Huxtable and Huxtable (Child support)

[2023] AATA 4280

Huxtable and Huxtable (Child support) [2023] AATA 4280 (14 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/MC026223

APPLICANT:  Mr Huxtable

OTHER PARTIES:  Child Support Registrar

Ms Huxtable

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  14 November 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Huxtable has 72% care of [the child] and Mr Huxtable has 28% care of [the child] from 3 November 2022.

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 set aside and substituted

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 Huxtable and Ms Huxtable are the parents of [the child]. A registered child support assessment has been in place for [the child] from 23 April 2021. The case has been registered for Services Australia (Child Support) collection from the start of the assessment. The care recorded for [the child] from the start of the assessment has been 100% to Ms Huxtable and 0% to Mr Huxtable.

2. On 4 November 2022 Mr Huxtable notified Child Support that there had been a change to the care arrangements for [the child] and that he now had 28% care of [the child] and Ms Huxtable now had 72% care of [the child] which applied from 3 November 2022.

3. On 2 February 2023 Child Support made the decision to leave the care determination at 100% to Ms Huxtable and 0% to Mr Huxtable. On 21 March 2023 Mr Huxtable objected to this decision and on 10 May 2023 an objections officer disallowed Mr Huxtable’s objection.

4. On 8 June 2023 Mr Huxtable applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision.[1] On 14 November 2023 Ms Huxtable and Mr Huxtable both gave evidence to the Tribunal under affirmation/sworn during a telephone conference hearing. The Tribunal had before it a bundle of documents (194 pages – referred to as the hearing papers). Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

   [1] Child Support confirmed that the date of postal notification of the objections officer’s decision was 10 May 2023. Child Support were unable to locate written notification of the original decision. The Tribunal is satisfied that Mr Huxtable has applied for a review of the objections officer’s decision within 28 days of his deemed receipt on 26 May 2023. This is in accordance with section 29 of the Acts Interpretation Act 1901 which states:

   Meaning of service by post

   (1) Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

5. There has subsequently been a new care determination in which the care for [the child] is now recorded as 70% care to Ms Huxtable and 30% care to Mr Huxtable which has applied for Ms Huxtable from 9 February 2023 and for Mr Huxtable from 11 April 2023, notified on 9 February 2023.

ISSUES

1. The issues which arise in this case are:

   ·      Should the existing care determinations of 100% of [the child] to Ms Huxtable and 0% to Mr Huxtable be revoked? And if so,

   ·      What are the new care determinations for [the child]?

LAW AND CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). Also relevant is the Child Support Guide which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[2]

   [2] [1979] AATA 179.

2. The Assessment Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

Issue 1 – Should the existing determinations of 100% care of [the child] to Ms Huxtable and 0% to Mr Huxtable be revoked?

1. Sections 49 and 50 of the Assessment Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Subdivision C of Division 4 of Part 5 of the Assessment Act can be considered.

2. Section 49 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. The Tribunal at first review has been of the view that both sections of the Assessment Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter. This meant the Tribunal did not necessarily have regard to what care occurred after the date of the change of care notification to the date of the Tribunal’s hearing.

3. However, the recent decision of the Federal Court of Australia Child Support Registrar v BKCZ[3] found that that the adoption of a “point-in-time approach” as described above is contrary to the legislative text, its intention and its context within both the broader child support and family assistance regimes; and that the Tribunal is obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change in care, and up to the date the decision is made by the Tribunal.

   [3] [2023] FCA 1109.

4. Mr Huxtable told the Tribunal that the care he had for [the child] was not a regular pattern of care but he said he had kept a calendar of the nights [the child] was in his care.

5. During the discussion at the hearing Ms Huxtable agreed that Mr Huxtable had greater than 0% care of [the child] from 3 November 2022 but his care was not a regular pattern of care. The contention then became what was the percentage of care for each parent from 3 November 2022 with both parents accepting it was greater than 0% for Mr Huxtable?

6. Mr Huxtable said his care increased for [the child] from 25 September 2022 and not 3 November 2022. However, Mr Huxtable did not notify Child Support of the change of care of [the child] until 4 November 2022.

7. Mr Huxtable’s care calendars showed he had the following nights of care of [the child]:

   ·November 2022: 14 nights[4]

   ·December 2022: 12 nights[5]

   ·January 2023: 4 nights[6]

   ·February 2023: 8 nights[7]

   ·March 2023: 8 nights[8]

   ·April 2023: 8 nights.[9]

   [4] A6 of Mr Huxtable’s submissions.

   [5] A7 of Mr Huxtable’s submissions.

   [6] Page 64 of the hearing papers.

   [7] Page 65 of the hearing papers.

   [8] Page 66 of the hearing papers.

   [9] Page 67 of the hearing papers.

8. The only disputed care of [the child] between Ms Huxtable and Mr Huxtable was the care shown in Mr Huxtable’s care calendar and Ms Huxtable’s care diary on 29 and 30 December 2022. Ms Huxtable said [the child] went to stay at her maternal grandmother’s house and was noting Mr Huxtable’s care on those two nights.

9. Ms Huxtable’s care diary showed the following nights of care for [the child] by Mr Huxtable:

   ·      May 2023: 7 nights[10]

   ·      June 2023: 3 nights.[11]

   [10] B20 to B23 of Ms Huxtable’s submissions.

   [11] B24 to B26 of Ms Huxtable’s submissions.

10. For the period 1 November 2022 to 18 June 2023 there are 228 nights. During this period Mr Huxtable had [the child] in his care for 64 nights, this is 28% care. As the cost percentage shown in the table in section 55C of the Assessment Act is the same for a person who has between 14% care to less than 35% care, it does not matter for the purposes of the care determination whether Mr Huxtable’s care was determined to be 62 nights (27% care) in that period or 64 nights (28% care) in that period, the cost percentage remains the same.

11. The Tribunal is satisfied based on the oral and material evidence before it that the care of [the child] had changed from 3 November 2022, such that the existing care determinations of 100% care to Huxtable and 0% care to Mr Huxtable should be revoked.

12. Section 54F is the relevant revocation determination in this matter. Subsection 54F(1) of the Assessment Act provides that a determination must be revoked if there is a change to the responsible person’s cost percentage. As the cost percentage has changed for both parents the Tribunal is satisfied that paragraphs 54F(1)(a) and (b) of the Assessment Act are met. The Tribunal is satisfied that section 54G does not apply, because Mr Huxtable has increased his care. The Tribunal is satisfied that paragraph 54F(c) is met and that subsection 54F(2) applies, so a new care determination must be made but before this can occur the existing care determination must be revoked.

13. Subsection 54F(3) of the Assessment Act provides that the existing care determination is revoked in accordance with paragraph 54F(3)(a) of the Assessment Act if the notification of the change of care occurred within 28 days of that change occurring. This means the existing care determination of 100% care to Ms Huxtable and 0% care to Mr Huxtable is revoked from 2 November 2022.

Issue 2 – What are the new care determinations for [the child]?

1. The Tribunal is satisfied that a new care determination is made in accordance with section 50 of the Assessment Act when the existing care determinations have been revoked. The Tribunal is satisfied that a new care determination is made in accordance with section 50 of the Assessment Act in which Ms Huxtable has 72% care of [the child] and Mr Huxtable has 28% care of [the child] with a date of effect of 3 November 2022.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Ms Huxtable has 72% care of [the child] and Mr Huxtable has 28% care of [the child] from 3 November 2022.