Bacote and Kinchin (Child support)

[2023] AATA 846

Bacote and Kinchin (Child support) [2023] AATA 846 (9 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024880

APPLICANT:  Mr Bacote

OTHER PARTIES:  Child Support Registrar

Ms Kinchin

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  09 March 2023

DECISION:

The decision under review is affirmed.

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 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. This review is about a change to the percentage of care determinations for Mr Bacote and Ms Kinchin in respect of their children [Child 1] (born March 2009) and [Child 2] (born October 2011).  Mr Bacote and Ms Kinchin are the parents of three children; however, this matter relates to [Child 1] and [Child 2] only.

2. From 28 June 2020 the child support assessment reflected Mr Bacote as having 14 per cent care and Ms Kinchin as having 86 per cent care of [Child 1] and [Child 2].

3. On 26 May 2022 Ms Kinchin notified the Child Support Agency of a change to the care arrangements stating that she was having 100 per cent care and Mr Bacote was having 0 per cent care of [Child 1] and [Child 2] from 23 May 2022.

4. On 21 July 2022 the Child Support Agency made the decision to reflect that Mr Bacote provides 0 per cent care and Ms Kinchin provides 100 per cent care of [Child 1] and [Child 2] from 23 May 2022.

5. On 23 August 2022 Mr Bacote objected to this decision and on 19 October 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 20 October 2022 Mr Bacote applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 9 March 2023.  Mr Bacote and Ms Kinchin gave evidence on affirmation by Microsoft Teams audio.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (191 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act states that a care determination, known as an interim determination, may be made if a care arrangement is not being complied with and the parent with reduced care takes “reasonable action” to have the care arrangement complied with.

6. The issues which arise in this case are:

   ·     whether or not there has been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new care determinations take effect; and

   ·     whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Mr Bacote told the Tribunal there were consent orders in place relating to the care of [Child 1] and [Child 2] and he was following the orders until Ms Kinchin withheld care from 23 May 2022.

2. Mr Bacote said under the orders he was to have care of two nights every second weekend and half the school holidays.  Mr Bacote explained that for a three-month period from just before Christmas in 2021 the parents had tried to reconcile but when this had not worked out Ms Kinchin told him she was moving to regional Victoria to live with her parents as she could not find suitable rental accommodation in Queensland where they were living at the time.  Mr Bacote said Ms Kinchin had used this as a reason to prevent him from having care.

3. The Tribunal notes in evidence from the Child Support Agency a copy of consent orders handed down in the Family Court of Australia on 3 December 2020.  In relation to care the orders state the children are to spend time with Mr Bacote every second weekend from after school on Friday until 4:00 pm on Sunday during school term and half the school holidays.

4. Mr Bacote informed the Tribunal that even though Ms Kinchin did not end up relocating to regional Victoria she continued to withhold care of the children in contravention of the consent orders.  Mr Bacote said in the context of their discussion around her relocation he did send Ms Kinchin a text message telling her the children were old enough to decide what they wanted and that he was happy for her to inform the Child Support Agency she had full-time care.

5. The Tribunal notes in evidence from the Child Support Agency a copy of a text message exchange on 24 May [2022] between the parents in relation to care of the children.  In this exchange Mr Bacote states the children are old enough to decide what they want.  In a further exchange on 27 May [2022] Mr Bacote also states that he is happy for Ms Kinchin to “call child support and let them know you have the kids full time”.

6. Mr Bacote said when he found out, around mid-June 2022, that Ms Kinchin had not moved to Victoria he sought legal advice and was informed he would need to return to court to enforce the court-ordered care.  Mr Bacote said he could not afford this course of action.  Mr Bacote told the Tribunal he did try communicating with Ms Kinchin but he was blocked from contacting her by mobile phone and through social media.  Mr Bacote said he did not attempt mediation as he could not get in touch with Ms Kinchin so did not feel there was any point.

7. Mr Bacote told the Tribunal he was now uncertain where Ms Kinchin and the children were living and had not had care of the children since 23 May 2022.

8. Ms Kinchin told the Tribunal she agreed there were court orders in relation to the care of the children but these had not been followed by Mr Bacote from the outset.  Ms Kinchin said Mr Bacote had never really had care of their eldest child in accordance with the court orders and had only been having sporadic school holiday care of [Child 1] and [Child 2].

