Bostridge and Dansie (Child Support)

[2022] AATA 3053

Bostridge and Dansie (Child Support) [2022] AATA 3053 (22 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/HC023163

APPLICANT:  Ms Bostridge

OTHER PARTIES:  Child Support Registrar

Mr Dansie

TRIBUNAL:Member H Moreland

DECISION DATE:  22 June 2022

DECISION:

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

• Ms Bostridge had a percentage of care of 0% and Mr Dansie had a care percentage of 100% from 5 February 2020;

• Mr Dansie’s care change takes effect on the date the care was notified to child support on 26 July 2021; and

• Ms Bostridge’s care change takes effect on the date of the care change on 5 February 2020.

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 – interim care period does not apply – 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 Bostridge and Mr Dansie are the parents of [Child 1]. On 4 November 2021, Services Australia – Child Support (Child Support) decided that Ms Bostridge had a care percentage of 0% and Mr Dansie had a care percentage of 100% with regard to [Child 1], from 19 December 2019. On 10 November 2021, Ms Bostridge objected to this decision; and on 7 January 2022, an objections officer disallowed Ms Bostridge’s objection.

2. On 24 January 2022, Ms Bostridge lodged an application with the Social Services & Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the decision. The hearing took place on 16 May 2022. Ms Bostridge and Mr Dansie spoke to the Tribunal via conference telephone. In making its decision, the Tribunal considered the documents provided by Child Support (156 pages), which were also sent to Ms Bostridge and Mr Dansie. Ms Bostridge provided additional documents (A1–A86) which were copied to Mr Dansie after the hearing. Mr Dansie was provided with the opportunity to comment on the additional documents provided by Ms Bostridge but no response from Mr Dansie was received. Relevant aspects of the evidence and material before the Tribunal will be referred to in the Tribunal’s consideration of the issues to be decided.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988.

Was there a change in the care of [Child 1]?

Ms Bostridge’s evidence

1. As shown in the Child Support papers, and as stated by Ms Bostridge, there was a court order in relation to the care of [Child 1].

2. Ms Bostridge told the Tribunal that the court order provided for alternating weeks with [Child 1] in her care from Thursday afternoons to Monday mornings in one week; and Thursday nights only on the other week. She said that school holidays were split 50/50 between her and Mr Dansie. Ms Bostridge told the Tribunal that this was the established pattern, as set out in the court order, and was followed until 5 June 2021. This is also what she told Child Support.[1] In a statutory declaration provided to Child Support, dated 23 December 2021, Ms Bostridge said the last time she had [Child 1] overnight was 5 June 2021.[2]

   [1] Child Support papers, pp 4–5.

   [2] Child Support papers, p 114.

3. Ms Bostridge’s statutory declaration also states that the reason she did not collect [Child 1] from school on 19 December 2019 was because her grandson had been killed in a car accident; and her daughter and granddaughter were in the same accident. Ms Bostridge stated that she picked [Child 1] up on 22 December 2019 and had him in her care for around four weeks. She said that her daughter [Ms A] visited them from 14 January 2020 and that she had evidence that [Child 1] had been in her care as she had bank statements showing clothing purchases for [Child 1].[3]

   [3] Child Support papers, p 111.

4. The statutory declaration also outlined the usual care pattern for [Child 1] and stated: “There were times when I would have him more and sometimes less but the way I looked at it was it balanced out.” In the statutory declaration Ms Bostridge also refers to expenses she incurred purchasing items for [Child 1] that have been sent to Mr Dansie’s home; and that she had had [Child 1]’s hair cut several times.[4] Ms Bostridge also stated that [Child 1] is an “avid Playstation and Xbox player” and that she only maintained an internet connection at her home so [Child 1] can play online games.[5] She also provided documents to show she has purchased online games for [Child 1]; and excerpts from bank statements showing she had made purchases for [Child 1].[6] The Tribunal concludes that this shows that Ms Bostridge arranged clothing, shoes and activities for [Child 1] but does not necessarily demonstrate overnight care.

