Anstead and Anstead (Child support)

[2023] AATA 4006

Anstead and Anstead (Child support) [2023] AATA 4006 (25 October 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026301

APPLICANT:  Ms Anstead

OTHER PARTIES:  Child Support Registrar

Mr Anstead

TRIBUNAL:Member S Irvine

DECISION DATE:  25 October 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determinations in relation to [Child 1] and [Child 2] are revoked on 22 January 2023, and new care determinations are made as follows:

·      With respect to [Child 1], Ms Anstead has 32% care and Mr Anstead has 68% care, effective in the child support assessment from 23 January 2023.

·      With respect to [Child 2], Ms Anstead has 18% care and Mr Anstead has 82% care, effective in the child support assessment from 23 January 2023.

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. Ms Anstead and Mr Anstead are the parents of [Child 1] and [Child 2], born in 2008. A child support assessment started on 1 February 2020.

2. Prior to the decision under review, Services Australia – Child Support (Child Support) had recorded that the parents had shared care (approximately 50% care each) of the two children.

3. On 2 April 2023 Child Support made new care decisions for both children. According to those decisions Mr Anstead had 100% care of [Child 1] and 79% care of [Child 2] from 2 January 2023, reflected in the child support assessment from 10 February 2023, and Ms Anstead had 0% care of [Child 1] and 21% care of [Child 2] from 2 January 2023, reflected in the child support assessment from 2 January 2023.

4. On 4 April 2023 Ms Anstead objected to the decision of 2 April, and on 22 June 2023 Child Support dismissed the objection, which meant the decision of 2 April 2023 was not changed.

5. On 23 June 2023 Ms Anstead applied to the Administrative Appeals Tribunal (the Tribunal) for a review of Child Support’s decision. Ms Anstead’s application was heard on 25 October 2023. Ms Anstead and Mr Anstead both attended the hearing by conference telephone.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act). Unless otherwise specified, legislative references in these Reasons for Decision are references to the Assessment Act.

2. The issues arising in this case are:

   ·      whether the existing care percentage determinations for [Child 1] and [Child 2] should be revoked, and if so, what new care determinations should be made; and

   ·      whether any interim care determination should be made.

CONSIDERATION

1. Prior to January 2023 the child support assessment for [Child 2] and [Child 1] was on the basis that both children were in the shared care of Mr and Ms Anstead, with each parent providing approximately 50% care for the two children.

2. According to the documents provided by Child Support, Mr Anstead contacted Child Support on 10 February 2023 and advised that there had been a change in the care of both children on 2 January 2023, and that from that date he had 100% care of [Child 1] and that [Child 2] was staying with Ms Anstead three nights per fortnight, but was otherwise in Mr Anstead’s care. On 13 February Child Support spoke with Ms Anstead, who indicated she did not agree with the information reported by Mr Anstead. During that conversation Child Support has recorded that Ms Anstead said she had been expecting [Child 1] to be returned to her care on 23 January 2023, and that she now expected [Child 1] to be back in her care on 17 February. Further notes of conversations indicate that Ms Anstead told Child Support she felt Mr Anstead was withholding care of the children.

3. In support of her objection to Child Support’s decision, Ms Anstead provided copies of diary pages covering a period from 28 January 2023 to May 2023, showing days that she had the children in her care over that period as well as notes of various activities and expenditure for the children. She also provided copies of calendar pages for the months of February through June 2023, which specify days she had each child in her care, although they appear to have been received by Child Support after the finalisation of the objection decision.

4. The diary pages and calendar entries show that Ms Anstead says she had care of the children as follows from February to June 2023:

   [Child 2]:

   ·      3, 4, 5, 17, 18 and 19 February

   ·      3, 4, 5, 17, 18 and 19 March

   ·      10, 11, 12, 13, 14, 15, 16, 17, 19 and 30 April

   ·      1, 2 and 12 May

   ·      9, 10 and 11 June

   [Child 1]:

   ·      17, 18 and 19 February

   ·      3, 4, 5, 6, 7, 8, 9, 17, 18, 19, 20, 21, 22 and 23 March

   ·      10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29 and 30 April

   ·      1, 2, 3, 4, 12, 16, 17, 18, 26, 27, 28, 29, 30 and 31 May

   ·      1, 9, 10, 11, 12, 13, 14 and 15 June

5. Ms Anstead also provided a copy of a court order made in the Federal Circuit Court of Australia on 19 June 2019 and amended on 28 September 2020. Under the terms of that order, the children [Child 1] and [Child 2] are to reside with Ms Anstead, and broadly they are to spend time with Mr Anstead for four nights each fortnight and half of each school holidays.

6. At hearing, Ms Anstead gave evidence that the care of the children had initially been in accordance with the court order. However, around the middle of last year the children started telling her they would be spending more time with their father, and from that time the pattern changed to around 50% for each parent.

7. For the 2022/23 holidays the children spent the first half of the holidays with her and then were with Mr Anstead from 2 January. She was expecting them to be back in her care when school went back, around 23 January. However, they did not return to her care when she was expecting them. In the end [Child 2] returned to her care on 3 February and [Child 1] returned on 18 or 19 February.

