Bardsley and Mackleston (Child support)

[2022] AATA 5133

Bardsley and Mackleston (Child support) [2022] AATA 5133 (19 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024728

APPLICANT:  Mr Bardsley

OTHER PARTIES:  Child Support Registrar

Ms Mackleston

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  19 December 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

·     Mr Bardsley’s care percentage of 0% is revoked and replaced with a new care percentage of 50% from 2 June 2022; and

·     Ms Mackleston’s care percentage of 100% is revoked and replaced with a new care percentage of 50% from 15 March 2022.

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 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. Ms Mackleston (the mother) and Mr Bardsley (the father) are the parents of three children. This application concerns their children’s care from 26 November 2021.

2. The case was registered with Child Support (the Agency) from 24 September 2014. From 1 March 2020 the administrative assessment reflected that the mother had 100% care and the father 0% of the children from 1 May 2017.[1]

   [1] At folio 250

3. On 2 June 2022 the father notified the Agency that there was a change in the children’s care from 26 November 2021, whereby he and the mother each had 50% care.[2] On 8 July 2022 the Agency refused to amend the care record based on the father’s care change notification. The father objected to the decision on the same day. On 15 September 2022 the objection was disallowed.

   [2] At folio 249

4. The father sought review of that decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) on 26 September 2022.

5. On 27 September 2022 the Agency sought a prohibition order in respect of subsection 37(1) of the Administrative Appeals Tribunals Act 1975 on the basis that documents received contained information that was sensitive to share with a party to the proceedings.  It was also noted that the administrative assessment was ended by the mother due to family violence. After seeking further clarification regarding the proposed redactions and receiving a response on 16 November 2022, the Tribunal granted the request on 21 November 2022.

6. The matter was set down for hearing on 30 November 2022 at 13:30 AEDT.

7. On 28 November 2022 the mother requested that the matter be rescheduled, stating that she had only just received notice of the hearing and that she and the father were required to attend a conference at the ACT Magistrates Court at 10:30 am on the day of hearing. She also requested legal representation. Her request for a reschedule was refused on the basis that there was no conflict in conference and Tribunal hearing times and, given she had been sent correspondence regarding the matter on 4, 15, 16 and 21 November 2022 (in addition to SMS correspondence) the Tribunal was not satisfied that she had not received sufficient notice of the hearing.

8. The matter was heard on 30 November 2022. The father appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The Tribunal contacted the mother on at least 10 occasions during the period 13:45 to 14:11. At 14:04 the mother contacted the Registry and was advised to hang up immediately and the Tribunal would contact her; further calls made to her nominated mobile number went straight to voicemail.

9. The Tribunal considered the documentation provided by the Agency (folios 1 to 287 and C1 to C6) and the father (marked folios A1 to A2). It is noted that the father sought to have accepted into evidence a transcript of the middle child’s evidence (aged 14 years) in respect of a family violence order breach at the Magistrates Court of the Australian Capital Territory (the Court). The Tribunal refused his request; though there is no legislative bar to accepting such evidence, the Tribunal refused to do so on the basis that it may have a detrimental impact on the child’s relationship with her parents and other family members. However, the tribunal was satisfied that the testimony provided by the mother and her partner in the Court proceedings was relevant and so deferred the matter to allow the father to provide this evidence by way of transcripts. The father was given to close of business 2 December 2022 to provide these documents, which were received within the requisite timeframe (marked folios A3 to A61). These documents were exchanged with the mother and she was given to close of business 16 December 2022 to provide written submissions in response. No response was received from the mother by close of business on 16 December 2022.

10. The Tribunal reached its decision on 19 December 2022.

ISSUES

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

2. The issue which arises in this case is whether there was a change to the children’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

1. Relevant to this matter, sections 49 and 50 of the Act require the primary decision-maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. The primary decision-maker’s task is to determine the pattern of care based on actual care at the time of notification and the likely care thereafter.

2. The Tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Agency and a new care determination can be made from the date of divergence.

