Lees and Hackett (Child support)

[2024] AATA 789

Lees and Hackett (Child support) [2024] AATA 789 (20 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC025860

APPLICANT:  Ms Lees

OTHER PARTIES:  Child Support Registrar

Mr Hackett

TRIBUNAL:Member S Letch

DECISION DATE:  20 February 2024

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – 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

1. Ms Lees and Mr Hackett are the parents of [Child 1]. Care for [Child 1] had been recorded by Services Australia – Child Support (Child Support) as 58% to Ms Lees and 42% to Mr Hackett when, on 17 June 2020, Mr Hackett reported he had 100% care of [Child 1] from 22 May 2020. On 2 September 2020, Child Support decided to accept Mr Hackett’s notification and recorded his care as 100% from 22 May 2020.

2. Ms Lees objected to the decision on 23 February 2023 (notably, more than two years after being notified of the original decision). Her objection was disallowed on 22 March 2023. It is convenient to set out some extracts from the objections officer’s decision:

   …

   SUMMARY OF OBJECTION DECISION

   The outcome of this decision is that it has been disallowed.

   We have made the decision to reflect the care of [Child 1] as 0% (0 nights) to Ms Lees and 100% (365 nights) to Mr Hackett from 22 May 2020.

   The effect of the objection decision is: There will be no changes to the assessment.

   DECISION UNDER REVIEW

   Ms Lees is objecting to our decision, made on 2 September 2020 to reflect the care of [Child 1] as 0% (0 nights) to Ms Lees and 100% (365 nights) to Mr Hackett from 22 May 2020, reported to us on 17 June 2020.

   …

   On 20 March 2023, we spoke with Mr Hackett who stated that Ms Lees had no care at the time, Ms Lees had no overnight care at the time as there was a Temporary Protection Order against Ms Lees stating that she cannot have any contact with [Child 1] and Mr Hackett. Mr Hackett also stated that Ms Lees was living interstate at the time.

   At the time of writing there has been no supporting evidence received from Ms Lees in relation to her objection.

   At the time of the original decision, Mr Hackett supplied two statements from third parties supporting him having the care of [Child 1]. Mr Hackett also supplied a copy of a temporary protection preventing Ms Lees from contact [Child 1] and himself.

   …

   In this case, Ms Lees has stated that she continued to have overnight care of [Child 1] and so Mr Hackett could not have been having the care.

   However, there has been no evidence received from Ms Lees to support this claim.

   As such, we reviewed the evidence supplied for the original decision. The evidence supplied at the time of the original decision supports his claims about having the care.

   Therefore, in the absence of any new evidence, which may allow us to form a new determination about the care, we are satisfied that the care was 0% (0 nights) to Ms Lees and 100% (365 nights) to Mr Hackett from 22 May 2020.

   The objection is disallowed.

   …

3. Ms Lees and Mr Hackett participated in the Tribunal’s hearing by conference telephone.

4. In summary, Ms Lees disagreed with the suggestion she had no care of the children during the disputed period. She listed a number of nights she says she had care of [Child 1] overnight when her father was present. She said she needed some assistance from her father. She conceded there were no “set nights” and the nights were “ad hoc”. Ms Lees said she had been hospitalised (with daily visits, not as an inpatient) for mental health issues and had asked Mr Hackett for assistance; she said she received treatment for a about a couple of weeks.

5. The Tribunal drew Ms Lees’ attention to a file note made by Child Support on 10 August 2020 (folio 36) in which it was recorded that “Enquired of Ms Lees what overnight care she had for [Child 1] since 25/5/20 and she was unable to tell me apart from July 24th and 25th and August 7, 8, 9 being last weekend.” Ms Lees said that there were more nights she had [Child 1] than she had recalled during that telephone conversation. Ms Lees said that she and Mr Hackett continued to go through mediation during this period and finally reached an agreement for “50/50” care from 7 August 2020.

6. Mr Hackett told the Tribunal that Ms Lees had advised him she was unwell and he agreed to take [Child 1]. His records show this was from 22 May 2020. Mr Hackett said there was a period up to 12 weeks where [Child 1] was out of his care very irregularly (if at all). He said it got to a stage where he was “begging and pleading” for Ms Lees to have some care as [Child 1] was very much missing her mother. Mr Hackett said he had initially thought [Child 1] was going to stay with Ms Lees’ father and had not known Ms Lees would also be present – he indicated he had concerns about [Child 1] staying with Ms Lees whilst she remained unwell.

Application of the law

1. Care percentage determinations are governed by Subdivision B of Division 3 of Part 5 of the Child Support (Assessment) Act 1989. In very simple terms, if there is a change in the pattern, or likely pattern, of care, an existing determination is revoked and replaced by a new determination reflecting the new pattern of care.

2. It is important to observe that every care change is subject to a separate notification and separate decision. This application is concerned with the pattern, or likely pattern, of care for [Child 1] as of 22 May 2020, which I accept as the likely date the change occurred. Later changes in care (such as the one which took effect on 7 August 2020 giving each parent 50% care) are not before the Tribunal in this review.

3. Whilst the parties’ evidence diverged to some extent regarding the nights [Child 1] was not in Mr Hackett’s care during the relevant period, the parties agreed that the arrangements, such as they were, were “ad hoc” and there was no set night of the week or other regular pattern for [Child 1’s] care. I accept it likely [Child 1] spent a number of nights with Ms Lees – perhaps as much as a dozen or more – during the period 22 May 2020 to 6 August 2020.

4. However, the law requires that a “pattern” be established. I find that Ms Lees had requested Mr Hackett effectively take 100% care of [Child 1] whilst she was unwell; over time, on an ad hoc basis, Ms Lees commenced to take [Child 1] in her overnight care. I find that care was sporadic, and that this “fluid” situation persisted until, following medication, a new pattern of care was agreed to effective from 7 August 2020.

5. I therefore find no discernible pattern of care can be attributed to Ms Lees for the period 22 May 2020 to 6 August 2020. In light of that, I agree with the conclusion by Child Support to record Mr Hackett as having 100% care with effect from 22 May 2020. This does not mean I find Ms Lees had no overnight care thereafter – I have found that she did – however, as I have noted above, I have not found that there was any pattern or structure to the variable nights [Child 1] spent away from Mr Hackett’s primary care during the relevant period.

6. As I am not changing the objection decision, I am not required to consider Ms Lees’ (very) late objection and whether section 87AA of the Child Support (Registration and Collection) Act 1988 could be applied in her favour in the event I had changed the care parentage determination.

7. As I have reached the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.