Hershey and Hershey (Child support)

[2021] AATA 3609

Hershey and Hershey (Child support) [2021] AATA 3609 (18 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021767

APPLICANT:  Mr Hershey

OTHER PARTIES:  Child Support Registrar

Ms Hershey

TRIBUNAL:Member S Letch

Presiding Member J Prentice

DECISION DATE:  18 August 2021

DECISION:

The decision under review is affirmed.

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 Hershey and Ms Hershey are the parents of [Child 1], [Child 2] and [Child 3].

2. This application is with respect to the care for their youngest daughter, [Child 3].

3. Care for [Child 3] had been recorded by the Child Support Agency (CSA) as 100% for Ms Hershey from 10 February 2020.

4. Mr Hershey objected to this decision as he claims Ms Hershey is not making [Child 3] available to him – in contravention of a court order. However, Mr Hershey confirmed that he had not taken any legal action to enforce the court order.

5. [Child 3] is now 15 years old and Ms Hershey advises that she has chosen not to see her father or go to his house based on the constant verbal abuse that she sustains while at his house and in particular a disagreement with her father in February 2020.

6. The pre-existing level of care recorded for [Child 3] was 65% to Ms Hershey and 35% to Mr Hershey from 22 August 2019.  On 22 January 2021, Ms Hershey advised the CSA that [Child 3] had been in her 100% care since 10 February 2020.

7. On 18 March 2021 the CSA made the decision to reflect the care of [Child 3] as being in Ms Hershey’s 100% care from 10 February 2020, effective from the date of notification, 22 January 2021.

8. On 31 March 2021, Mr Hershey lodged an objection to this decision.

9. On 3 June 2021, the CSA disallowed Mr Hershey’s objection.

10. On 17 June 2021, Mr Hershey sought further review by the Administrative Appeals Tribunal (the Tribunal). Mr Hershey and Ms Hershey participated in the Tribunal’s hearing by conference telephone. In making its decision, the Tribunal took into account the CSA materials.

11. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). Put simply, a new care decision can be made if there has been a relevant change in the parents’ pattern of care: see Division 4 of Part 5 of the Act. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide (the Guide), which includes the following:

    What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. For example, when considering a change that would result in a parent's care falling below 14%, after a pattern of at least 14% had been previously established, the Registrar will consider that the pattern of care has changed when:

    ·the parent misses 3 care events in a row,

    ·the parent misses 5 events of care out of 8, or

    ·the parent misses 20% of the care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

    …

    [1] Re Drake and Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

12. When determining the date of effect of a care change, the Registrar must first determine if a parent or non-parent carer’s care has increased or decreased (paragraphs 54F(3)(b) and 54H(3)(b)).  The Registrar will determine if a parent or non-parent carer’s care has increased or decreased by comparing it to the care used in the child support assessment, for that parent or non-parent carer, on the day the care changed.  The date of the care change will be the point of comparison even if a later care change is used in the assessment prior to the Registrar being notified of the care change currently being applied.

13. In the circumstances of the current case, it is not in dispute that [Child 3] was in Ms Hershey’s actual 100% care from 10 February 2020. In some limited circumstances, a parent with decreased care can be given the benefit of what is called an “interim period”; the Guide, at 2.2.4, accurately summarises the relevant law:

    If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act. The first percentage is the amount of care the person should have of the child under the care arrangement. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors. The second percentage of care will apply after the interim period has ended.

14. Whether a person is taking reasonable action for the purposes of section 53A of the Act is not defined; however, it will generally involve the taking of formal legal steps. Here, Mr Hershey’s own evidence is that he had taken what appeared to be some informal legal advice at some stage in 2020 and was advised that given [Child 3]’s age, there was no purpose to be served by taking any action as any such steps were unlikely to change the situation. There is no evidence Mr Hershey was taking any other steps which would constitute “reasonable action” for the purposes of being able to access an interim period.

15. As a result, [Child 3]’s care is to be recorded in accordance with the actual care being provided by the parents. As this is the same conclusion as the objections officer, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.