objection and determined that Mr Hilfiger had 15% care of [Child 1] and [Child 2] and Ms Hilfiger had 85% care of [Child 1] and [Child 2] from 18 February 2015 with effect from 26 April 2017.

6.On 6 March 2018 Ms Hilfiger lodged an application to this tribunal for a review of the decision. The hearing took place on 26 April 2018. Mr Hilfiger and Ms Hilfiger spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department, which were also sent to Mr Hilfiger and Ms Hilfiger. Additional information provided by the parties to the tribunal was also exchanged.

CONSIDERATION

7.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child 1] and [Child 2]?

8.Mr Hilfiger stated that Court orders were made in relation to the care of [Child 1] and [Child 2] in February 2015. These orders, according to Mr Hilfiger, provided that the children would be in his care for two nights every fortnight during the school period and an extra six nights during the long school holiday break between December and January each year. Mr Hilfiger stated that the care arrangements occurred according to the court orders since they were agreed upon. Mr Hilfiger stated that there were approximately four occasions throughout 2016 and 2017 where [Child 2] went home on Saturday and did not stay the night due to having to complete homework. As he was not permitted to take his school laptop with him to his house, he went home early. In addition, Mr Hilfiger stated that [Child 2] also attended [co-curricular]  trips on the weekends in his care in 2015 and 2016. This happened a couple of times which he would drop him off and pick him up. There may have been a couple of other occasions where [Child 2] did not stay with him but the majority of the time he had care according to the court orders.

9.Mr Hilfiger stated that he did not keep any records of the days the children were in his care as he did not think it was necessary. He stated that he had spoken to child support in 2015 and 2016 about employment, his income increasing and the care arrangements. He was asked about whether there were any court orders in place and he advised them of the court orders. He thought the care arrangements had been taken into account but obviously they had not been applied.

10.Ms Hilfiger confirmed that [Child 1] had been in Mr Hilfiger’s care in accordance with the court orders since they were agreed but this was not the case for [Child 2]. She stated that [Child 2] started staying with Mr Hilfiger but from September 2015 he stopped staying on the Saturday. He did stay with Mr Hilfiger for a couple of days during the school holidays and on Father’s Day and Christmas Eve but did not stay for the six nights as was required under the court orders.

11.Ms Hilfiger stated that she kept a record of Mr Hilfiger’s care during the period because she did not trust Mr Hilfiger and felt that she had to keep track of everything. She stated that she kept a record at the time the care occurred and not subsequently and that this record was started when the Interim orders were made. In response to the tribunal’s question, Ms Hilfiger stated that she did not provide the Department with a copy of these records because Mr Hilfiger had not provided any records to the Department. Ms Hilfiger also presented statutory declarations and statements in support.

12.In regard to the records of the care provided by Mr Hilfiger that Ms Hilfiger provided to the tribunal, the tribunal is not satisfied that the records were contemporaneous at the time of the care. The record in September 2015 which describes when [Child 2] told his father that he wanted to go home because he was bored states that he went back to Ms Hilfiger’s home that Saturday afternoon. It then proceeds to state that “[Child 2] began coming home on alternate Saturdays anytime from 10:30 am to around noon pretty much from then on in.” It is clear from this statement that this is describing events after the period in question, which indicates that the records were not made at the time the events occurred but rather at a later date.

13.In addition, the information provided by Ms Hilfiger’s witnesses in support of her claims that Mr Hilfiger did not have care of [Child 2] on Saturday night are inconsistent and ambiguous with the records provided by Ms Hilfiger. While they state that [Child 2] was returning to Ms Hilfiger’s home on Saturday and not staying with Mr Hilfiger. One of the statutory declarations made by [Mr A], Mr and Ms Hilfiger’s eldest son (over 18 at time of the declaration), states that “for the last couple of years, [Child 2] , my brother, comes home on Saturdays from our dads”. The declaration was made on 8 May 2018. If the timing is correct, this would indicate that [Child 2] stopped staying at Mr Hilfiger’s house on Saturday evening from some time in 2016. This is after the period alleged by Ms Hilfiger. In response to the tribunal’s question regarding the inconsistency, Ms Hilfiger stated that her son has[a certain medical condition] and this explains the vagueness in the statement. The tribunal is of the view that the statements, due to their vagueness and lack specificity, do not assist.

