Carman and Carman (Child support)

[2022] AATA 371

Carman and Carman (Child support) [2022] AATA 371 (27 January 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022217

APPLICANT:  Ms Carman

OTHER PARTIES:  Child Support Registrar

Mr Carman

TRIBUNAL:Member J Prentice

DECISION DATE:  27 January 2022

DECISION:

The Tribunal decided to set aside the decision under review and to substitute its decision to make an interim care determination as follows:

1. The first percentage of care of [Child 3] for Ms Carman is 63% applying from 20 April 2021 to 27 July 2021 and the second percentage of care of [Child 3] for Ms Carman is 0%.

1. The first percentage of care of [Child 3] for Mr Carman is 37% applying from 20 April 2021 to 27 July 2021 and the second percentage of care of [Child 3] for Mr Carman is 100%.

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 - court orders not complied with – whether reasonable action taken by parent with reduced care – whether reasonable action taken by parent with increased care - interim period applied for 14 weeks - 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 Carman and Mr Carman are the parents of [Child 1] (born 2004), [Child 2] (born 2006) and [Child 3] (born 2008).  This application is with respect to the care of [Child 3] only.

2. The pre-existing care for [Child 3] was recorded by the Child Support Agency (CSA) as being 63% to Ms Carman and 37% to Mr Carman effective 9 October 2020.

3. On 23 April 2021 Mr Carman notified the CSA of a change in the care arrangements such that he had 100% care of [Child 3] from 20 April 2021.

4. On 17 May 2021[1] the CSA made a new care determination in respect of the care of [Child 3] and determined that the recorded care percentages for [Child 3] were 100% to Mr Carman and 0% to Ms Carman from 20 April 2021 and notified on 23 April 2021.

   [1] This notice was sent to Ms Carman by prepaid post.

5. On 23 June 2021 Ms Carman lodged an objection to the care decision on the grounds that she claimed Mr Carman was withholding care of [Child 3] and was not adhering to the Court Orders.

6. On 7 August 2021 the CSA disallowed Ms Carman’s objection and continued the recorded percentages of care for [Child 3] as 100% to Mr Carman and 0% to Ms Carman from 20 April 2021 and notified on 23 April 2021.

7. On 6 September 2021 Ms Carman sought further review by the Administrative Appeals Tribunal (the Tribunal).

8. At a hearing on 18 January 2022 the Tribunal heard sworn evidence from Ms Carman and Mr Carman who participated by conference telephone.  In reaching its decision, the Tribunal has considered that evidence, together with the statements and documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

ISSUE

1. The issue is whether the existing care percentage determinations for [Child 3] as at 20 April 2021 are to be revoked and new care percentage determinations are to be made.

CONSIDERATION

1. A Court Order of 29 January 2020 sets out the care arrangements for all three of Mr Carman and Mrs Carman’s children. The evidence before the Tribunal is that those Orders formed the basis for percentages of care determinations recorded by the CSA, of 63% to Ms Carman and 37% to Mr Carman, and were being followed in relation to [Child 3] until August 2020.

2. As detailed in a letter from Ms Carman’s lawyers (page 19 of the CSA papers) on 16 August 2020, Ms Carman reprimanded [Child 3] with respect to his use of his iPad. [Child 3]’s response was to telephone his father and ask to be collected.

3. Ms Carman told the Tribunal that she immediately contacted Mr Carman and requested that [Child 3] be returned to her care.  Mr Carman did not return [Child 3] to Ms Carman’s care.  Ms Carman continued to comply with the Court Orders and sent the other children, [Child 1] and [Child 2], to Mr Carman at the appropriate times.  [Child 3] did not return with them.  Mr Carman told the Tribunal that [Child 3] refused to go back.

4. Ms Carman informed the Tribunal that she took all reasonable steps and did everything in her power to facilitate [Child 3] returning to her care.

5. Ms Carman explained to the Tribunal that the following day she contacted her legal representative who told her to try to resolve the issue. 

6. CSA’s records show that a care change for [Child 3] was notified on 28 August 2020 of 100% to Mr Carman and 0% to Mrs Carman from 10 August 2020; with the previous care of 63% to Mr Carman and 37% to Ms Carman continuing for a 26-week interim period 10 August 2020 to 7 February 2021[2] with the care percentages then to change to actual care of 100% to Mr Carman and 0% to Ms Carman from 8 February 2021.

   [2] On the basis that Ms Carman was undertaking reasonable action to have the Court Orders complied with in respect of [Child 3].

7. Ms Carman’s lawyers wrote to Mr Carman on 2 September 2020 requesting he comply with the Court Orders and return [Child 3] to the care of Ms Carman.

