Houchan and Houchan (Child support)

[2021] AATA 5027

Houchan and Houchan (Child support) [2021] AATA 5027 (30 November 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022157

APPLICANT:  Mr Houchan

OTHER PARTIES:  Child Support Registrar

Mrs Houchan

TRIBUNAL:Member L Rieper, Member S Trotter

DECISION DATE:  30 November 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

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

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 Houchan and Mrs Houchan are the parents of [Child 1] and [Child 2] (the children) in respect of whom there has been a child support assessment in place since May 2016.

2. On 18 August 2016 Services Australia – Child Support (Child Support) determined that from 1 July 2016 the care of the children was to be recorded as 71% to Mrs Houchan and 29% to Mr Houchan.

3. On 21 May 2021 Mr Houchan lodged an objection to that decision.

4. The decision was internally reviewed by Child Support and on 14 August 2021 the objection was disallowed.

5. On 25 August 2021, Mr Houchan applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal seeking an independent review of the objection decision. The application was heard on 30 November 2021.  Mr Houchan and Mrs Houchan both attended the hearing by telephone and gave sworn evidence.  No representative of the Child Support Registrar attended the hearing.  

6. The Tribunal had before it a Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975 in respect of the application.  Mr Houchan and Mrs Houchan each submitted additional documents in support of their cases. 

ISSUES

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that a care change would alter the cost percentage used for the parent in the administrative assessment. Section 55C of the Act contains a table that is used to work out a person’s cost percentage.

3. The issues for the Tribunal to determine in this case are:

   ·whether the existing determinations of percentage of care should be revoked and if so, from when should they be revoked; and

   ·whether new determinations of the percentage of care should be made; and, if so, what is the percentage of care under the new determination/s and from when should they apply.

CONSIDERATION

1. Care is generally calculated over a “care period”, which is a period that the Child Support Registrar or the Tribunal considers to be appropriate having regard to all the circumstances of the matter (section 50 of the Act). Child Support’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed, but it may be a shorter period depending on the circumstances of the case.

2. In this case Child Support has determined that the relevant 12-month care period is 1 July 2016 to 30 June 2017.

3. Mr Houchan disagrees with the objection decision because he says that he always had care of the children for five nights per fortnight.  During the hearing he acknowledged that there had been ad hoc changes to the care arrangements but correctly stated that such ad hoc changes do not impact a care decision.

4. Mr Houchan and Mrs Houchan were initially separated under one roof, but Child Support’s records show that when Mrs Houchan moved out with the children in June 2016 the intended pattern of care was nine nights per fortnight with Mrs Houchan and five nights per fortnight with Mr Houchan (see folio 15).  Mrs Houchan confirmed this during the hearing.

5. On 1 June 2016 Mr Houchan confirmed that his five nights per fortnight of care would commence from 16 June 2016 but he would be overseas for a number of days (see folio 31).

6. Child Support subsequently determined that the care percentages were 63% to Mrs Houchan and 37% to Mr Houchan (see folios 35-37).

7. On or about 6 July 2016 Mrs Houchan provided Centrelink with a form FA012 advising details of child care arrangements (see folios 38-45).  It is signed by Mrs Houchan and appears to have been signed by Mr Houchan although he does not recollect signing the form and is not sure the signature on the form is his.  The form advises that from 26 June 2016 the care percentages were to be 71% to Mrs Houchan and 29% to Mr Houchan with Mr Houchan having overnight care alternative weekends from Friday evening until Monday morning and alternative Tuesday evenings.  Centrelink appears to have provided a copy of the form to Child Support.

8. Mrs Houchan told the Tribunal that the completion and submission of the form came about because the circumstances changed from what was initially intended.  She recalled seeking advice from one of the agencies, most likely Centrelink as they appear to have provided the form to her, and she followed the advice she was given to update the care arrangements.

9. On 18 August 2016 Child Support issued a written determination consistent with the form FA012, that is child support was calculated on the basis Mrs Houchan had 71% care of the children and Mr Houchan had 29% care (see folios 50-52).

10. Determinations using the same care percentages were issued by Child Support in the following months and years (see for example folios 83-85 and 334-336).

11. Mr Houchan conceded during the hearing that he did not read the determinations carefully enough and was unaware the care percentages had changed.

12. On 17 August 2016 the Family Court of Australia made orders that, among other things, said that the children were to live with Mrs Houchan but spend five nights per fortnight with Mr Houchan, being alternative weekends from Friday evening until Monday morning and every Tuesday evening (see folios 337-356), equating to as 63% care to Ms Houchan and 37% to Mr Houchan.  Mrs Houchan described this as a “reset”.  The orders were not provided to Child Support by either parent until after the objection was made.  During the hearing, Mr Houchan stated that he expected that Ms Houchan would provide the court order to Child Support. However, as noted in several letters sent to each parent by Child Support, it was a matter for each parent to tell Child Support of any changes to their circumstances and Ms Houchan had no obligation over and above Mr Houchan’s obligation. Absent notification of a further change by either party, Child Support continues to maintain the previously determined percentages of care.

13. Mrs Houchan agrees that from September 2017 Mr Houchan had five nights of care per fortnight. Mr Houchan stated during the hearing that Child Support’s records show that Ms Houchan commenced a change of care notification in September 2017 but withdrew that notification such that he was not even aware of that at the time. As already noted, as referred to in several letters from Child Support, it was a matter for each party to tell Child Support of any changes to their circumstances, including any changes to the recorded care of 71% to Ms Houchan and 29% to Mr Houchan as clearly stated in numerous letters to each parent from 18 August 2016.

14. Both Mr Houchan and Mrs Houchan had put forward large bundles of documents which they say establish what the actual pattern of care was.  That, however, is not the test.  The Tribunal is required to consider what care by Mr Houchan and Mrs Houchan was intended for the children from 1 July 2016. 

15. The Tribunal is satisfied that whilst there was an initial agreement that Mr Houchan would have the children for five nights per fortnight, the agreement changed and on or about 6 July 2016 Centrelink (and Child Support) was notified that Mr Houchan would have the children for four nights per fortnight.  That is evidence that the pattern of care at that point had changed and the likely pattern of care at that time was four nights of care to Mr Houchan and 10 nights of care to Mrs Houchan. 

16. Child Support made determinations consistent with this on and from 18 August 2016 without any objection from Mr Houchan until 21 May 2021.

17. Having considered the evidence the Tribunal is satisfied that the percentages of care determinations to be recorded from 1 July 2016 are 71% to Mrs Houchan and 29% to Mr Houchan.  As this is the same decision as that of the objections officer, it follows that the decision under review will be affirmed.

OTHER MATTERS

1. The Tribunal notes that during the hearing it discussed with Mr Houchan issues relating to the date of effect if a favourable decision was made by the Tribunal given his objection was made several years outside the usual 28-day time period in which objections are to be made. However, given the Tribunal has not been able to make a favourable decision for Mr Houchan for the reasons canvassed, it is not necessary to consider that issue in these Reasons.

2. Further, as discussed with Mr Houchan at hearing, the Tribunal’s role on review in relation to this application is limited to the original decision of 18 August 2016 and the related 14 August 2021 objection decision. Any subsequent notification of care change and later decision is not the subject of the current review before the Tribunal and separate review rights may be exercised in relation to any such subsequent decision.

DECISION

The decision under review is affirmed.