8. Since then, care has been in dribs and drabs. Ms Anstead said she finds this difficult as she is never sure when the children will be with her, it is difficult to plan and she is concerned for their safety because of the lack of certainty.

9. Ms Anstead confirmed that the records contained in the calendars she provided to child support are in accordance with her records of when the children were in her care. In addition, she said that she has had care of the children on the following dates:

   [Child 2]:

   ·      3, 4, 5, 6 and 7 July

   ·      4, 5, 6, 18, 19 and 20 August

   ·      1, 2, 7, 26, 27, 28, 29 and 30 September

   ·      1, 12, 13 and 14 October

   [Child 1]:

   ·      3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 24, 25, 26 and 27 July

   ·      18, 19, 20 and 23 August

   ·      1, 2, 7, 26, 27, 28, 29 and 30 September

   ·      1, 2, 13, 14, 15, 16, 17, 18 and 23 October

10. Ms Anstead said that she has tried to have more care of the children. She has called the police on occasion when she hasn’t seen the children for a period of time and has spoken to Child Safety. She has been told that the only thing she can really do to enforce the court orders is to take the matter back to court. She has not taken any steps to do that, because she is concerned about the cost and she is concerned that if she did go back to court the outcome might be worse.

11. In relation to the future care of the children, she is hoping that her care will continue or increase, but she can’t say for certain what will actually happen as it is not in her control. Her preference would be to go back to the care pattern set out in the Federal Circuit Court orders.

12. Mr Anstead also provided to the Tribunal copies of calendar pages setting out the care he has had of the children. Mr Anstead explained that the way he marks the calendars is that he places a cross on any day when he has either child in his care. If he only has one child in his care, he also adds the initial of the child who is in his care.

13. On that basis, the calendars provided by Mr Anstead agree with the calendars submitted by Ms Anstead and Ms Anstead’s evidence at hearing of her care of the children apart from the following discrepancies:

    ·      On 1 June, Mr Anstead’s calendar indicates he had both children in his care, while Ms Anstead’s calendar indicates she had [Child 1] in her care.

    ·      Dates for July differ somewhat. Mr Anstead’s calendar indicates that both children were in Ms Anstead’s care from 3 to 7 July and on 30 and 31 July, and that [Child 1] was also in Ms Anstead’s care from 10 to 18 July and on 29 July. Overall, according to Mr Anstead’s calendar Ms Anstead had care of [Child 2] for 7 nights, and of [Child 1] for 17 nights in July. According to the evidence given by Ms Anstead she had care of [Child 2] for 5 nights and of [Child 1] for 15 nights in July.

    ·      In August, Mr Anstead’s calendar shows that he had care of both children every day except from 18 to 20 August. Ms Anstead’s evidence is that she also had care of [Child 2] from 4 to 6 August and for [Child 1] on 23 August.

14. Both parents have been open and honest with the Tribunal about the care that has actually taken place for the children. I am satisfied that the minor discrepancies in their records are inadvertent, and in any event make very little difference to the overall level of care. In relation to June and August I find that Ms Anstead’s records are the more detailed and so I accept her records. In relation to July, while there is some difference in dates there is no substantial difference in the number of nights each parent says the children were in their care. I accept that Ms Anstead had [Child 1] in her care on 1 June. In July I find that Ms Anstead had care of [Child 1] for a total of 16 nights, and of [Child 2] for a total of 6 nights. In August I accept that Ms Anstead had care of [Child 2] from 4 to 6 August, care of both children from 18 to 20 August and care of [Child 1] on 23 August.

15. In relation to the Federal Circuit Court Order, Mr Anstead indicated that he has received advice that orders don’t need to be followed because the children are old enough to make up their own mind, and that if someone wants the orders enforced they have to go back to court. He said he does not want to go back to court, as it would cost a great deal of money and he doesn’t have that money to spare. As far as he is concerned, the children can make their own decisions about where they stay, and he is not withholding care, he is just leaving it up to the children. He pointed out that this also happened with their older daughter, who has lived mainly with Ms Anstead for the past two years, which is also not in accordance with the Federal Circuit Court order.

16. In relation to future care, he can’t say for sure. He thinks [Child 2] is likely to continue a pattern of around three nights every fortnight with his mother. For [Child 1] he doesn’t know. He expects the children will spend some time with Ms Anstead over the upcoming summer holidays but he couldn’t really say how much.

Should the existing care determinations be revoked, and should new care determinations be made?

1. The Assessment Act provides at sections 49 and 50 that a new care determination must be made for a child in certain circumstances, including where an existing care determination is revoked.

2. In this case, the existing care determinations in relation to the children are that for [Child 2] Mr Anstead had 51% care and Ms Anstead had 49% care, and for [Child 1] Mr Anstead had 49% care and Ms Anstead had 51% care.

3. The provisions for revoking an existing care determination are contained in sections 54F, 54G and 54H. Relevantly in this matter, subsection 54F(1) provides that a care determination must be revoked if:

   ·      the care of the child that is actually taking place does not correspond with a parent’s existing percentage of care for the child;

   ·      a new care determination corresponding with the parent’s actual care would change that parent’s “cost percentage” for the child; and

   ·      section 54G does not apply and subsection 54F(2) does apply.