   [4] Child Support papers, p 111.

   [5] Child Support papers, p 113.

   [6] Applicant papers, A6–A15, A16–A17 and A31–A66.

5. Ms Bostridge provided a letter of support from a neighbour, Ms [B], dated 29 January 2022. In the letter, Ms [B] states that she has known [Child 1] for his entire life. She said that she had seen [Child 1] out the front of her home often, when he was in the care of his mother on weekends, until around May 2021 but that since then, she has seen [Child 1] “less and less”.[7]

   [7] Applicant papers, A2.

6. Ms Bostridge also provided the Tribunal with a statutory declaration by her daughter, Ms [Ms A] , dated 17 January 2022, which states that she visited her mother and [Child 1] on 13 January 2020 until 16 January 2020 and [Child 1] was with her mother for the duration of that visit.[8]

   [8] Applicant papers, A18.

7. Ms Bostridge also provided a statutory declaration by Mr [C] (son of [Ms B]), dated 4 March 2022. In the statutory declaration, [Mr C] states that he has known [Child 1] since he was born and has regularly seen [Child 1] with Ms Bostridge and has photos which are date-stamped, showing [Child 1] and Ms Bostridge together. [Mr C] also states that he knew that [Child 1] spent three weeks of the 2019/20 Christmas school holidays with Ms Bostridge.[9]

   [9] Applicant papers, A20–A21.

8. Ms Bostridge also provided the Tribunal with a statutory declaration by Ms [D], which appears to be dated 14 March 2022. In it, [Ms D] states that Ms Bostridge and [Child 1] were at her home on Christmas Day 2019; and that during the school holidays of 2019/20 Ms Bostridge and [Child 1] would often visit her. [Ms D] also said that in 2020 she would collect her friend’s daughter from the same primary school that [Child 1] attended on Thursday afternoons and would stop and talk to Ms Bostridge on these occasions, as Ms Bostridge was there waiting for [Child 1].[10]

   [10] Applicant papers, A19.

9. Ms Bostridge also provided a statutory declaration by Mr [E], dated 4 March 2022. In the declaration, [Mr E] states that he has known Ms Bostridge and [Child 1] for five–six years. He states that Ms Bostridge and [Child 1] have spent Christmas Days with his family, as well as being regular visitors at other times to his home. [Mr E] also stated that Ms Bostridge was going to need to purchase a new bed for [Child 1] that was large enough to accommodate him and his new dog as the dog slept in the same bed as [Child 1] (in 2020 and 2021).[11]

   [11] Applicant papers, A22–A23.

10. Ms Bostridge provided a statutory declaration by Ms [F] with attached letters. In the material, [Ms F] states that she knows that [Child 1] was in the care of Ms Bostridge for several days prior to 9 May 2020, as [Child 1] had been in Ms Bostridge’s care for a few days when, on 9 May 2020, she fell down a flight of stairs and suffered a concussion, so [Ms F] asked Mr Dansie to come and collect [Child 1]. [Ms F] stated that she knew that Ms Bostridge had [Child 1] with her for his birthday on 9 August 2020. She said that one month later, she knew that [Child 1] stayed with her mother overnight as she had sent gifts to him at their mother’s address and she spoke to him when he received the gift at Ms Bostridge’s home.[12]

    [12] Applicant papers, A24–A26.

11. Ms Bostridge made other comments, in her written submissions, about problems with her Centrelink account and other matters that are not relevant to this review.

Mr Dansie’s evidence

1. Mr Dansie told the Tribunal that there had been a court order which sets out the care as described by Ms Bostridge. According to the Child Support papers, Mr Dansie said Ms Bostridge was supposed to pick [Child 1] up on 19 December 2019 during the school holidays but failed to do so; and that Ms Bostridge had seen [Child 1] on occasion since then but had not had any overnight care.[13]

   [13] Child Support papers, p 4.

2. The Tribunal asked Mr Dansie when the court orders stopped being followed and the pattern of care changed.  Mr Dansie told the Tribunal that it had dwindled over a period of time and he had had a care percentage of 100% for some time and that 19 December 2019 was the most accurate date he could remember.

