Daly and Rush (Child support)

[2024] AATA 371

Daly and Rush (Child support) [2024] AATA 371 (15 January 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/AC026782

APPLICANT:  Ms Daly

OTHER PARTIES:  Child Support Registrar

Mr Rush

TRIBUNAL:Member I Sheck

DECISION DATE:  15 January 2024

DECISION:

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

• Ms Daly’s care percentage of 86% in respect of [Child 1] is revoked and replaced with a new care percentage of 100% from 20 January 2023; and

• Mr Rush’s care percentage of 14% in respect of [Child 1] is revoked and replaced with a new care percentage of 0% from 20 January 2023.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – whether parent made the child available to the other – 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

BACKGROUND

1. Ms Daly and Mr Rush are the parents of [Child 1], born [in] May 2021. A case was registered with Services Australia – Child Support (“Child Support”) for the assessment and collection of child support on 11 October 2021. The assessment of child support was based on care percentages of 86% for Ms Daly and 14% for Mr Rush. On 7 February 2023 Ms Daly notified Child Support that [Child 1] was in her care for 100% of the time and had been so since 20 January 2023. Child Support contacted Mr Rush regarding this and he advised that there had been no change to the care arrangements. Child Support refused to make a new determination of care. On 9 May 2023 the parties were notified that the care percentages would remain as previously assessed.

2. On 22 May 2023 Ms Daly sought review of the decision. On 24 August 2023 an objections officer of Child Support disallowed her objection.

3. By application received on 18 September 2023, Ms Daly asked this Tribunal to review the decision of the objections officer. On 15 January 2024, the Tribunal conducted a hearing at which Ms Daly gave evidence by MS Teams audio. Mr Rush had been given notice of the hearing and the scheduled time. The Tribunal telephoned Mr Rush 3 times at the scheduled time but the phone was not answered. The Tribunal proceeded to determine the matter in Mr Rush’s absence. The Tribunal had before it the relevant documents from Child Support (pages 1 to 122) and from Ms Daly (pages A1 to A10), which had been copied to the parties.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act1989 (“the Act”) and the Child Support (Registration and Collection) Act 1988 (“the Collection Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care?

1. As at 20 January 2023 Child Support had recorded that in respect of [Child 1], Ms Daly had an attributed percentage of care of 86% and Mr Rush, 14%. The first issue is whether the care that was actually taking place corresponded with the recorded percentages of care.

2. The background to the case is as set out above. Ms Daly told the Tribunal that she and Mr Rush had entered into a parenting plan on 23 February 2022.[1] Under this plan Mr Rush was to have care of [Child 1] from Thursday evening to Friday evening on the first week of each fortnight and Friday morning until Saturday morning on the second week. He generally complied with this arrangement but there had been “a couple of misses”. On or about 20 January 2023 police officers came to Ms Daly’s house looking for Mr Rush. They informed Ms Daly that Mr Rush had been involved in a road rage incident in October 2022, where he had subsequently refused to supply a breath test. The officers also informed Ms Daly that Mr Rush did not hold a current driver’s licence, having lost it prior to the October 2022 incident due to drink driving. Ms Daly said that she subsequently texted Mr Rush and informed him that she would not allow [Child 1] to be with him if he was driving. She told him “if you want to come here, get someone else to drive”. Mr Rush attended Ms Daly’s house and there was an altercation, during which the police were called. An AVO was later issued against Mr Rush.

   [1] Hearing papers, page 54

3. Ms Daly told the Tribunal that the AVO only prevented Mr Rush approaching her, and not [Child 1], so they initially organised that Mr Rush would pick up [Child 1] for his scheduled overnight care at the [specified] Police Station. It was then decided that this could be stressful for [Child 1], so Mr Rush would pick up [Child 1] directly from his child care centre ([named]). This was first scheduled to occur on Friday 24 February 2023; however, Mr Rush did not attend and Ms Daly had to leave work early to collect [Child 1]. Soon after this their parenting plan was “scrapped” and the parties arranged to participate in mediation. They were unable to come to any agreements so the matter returned to Court. The first Court date was in June 2023, but again they were unable to reach an agreement, so a further date was set for September 2023.

4. The Federal Circuit and Family Court of Australia (Division 2) (“the Court”) made an order on 5 September 2023[2] that [Child 1] live with Ms Daly and from 23 September 2023 he should again start to spend time with his father. Ms Daly told the Tribunal that [Child 1] had not seen his father for nearly nine months and they were concerned that he might not remember who Mr Rush was, so the first visits (from 9:30 to 11:30 am each Saturday) were supervised by Ms Daly’s father. Those visits went well and from early December Mr Rush has again been having the care of [Child 1] for one night a week. Ms Daly is, however, concerned, as it appears that Mr Rush (who still does not hold a driver’s licence) may be picking up [Child 1] from child care himself. The child care provider informed Ms Daly of this.

   [2] Hearing papers, pages A1 to A9

5. As noted above, Mr Rush did not participate in the hearing. His initial evidence to Child Support, regarding the care arrangements, is set out at page 41 of the hearing papers. Mr Rush is recorded as saying, in a telephone conversation with a Child Support officer on 10 March 2023, that he had an agreement reached through mediation with Ms Daly for care of 2 nights a week i.e.: Thursday and Friday nights. This statement is not supported by the parenting plan, which indicates alternating care of Thursday night one week and Friday night the next. On 18 April 2023 Mr Rush provided a number of documents to Child Support. These included a copy of a text message to him from Ms Daly dated 30 January 2023. This message notes in part that:

   Due to the recent events my lawyer has advised that pick ups and drop offs shall commence at [the specified] Police station .....
   Pick ups of [Child 1] will commence this Thursday 2^nd of February at 8am “no later” and returned Friday 3^rd at 6:30 pm to [the] Police station “no later”.

