Atkinson and Downing (Child support)

[2019] AATA 2525

Atkinson and Downing (Child support) [2019] AATA 2525 (24 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC015707

APPLICANT:  Mr Atkinson

OTHER PARTIES:  Child Support Registrar

Miss Downing

TRIBUNAL:Member J Thomson

DECISION DATE:  24 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court orders not complied with - 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

BACKGROUND

1. Mr Atkinson and Miss Downing are the parents of [Child 1], born 2003, and [Child 2], born 2010 (the children).

2. Mr Atkinson seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 24 November 2018. This decision allowed Miss Downing’s objection to an earlier Department decision dated 26 April 2018 to record Miss Downing as having 44% care and Mr Atkinson as having 56% care of the children from 1 January 2018, with effect from 3 April 2018. The objection decision determined that there was no change in care for the children on 1 January 2018.

3. The Tribunal heard the matter on 21 May 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documents provided by the Department, and documents provided by Mr Atkinson. Both parents had copies of the Department’s papers with them at hearing, and those documents were admitted into evidence and marked Exhibit 1.

4. Miss Downing did not have a complete set of copies of the documents provided by Mr Atkinson, but was content for the hearing to proceed. Mr Atkinson had copies of a complete set of the documents he provided, and these documents were admitted into evidence and marked Exhibit A.

5. At the conclusion of the hearing, Mr Atkinson was directed to provide further copies of calendar records of care, clearly identifying dates of care had by him during the care period, and Miss Downing was directed to provide a copy of a document she identified as the staged care agreement between her and Mr Atkinson. Mr Atkinson has complied with the Tribunal’s directions, and copies of the documents he provided have been added to Exhibit A and copies sent to Miss Downing for her consideration and comment. No response has been received from Miss Downing, nor has she complied with the Tribunal’s direction to provide a copy of the staged care agreement referred to above.

6. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what is likely to happen thereafter?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by both parents at the hearing and the documents contained in Exhibits 1 and A.

2. On 3 April 2018, Mr Atkinson notified the Department of a change in care which he said occurred on 1 January 2018.

3. The care percentages being assessed by the Department prior to Mr Atkinson’ notification on 3 April 2018 were 51% to Miss Downing and 49% to Mr Atkinson, effectively 50% equal shared care, pursuant to court orders made in the Federal Circuit Court of Australia at Townsville on 5 August 2015, a copy of which was before the Tribunal at pages 85 to 93, and pages 151 to 159 of Exhibit 1 (the Court Orders).

4. Both parents acknowledged and agreed at hearing that the intention of the Court Orders was to provide that the parents would have equal 50% shared care of the children. The Court Orders go to great lengths to achieve that result, setting out in precise detail arrangements for a progressive transition of care commencing with Mr Atkinson having five nights per week care of [Child 1] from after school on Wednesday, 12 August 2015 to commencement of school the following Monday in alternating weeks, progressing to week about overnight care, from after school on Monday to commencement of school the following Monday, commencing on Tuesday, 6 October 2015.

5. The care progression for Mr Atkinson with respect to [Child 2] from Wednesday, 12 August 2015 replicated the care arrangements for [Child 1] from that date, but extended until Tuesday, 2 February 2016. Thereafter, the Court Orders provided that Mr Atkinson would have care of [Child 2] from after school on Tuesday, 2 February 2016, to the commencement of school the following Monday, in alternate weeks, until Monday 11 April 2016, when each parent would have  week about care from after school Monday to the commencement of school the following Monday. The drafting of the Court Orders suggests that Mr Atkinson would have the first week of this week about care, commencing from 11 April 2016.

6. The provisions of the Court Orders for the gazetted school holidays for the March/April, June/July and September/October periods reflected Mr Atkinson having the first week in the even numbered years, and Miss Downing having the first week in the odd numbered years. For the Christmas holidays, December/January, Miss Downing was to have the first half (December) in the odd numbered years (notwithstanding the obvious typographical error in the drafting of the orders in paragraph 6(c)(iii)), and Mr Atkinson was to have the first half of those holidays in the even numbered years.

7. Relevantly, provision was made for special care arrangements for the Christmas Day/Boxing Day period; in the even numbered years, during which Mr Atkinson would have care of the children in the December half of the Christmas holidays, Miss Downing was to have care from 3:00 pm on Christmas Day to 3:00 pm on Boxing Day, and in the odd numbered years, when Miss Downing would have care of the children in the December half of the Christmas holidays, Mr Atkinson was to have care from 3:00 pm on Christmas Day to 3:00 pm on Boxing Day.

8. Mr Atkinson’ case at hearing was that Miss Downing breached the terms of the Court Orders when she failed to allow Mr Atkinson to have his 3:00 pm Christmas Day to 3:00 pm Boxing Day care during Miss Downing’s December 2015 half of the Christmas holidays. He gave evidence that he instructed his solicitors, [Law Firm 1], to write to Miss Downing, calling her attention to a number of issues arising from the conduct of the parties with respect to the Court Orders, including, relevantly, Miss Downing’s alleged breach of those orders as set out above, and proposing a variation in the Court Orders giving Mr Atkinson care of the children during the first half of the December 2017 Christmas holidays but excluding Miss Downing having care from 3:00 pm on Christmas day to 3:00 pm on Boxing Day in that year, to compensate for Mr Atkinson’ missed care from 3:00 pm Christmas Day to 3:00 pm on Boxing Day in 2015. In default of Miss Downing’s acceptance of that proposal, [the law firm] was instructed to initiate a contravention application.

