Irestone and Irestone (Child support)

[2024] AATA 1882

Irestone and Irestone (Child support) [2024] AATA 1882 (17 May 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026941

APPLICANT:  Mr Irestone

OTHER PARTIES:  Child Support Registrar

Mrs Irestone

TRIBUNAL:Member J Thomson

DECISION DATE:  17 May 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages in relation to [Child 1] of 100% to Mrs Irestone and 0% to Mr Irestone will apply from 1 June 2021, notified on 16 May 2023, effective in the assessment for Mrs Irestone from 16 May 2023 and for Mr Irestone from 1 June 2021.

CATCHWORDS
CHILD SUPPORT – percentage of care – existing percentage of care determinations revoked – pre-existing court-ordered care pattern not followed – unreliable records of care – new determinations made – 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 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 Irestone and Mrs Irestone are the parents of [Child 1], born 2006.

2. Mr Irestone seeks review of an objection decision made by Services Australia (Child Support) made on 22 September 2023. This decision disallowed his objection to an earlier decision of Child Support dated 16 June 2023, and decided to reflect the care of [Child 1] as 0% to Mr Irestone and 100% to Mrs Irestone from 15 April 2021, notified on 16 May 2023.

3. The Tribunal heard the matter on 28 March 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 500), admitted into evidence and marked Exhibit 1. Mr Irestone provided documentation (folios A1 to A134), admitted into evidence and marked Exhibit A. However, at the hearing, he indicated he was only relying on pages A1 to A 51 for the purposes of his submissions to the Tribunal at the hearing.  

4. Both parents had copies of Exhibit 1 with them at the hearing. Mr Irestone had copies of his Exhibit A documents with him at the hearing and Mrs Irestone had copies of pages A1 to A51 of those Exhibit A documents with her but was content for the hearing to proceed notwithstanding she did not have copies of pages A52 to A134.

5. At the conclusion of the hearing, the Tribunal directed Mrs Irestone to provide copies of her care diary from 15 June 2023 and a statement from her son, [Mr A], regarding the care circumstances of [Child 1] during the period 21 April 2021 to May 2023. In compliance with the Tribunal’s direction, she has provided a statement by her son, [Mr A], a copy of which will be sent to Mr Irestone with the Tribunal’s decision in the matter.

ISSUES

1. The issues which arise in this case are:

   ·     Whether there has been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and a new care percentage determination made. And if so,

   ·     Whether an interim care determination should be applied. And if so,

   ·     From what date should the new percentage of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1 and A before the Tribunal at the hearing.

2. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. 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’.

3. To consider the existing care percentages, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate. However, a shorter period may be considered, depending on the circumstances of the particular case.

4. The care percentages being assessed by Child Support prior to Mrs Irestone notifying Child Support of the change in care for [Child 1] on 16 May 2023 were 62% to Mrs Irestone and 38% to Mr Irestone from 4 June 2013.

5. There was evidence before the Tribunal of orders made by the Federal Circuit Court of Australia [in] June 2013 (the Court Orders) providing, relevantly, for Mr Irestone to have overnight care of [Child 1] on each alternate weekend from Thursday until Monday morning and each Thursday night until  commencement of school the following Friday in term time and half the school holidays – effectively six weeks of school holiday care equating to 42 nights of care, 40 nights of care each week in school term time and 20 weeks of care from Thursday night to commencement of school on Monday (four nights of care per fortnight) in term time equating to 80 nights of care, a total of approximately 162 nights of care per annum or 44% care (162 / 365 x 100 = 44.38%, rounded down pursuant to section 54D of the Act to 44% care). Mrs Irestone’s corresponding care percentage pursuant to the Court Orders would therefore be 56%.

6. A copy of the Court Orders was provided by Mr Irestone at pages A122 to A125 of his Exhibit A papers. At the hearing, both parents referred to these Court Orders in their evidence: in Mr Irestone’s case, he submitted he had been generally following the FCC court-ordered care pattern, and in Mrs Irestone’s case, she contended that the parents had not been following the court-ordered care pattern since 15 April 2021, the change in care date nominated by Mrs Irestone in her notification on 16 May 2023.  

7. In his evidence to the Tribunal at the hearing, Mr Irestone acknowledged and agreed that he had not always complied with the FCC court-ordered pattern of care nor had he maintained any reliable written record of his care of [Child 1] other than in the form of text messages he provided at pages A7 to A49 and A52 to A120 of Exhibit A, which the Tribunal found both confusing and unreliable.

