Hoffman and Child Support Registrar (Child support)

[2019] AATA 5504

Hoffman and Child Support Registrar (Child support) [2019] AATA 5504 (17 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2019/MC017006

2019/MC017067

APPLICANT:  Mr Hoffman

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member A Schiwy

DECISION DATE:  17 October 2019

DECISION:

2019/MC017006:  The tribunal affirms the objections officer’s decision; that is, Mr Hoffman had 100% care of [Child 1] from 21 February 2019.  (The date of effect decision is considered in case 2019/MC017097 – separate notice of decision.)

2019/MC017067:  The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care for [Child 2] and [Child 3] on 13 May 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly revoked and new determinations made – decision under review affirmed

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – existing percentage of care determinations should not be revoked – 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 Hoffman and [Ms A] are the separated parents of four children.  These applications for review are about the respective percentages of care that each parent has for three of the children.

2. The Department of Human Services (‘Child Support’) had determined that [Ms A] had 84% care of the children and Mr Hoffman had 16% care. 

3. Commencing in February 2019 there have been changes in the care arrangements.  A timeline setting out what has occurred is set out below. 

4. On 15 July 2019 there were three objection decisions made about the care arrangements – details are provided in the ‘timeline’.

5. On 25 July 2019 Mr Hoffman applied to this tribunal for an independent review of the objections officer’s decisions.

6. [Ms A] was invited to be added as a party.  [Ms A] did not want to be an added party and made it very clear that she did not want to be involved in the process at all.

7. A hearing into the applications for review was held by the tribunal on 17 October 2019 in Hobart.  Mr Hoffman participated in the hearing by conference telephone and gave evidence under affirmation during the hearing.    

8. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975. The documents were exchanged with Mr Hoffman prior to the hearing. 

TIMELINE OF EVENTS

1. The following sets out the history of events in this case:

   ·The parents have four children:

   o[Child 2] 15 years old

   o[Child 1] 14 years old

   o[Child 3] 11 years old

   o[Child 4] 9 years old

   ·The child support case was registered in February 2010.

   ·In 2011 Child Support determined that [Ms A] had 86% care of the children and Mr Hoffman had 14% care.

   ·Court orders issued in 2013 stating that the children were to live with their mother and Mr Hoffman was to have care of them for three nights every second weekend; have them for dinner each Tuesday; and for the holidays as agreed between the parents.

   ·On 8 March 2019 Mr Hoffman contacted Child Support to state that he had 100% care of [Child 1] from 21 February 2019.

   ·On 6 April 2019 Child Support decided that from 21 February 2019 there was a change in care for [Child 1]; Mr Hoffman had 86% care and [Ms A] had 14% care (‘OD1’).

   ·On 6 June 2019 Mr Hoffman applied for a change of care for [Child 4], stating he had 100% care from 2 June 2019.

   ·On 13 June 2019 [Ms A] contacted Child Support stating that she had 100% care of [Child 2] and [Child 3] from 13 May 2019.

   ·On 13 June 2019 Child Support decided that Mr Hoffman had 86% care of [Child 4] from 2 June 2019 and [Ms A] had 14% care (‘OD2’).

   ·On 14 June 2019 Child Support decided there had been a change in care for [Child 2] and [Child 3] and that [Ms A] had 100% care of the two children from 13 May 2019 (‘OD3’).

   ·On 14 June 2019 Mr Hoffman objected to OD1, stating he had 100% care of [Child 1] from 21 February 2019.  He said he objected out of time because he was wary of [Ms A’s] response if he objected.

   ·On 14 June 2019 Mr Hoffman objected to OD2, stating that he had 100% care of [Child 4].

   ·On 14 June 2019 Mr Hoffman objected to OD3, stating he had missed some weekends but had made up for this with additional holiday care.

   ·On 15 July 2019 Child Support made a decision on the objection to OD1.  The decision was that Mr Hoffman had 100% care of [Child 1] but the date of effect of the decision was 14 June 2019 as Mr Hoffman lodged his objection more than 28 days after the original decision and there were no special circumstances preventing him from lodging the objection on time.

   ·On 15 July 2019 Child Support allowed the objection to OD2 and decided that Mr Hoffman had 100% care of [Child 4] from 2 June 2019.

   ·On 15 July 2019 Child Support disallowed the objection to OD3.

2. The applications for review are as follows:

   ·     2019/MC017006 and 2019/MC017097 for the care percentage decision and date of effect decision relating to the care of [Child 1].  A separate decision has issued for MC017097 as [Ms A] is a party to that decision.

   ·     2019/MC017067 for the care percentage decision for [Child 2] and [Child 3].

EVIDENCE

1. Mr Hoffman stated the following:

   ·The 2013 court orders were being followed with the parents agreeing to sharing the holidays 50/50.

   ·In 2015, due to [Ms A] moving to a residence in [a town], approximately one hour’s drive from Mr Hoffman’s residence in [a city], Mr Hoffman reduced his fortnightly care to two nights to allow [Ms A] to pick them up on Sunday nights.

