Hinchcliffe and Hinchcliffe (Child support)

[2019] AATA 5940

Hinchcliffe and Hinchcliffe (Child support) [2019] AATA 5940 (13 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017396

APPLICANT:  Mr Hinchcliffe

OTHER PARTIES:  Ms Hinchcliffe

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  13 December 2019

DECISION:

The decision under review is set aside and, in substitution, Mr Hinchcliffe is recorded as providing 50% care to [Child 1] and [Child 2] with effect from 1 December 2018, and Ms Hinchcliffe is recorded as providing 50% care to [Child 1] and [Child 2] with effect from 15 February 2019.

CATCHWORDS
CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and 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 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

1. Mr Hinchcliffe and Ms Hinchcliffe are the parents of [Child 1] and [Child 2]. In 2012 a child support case was registered with the Department of Human Services – Child Support (“the CSA”). From December 2017, Mr Hinchcliffe was recorded as providing 68%
    care and Ms Hinchcliffe was recorded as providing 32% care to both children.

2. On 15 February 2019, Ms Hinchcliffe informed the CSA of a change in care from 1 December 2018. On 27 February 2019, Ms Hinchcliffe contacted the CSA and once again informed it of the change in care. On 17 May 2019 an original decision-maker incorrectly concluded that the CSA was first informed of the change in care on 27 February 2019. The original decision-maker made the following decisions:

   ·   Mr Hinchcliffe is recorded as providing 39% care to [Child 1] with effect from 1 December 2018, and Ms Hinchcliffe is recorded as providing 61% care to [Child 1] with effect from 27 February 2019; and

   ·   Mr Hinchcliffe is recorded as providing 54% care to [Child 2] with effect from 1 December 2018, and Ms Hinchcliffe is recorded as providing 46% care to [Child 2] with effect from 27 February 2019.

3. Mr Hinchcliffe promptly objected to that decision. An objections officer disallowed his objection. Mr Hinchcliffe promptly applied to the Tribunal for further review. I heard the matter on 13 December 2019. Mr Hinchcliffe and Ms Hinchcliffe gave sworn evidence by conference phone.

4. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Broadly speaking, decision-makers are required to determine the pattern of care the parents have been providing, and are likely to provide: section 50 of the Act. Mr Hinchcliffe explained that he was often required to work away from home, which affected his ability to provide a regular pattern of care. Ms Hinchcliffe said she was consequently often required to provide care at short notice. At different times, both parents told the CSA that there was no pattern of care.

5. Both parents kept records of their provision of care. There are discrepancies between the parents’ records. The original decision-maker and the objections officer considered Ms Hinchcliffe’s records to be the more reliable evidence, and they calculated the parents’ percentages of care accordingly.

6. Ms Hinchcliffe provided two statements from her partner, [Mr A], who corroborated her account of events. At the hearing, Ms Hinchcliffe acknowledged that her partner did not live with her and he did not keep an independent record of her provision of care. She explained that the CSA had suggested that she obtain statements from third parties who could corroborate her account of events, and, in a general way, [Mr A] was able to do so. Ms Hinchcliffe also provided a statement from a friend, [named], who confirmed Ms Hinchcliffe’s provision of care on particular nights, including 15, 16 and 17 March 2019. According to Ms Hinchcliffe’s own records, she did not provide care on 16 and 17 March 2019. At the hearing, Ms Hinchcliffe said that omission by her must have been an oversight.

7. Mr Hinchcliffe stated that he kept contemporaneous records of the parents’ care of the children and he emailed his records to Ms Hinchcliffe every month or so, thereby allowing her the opportunity to relatively quickly identify any night of care that was in dispute. Ms Hinchcliffe stated that she received Mr Hinchcliffe’s emails but she did not check them. Nevertheless, the fact that Mr Hinchcliffe was keeping records and with a view to regularly providing Ms Hinchcliffe with a copy of his records was likely to cause him to pay particular attention to the accuracy of his records.

8. Mr Hinchcliffe correctly stated in his written submissions that the greatest discrepancy in the parents’ recorded care was in respect of January 2019. He explained that he therefore focused on providing objective evidence in respect of the parents’ care during that month. He provided Google Maps records of his travels on 12 January 2019, and photos of the children with time and date stamps for 13, 15, 16 and 25 January 2019. Ms Hinchcliffe very fairly acknowledged that that evidence supported Mr Hinchcliffe’s records of his provision of care, and cast doubt on her own records of her provision of care.

9. I am required to make findings of fact on the balance of probabilities, and on that basis, I find that Mr Hinchcliffe’s records of his provision of care from December 2018 to April 2019 are the more reliable evidence on point. According to those records, Mr Hinchcliffe’s provision of care to [Child 1] during those five months equated to 35%, 74%, 43%, 42% and 60%, and averaged 51%, and his provision of care to [Child 2] during those five months equated to 42%, 74%, 64%, 71% and 60%, and averaged 63%. As is apparent from those percentages, the parents’ provision of care fluctuated significantly from month to month.

10. After Ms Hinchcliffe very fairly acknowledged the probative value of Mr Hinchcliffe’s Google Maps and photographic evidence, Mr Hinchcliffe very fairly acknowledged that the five-month period referred to above was only a sample of a broader picture. He suggested that when Ms Hinchcliffe reported the change in care, the parents’ likely pattern of care from 1 December 2018 would have been fairly reflected in each parent being recorded as providing 50% care to each child. Ms Hinchcliffe agreed with that submission. I note that when Ms Hinchcliffe originally informed the CSA of the change in care, she informed it that each parent was providing 50% care to each child, and was likely to continue to do so. Mr Hinchcliffe and Ms Hinchcliffe are obviously best placed to give evidence of what they had expected their general pattern of care to be, and I accept their evidence on that issue. I find that when Ms Hinchcliffe reported the change in care from 1 December 2018, each parent had been providing, and was likely to continue to provide, a general pattern of care to each child that equated to 50% care.

11. Neither parent reported the change in care within 28 days of its occurrence. Mr Hinchcliffe’s reduced percentages of care therefore take evidence from when the change in care occurred, i.e. 1 December 2018, and Ms Hinchcliffe’s increased percentages of care take effect from when she reported the change in care, i.e. 15 February 2019: sections 54B and 54F of the Act.

DECISION

The decision under review is set aside and, in substitution, Mr Hinchcliffe is recorded as providing 50% care to [Child 1] and [Child 2] with effect from 1 December 2018, and Ms Hinchcliffe is recorded as providing 50% care to [Child 1] and [Child 2] with effect from 15 February 2019.