Dyson and Morice (Child support)

[2020] AATA 578

Dyson and Morice (Child support) [2020] AATA 578 (30 January 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/HC017833

APPLICANT:  Ms Dyson

OTHER PARTIES:  Child Support Registrar

Mr Morice

TRIBUNAL:Member A Schiwy

DECISION DATE:  30 January 2020

DECISION:

The tribunal set aside the decision under review, and in substitution, decided that the care percentages that apply to the child support assessment from 1 July 2018 are 100% to Ms Dyson and nil to Mr Morice. However, pursuant to subsection 95N(1) of the Child Support (Registration and Collection) Act 1988, the date of effect of this decision is 14 November 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 - decision under review set aside and substituted - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances

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 Dyson and Mr Morice are the separated parents of three children.  This application for review is about the respective percentages of care that each parent has for the children.

2. The child support case commenced in late 2015 and in May 2016 the Department of Human Services (Child Support) made a determination that Ms Dyson had 84% care of the children and Mr Morice had 16% care.

3. On 4 July 2018 Ms Dyson contacted Child Support requesting a change in care and stated that she had 100% care of the children from 1 July 2018.

4. On 2 August 2018, after being unable to contact Mr Morice, Child Support decided that Ms Dyson had 100% care of the children from 1 July 2018.

5. On 10 August 2018 Mr Morice objected to the care decision on the basis that he was having care of the children in accordance with the court orders which were issued in 2016 and he had at least 16% care. 

6. On 4 December 2018 a Child Support objections officer decided that there had been no change in care on 1 July 2018.

7. On 14 November 2019, Ms Dyson applied to this tribunal for an independent review of the objection officer’s decision.

8. A hearing into the application for review was held by the tribunal on 30 January 2020 in Hobart.  Ms Dyson and Mr Morice participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

9. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 149.   

ISSUES

1. The Child Support (Assessment) Act 1989 (the Act) contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Act.  Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver.  That determination remains in force until it is revoked.  If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones.   

2. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies and that care arrangement is not being complied with (see section 51 of the Act).  A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan. 

3. In this case the issues are:

   ·Was there a change in care on 1 July 2018?

   ·If so, should an interim care period apply?

   ·What is the date of effect of the tribunal’s decision?

CONSIDERATION

Was there a change in care?

1. Court orders issued in December 2016 stated that Ms Dyson could relocate to [Country 1] with the children anytime from 1 January 2017.  The parents do not dispute that Ms Dyson left Australia with the children [in] January 2017.

2. The orders allowed for the following care of the children by Mr Morice:

   ·Two periods of at least 14 days in Australia with the children being flown to Australia at Ms Dyson’s expense.  The two occasions were to be in the June/July and December/January holidays and additional visits were allowed “otherwise as agreed by the parties”.  If the parents did agree to additional visits the travel costs were to be at Mr Morice’s expense.

   ·At least two occasions in [Country 1] subject to Mr Morice giving Ms Dyson appropriate notice.  The length of these visits was not stipulated in the orders.  Mr Morice was to pay for his travel to [Country 1].

3. The parents agreed that since 1 January 2017 the only time Mr Morice has had the children in his care was when he visited them in [Country 1] in July 2018 and took them into his care for approximately two weeks. 

4. The reasons why there have not been further periods of care was disputed.

5. Ms Dyson stated that the reason they had never been back to Australia was because the children needed new passports to travel.  She applied twice for passports but Mr Morice cancelled the first application and she received no acknowledgement from him when she attempted to get his signature on the second application.  Mr Morice said Ms Dyson offered to send the children to Australia in December 2017 but would only fly them to Melbourne even though he lived in [another city].  He refused to travel to Melbourne and the trip fell through.  When the passports needed to be renewed he signed the application but was later called by a [Country 1] official who said that his signature had been witnessed in [Country 1] which was not possible as he was in Australia when he signed the application.  He said the application therefore failed to be approved.

6. Mr Morice said that in August 2018, at the end of his first trip to [Country 1] he planned to go again in around December or January.  He said he contacted Ms Dyson in around October/November 2018 to get her agreement but it was never given.  He said he then contacted her in early January 2019 for a visit in July 2019 but there was no reply.  Later he confirmed the contacts were by telephone.  Ms Dyson stated that Mr Dawson did not contact her about planned visits in December 2018 or July 2019 and also said that they did not communicate by telephone.  Ms Dyson said the first (and only) contact she had from Mr Morice about visiting the children in [Country 1] was for his July 2018 trip.