8. CSA’s records show that notification was then made that care of [Child 3] had reverted to the court ordered care of 63% to Ms Carman and 37% to Mr Carman from 9 October 2020 such that the interim period ended early, and the care percentages being recorded continued the same, albeit then based upon actual care rather than based upon the application of an interim period determination.

9. Then, on 23 April 2021, Mr Carman notified a further change of care of [Child 3] from 20 April 2021 back to 100% to him. This is the care notification that is the subject of this application.

10. Ms Carman confirmed to the CSA that she did not have overnight care from 20 April 2021 and said that when Mr Carman failed to return [Child 3] to her care she was left with no option but to again apply to the Court, which she did on 20 May 2021 (page 85 of the Centrelink papers). Court Orders dated 20 May 2021 (page 86 of the CSA papers) detail Interim Hearing Directions and listing of the matter for 5 August 2021.  Ms Carman told the Tribunal that she complied with the directions, although the Court changed some of the dates.

11. Interim Court Orders of 16 July 2021 provided for care of [Child 3] as two nights every eight nights to Ms Carman and six nights every eight nights to Mr Carman and provided:

    ·That the parties were able to negotiate an interim parenting agreement;

    ·That the parties agreed to adjourn the interim hearing until a date following an adjourned Dispute Resolution Conference

12. Ms Carman informed the Tribunal that Mr Carman followed the Orders for two weeks and then again refused to return [Child 3] to her care.  Mr Carman told the Tribunal that it was [Child 3]’s choice not to return to his mother’s care.  Ms Carman disagreed with Mr Carman and said [Child 3] had no issues in her care and Mr Carman was deliberately withholding [Child 3] from her care unless he is on night shift.

13. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Act). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[3] The relevant policy appears at 2.2.2 of the Child Support Guide, which includes the following:

    What constitutes a change to the pattern of care will depend upon the individual circumstances of the case …

    Not all changes in care will result in the calculation of a different care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

    [3] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

14. The percentage of care is determined under Division 4 of Part 5 of the Act. The CSA has to work out a percentage of care for each parent in relation to each child of the assessment in accordance with the parent’s pattern of care during the relevant care period: sections 49 and 50 of the Act. The care period is the period which the Registrar considers to be appropriate having regard to all the circumstances. The care percentage must reflect the actual care a person has had or is likely to have during the care period. Actual care is generally worked out on the number of nights that the child was, or is likely to be, in the care of a person during the care period under the care arrangement: section 54A of the Act. Importantly, a child cannot be considered to be in the care of more than one party to a child support assessment at a time.

15. Once each party’s care is determined, it can be reflected in the child support assessment by revoking the old percentage under either sections 54F, 54G or 54H of the Act, and replacing the revoked care percentage with the new care percentage.

16. There is no dispute that a change in care again occurred on 20 April 2021 as notified by Mr Carman on 23 April 2021 contrary to the applicable Court Order.

17. Usually care is based on actual care.  However in some circumstances even when it is determined that actual care has changed, the pre-existing percentages of care can continue to apply for what is called an “interim period” if certain circumstances are satisfied, as applied by the CSA in relation to the 10 August 2020 change of care.  Whether an interim period applies, where pre-existing care percentages continue to apply before actual care is recorded, depends on the circumstances.  The relevant matters to consider are whether the care is pursuant to a court order or parenting plan and whether reasonable action has been taken by each parent, and when, in relation to seeking compliance with a court order or parenting plan.  If any interim period does apply, the duration of the interim period also depends on what has happened in this regard.

18. The evidence before the Tribunal is that in relation to the change of care from 20 April 2021 Ms Carman started action for recovery of care in accordance with the then applicable Court Order with legal proceedings to recover care of [Child 3] commencing on 20 May 2021. The Tribunal is satisfied that from 20 April 2021 Ms Carman was pursuing recovery action including by the commencement of proceedings on 20 May 2021 and is therefore satisfied she was taking reasonable action to ensure that the care arrangement was complied with such that paragraph 51(1)(d) of the Act is satisfied and an interim period applies.

28.  Therefore in accordance with subsection 51(2) of the Act, the Tribunal must determine two percentages of care for each person. The first percentage of care corresponds with the extent of care that each person should have had, or is to have, under the care arrangement (court order). The second percentage of care corresponds with the actual care each person would be likely to have if the action taken to ensure compliance does not succeed.

29.  The Tribunal determines that the first percentage of care for Mr Carman is 37% and for Ms Carman is 63%, the Court ordered care. The Tribunal determines that the second percentage of care for Mr Carman is 100% and for Ms Carman is 0%, corresponding to the actual care of [Child 3] occurring from 20 April 2021.

1. Determining an Interim Period:

   The meaning of interim period is given in section 53A of the Act. The start day of the interim period is usually the change of care day. The end day of the interim period is usually governed by the table in subsection 53A(1).

