Donaldson and Child Support Registrar (Child support)

[2019] AATA 4869

Donaldson and Child Support Registrar (Child support) [2019] AATA 4869 (3 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016990

APPLICANT:  Mr Donaldson

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  3 October 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides Mr Donaldson has a percentage of care of 15% for [the two named children] from 11 January 2019.

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 – reasonable action taken – interim period applied – 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.Mr Donaldson and [Ms A] are the parents of [the two named children]. Mr Donaldson is the parent liable to pay child support.

2.From 6 February 2015 the Department of Human Services – Child Support (the Department) determined that [Ms A] had a percentage of care for [the children] of 85% and that Mr Donaldson had a percentage of care of 15% for [the children].

3.On 8 March 2019 [Ms A] contacted the Department and advised that her care percentage for [the children] was 100% from 11 January 2019.

4.On 8 April 2019 the Department determined that [Ms A] had 100% care of [the children] and that Mr Donaldson had 0% care of [the children] from 11 January 2019.

5.On 9 April 2019 Mr Donaldson lodged an objection to the decision of the Department.

6.On 15 July 2019, an objections officer disallowed Mr Donaldson’s objection. On 23 July 2019 Mr Donaldson lodged an application to the Administrative Appeals Tribunal (the tribunal) for an independent review of the decision. The hearing took place on 3 October 2019. Mr Donaldson participated in the hearing by telephone and gave sworn evidence. [Ms A] chose not to participate in the hearing. In making its decision the tribunal took into consideration the documents (numbered 1 to 245) provided by the Department which were also sent to Mr Donaldson.

CONSIDERATION

7.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [the children]?

8.It is uncontroversial that the care of [the children] altered from 11 January 2019 from the care percentages previously determined by the Department. [Ms A] was assessed from 6 February 2015 as having a care percentage for [the children] of 85% and Mr Donaldson had a percentage of care of 15%.

9.The tribunal is satisfied that [Ms A] contacted the Department on 8 March 2019 to advise of a care change from 11 January 2019. [Ms A] told the Department that she had 100% care of [the children]. Mr Donaldson stated that the reason for the care change was due to [Ms A] withholding the care of the children. Mr Donaldson submitted that this commenced on 12 October 2018 when he was supposed to have the care of the children and was told not to go to [an agreed location], where he normally collects the children. He went to the [location] to collect the children and they were not there. At the time, he had to get his lawyer, [named] to write to her so that he could have the care of the children but this did not work. From this date onwards [Ms A] was insisting that his weekend care was the alternate weekend from what he was required to have the children, according to the court orders, and consequently refused to make the children available on the days Mr Donaldson was supposed to have care.

10.Mr Donaldson stated that he was supposed to have the care of the children on 4 January 2019 in accordance with the court orders but this did not occur as [Ms A] insisted that it was her weekend with the children. This continued until April 2019. Prior to the care resuming, Mr Donaldson’s new lawyers, [business named], suggested a new care cycle which commenced and then the care reverted to the original weekend care as per the court orders.

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

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that the an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 6 February 2015 with [Ms A] having a care percentage for [the children] of 85% and Mr Donaldson having a percentage of care of 15%. Therefore, paragraph 54F(1)(a) of the Act is satisfied.

13.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking ‘reasonable action’ to have the court order complied with.

14.The Registrar was notified on 8 March 2019 that the care of [the children] which was actually taking place for Mr Donaldson and [Ms A] had changed from 11 January 2019. There is no dispute that the care arrangements as determined by the Department on 6 February 2015 were not occurring from 11 January 2019. [Ms A] stated to the department that she had 100% care of the children from this date. Mr Donaldson stated that while this was the actual care, it was not what should have occurred. Mr Donaldson stated that he contacted his lawyer to try and reinstate his care but this did not occur until April 2019.

15.The tribunal was satisfied that Mr Donaldson was taking ‘reasonable action’ to ensure the court order was complied with in regard to the care of the children that should have occurred. The tribunal has decided that Mr Donaldson’s negotiations with [Ms A] and his attempt at mediation can be considered reasonable action within the meaning of section 51 of the Act. Subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under care arrangements and the other being the care actually taking place. In this instance, the tribunal concluded that those percentages of care would be:

·      Care according to the court order – 15% care for Mr Donaldson and 85% care for [Ms A]; and

·      Care actually occurring – 100% care of the children for [Ms A] and 0% care for Mr Donaldson.

16.As the care arrangements for [the children] changed on 11 January 2019 an interim care determination applies in relation to the person who had reduced care of the children in circumstances where care is not occurring in accordance with a court order. There is no dispute that from 11 January 2019 the actual care for [the children] changed from 15%-0% for Mr Donaldson and [Ms A] respectively to 85%-100% respectively for each of them. The tribunal was satisfied that this change would affect the cost percentages applying in respect of [the children]. The first two percentages correspond with the percentages that the parents should have had under the court order.

17.Under the Act, the 15% and 85% percentages apply for an interim period commencing on the date of the change in care on 11 January 2019 based on Mr Donaldson’s reasonable action to have the existing orders complied with. While these percentages apply for the interim period, it is open to the Department to make a new determination of the care of the children. The tribunal notes that this has occurred on 12 April 2019 and so consequently has not put an end date for the interim determination period.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides Mr Donaldson has a percentage of care of 15% for [the children] from 11 January 2019.