Isley and Dines (Child support)

[2021] AATA 2898

Isley and Dines (Child support) [2021] AATA 2898 (5 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021111

APPLICANT:  Mr Isley

OTHER PARTIES:  Child Support Registrar

Ms Dines

TRIBUNAL:Member S Letch

DECISION DATE:  5 July 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 – alignment of care with family tax benefit care decision – 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

1. Mr Isley and Ms Dines are the parents of [Child 1]. This matter concerns how the Child Support Agency (CSA) has recorded [Child 1]’s care.

2. Care for [Child 1] had been recorded as 14% to Mr Isley and 86% to Ms Dines when, on 28 October 2020, Ms Dines advised Centrelink that, from 12 January 2020, she had the 100% care of [Child 1]. Centrelink informed the CSA on 4 November 2020 and, on 14 November 2020, the CSA decided to record Ms Dines as having 100% care from 12 January 2020 (taking effect from 28 October 2020 for Ms Dines and 12 January 2020 for Mr Isley).

3. It is convenient by way of background to set out some extracts from the objection officer’s decision dated 11 March 2021, in which Mr Isley’s objection was disallowed:

   WE CONSIDERED THE FOLLOWING EVIDENCE IN THE DECISION

   The pre-existing care for [Child 1] was recorded as Ms Dines providing 86% care and Mr Isley providing 14% care, from 12 April 2013.

   On 4 November 2020, we received information from the Family Assistance Office (FAO) that the care levels for [Child 1] had changed.

   FAO notified us that Ms Dines had advised them on 28 October 2020 that from 12 January 2020, she would be providing 100% care of [Child 1].

   On 14 November 2020, as FAO were the original decision maker, we made the decision to apply the FAO care to the child support assessment and record that Ms Dines has been providing 100% care and Mr Isley has been providing 0% care of [Child 1] from 12 January 2020. Letters were issued to both parents advising them of the decision.

   On 8 December 2020, Mr Isley lodged his objection to this decision.

   On 22 December 2020, we received Ms Dines’ response to Mr Isley’s objection. Ms Dines advised that the children we going to Mr Isley’s prior to 12 January 2020, but since 12 January 2020, the children have not spoken to or stayed with Mr Isley.

   Evidence received from Ms Dines;

   -Third party statement dated 2 January 2021 from [Ms A], stating that [Child 1] and [Child 1] have been living full time (100%) with Ms Dines since early January 2020.

   -A parenting plan dated 23 September 2011, which outlines Mr Isley’s care of [Child 1] as Wednesday afternoon each fortnight from 2.00pm and 5.30pm and from 9.00am until 5.00pm on a Saturday or Sunday on the other fortnight.

   REASONS FOR THE DECISION

   In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support

   (Assessment) Act 1989).

   The pre-existing care for [Child 1] was recorded as Ms Dines providing 86% care and Mr Isley providing 14% care from 12 April 2013, in accordance with a written agreement.

   On 4 November 2020, we received information from the Family Assistance Office (FAO) that the care levels for [Child 1] had changed.

   FAO advised that from 12 January 2020, Ms Dines would be providing 100% care of [Child 1].

   From 1 July 2020, changes to the child support and family assistance legislation allows CSA and FAO to share determinations about care.

   This means that where a care determination would need to be made in respect of a child by both agencies, the determination will be made by one agency and used by both (section 54K of the amended Act and section 35T of the Family Assistance Act).

   As FAO were the original decision maker, we applied the FAO care decision to the child support assessment.

   On 14 November 2020, we made the decision to apply the Family Assistance Office (FAO) decision to reflect the care of [Child 1] as 100% with Ms Dines and 0% with Mr Isley from 12 January 2020, as notified on 28 October 2020.

   Mr Isley has objected to this decision on the grounds of incomplete calculations and out of time .

   When we spoke with Ms Dines on 22 December 2020, she advised that Mr Isley was having care of [Child 1] overnight, however this ceased from 12 January 2020.

   Ms Dines provided us with a third party statement dated 2 January 2021 from [Ms A], stating that [Child 1] (and his sister [Child 1]) have been living full time (100%) with Ms Dines since early January 2020, which supports the original decision made by FAO.

   As such, we will apply the care decision made by FAO, reflecting the care of [Child 1] as 100% with Ms Dines and 0% with Mr Isley, from 12 January 2020.

   This does result in a change to the care record, and does affect the cost percentage for [Child 1].

   FAO records show they were notified of this change in care on 28 October 2020.

   When we are told about a care change more than 28 days after it happened, we must use this information in the assessment in different ways. We use the decreased care percentage from the date the care changed and the increased care percentage from the date we were told.

   This means that Ms Dines’ care percentage applied from 28 October 2020 and Mr Isley’s care percentage applied from 12 January 2020.

   The objection is disallowed.

4. The Tribunal conducted a hearing by conference telephone. Mr Isley advised the Tribunal he would not participate in the hearing; his legal representative, Mr [B], represented Mr Isley during the hearing. Ms Dines participated by conference telephone.

5. In short, Mr [B] submitted that whilst [Child 1] had moved into the 100% care of Ms Dines, this was in breach of the parenting plan formulated some years earlier. He said that Ms Dines had “denied access”. Mr [B] said it was true that Mr Isley did not take formal steps with the Family Court; however, there was nevertheless a breach of orders and the reassessment that flowed from the breach resulted in Mr Isley being liable to an increased level of child support. Mr [B] contended that Ms Dines should not effectively “profit” from that breach.  

6. Ms Dines told the Tribunal she was confused by the application as there was no dispute [Child 1] was in her 100% care. She said she has two children so was unsure why this application only concerned [Child 1], and not [Child 1] (the Tribunal advised Ms Dines during the hearing it only has a limited jurisdiction to review objection decisions – here, only in respect of [Child 1] – and that if there were concerns about the recording of care for [Child 1], those would need to be taken up with the CSA separately). She said she believes [Child 1] should have had a relationship with his father; following a return to her care in January 2020, she said serious concerns were raised by the children and they did not want to return to Mr Isley’s care. She said she got “some help” for [Child 1]; she said, “other things came out”. Ms Dines said she called for mediation and secured a mediator; she said Mr Isley did not participate and she then “had a path to go to Court”. She said [Child 1] was of an age that he could decide for himself where he wanted to reside, and she decided not to take any further steps.

7. There are provisions in the Child Support (Assessment ) Act 1989 (the Act) which allow for an “interim period” where there is a change of care without consent where a written care agreement is in existence. [1]

   [1] Topic 2.2.4 of the Child Support Guide provides that 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 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. 

8. It is not enough that a person disagrees with the change; they must take “reasonable action” for the arrangement to be enforced: section 51 of the Act. The phrase “reasonable action” is not defined in the statute; the policy guidelines provide that this includes taking legal action, complaining to police, or attending an appointment at a Family Relationship Centre or other dispute resolution (see Topic 2.2.4 of the Child Support Guide). There is no serious suggestion here, nor any evidence, that Mr Isley took any such steps.

9. Accordingly, there being no dispute about [Child 1]’s actual care, and no evidence which supports a conclusion that there were circumstances which would permit the invocation of an interim period of any duration, the Tribunal agrees with the conclusions of the objections officer. That being so, the decision under review will be affirmed.

DECISION

The decision under review is affirmed.