8. However, he was able to identify, by reference to the text message chain he provide as part of his Exhibit A documents, particular dates from April 2021, when he said he had care of [Child 1] from 22 to 27 April 2021 (see text messages at page A7 of Exhibit 1), May 2021 when he said he did have care of the children, [Child 1] and [Child 2] from 13 to 16 May 2021 (see text messages at pages 8 and 9 of Exhibit A) and again on 26 May 2021 (see text messages at page 12 of Exhibit 1).

9. He was also able to identify the date he contended his regular court-ordered care pattern ceased in June 2021 by reference to a text message exchange with Mrs Irestone at page A24 of Exhibit A dated 18 June 2021 which contains a reference to Mrs Irestone acknowledging he was to have care of the children on the weekend of 7 July 2021. He accepted in his evidence at the hearing that his court-ordered care pattern of care for [Child 1] ceased in June 2021, and that from that time onward his care was sporadic; [Child 1] by then an adolescent teenager, was moving from the respective parents houses at will and often staying overnight at friends’ houses on weekends.

10. Mrs Irestone’s evidence regarding the care actually taking place in the period from her nominated change in care date, 21 April 2021 until 9 April 2023 when she contended she collected [Child 1] from Mr Irestone’s house and she remained in Mrs Irestone’s care from that date, was equally unreliable. She also acknowledged and agreed she had not maintained any accurate records, written or otherwise, of [Child 1]’s care arrangements in that period.

11. The Tribunal finds the evidence, on balance, regarding the care arrangements for [Child 1] from 21 April 2021 to 9 April 2023 is that there was a change in Mr Irestone’s care pattern from the court-ordered care of five nights per fortnight in term time and half the school holiday to sporadic care from 1 June 2021 and not the change in care date of 15 April 2021 nominated by Mrs Irestone in her notification to Child Support on 16 May 2023.

12. For the period from 16 May 2023, when Mrs Irestone notified Child Support of the change in care for [Child 1], Mr Irestone gave evidence that he commenced recording his care of [Child 1] from 18 May 2023.

13. He gave evidence that he did have care of [Child 1] in the early part of April 2023, from the commencement of the Easter school holidays on 6 April 2023, reminiscent of the court-ordered care arrangement which both parents acknowledged had been abandoned from at least June 2021.

14. Although he contended he had care of [Child 1] until 15 April 2023, he acknowledged he had no independent record of this to support his testimony, and, as appears from Mrs Irestone’s evidence below, she collected [Child 1] from his house on 9 April 2023. He also contended he had care of [Child 1] again for various periods in late April and in May until 21 May 2023, but acknowledged and agreed he had no documentary evidence to support his claim for care on those occasions.

15. His best evidence at hearing was his reliance on his written submission to Centrelink dated 15 August 2023, a copy of which he provided at page 118 of Exhibit 1 in which he records his care of [Child 1] from 22 May 2023 to 10 August 2023 when he said he stopped having care of both [Child 1] and her brother [Child 2], as he considered it in the best interests of the children that he step back and await the completion of Child Support’s investigative process pursuant to Mrs Irestone’s change in care notification on 16 May 2023.

16. Consistent with the contents of this submission, he gave evidence at the hearing that he had care of [Child 1] during the period 22 May 2023 to 30 July 2023 on the following nights:

    ·22 to 23 May 2023: 1 night;

    ·28 to 30 May 2023: 3 nights;

    ·6 to 7 June 2023: 2 nights;

    ·11 to 13 June 2023: 3 nights;

    ·17 to 23 June 2023 (first week of school holidays): 7 nights;

    ·14 to 16 July 2023: 3 nights;

    ·20 July 2023: 1 night; and

    ·27 to 30 July 2023: 4 nights.

    ·Total nights of care 22 May to 30 July 2023 (70 Nights): 24 nights of care.

17. Mrs Irestone acknowledged and agreed in her responsive evidence, that she had not maintained a reliable record of the care arrangement from the time she collected [Child 1] from Mr Irestone’s house of 9 April 2023 and, as noted earlier in these Reasons, she had not maintained any reliable care records throughout the 2021, 2022 and early 2023 years. She said in evidence that she commenced recording [Child 1]’s care arrangements from 15 June 2023.

18. At the direction of the Tribunal, she agreed to provide a copy of her care records from 15 June 2023, but failed to do so.

19. In summary, the issue before the Tribunal involves considering whether there was a care change from 21 April 2021 notified by Mrs Irestone on 16 May 2023. The relevant care period would be over a period of 12 months to 20 April 2022. For the period from 21 April 2022 to April 2023, although the evidence at the hearing suggests Mr Irestone had a more consistent care pattern form April 2023 as set out in the Reasons above, the Tribunal can only consider care over a 12-month period from the nominated change in care date, unless special circumstances dictate the consideration of a longer period.

