Houston and Child Support Registrar (Child support)

[2019] AATA 2537

Houston and Child Support Registrar (Child support) [2019] AATA 2537 (26 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016390

APPLICANT:  Mr Houston

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  26 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court order not complied with - no action taken to enforce order - interim period not applied - 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

1. Mr Houston and [Ms A] are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. Prior to 29 January 2019 child support was calculated on the basis that Mr Houston had 78% care of [Child 1] and [Ms A] had 22 percent, although Mr Houston has explained that he in fact had sole care of [Child 1] prior to that time.

3. On 31 January 2019, [Ms A] notified the Child Support Registrar (the Registrar) that care was no longer taking place in accordance with the existing care percentage determination, and informed the Registrar that she had care of [Child 1] 310 night per year.

4. The Registrar’s staff were unable to make contact with Mr Houston, and on 6 February 2019 accepted the information provided by [Ms A].  The Registrar made a new care determination reflecting [Ms A] having 85% care of [Child 1].

5. Mr Houston objected to that decision on 12 February 2019.  Mr Houston raised the issue of existing court orders and requested that care reflect the terms of those orders.  When contacted to respond, [Ms A] stated that the orders had not been followed for many years, and further stated that since 29 January 2019 [Child 1] had only had telephone contact with Mr Houston. 

6. On 12 April 2019 the objections officer decided that the correct care determination to make was that [Ms A] had 100% care of [Child 1] from 29 January 2019.

7. Mr Houston applied to the Tribunal for review on 23 April 2019.  [Ms A] was invited to be joined as a party to the review, but the Tribunal received no request from her.  The review proceeded only with Mr Houston participating.

CONSIDERATION

1. Mr Houston raised a number of matters relating to the care of [Child 1], including being made subject to an AVO that he told me had subsequently been set aside by a Magistrate, and raising concerns about the quality of care that [Child 1] was now receiving, including his attendance at school.  I explained carefully to Mr Houston the limited role of the child support scheme, and the Tribunal, in reviewing decision made under the child support scheme in relation to disputes about the care arrangements for children.

2. During the hearing, Mr Houston questioned why he had a child support liability, although the assessment notices provided to the Tribunal showed that Mr Houston had a liability of nil.  On further examination after the hearing however, the assessment notices in the Tribunal papers are not those reflecting the objection decision, but are instead the notices reflecting the first decision.  The Tribunal has not been provided with the assessment notices reflecting the objection decision, but is aware that if the outcome of the decision is that Mr Houston has a 0% care determination, he would ordinarily be assessed at the minimum annual rate.  This is consistent with the concerns raised by Mr Houston at the conclusion of the hearing.

3. I have jurisdiction only to review the objections officer’s decision in relation to the care determination.

4. In this regard, Mr Houston gave me the following key determinative facts about the situation, which I accept:

   ·There is a Court Order in existence that was made about 5 years ago that provided for [Ms A] to have sole custody but for Mr Houston to have [Child 1] in his care every second weekend;

   ·[Child 1] was however in Mr Houston’s sole care without any regular care by [Ms A] for about 2 years prior to 29 January 2019. There was no amendment to the Court order nor the creation of another formal care arrangement reflecting those arrangements.  The Court order was simply not followed, and the Registrar was not informed of the changes.

   ·After 29 January 2019, Mr Houston has not had any care of [Child 1].

   ·Mr Houston has not consulted a solicitor or taken legal action to resolve his dissatisfaction with [Child 1] not being in his care since 29 January 2019.

5. The statutory provisions relevant to the revocation and making of care determinations have recently been the subject of reform.  I proceed on the basis of the amended legislation noting the change of care day.

6. Under the scheme for determining percentages of care for use in the administrative assessment of child support, existing care determinations continue in effect until such time as they are revoked. The circumstances in which an existing care determination may be revoked are restricted to those set out in Division 4, Subdivision C of the Child Support (Assessment) Act 1989 (the Act).

7. Upon the revocation of a care determination, a new care determination must be made, usually reflecting the actual pattern of care over a care period.

8. Special provision is made for the making of new care determinations in circumstances where a care arrangement (such as a Court order) applies but the care arrangement is not complied with (for example by contravention of a Court order).  In light of Mr Houston’s evidence about the previous Court order, I have considered very carefully whether those special provisions apply.  If the criteria for applying those provisions are satisfied, an interim care determination can be made reflecting the terms of the care arrangement, even if the care is not taking place in accordance with the care arrangement.

9. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements):

   ·       the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

   ·       the cost percentage would change if a new determination were to be made.

10. As Mr Houston has confirmed that he has not had any care of [Child 1] since 29 January 2019, I find that care that is actually taking place does not correspond with Mr Houston’s existing percentage of care, and the cost percentage would be affected.  I therefore revoke the existing care determination.

11. For completeness, I do not consider that section 54G of the Act operates in the circumstances of this matter as I am not satisfied that [Child 1] has been made available to Mr Houston.  Little turns on this distinction as the existing care determination must be revoked in any event on the evidence before me.

12. Section 51 of the Assessment Act applies where I am required to determine a new percentage of care, but there is a care arrangement in place for a child and the amount of actual care that a person has does not comply with the extent of care they should have under the care arrangement, and the person is taking reasonable action to ensure that the care arrangement is complied with. It provides that if these criteria are met, I must then determine two percentages of care, being the percentage that the person should have under the care arrangement, and the other reflecting the care that is actually taking place. Section 54C then regulates when each determination is to apply to the assessment.  These provisions create what is referred to as an ‘interim care period’.

13. On the evidence before me, I do not consider that it can be said that a ‘care arrangement applies’ in relation to [Child 1] in circumstances where a Court order exists but has not been followed for many years without any action by either parent for it to be enforced or amended.

14. Furthermore, while I understand Mr Houston’s position that he does not wish to take the matter to the Family Court or spend money on lawyers, I do not consider that it can be said that Mr Houston has taken reasonable action to have a care arrangement complied with in circumstances where he has essentially taken no action at all.  I have considered Mr Houston’s evidence about the Magistrates Court proceedings that he says resulted in an AVO being set aside, but I do not consider these actions are directed at having the care arrangement complied with.  I do not consider that Mr Houston’s action in attempting to have telephone discussion with [Ms A] about the situation is reasonable action in having a Court order enforced.

15. As I find that there is neither a care arrangement that applies, nor any reasonable action being taken to enforce the care arrangement even if it did apply, it follows that an interim care determination cannot be made.

16. The new care determination must therefore be made by reference to section 50 of the Act.  This requires focus on the actual pattern of care a parent has had during such period as is appropriate to make the determination. 

17. In light of Mr Houston’s evidence that he has not had any care of [Child 1] since 29 January 2019, the only appropriate determination to make is to reflect that, and determine that [Ms A] has 100% care and Mr Houston has 0% care.

18. This is the determination that was put in place by the objections officer.  I will therefore affirm the decision under review.

DECISION

The decision under review is affirmed.