3. Mr Dansie provided a statutory declaration by Ms [G], dated 5 October 2021. In that statutory declaration [Ms G] states that she has known Mr Dansie for two years and his neighbour is her mother-in-law. She states that she had seen Mr Dansie pick up and drop off [Child 1] from school and has not seen Ms Bostridge visit or collect [Child 1] from school, or “have any kind of access with him.”[14]

   [14] Child Support papers, pp 63–64.

4. Mr Dansie also provided a statutory declaration by Ms [H], dated 5 October 2021. In it, [Ms H] states that she has known Mr Dansie for five years and in the previous two years, she has not seen [Child 1] visit Ms Bostridge when she would usually see him being collected on a Friday afternoon every second week. [Ms H] also states that she usually visits Mr Dansie for coffee three times per week and in the previous two years, [Child 1] has been at Mr Dansie’s home when she has visited but previously he would have been with Ms Bostridge.[15]

   [15] Child Support papers, pp 65–66.

5. Mr Dansie also provided a statutory declaration by Mr [I], dated 27 October 2021. In his declaration, [Mr I] states that he is Mr Dansie’s neighbour. [Mr I] states that Mr Dansie and [Child 1] have lived next door to him for five–six years and he sees [Child 1] on a daily basis. [Mr I] states that he used to see Ms Bostridge collect [Child 1] every second weekend but has not seen her do so “since approximately December 2019”.[16]

Ms Bostridge’s response to Mr Dansie’s evidence

[16] Child Support papers, pp 67–68.

1. Ms Bostridge emailed the following to the Tribunal’s Registry, dated 4 February 2022:

   The information rom Mr Dansie s friend [Ms J] she stated that she had known me for the
   last five years and I definitely don’t know of her but she also states in her stay dec
   that she had never saw me in the last 3 years since dec2019 pick up [Child 1] ACC gain
   on any Friday from school in the past 2 years on a Friday but I have never picked
   [Child 1] on s Friday because [a named person] have poked him up on my off week on a
   Thursday and on my weekends when I have him I pick him up every time on a
   Thursday and have him Thursday Friday sat Sunday and drop him on a Monday to
   school on a Monday morning according to my court order arrangements I don’t even
   know this [Ms J] girl thanking you Ms Bostridge

1. On 5 February 2022, Ms Bostridge emailed the following to the Tribunal’s Registry:

   I had spell check on and my txt yesterday didn’t come out right I had a friend take it
   off as I am not tec great but basically the girl that wrote for Mr Dansie saying she has
   known me picking up [Child 1] for 3 years before 2019 I don’t know her and I have
   never picked [Child 1] up on a Friday on my off week I would pick him up on Thursday
   and drop him off on Friday morning and then on my access week I would pick him
   up on Thursday afternoons and drop him off on Monday morning thanking you
   Ms Bostridge

The Tribunal’s findings

1. Based on the evidence before it, the Tribunal concludes that there has been a change in care in relation to [Child 1], as is evident, that there has been a change in care is not in dispute and that Mr Dansie now has a 100% care percentage for [Child 1]. The problem for the Tribunal is assessing when the change occurred. It is not in dispute that the previous care pattern was that [Child 1] was with Ms Bostridge for five nights per fortnight during term time, and half the school holidays. Child Support had calculated this as [Child 1] being in the care of Mr Dansie for 61% of the time and Ms Bostridge for 39% of the time. The Tribunal notes that in some parts of the Child Support papers, there are references to [Child 1] being in Ms Bostridge’s care for four nights per fortnight but given Ms Bostridge and Mr Dansie told the Tribunal it was five nights per fortnight and the Child Support calculation shows Ms Bostridge had a care percentage of 39%, the Tribunal concludes that it was five nights per fortnight during the term and half the school holidays.

