Ardley and Ardley (Child support)

[2021] AATA 1261

Ardley and Ardley (Child support) [2021] AATA 1261 (26 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020523

APPLICANT:  Mr Ardley

OTHER PARTIES:  Child Support Registrar

Ms Ardley

TRIBUNAL:Member R King

DECISION DATE:  26 March 2021

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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

BACKGROUND

1. Mr Ardley and Ms Ardley are the parents of [the child], who is currently aged 6 years.  Under an administrative assessment, the Child Support Agency (CSA) has been collecting child support from Mr Ardley for payment to Ms Ardley.

2. Care arrangements for [the child] were set out in an order of the Federal Circuit Court of Australia, dated 12 December 2017.  Under this order, [the child] was to live with his mother and Mr Ardley was to provide periods of care, as specified.  The care arrangements took into account the likelihood that Mr Ardley and Ms Ardley would not be living in close proximity to each other.  The order allowed for Mr Ardley to provide blocks of care for [the child].  The particulars of these blocks were to change when [the child] commenced school.  Overall, the orders allowed for Mr Ardley to have approximately 40 nights of care of [the child].

3. Notwithstanding the court order, the CSA determined on 27 May 2020 that Ms Ardley was providing 98% of [the child]’s care and that Mr Ardley was providing 2% of his care.  On 24 August 2020 (more than 28 days after the care percentage decision), Mr Ardley objected to this decision.

4. On 29 October 2020, an objections officer disallowed Mr Ardley’s objection.  The objections officer accepted Ms Ardley’s evidence that Mr Ardley had provided only 10 nights of care from December 2019.  The objections officer decided that this amount of care did not provide a basis for disturbing the original decision.  The objections officer did not give consideration to an interim care period and was not required to give consideration to the late application.

5. On 22 December 2020 (more than 28 days after receiving the objection decision), Mr Ardley applied to the tribunal for review.  Ms Ardley applied to be added as a party to Mr Ardley’s application.  Her application was accepted.

6. The tribunal conducted a hearing on 24 March 2021.  Both Mr Ardley and Ms Ardley participated in the hearing by  telephone and provided sworn evidence.  The tribunal was assisted by [an interpreter].  The tribunal also took sworn evidence from Mr Ardley on 25 March 2021.  This evidence was primarily concerned with the reasons he applied to the tribunal more than 28 days after the objection decision but also clarified some parts of the evidence he had provided at the time of the initial hearing.

CONSIDERATION

1. Mr Ardley told the tribunal that he was entitled to 40 nights of care under the court order, until [the child] commenced school.  Once [the child] commenced school, the order specified a pattern of care during the holidays.  Mr Ardley said that he had endeavoured to provide the care specified under the order.  He accepted that he had only provided 10 nights during the December 2019 /January 2020 period.  He said that he was unable to provide the scheduled 10 nights of care during the April 2020 school holidays because of travel restrictions imposed under the COVID-19 pandemic.  He said that he tried to arrange a catch‑up care period for September 2020 but that Ms Ardley had been uncooperative as this was not one of the care periods specified under the court order.  Mr Ardley said that Ms Ardley had a history of not cooperating in the implementation of the court order and that he would provide the tribunal with documents showing that he had taken reasonable steps to enforce the court order.

2. Ms Ardley said that the main reason Mr Ardley had not been providing the care specified in the court order was because of his work arrangements.  She said that his own evidence in a more recent court hearing confirmed that this was the case.  She said that she did not believe that he was as committed to providing care for [the child] as he professed himself to be and that he had not been providing care in accordance with the court orders since 2018.

3. Mr Ardley told the tribunal that his delay in applying to the tribunal was because he did not receive a copy of the objection decision.  He said that he only became aware of the objection decision when he contacted the CSA in December 2020 and was told about it.  He applied to the tribunal shortly after this conversation.  Mr Ardley said that he moved from [City 1] to [City 2] in November but had his mail redirected. 

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the Child Support Agency for an assessment, the pattern of care must be determined and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA determined, on 27 May 2020, that Mr Ardley had 2% of the care of [the child] and Ms Ardley had 98% of [the child]’s care (the original care decision).

3. It is not in dispute that Mr Ardley was providing minimal care at the time of the original care decision.  He had provided only 10 nights of care during the preceding 12 months and had not provided care during a scheduled care period in April 2020.  Mr Ardley has nonetheless submitted that the care percentage recorded should be in accordance with the court order.  The basis for his submission is that he was endeavouring to comply with the order at all relevant times.

4. The tribunal can determine an interim care period, under section 51 of the Act, if it is satisfied that [the child]’s care on 27 May 2020 was not compliant with the court order because Ms Ardley was withholding [the child] and Mr Ardley took reasonable action to ensure that the care arrangement specified in the court order was complied with. Reasonable action would usually be prompt and of a type that could be expected to result in compliance.

5. The evidence in the hearing papers includes an affidavit signed by Ms Ardley in July 2020.  This affidavit sets out the care provided by both parents from 2018.  In this document, Ms Ardley acknowledged that she withheld care on one occasion in 2018 because of a dispute regarding [the child]’s passport.  She stated that in 2019, Mr Ardley failed to contact her to make arrangements for an episode of care on three occasions and did not provide any care until late December. 

6. The tribunal discussed Ms Ardley’s affidavit with Mr Ardley.  He said that he was not in a position to provide care in 2019 because he had exhausted his savings in legal costs incurred because of disputes with Ms Ardley and had a sum of approximately $20,000 owing to his solicitors.  He was living in [City 1] and was unable to meet the costs of travel to [City 2].  For much of the time, he was dependent on Centrelink payments but he was able to undertake some seasonal work from July until the end of September.  This work reduced his capacity to provide care but he had no option but to take it because of his desperate financial position.

7. The tribunal accepts that Mr Ardley intended and wanted to provide care of [the child] in accordance with the court orders. The tribunal also accepts that factors substantially beyond his control affected his ability to provide the care he wished to provide. However, this alone is insufficient to apply section 51 of the Act. This provision is usually applied in circumstances where one parent is withholding care and the other parent is taking action to enforce the court order. The tribunal is not satisfied that Ms Ardley withheld [the child] from Mr Ardley during 2019 or 2020. Furthermore, while there is evidence that Mr Ardley was active in seeking to enforce the court order during 2018, in 2019 and 2020 he was simply unable to provide the care specified in the order.

8. It follows that there is no basis for determining an interim care period and any determination regarding the care percentages for [the child] have to be based on the actual pattern of care at the time and not on the care specified in the court order, however much Mr Ardley may have intended and wanted to provide the care specified.

9. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent.

10. In this case, the tribunal is satisfied that the evidence regarding [the child]’s actual care in May 2020 is broadly consistent with the section 50 determination that Ms Ardley had 98% of his care and Mr Ardley had 2% of his care. This means that there is no basis for the application of section 54F of the Act.

11. It follows that the objections officer reasonably and lawfully disallowed Mr Ardley’s objection to the original care determination.

12. As the tribunal is affirming the decision under review, it is not required to determine whether there were special circumstances that prevented Mr Ardley from applying to the tribunal within 28 days of the objection decision.

DECISION

The tribunal affirms the decision under review.