1. On 18 April 2023 Mr Rush also provided Child Support with an undated document signed by his mother, his sister and his brother. This notes that he has the care of [Child 1] from 8 am Thursday to 6 pm Friday for one week and 8 am Friday to 6 pm Saturday the alternating week. The document also states that “This has been continuous for over 6 months now with also additional hours outside the agreement”. Mr Rush therefore submits that he continued to have weekly overnight care of [Child 1] from October 2022 or earlier until April 2023. Ms Daly has, however, provided evidence that directly contradicts this, by way of a letter to her from Mr Rush’s lawyer, dated 2 February 2023.[3] This states in part that Mr Rush “has informed me that there have been some issues regarding his time spent with [Child 1] to the extent that you have now unilaterally cancelled my client [sic] visits with his son.”

   [3] Hearing papers, page 38

2. The Tribunal notes that the evidence provided by Mr Rush to Child Support and to his lawyer is contradictory and prefers the evidence of Ms Daly. The Tribunal therefore finds that Mr Rush did not have any care of [Child 1] from 20 January 2023 until the resumption of supervised visits on 23 September 2023. The Tribunal accepts that, in accordance with the Court Order of 5 September 2023, Mr Rush resumed overnight care of [Child 1] from early December 2023. The Tribunal also accepts Ms Daly’s evidence that Mr Rush was unable to collect [Child 1] from Ms Daly’s home due to the effect of a Domestic Violence Order, therefore alternate pick up and drop off arrangements were made from 30 January 2023. From the email to Ms Daly from [the child care centre], the Tribunal accepts that [Child 1] was available for Mr Rush to collect for his overnight care on Friday 24 February 2023 but Mr Rush failed to arrive. Ms Daly has said, in a conversation with Child Support dated 22 May 2023, that she had found out that Mr Rush was overseas at that time. As Mr Rush did not attend the hearing the Tribunal was unable to clarify whether this was the case and if so, for what period he was overseas.

3. Section 50 of the Act requires a new determination of a percentage of care to be made where the Tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. Ms Daly’s notifications to Child Support during 2023 and her oral evidence to the Tribunal satisfy the Tribunal that the care changed from 20 January 2023, such that Ms Daly had sole care of [Child 1] from that date.

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

1. There are a number of provisions in the Act which provide for the revocation of existing care determinations. Subsection 54G(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that if a person was to have at least regular care of the child during a care period and they have had no care of the child, or have had a pattern of care that is less than regular care of the child, despite the other party making the child available to them, and the other party notifies the Child Support Registrar of this within a reasonable period, the existing care determinations must be revoked. In accordance with the parenting plan of 23 February 2022, Mr Rush was to have care of [Child 1] of one night a week, which corresponds with “regular care”.

2. The central point to be considered here is whether Ms Daly made the child available to Mr Rush from 20 January 2023. Ms Daly’s evidence, which the Tribunal accepts, was that on or about that date she became aware that Mr Rush did not hold a current driver’s licence and informed him that if he wished to have care of [Child 1] then he must collect him in the company of a driver with a valid licence. The Tribunal considers this to be a reasonable request and was not of the view that this situation constituted withholding care of the child. Mr Rush did not, however, come to collect [Child 1] with a licenced driver as stipulated by Ms Daly but instead confronted her and as a result a Domestic Violence Order was made against him. It appears that Ms Daly subsequently arranged for an alternative pick up location and arranged for Mr Rush to collect [Child 1] from [the child care centre] but he failed to collect [Child 1] as arranged. The Tribunal was satisfied that Ms Daly continued to make the child available to Mr Rush but he had no care of the child from 20 January 2023 on. This means that section 54G is the appropriate section under which the determinations must be revoked.

3. As discussed above, the Tribunal accepts the evidence of Ms Daly that she had 100% of the care of [Child 1] with effect from 20 January 2023. She notified Child Support of this on 7 February 2023. The Tribunal considers that this is a reasonable period in which to notify of the care change. Accordingly, the determinations of care made from 3 March 2022, that Ms Daly had a percentage of care of 86% and Mr Rush had a percentage of care of 14%, must be revoked under section 54G and new care determinations made.

Date of effect of the decision to revoke the care determination

1. In terms of the date of effect of the new care determinations, paragraph 54G(2)(b) provides that the earlier determinations are revoked “at the end of the day before the day on which the person ceased the previously established pattern of care”, which is 19 January 2023. New care determinations must therefore be made from the day after the relevant revocations, setting out the new care percentages for each of the parties.

2. The Tribunal notes that Mr Rush has resumed weekly overnight care of [Child 1] with effect from a date in December 2023, in accordance with the Court Order of 5 September 2023. After the determinations of 20 January 2023 are made, regard will need to be had to revoking these determinations and making further care determinations reflecting the current care arrangements.

DECISION

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

• Ms Daly’s care percentage of 86% in respect of [Child 1] is revoked and replaced with a new care percentage of 100% from 20 January 2023; and

• Mr Rush’s care percentage of 14% in respect of [Child 1] is revoked and replaced with a new care percentage of 0% from 20 January 2023.