7. At the time the original decision was made, 2 August 2018, Mr Morice had only visited the children once since January 2017 and the children had not visited Australia.  The tribunal decided that at that point in time it was very unlikely that Mr Morice would have the children in his care for at least 52 nights per year; the minimum required to have a care percentage of 14% which is when the cost percentage used in the formula is impacted (if a parent has less than 14% care they have nil costs in the formula).  Mr Morice had had only one two-week visit in 18 months at that stage and even if the children were to come to Australia for four weeks per year, his care would still be less than 14%.

8. The tribunal therefore decided that the care had been reduced from 16% to 14%.  Ms Dyson said the date of the change was from 1 July 2018.  Given that the parents’ intentions may have been for more care when Ms Dyson first left Australia, the tribunal was satisfied that this was an appropriate date.  (The tribunal also noted that if the change was earlier, the date of effect could only be from when Ms Dyson applied to Child Support as the date of effect for any notifications more than 28 days after a change is made, is the date of notification.)

Should an interim care period apply?

1. Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a written parenting plan, is not being complied with and the parent with reduced care takes “reasonable action” to have the written parenting plan complied with.  What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[1]

   ·      negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;

   ·      making and/or attending an appointment at a family relationship centre or other dispute resolution service with the aim of ensuring the care arrangement is adhered to;

   ·      seeking or obtaining legal advice regarding the making of a court order;

   ·      filing an application to a court to have an order made or enforced;

   ·      attending a hearing at court to seek an order to be made or enforced; or

   ·      notifying the police that the child has been taken without consent.

   The tribunal is not bound by policy as set out in the Guide.  However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the tribunal decided that the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [1] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.41 – can be found at >

   When asked what steps he had taken to have the court orders enforced Mr Morice said that he rang his lawyer in around late 2018 and was advised to let it ride for a while as there was no point in going to court for a “one-off” breach of the court orders; he needed to establish a pattern.  When it was pointed out to Mr Morice that by late 2018 a pattern appeared to have already been established, he said it would have been very expensive to go to court and Ms Dyson was likely to only receive a slap on the wrist.

2. Mr Morice’s evidence was not consistent; he was vague about when he contacted his lawyer and could not explain why his lawyer would say there had only been one breach of the orders when there had been at least four (two trips to Australia in 2017 and 2018) not including Ms Dyson’s apparent refusal to allow Mr Morice to visit [Country 1] in late 2018.  The tribunal did not accept that Mr Morice had made any attempt to have the orders enforced and therefore no interim care period can apply.

What is the date of effect of the tribunal’s decision?

1. There is no time limit on a person lodging an application for review, with this tribunal, of a decision on objection relating to the determination of a percentage of care. However, if an application to this tribunal is made more than 28 days after the notice of the objection decision was served upon the person, and the tribunal’s decision is to vary or substitute a decision on that objection, the tribunal’s decision only takes effect from the day the application for review was made unless there are “special circumstances” that prevented the application from being made within that 28-day period, pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988.

2. In this case, the objection decision was made on 4 December 2018 and Ms Dyson applied to this tribunal on 14 November 2019, approximately 11 months later. 

3. Ms Dyson said that she never received the objection decision and she used the Child Support “app” on several occasions to change the care back to 100%.  She did not hear anything from them and eventually during a phone conversation she was told she could not change the care back to 1 July 2018 as an objection decision had already been made and she needed to apply to the tribunal.

4. The tribunal was not persuaded that there were special circumstances that prevented Ms Dyson making an application for review with this tribunal within 28 days of receiving the objection decision.  This means, for the purposes of the child support assessment, the date this decision applies from is 14 November 2019.

DECISION

The tribunal set aside the decision under review, and in substitution, decided that the care percentages that apply to the child support assessment from 1 July 2018 are 100% to Ms Dyson and nil to Mr Morice. However, pursuant to subsection 95N(1) of the Child Support (Registration and Collection) Act 1988, the date of effect of this decision is 14 November 2019.