Harenc and Glancey (Child support)

[2021] AATA 2434

Harenc and Glancey (Child support) [2021] AATA 2434 (8 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021067

APPLICANT:  Mr Harenc

OTHER PARTIES:  Child Support Registrar

Ms Glancey

TRIBUNAL:Member S De Bono

DECISION DATE:  8 June 2021

DECISION:

The decision is affirmed. (This means the application for review is unsuccessful.)

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 affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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 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.

2. On 24 November 2018 the Child Support Agency (the Agency) determined that Ms Glancey had 86% care of [Child 1] and Mr Harenc had 14% care of [Child 1]. On 8 September 2020 Ms Glancey notified the Agency that she had 100% care of [Child 1] from 15 August 2020.

3. On 26 November 2020 an officer from the Agency made a decision that Ms Glancey had 100% care of [Child 1] from 15 August 2020.

4. Mr Harenc disagreed with this decision that the care he provided to [Child 1] had changed from 15 August 2020 and on 27 November 2020 he lodged an objection to this decision. On 18 March 2021 the objections officer made the decision to disallow Mr Harenc’s objection to the new care determination.

5. 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. Mr Harenc had provided additional documents (A1-A35) as had Ms Glancey (B1 – B11). Relevant aspects of the material and evidence before the tribunal will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues for the tribunal to determine are:

   ·      Should the existing care percentages of 86% care to Ms Glancey and 14% care to Mr Harenc 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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. 

7. 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 86% care to Ms Glancey and 14% care to Mr Harenc be revoked?

1. On 8 September 2020 Ms Glancey notified the Agency that she has had 100% care of [Child 1] from 15 August 2020. Ms Glancey said [Child 1] had reduced the weekends she had stayed with Mr Harenc and she told the Agency [Child 1] had only stayed with Mr Harenc on Friday 9 May 2020 and Mr Harenc dropped [Child 1] off on Saturday 10 May 2020 to spend the night with Ms Glancey before Mother’s Day on Sunday 11 May 2020.[1]

   [1] Page 69–70 of the hearing papers.

2. Ms Glancey told the Agency [Child 1] did not stay with Mr Harenc on the following fortnight of Friday 22 May and Saturday 23 May 2020 which was Mr Harenc’s weekend. Ms Glancey told the Agency [Child 1] stayed with Mr Harenc on Friday 19 June and Saturday 20 June 2020, again on Friday 17 July and Saturday 18 July 2020, and on 14 and 15 of August 2020. Ms Glancey said [Child 1] sees Mr Harenc “most days after school but does not like to stay overnight”.[2] Ms Glancey also told the Agency that [Child 1] did not stay with Mr Harenc over the Term 2 school holidays[3] and [Child 1] had not yet made a decision about whether she wanted to stay with Mr Harenc for the Term 3 school holidays.

   [2] Page 69 of the hearing papers.

   [3] The tribunal assumes Ms Glancey is referring to Term 2 school holidays which commenced in NSW on 6 July 2020. Term 3 school holidays commenced on 28 September 2020.

3. Mr Harenc initially disagreed that he ceased to have [Child 1] stay with him every second weekend on a Friday and Saturday night and 50/50 over the school holidays and that he had only missed one weekend of his fortnightly weekends after 15 August 2020.

4. Contained within the hearing papers were photos which showed [Child 1] and [Child 2] together on Sunday 26 September at 5:35 pm, there is no year but the tribunal assumes the year is 2020.[4] It is likely that [Child 1] was with Mr Harenc at this time because the photo is with [Child 2] but this is not conclusive evidence that [Child 1] stayed Friday 25 September and Saturday 26 September 2020 with Mr Harenc. On Sunday 11 October 2020 Mr Harenc provided a photo of [Child 1] at the beach which indicates [Child 1] was with Mr Harenc but again this is not conclusive evidence that [Child 1] stayed with Mr Harenc on Friday 9 October and Saturday 10 October 2020.[5] On Monday 28 December 2020 at 6:58 pm there is a photo of [Child 1] with Mr Harenc and there is also a suggestion that [Child 1] watched a movie with Mr Harenc with the time being 9:27 pm but the date is not known.[6] On Saturday 7 November 2020 there is a Facebook post which indicates [Child 1] went to the movies with Mr Harenc but there is no time indicated and this is not conclusive evidence that [Child 1] spent the night at Mr Harenc’s home. The photo evidence Mr Harenc provided to the tribunal is consistent with Ms Glancey’s evidence that [Child 1] still spent time with Mr Harenc after 15 August 2020 but it is not conclusive evidence that [Child 1] stayed overnight with Mr Harenc at these times.

   [4] Page 146 of the hearing papers.

   [5] A20.

   [6] A22.

5. At the hearing Mr Harenc disagreed that [Child 1] did not stay overnight at his home but agreed there was a period when [Child 1] did not stay overnight at his home, he thought this was for a period of about four weeks from mid-August to mid-September 2020 but this, in his view, was not a permanent change to the pattern of care. Mr Harenc said he still expected [Child 1] would come and stay at his home and he said in about mid to late September 2020 [Child 1] recommenced staying some nights. Ms Glancey also agreed that [Child 1] had stayed a night “here and there” in late September but said the pattern of care had changed after 15 August 2020 because [Child 1] had made the decision, she wanted to spend time with Mr Harenc but she did not want to stay overnight.