14.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?

15.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children.

16.It is uncontroversial that Mr Hilfiger’s care of [Child 1] does not correspond with the existing care as determined by the Department. Mr Hilfiger’s care percentage for [Child 1] was 0% from 1 July 2010. Therefore, paragraph 54F(1)(a) of the Act is satisfied in relation to [Child 1]. Both Mr Hilfiger and Ms Hilfiger confirm that Mr Hilfiger had a percentage of care for [Child 1] of 16% and that Ms Hilfiger had a percentage of care of 84% for [Child 1]. Therefore, paragraph 54F(1)(c) of the Act is satisfied.

17.In regard to [Child 2], Mr Hilfiger notified the Department on 26 April 2017 that the care that was taking place for [Child 2] did not correspond with the existing percentage of care as determined from 1 July 2010. He stated that he had a care percentage for [Child 2] of 16% and that Ms Hilfiger had a care percentage of 84% from February 2015, based on the court orders made at the time, which was higher than the care percentage recorded by the Department at the time. Mr Hilfiger did not keep any records of his care of [Child 2] during this period. Ms Hilfiger provided records of what she stated was Mr Hilfiger’s care during the period, stating that he had one night per fortnight (26 nights) care of [Child 2] during the period. While the tribunal does not accept this evidence, it cannot rely on Mr Hilfiger’s evidence of the care for [Child 2] during this period.

18.While both Mr Hilfiger and Ms Hilfiger confirmed that the orders made provided Mr Hilfiger with two nights per fortnight of care for [Child 2] and six nights during school holidays, there is nothing in the evidence which can be relied upon to be satisfied that care was occurring in accordance with the court orders. While Mr Hilfiger states that the orders were being complied with and occurring, no other evidence, apart from his statement to this effect was presented. Ms Hilfiger stated that the care was not in accordance with the court orders but the tribunal has not accepted this evidence.

19.The Act also requires that there would be a change in the cost percentage if another percentage of care were determined for Mr Hilfiger under section 50 of the Act. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. “Actual care” may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

20.The tribunal is required to consider what the actual care Mr Hilfiger and Ms Hilfiger have had or are likely to have of [Child 1] and [Child 2] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate in this matter. In this case the Department determined that the care period should start on 18 February 2015. However, Mr Hilfiger did not contact the Department until 26 April 2017. In the absence of other evidence, the tribunal determines that on the balance of probabilities the care Mr Hilfiger and Ms Hilfiger were providing was as stated in the court orders made on 18 February 2015.

21.The tribunal has determined that the care for Mr Hilfiger and Ms Hilfiger accords with the determination of care under the court order. There was a change to the care which meant Mr Hilfiger had the children for a higher percentage of care than was being used by the Department. The care period usually commences from the date the care changed, in this matter this date was 18 February 2015. The tribunal has determined that the care period should commence from this date.

22.The tribunal has determined that Mr Hilfiger had 14% care of [Child 1] and [Child 2] and Ms Hilfiger had 84% care from 18 February 2015. As the tribunal has concluded that Mr Hilfiger’s and Ms Hilfiger’s care percentages were not the same as their determined care percentages and their cost percentages would change if new determinations were to be made, paragraph 54F(1)(d) of the Act is satisfied and as section 54G does not apply (paragraph 54F(1)(e)), the tribunal must revoke the existing determinations of percentages of care from 25 April 2017, the day before Mr Hilfiger contacted the Department and make a new determination of care from 26 April 2017.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Hilfiger has a percentage of care of 16% for [Child 1] and [Child 2] and Ms Hilfiger has a percentage of care of 84% for [Child 1] and [Child 2] from 18 February 2015 with effect from 26 April 2017.