Hill and Keppel (Child support)

[2020] AATA 5099

Hill and Keppel (Child support) [2020] AATA 5099 (9 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC019528

APPLICANT:  Mr Hill

OTHER PARTIES:  Child Support Registrar

Ms Keppel

TRIBUNAL:Member P Sperling

DECISION DATE:  9 September 2020

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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 Hill and Ms Keppel are the parents of [Child 1], [Child 2] and [Child 3] (the children). Mr Hill is the parent liable to pay child support.

2. On 3 March 2020, Services Australia – Child Support (the Department) determined that Ms Keppel had a percentage of care of 51% for the children and Mr Hill had a percentage of care of 49% from 1 June 2019, with effect from 6 January 2020.

3. On 20 March 2020 Ms Keppel lodged an objection to the above care decision of the Department, stating that Mr Hill had care of the children two nights per week and she had care of the children for the remainder of the week.   

4. On 3 July 2020 the Department allowed the objection, determining that Ms Keppel had 72% care and Mr Hill had 28% care of the children from 1 June 2019, with effect from 6 January 2020.

5. On 24 July 2020 Mr Hill lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 9 September 2020. Mr Hill and Ms Keppel participated in the hearing 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 Ms Keppel and Mr Hill.

CONSIDERATION

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

What was the care of the children from 1 June 2019?

1. It is not in dispute that Ms Keppel applied to the Department on 6 January 2020 to register her application for child support. Ms Keppel advised in the application that she had 70% care of the children and Mr Hill had 30% care of the children from 1 January 2017.  On 30 January 2020 Mr Hill advised Centrelink that both parents were having care of the children 7 nights per fortnight, or 50% care for each parent, from 1 June 2019.

2. The Department granted an administrative assessment and decided to reflect the care of the children as 51% to Ms Keppel and 49% to Mr Hill from 1 June 2019, with effect from 6 January 2020.

3. On 20 March 2020 Ms Keppel lodged an objection to the initial care decision of the Department maintaining, as per her original application, that Mr Hill only had care of the children on Friday and Saturday nights (two nights per week). On 3 July 2020 the Department allowed the objection, determining that Ms Keppel had 72% care (five nights) and Mr Hill had 28% care (two nights) of the children from 1 June 2019, with effect from 6 January 2020.

10.Mr Hill has now requested a review of this decision by the Department’s objections officer.

11.During discussions with the Department Mr Hill and Ms Keppel confirmed that there were no formal care arrangements in place for the children: no court order or parenting plan.

12.During the hearing Mr Hill told the tribunal that the arrangements entered into by the parties were based on a verbal agreement they made when he came back to live in Perth from Sydney. He said that he returned to Perth on the clear understanding that he would have care of the children on Friday and Saturday nights each week and that he would be responsible for their after school activities which would entail them staying with him at least one additional night each week. He said that he would not have moved back from Sydney if his care had been any less than this. He stated that he regularly had care every Friday and Saturday night and that he had some additional care during school holidays, including in December 2019 and January 2020 when Ms Keppel was overseas. He also stated that since the beginning of the school year in most weeks he has also had at least one additional night of care and sometimes more than this. He considers that “on average” this equates to about three nights of care across the course of the year. On this basis he maintains that it would be “fair” to record him as having 40% care and Ms Keppel as having 60% care of the children.

13.The tribunal noted that on 22 May 2020 Mr Hill provided the Department with a calendar showing his record of care in December 2019, January 2020, February 2020 and April 2020. Mr Hill said that this calendar was correct except for the period 26 January 2020 to 29 January 2020 in which he accepted Ms Keppel’s evidence that the children were in the care of one of her friends and not with him.

14.When asked, Mr Hill acknowledged that when they first separated he and Ms Keppel had agreed that he would have 30% care and Ms Keppel would have 70% care and later they agreed 50% care for each of them. However, when he returned from interstate he genuinely believed that they had an agreement that he would have care of the children at least three nights per week.

15.He said that a retrospective analysis of the period December 2019 to April 2020, based on the calendar that he provided, shows that he had the children in his care for at least three nights per week over this period – every Friday and Saturday night plus an additional night following one of the children’s after school activities on a weekday. He also noted that he had more care of the children during the December/January 2020 period because Ms Keppel was overseas for some of this period.

16.Mr Hill concluded that, on the basis of the actual care that occurred, as set out in his calendars, it is appropriate to record his care as at least 42% because he has been caring for the children for an average of three nights per week on a regular basis.

