Carrick and Maddison (Child support)

[2020] AATA 4397

Carrick and Maddison (Child support) [2020] AATA 4397 (12 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019288

APPLICANT:  Mr Carrick

OTHER PARTIES:  Child Support Registrar

Ms Maddison  

TRIBUNAL:Member R King

DECISION DATE:  12 August 2020

DECISION:

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – late objection and late application for review – 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. Mr Carrick and Ms Maddison are the parents of [Child 1] (dob 2007) and [Child 2] (dob 2009).  Mr Carrick and Ms Maddison separated in 2016 and entered into a parenting agreement whereby the care of the two children was to be shared equally.  This agreement was reflected in an administrative assessment by the Child Support Agency (CSA) which recorded the percentage of care of each parent for both children as being 50% from 15 May 2016.

2. On 22 May 2019, Mr Carrick advised the CSA that he had provided 100% of the care of [Child 1] and [Child 2] from 1 May 2019.  After speaking with both parents, the CSA decided that there was no ongoing change in the pattern of care for [Child 1] and [Child 2].  On 19 July 2019 the CSA decided to refuse Mr Carrick’s request to record the care of both children as 100% with him and instead decided to retain the care percentage recording as 50% for each parent.

3. On 29 January 2020 (more than 28 days after receiving this decision), Mr Carrick objected to the care percentage decisions for [Child 1] and [Child 2], stating that he had been providing most of the care for both children since 1 January 2019.

4. On 28 March 2020, an objections officer disallowed Mr Carrick’s objection.  The objections officer noted that there were discrepancies between the records of care provided by Mr Carrick and Ms Maddison and insufficient independent evidence to resolve these discrepancies.  The objections officer accepted that there may have been a temporary disruption of the usual equally shared care arrangement but was not satisfied that this was of sufficient magnitude to warrant a change in the care percentages. 

5. On 16 June 2020 (more than 28 days of receiving the objection decision), Mr Carrick applied to the tribunal for review.  Ms Maddison advised the tribunal that she wished to take part in the proceedings and was, accordingly, joined as a party to Mr Carrick’s application.

6. The tribunal conducted an initial hearing on 5 August 2020.  Both Mr Carrick and Ms Maddison participated by conference telephone and provided sworn evidence.  The tribunal reconvened on 12 August 2020 to take additional evidence by telephone from both parties.

CONSIDERATION

1. During the hearing, Mr Carrick and Ms Maddison were in broad agreement that Mr Carrick had most if not all of the care of both boys between early May and late June 2019.  Ms Maddison told the tribunal that, during this period, she was willing and able to have her share of the care of the children, but that Mr Carrick withheld them from her.  Mr Carrick told the tribunal that he was not withholding the children from her, but rather that the children did not wish to spend time with her and he could not persuade them otherwise.  Mr Carrick told the tribunal that he encouraged the children to resume the usual care arrangement but was not successful until late June 2019. 

2. Ms Maddison told the tribunal that she sought legal advice with a view to obtaining a court order that would give force to the parenting agreement.  However, she did not proceed initially because she had been advised that there would be a cost of approximately $30,000 if she was to be represented.  She said that she was not in a position to pay for representation and ultimately decided to represent herself.  She said that the Court has recently issued an interim order that requires equally shared care of both children by each parent. 

3. Mr Carrick told the tribunal that he did not consider himself to be bound by the parenting agreement because there had been a brief reconciliation subsequent to the signing of the parenting agreement, which voided it.  Ms Maddison told the tribunal that there was never any reconciliation, she considered the agreement to be binding on both parents and that she had even sought the assistance of the police to enforce the agreement. 

4. Mr Carrick told the tribunal that the shared care arrangement resumed around 25 July 2019 and continued for the remainder of the year except for a period in August when [Child 1] refused to spend time with his mother and during which there were times when [Child 2] also decided to stay with him, even though it was Ms Maddison’s regular care period.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (the Act).   The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act.  The tribunal is not bound by these guidelines but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the Child Support Agency for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent.  The evidence before the tribunal suggests that the CSA initially determined that Mr Carrick and Ms Maddison each had 50% of the care of both children.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, the original care percentage determination is revoked and a new care percentage determined that does correspond with the actual percentages of care provided by each parent. 

