Hudnall and Blanton (Child support)

[2021] AATA 2732

Hudnall and Blanton (Child support) [2021] AATA 2732 (27 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC020901

APPLICANT:  Mr Hudnall

OTHER PARTIES:  Child Support Registrar

Ms Blanton

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  27 May 2021

DECISION:

The decision under review is affirmed.

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 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. This review is about a change to the percentage of care determinations for Mr Hudnall and Ms Blanton in respect of their child [Child 1].

2. Mr Hudnall and Ms Blanton are the parents of [Child 1] (born June 2015).  There has been a child support assessment in place since 3 October 2018 and Mr Hudnall is currently the parent liable to pay child support under the assessment.

3. From 11 January 2018 the child support assessment reflected Mr Hudnall as having 50 per cent care and Ms Blanton as having 50 per cent care of [Child 1].

4. On 16 February 2021 Ms Blanton advised the Child Support Agency of a change to the care arrangements for [Child 1] stating that she had 100 per cent care from 9 February 2021.

5. On 24 February 2021 the Child Support Agency made the decision that Mr Hudnall provides 0 per cent care and Ms Blanton provides 100 per cent care of [Child 1] from 9 February 2021.

6. On 25 February 2021 Mr Hudnall objected to this decision and on 27 February 2021 the Child Support Agency disallowed the objection (the objection decision).

7. On 1 March 2021 Mr Hudnall applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 27 May 2021.  Mr Hudnall and Ms Blanton gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (159 pages).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and; if so,

   ·     from what date should the new percentage of care determinations take effect?

CONSIDERATION

1. Mr Hudnall told the Tribunal that care of [Child 1] was the subject of court orders which had been in place since around August 2018.  He said these court orders provided for 50-50 shared care of [Child 1] and were being followed by both parents until care changed.

2. Mr Hudnall said he did not dispute that Ms Blanton had 100 per cent care of [Child 1] from 9 February 2021 as this care had been determined under new court orders of the same date.  He said these new court orders simply rewarded Ms Blanton and care would likely return to shared care following a further court hearing listed for 3 June 2021.

3. The Tribunal notes in evidence from the Child Support Agency a copy of court orders issued by the Federal Circuit Court on 9 February 2021.  These orders state at clause 3 that [Child 1] be returned to Ms Blanton “no later than 6.00 pm today” and at clause 5 that [Child 1] continue to live with Ms Blanton “Until further order” of the court.  The court orders further state at clause 7:

   That during the period of the adjournment paragraphs 3.1, 4.1, 6.1, 6.4, 7.1.2, 7.2.1, 7.3, 7.5.1, 7.6.2 and 7.8, of the Orders made on 12 June 2020 be suspended.

4. Mr Hudnall told the Tribunal he was extremely frustrated with the way he had been treated by the Child Support Agency.  Mr Hudnall said during the course of discussing his objection to the care decision made on 24 February 2021 he had also tried to notify the Child Support Agency of a separate change of care relating to the court orders made on 12 June 2020 but was ignored.  Mr Hudnall explained that the paragraphs referred to in the court orders dated 12 June 2020 related primarily to his holiday care of [Child 1].  He said neither parent had notified the Child Support Agency of these court orders at the time they were made and he wanted them taken into account especially given the change in care under the subsequent orders dated 9 February 2021.  He said despite trying to alert the child support officer to care under these 12 June 2020 court orders, he was repeatedly advised this could not be considered.

5. Mr Hudnall also pointed out that during the objections process it appeared the objections officer had made up his mind before talking to him.  He said the papers provided by the Child Support Agency confirmed the objections officer had informed Ms Blanton that his objection would be disallowed before it had even been discussed with him.

6. Ms Blanton told the Tribunal she agreed the care of [Child 1] had been 50-50 care in accordance with court orders made in around August 2018.  Ms Blanton said the reason neither parent had advised the Child Support Agency of the subsequent court orders dated 12 June 2020 was because they provided for a continuation of this shared care with variations relating to holiday care.  She said the parents simply continued with 50-50 care.

7. Ms Blanton said care of [Child 1] changed after the new court orders dated 9 February 2021 granted her 100 per cent care.  Ms Blanton added that she continued to have 100 per cent care of [Child 1] and this would remain the case until a further court hearing.

8. It is not in dispute and the parents agree that care of [Child 1] changed on 9 February 2021 as a result of court orders issued on the same date.  The Tribunal is satisfied, based on the evidence provided, that Mr Hudnall provides 0 per cent care and Ms Blanton provides 100 per cent care of [Child 1].

9. The existing percentages of care reflected in the assessment for [Child 1] were 50 per cent care to Mr Hudnall and 50 per cent care to Ms Blanton.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

10. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Hudnall and Ms Blanton under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Hudnall provides 0 per cent care and Ms Blanton provides 100 per cent care of [Child 1] from 9 February 2021.

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Blanton notified the Child Support Agency of the change in care on 16 February 2021.  As this is less than 28 days after the change occurred on 9 February 2021, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 9 February 2021.

DECISION

The decision under review is affirmed.