Wilcox and Hoggard (Child support)

[2020] AATA 1404

Wilcox and Hoggard (Child support) [2020] AATA 1404 (11 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018281

APPLICANT:  Mr Wilcox

OTHER PARTIES:  Ms Hoggard

Registrar Child Support Agency

TRIBUNAL:  Member S Cullimore

DECISION DATE:  11 March 2020

DECISION:

The decision under review is set aside and a new care determination is made that the care percentage of Mr Wilcox is 14% with effect in the child support assessment from 1 July 2017 and the care percentage of Ms Hoggard is 86% with effect in the child support assessment from 14 January 2019.

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 – 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 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 Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

1. Ms Hoggard and Mr Wilcox are the parents of three children now aged 14, 12 and 11.

2. There are no court orders or other written arrangements about care.

3. Care was previously recorded as 79% care to Ms Hoggard and 21% to Mr Wilcox from 1 January 2011.

4. On 14 January 2019 Ms Hoggard contacted the CSA and notified a care change. She stated that Mr Wilcox had had a regular pattern of care of the children of one night of care per week but this pattern had broken down.

5. Mr Wilcox did not agree with the notified care change. He stated that (with some interruptions) he was still having regular care of the children of one night per week (ie 14% care).

6. On 7 May 2019 a delegate decided to make a new care determination, namely that care was 88% to Ms Hoggard from 14 January 2019 (date of notification) with 12% care to Mr Wilcox from 1 July 2018 (date of event).

7. On 8 May 2019 Mr Wilcox lodged an objection to the delegate decision.

8. On 23 January 2020 an objections officer disallowed that objection.

10.On 24 January 2020 Mr Wilcox sought a further review of that decision by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

11.The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C160.

1. The parents attended the hearing on 11 March 2020 via teleconference and gave evidence and made verbal submissions.

ISSUES

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

·Was there in fact a change in the pattern of care of the children by Mr Wilcox?

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

·Which of the provisions of the Child Support (Assessment) Act 1989 (“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

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

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

16.The legislative scheme requires a new care percentage determination to be made following each notification to the CSA of a change of the care arrangements.

17.Where, as here, there are no court orders or other legally binding arrangements, care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Act. However, where a parent has no regular pattern of care at all, their care percentage must be fixed at nil: section 49 of the Act.

18.Actual care may be worked out based on the number of nights that the child was or is likely to be in the care of the person: section 54A.

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

20.Changes to the care percentages are not necessarily reflected in the parents’ cost percentages. A cost percentage is the proportion of the costs of care of a child a parent is deemed to meet via providing care. Cost percentages (not care percentages) are added into the formula for the calculation of child support. A care percentage of between 14% and 35% translates to a cost percentage of 24%. A care percentage of less than 14% translates to a cost percentage of 0%.

21.Section 54F states that if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s cost percentage, then the Registrar must revoke the old care determination and make a new care determination. If no change occurs in the person’s cost percentage, then the Registrar may revoke the old care determination and may make a new care determination (section 54G).

22.New rules apply where the care change is on or after 1 July 2018, or where the notification is on or after 1 January 2019. For the person with increased care the care change takes effect from date of notification, for the person with reduced care the care change takes effect from the date care in fact changed.

23.The Tribunal’s role in care percentages cases is that it may only review the legal correctness of the delegate decision (on 7 May 2019), based on what evidence was available to the original decision maker, as supplemented by any further relevant material supplied to the objections officer, and of course any further relevant information supplied to the Tribunal.

24.The key issue, then, for the Tribunal is whether a new pattern of care,[1] or a state of affairs where there was no actual pattern of care for one parent at all, had come into existence as at 7 May 2019. Mere changes in what care is taking place, or minor interruptions of care, or the fact of some missed care events, do not necessarily add up to a new pattern of care, or to there being no pattern of care for one parent at all.

[1] ie replacing the “old” pattern of care of 79%/21%.

25.Ultimately, it is a question of fact in each case.

26.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. [My emphasis].

27.The Child Support Guide also states that a change in care occurs where (i) 20% of care events are missed; (ii) 3 care events in a row are missed; or (iii) 5 out of 8 care events are missed. These matters are a guide only, but for consistency of decision making should be applied unless there is some good reason not to do so.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

28.The Tribunal considered all of the information on the CSA file including the verbal and documentary evidence as presented by the parents to it, and the evidence and submissions presented by them to it.

29.Ms Hoggard told the Tribunal that the “old” pattern of care of 21% care to Mr Wilcox had in fact stopped as long ago as 2012, but she could not precisely recall when.

30.Mr Wilcox told the Tribunal that the “old” pattern of care of 21% care to him had stopped “about three or four years ago” when his work commitments had prevented him from having care on each alternative Friday as well as the regular Saturday night care.

31.Neither had any care records or diaries relating to this period.

32.This change in care was never notified to the CSA, although it would not have altered the cost percentages (see above).

33.Doing the best it can on this evidence, the Tribunal has determined that care changed from 21% care to Mr Wilcox to 14% care to Mr Wilcox on 1 July 2017.

34.The Tribunal then considered whether the care of Mr Wilcox became less than 14% of care after about June or July 2018, being the matter notified to the CSA by Ms Hoggard.

35.The Tribunal considered that a care period of about 12 months is appropriate in this matter to enable it to determine this issue.

36.It was not disputed and the Tribunal has concluded that, between 1 June 2018 and the delegate decision, 7 May 2019, Mr Wilcox missed the following care nights:

2018

August 11; September 15 and 22; October 27; November 24; December 15;

2019

January 19 and 26; March 16 and 30.

37.The Tribunal finds that, overall, between 1 June 2018 and the delegate decision, 7 May 2019, which was 48 weeks, Mr Wilcox missed 10 nights of care. This equals 20.8% of care events missed. He missed two consecutive nights of care on two occasions: in September 2018 and in January 2019. He never missed three care events in a row or five care events out of eight.

38.The Tribunal accepts that employment demands and personal issues caused these interruptions.

39.The Tribunal finds in all the circumstances that Mr Wilcox had a regular pattern of care of 14% from 1 July 2017 onwards and that this pattern of care has not been interrupted and has not broken down.

40.In those circumstances, section 50 of the Act applies (actual care), and not section 49 (nil care where there is no pattern of care at all).

41.As the care change was notified after 1 January 2019 and more than 28 days after the change of care occurred (1 July 2017), the care percentage of Mr Wilcox is 14% with effect in the child support assessment from 1 July 2017 (date of event) and the care percentage of Ms Hoggard is 86% with effect in the child support assessment from 14 January 2019 (date of notification).

42.This new care decision (86%/14%) will change the cost percentages of both parents and so this new care determination must be made.

43.From 1 July 2018 Mr Wilcox’ cost percentage will be 24% and not 0%, as was the case under the objection decision. His cost percentage for the period 1 July 2017 to 30 June 2018 will not be affected by this decision. The cost percentage of Ms Hoggard from 14 January 2019 will now reduce from 100% to 76%.

44.The child support liability of Mr Wilcox should now be recalculated accordingly.

DECISION

The decision under review is set aside and a new care determination is made that the care percentage of Mr Wilcox is 14% with effect in the child support assessment from 1 July 2017 and the care percentage of Ms Hoggard is 86% with effect in the child support assessment from 14 January 2019.

The application for review is therefore partly successful.