Borland and Borland (Child support)

[2019] AATA 1190

Borland and Borland (Child support) [2019] AATA 1190 (11 March 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC015609

APPLICANT:  Mr Borland

OTHER PARTIES:  Child Support Registrar

Ms Borland

TRIBUNAL:Member K Buxton

DECISION DATE:  11 March 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 – existing percentage of care determinations not revoked - 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. Ms Borland and Mr Borland are the parents of [Child 1] and [Child 2]. A child support case is registered with the Child Support Agency (CSA). This review application concerns a decision of the CSA about the recorded care for the children.

2. Care for the children had been recorded by the CSA as in the 58% care of Ms Borland and the 42% care of Mr Borland when, on 21 June 2018, Mr Borland contacted the CSA and stated that he was having 49% care of the children, and Ms Borland was having 51% care, in accordance with a parenting plan agreed upon on 12 June 2018. The CSA made contact with Ms Borland who agreed that she and Mr Borland had signed a parenting plan but that no date had yet been agreed for its implementation. On 10 July 2018, the CSA decided to change the recorded care for the children as notified by Mr Borland. On 27 October 2018 Ms Borland objected to that decision and on 22 November 2018 the objections officer decided to allow the objection, deciding that there had been no change in care for the children arising from the circumstances notified by Mr Borland.

3. Mr Borland applied to the tribunal for review of that objection decision by lodging a review application on 22 November 2018. At the hearing on 6 March 2019 the tribunal heard sworn evidence by conference telephone call from Mr Borland, who was legally represented, and Ms Borland, and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1) and documents provided by Ms Borland (Exhibit B).

CONSIDERATION

1. The tribunal is to determine whether there has been a care change for the children. The law relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child. In doing so, the tribunal will look to the overnight care which each parent has for the children.

2. Mr Borland is stated that the parenting plan was agreed upon following a mediation in late May 2018, and that the plan would lead to him having a total of 180 nights of care for the children annually, being six nights per fortnight plus 24 additional nights annually, and that this was to commence from 12 June 2018 when the parenting agreement was signed. He stated that he wanted equal shared care and had been “working towards” this since separation from Ms Borland in April 2017. However, his work schedule required him to work seven days on and seven days off and, as a result, he had been able to have the children regularly for only six nights per fortnight. He stated that he could have had extra care of a further Tuesday night every second fortnight, depending upon whether he was rostered for day or night shifts, but that this had not been occurring. He also stated that it had always been his plan to “make up the extra days” so that he was to have equal shared care of the children but that this had not been occurring because Ms Borland did not co-operate with his requests to have extra care of the children, either before or after the parenting agreement was signed. Mr Borland stated that, following the signing of the parenting agreement, he expected to have 24 nights of extra care each year. Mr Borland accepted that he has not as yet increased his level of regular care but stated that it was proper to look at the year as a whole and that it was still possible for him to “fit in” 24 additional nights of care in the year-long period commencing 12 June 2018. He also stated that he wanted to have the additional 24 nights of care but that his requests to have the children were not always granted by Ms Borland.

3. Ms Borland accepted that the general pattern was for Mr Borland to have six nights fortnightly of care of the children. She also accepted that both she and Mr Borland signed a parenting agreement which signified Mr Borland’s “intention” to have additional care of 24 nights per year. However, she stated that Mr Borland’s pattern of care has not yet changed such that he is regularly having those 24 nights of additional care and submitted that the previously recorded care for the children should remain until Mr Borland’s care actually increased. Ms Borland also stated that Mr Borland was not always able to have the children in his regularly scheduled fortnightly care due to his work arrangements or holiday plans. She stated that when Mr Borland could not have his regular care, she would have the children. She also stated that the reverse occurred when she planned certain holidays so that when she could not have her regular care of the children Mr Borland would do so instead.

4. Ms Borland further stated that the additional 24 nights of care referred to in the parenting agreement were to be the subject of further negotiation and that, when Mr Borland notified the CSA of the care change, no additional nights had yet been negotiated. Ms Borland further stated that Mr Borland had one night of additional care of the children on 9 July 2018, which was the first time he had arranged care in addition to his six nights per fortnight. Ms Borland also stated that Mr Borland could not have the children for his scheduled fortnightly care in September (whilst Mr Borland was away on a holiday) but had them for additional nights in October (while Ms Borland was planning to be away on a holiday).  