3. The father’s testimony at hearing can be summarised as follows. There was a change in care arrangements from 26 November 2021 where he and the mother equally shared care of the children on a week about arrangement. From about March 2022 the eldest child spent additional nights with him, though this was an ad hoc arrangement. In the April 2022 school holidays there was another care change; he had 100% care of the children throughout those holidays. In May 2022 he was arrested for breaching the family violence orders in place which resulted in a three-day hearing that took place at the Court from 24 to 26 November 2022. He only realised that the children were protected persons under the family violence order in late October 2022; he then dropped them to the mother home for her allocated week of care beginning on 21 October 2022 and has not had care of them since, except for a few hours in November 2022. He did not lodge multiple care change applications in respect of all the care changes as he is “exhausted” by the process.

4. The father’s testimony at hearing was at odds with his submissions to the Agency. He advised on 15 March 2022, after being contacted regarding another matter, that he had notified Centrelink of a change to the care arrangements,[3] whereby he now had 50% care. On 22 March 2022 he advised that he has been contacting the mother via email about the care arrangements but she had not been returning his calls.[4] However, on 3 June 2022[5] he advised that, as he was unable to get in touch with the mother, he now had care of the children all school holidays and that the mother only had care of the older child every second weekend. On 7 June 2022 the father provided a care calendar[6] to support his assertions and on 8 June 2022 the father advised that he had 225 nights of care for the middle and youngest children and 313 nights of care of the older child.[7] He then went on to state that he had the majority of care of the children from 2014 and then shared care. On 9 June 2022 the father stated he had 50% care of the children; however, there was a care change in respect of the older child from 1 February 2022 whereby he had 10 nights’ care per fortnight.[8]

   [3] At folio A48

   [4] At folio 51

   [5] At folio 75

   [6] At folios 80 to 85

   [7] At folio 86

   [8] At folios 90 to 91

5. The Tribunal next considered the documentary evidence provided by the father in support of his claims. The Tribunal put to the father that the undated text messages between him and the two older children[9] do not support his submissions regarding the care arrangements. The father conceded that this was the case, stating that it was very difficult to provide supporting evidence.  

   [9] At folios 88 to 89

6. The father explained that Ms [A], who provided a supporting letter dated 13 May 2022,[10] is his partner. [Ms A] stated that she has observed the children in the father’s care, consistent with “the current informal parent agreement in place”, from September 2021. The Tribunal placed little weight on this evidence, given the father’s relationship with [Ms A] and the general description of the care it contained. It was on the same basis that the Tribunal placed little weight on evidence provided by Mr [B],[11] the father’s friend, and [names deleted],[12] the father’s neighbours.

   [10] At folio 77

   [11] At folio 78

   [12] At folio 79

7. The mother has provided evidence from [name][13] (relationship unknown) which states that the mother was the primary carer of the children since the breakdown of the marriage and that the father “floats in and out” of the children’s lives. In evidence is a supporting letter from the mother’s partner, Mr [C], who asserts the mother has cared for the children “much more than the majority of time that [the father] claims”.[14] Given the general nature of these statements and the authors’ relationships with the mother, the Tribunal did not find them persuasive.

   [13] At folio C2

   [14] At folio C4

8. The father submits that the transcript for proceedings in the Court support a finding that he did in fact have 50% care of the children from November 2021.

9. The Tribunal had regard to the mother’s testimony, delivered to the Court on 24 October 2022. The transcript reflects the following exchanges between the mother, the Magistrate and Mr [D], appearing for the father:[15]

   [15] At folios A31 to A53

   MR [D]: Hello Ms Mackleston. Firstly, I’d like to ask a couple of questions around the care arrangements for the children. I believe he said in your evidence in chief and on the triple zero call that there is a 50/50 care arrangement, is that correct? --- No, there isn’t.

   HIS HONOUR: Okay, I’m going to interact at this stage Ms Mackleston. We’ve jump straight into a confusion which is very, very common and so, I’d ask you to listen carefully to the question. Sometimes the question will ask you what happened to what was the case and that, and that was the nature of the question just asked: ---Mm-hmmm.