6. The third-party evidence contained in the hearing papers from [Child 1]’s older sister, [Child 3], dated 9 September 2020 indicates [Child 1] was not staying with Mr Harenc every second weekend but did stay on “one off occasions”.[7] This statement by [Child 3] was mostly consistent with Ms Glancey’s evidence to the tribunal and is consistent with some of Mr Harenc’s evidence to the tribunal.

   [7] Page 73 of the hearing papers.

7. The tribunal does not find the statement from either [Mr A][8] or [Ms B] to be persuasive given their relationship to Ms Glancey but the tribunal does note that [Ms B] states that [Child 1] “quite often choses not to go to her fathers”[9] which implies that [Child 1] sometimes goes to Mr Harenc’s home.  The letter from [Mr A][10] who is Ms Glancey’s partner’s brother suggests that [Child 1] spends time at their home during the week and occasionally visits on weekends for a swim. The evidence from [Mr A] is not conclusive that [Child 1] was not staying with Mr Harenc every second weekend and the tribunal draws no conclusions from this statement.

   [8] Page 151 of the hearing papers.

   [9] Page 92 of the hearing papers.

   [10] Page 152 of the hearing papers.

8. Mr Harenc told the tribunal that the only reason Ms Glancey notified of the change of care for [Child 1] was due to the debt which was raised when the new care determination was made on 31 July 2020 which found Mr Harenc had increased care of [Child 2]. Mr Harenc maintained that Ms Glancey only did this so she could reduce the debt she owed to him.

9. The tribunal accepted the information in the Child Inclusive Conference Memorandum[11] from Ms Glancey and while this had not been exchanged with Mr Harenc before the hearing Mr Harenc said he was aware of this and had received a copy of this statement. The tribunal did not put the information contained in the statement to Mr Harenc or Ms Glancey, but [Child 1]’s interview is supportive of the tribunal’s view that at least in September 2020 [Child 1] did not stay overnight with Mr Harenc. The other evidence before the tribunal supports the view that while [Child 1] continued to spend time with Mr Harenc most likely from late September this was less than regular care.

   [11] B6–B7.

10. 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).

11. Prior to 15 August 2020 Ms Glancey and Mr Harenc had a pattern of care for [Child 1] in that Mr Harenc had 14% care and Ms Glancey had 86% care and that this care determination was made under section 50 of the Act. The tribunal is satisfied that the care percentage changed in respect of [Child 1] and that Mr Harenc had decreased care and Ms Glancey had increased care of [Child 1] in August 2020. This was because [Child 1] had made the decision that she did not want to stay overnight with Mr Harenc and preferred to see him for shorter periods, say for dinner or after school. The tribunal is satisfied that as [Child 1] was 15 years old she was refusing to have the planned care. In this instance the Guide at 2.2.3 provides:

    Generally, in the absence of a parent or non-parent carer genuinely seeking care, the other parent or non-parent carer will be considered to be making the child available.

    The Registrar will consider that care is not taking place despite the genuine attempts of both parties to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).

12. There was no evidence before the tribunal that Ms Glancey was withholding [Child 1] from Mr Harenc and the evidence is highly suggestive that [Child 1] made the decision on how she wanted to see Mr Harenc. The tribunal is satisfied that Ms Glancey notified of the change in care of [Child 1] within a reasonable time, Ms Glancey notified the Agency that the care of [Child 1] had changed on 8 September 2020 which is within 28 days of the change of care occurring.

13. Subsection 54G(1) provides that a care determination must be revoked if a responsible person has less than regular care. The tribunal is satisfied that Mr Harenc ceased to have regular care for [Child 1] (that is less than 14% care) and that Ms Glancey increased her care percentage, therefore the existing care determination of 14% care to Mr Harenc and 86% care to Ms Glancey must be revoked and new care determinations made under sections 49 or 50 of the Act.

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

1. 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.    

2. The tribunal finds that Mr Harenc established a pattern of care in accordance with the 14% care determination made earlier in the year, however that pattern ceased on 15 August 2020. The tribunal finds that the new pattern of care commenced in respect of [Child 1] from 15 August 2020. Therefore, both previous care determinations of 86% to Ms Glancey and 14% Mr Harenc are revoked from 14 August 2020.

Issues 3 and 4 – What is the correct level of care to be attributed to the parents and what is the date of effect of the new care determination?

1. The tribunal is satisfied that the correct level of care attributed to each parent is 100% to Ms Glancey from 15 August 2020 and 0%[12] to Mr Harenc from 15 August 2020. The tribunal, therefore, affirms the decision of the Agency to make a new care determination in respect of [Child 1] on 26 November 2020 with a date of effect being 15 August 2020.

   [12] Zero percent in this instance does not imply Mr Harenc had no care of [Child 1]; the tribunal accepts Mr Harenc had care of [Child 1] but as he had less than 14% care for cost purposes he is deemed to have zero percent care.

DECISION

The decision is affirmed. (This means the application for review is unsuccessful.)