Hadcock and Yonge (Child support)

[2022] AATA 2366

Hadcock and Yonge (Child support) [2022] AATA 2366 (19 May 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC023359

APPLICANT:  Ms Hadcock

OTHER PARTIES:  Child Support Registrar

Mr Yonge

TRIBUNAL:Member D Cox

DECISION DATE:  19 May 2022

DECISION:

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

·      The existing care percentages be revoked from 25 November 2021;

·      A new care determination of 66% to Ms Hadcock and 38% to Mr Yonge applies from 26 November 2021 to the end of the interim period; and

·      The Federal Circuit and Family Court order of 18 January 2022 is a new care arrangement that began to apply to the child on that day, in which case the interim period is from 26 November 2021 to 17 January 2022, and is subject to a new determination by Child Support.

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 – whether 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. This case is about the care of [Child 1] who was born [in] December 2008.

2. On 18 September 2018 the Family Court made consent orders which the Tribunal finds reflected care of [Child 1] as 66% to Ms Hadcock and 34% to Mr Yonge.

3. On 23 March 2020 Services Australia - Child Support (Child Support) accepted an application for a child support assessment in respect of [Child 1] with effect from
   24 February 2020, that Mr Yonge had 33% care and Ms Hadcock had 67% care.

4. Mr Yonge objected to that decision and on 2 March 2021 his objection was allowed.

5. On 18 March 2021 Child Support made a correction to the decision of 2 March 2021.

6. Mr Yonge made an application to the Tribunal for review of the original decision of 23 March 2020.

7. On 21 June 2021 the Tribunal, differently constituted, set aside the decision under review and in substitution decided that the care percentages for [Child 1] are 62% to Ms Hadcock and 38% to Mr Yonge from 24 February 2020.

8. On 2 December 2021 Mr Yonge advised a change of care.

9. On 7 December 2021 a decision was made to reflect care of [Child 1] as 100% to Mr Yonge and 0% to Ms Hadcock from 26 November 2021.

10. On 8 December 2021 Ms Hadcock lodged an objection to that decision. She told the objections officer that Mr Yonge was withholding [Child 1] and she was filing an emergency recovery order.

11. On 25 January 2022 the General Division of the Tribunal in BYKM and Child Support Registrar (Child support second review) [2022] AATA 70 (25 January 2022) set aside the decision of 21 June 2021 and substituted a decision determining that the percentage of care for [Child 1] from 24 February 2020 is 66% care by Ms Hadcock and 34% by Mr Yonge.  This decision was consistent with the care percentages provided by the Family Court consent orders of 18 September 2018.

12. The Federal Circuit and Family Court of Australia made an interim order that from 18 January 2022 [Child 1] live with Ms Hadcock and that she spend time with her father on a two-week cycle as follows:

    ·      In week 1 from Wednesday after school until Friday at 9am;

    ·      In week 2 from the conclusion of school (or 3pm if not a school day) until Sunday at 5pm; and

    ·      Half of school holidays.

1. Ms Hadcock notified a further care change in relation to [Child 1] from 18 December 2021 of 67% to her and 33% to Mr Yonge.  This notification is currently pending and is subject to separate review rights.

2. Ms Hadcock advised the objections officer that she had obtained a new court order but was told that the objections process would run its course.

3. On 23 February 2022 the objection was disallowed.

4. On 24 February 2022 Ms Hadcock made an application to the Tribunal for a review of the decision of 23 February 2022.

5. Ms Hadcock told the Tribunal that on 9 May 2022 the Federal Circuit and Family Court made final orders in relation to care and those orders had been complied with.

THE HEARING

1. Mr Yonge did not attend the hearing, which was held by telephone. Ms Hadcock made an affirmation to tell the truth.

2. Ms Hadcock did not dispute that care had changed on 26 November 2021.

3. Ms Hadcock told the Tribunal that the Federal Circuit and Family Court had dealt with the matter of care on 15 January 2022 but had made its order apply from 18 January 2022. Mr Yonge had complied with the order on that date and [Child 1] had been returned to
   Ms Hadcock’s care.

CONSIDERATION

1. The legislative scheme for child support requires determination of whether a new care percentage should be determined following notification of a change of care arrangements.

2. It is not in dispute, and the Tribunal makes a finding of fact, that [Child 1] was in Mr Yonge’s 100% care from 26 November 2021.

3. Sections 51 to 53A of the Child Care (Assessment) Act 1989 (the Assessment Act) deal with situations where care percentages were determined by court orders but the court orders are not being followed.

4. The applicability of these provisions requires that the person who has reduced care of the child is taking reasonable action to ensure that the court orders are complied with: paragraph 51(1)(d) of the Assessment Act.

