Carlisle and Stewart (Child support)

[2019] AATA 5514

Carlisle and Stewart (Child support) [2019] AATA 5514 (7 November 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017284

APPLICANT:  Mr Carlisle

OTHER PARTIES:  Child Support Registrar

Ms Stewart

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  07 November 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 revoked and new determinations made – date of effect due to late notification - 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. This review is about a change to the percentage of care determinations for Mr Carlisle and Ms Stewart in respect of the children [Child 1] and [Child 2].

2. Mr Carlisle and Ms Stewart are the parents of [Child 1] (born June 2003) and [Child 2] (born April 2007).  From 4 March 2016 the child support assessment reflected Mr Carlisle as having 20 per cent care and Ms Stewart as having 80 per cent care of [Child 1] and [Child 2] but with effect from 5 July 2018.

3. On 11 March 2019 Ms Stewart advised the Department of Human Services, Child Support (the Child Support Agency) of a change in care stating that she had 95 per cent care of [Child 1] and 100 per cent care of [Child 2] and Mr Carlisle had 5 per cent care of [Child 1] and 0 per cent care of [Child 2] from 4 March 2018.

4. On 8 May 2019 the Child Support Agency made the decision that Mr Carlisle provides 5 per cent care of [Child 1] and 0 per cent care of [Child 2] from 4 March 2018 and Ms Stewart provides 95 per cent care of [Child 1] and 100 per cent care of [Child 2] from 11 March 2019.

5. On 27 May 2019 Mr Carlisle objected to this decision and on 23 July 2019 the Child Support Agency disallowed the objection (the objection decision).

6. On 30 August 2019 Mr Carlisle 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 7 November 2019.  Mr Carlisle and Ms Stewart gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (208 pages).  Additional documents were received from Mr Carlisle (A1-A5) and Ms Stewart (B1-B9) and copies were distributed to the parties prior to the hearing.

ISSUES

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

   [1] As it applied both before and after 23 May 2018 and 1 July 2018

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.  These sections are subject to sections 51 or 52 of the Act[2] which require two care percentages to be determined (those under the care arrangement and the actual care taking place) in certain circumstances.  Section 51 applies if there is a care arrangement in place and a parent seeks to enforce that care arrangement and section 52 applies if a parent seeks to make a new care arrangement.

   [2] As it applied before 23 May 2018

5. 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 percentage of 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 Carlisle told the Tribunal that despite court orders relating to the care of [Child 1] and [Child 2] being in place since 19 November 2010, there had been a gradual erosion of his level of care since 2015.  He said the court orders, which were still active, established care arrangements equating to 40 per cent care to him and 60 per cent care to Ms Stewart.

2. Mr Carlisle said during the past four years Ms Stewart had applied for several changes in the level of care for the children and this was in direct contravention of the court orders.

3. Mr Carlisle explained that in order to reinstate the court ordered care arrangements he attempted on three occasions to engage with Ms Stewart through a family dispute resolution service.  He said Ms Stewart did not participate on the first two occasions but certificates[3] were issued on 29 September 2015 and 29 March 2017.  Mr Carlisle said he did not pursue the matter further in court.  Mr Carlisle said a third certificate was issued on 19 November 2018 and he was planning to initiate action in court seeking a reinstatement of the 19 November 2010 orders.  He said a draft affidavit had now been finalised.

   [3] Certificates for family dispute resolution as issued under section 601 of the Family Law Act 1975

4. Mr Carlisle said he did not dispute the previous changes in care had occurred or that his level of care for [Child 1] was five per cent and his level of care for [Child 2] was 0 per cent.  He said his issue was more about the alienation of the children as a result of the insidious actions taken by Ms Stewart over a long period of time.

5. Mr Carlisle told the Tribunal on each occasion that care had changed he believed he had taken reasonable action to have the care arrangement complied with in accordance with the existing court orders.  Mr Carlisle said an interim care period should be applied in his case.

6. The Tribunal notes in evidence from the Child Support Agency a copy of court orders dated 19 November 2010.  In relation to care of the children the orders state Mr Carlisle is to have care on a three week rotation during the school term being three nights in week one, three nights in week two and two nights in week three (upon [Child 2] attending school).  The parents are to share care during school holidays and there is provision for additional care on special occasions.

7. Mr Carlisle said despite his repeated requests Ms Stewart had not followed the court ordered care for the children and as a result he had been excluded from their upbringing.