The length of the interim period will depend on:

• the type of care arrangement (court order or written agreement/parenting plan);

• the age of the care arrangement;

• whether the person with increased care is taking reasonable action to participate in family dispute resolution; and

• if a new care arrangement begins to apply.

31.  The duration of an interim period is determined in accordance with section 53A of the Act. Given that the change of care event happened more than 38 weeks after the Court Order of 29 January 2020, the interim care period would ordinarily end either:

(a)26 weeks from the date of the care change on 20 April 2021, that is on 19 October 2021 in this case; or

(b)14 weeks from the date that a person who has increased care (in this case Mr Carman) takes reasonable action to participate in family dispute resolution; if the person initiates and participates in family dispute resolution or participates in family dispute resolution that was initiated by the person who has reduced care of the child; and the action is taken within a reasonable period, that is on 27 July 2021 in this case.

1. However, relevant to the duration of the interim period, a subsequent care arrangement made on 16 July 2021 began to apply in relation to [Child 3] on 28 July 2021 such that the interim period ends on 27 July 2021 in any event (section 53A(1)(b)(iv) of the assessment Act).

2. The Tribunal notes that the decisions of the CSA in relation to the earlier notifications of changes of care in 2020 are not the subject of the Tribunal’s review. Nor are the subsequent decisions of the CSA in relation to later notifications, being notifications on:

   (a)  on 12 August 2021 notifying a change of care of [Child 3] from 28 July 2021[4], pursuant to the Court Order dated 16 July 2021, to two nights every eight nights to Ms Carman and six nights every eight nights to Mr Carman resulting in recorded care percentage determinations of 77% to Mr Carman and 23% to Ms Carman from 28 July 2021; and

   (b)  on 21 August 2021 notifying a change of care of [Child 3] from 21 August 2021 to 100% to Mr Carman and 0% to Ms Carman, with the previous care of 77% to Mr Carman and 23% to Ms Carman continuing for the interim period 21 August 2021 to 14 July 2022 and the care percentages then to change to 100% to Mr Carman and 0% to Ms Carman from 15 July 2022.

   [4] 28 July 2021 is, coincidentally, the date 14 weeks after the end of the interim period 20 April 2021 to 27 July 2021 that the Tribunal has determined applies.

3. The only notification of care before the Tribunal for review is that of 23 April 2021 by Mr Carman in relation to a change of care on 20 April 2021. The Tribunal has therefore confined its consideration to that change of care and has concluded as set out above in relation to that change of care. For clarity, given the number of changes in relation to [Child 3]’s care, the Tribunal summarises the combined effect of the decisions of the CSA not the subject of the Tribunal’s review, and the Tribunal’s decision in relation to the 20 April 2021 care change below. These care percentages will apply absent from any further notifications of change of care of [Child 3], or different decisions made on review in relation to any of the below care events:

Period of care for [Child 3]	Ms Carman’s recorded care percentage	Mr Carman’s recorded care percentage
Pre 10 August 2020	63%	37%
10 August 2020 to 8 October 2020[5]	63%	37%
9 October 2020 to 19 April 2021[6]	63%	37%
20 April 2021 to 27 July 2021[7]	63%	37%
28 July 2021 to 20 August 2020[8]	23%	77%
21 August 2021 to 14 July 2022[9]	23%	77%
15 July 2022[10]	0%	100%

[5] Pursuant to the interim period determination of the CSA in relation to the 10 August 2020 change of care, continuing the 29 January 2020 Court Ordered care percentages to 7 February 2021 with the interim period then ending early because of the new 9 October 2020 notification and determination.

[6] Pursuant to the determination of the CSA in relation to the 9 October 2020 change of care based on actual care then occurring again pursuant to the 29 January 2020 Court Order.

[7] Pursuant to the interim period determination of the Tribunal in relation to the 20 April 2021 change of care, continuing the 29 January 2020 Court Ordered care percentages for a further interim period.

[8] Pursuant to the CSA determination based on the new care arrangements actually occurring pursuant to the Court Order of 16 July 2021.

[9] Pursuant to the interim period determination of the CSA in relation to the 21 August 2021 change of care, continuing the 16 July 2021 Court ordered care percentages for a further interim period.

[10] Failing further notifications of change in care or different decision made on review, the further interim period will end on 14 July 2022.

DECISION

The Tribunal decided to set aside the decision under review and to substitute its decision to make an interim care determination as follows:

1. The first percentage of care of [Child 3] for Ms Carman is 63% applying from 20 April 2021 to 27 July 2021 and the second percentage of care of [Child 3] for Ms Carman is 0%.

1. The first percentage of care of [Child 3] for Mr Carman is 37% applying from 20 April 2021 to 27 July 2021 and the second percentage of care of [Child 3] for Mr Carman is 100%.