5. The Tribunal finds that a care arrangement applied in relation to [Child 1] and that the actual care of [Child 1] did not comply with the care that the parents should have had under the care arrangement.

6. In this case Ms Hadcock filed for an emergency recovery order from the Federal Circuit and Family Court, which was heard in time for such an orders to be complied with by 18 January 2022. The Tribunal therefore finds that Ms Hadcock was at all times taking reasonable action to ensure that the previous court order was complied with.

7. Pursuant to subsection 51(5)of the Assessment Act, the Tribunal considered whether special circumstances applied to [Child 1]. The Tribunal had no evidence before it that would indicate special circumstances relating to [Child 1].

8. The Tribunal finds that special circumstances in relation to [Child 1] do not exist. Therefore subsection 51(2) of the Assessment Act requires the calculation of two care percentages.

9. The first care percentage, pursuant to subsection 51(3) of the Assessment Act, is the percentage of care that the person should have had under the court orders.

10. The Tribunal finds that the care percentages relevant to subsection 51(3) of the Assessment Act are 66% to Ms Hadcock and 34% to Mr Yonge.

11. The second care percentage, pursuant to subsection 51(4) of the Assessment Act, is the percentage of care that corresponds with the actual care the responsible person would be likely to have if the recovery action referred to in paragraph 51(1)(d) were not successful.

12. The Tribunal finds that the care percentages relevant to subsection 51(4) of the Assessment Act are 0% to Ms Hadcock and 100% to Mr Yonge.

13. Section 53A of the Assessment Act provides for an interim period for a determination, during which the care percentages relevant to subsection 51(3) of the Assessment Act will apply.

14. The table at section 53A of the Assessment Act must be used to determine the length of the interim period, which:

    ·      Begins on the change of care day (in this case 26 November 2021); and

    ·      Ends on either the day set out in the table in at the end of subsection 53A(1), or one of the days referred to in subparagraphs 53A(1)(b)(ii), (iii) or (iv).

15. The Tribunal finds that item 2 in the table is applicable in this case, because the applicable care arrangement is a court order, and the court order was made more than 38 weeks prior to the date of the change in actual care for the child, otherwise item 1 might apply. Item 2 provides for an interim period of either 26 weeks starting on the change of care day, or 14 weeks starting on the day the person who has increased care of the child begins taking reasonable continuous action to participate in family dispute resolution process.

16. Mr Yonge did not attend the hearing to answer questions about his participation in a family dispute resolution process. The Tribunal has no evidence before it that either party initiated a family dispute resolution process.

17. The Tribunal notes that Mr Yonge was a respondent to the Federal Circuit and Family Court proceedings initiated by Ms Hadcock. Court proceedings themselves are not a family dispute resolution process. The definition of a family dispute resolution process is set out in section 10F of the Family Law Act 1975.

18. In the absence of such evidence the Tribunal finds that Mr Yonge did not participate in a dispute resolution process and, pursuant to subparagraph 53A(1)(b)(ii) of the Assessment Act, the interim period is 26 weeks starting from the day that care changed, which was 26 November 2021.

19. The Tribunal sets aside the decision under review made on 7 December 2021 to reflect care of [Child 1] as 100% to Mr Yonge and 0% to Ms Hadcock from 26 November 2021.

20. Mr Yonge told Child Support on 7 December 2021 that [Child 1] had refused to go back to her mother.  Ms Hadcock told the Tribunal that Mr Yonge had withheld [Child 1] and that he had subsequently withheld their other two children after handover as part of the normal pattern of care.  Unfortunately, Mr Yonge did not make himself available to give further evidence on this matter.

21. On the available evidence, as all three children were not returned to their mother in conformity with the previous pattern of care, the Tribunal finds on the balance of probability that Mr Yonge withheld [Child 1].  Therefore, section 54G of the Assessment Act does not apply.

22. Pursuant to section 54F of the Assessment Act, the Tribunal revokes on 25 November 2021 the previous determination of 21 June 2021,.

23. The Tribunal substitutes an interim care determination for a period of 26 weeks, from 26 November 2021 to 27 May 2022.

24. During that period, or a shorter period defined by the making of the new determination referred to in paragraph 12, care of [Child 1] is to be reflected as 66% to Ms Hadcock and 34% to Mr Yonge.

DECISION

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

·      The existing care percentages be revoked from 25 November 2021;

·      A new care determination of 66% to Ms Hadcock and 38% to Mr Yonge applies from 26 November 2021 to the end of the interim period; and

·      The Federal Circuit and Family Court order of 18 January 2022 is a new care arrangement that began to apply to the child on that day, in which case the interim period is from 26 November 2021 to 17 January 2022, and is subject to a new determination by Child Support.