9. A copy of [the law firm]’s letter was before the Tribunal at pages 126 to 130 of Exhibit 1.

10. The evidence at hearing suggests that Miss Downing partially agreed to Mr Atkinson’ solicitor’s proposal for the variation in the Court Orders as set out in [the law firm]’s letter: Mr Atkinson acknowledged this in his evidence at page A7, and the calendar of care records he provided for the calendar year May 2017 to December 2017 (see page A13 of Exhibit A), which he said, in evidence, reflected the care actually taking place in that period. The calendar he provided records him having care of the children on Christmas Day, and from 25 to 31 December 2017, followed by his second half of the December 2017/January 2018 School holidays commencing from Monday,1 January to Sunday,21 January 2018 (see page A14 of Exhibit A).

11. Evidence was provided by Mr Atkinson of court ordered care from 9 July 2013 (see pages A8 to A11 of Exhibit A) as well as the court ordered care from 5 August 2015 (see pages 85 to 93 of Exhibit 1). In addition to the calendar recorded care referred to in the preceding paragraph, Mr Atkinson also provided his interpretation of the court ordered care reflected in the Court Orders (5 August 2015) at pages A3 and A4 of Exhibit A.

12. Both sets of court orders reflect a common intention that the care of the children should be shared equally between the parents with week about care during school term and each parent having half of the gazetted school holidays, alternating, as to which parent had the first half of the gazetted school holidays in the April, June and September school holidays in odd and even years, but providing separate arrangements for the December/January school holidays.

13. While not necessarily relevant to the issues in this case, the court orders of 9 July 2013 clearly reflect how the shared care arrangements were to operate. The same cannot be said for the Christmas holiday arrangements reflected at paragraph 6(c)(iii) and (iv) Court orders of 5 August 2015 (see pages 88 and 89 of Exhibit 1). Sub-subparagraphs (iii) and (iv) are clearly conflicting, and therefore difficult to interpret and apply.

14. Miss Downing did not provide any evidence of the staged care progression to which she made reference in her evidence, and the best evidence of the care being provided by the parents at the relevant time is contained in the calendar records provided by Mr Atkinson at pages A3 to A4, A5 to A6, and A12 to A13 of Exhibit A. These calendar records reflect a consistent pattern of week about and holiday care of the children by each parent from January 2016 to April 2018.

15. The evidence of the parties at hearing suggests that there has been some confusion as a result of the conflicting terms of the Court Orders (5 August 2015) regarding which parent was to have the first half of the December/January school holidays commencing in January 2015, but an analysis of Mr Atkinson’ calendar records at pages A5 to 86, and A12 to A13 clearly reflects a pattern of week about care during school term, alternating equal weekly care periods in the odd and even years during the April, June and September school holidays, and the first and second halves of the December/January school holidays in alternating odd and even years, notwithstanding the conflicting and confusing terms of paragraph 6(c)(iii) and (iv) of the 5 August 2015 Court Orders.

16. The analyses conducted by Mr Atkinson of the actual nights of care reflected in the calendars of actual care he provided reflected totals of 202 nights of care for the period January 2016 to December 2016 (see Exhibit A, pages A5 and A6), and 193 nights of care for the period May 2017 to April 2018, nights of care in excess of the normal 184 nights of care equating to 50% shared equal care. It was on the basis of this analysis that he sought a change in care, asserting he was having 56% care and Miss Downing was having 44% care.

17. Miss Downing’s evidence was to the effect that although there had been some departures from the strict terms of the Court Ordered (5 August 2015) care pattern, the departures had largely been consensual (the Court orders provided for mutually agreed changes to the care pattern), and were attributable to changing circumstances in the normal course of family contingencies, and not significant, or intended to be of a permanent nature.

18. Although Mr Atkinson was able to point to increases in the level of his care beyond that which would equate to 50% shared equal care, as intended by the Court Orders, the variations amount to approximately 18 and 11 nights of care by reference to the calculations referred to in paragraph 22 above, and are not sufficient to suggest there was a significant departure from the court ordered pattern of shared equal 50% care for the children.

19. Section 50 of the Act requires the Tribunal to consider the pattern of care up until the change in care notified by Mr Atkinson on 3 April 2018, which he said occurred on 1 January 2018, and the likely pattern of care thereafter. The legislation is couched in terms of patterns of care as distinct from precise calculations of actual nights of care.

20. The Tribunal finds that the evidence, on balance, is that the pattern of care for the children up until 1 January 2018 was shared equal 50% care, and that the likely pattern thereafter was shared equal 50% care, and consequently, there was no change in care on 1 January 2018.

21. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision

DECISION

The decision under review is affirmed.