Amara and Amara (Child support)

[2018] AATA 2281

Amara and Amara (Child support) [2018] AATA 2281 (17 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013732

APPLICANT:  Mr Amara

OTHER PARTIES:  Mrs Amara

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  17 May 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentages of care – Determination of the likely pattern of care – No change in 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 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

1. Mr Amara and Mrs Amara are the parents of [Child 1] who was born in 2001 and [Child 2] who was born in 2002. A child support case was registered in 2004.

2. From 11 September 2017 the Department of Humans Services – Child Support (“the CSA”) recorded Mrs Amara as providing 100% care to both children. On 10 November 2017, Mr Amara informed the CSA that he had started providing a pattern of care from 3 November 2017 which consisted of three nights of care per fortnight during school terms as well as care during half the school holidays plus an additional week of care during one of the shorter school holidays. On 27 November 2017 the CSA decided to record Mr Amara as providing 32% care and Mrs Amara as providing 68% care from 3 November 2017.

3. Mrs Amara promptly objected to that decision. An objections officer allowed her objection and decided not to record a change in care from 3 November 2018. Mrs Amara was consequently recorded as continuing to provide 100% care from 3 November 2018.

4. Mr Amara promptly sought further review by the Tribunal. I conducted a hearing on 17 May 2018. I spoke to Mr Amara and Mrs Amara by conference phone.

5. The following matters are not in dispute. There are no formal care arrangements such as Court orders or a written parenting plan in respect of the parents’ care of the children. Mr Amara provided care on the following nights: 3, 4 & 5 November 2017; 17, 18 & 19 November 2017; 30 November & 1 December 2017; and 18, 19, 20 & 21 December 2017. He did not provide care again until 2, 3 & 4 February 2018.

6. The Child Support (Assessment) Act 1989 (“the Act”) provides for the making of care decisions. Relevantly, section 50 of the Act requires the decision-maker to determine the pattern of care, if any, that each parent “has had, or is likely to have”, during the relevant care period.

7. Mr Amara’s evidence, so far as it is relevant to section 50 of the Act, can be summarised as follows. Mr Amara and Mrs Amara do not communicate because they are unable to agree on anything. When Mr Amara decided to provide the pattern of care referred to above he did so after consulting the children but he did not consult Mrs Amara. Mr Amara planned to take [the two children] to [Country 1] over the 2017-18 Christmas school holidays. From approximately April 2017 the children repeatedly told Mr Amara that Mrs Amara had stated that she would not sign the documentation necessary for the children to be issued with passports, i.e. the children would be unable to accompany Mr Amara to [Country 1]. It transpired that Mrs Amara did not sign that documentation and Mr Amara travelled to [Country 1] over the 2017‑18 Christmas school holidays without the children.

8. On Mr Amara’s account of events, the care that he actually provided was very similar to the care that he had been likely to provide as at the date he informed the CSA of a change in care, namely, that he would provide care for a few alternate weekends from the start of November 2017 until shortly after the start of the 2017‑18 Christmas school holidays and then he would cease providing care until the start of February 2018, and only then would he start providing the pattern of care that he stated he would be providing from November 2017. Nevertheless, he provided some care in November and December 2017, but not all care constitutes a pattern of care. The question arises as to whether Mr Amara’s provision of a few alternate weekends of care constituted a pattern of care in the context of a previous cessation of care and another imminent cessation of care. On balance, I am not persuaded that it did.

9. Mr Amara and Mrs Amara raised a number of issues upon which they disagreed but which were not relevant to the proceedings. However, Mrs Amara agreed that she had indicated to the children that Mr Amara had not persuaded her that she should agree to the children being issued with passports so that they could travel with him to [Country 1].

10. I find that when Mr Amara contacted the CSA on 10 November 2017 he was not providing a pattern of care for the purposes of section 50 of the Act. The decision under review will be affirmed.

11. The effect of Mr Amara’s submissions was that the pattern of care he intended to provide from November 2017 commenced in February 2018. That is a matter that he can raise with the CSA directly.

12. On the morning of the hearing Mr Amara provided additional documentation to the Tribunal. If a party intends to rely on documentary evidence, they should provide it to the Tribunal at least 14 days prior to the hearing: subsection 10(7) of the Child Support Review Directions. After hearing oral evidence from both parents I decided not to accept Mr Amara’s additional documentation into evidence. It will therefore not be exchanged between the parties.

DECISION

The decision under review is affirmed.