17.Mr Hill also confirmed that there was no particular arrangement for school holidays, which he said were a bit more flexible, but generally he is prepared to accept that he has had the children in his care for an average of three nights per week over the course of the whole year.

18.During the hearing Ms Keppel told the tribunal that she never entered into any formal agreement, verbal or otherwise, with Mr Hill regarding the percentage of care of the children. She said that she accepted that Mr Hill would have the children on Friday and Saturday nights and that he had some additional ad hoc nights of care during December/January 2020 while she was overseas. But she maintained that at the time she made her application for child support she considered that the period January 2020 to April 2020 would be a “transition period” and that the only agreed routine for this period was that Mr Hill would have care on Friday and Saturday nights and the children would be with her most of the rest of the time.

19.In addition, Ms Keppel told the tribunal that she would not have agreed that Mr Hill would have 40% care of the children because she didn’t ever want the children to be away from her for three nights in a row. Further, she stated that she wanted the children to have an established routine during the school week which meant that they would stay with her. She acknowledged that the children did end up staying with Mr Hill for some extra nights during this period but she said that these arrangements had been spontaneous and ad hoc rather than any ongoing agreed pattern of care.

20.Ms Keppel advised that she did not keep any records of her care of the children during this period and disputed Mr Hill’s calendar record in respect of the end of January (when she said that her friend was caring for the children) and the April calendar (which she said incorrectly showed that Mr Hill had care of the children for multiple nights which she would not have agreed to).

21.Ms Keppel also advised that from May 2020 their daughter has had very little, if any, overnight care with Mr Hill. In response Mr Hill accepted this observation but noted that at the same time he had had more care of their two sons in some weeks since May 2020. He said that this is why he is prepared to accept an average of three nights per week for all of the children across the course of the year.

22.It is not in dispute that Ms Keppel applied for an administrative assessment of child support on 6 January 2020, which was granted by the Department on 3 March 2020. The tribunal is satisfied that Ms Keppel meets the requirements under the Act for her application for an administrative assessment of child support to be granted. In determining the particulars of the administrative assessment, the Department must make a determination in relation to the level of care of a child (or children), which is the subject of the application.

23.Section 50 of the Act requires a determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. In Ms Keppel’s application, she stated care of the children was intended to be 70% for Ms Keppel and 30% for Mr Hill. When contacted by the Department Mr Hill acknowledged that this had been the original agreement but that care had subsequently changed to seven nights per fortnight for each parent from 1 June 2019. Mr Hill is now maintaining that care of the children from the date of Ms Keppel’s application is 60% for Ms Keppel and 40% for himself on the basis that he will have an average of three nights of care per week over the course of the year. On the other hand Ms Keppel continues to maintain that at the time of her application the only concrete agreement between the parties about care of the children was that Mr Hill would have care on Friday and Saturday nights.

24.The tribunal is required to determine the intended pattern of care at the time of the application however, in this case, there is no agreement between the parties about the intended care of the children at the time of Ms Keppel’s application. On the basis of evidence from both parties and taking into account the point of agreement between both parties, the tribunal finds that the care of the children was intended to be at least Friday and Saturday nights for Mr Hill. While a retrospective analysis of care based on Mr Hill’s care calendars suggests that subsequently he may have had more care of the children than this[1], the tribunal is not satisfied that there was any ongoing agreement about additional nights of care for Mr Hill at the time of Ms Keppel’s application.

[1] The tribunal notes that some of the care as recorded in Mr Hill’s calendar is disputed by Ms Keppel.

25.As there is no agreement beyond the fact that the parties had agreed at the time to two nights of care per week for Mr Hill, the tribunal determines that in respect of the commencement of Ms Keppel’s original application the care was two nights per week, or 28% care, for Mr Hill and five nights per week, or 72% care, for Ms Keppel. The tribunal notes that this is consistent with the decision of the objections officer.

26.Finally, as noted previously, Mr Hill’s calendars suggest that his actual care during the subsequent months may have been more than 28%. In this case the tribunal has decided that there is only evidence to support agreement between the parties at the time of Ms Keppel’s application that Mr Hill would have two nights of care per week on an ongoing basis. If the care of the children was ultimately not as intended at the time Ms Keppel’s application was made, a further application for a change in care can be made to the Department and a new determination could be made, if the Department is so satisfied, from the date such a change is notified. However, it is not open to the tribunal to make such a further determination of care in this review as this decision is not before the tribunal.

27.In the circumstances of this application, the tribunal has determined that the decision of the objections officer is correct and therefore the tribunal affirms the decision under review.

DECISION

The tribunal affirms the decision under review.