   And then sometimes - well no, it wasn’t the nature of the question that was asked. Sometimes the question is about what you said about something. So - - - ? ---Mm-hmmm.

   --- here there’s the distinction between what was the arrangement and what you said on the telephone that was the arrangement. Do you understand the distinction? ---Mm-hmmm.

   Okay, so the question was - - - ? -- Yes, I do understand that decision.

   Okay, so the question was, when you made the 000 call to the police, you said there was a 50/50 arrangement. Do you agree that you told the operator on the triple zero call that? --- I did because that’s what Mr Bardsley is demanding after he lost the tribunal.

   Thank you.

   MR [D]: so, just to clarify, you told the police one thing that is not true, is that correct? --- What do you mean I told the police that is not true?

   So, you told the police that there was an equal share arrangement, yes?--- That’s what he is demanding from me.

   Just a yes or no. Did you or did you not say that? I possibly would have said, yes---

   …

   …So, your evidence is that you have not set the police that there is an equal shared arrangement?--- Look, I was under a lot of stress at the time. I just won at the Tribunal and there were situations happening left, right and centre and I was trying to obtain a lawyer to get full custody which I’ve had full-time care for the kids most of the time unless it suits Mr Bardsley. His only just exacerbated his behaviour after he lost the tribunal. Okay, and then since that day at about 2 months ago he started sending me emails that I have not responded to. 50/50 shared care. [Child 1]’s here today, [Child 2]’s here today which is half of its incorrect…

   … It might have come across wrong, there is definitely no written shared arrangement. I’m trying to obtain a lawyer. I’ve just finished off with [a named person] to deal with this situation so get a legal document so there is not so much police involved. Not so much, you know, messy situations where the kids are stressed out.

   …

   I suggest to you that there has been an equal share arrangement since your separation with Mr Bardsley?--- Absolutely not. And I get principal letters, doctors letters. I can get – I’ll exclude the whole family which is my parents and I’ll get all independent statements which I did for the tribunal that there is absolutely not until about a year ago I was picking up [three children] from school dropping them off every morning. And this principal evidence from three of the schools.

   …

   Mr [D]: Sorry, Ms Mackleston, just for our application, before you said if you had said to the police officers that there was an equal share arrangement, that that was done under stress?--- Absolutely.

   So you didn’t need to say that you did - - -? --- No.

   That there wasn’t an equal share arrangement?--- No. It’s-it’s very fresh, what’s happening now. It’s a very, very fresh.

   …

   So this wasn’t - you say that this wasn’t Mr Bardsley - Mr Bardsley’s time?---No.

   Mr Bardsley’s time was the week before?--- There is no time there. There’s nothing - written agreement. He’s only started doing this because of what happened with the tribunal.

   Didn’t Mr Bardsley take the children to Easter?---Yes, he takes them that every Easter and every Christmas. I’m not allowed to have them until the done their lunch. Absolutely. The family functions he takes them all the time.

   …

   MR [D]: Ms Mackleston, I suggest you that the girls went with Mr Bardsley for Easter because that was part of the normal arrangement?--- There is no arrangement. There is no arrangement.

   HIS HONOUR: Okay, can I do is jump in because I’m a little bit confused. Ms Mackleston, I’m a little confused as to what the arrangements were because in a way some of these questions haven’t really been put to you precisely?---Mm-hmmm.

   Now, I understand your evidence to be that there was nothing reduced to writing about where the kids would be, is that right? --- Absolutely not. I’m trying to get that in place now.

   Okay, so---? --- Yes, absolutely not. There is no written agreement and I’d like to see---

   The answer is simply yes, is that right?--- Yes

   Yes, there was nothing in writing? --- Yes, no written agreement. No.

   But things are happening, so there was a time-the children were spending time with both parents in April and May that right? -Sorry, can you just say that again.

   In April and May this year, the three children were spending time with you and also with the father, is that correct? --- In mixed times, yes. Yes.

   And I’m going to ask an open question?---Mm-hmm.

