Hough and Hough (Child support)

[2022] AATA 1173

Hough and Hough (Child support) [2022] AATA 1173 (16 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022722

APPLICANT:  Mr Hough

OTHER PARTIES:  Ms Hough

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  16 February 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that the care percentages of the parents are now determined for child support purposes as follows:

• The care percentage of Mr Hough is 100% from 28 July 2021;

• The care percentage of Ms Hough is 0% from 6 December 2020.

The application for review is therefore partly successful.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – date of effect provisions - 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. The following information is taken from the records of the Services Australia – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Mr Hough and Ms Hough are the parents of two children now aged 18 and 15.

3. The child support case for the older child (“child 1”) was ended by the CSA with effect from 14 August 2020.[1]

   [1] C88.

4. Ms Hough is the payer of child support to Mr Hough.

5. Care of the younger child (“child 2”) was formerly recorded as 100% care to Mr Hough from 18 January 2019.

6. On 7 December 2020 Ms Hough contacted the CSA and notified a care change for child 2.

7. She stated that she would now have 15% care of child 2, going forward, following the making of some court orders on 23 October 2020.

8. On the next day, 8 December 2020, after talking to both parents, a delegate made a new care determination to the effect that care of child 2 was 15% to Ms Hough and 85% to Mr Hough from 6 December 2020, onwards.

9. On 28 July 2021 Mr Hough lodged an objection to the delegate decision.

10. On 5 November 2021 an objections officer disallowed that objection.

11. On 12 November 2021 Mr Hough sought a further review of that decision by this Tribunal.

12. There have been two further care change notifications regarding child 2.

13. A care change notification was made by Mr Hough on 14 April 2021.[2]

    [2] C109.

14. That matter, ultimately, went to the AAT, and led to no change in the care percentages (i.e. they stayed at 85%/15%).

15. Mr Hough then made a further care change notification on 12 November 2021.[3]

    [3] C445.

16. By virtue of a delegate decision dated 23 November 2021, care of child 2 has been 100% to Mr Hough since 24 September 2021, and currently Ms Hough pays $12,559 pa in child support based on her having 0% of care.[4]

    [4] There was no objection by either parent to that delegate decision.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C517.

2. The parents attended the hearing via separate MS Teams audio hearings, and gave evidence and made verbal submissions.

ISSUES

1. The principal issues to be decided by the Tribunal are:

   ·What were the previously recorded percentages of care of child 2 before December 2020?

   ·Was there in fact a change in the pattern of care for child 2?

   ·If so, what was it, and when did it occur?

   ·Which of the care provisions of the Child Support (Assessment) Act 1988 (“the Act”) apply to the facts?

   ·What are the correct care percentages of the parents, and from what date or dates should they be effective in the child support assessment?

CONSIDERATION

The relevant child support law

1. The law relevant to this review is contained in the Act.

2. The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Act.

3. The legislative scheme requires a care percentage determination to be made when a new case is registered and following each notification to the CSA of a change of the care arrangements.

4. The CSA will normally follow court orders, which actually determine a parent’s level of care of a child, in fixing care percentages. Indeed, sections 51 to 53A of the Act provide that – in some circumstances – care percentages should follow the terms of court orders, although those court orders are not being followed. These decisions, if made, are put in place for a limited time only, and are known as “interim care determinations”.

5. If there are no court orders, or other legally binding care arrangements, fixing the level of care of the parents, care percentages are based on the pattern of actual care which is occurring between the parents: section 50 of the Act.

6. If there is in fact no such pattern, the care percentage of the non-custodial parent “must” be fixed at nil: section 49.

7. The Court Orders in this case fixed a maximum number of nights of care for Ms Hough, they did not determine a fixed number of nights of care, as such.

8. The Tribunal has proceeded on the basis that this matter should be treated as an actual care matter and so sections 50 and 49 are relevant.

9. If a care percentage is fixed under section 50, or section 49, it applies for each day in a child support period until the determination which fixed that care percentage is revoked: see subsection 54B(1A) of the Act.

10. There are differences of opinion as to the proper role of the AAT in actual pattern of care disputes.

11. The view has largely prevailed to date that the Tribunal’s role in these cases is that it may only review the legal correctness of the delegate decision which was made in this matter on 8 December 2020 (this is known as a “point in time approach”).

12. The Tribunal, on this view, should do so based on (i) what evidence was available to the original decision maker, (ii) as supplemented by any further relevant material supplied to the objections officer, and (iii) any further relevant information supplied to the Tribunal.

13. The Tribunal can, on this view, only take note of or give any weight to events after the delegate decision, if they assist in determining whether the delegate decision was correct in the circumstances.

14. However, an alternate view is that, especially where there is a “closed period” under examination (ie a care period which has ended), the Tribunal should look at the actual care of the parents which occurred in that closed period, and determine the care percentages accordingly

15. Which approach is correct or preferable (or in what circumstances either approach is correct or preferable) has not been decided by a Court, such as the Federal and Family Court, in a decision which would be legally binding on the AAT.