9. Ms Kinchin said while the parents tried to reconcile for several months from 23 December 2021 Mr Bacote was staying at her home but was still living full time with his father on their farm.  Ms Kinchin said Mr Bacote effectively stopped having care of the children from this time but she felt there was no point telling the Child Support Agency as it was still up in the air.  Ms Kinchin said Mr Bacote did have care of the children for four nights around Christmas 2021.

10. Ms Kinchin said she was not withholding care but the children simply did not wish to see Mr Bacote and he had not had overnight care of [Child 1] and [Child 2] after 23 May 2022.

11. Ms Kinchin said Mr Bacote made little attempt to contact her or the children even after becoming aware they had not moved to Victoria.  Ms Kinchin said there were sporadic text message exchanges between the parents after care changed but she disagreed Mr Bacote had made any meaningful effort to see the children or have the court-ordered care reinstated.

12. It is not in dispute and the Tribunal finds that care of [Child 1] and Hyden changed from 23 May 2022 with Ms Kinchin providing 100 per cent care of the children from this date.

13. Mr Bacote has told the Tribunal that Ms Kinchin is withholding care of [Child 1] and [Child 2] contrary to court orders.  Mr Bacote argues that he was following the court orders until 23 May 2022.  Ms Kinchin disagrees and states that Mr Bacote has not followed the court‑ordered care for some time and the children do not wish to stay overnight with him.

14. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their child.

15. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies.  For section 51 of the Act to apply a care arrangement, such as a court order or parenting plan, must be in place.  The parent who has reduced care because this care arrangement is not being complied with must take “reasonable action” to ensure that the care arrangement is complied with.

16. Under the court orders dated 3 December 2020 Mr Bacote is to have care of two nights a fortnight during school term and half the school holidays.  As the children were attending school in Queensland and there are approximately 39 weeks of school term and 13 weeks of school holidays each year this would equate to Mr Bacote having care under the court orders of, at most, 85 nights or 23 per cent care.  The existing care for Mr Bacote reflected in the assessment was 14 per cent care which would indicate the court orders were not being followed at the time Ms Kinchin notified the Child Support Agency of the change in care.

17. Despite care under the court orders not being followed, the court orders remained in place and applied in relation to [Child 1] and [Child 2] at the time care changed.

18. The Tribunal must also consider if Mr Bacote, the parent with reduced care, was taking reasonable action to have the care arrangement which applied in relation to the children complied with.  The term “reasonable action” is not defined in the Act. The Explanatory Memorandum to the Bill for the Amending Act that introduced section 51, referring to reasonable action, states, “For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”

19. The Child Support Guide, at 2.2.4, also provides some insight into what constitutes “reasonable action”.  It states:

    The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

    ·     negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement

    ·     making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to

    ·     seeking or obtaining legal advice regarding the making of a court order

    ·     filing an application to a court to have an order made or enforced

    ·     attending a hearing at court to seek an order to be made or enforced, or

    ·     notifying the police that the child has been taken without consent.

20. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

21. Mr Bacote submits that after Ms Kinchin withheld care of the children he sought legal advice, however, there is no evidence before the Tribunal to confirm this is the case.  Mr Bacote has said he could not afford to pursue court action and has acknowledged he did not seek to make or attend mediation or any form of dispute resolution after care changed.  There is some evidence of text message exchanges between the parents after 23 May 2022 in relation to care although these are limited.

22. The Tribunal is not satisfied, based on the evidence provided, that Mr Bacote was taking reasonable action to ensure compliance with the court orders.

23. As an interim care arrangement cannot be applied under section 51 of the Act the Tribunal considered the actual care of [Child 1] and [Child 2].

24. The Tribunal is satisfied that a new pattern of care commenced from 23 May 2022 with Mr Bacote providing 0 per cent care and Ms Kinchin providing 100 per cent care of [Child 1] and [Child 2].

25. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] were 14 per cent care to Mr Bacote and 86 per cent care to Ms Kinchin.  The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

26. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Bacote and Ms Kinchin under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Bacote provides 0 per cent care and Ms Kinchin provides 100 per cent care of [Child 1] and [Child 2] from 23 May 2022.

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Kinchin notified the Child Support Agency of the change in care on 26 May 2022 which is less than 28 days after the change occurred on 23 May 2022.  Therefore, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day.

2. The new determinations are made from 23 May 2022.

DECISION

The decision under review is affirmed.