   How was that - who was making a decision as to when those children would be spending what time with each parent?--- Mr Bardsley. Mr Bardsley tends to send emails insisting certain things from me after he lost the tribunal. So, this has only just started.

   So, he sends you emails and then there is an agreement reached as to where the children would be?--- No

   Do you respond to those emails?--- No.

   Okay, thank you. Mr [D].

   MR [D]:  So, the children spend time with each parent in line with the wishes? --- Under the dad’s demand, yes. Yes.

   But you let them go?---I-- I can’t stop them…

   …

   Simply put Ms Mackleston, do the children spend time with Mr Bardsley?-- They said Mr Bardsley, yes.

   …

   I suggest to you Ms Mackleston that before the evidence in chief interview was taken, on 30 April? ---Mm-hmm. Mm-hmm.

   That you told them that there was an equal share arrangement? ---No I didn’t. I don’t know-if I could see at the - no, I didn’t. That’s not what I want. That’s not what I want. He’s - no, absolutely not. He’s demanding equal share, now. It’s just been this year.

   …

10. In his testimony provided to the Court on 25 October 2022 Mr [C] testified that there was an “informal agreement” of a week about care arrangement in place[16] between the mother and father. He also testified in response to the question put to him that he observed the children coming into the mother’s care one week and going into the father’s care the next:[17]

    Well, not quite correct. Some weeks that Ms Mackleston is suppose to have the kids he’s kept them. Examples of that was Christmas. It was her week on. He had them all day. Both Easters, because they’re Orthodox, he had them when she was supposed to have them one week. That was very upsetting.

    Just a moment, sir.

    HIS HONOUR: I am not sure if you answered that question. The question is really a quite simple one. In your circumstances where you spent time in the house you have seen the children spend time generally on a week on/week off basis. Is that correct?

    Generally.

    So yes?

    Yes

    [16] At folio A12

    [17] At folio A15

11. It is difficult in matters such as these where both parents have inconsistent statements regarding the care arrangements of the children. However, the Tribunal gave significant weight to the sworn testimony provided by both the mother and her partner in the Court proceedings.

12. The Tribunal accepts that there is no formal, written arrangement in place and that following the Tribunal (differently constituted) making a care determination on 8 November 2021 the father insisted that the children were to be in the parents’ shared care and that this arrangement was generally adhered to. The Tribunal concludes that there was a change to the care arrangements where a new pattern of care was established whereby the father had 50% care and the mother had 50% care of the children.

13. There is no clear evidence regarding when this arrangement came into place. The father has submitted that it was from 26 November 2021, the mother has testified that the arrangement was more “recent” and that “It’s just been this year”.  The father did not provide an account as to why, given that the care arrangements of the children have been in contention for a significant period of time, he would not lodge a timely care notification. On balance, the Tribunal is of the view that there was a change to the care arrangements on or around 15 March 2022, when the father first raised this with the Agency. He formally notified of the change to the care arrangements on 2 June 2022.  

14. Section 54F of the Act is satisfied in this case. This provision states that a new determination can be made, and existing determination revoked, if there is a change to a parent’s level of care that would change their care percentage and their cost percentage. The Tribunal has determined that the father had 50% care and the mother 50% care of the children from 15 March 2022; therefore, the existing care determination of 100% to the mother must be revoked and replaced with a new care determination pursuant to section 50 of the Act. 

15. Paragraph 54F(3)(b) of the Act states, in situations where the change was notified outside 28 days of the care change (as is the case in this matter), the date of revocation is different, dependent on whether the responsible person’s care has increased or decreased. Thus, the Tribunal revokes the existing care percentages and replaces it with new care percentages of 50% to the father from 2 June 2022 and 50% to the mother from 15 March 2022.

1. For completeness, the Tribunal notes that the father’s evidence is that he has had no overnight care of the children from late October 2022. It is open to either parent to lodge a change of care application in respect of this care change with the Agency.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Bardsley’s care percentage of 0% is revoked and replaced with a new care percentage of 50% from 2 June 2022; and

• Ms Mackleston’s care percentage of 100% is revoked and replaced with a new care percentage of 50% from 15 March 2022.