Hilliam and Hilliam (Child support)

[2021] AATA 5031

Hilliam and Hilliam (Child support) [2021] AATA 5031 (17 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC022233

APPLICANT:  Mr Hilliam

OTHER PARTIES:  Child Support Registrar

Ms Hilliam

TRIBUNAL:Member H Moreland

DECISION DATE:  17 November 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Mr Hilliam had a care percentage of 52% and Ms Hilliam had a care percentage of 48% for [Child 1] from 26 December 2020.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – disputed care levels – new determinations made – 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. Mr Hilliam and Ms Hilliam are the parents of [Child 1]. On 1 February 2021, Mr Hilliam made an initial contact to Services Australia – Child Support (Child Support) and informed them that the care of [Child 1] had changed to shared care.[1] According to Child Support’s records, when Child Support contacted Ms Hilliam with a letter advising of a potential change in care decision that would reflect Mr Hilliam and Ms Hilliam each have 50% care of [Child 1],[2] Ms Hilliam contacted Child Support to inform them that she disagreed with this potential change in care decision.[3] Child Support’s records show that Ms Hilliam said that there had been a change in care but that [Child 1] was in his father’s care at that time because of the Western Australia COVID-19 lockdown and that the care had changed but that the change was that [Child 1] would go from being 100% in her care to him being in the care of his father every Friday and Saturday night (104 nights per year).[4]

   [1] Child Support papers, p 29.

   [2] Child Support papers, p 31.

   [3] Child Support papers, p 32.

   [4] Child Support papers, p 32.

2. On 15 April 2021, Child Support decided, based on the evidence before it, to change the care to reflect [Child 1] being in Mr Hilliam’s care for 50% of the time and Ms Hilliam’s care for 50% of the time. On 13 May 2021, Mr Hilliam objected to this decision. On 10 August 2021, an objections officer, disallowed the objection.[5]

   [5] Child Support papers, p 10.

3. On 7 September 2021, Mr Hilliam asked the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. The tribunal held a hearing on 17 November 2021. Mr Hilliam participated in the hearing via conference telephone and gave sworn evidence. Ms Hilliam also participated in the hearing via conference telephone and gave sworn evidence. The tribunal notes that during the hearing, after Mr Hilliam and Ms Hilliam had each given evidence, Mr Hilliam became unresponsive, he could be heard snoring and the tribunal was unable to rouse him. The tribunal concluded that it had collected sufficient evidence from Mr Hilliam and Ms Hilliam, by that point, to make its decision. In making its decision, the tribunal also took into consideration the documents provided by Child Support (286 pages), which were also sent to Mr Hilliam and Ms Hilliam.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

What is the care of [Child 1]?

1. Mr Hilliam told the tribunal that there is no court order or parenting plan in relation to the care of [Child 1]. He said that he wanted recognition that he had a care percentage of 100% for [Child 1] for 5-6 weeks from Boxing Day onwards. The tribunal notes that Mr Hilliam provided a calendar showing the nights he recalled having [Child 1] in his care to Child Support. The tribunal however is not satisfied as to its accuracy, particularly as the calendar shows that [Child 1] was with him on 11 and 12 January 2021,[6] when it is not in dispute that [Child 1] was with Ms Hilliam on 11 January 2021, to prepare for an early trip to [Location 1] on 12 January 2021.

   [6] Child Support papers, p 134.

2. Ms Hilliam told the tribunal that Mr Hilliam returned to Western Australia in December 2020, after living in [another state]. She said that prior to Mr Hilliam returning to Western Australia, she had a care percentage of 100% for [Child 1]. Ms Hilliam said that [Child 1] was very excited about his father returning to Western Australia and wanted to stay with Mr Hilliam and help him settle into his new home. Ms Hilliam said there was no agreement as to how long [Child 1] was to stay with Mr Hilliam and that [Child 1’s] visit extended from days to weeks. She said that [Child 1] was with Mr Hilliam for that period (except for the night of 6 January 2021 when he stayed with a friend) until 11 January 2021, the night before Ms Hilliam took [Child 1] and his [sibling] to [Location 1] on 12 January 2021. Mrs Hilliam said they returned from [Location 1] on 20 January 2021 and [Child 1] then stayed with Mr Hilliam from then until 1 February 2021. The tribunal finds that for January 2021, [Child 1] was in the care of Mr Hilliam for the period from 1 January 2021 until 11 January 2021 (including the night he was at his friend’s house); was in the care of Ms Hilliam from 11 January 2021 until 20 January 2021; and was in the care of Mr Hilliam for the remainder of January 2021. This means that for January 2021, Mr Hilliam had 22 nights of care, and Ms Hilliam had 9 nights of care.

3. Ms Hilliam said that due to the lockdown in Western Australia, [Child 1] spent additional time with Mr Hilliam in February 2021. As shown in the calendar Ms Hilliam provided to the tribunal, in February 2021, Mr Hilliam had care of [Child 1] for 14 nights and Ms Hilliam had care of [Child 1] for 14 nights. The tribunal accepts Ms Hilliam’s calendar as an accurate representation of the care of [Child 1] in February 2021.

4. Ms Hilliam said that from the time that [Child 1] returned from his extended stay with Mr Hilliam in February (7 February 2021) onwards, [Child 1] gradually built up his nights with Mr Hilliam. She said initially [Child 1] was with Mr Hilliam generally on Friday and Saturday nights for three to four weeks. And then, when [Child 1] wanted to increase the visits to three nights per week, he did so from the end of March until a month later when he increased his nights at Mr Hilliam’s home to four nights per week. Ms Hilliam said that since 18 October 2021, they had a 50:50 arrangement which [Child 1] manages himself, dividing his time between Mr Hilliam’s home and Ms Hilliam’s home.

5. The tribunal concludes that based on this increasing pattern of care, [Child 1] was with Mr Hilliam for the four weekends in March 2021 (8 nights); then for four nights per week from April 2021 to September 2021 (around 16 nights per month). This also likely applied for the period from 1 October 2021 to 18 October 2021 (three weeks of four nights, so 12 nights). And then the care was shared equally between Mr Hilliam and Ms Hilliam from 18 October 2021 onwards. This means for October 2021, the tribunal concludes that the likely care was that [Child 1] was with Mr Hilliam for 18 nights and Ms Hilliam for 13 nights.

10.The tribunal concludes that the care of [Child 1] changed from 26 December 2020 onwards and summarises the care (actual and anticipated for the following 12-month period) as follows:

Nights	Mr Hilliam	Ms Hilliam
26-31 December	6	6	0
January	31	22	9
February[7]	28	14	14
March	31	8	23
April	30	16	14
May	31	16	15
June	30	16	14
July	31	16	15
August	31	16	15
September	30	16	14
October	31	18	13
November	30	15	15
1-25 December	25	12.5	12.5
191.5	173.5

[7] As per calendar provided by Ms Hilliam (page 65 of the Child Support papers).

11.The tribunal acknowledges that it will not be possible for [Child 1] to be in two places at once, so the 12.5 nights each in December 2021 is artificial but finds this is the fairest way to determine the care for [Child 1] in December 2021, particularly as the care is being managed at [Child 1’s] will.

12.The tribunal concludes that the care for [Child 1] from 26 December 2020 is that Mr Hilliam had a care percentage of 52% and Ms Hilliam had a care percentage of 48%.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Hilliam had a care percentage of 52% and Ms Hilliam had a care percentage of 48% for [Child 1] from 26 December 2020.