20. In this case, the Tribunal has found the change in care date was 1 June 2021, and that the relevant care period would be until 31 May 2022. The evidence acknowledged by the parents in their evidence at the hearing analysed above is that Mr Irestone had no identifiable pattern of care to which a care percentage could be ascribed under section 50 of the Act, and it is not until the commencement of the Easter school holidays on 6 April 2023 that he commenced to have any regular pattern of care of [Child 1].

21. It is open to either parent to notify Child Support of a change in care for [Child 1] for the period 1 June 2022 and seek a determination of the appropriate care percentages based on the care of each parent of the child, [Child 1], from that date onward. This notification and the subsequent Child Support care determinations would be subject to separate review rights and is not currently before the Tribunal.

22. For present purposes, the Tribunal will confine its attention to the care period appropriate for this case of 1 June 2021 to 31 May 2022.

23. Both parents acknowledged and agreed that the pre-existing court-ordered care pattern was not being followed and that Mr Irestone’s care was no more than sporadic and that he had no identifiable care pattern in this period. Neither parent had maintained reliable care records for the period and a review of the independent witnesses’ statements provided by Mrs Irestone from [Ms B], [Mr C] and [Mr D], [Ms E], [Mr F], her son-in-law and daughter, [Mr G] and [Ms H], [Ms I] and her boarder, [Mr J] at pages 292 to 297 of Exhibit 1 do not assist the Tribunal in identifying the actual care taking place for [Child 1] in the care period under consideration.

24. The statement by Mrs Irestone’s son, [Mr A], provided by Mrs Irestone post hearing, attests to his actually living in Mrs Irestone’s house from 2019 to April 2022 when he moved out for a short period, returning in November 2022, and generally corroborates Mrs Irestone’s evidence as to [Child 1]’s care arrangements in 2021 and 2022. The statement Mrs Irestone provided from [Ms K], [Child 1]’s treating psychologist, at page 115 of Exhibit 1 attests to her treatment of [Child 1] over the period November 2020 to March 2022 and reports a strained relationship between [Child 1] an Mr Irestone and [Child 1] intimating her preference not to spend time with her father.

25. The Tribunal therefore finds that the change in care date in this matter is 1 June 2021 when Mr Irestone ceased having his regular court-ordered care of [Child 1] and that in the 12-month period following that change in care, he had no care of [Child 1].

26. The Tribunal therefore determined care percentages pursuant to section 49 of the Act of 0% to Mr Irestone and 100% to Mrs Irestone from 1 June 2021, notified on 16 May 2023.

27. The Tribunal is not satisfied Mrs Irestone notified Child Support of the change in care on 1 June 2021 within a reasonable time as contemplated in paragraph 54G(1)(d) of the Act and that section 54G of the Act has no application in this case.

28. As the cost percentages of the parents will change as a consequence of the Tribunal’s determination of the new care percentage of 100% to Mrs Irestone and 0% to Mr Irestone as set out above, the Tribunal will revoke the pre-existing care percentages of 62% to Mrs Irestone and 38% to Mr Irestone pursuant to section 54F of the Act.

29. In response to questioning by the Tribunal at the hearing, Mr Irestone said he did not take any action or steps to have the court-ordered care arrangements complied with as contemplated in section 51 of the Act.  However, it is not open to the Tribunal to consider the application of an interim period because such a period cannot apply under paragraph 53(1)(c) of the Act where existing care percentages are revoked under sections 54F or 54H of the Act. This was reflected in the Federal Court decision of Child Support Registrar v CMU23 [2024] FCA 109 (fedcourt.gov.au).

30. The existing care percentages of 62% to Mrs Irestone will be revoked, as the parent with increased care, from 15 May 2023, that being the day before she notified Child Support of the change in care on 16 May 2023, more than 28 days after the change date, (subparagraph 54(3)(b)(i) of the Act) and Mr Irestone’s existing care percentage of 38% will be revoked, as the parent with reduced care, from 31 May 2021, that being the day before the change in care day found by the Tribunal as 1 June 2021(subparagraph 54(3)(b)(ii) of the Act). Pursuant to section 54B, the new care percentage of 100% to Mrs Irestone will apply from 16 May 2023 and 0% to Mr Irestone from 1 June 2021.

31. As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside that decision and, in substitution decides that care percentages of 100% to Mrs Irestone and 0% to Mr Irestone will apply from 1 June 2021, notified on 16 May 2023, effective in the assessment for Mrs Irestone from 16 May 2023 and for Mr Irestone from 1 June 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that care percentages in relation to [Child 1] of 100% to Mrs Irestone and 0% to Mr Irestone will apply from 1 June 2021, notified on 16 May 2023, effective in the assessment for Mrs Irestone from 16 May 2023 and for Mr Irestone from 1 June 2021.