16. One issue, then, for the Tribunal, is whether a new, regular pattern of care (i.e. a pattern of care that was different from the previous pattern of care) had come into existence, or was at least emerging, as at 8 December 2020. Mere changes in what care is taking place, or a change in the “amounts” of care each parent provided, or erratic care, do not necessarily add up to a new pattern of care.

17. The Child Support Guide states in this regard:

    “Change in pattern of care

    When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.”

18. The other issue is what actual care took place in the “closed period” from early December 2020 to 23 September 2021 – it not being disputed that by virtue of a delegate decision dated 23 November 2021, Mr Hough has had 100% care of child 2 since 24 September 2021.[5]

    [5] See C457.

19. Care is generally determined based on the number of nights that the child was or is likely to be in the care of the person: section 54A of the Act.

20. A further legal complication in this matter is that if a person lodges an objection to a care determination more than 28 days after receipt of the decision, as happened here, then any care change favourable to the objector is only effective for child support purposes from the date of objection, unless “special circumstances prevented” the person from lodging the objection in time.

21. This is provided for by section 87AA of the Child Support (Registration and Collection) Act.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

1. The Tribunal considered all of the information on the extensive CSA file, including the verbal and documentary evidence as presented by the parents to the CSA, and the evidence and submissions presented by them to it concerning the care of child 2, and the previous AAT decision dated 2 November 2021.

2. The Tribunal noted the following further background matters which were not in dispute:

   ·Care of child 1 was not in issue in these proceedings;

   ·Child 2 was almost 14 as at the care change notification on 7 December 2020, and was at school in Brisbane, whereas his mother lives in [a town], some 1,500 km away;

   ·It was only ever practically feasible for child 2 to visit his mother in the school holidays;

   ·The Court Orders provided for a maximum number of nights for child 2 to be in the care of his mother during school holidays: they did not fix the actual number of nights of care she was to have.[6]

   [6] See at C158.

3. In the period from early December 2020 to 23 September 2021, the Tribunal finds that Ms Hough had care of child 2 for 24 nights, which was in the December 2020 school holidays. She did not have any care in the April, July or October school holidays of 2021.

4. The Tribunal has concluded that this was not a regular pattern of care at all, and so based on actual care, section 49 of the Act applies, and the care percentage of Ms Hough is 0% and the care percentage of Mr Hough is 100%, for this “closed period”.

5. The question of the effective date for child support purposes of these care percentages (which are in fact the same as the previous, pre-December 2020 care percentages) is very problematic.

6. Mr Hough lodged his objection to the delegate decision more than 28 days after receipt of the decision. In fact, it was some 7 months later, on 28 July 2021.

7. Section 87AA therefore applies.

8. He explained that he lodged his objection “some hours” after receiving the objection decision in the matter which commenced with his notification of a care change (to 88%/12%) on 14 April 2021.[7]

   [7] The matter which then went to the AAT. See below.

9. He stated that he had relied upon “advice” from the CSA that it would be “premature” for him to object to the 8 December 2020 delegate decision until and unless Ms Hough had “missed” two or more care events, i.e. unless care did not occur in either the April and/or the July 2021 school holidays.

10. Effectively, he waited until the outcome of his objection in the other matter before objecting in this matter.

11. In the view of the Tribunal, while it accepts that this advice was reasonable, and not incorrect advice, and that the fact of the objection in the other matter did put him in a difficult position as to knowing what to do in this matter, there were no “special circumstances preventing” Mr Hough from lodging an objection in this matter earlier. It was a matter of strategy, or timing, or tactics, as to whether to object in this matter, and if so when – it was not a matter of “being prevented” from objecting.

12. The effective date for him for the 100% care must therefore be date of objection, 28 July 2021.

13. For Ms Hough, the difficulty is that, by virtue of the previous CSA decisions and the AAT decision in matter [number deleted], [dated] 2 November 2021, her care percentage at present is 15% for the period from 6 December 2020 to 23 September 2021.

14. In the view of the Tribunal, that situation cannot stand, firstly, as it simply does not reflect what care of child 2 actually occurred (which itself is not factually disputed), and, secondly, because the “point in time” approach is not appropriate in these unusual circumstances.

15. In the view of the Tribunal, actual care during what is (or became) a “closed period” should be used in this matter.

16. Ms Hough had 24 nights of care in the period from 6 December 2020 to 23 September 2021, which is 290 nights, which would be 8% of care, however there was no “regular pattern” of her care, as it all occurred in December 2020, and so section 49 of the Act applies, and her care percentage “must” be fixed at nil.

17. In the final analysis, in the unusual facts of the matter, the Tribunal has concluded that the previously recorded care (of 100% care to Mr Hough) in fact never changed, and that the previous care determination (which applied from 18 January 2019) should never have been revoked.

18. The Tribunal therefore can see no legal basis to do other than determine that this nil percentage of care for Ms Hough should apply from 6 December 2020.

19. This decision will create a debt owing from her to Mr Hough which the CSA will calculate and advise the parents of.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that the care percentages of the parents are now determined for child support purposes as follows:

·The care percentage of Mr Hough is 100% from 28 July 2021;

·The care percentage of Ms Hough is 0% from 6 December 2020.

The application for review is therefore partly successful.