Daley and Vincent (Child support)

[2018] AATA 2407

Daley and Vincent (Child support) [2018] AATA 2407 (16 May 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC013601

APPLICANT:  Mr Daley

OTHER PARTIES:  Child Support Registrar

Mrs Vincent

TRIBUNAL:Member M Kennedy

DECISION DATE:  16 May 2018

DECISION:

The Tribunal sets aside the decision under review and allows Mr Daley’s objection so as to determine:

·the existing care determination in force at 21 July 2017 is revoked on 22 July 2017;

·two further care determinations of 50% (the first determination) and 0% (the second determination) in respect of care of [Child 1] by Mr Daley (with the balance to Mrs Vincent);

·the first determination (50%) is to apply from 23 July 2017 to 29 October 2017;

·the second determination (0%) is to apply from 30 October 2017.

CATCHWORDS
Child support - Percentages of care - Care arrangement not being complied with - Reasonable action taken - Existing percentage of care determination revoked - Interim care determination made - 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 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

1. Mr Daley and Mrs Vincent are the parents of [Child 1] and other children in respect of whom child support assessments are in place.

2. Prior to 22 July 2017, child support in respect of [Child 1] was calculated on the basis that care was taking place in accordance with a scheme set out in court orders. The care determination in force was 50% to each parent.

3. On 23 July 2017, Mrs Vincent contacted the Child Support Registrar and notified that there had been a change to care arrangements in respect of [Child 1]. Essentially, [Child 1] had come into her care for a period when under court orders made on 24 May 2017 [Child 1] would have been in Mr Daley’s care. It is common ground between the parties that since that date, [Child 1] has spent each night in the care of Mrs Vincent.

4. Mr Daley believed that an interim care determination should be made in relation to this event so as to effectively continue the care determination reflecting the court orders. However, on 22 September 2017, the Registrar decided that there would be no interim care determination, and put in place a care determination reflecting that Mrs Vincent had 100% care of [Child 1].

5. Mr Daley objected to that decision. On 16 February 2018, an objection officer partly allowed Mr Daley’s objection, but only on the basis that the date of the care change was brought forward to 4 August 2017, when in the assessment of the objection officer the care arrangements for [Child 1] had settled. As to Mr Daley’s core contention, the objection officer declined to make an interim care determination.

6. Mr Daley applied to the Tribunal for review on 27 February 2018. Mrs Vincent has been joined as a party to this review.

ISSUES

1. The statutory provisions relevant to this review are in subdivisions B and C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). More specifically, the concept known as an ‘interim care determination’ is relevantly addressed at sections 51 and 54C of the Assessment Act.

2. The issue I must decide is whether the Child Support Registrar was correct to revoke the existing care determination affecting the assessment for [Child 1] and to replace it with a care determination reflecting actual care, rather than making an interim care determination.

CONSIDERATION

1. Section 54F of the Assessment Act requires that existing care determinations be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the person’s existing percentage of care for the child.

2. Albeit with the benefit of some hindsight, it is clear that on 22 July 2017 there was a substantive and significant change to the care arrangements for [Child 1]. As mentioned above, it is common ground that from that date [Child 1] has not continued with a previous pattern of equal care.

3. In relation to the approach of the objection officer in identifying a date when the permanence of that change had perhaps become more apparent, I prefer to identify the date of 22 July 2017 as the relevant date for the revocation of the existing care determination, despite accepting that there may well have been a period of some uncertainty as to the permanence of what was happening in relation to [Child 1]’s care. I have gained the impression from considering the evidence and listening to both parents that providing care for [Child 1], who is 13 and has [certain medical conditions], presents its challenges. It is not unusual that a significant change to care arrangements is accompanied by a period of uncertainty. I do not consider that this uncertainty serves, in this case, to re-characterise what had taken place as a significant change to care arrangements.

4. I consider it sufficiently clear from the evidence that from 22 July 2017 (notified on 23 July 2017), care of [Child 1] was not taking place in accordance with the existing 50% care determination, and the revocation of the existing care determination should take place from 22 July 2017. In this regard, I invited both parties to comment on the approach of the objection officer in this regard and have taken into account their responses.

5. Section 51 of the Assessment Act applies where I am required to determine a new percentage of care, but there is a care arrangement in place for a child and the amount of actual care that a person has does not comply with the extent of care they should have under the care arrangement, and the person is taking reasonable action to ensure that the care arrangement is complied with. It provides that if these criteria are met, I must then determine two percentages of care, being the percentage that the person should have under the care arrangement, and the other reflecting the care that is actually taking place. Section 54C then regulates when each determination is to apply to the assessment.

6. As for the criteria for an interim care determination in this case, I am satisfied that a care arrangement exists in the form of the orders of the Federal Circuit Court of 24 May 2017, which set out a scheme in respect of [Child 1] of 50% care for each parent.

7. I am further satisfied that as at 23 July 2017, the time of Mrs Vincent’s contact with the Registrar, she had 100% care of [Child 1]. It follows that I find that Mr Daley was not having the extent of care he was to have under the court orders at that time.

8. The remaining criteria for the making of interim care determinations is whether Mr Daley was taking reasonable action to ensure that care arrangements were being complied with.

9. The Tribunal papers contain two potentially relevant letters from Mr Daley’s solicitor to Mrs Vincent. The first is dated 22 August 2017. On the face of the letter, it does not purport to expressly deal with contravention of the orders of 24 May 2017, but rather an agreement between the parents in relation to a planned overseas holiday for Mr Daley and the children. It appears from the letter that at the time Mr Daley was concerned that [Child 1] would not be attending and was concerned that Mrs Vincent was trying to prevent [Child 1] from attending. The correspondence requested a formal undertaking in relation to facilitating [Child 1]’s travel, and foreshadowed an urgent application being made if the undertaking was not given.