   ·The school holidays were shared half and half with a few days changed here and there.  He would sometimes have the children for more than half of the holidays.

   ·This arrangement continued until February 2019.

   ·Communication between the parents is very difficult and direct communication is practically non-existent.

   ·On 21 February 2019 [Child 1] had a falling out with her mother and came to live with him.  She has been with him ever since.  For the first couple of months she did not see her mother at all and then she started having the odd night here and there, predominantly so she could see her friends and often having sleepovers with the friends.  He does not know how many nights she has spent with [Ms A] but it is just an ‘odd night here and there’.  There has been no communication with [Ms A] about a change in care.

   ·The eldest child, [Child 2], started missing the odd weekend with him here and there.  He asserts this is because [Ms A] would make derogatory comments to [Child 2] and she would take her mother’s side, get angry with him and refuse to stay the weekend.  This happened on a few occasions but there was no permanent change in the care arrangements.  At the time Child Support made their decision to change the care for [Child 2] she had only missed a couple of weekends. [Child 2] would still stay with him for the holidays.  [Child 2’s] attitude towards him has since changed after she had an altercation with her mother.  Mr Hoffman said that [Child 2] had told him that her mother had kicked her out.  [Child 2] asked to move in with him and he agreed to this.  He was not clear when this occurred but since then, [Child 2] has only stayed with her mother a few times and similar to [Child 1]; this is usually so that she can see her friends. There has been no communication with [Ms A] about a change in care.

   ·He believes [Ms A] has made [Child 3] feel sorry for her and ‘guilted’ him into staying with her and rewarding him (for example, by taking him shopping) for not staying with Mr Hoffman.  He had [Child 3] for more than half of the Easter holidays but since then the care has changed.  [Child 3] started missing some weekends.    He said [Child 3] has been having less time with Mr Hoffman; he would have dinner with him on Tuesdays but no longer does this. 

   ·On 2 June 2019 [Child 4] commenced living with him.  On 6 June 2019 [Child 4] was enrolled at a school near Mr Hoffman (evidence provided). On 12 June 2019 Mr Hoffman sought assistance from Children and Family Services in relation to [Child 4] wanting to live with him (evidence provided).  [Child 4] had been living with him for three months and then one day he went to pick [Child 4] up from school and found that [Ms A] had taken him from school.  He has not tried to get [Child 4] to return because of the possible negative impact on [Child 4].

   ·Since February 2019 he has tried to have mediation with [Ms A] (evidence was provided of his registration for mediation through the Family Relationship Centre) but she has refused to participate.  He has also tried to arrange for counselling for the children.  He has not pushed things as he feels this is detrimental for the children.

2. The following information was obtained from Child Support’s records of contact with Ms [Ms A]:

   ·On 18 March 2019 she confirmed that a change with [Child 1] occurred on 21 February 2019.  She said that she had [Child 1] in her care every weekend since then while it was being sorted out (22 and 23 February; 1 and 2 March; 15 and 16 March).  She missed 8 and 9 March as [Child 1] went on a trip with Mr Hoffman. She was hopeful at that point in time to have [Child 1] on a fortnightly basis.

   ·Child Support rang Mr Hoffman on 6 April 2019 as a result of the call with [Ms A] on 18 March 2019 and he said that up until the weekend (just past) [Child 1] had not spent any time with her mother but he agreed to go along with care being 86/14%.

   ·On 13 July 2019 [Ms A] contacted Child Support and said that [Child 4] had spent half of the holidays with her and would continue to have every second fortnight with her into the future.

3. A letter from [a person] ([Ms A’s] partner) dated 26 June 2019 states that [Child 2] and [Child 3] have been living full time with him and [Ms A] (no time frame given) and the other children have spent most of the time with Mr Hoffman.

4. Evidence was provided of enrolment of [Child 1] at [a school] on 26 February 2019 and [Child 4] at [another school] on 6 June 2019.

5. The parents have not submitted that they have taken any action to have the court orders enforced.

ISSUES

1. The Child Support (Assessment) Act 1989 (the Assessment Act) provides for an administrative assessment of the child support payable by one parent to the other. It uses a statutory formula, which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care.

2. The Assessment Act contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Assessment Act. Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver. That determination remains in force until it is revoked. If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones. The dates of effect of the revocations and therefore also of the new determinations depend on the date of the change and sometimes on whether the parent notified the Registrar within a reasonable time.

3. The issues to be considered by the tribunal are:

   ·      Should the existing determinations of percentage of care be revoked? If so, from when should they be revoked?

   ·      Should new determinations of a percentage of care be made? If so, what is the percentage of care under the new determinations? From when should they apply?

