Horvath and Horvath (Child support)

[2020] AATA 2676

Horvath and Horvath (Child support) [2020] AATA 2676 (2 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018821

APPLICANT:  Ms Horvath

OTHER PARTIES:  Child Support Registrar

Mr Horvath

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  2 June 2020

DECISION:

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

• from 1 September 2019 until 31 January 2020 Ms Horvath’s percentage of care for [the child] is 35 per cent and Mr Horvath’s percentage of care for [the child] is 65 per cent; and

• from 1 February 2020 Ms Horvath’s percentage of care for [the child] is 0 per cent and Mr Horvath’s percentage of care for [the child] is 100 per cent.

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 - reasonable action taken by both parents - 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 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. This review is about a change to the percentage of care determinations for Ms Horvath and Mr Horvath in respect of the child [the child] (born February 2007).  There has been a child support assessment in place since 25 March 2010.

2. From 5 February 2018 the child support assessment reflected Ms Horvath as having 35 per cent care and Mr Horvath as having 65 per cent care of [the child].

3. On 30 September 2019 Mr Horvath advised the Child Support Agency of a change of care stating that he had 100 per cent care of [the child] from 1 September 2019.

4. On 22 October 2019 the Child Support Agency made the decision that Ms Horvath provides 0 per cent care of [the child] and Mr Horvath provides 100 per cent care from 1 September 2019.

5. On 22 October 2019 Ms Horvath objected to this decision and on 17 March 2020 the Child Support Agency disallowed the objection (the objection decision).

6. On 9 April 2020 Ms Horvath applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 2 June 2020.  Ms Horvath and Mr Horvath gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (114 pages).  Additional documents were received from Ms Horvath prior to the hearing (A1-A3) and copies were distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act)[1].

   [1] As it applied after 23 May 2018 and 1 July 2018

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act says that a care determination may be made (known as an interim determination) if a care arrangement, such as a court order or parenting plan, applies but is not complied with and the parent with reduced care is taking “reasonable action” to ensure the care arrangement is complied with.

6. The issues which arise in this case are:

   ·     whether or not there has been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new percentage of care determinations take effect; and

   ·     whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Ms Horvath told the Tribunal that care of [the child] was subject to court orders dated 31 January 2017 which stipulated she should have 35 per cent care and Mr Horvath 65 per cent care.  She said the court orders were being followed up until care changed.

2. Ms Horvath explained that following a minor disagreement with [the child] on 1 September 2019, [the child] left her care and had been residing with Mr Horvath ever since.

3. Ms Horvath said she initially thought the matter would be resolved quickly and [the child] would return to her care but this had not transpired. Ms Horvath said she believed Mr Horvath was using the incident as an opportunity to withhold care of [the child]. She added that [the child] was now pushing her away and she did not feel that Mr Horvath had done everything possible to facilitate care as set out under the court orders.

4. Ms Horvath told the Tribunal that after her disagreement with [the child] she notified Mr Horvath and advised him that [the child] had decided to leave. She said Mr Horvath had already contacted the police who undertook a welfare check on [the child]. She said no further action was taken by the police following the welfare check.

5. Ms Horvath said the day after the disagreement she contacted [the child] in an attempt to resolve the situation but without success. [The child] then went on an overseas holiday with his father for two weeks. Ms Horvath told the Tribunal she sought legal advice from [a] Community Legal Centre and then arranged a mediation session through the Family Relationship Centre.  This took place [in] October 2019.  She said a mediation session between her and Mr Horvath also took place [in] February 2020.

6. The Tribunal notes in evidence from the Child Support Agency a letter from the Family Relationship Centre in [City] dated [Date 1] October 2019. The letter states that due to mediator availability her appointment had been rescheduled to [Date 2] October 2019. The Tribunal also notes in evidence provided by Ms Horvath a certificate by family dispute resolution practitioner[2] dated [May] 2020 which confirms that Ms Horvath and Mr Horvath attended family dispute resolution [in] February 2020.

   [2] Certificate for family dispute resolution as issued under section 601 of the Family Law Act 1975

7. Ms Horvath told the Tribunal that following mediation she had continued to seek legal advice from the [Community Legal Centre] and had now commenced contravention proceedings in the Family Court.  Ms Horvath said she did not want to go through the courts again but felt she had no choice because her attempts to resolve the matter with Mr Horvath were unsuccessful. Ms Horvath said she felt Mr Horvath was stonewalling her and in the meantime [the child] was stuck in the middle of a tug-of-war.

8. Mr Horvath told the Tribunal the disagreement between [the child] and Ms Horvath was not a simple matter but one that had been building for a number of years. He said there were significant concerns around Ms Horvath’s capacity to care for [the child]. He added that [the child] had since been receiving counselling as a result of the incident which was more than just a minor disagreement.

9. Mr Horvath said that [the child] had made the decision to leave his mother’s home at [time] on 1 September 2019 and did not wish to return. Mr Horvath said he was not withholding care but rather supporting [the child]’s decision not to live with Ms Horvath.

10. Mr Horvath confirmed there were court orders in place relating to the care of [the child] but said [the child] wanted to choose where he lived and at this stage he had no desire to stay with his mother.  Mr Horvath said he was supporting [the child]’s decision and had tried to communicate with Ms Horvath in order to explain this to her.  He agreed the parents had attempted mediation but this was not constructive and the advice was the matter would again need to be resolved through the courts.

Issue 1 – Change in the pattern of care

1. It is not in dispute and the Tribunal finds that care of [the child] changed on 1 September 2019 with Mr Horvath providing 100 per cent care of [the child] from this date.