4. The tribunal is satisfied, on the evidence before it, that Mr Carrick had most of the care of both children during the month of May 2019 and most of the care of [Child 1] during the month of August 2019.  However, the tribunal is not satisfied that this fact is sufficient to establish a change in the actual pattern of care such that the CSA’s 2016 determination of equally shared care ceased to apply.

5. The evidence suggests that both parents continued to recognise the shared care arrangement.  While Ms Maddison was of the view that Mr Carrick was withholding the children from her, this was not his view.  Rather his evidence indicated that he attempted, if at first ineffectually, to restore the shared care arrangement.  The shared arrangement was in fact restored for a period of two months before a second temporary interruption.  Mr Carrick’s evidence is that the interruptions occurred because [Child 1], in particular was unhappy about the way his mother treated him.  In the view of the tribunal, this evidence suggests a situational disturbance of family relationships rather than enduring change in the pattern of care. 

6. The tribunal therefore agrees with the objection officer that there was insufficient change in the overall pattern of care to warrant application of section 54F of the Act.

7. Even if the tribunal was disposed to find that there had been a change in the pattern of care, it does not follow that a change in care percentage would be registered in the circumstances of this case.  When a parenting agreement is in force and one parent withholds care and the other takes reasonable steps to ensure that the agreement is complied with, an interim care period can be determined under section 51 of the Act.  In such circumstances the interim care period reflects the percentage of care required under the parenting agreement and not the actual percentage of care.

8. Mr Carrick submitted that the parenting agreement was null and void as it pre-dated a brief reconciliation and there had been no new parenting agreement when he and Ms Maddison separated a second time.  The tribunal does not accept this submission.  First, Ms Maddison disputes the reconciliation and there is no independent evidence to establish that it occurred.  Second, even if there was a reconciliation, it was by Mr Carrick’s own evidence, brief and the pattern of care specified in the original agreement resumed.  The evidence indicates that for the most part, both parents acted in accordance with the agreement.

9. Mr Carrick further submitted that he was not withholding the children from Ms Maddison’s care but simply acting in accordance with their clearly expressed wishes.  The tribunal is of the view that as the children were aged 10 and 11 at the time, they were subject to parental arrangements regarding care and Mr Carrick’s failure to ensure that these arrangements were maintained amounts to withholding.

10. Ms Maddison provided the tribunal with copies of emails exchanged with Mr Carrick during or around the periods when the children were in his sole care.  These messages make it clear that she believed that the children were being withheld from her and she wanted the pre-existing care arrangement re-established.  Ms Maddison also provided the tribunal with copies of correspondence with her solicitor that confirms that she had sought advice regarding care arrangements for the children and sought assistance with entering into satisfactory arrangements with Mr Carrick.  The evidence before the tribunal indicates that Ms Maddison continued to pursue a legal remedy despite being unable to afford representation and recently obtained an interim order enforcing the parenting agreement without representation. 

11. The tribunal is satisfied that, considered together, the evidence establishes that Ms Maddison took reasonable steps to ensure compliance with the 2016 parenting agreement. 

12. It follows that, if the tribunal was satisfied that there had been a change in the pattern of care (and, for reasons outlined above, it is not) an interim care period could be determined under section 51 of the Act.  Under section 53A of the Act, the duration of an interim care period is 14 weeks.  This means that for a 14 week period from the time Mr Carrick commenced withholding care of [Child 1] and [Child 2] from Ms Maddison, the care percentage would reflect the terms of the parenting agreement and not the actual pattern of care.

13. The evidence before the tribunal indicates Mr Carrick commenced withholding the children on or around 14 May 2019.  This means that a 14 week interim care period would continue through until late August.  The evidence suggests that equally shared care resumed around this time.  However, even had it resumed later, the evidence that shared care was also restored for much of the time between May and August 2019 would allow for a second 14 week interim period to commence in August. 

14. However the tribunal does not need to determine an interim care period, as a change in the pattern of care has not been established.  This means that there is no reason to disturb the decision of the objections officer that Mr Carrick and Ms Maddison had equally shared care of both [Child 1] and [Child 2] from 1 May 2019.

DECISION

The tribunal affirms the decision under review.