Huxley and Gehler (Child support)

[2020] AATA 4295

Huxley and Gehler (Child support) [2020] AATA 4295 (21 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2020/PC019313 & 2020/PC019373

APPLICANT:  Mr Huxley

OTHER PARTIES:  Child Support Registrar

Ms Gehler

TRIBUNAL:Member S Brakespeare

DECISION DATE:  21 August 2020

DECISIONS:

The decisions under review are 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 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. Ms Gehler is the parent liable to pay child support to Mr Huxley in respect of their children [Child 1] and [Child 2].

2. On 23 April 2019 Ms Gehler advised the Child Support Agency that there had been a change in the care arrangements for [Child 1]. The existing percentage of care determinations recorded [Child 1] as being in the shared care of both parents. On 17 July 2019 an officer of the Child Support Agency made the following decision:

   ·Mr Huxley’s percentage of care in respect of [Child 1] is 12% with effect from 27 November 2018 and Ms Gehler’s percentage of care for [Child 1] is 88% with effect from 23 April 2019.

3. On 17 September 2019 Ms Gehler advised the Child Support Agency that there had been a change in the care arrangements in respect of [Child 2]. The existing percentage of care determinations recorded [Child 2] as being in the shared care of both parents. On 17 January 2020 an officer of the Child Support Agency made the following decision:

·Mr Huxley’s percentage of care in respect of [Child 2] is 37% from 13 December 2018 and Ms Gehler’s percentage of care for [Child 2] is 63% from 17 September 2019.

1. Mr Huxley lodged objections to both care decisions on 1 April 2020. Both objections were disallowed by an objections officer on 3 June 2020.

2. Mr Huxley lodged an application for review of the objection decisions with the tribunal.  A hearing was held on 21 August 2020. Mr Huxley and Ms Gehler gave evidence on affirmation to the tribunal via conference telephone.  The Child Support Agency provided the tribunal and the parties with bundles of documents relevant to the reviews (328 pages).

3. 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 the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The issue which arises in this case is whether the existing percentage of care determinations are to be revoked and replaced.

CONSIDERATION

1. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply.

2. Section 54G applies if certain conditions are met:

• a parent was to have at least regular care of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

• the other parent must have had their existing percentage of care determined under section 50; and

• the other parent must notify the Child Support Agency or the Family Assistance Office within a reasonable time that the parent with the reduced care has no care or less than regular care.

1. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

2. Ms Gehler provided detailed spreadsheets to the Child Support Agency showing the actual care and the proposed care of both [Child 1] and [Child 2].

3. At hearing Mr Huxley acknowledged that he had not perused the papers supplied by the Child Support Agency in any detail; however, he contested the accuracy of the spreadsheets. He said that there has been a parenting plan in place since 2014 which gives each parent 50/50 care. He said he has never been approached to have the parenting plan altered. He said that in 2018 there was a period of approximately four weeks where he was doing night shift and was unable to have overnight care; however, he had the children in the mornings before going to work.

4. Mr Huxley said that the Child Support Agency had suggested he keep a care diary and to get evidence from third parties. However the Child Support Agency refused to accept his evidence, stating it was lacking in detail.

5. Ms Gehler told the tribunal that she updated her care spreadsheet on a daily basis. From time to time she would send Mr Huxley a copy of the spreadsheet showing proposed care dates. She then updated the spreadsheet with actual care as it occurred. She said that she has also provided the Child Support Agency with text messages between her and Mr Huxley which supported the care dates she claimed.

6. Ms Gehler acknowledged that there was a considerable gap between each change of care date and the date she notified the Child Support Agency. She said that this was because she was giving Mr Huxley the opportunity to meet his 50% care. She said she believed that it was important for the children to spend equal time with their parents; however, both children have extra costs arising from medical issues and in respect of their education. Eventually she decided that she could not continue to pay those costs and child support whilst also having the majority of the care.

7. The existing percentage of care determinations made under section 50 of the Act provided that each parent had 50% care of [Child 1] and [Child 2].

8. The tribunal accepts Ms Gehler’s evidence, as per the spreadsheets, that the actual care of the children was different to the percentage of care determinations. The tribunal finds that Mr Huxley’s care of [Child 1] reduced to 12% from 27 November 2018. The tribunal finds that Mr Huxley’s actual care of [Child 2] reduced to 37% from 13 December 2018.

9. The tribunal finds that section 54G is not applicable in this case as Ms Gehler did not notify the Child Support Agency within a reasonable time that Mr Huxley’s care of [Child 1] had reduced to below 12%.

10. The tribunal finds that the actual percentages of care for both children result in a change to the cost percentages and therefore the existing percentage of care determinations are to be revoked in accordance with section 54F of the Act and replaced with new percentage of care determinations made in accordance with section 50 of the Act.

11. As the Child Support Agency was notified of the care changes more than 28 days after the respective change of care dates, the revocation of Mr Huxley’s percentage of care determinations take effect from the day before the change of care date; and the revocation of Ms Gehler’s percentage of care determinations take effect from the day before the notification date (subsection 54F(3) of the Act).

12. The tribunal therefore finds that the existing percentage of care determinations are revoked and replaced with the following percentage of care determinations:

    ·Mr Huxley’s percentage of care in respect of [Child 1] is 12% with effect from 27 November 2018 and Ms Gehler’s percentage of care for [Child 1] is 88% with effect from 23 April 2019.

    ·Mr Huxley’s percentage of care in respect of [Child 2] is 37% from 13 December 2018 and Ms Gehler’s percentage of care for [Child 2] is 63% from 17 September 2019.

DECISIONS

The decisions under review are affirmed.