2. The existing percentages of care reflected in the assessment for [the child] are 35 per cent care to Ms Horvath and 65 per cent care to Mr Horvath in accordance with court orders. Neither parent disagrees that the court orders were being followed prior to the change in care.

3. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.  As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked.

4. Mr Horvath notified the Child Support Agency of the changing care on 30 September 2019 which is less than 28 days after the change occurred on 1 September 2019.  Therefore, according to paragraph 54F(3)(a) of the Act, the existing care determinations are revoked on the day before the change of care day and the new determinations are made from 1 September 2019.

Issue 2 – Interim care determination

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their child.

2. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies.  For section 51 of the Act to apply, a care arrangement, such as a court order or parenting plan, must be in place.  The parent who has reduced care because this care arrangement is not being complied with must also be taking “reasonable action” to ensure that the care arrangement is complied with (paragraph 51(1)(d) of the Act).

3. The Tribunal finds that court orders relating to the care of [the child] were in place and being followed by the parents.

4. The term reasonable action is not defined in the Act. The Explanatory Memorandum to the bill for the Amending Act that introduced section 51, referring to reasonable action, states: “For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”

5. Ms Horvath sought ongoing legal advice in relation to the care of [the child] and arranged mediation through the Family Relationship Centre. The evidence provided supports that mediation took place [in] October 2019 and [in] February 2020. Both parents have confirmed they continued to communicate about the care of [the child] after care changed on 1 September 2019. Ms Horvath has told the Tribunal that she has also initiated contravention proceedings in the Family Court.

6. The Tribunal is satisfied that Ms Horvath has continued to take reasonable action to recover her care under the court orders dated 31 January 2017.

7. Ms Horvath has told the Tribunal Mr Horvath is withholding care of [the child].  Mr Horvath has said that [the child] does not currently wish to live with Ms Horvath.  The child support legislation does not, however, make allowances for the cause or motivation of non-compliance with court orders.  As a care arrangement is in place and as Ms Horvath, the parent with reduced care, was taking reasonable action, subsection 51(2) of the Act requires that two percentages of care be determined.  One being the care that should have occurred under the care arrangement and the other being the actual care taking place.

8. The Tribunal finds that a care determination can be made for an interim period.  The Tribunal concludes the percentages of care should be:

   ·     care according to the court orders being 35 per cent care to Ms Horvath and 65 per cent care to Mr Horvath (pursuant to subsection 51(3) of the Act); and

   ·     care actually occurring being 100 per cent care to Mr Horvath and 0 per cent care to Ms Horvath (pursuant to subsection 51(4) of the Act).

9. Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, a single percentage of care, rather than two percentages of care, may be determined based upon the actual care taking place. Section 2.2.4 of the Child Support Guide issued by the Child Support Agency states, in relation to special circumstances: “This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care.”

10. Ms Horvath has told the Tribunal that police conducted a welfare check on [the child] on the night that care changed and no further action was taken. Mr Horvath did not dispute this. The Tribunal is satisfied that, in relation to this case, there are no special circumstances such that an interim care determination should not be made.

Issue 3 – Term of the interim period

1. The meaning of interim period is given in section 53A of the Act. The start day of the interim period is usually the change of care day and the end day of the interim period is usually governed by the table in subsection 53A(1) of the Act.

2. The length of the interim care period is determined by a number of factors, such as whether or not the previous care arrangement was a court order, written agreement or parenting plan and the time elapsed between the previous care arrangement being made and the reported care change.  It also depends upon whether or not the person with increased care took “reasonable action” to participate in family dispute resolution.

3. In relation to court-ordered care the maximum interim period is the later of 52 weeks from the day the care arrangement provided by the court orders takes effect or 26 weeks from the change of care day. In this case the maximum interim period is 26 weeks. 

4. In circumstances where the parent with increased care commenced taking reasonable action to participate in family dispute resolution a shorter interim period may apply (table item 2, paragraph (b) of subsection 53A(1) of the Act).  As Mr Horvath participated in family dispute resolution the Tribunal is satisfied a shorter interim period should apply.  The end date of the shorter interim period depends upon when the parent with increased care commenced taking reasonable action to participate in family dispute resolution.  The Tribunal is satisfied that Mr Horvath commenced taking reasonable action on [Date 2] October 2019 and continued to do so from that date.  Pursuant to paragraph 53A(1)(b) of the Act, the interim care period will therefore end on 31 January 2020 (as the conditions in table item 2, paragraph (b)(i) and paragraph (b)(ii) are met).

5. As the Tribunal has revoked the existing care determinations for [the child], new care determinations must be made.  Section 54C establishes the application days if two percentages of care apply under section 51 of the Act:

   ·     the first care percentage is that from 1 September 2019 until 31 January 2020 Ms Horvath provides 35 per cent care and Mr Horvath provides 65 per cent care of [the child] (each day in a child support period that occurs in the interim period); and

   ·     the second care percentage is that from 1 February 2020 Ms Horvath provides 0 per cent care and Mr Horvath provides 100 per cent care of [the child] (each day that does not occur in the interim period until such time as this determination is revoked).

DECISION

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

• from 1 September 2019 until 31 January 2020 Ms Horvath’s percentage of care for [the child] is 35 per cent and Mr Horvath’s percentage of care for [the child] is 65 per cent; and

• from 1 February 2020 Ms Horvath’s percentage of care for [the child] is 0 per cent and Mr Horvath’s percentage of care for [the child] is 100 per cent.