Keith and Lopex (Child support)

[2020] AATA 4404

Keith and Lopex (Child support) [2020] AATA 4404 (14 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019046

APPLICANT:  Mr Keith

OTHER PARTIES:  Child Support Registrar

Mrs Lopez

TRIBUNAL:Member S Letch

DECISION DATE:  14 July 2020

DECISION:

The decision under review is varied so that care for [Child 1] is to be recorded as 100% to Mrs Lopez and 0% to Mr Keith from 1 September 2018 (not 1 August 2018).

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 – whether the change of care day was correctly determined – decision under review varied

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 Keith and Mrs Lopez are the parents of [Child 1].

2. Care for [Child 1] had been recorded by the Child Support Agency (CSA) as 67% to Mrs Lopez and 33% to Mr Keith when, on 10 February 2020, Mrs Lopez advised the CSA that she had 100% care of [Child 1] from 1 August 2018.

3. On 13 March 2020, the CSA decided to accept the advice provided by Mrs Lopez. Mr Keith objected to the decision on 16 March 2020; on 13 May 2020, an objections officer decided to disallow his objection.

4. On 15 May 2020, Mr Keith applied for further review by the Tribunal. Mr Keith and Mrs Lopez participated in the Tribunal’s hearing by conference telephone.

5. [Child 1] was diagnosed with [Medical condition 1] in late 2017; the condition was life-threatening, and plainly distressing for both parents. This led to a necessary departure from the existing Court orders of February 2015 (giving Mr Keith four nights a fortnight and half school holidays) in respect of [Child 1]’s care. During the hearing, the parties raised a number of issues not directly relevant to the decision under review; there is a long history and a level of animosity between the parties. Regardless, the Tribunal formed the view that both parties have been genuinely concerned for [Child 1]’s welfare, notwithstanding their differing positions.

6. Mr Keith says that he was sharing a room at [Facility 1] from December 2017 until April 2018.[1] He says he had shared care of [Child 1], and was responsible for meeting most of [Child 1]’s expenses. There appears no serious dispute that from April 2018, [Child 1] was staying with Mrs Lopez at [Facility 1] until August 2018; during that period, Mr Keith says that he was staying at paid accommodation and was organising religious blessings for [Child 1]. Mr Keith suggests he was being denied access to [Child 1] at the hospital during this period. The evidence reveals that [Child 1] finished [treatments] in August 2018 and commenced [a] program from September 2018. There appears no dispute that [Child 1] stayed with Mrs Lopez after finishing his [treatment] in August 2018; however, Mr Keith says that he took legal steps in order to have access to [Child 1].

   [1] The Tribunal observes that this review is a “point in time” assessment and is limited to considering the pattern of care for [Child 1] as of April 2018; other changes to the pattern of care before or after that time are the subject of separate decisions and determinations not presently before the Tribunal.

7. There is evidence that Mrs Lopez initiated steps towards mediation in mid 2018; it appears Relationships Australia deemed mediation inappropriate. The evidence also reveals [Child 1] had some occasional overnight care with Mr Keith, including in April and July 2019. Ultimately, on Mrs Lopez’s application, final orders were made in December 2019 giving Mrs Lopez sole parental responsibility for [Child 1].

8. The general position is that where a Court order is no longer followed, care is reflected in the assessment in accordance with the actual arrangements, usually based on nights in care. Where the orders are no longer being observed by the parties, there is no access to the “interim care provisions” (which permit the Court-ordered arrangements to be reflected in the assessment for a limited period of time).

9. Here, it appears indisputable – and for good reason − that the Court orders were no longer being followed. This was necessitated by [Child 1]’s illness, and a desire by Mr Keith to act in [Child 1]’s interests by not taking further legal steps at the time.[2] The later steps taken by Mr Keith after the departure from the earlier orders do not change the fact the orders had been abandoned; he is not able to access the interim care provisions regardless of his later steps.

   [2] See folio 95 of the CSA materials in which a Legal Aid ACT lawyer, in correspondence to the hospital dated 12 July 2018, observes that “While both parties are departing from the Court Orders, appropriately in the circumstances, to support [Child 1] as his condition and treatment requires, the Orders were made on the basis that it was in [Child 1]’s best interests to spend time and have a meaningful relationship with both of his parents”.

10. In her affidavit of 6 September 2019 (folio B14 of the materials) Mrs Lopez indicates [Child 1] finished [treatments] in “around August 2018” and [that] therapy commenced in September 2018. The Tribunal considers that for the duration of [Child 1]’s temporary hospital stay and until the conclusion of his [treatment] program when he commenced [therapy], matters were uncertain and in a state of flux. The Tribunal accepts Mr Keith continued to provide some financial and other support to [Child 1] during this time.  

11. Accordingly, the Tribunal is not satisfied that the existing care percentage should have been revoked until the beginning of September 2018 when [Child 1] had commenced his [program]. In the Tribunal’s assessment, this is when the change of care should be regarded as crystallising, and that Mrs Lopez should be recorded as having 100% care.

12. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be varied.  

DECISION

The decision under review is varied so that care for [Child 1] is to be recorded as 100% to Mrs Lopez and 0% to Mr Keith from 1 September 2018 (not 1 August 2018).