CONSIDERATION

2019/MC017006 – care of [Child 1]

1. The reason there is an application by Mr Hoffman for review of the care percentage decision is because the objection decision is difficult to understand.  The objections officer states that they have allowed Mr Hoffman’s objection which implies that they agreed Mr Hoffman had 100% care from 21 February 2019.  The objections officer also decided that there are no special circumstances to support a date of effect prior to the date the objection was lodged (again implying that they agreed Mr Hoffman had 100% care from 21 February 2019).  But the objections officer also states that a new care determination was made from 14 June 2019; implying that they had decided care was 86/14% up until then.

2. Given that the objections officer considered the ‘date of effect’, the tribunal was of the view that the objections officer’s decision was to allow Mr Hoffman’s objection to the care percentage decision (Mr Hoffman’s care was 100% from 21 February 2019).  The objections officer rejected Mr Hoffman’s application about the date of effect of that decision.

3. Mr Hoffman has applied for both of these decisions to be reviewed.

4. Sections 49 and 50 of the Assessment Act provide for new care percentage decisions to be made. Section 50 applies if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.  This section reflects the idea that Child Support makes point-in-time care percentage decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify Child Support and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the original decision and what was likely to happen thereafter? It is not the tribunal’s task in this application to assess care in retrospect, taking account of actual care to the date of hearing.

5. It is not disputed by the parents that there was a change in care on 21 February 2019 and that [Child 1] was predominantly in Mr Hoffman’s care from then on.  At the time of the original decision, 6 April 2019, Mr Hoffman has stated that [Child 1] had not stayed with her mother, and [Ms A] stated that [Child 1] had spent three weekends with her.

6. It is clear from the notes taken by Child Support that Mr Hoffman never agreed that [Ms A] had care of [Child 1] between 21 February 2019 and 6 April 2019; in fact he was adamant, and still is, that no such care took place.  He did, however, ‘go along’ with a decision of 86/14; later objecting when it was clear [Child 1] was still not spending any time with [Ms A].

7. The tribunal had some doubts about [Ms A’s] evidence.  It is clear an incident occurred on 21 February 2019, a Thursday, and yet it is her evidence that [Child 1] returned to her care the next day for the weekend.

8. After considering all of the evidence the tribunal decided that it was more likely than not that as at 6 April 2019 [Child 1] had not stayed with [Ms A].

9. However this does not mean that the likely pattern of care going forward was going to be 100% care for Mr Hoffman.  [Child 1] is only 14 years old and it would appear that an incident triggered the change in care.  The fact that the parents do not communicate directly with each other means that they did not discuss ongoing care. It would appear however that as at 6 April 2019 it was unlikely [Child 1] was going to commence any regular pattern of care with [Ms A] in the near future.  To have a care percentage of 14% (less than this results in nil costs) it would have to be found that it was likely [Ms A] would have [Child 1] for 51 nights per year.

10. The  tribunal found that that it was more likely than not that the likely pattern of care was less than 14% and therefore decided that Mr Hoffman had 100% care of [Child 1] from 21 February 2019.

11. As this change in care percentage results in a change in the cost percentage the existing care determination must be revoked.

12. The tribunal then considered what the date of effect of this decision should be. 

13. Mr Hoffman lodged his objection to the original decision more than 28 days after the decision was made. Subsection 87AA(1) of the Child Support (Registration and Collection) Act1988 (Registration and Collection Act) states that in such a case the date of effect is the date the person lodged the objection.  Mr Hoffman applied under subsection 87AA(2) of the Registration and Collection Act to extend the 28-day period due to special circumstances preventing him from lodging the objection on time.  The objections officer refused this application and the review of that decision is considered in application MC017097 (separate notice of decision).

2019/MC017067 – care of [Child 2] and [Child 3]

1. [Ms A] applied for a change in care on 13 June 2019 and the original decision was made on 14 June 2019.

2. Mr Hoffman agrees that there was a change from the week beginning 13 May 2019 and at the hearing his evidence was that this was because [Ms A] had complained to [Child 2] about him and made [Child 3] feel guilty if he left her care.  At the time of the original decision he could have only missed two weekends from 13 May 2019.  Mr Hoffman was planning to have both children for the term two holidays.

3. This situation is different to the situation with [Child 1].  In her case there was a definite change in primary carer which resulted from an incident.  In the case of [Child 2] and [Child 3]; at the time of the original decision; only a few weekends of care had been missed and there does not appear to be any long term change in the pattern of care.  The tribunal decided that it was too early, as at 14 June 2019, to decide that the likely pattern of care was going to be nil; it was more likely that the previous pattern of care would resume.

4. The tribunal therefore decided that there was no change in care as at 13 May 2019.

5. It is open to either parent to seek a change in care if the situation has since changed.

DECISION

2019/MC017006:  The tribunal affirms the objections officer’s decision; that is, Mr Hoffman had 100% care of [Child 1] from 21 February 2019.  (The date of effect decision is considered in case 2019/MC017097 – separate notice of decision.)

2019/MC017067:  The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care for [Child 2] and [Child 3] on 13 May 2019.