Harenc and Glancey (Child support)

Harenc and Glancey (Child support) [2021] AATA 2750 (8 June 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021056
APPLICANT:  Mr Harenc
OTHER PARTIES:  Child Support Registrar
Ms Glancey

TRIBUNAL:Member S De Bono
DECISION DATE: 8 June 2021
DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Mr Harenc has 100% care of [Child 1] from 15 August 2020. (This means the application for review is partly successful.)

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

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

Mr Harenc and Ms Glancey are the separated parents of [Child 1]. They registered a child support assessment for [Child 1] which commenced on 28 September 2006. From 24 November 2018 the care of [Child 1] was registered as 14% to Mr Harenc and 86% to Ms Glancey.

On 18 May 2020 Mr Harenc notified the Child Support Agency (the Agency) that there had been a change in care for [Child 1] from 1 May 2020. Mr Harenc told the Agency that [Child 1] would stay with Ms Glancey every second weekend for three nights from Friday through to Monday morning and for half of the school holidays. Mr Harenc calculated that Ms Glancey would have 104 nights of care or 28% and he would have 261 nights of care or 72%[1]. On 31 July 2020 the Agency made a new care determination and applied this determination from 1 May 2020.
[1] Page 41 of the hearing papers.
On 20 August 2020 Mr Harenc informed the Agency that there was change in care of [Child 1] from 2 May 2020 and that [Child 1] had spent only one night with Ms Glancey from this date. On 26 November 2020 the Agency made a new care determination that Mr Harenc had 100% care of [Child 1] from 21 August 2020.
On 26 November 2020 Mr Harenc lodged an objection to this decision because he said he had 100% care of [Child 1] from 2 May 2020 and the new care determination should apply from this date and not from 21 August 2020. On 18 March 2021 the objections officer made a decision to disallow Mr Harenc’s objection.
On 22 March 2021 Mr Harenc applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 8 June 2021 Mr Harenc and Ms Glancey attended the hearing via conference telephone and gave sworn evidence to the tribunal. The tribunal had before it a bundle of documents (236 pages) which had been sent to Mr Harenc and Ms Glancey prior to the hearing. Mr Harenc provided additional documents (A1-A35) some of these additional documents were also in the hearing papers and Ms Glancey also provided additional documents. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues to be decided.
The issues which arise in this case are:
·     Should the existing care percentages of 72% to Mr Harenc and 28% to Ms Glancey be revoked?
·     If so, from what date should the existing care percentages be revoked?
·     What is the correct level of care to be attributed to the parents? And
·     What is the effective date of the new care determinations?

LAW AND CONSIDERATION

The law relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988. Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.
The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.
The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). The Agency’s policy in this regard, as set out in chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.
Sections 49 and 50 of the Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the tribunal must first be satisfied that there has been a change in the level of care provided by each parent for [Child 1], before a revocation under Subdivision C of Division 4 of Part 5 of the Act can be considered.
Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Act reflect the idea that the Agency makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.
The tribunal’s task on review is to stand in the shoes of the original decision maker. In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency. It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Agency up to the time of the tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Agency. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Agency – so that a new primary care percentage decision can be considered and made if appropriate.
The term “pattern of care” is not defined in the legislation. The tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to the Agency.

Issue 1 – Should the existing care percentages of 72% to Mr Harenc and 28% to Ms Glancey be revoked?