2. The Tribunal acknowledges that Mr Dansie said that he had nominated 19 December 2019 based on his best recollection, but based on the evidence before it, concludes that Ms Bostridge had care of [Child 1] in January 2020. The Tribunal cannot be satisfied however, that the pattern of care for [Child 1] did not change during January 2020.

3. Based on the evidence before it, the Tribunal concludes that Ms Bostridge had care of [Child 1] for half of the 2019/20 Christmas school holidays but that at the conclusion of the holidays, the care of [Child 1] changed.

4. Based on the evidence before it, the Tribunal concludes that the pattern of care for [Child 1] was that, in terms of overnight care, Mr Dansie had a care percentage of 100% from the start of Term 1, 2020. Based on the evidence before it, the Tribunal concludes that [Child 1] may have seen Ms Bostridge during the daytime and may have had an occasional overnight stay with her but that if that was the case, it was so sporadic that it could not be considered as part of a pattern of care.

Should the existing care determination in relation to [Child 1] be revoked?

26.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child and section 54G does not apply.

27.Section 54G applies in cases where a person was to have at least regular care of a child and was not, despite the other parent making the child available and the other parent notifies the Registrar of the change in care within a period that the Registrar considers to be reasonable in the circumstances. In this case, the Tribunal is satisfied that the care changed on 5 February 2020 and Mr Dansie did not inform Child Support (the Registrar) that there had been a change in case until 26 July 2021, more than a year later. The Tribunal concludes that the Registrar was not notified of the change of care within a reasonable period. This means that section 54G does not apply

28.In this case, the Tribunal finds that a care determination was made under section 50 of the Act from 4 February 2015, with Ms Bostridge having a care percentage for [Child 1] of 39% and Mr Dansie having a percentage of care of 61%;[17] and that this changed from 5 February 2020 (the first day of Term 1) with Mr Dansie having a care percentage of 100% and Ms Bostridge having a care percentage of 0% from that date. Therefore, paragraph 54F(1)(a) of the Act is satisfied. This means the existing care determination in relation to [Child 1] is revoked.

[17] Child Support papers, p 135.

29.Subsection 54F(3) of the Act states:

The revocation of the [existing care] determination takes effect at the end of: 

(a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the [change in care] within 28 days after the change of care day for the responsible person--the day before the change of care day; or 

(b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that [change in care] more than 28 days after the change of care day for the responsible person and: 

(i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or 

(ii)the responsible person's care of the child has reduced--the day before the change of care day.

30.The application of subsection 54F(3) means that given the aforementioned delay in Mr Dansie reporting the change in care, the revocation of his existing care determination took effect at the end of the day before Child Support was notified of the change (25 July 2021); and the revocation of Ms Bostridge’s existing care determination took effect at the end of the day before the care changed (4 February 2020).

Does an interim care period apply?

31.Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking “reasonable action” to have the court order or parenting plan complied with.

32.The Guide states the following with regard to “taking reasonable action” at 2.2.4 Disputed care arrangements:

Taking reasonable action to ensure compliance with care arrangement

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.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative

·documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·documentation of police or court action.

33.Ms Bostridge told the Tribunal that she had asked Mr Dansie if she could have the care, as set out in the court orders, restored but Mr Dansie and [Child 1] himself both told her that [Child 1] did not want to stay overnight with her.

34.The Tribunal asked if Ms Bostridge had commenced a process of mediation, or taken legal action. Ms Bostridge said she had not commenced any mediation process and that she is on the disability support pension, so she cannot afford a lawyer and cannot access legal aid as she is a homeowner.

35.The Tribunal concludes, based on the evidence before it, particularly as Ms Bostridge did not commence any process of mediation, that Ms Bostridge did not take reasonable action to ensure the court order was being complied with, within the meaning of section 51 of the Act. This means an interim care period does not apply.

DECISION

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

• Ms Bostridge had a percentage of care of 0% and Mr Dansie had a care percentage of 100% from 5 February 2020;

• Mr Dansie’s care change takes effect on the date the care was notified to child support on 26 July 2021; and

• Ms Bostridge’s care change takes effect on the date of the care change on 5 February 2020.