4. I am satisfied that in this matter all the elements set out in subsection 54F(1) are present, and the existing determinations must be revoked under section 54F.

5. A new care determination must be made under section 50 if a parent has a pattern of care for the child during a care period. The care period is “such period … as the Registrar considers appropriate having regard to all the circumstances.”

6. In this matter, I am satisfied there was a change from the previous pattern of care from 23 January 2023. That was the day that, under the previous arrangement, the children were expected to return to their mother’s care. As the actual day-to-day care of the children is unpredictable, I consider that in this matter the appropriate care period over which to consider the care is the period from 23 January 2023 until the day before the hearing of this matter, 24 October 2023.

7. The percentage of care determined for each child must be a percentage that corresponds with the actual care of the child the parent has had, or is likely to have, during the care period (subsection 50(3)). The actual care may be worked out based on the number of nights the child was in the care of the parent during the care period (subsection 54A(1)).

8. The care period from 23 January 2023 to 24 October 2023 is a period of 275 days. I am satisfied that over that period Mr Anstead had care of the children except for the following nights, when the children were in the care of Ms Anstead:

   [Child 1] – a total of 88 nights over the care period, being:

   ·      17, 18 and 19 February

   ·      3, 4, 5, 6, 7, 8, 9, 17, 18, 19, 20, 21, 22 and 23 March

   ·      10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 29 and 30 April

   ·      1, 2, 3, 4, 12, 16, 17, 18, 26, 27, 28, 29, 30 and 31 May

   ·      1, 9, 10, 11, 12, 13, 14 and 15 June

   ·      A total of 16 nights in July

   ·      18, 19, 20 and 23 August

   ·      1, 2, 7, 26, 27, 28, 29 and 30 September

   ·      1, 2, 13, 14, 15, 16, 17, 18 and 23 October

   [Child 2] – a total of 52 nights over the care period, being:

   ·      3, 4, 5, 17, 18 and 19 February

   ·      3, 4, 5, 17, 18 and 19 March

   ·      10, 11, 12, 13, 14, 15, 16, 17, 19 and 30 April

   ·      1, 2 and 12 May

   ·      9, 10 and 11 June

   ·      A total of 6 nights in July

   ·      4, 5, 6, 18, 19 and 20 August

   ·      1, 2, 7, 26, 27, 28, 29 and 30 September

   ·      1, 12, 13 and 14 October

9. I therefore find that over the care period the actual care of [Child 1] has been 32% with Ms Anstead and 68% with Mr Anstead, and the care of [Child 2] has been 18% with Ms Anstead and 82% with Mr Anstead. As those care percentages are different to the existing percentages of care for [Child 1] and [Child 2], the existing care determinations must be revoked.

10. I have found the change of care day for both [Child 1] and [Child 2] is 23 January 2023. Mr Anstead advised Child Support of the change of care on 8 March 2023. Therefore the existing care determinations for both parents in relation to both children are revoked on 22 January 2023, pursuant to paragraph 54F(3)(a).

Should an interim care determination be made?

1. Ms Anstead has raised the fact that the care of the children has not been in accordance with the court orders made in the Federal Circuit Court, and that her strong preference is that the care of the children should follow those court orders.

2. Where there is a care arrangement, and the actual care of a child is not taking place in accordance with that care arrangement, the care that should be occurring under the care arrangement can only be taken into account in a child support assessment if section 51 of the Assessment Act applies. That section will apply if:

   ·      a care arrangement applies in relation to a child;

   ·      the actual care of the child a parent has does not comply with the extent of care the parent should have under the care arrangement; and

   ·      the parent who has reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

3. The order made in the Federal Circuit Court on 19 June 2019 and amended on 28 September 2020 is a care arrangement within the meaning of the Act. I am satisfied that the order remains in force and has not been set aside, and so it is a care arrangement that applies to [Child 1] and [Child 2].

4. Ms Anstead’s evidence is that the court order was followed up until about the middle of 2022. Since then the children have had more care with their father than is allowed for in the court order, and since the end of the January 2023 school holidays the order hasn’t been followed at all.

5. Ms Anstead has taken some steps to try to gain more care of the children but her evidence is that she has not taken any action to actually enforce the orders, as she understands this would involve going back to court, and she can’t afford to do that.

6. While I accept that Ms Anstead would like the children to be in her care in line with the arrangements set out in the court order, I find that she is not taking action to ensure compliance with the court order. The requirements in section 51 are not met, and so the care that is reflected in the child support assessment must be the care that is actually occurring.

Application of new care determinations

1. The new care determinations for [Child 1] and [Child 2] will apply from 23 January 2023, pursuant to subsection 54B(1A).

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determinations in relation to [Child 1] and [Child 2] are revoked on 22 January 2023, and new care determinations are made as follows:

·      With respect to [Child 1], Ms Anstead has 32% care and Mr Anstead has 68% care, effective in the child support assessment from 23 January 2023.

·      With respect to [Child 2], Ms Anstead has 18% care and Mr Anstead has 82% care, effective in the child support assessment from 23 January 2023.