8. Ms Stewart agreed that care of the children had not been in accordance with the court orders since 2015.  Ms Stewart said Mr Carlisle lived about a 40 minute drive away and care had changed gradually in line with the wishes of the children.  She said [Child 2] in particular had refused to stay with Mr Carlisle and every weekend she felt like she was forcing him to go.  Ms Stewart said [Child 1] continued to stay with Mr Carlisle initially because he did not want to cause further problems, however, eventually he also chose not to go.

9. Ms Stewart explained that the children had lived with her in the same house in [Suburb 1]] for 12 years and their decision not to spend time with Mr Carlisle was not personal.  It was simply because [Suburb 1]] was where the boys wanted to be.  Ms Stewart said [Child 1] and [Child 2] went to a local school, their network of friends was in the area and their immediate family was also close by.  She said life had gradually changed for the boys but the court ordered care did not account for that change.

10. Ms Stewart told the Tribunal she was not withholding care of [Child 1] and [Child 2].  She said Mr Carlisle could have gone back to court in an endeavour to change the situation but chose not to because he knew it would make no difference.  Ms Stewart said Mr Carlisle kept pushing his rights as a father rather than considering the choices made by his children.

Issue 1 – Should there be an interim care determination?

1. Mr Carlisle accepts that his level of care for [Child 1] and [Child 2] has changed.  Mr Carlisle believes an interim care period should be applied because he has taken reasonable action to ensure the children were returned to his care as set out under the court orders.  Both parents agree the court ordered care has not been followed since 2015.

2. The Tribunal finds that care of [Child 1] and [Child 2] changed on 4 March 2018.  This means the legislation prior to 23 May 2018 applies when considering an interim care determination.

3. 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.  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[4] 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 also have taken “reasonable action” to ensure that the care arrangement is complied with.  Section 51 does not apply in certain circumstances.

   [4] The Tribunal concluded that s52 does not have application in this case as it concerns situations where a parent may seek to make a new care arrangement for a lesser amount of care than they are entitled to under the existing care arrangement but for a greater amount of care than they are actually having.

4. Section 53 of the Act[5] states that section 51 does not apply if, in relation to a later determination:

   (a)   the Registrar has revoked, under section 54F or 54H, a determination of the responsible person’s percentage of care for the child; and

   (b)   the revocation of the determination takes effect at the end of the day referred to in paragraph 54F(2)(c) or 54H(2)(c); and

   (c)   the day after that day is 14 weeks or more after the change of care day for the responsible person.

   [5] As it applied before 23 May 2018

5. In this case the change of care day is 4 March 2018.  Ms Stewart did not notify of the change of care until 11 March 2019 which is more than 14 weeks after the change of care day.  If special circumstances exist in relation to the person who has reduced care of the child, an extension of the 14 week period may apply up to a maximum of 26 weeks.  The notification of the change of care is also more than 26 weeks after the change of care day.

6. In other words, even if the Tribunal were to find that Mr Carlisle had taken “reasonable action”, section 53 prevents an interim period from applying in the case of Mr Carlisle.

7. The Tribunal cannot, therefore, make a determination under section 51 of the Act.

Issue 2 – Actual care

1. As an interim care arrangement will not apply under the Act, the Tribunal also considered the actual care of [Child 1] and [Child 2].

2. Although the change of care occurred before 1 July 2018, Ms Stewart notified the Child Support Agency of the change on 11 March 2019 which is more than 26 weeks after 1 July 2018.  This means the legislation after 1 July 2018 applies in relation to revocation of the existing care determinations.

3. The Tribunal finds that, for the reasons outlined above, Mr Carlisle provides five per cent care and Ms Stewart provides 95 per cent care of [Child 1].  The Tribunal also finds that Mr Carlisle provides 0 per cent care and Ms Stewart provided 100 per cent care of [Child 2].

4. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parent’s 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.

5. 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 Carlisle and Ms Stewart under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Carlisle provides five per cent care of [Child 1] and 0 per cent care of [Child 2] and Ms Stewart provides 95 per cent care of [Child 1] and 100 per cent care of [Child 2] from 4 March 2018.

Date of effect of new care percentage determinations

1. Ms Stewart notified the Child Support Agency of the change in care on 11 March 2019, which is more than 28 days after the change occurred on 4 March 2018.  Therefore, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 4 March 2018 for Mr Carlisle and from 11 March 2019 for Ms Stewart.

DECISION

The decision under review is affirmed.