10. I observed that the objection officer had not considered this correspondence relevant to the question of Mr Daley taking reasonable action to ensure the care arrangement was complied with given the content of the letter on its face. I invited Mr Daley to address that concern.

11. In his evidence, Mr Daley described an altercation or falling out between [Child 1] and himself in relation to behaviour that was dealt with at the time by Mr Daley returning [Child 1] to Mrs Vincent. Having regard to [Child 1]’s responses to this falling out, Mr Daley explained to the effect that he had hoped to have the US holiday as an opportunity to communicate and mend the disrupted relationship with [Child 1] with a view to resuming care in accordance with the court orders. As Mr Daley confirmed, [Child 1] is of an age and has personal characteristics such that if [Child 1] does not himself wish to go into his father’s care, [Child 1] does not go into his father’s care. In this way, as I understand it, Mr Daley preferred to take steps towards securing the plans for travel to the US rather than threaten or instigate contravention proceedings in the court – calculating that this experience would serve to bring about a return to the previous care arrangements.

12. [Child 1] did not accompany Mr Daley to the US, and other events subsequently took place in relation to the care of the children. [Child 1]’s care, and more expressly the issue of contravention of the court orders, was raised with Mrs Vincent by correspondence from Mr Daley’s solicitor on 26 October 2017. That correspondence foreshadowed the filing of a contravention application.

13. Mrs Vincent has responded to Mr Daley’s objection by confirming that the change to [Child 1]’s care arrangement had come as a surprise to her and she had received no communication before [Child 1] returned to her care on 22 July 2017.  Mrs Vincent told me that she had tried to take steps to encourage [Child 1] to spend time with Mr Daley after 23 July 2017. Both parents described an incident that took place on or about 1 September 2017 that unfortunately served to escalate the estrangement between Mr Daley and [Child 1], although each parent has a different perception of those events. Mrs Vincent explained that she responded to the solicitor’s letter in October 2017, but did not receive any further response. Mrs Vincent also raised a number of other concerns regarding the apportionment of care between herself and Mr Daley, such as ‘make up care’ for the period of the US holiday. These matters are not for me to determine and have no bearing on this particular review.

14. The question for me to decide is whether I am satisfied that Mr Daley was taking reasonable action to ensure that the care arrangement was complied with. Typically, reasonable action in this context will be demonstrated by an exchange of solicitors’ letters or the commencement of contravention proceedings.

15. With the benefit of further context provided by Mr Daley’s evidence about the correspondence of 22 August 2017, I take a different view to the objection officer about the relevance of that communication. I accept that Mr Daley’s concerns at that time to formally retrieve the US holiday agreement, and this was generally for the purpose of restoring his relationship with [Child 1] and also for the purpose of providing an opportunity to encourage [Child 1] to resume the previous care arrangements. In dealing with the issue arising out of the US holiday plans, I note that Mr Daley engaged the services of his solicitor and dealt with the impending dispute in a formal way. In the particular circumstances of this case, I consider that Mr Daley’s decision not to immediately threaten contravention proceedings for care per se, but to instead try and preserve an arrangement for an overseas holiday with [Child 1], was reasonable. I consider that the letter of 22 August 2017, when understood in context, is evidence that Mr Daley was taking reasonable action at the time.

16. I therefore find that the criteria for the making of an interim care determination are satisfied, and I will proceed to make the necessary findings to implement the interim care determination.

17. In this regard, as to a percentage of care that corresponds with the extent of care Mr Daley should have had under the care arrangement for [Child 1], I find that it is 50%: subsection 51(3) of the Assessment Act.

18. As to the percentage of care that corresponds with the actual care of [Child 1] that Mr Daley would be likely to have during the relevant period, I find it is 0%.

19. As to the application of those care determinations, section 54C of the Assessment Act provides that percentage of care of 50% is to be applied (in respect of Mr Daley, witrh the banalnce to Mrs Vincent) for the interim period, being a period defined at subsection 54C(2) of the Assessment Act. That period starts on the ‘application day’, in this case 23 July 2017. The interim period ends on the day before the ‘reasonable action’ ends or a day specified by the Registrar which must be the last day in the 14-week period (absent special circumstances).

20. I note in this case that upon Mr Daley returning to Australia, he instructed his solicitor to promptly write again agitating the issue of resuming care of [Child 1] in accordance with the court order. I understand that shortly after that time, a number of parenting matters returned to the court. In these circumstances, I consider the interim period should be the last day in the 14-week period from 23 July 2017.

21. The other percentage of care (that is, 0% to Mr Daley with the balance to Mrs Vincent) is to apply after the interim period unless a revocation of the determination takes effect: section 54C(1)(d) of the Assessment Act. As the Registrar did not make the interim care determination, it follows that there has been no revocation within the maximum period of the interim care determination.

22. I will therefore set aside the objection officer’s decision, and allow Mr Daley’s objection so as to moke the determinations reflecting these reasons. 7.

DECISION

The Tribunal sets aside the decision under review and allows Mr Daley’s objection so as to determine:

·the existing care determination in force at 21 July 2017 is revoked on 22 July 2017;

·two further care determinations of 50% (the first determination) and 0% (the second determination) in respect of care of [Child 1] by Mr Daley (with the balance to Mrs Vincent);

·the first determination (50%) is to apply from 23 July 2017 to 29 October 2017;

·the second determination (0%) is to apply from 30 October 2017.