Atterbury and Markson (Child support)

[2019] AATA 1189

Atterbury and Markson (Child support) [2019] AATA 1189 (10 April 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015160

APPLICANT:  Mr Atterbury

OTHER PARTIES:  Child Support Registrar

Mrs Markson

TRIBUNAL:Member J Thomson

DECISION DATE:  10 April 2019

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 - existing percentage of care determinations are to be revoked and new determinations made - court orders not complied with - reasonable action not taken - interim period not applied - 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 Atterbury and Mrs Markson are the parents of [Child 1], born 2005.

2. Mr Atterbury seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 3 October 2018. This decision allowed Mrs Markson’s objection to a decision dated 13 August 2018 to reflect that Mr Atterbury and Mrs Markson were providing shared equal care for [Child 1] for an interim period from 11 May 2018 to 17 August 2018. The objections officer set aside that decision, and decided to refuse to reflect an interim care determination with respect to [Child 1] for a period of 14 weeks, and record Mrs Markson as providing 100% care for [Child 1] from 11 May 2018.

3. The Tribunal heard the matter on 19 February 2019. Both parents attended the hearing via conference telephone, and gave affirmed evidence. The Tribunal had before it documentation provided by the Department. Both parents had copies of these papers with them at hearing. The Department’s documentation was admitted into evidence and marked Exhibit 1.

4. Shortly after the commencement of the hearing, and after he had given evidence as to the issues he considered relevant to the Tribunal’s review of the objections officer’s decision of 3 October 2018, Mr Atterbury informed the Tribunal he did not wish to participate further in the hearing process and terminated the conference telephone call.

ISSUES

1. The issue which arises in this case is whether Mr Atterbury had taken reasonable steps to ensure the care arrangement pursuant to orders of the Federal Magistrates Court of Australia made at [city name] [in] February 2012 (the Court Orders) were complied with.

2. The statutory provisions relevant to this review are sections 49, 50, 51 and 54C of the Child Support (Assessment) Act 1989 (the Act), as it stood prior to the legislative amendments effective from 23 May 2018.

3. Sections 49 and 50 of the Act provide for new care decisions to be made.

4. 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”.

5. 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 happened until the date of the notification and what was likely to happen thereafter?

6. Subsection 51(1) of the Act provides, relevantly, that if:

   (a)   the Registrar is required, by section 49 or 50 to determine a responsible person’s percentage care for a child during a care period; and

   (b)   a care arrangement applies in relation to the child; and

   (c)   the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)   the person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with,

   the Registrar must, in accordance with the provisions of subsections 51(2), (3) and (4) of the Act determine two percentages of care in relation to the responsible person, the first percentage of care being the percentage that corresponds with the extent of the care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil), and the second percentage being a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (d) above were not to succeed.

7. Section 54C of the Act provides for the Registrar to make a care determination for a child for an interim period of no longer than 14 weeks, starting from the day that the care changed for the responsible parent, in this case, Mr Atterbury, or up to a period of 26 weeks, if the Registrar is satisfied that special circumstances exist in relation to the person who has reduced care of the child.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Atterbury at hearing, the affirmed evidence given by Mrs Markson at hearing, and the documentation provided by the Department and admitted into evidence as Exhibit 1.

2. At hearing, which was of relatively short duration, due to Mr Atterbury’s pre-emptive termination of his attendance via conference telephone, no evidence was advanced by Mr Atterbury to dispute that, on 11 May 2018 the change in care notified by Mrs Markson occurred when the child, [Child 1], then aged [age] years, refused to go to Mr Atterbury’s house for his week about care pursuant to the court orders referred to above.

3. The evidence given by Mr Atterbury at hearing was to the effect that he did not have funds sufficient to permit him to take the steps necessary to ensure the week about care arrangement pursuant to the Court Orders was complied with.

4. The Tribunal provided him with an explanation of the substance and effect of the provisions of section 51 of the Act as outlined above, and invited Mr Atterbury to submit evidence that he had taken reasonable steps, as required by paragraph 51(1)(d) of the Act. He failed to do so, and refused to take any further part in the hearing, peremptorily terminating his attendance via conference phone, as noted above.

5. The Department’s file records relating to this matter were before the Tribunal as Exhibit 1. The Tribunal’s review of these records reveals the following relevant facts and circumstances up to the date of the objections officer’s decision, the subject of this review.

6. Mrs Markson notified the Department on 14 May 2018 of a change in care in respect of [Child 1], which she said occurred on 11 May 2018, when [Child 1] left a note at Mr Atterbury’s house to the effect that she would not be coming to his house for the regular court ordered week about care due to commence on 11 May 2018 (see Department file note at page 37 of Exhibit 1).

7. On 23 June 2018, Mr Atterbury contacted the Department by telephone in response to the Department’s notification to him of the change of care reported by Mrs Markson. The Department’s file note at page 43 of Exhibit 1 records Mr Atterbury advising the Department that he had contacted his legal representatives and letters had gone out to Mrs Markson. He also informed the Department that he was intending to enforce the Court Orders to restore the care arrangements reflected therein. The file note records the Department requested him to provide it with a copy of the Court Orders.