5. There is no clear evidence of an increase in the pattern of regular care of the children by Mr Borland following the negotiation of the parenting plan. Both parents agreed that he had the children for one additional night on 9 July 2018 but there is no clear pattern of any additional care since that date. The tribunal does not accept that this one day of additional care is sufficient to constitute a change in the pattern of care. Mr Borland stated that Ms Borland sometimes refused care, including because of other care-related issues that each parent agreed to manage by agreement in the parenting plan, such as communication between the children and parents whilst in the other parent’s care. The evidence demonstrates that care for Mr Borland outside the regular fortnightly regime was sometimes refused by Ms Borland both before and after the parenting agreement was signed. As to additional care by Mr Borland after that date, again, the evidence of each parent was similar in this regard. It was common ground that somewhat of a “swings and roundabouts” approach was taken to care when each parent arranged to take their own holidays without the children, and that these arrangements did not impact on the previously recorded care arrangements for the children, which reflected six nights per fortnight for Mr Borland and the remaining eight nights per fortnight for Ms Borland. The change to the fortnightly arrangements in September and October did not result in Mr Borland have any, or any substantial, increased care of the children. The tribunal accepts that it is Mr Borland’s wish to have the further 24 nights of care mentioned in the parenting agreement. However, the tribunal notes that the parenting agreement uses the word “intends” in relation to this additional care, and does not provide any specific terms that would allow for the proposal by Mr Borland of dates, for changeover, or other mechanics that might indicated that the parents had agreed he would be having this additional care. The tribunal is not satisfied that the words of the parenting agreement in relation to the prospect of Mr Borland having an additional 24 nights of care of the children annually demonstrate that a pattern of additional care, or mechanism for agreeing one, was clearly in the contemplation of the parents at the time of signing the agreement.

6. Ms Borland gave evidence that, in the 248 day period from 1 July 2018 to 5 March 2019 (the day before the hearing), Mr Borland had 106 nights of care of [Child 1] and 107 nights of care of [Child 2]. This would amount to 42% care of [Child 1] and 43% care of [Child 2] by Mr Borland during that particular period. This evidence was not refuted by Mr Borland, and is consistent with his evidence generally that he would prefer greater care, but that his care after the parenting plan was agreed has remained limited to his regular pattern of six days per fortnight with few ad hoc variations resulting in roughly equal periods of increased or decreased care.

10.  The tribunal therefore finds that the pattern of care of the children by Mr Borland, from 12 June 2018, was six nights of care per fortnight with ad hoc changes not affecting the overall level of care. The tribunal is satisfied that this pattern was followed by the parents both prior to and following 12 June 2018, and any variations to that pattern are best described as the swings and roundabouts of everyday life, rather than a variation to that pattern.

11.  Mr Borland submitted, through his legal representative, that the registrar should make a care determination consistent with the parenting agreement on the basis that Mr Borland has been taking all reasonable steps to enforce that agreement. However, despite Mr Borland’s clear view to the contrary, the tribunal is not satisfied that the parenting agreement clearly provides for Mr Borland to have 180 nights of care a year. The parents’ agreement as to fortnightly care throughout the year is set out. However, the 24 nights of care in addition to that is expressed as an “intention” of Mr Borland’s, with arrangements to be made by the parents. It would have been a simple matter to set out a further agreed 24 nights of care for Mr Borland with clear language as to when and how he would stipulate those days, but such words were not used and the parents’ actions have been consistent with the words of the agreement. Mr Borland’s “intention” has still not been realised. In any event, the tribunal notes that Mr Borland has expressly elected not to proceed with seeking a court-ordered care arrangement, despite the parenting plan suggesting this course. He stated that his reasons were economic, and the tribunal accepts this to be the case, but in circumstances where he submitted that the parenting agreement provided for his extra care and has not been adhered to, the tribunal would not find that all reasonable steps have been taken to ensure compliance with that plan.

12.  The tribunal has found that there has not been a change to the pattern of care for the children as reported by Mr Borland. As the tribunal has reached the same conclusion as in the decision under review, that decision is affirmed.

DECISION

The decision under review is affirmed.