Mr Harenc and Ms Glancey agreed that Mr Harenc had care of [Child 1] on a Friday and Saturday night every second weekend and 50/50 shared care over the school holidays and this had been the pattern of care for a number of years.
The objections officer recorded in their decision that on 18 May 2020 Mr Harenc notified the agency that the care arrangements had changed for [Child 1] and that [Child 1] would stay with Ms Glancey three nights every second week from Friday through to Monday morning but would remain with him for the rest of the period. The care pattern over the school holidays was to remain the same in that [Child 1] would spend the school holiday’s 50/50 with each parent. Mr Harenc said even though he notified the Agency that the care arrangement going forward for [Child 1] would be this pattern he said the care that actually occurred was different to this arrangement. Mr Harenc said this was because it became apparent that [Child 1] did not want to return to Ms Glancey’s house because he was experiencing conflict with Ms Glancey’s partner. Mr Harenc said [Child 1] refused to return to Ms Glancey’s house while her partner was there and this is why he believes the pattern of care in respect of [Child 1] changed from 1 May 2020.
Ms Glancey said that when [Child 1] went to live with his father it followed an argument with her partner. Ms Glancey said she was at work and [Child 1] was required to undertake home schooling due to the COVID-19 restrictions. Ms Glancey had spoken with [Child 1] and had indicated he needed to complete his schoolwork before playing video games. Ms Glancey said when she spoke to her partner he told her [Child 1] was not completing his school work and her partner attempted to take away the Xbox following instructions from Ms Glancey. She said [Child 1] became angry and an argument ensued between her partner and [Child 1]. [Child 1] then called his father who came to pick him up. According to Mr Harenc [Child 1] told him while Ms Glancey’s partner was still there he did not want to stay at Ms Glancey’s house.
Ms Glancey expected that [Child 1] would still come and stay every second weekend with her when [Child 1] went to live with Mr Harenc from 1 May 2020 and that the pattern of care going forward would be that [Child 1] would stay with her on Friday and Saturday nights every second weekend and 50/50 in school holidays. Ms Glancey said [Child 1] stayed with her on the following dates:
· Saturday 9 May and Sunday 10 May 2020 which was Mother’s Day. Evidence shows that [Child 1] called Mr Harenc in the afternoon of Mother’s Day and asked Mr Harenc to come and pick him up from Ms Glancey’s sister’s house.
· Ms Glancey said [Child 1] stayed with her on Friday 15 and Saturday 16 May 2020, Friday 29 and Saturday 30 June 2020, Friday 12 and Saturday 13 June 2020, Friday 26 and Saturday 27 June 2020, Friday 10 July and Saturday 11 July 2020, Friday 7 August and Saturday 8 August 2020 and Friday 14 and Saturday 15 August 2020. Ms Glancey said this was the last time [Child 1] stayed overnight with her and she agreed the care changed for [Child 1] after Saturday 15 August 2020.
Ms Glancey said she was distressed that [Child 1] did not want to come and stay with her and it was her view that the pattern of care for [Child 1] of her having two nights of care every second weekend and 50/50 care during school holidays was the expected pattern of care for [Child 1] from 1 May 2020 and this remained the expected pattern of care until after 15 August 2020 when it became clear that [Child 1] had chosen to no longer stay overnight with her and he did not stay overnight after this date. Ms Glancey said [Child 1] has now started to have some overnight care with her.
Mr Harenc did not agree that [Child 1] stayed with Ms Glancey on the nights indicated by her, Mr Harenc said he remembers only one occasion when [Child 1] returned to Ms Glancey’s home to stay overnight and this was on Friday 12 June 2020. He said [Child 1] called him on Saturday 13 June 2020 asking Mr Harenc to come and pick him up. Mr Harenc said the other time [Child 1] stayed with Ms Glancey overnight was the night before Mother’s Day when [Child 1] stayed at Ms Glancey’s sister’s home; Mr Harenc said he encouraged [Child 1] to spend Mother’s Day with Ms Glancey.
Ms Glancey said she had other nights of care when [Child 1] stayed with her at her sister’s house, Ms Glancey said she was there when [Child 1] stayed overnight at these times. Mr Harenc agreed there were times that [Child 1] had stayed with Ms Glancey’s sister but did not agree that Ms Glancey was always there so his view was that [Child 1] was not actually in Ms Glancey’s care, and he did not agree that these occasions were more than one or two occasions, at least one of these occasions was the night before Mother’s Day on 10 May 2020.
Evidence before the tribunal shows that [Child 1] returned to Ms Glancey’s house on Monday 4 May 2020 but that [Child 1] called Mr Harenc at 5 pm requesting Mr Harenc pick him up from Ms Glancey’s house.[2] Evidence also shows that Mr Harenc had requested a change to his shifts at work to daytime shifts so he could look after [Child 1] from 14 May 2020. Mr Harenc wrote there may be a time when he may be able to go back to afternoon shift but “the date is unknown”.[3] Mr Harenc signed a Statutory Declaration indicating he could not work on Thursday 14 May 2020 because he was looking after [Child 1].[4]
