Hollier and Hollier (Child support)

[2018] AATA 3490

Hollier and Hollier (Child support) [2018] AATA 3490 (8 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013661

APPLICANT:  Mr Hollier

OTHER PARTIES:  Child Support Registrar

Mrs Hollier

TRIBUNAL:Member S Brakespeare

DECISION DATE:  8 June 2018

DECISION:

The decision under review is varied so that the percentage of care determinations reflect that Mr Hollier and Mrs Hollier each had 50% care of [Child 1] from 25 July 2017.

CATCHWORDS
Child support - Percentages of care - The likely pattern of care - Care was shared equally between the parents - Decision under review varied

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 Hollier and Mrs Hollier are the parents of [Child 1] who is 9.

2. On 4 August 2017 Mr Hollier contacted the Child Support Agency to register a child support assessment in respect of [Child 1]. At the time he advised that the care of [Child 1] was shared (50/50).

3. On 7 August 2017 Mrs Hollier contacted the Family Assistance Office to make a claim for family tax benefit. She advised that her percentage of care was 70%.  An officer of the Family Assistance Office made a determination on 7 August that Mrs Hollier’s percentage of care from 25 July 2017 was 70% and that Mr Hollier’s percentage of care was 30%.

4. On 15 September 2017 an officer of the Child Support Agency made percentage of care determinations which reflected the Family Assistance Office determinations.

5. Mr Hollier lodged an objection to the percentage of care determinations. An objections officer of the Child Support Agency disallowed the objection on 5 January 2018. Mr Hollier was sent notice of the decision by post on 5 February 2018.

6. Mr Hollier lodged an application for review of the decision with the tribunal on 26 February 2018.

7. A hearing was held on 8 June 2018. Mr Hollier attended the hearing and gave evidence on affirmation to the tribunal. Mrs Hollier gave her evidence on affirmation via conference telephone. The Department provided documents to the tribunal and the parties (84 pages). The tribunal also had regard to documents supplied by Mr Hollier (folios A1 to A17).[1] A copy was also provided to Mrs Hollier.

   [1] Both parties attempted to provide further documents to the tribunal outside the timeframes provided for in the Child Support Guidelines (that is, less than 14 days before the hearing). The tribunal did not accept the documents on the basis they were not relevant to the period under review.

8. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUE

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is what the relevant percentage of care determinations in respect of [Child 1] should be, from 25 July 2017.

CONSIDERATION

1. The relevant provisions in this case are sections 49 to 54L of the Act. These provisions require the Child Support Agency to decide each parent’s percentage of care when first making a child support assessment and to revoke and make new percentage of care determinations in specific circumstances.

2. From 1 July 2010 the child support provisions were aligned with family tax benefit laws. Section 54K of the Act requires that the Child Support Agency uses a care determination made under the A New Tax System (Family Assistance) Act 1999 (the FA Act) in relation to family assistance that has not been revoked or set aside when making a decision. There is a similar provision in the FA Act concerning care determinations under the Act.

3. In relation to percentage of care matters, the primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to make a percentage of care determination. The tribunal’s task on review is the same.

4. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency or Family Assistance Office so that a new primary care percentage decision can be considered, and made if appropriate.  

5. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency  or the Family Assistance Office.  It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification.

16.On 15 September 2017 an officer of the Child Support Agency adopted the percentage of care determinations made by the Family Assistance Office on 7 August 2017 in accordance with section 54K. It is those percentage of care determinations that are the subject of this review. There have been subsequent changes to care and further percentage of care determinations which are not the subject of this review.

1. Mr Hollier told the tribunal that at the time the initial application was made to the Child Support Agency there was not a set pattern of care in relation to the child.  The child’s care was based around Mr Hollier’s work roster and the mother’s availability and care of the child changed regularly, sometimes several times per day. The arrangements were ad hoc but the intention was always that the care of the child be 50/50. Mr Hollier said that he had engaged an au pair in early 2017, partly at Mrs Hollier’s request, as Mrs Hollier had commenced employment, and her working hours were not conducive to day care. Mr Hollier said that after he lodged the initial application with the Child Support Agency he was advised to start a care calendar; however the decision to grant Mrs Hollier 70% care was made without seeking any further evidence from him.

2. Mr Hollier said that he subsequently took action to formalise the care arrangements and since 6 November 2017 a Family Court Order (by consent) has been in place giving each parent 50% care of [Child 1].

3. Mr Hollier provided statements from 2 au pairs that had worked for him; the first was employed from May 2017 to August 2017 and the second from October 2017. Mr Hollier told the tribunal that his mother and her friend from Germany stayed at his home and assisted with the child’s care during the period there was no au pair. The tribunal notes that the statements do not contain specific details as to the amount of time [Child 1] was in Mr Hollier’s care.

4. Mrs Hollier told the tribunal that prior to separation she had not been working and was therefore the child’s main carer. She worked for a period from April 2017 to July 2017 and the care arrangements were on an ad hoc basis between herself, Mr Hollier and his au pair. She said that when she ceased work and claimed FTB she believed that the care percentage would be about 70% to her as she was not working. She started keeping a care calendar from 17 August 2017 when advised to do so by the Child Support Agency. 

5. Mr Hollier disagreed with Mrs Hollier’s claim that she would revert to being the main carer when she was not working; he stated that in the past she has spent a significant amount of her spare time involved in martial arts training and activities and the child has spent significant amounts of his time at Mr Hollier’s home in the company of either an au pair or his relatives, even when Mr Hollier was working. Mr Hollier said that it had been agreed that Mrs Hollier would care for [Child 1] for a two week period in September, as Mr Hollier had a pre-arranged holiday; however it was also agreed that the time would be made up in October when he had relatives coming to visit.

6. The Child Support Agency papers contained care dates provided by Mr Hollier (on 9 October 2017) for the period 10 July 2017 to 17 September 2017 and care dates provided by Mrs Hollier (on 21 August 2017) for the period 24 July 2017 to 1 September 2017.

7. The tribunal finds that at the time the percentage of care determinations took effect there was no regular care arrangements in place in relation to the child.  It was evident that both parents were having care of the child on an ad hoc basis. The tribunal is not satisfied that either the care calendars or the evidence provided by the parties is sufficient to find that Mrs Hollier’s percentage of care was likely to be 70%. The tribunal finds that the more likely outcome of the ad hoc arrangements was that the care would essentially be shared.

8. The tribunal therefore finds that the percentage of care determinations should reflect that Mr Hollier and Mrs Hollier each had 50% care of the child from 25 July 2017.

DECISION

The decision under review is varied so that the percentage of care determinations reflect that Mr Hollier and Mrs Hollier each had 50% care of [Child 1]  from 25 July 2017.