8. On 9 July 2018, Mr Atterbury sent a copy of the Court Orders to the Department under cover of Webmaster email, but did not elaborate upon the action he asserted he was taking to enforce the Court Orders or provide any documentation evidencing the nature of the action he said he was taking.

9. Page 48 of Exhibit 1 records a telephone call from the Department to Mr Atterbury on 9 July 2018 in which Mr Atterbury confirms that he has taken action to have the court ordered care restored and would be providing evidence in support of that assertion. The Department allowed him until 23 July 2018 to provide that evidence, and sent a letter to him on 9 July 2018 formally confirming that arrangement (see page 51 of Exhibit 1).

10. Mrs Markson also called the Department on 9 July 2018 to enquire as to progress with the Department’s determination of the care percentages pursuant to her change in care notification, and was advised that Mr Atterbury had informed the Department that he was taking action to have the court ordered care arrangements enforced, and that in light of that information, the Department was considering an interim care determination for a period of 14 weeks from the date of change in care she reported on 14 May 2018. In the course of this telephone conversation, Mrs Markson informed the Department that she had initiated court action to determine the appropriate care percentages pursuant to the change in care she notified to the Department, and that the matter had been listed for hearing on 16 August 2018 (see page 50 of Exhibit 1).

11. The Department then sent letters to both parents on 9 July 2018 particularising the nature of the evidence it required from the parents to enable it to make the appropriate care percentage determinations, and allowed the parents until 23 July 2018 to provide that evidence, in default of which the Department would make a decision in relation to the care percentages issue (see pages 51 and 53 of Exhibit 1).

12. Page 55 of Exhibit 1 records the Department’s file note of Mrs Markson’s telephone call to the Department on 12 July 2018 to enquire as to the contents of the Department’s letter of 9 July 2018, which she said she was unable to access on her Webmaster system. The file note records a Department officer explaining the contents of the letter, and Mrs Markson’s response, reaffirming that she had retained lawyers to initiate court proceedings and that a court hearing was listed for 16 August 2018.

13. On 16 July 2018, Mrs Markson provided a body of evidence comprising receipts for physiotherapy and medical treatment for [Child 1] whilst she was in her care, [public transport] travel records recording [Child 1’s] travel from Mrs Markson’s home to and from school in [a named town], and a copy of the application she had instructed her solicitors, [Firm 1], to file in the Federal Circuit Court, [in the named city] [in] May 2018 (see pages 61 to 66 of Exhibit 1).

14. In her email to the Department of 16 July 2018 at page 67 of Exhibit 1, Mrs Markson noted that she was the applicant party who has taken court action with respect to the care for [Child 1], and not Mr Atterbury, challenging Mr Atterbury’s assertions that he had taken action to enforce the care arrangements reflected in the Court Orders referred to above.

15. As appears at page 108 of Exhibit 1, the Department made a decision on 13 August 2018 to grant an interim care of 51% to Mrs Markson and 49% to Mr Atterbury for a period of 14 weeks from 11 May 2018 until 16 August 2018, and thereafter, 100% care to Mrs Markson. In reaching that decision, it appears from the Department’s file note at page 109 that the Department relied on Mr Atterbury’s information that he had been in contact with his legal representatives, that letters had gone out to Mrs Markson, and that he was seeking his original court ordered care of 50%.

16. Mrs Markson provided a copy of a letter from her solicitors, [Firm 1] dated 28 August 2018 (see page 145 of Exhibit 1) in which her lawyers confirm, amongst other things, that, with respect to the proceedings they had commenced in the Federal Circuit Court on behalf of Mrs Markson, Mr Atterbury was not legally represented, and that since filing Mrs Markson’s application, they had not received any correspondence from any lawyer acting on behalf of Mr Atterbury, nor had they been served with any court documents or received any correspondence from Mr Atterbury asserting his entitlement to the week about care with respect to [Child 1]. However, they did acknowledge that they had received some correspondence from Mr Atterbury, which related to other matters.

17. The Tribunal finds that Mr Atterbury’s submission that he was taking action to enforce the care arrangements reflected in the Court Orders were unfounded and misleading. He did not provide any evidence (as he undertook to do in the course of his telephone conversation with the Department on 9 July 2018) to support his assertion that he was taking action to enforce the care arrangements for [Child 1] reflected in the Court Orders.

18. The Tribunal accepts Mrs Markson’s evidence that neither she nor her lawyers had received any communication, written or otherwise, from Mr Atterbury to suggest that he was taking any action to enforce the court ordered care arrangements reflected in the Court Orders.

19. Accordingly, the Tribunal finds there was no basis upon which the Department could have founded the interim care determination it made on 13 August 2018.

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

DECISION

The Tribunal affirms the decision under review.