Hendry and Pooke (Child support)

[2018] AATA 4986

Hendry and Pooke (Child support) [2018] AATA 4986 (6 December 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/AC014855

APPLICANT:  Mrs Hendry

OTHER PARTIES:  Child Support Registrar

Mr Pooke

TRIBUNAL:Member J Longo

DECISION DATE:  6 December 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no care arrangement in place - 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 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 Pooke and Mrs Hendry are the parents of [Child 1]. Mr Pooke was the parent liable to pay child support.

2. On 4 June 2014, the Department of Human Services – Child Support (the Department) determined that Mrs Hendry had a percentage of care for [Child 1] of 77% and that Mr Pooke had a percentage of care of 23% for [Child 1]. 

3. Mr Pooke contacted the Department on 18 May 2018 and stated that there had been a change in the care and he now had 100% of the care of [Child 1].

4. On 29 May 2018, the Department amended the percentage of care for [Child 1] to 100% to Mr Pooke and 0% to Mrs Hendry from 29 April 2018. On 30 May 2018, Mrs Hendry lodged an objection to the decision. On 24 July 2018, an objections officer disallowed the objection.

5. On 21 August 2018, Mrs Hendry lodged an application with the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 6 December 2018. Mrs Hendry and Mr Pooke spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision, the tribunal took into consideration documents (numbered 1 to 318) provided by the Department and additional documents provided by Mr Pooke.

CONSIDERATION

1. 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 [Child 1]?

1. It is uncontroversial that the care arrangements for [Child 1] were, from 4 June 2014, reflected as 77% to Mrs Hendry and 23% to Mr Pooke.

2. Mrs Hendry stated that she asked for review of the decision because there was no decision made that the care would change. [Child 1] went into Mr Pooke’s care for the school holiday period and due to her and her daughter experiencing some conflict it was decided that [Child 1] should spend some time with Mr Pooke. Mr Pooke had missed some time earlier in the year and so thought he could catch up and have her for an extended period. However, Mr Pooke contacted child support and stated that he had 100% care of [Child 1] when it was supposed to be a temporary arrangement.

3. Mrs Hendry stated that she contacted Relationships Australia but Mr Pooke did not want to participate in any mediation. She had to wait for a certificate from the mediator and then her lawyer wrote to Mr Pooke but the matter was not resolved. As there are no court orders or parenting plan, she was advised that the next step was to go to Court but there was no guarantee that it would be successful. Mrs Hendry stated that Mr Pooke has made no arrangements for [Child 1] to spend time with her or her family. Mrs Hendry also stated that [Child 1] was still enrolled at school even though she had been enrolled [in another area].

10.Mr Pooke stated that initially there had been a parenting plan but it lapsed. In relation to [Child 1], the decision for her to remain with him was because [Child 1] did not want to return to her mother’s care. He has never prevented [Child 1] from seeing her mother or communicating with her but [Child 1] is the one who has made this choice. Mr Pooke stated that he had not participated in mediation because [Child 1] had made it clear she didn’t want to see her mother and so there was no point to mediation. He has enrolled her at [a school]. [Child 1] visited Mrs Hendry in August 2018 when they were in [Australian city 1].

11.Section 50 of the Act requires a new determination of a percentage of care to be made where an existing determination has been revoked and the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period.

Should the existing care determinations in relation to [Child 1] be revoked?

12.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 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 or children.

13.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 4 June 2014 and that Mrs Hendry had a percentage of care for [Child 1] of 77% and that Mr Pooke had a percentage of care of 23% for [Child 1]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

14.The tribunal is required to consider what the actual care of [Child 1] was or is likely to be during the care period. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal but the tribunal has determined that it is appropriate to consider the policy in the circumstances of this matter. The tribunal considers that, in the circumstances of this case, an appropriate care period is the period from 20 April 2018, being the date on which Mr Pooke notified of the change to care arrangements had occurred.

1. The tribunal has determined that the care for Mr Pooke and Mrs Hendry accords with the oral evidence. Mrs Hendry’s evidence to the Department, as recorded in the documents before the tribunal, indicate that there was no dispute that [Child 1] was with Mr Pooke 100% from 29 April 2018. While Mrs Hendry does not agree with the change and states that the change occurred without her agreement, the tribunal cannot take this into account. While an interim determination can be decided in circumstances where care is withheld contrary to a parenting plan or court order, in the absence of a parenting plan or court order the tribunal must determine what the actual care is in the circumstances.

2. Accordingly, the date of effect of the tribunal’s decision in respect of the change in care will be 29 April 2018, which is the date the care changed according to Mr Pooke’s notification to the Department that a change in the care had occurred on 18 May 2018. The tribunal has determined that the care should be changed from 29 April 2018 to show that [Child 1] was in Mrs Hendry’s care for 0% of the time and in Mr Pooke’s care 100% of the time, in accordance with the decision of the Department.

DECISION

The decision under review is affirmed.