[2] Page 14 of the hearing papers.
[3] Page 18 of the hearing papers.
[4] Page 20 of the hearing papers.
A letter from [Law Firm 1] dated 29 June 2020 indicates that [Child 1] was staying with Ms Glancey on Saturday 27 June 2020 and it is also supportive of Ms Glancey’s evidence that [Child 1] stayed with her on Friday 26 June 2020.[5] Mr Harenc in his conversation with the Agency on Friday 9 July 2020 said to the officer that [Child 1] had gone to stay with Ms Glancey but that [Child 1] rang him at about 10 pm on Saturday 27 June 2020 asking Mr Harenc to pick him up from Ms Glancey’s house because he said Ms Glancey’s partner had been verbally abusive towards him; Mr Harenc attended the police station with [Child 1] to report this incident.[6]
[5] Page 22 of the hearing papers.
[6] Page 26 of the hearing papers shows a letter from [Law Firm 1] which supports Mr Harenc’s evidence to the tribunal.
On 7 July 2020 [Law Firm 1], Mr Harenc’s solicitors wrote to [Law Firm 2], Ms Glancey’s solicitors, indicating that the pattern of care going forward was expected to continue with [Child 1] to remain living with Mr Harenc and spend time with Ms Glancey from after school on Friday to 7:00 pm on Sunday during school term each alternate weekend and for the second half of school holidays during the term 2 and term 3 school holidays.[7]
[7] Page 85 of the hearing papers.
It is evident to the tribunal that [Child 1] spent at least two nights at Ms Glancey’s house after 1 May 2020 and that he spent other nights at Ms Glancey’s sister’s house because he did not want to return to Ms Glancey’s house. The tribunal accepts that the nights [Child 1] stayed with Ms Glancey were more than a couple of nights and there was an attempt to maintain the pattern of care of two nights of care to Ms Glancey every second weekend on a Friday and Saturday night from 1 May 2020. This is supported by the letter from [Law Firm 1] on 7 July 2020 as well as evidence from Ms Glancey.
While the tribunal accepts that the pattern of care from 1 May 2020 was not always followed, mainly, it seems, due to [Child 1]’s wishes, the pattern of care expected by Ms Glancey and Mr Harenc from 1 May 2020 was that [Child 1] would continue to stay with Ms Glancey from Friday night to Sunday night every second weekend and with her 50/50 during school holidays. It only became apparent with the passage of time that the pattern of care had changed.
Subsection 54G(1) of the Act provides that a care determination must be revoked if there is less than regular care (that is less than 14% care of a child; subsection 5(2) of the Act):
(1) If:
(a) a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
The tribunal is satisfied that prior to 15 August 2020 Mr Harenc and Ms Glancey had a pattern of care of [Child 1] and the determination had been made under section 50 of the Act. The tribunal accepts that the pattern of care changed for [Child 1] from the expected pattern of care from 15 August 2020 and Mr Harenc notified the Agency that this had occurred in a timely manner; that is on 20 August 2020.
Although the tribunal accepts that Mr Harenc raised concerns that Ms Glancey was having less than the 28% care, the tribunal accepts that Ms Glancey had less than regular care (that is less than 14% care) from 15 August 2020. The tribunal is satisfied that [Child 1] made the decision not to stay with Ms Glancey and there was no evidence that Mr Harenc did not make [Child 1] available to Ms Glancey. Section 54G provides if there is less than regular care the existing care determination must be revoked. The tribunal is satisfied that the care percentages of 72% to Mr Harenc and 28% to Ms Glancey should be revoked in accordance with section 54G of the Act.

Issue 2 – From what date should the existing care percentages be revoked?

Subsection 54G(2) provides:
(2) The revocation of each determination takes effect:
(a) if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or
(b) if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.
Based on the evidence from Mr Harenc and Ms Glancey and the evidence contained in the hearing papers the tribunal is satisfied that the expected pattern of care of 28% care to Ms Glancey and 72% care to Mr Harenc changed from 15 August 2020 and Ms Glancey accepted that [Child 1] was now staying with Mr Harenc and he was providing 100% care of [Child 1] from this date. Therefore, subsection 54G(2) applies.
The tribunal is satisfied that a change in care occurred in respect to [Child 1] on 15 August 2020 and the Agency was notified of this change in care on 20 August 2020, as this was within 28 days of the change occurring the pre-existing care determination must be revoked on 14 August 2020 which is the day before the care change occurred.

Issue 3 – What is the correct level of care to be attributed to the parents?

The tribunal is satisfied that the correct level of care to be attributed to Mr Harenc for [Child 1] from 15 August 2020 is 100% and 0% to Ms Glancey as she ceased to have regular care of [Child 1] after this date.

DECISION

[2021] AATA 2750

8 June 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness