Lalla and Amando (Child support)

[2020] AATA 5017

Lalla and Amando (Child support) [2020] AATA 5017 (23 September 2020)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019624

APPLICANT:  Mrs Lalla

OTHER PARTIES:  Child Support Registrar

Mr Amando

TRIBUNAL:  Member A Ducrou

DECISION DATE:  23 September 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations correctly 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 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. Mrs Lalla and Mr Amando are the separated parents of a child aged six (child one) and a child aged five (child two). This review is about the percentages of care for Mrs Lalla and Mr Amando that apply in relation to the administrative assessment of child support for the children.

2. From 27 December 2018 the Department of Human Services – Child Support, now Services Australia (the Agency) recorded that Mrs Lalla had a care percentage of 100% for the children and that Mr Amando had a care percentage of 0% for the children.

3. According to the Agency’s records, on 28 February 2020 Mr Amando provided the Agency with information about the care that he provided for the children. The information that Mr Amando provided included a sealed copy of orders for the care of the children made in the Federal Circuit Court of Australia [in] January 2018 between Mrs Lalla and Mr Amando. On 3 March 2020 Mr Amando advised the that, on average he had both children in his care for two nights per week.

4. The Agency contacted Mrs Lalla about the care of the children. Mrs Lalla disputed Mr Amando’s claims concerning his care of the children. The Agency had further contacts with Mr Amando. Mrs Lalla and Mr Amando provided documents to the agency in support of their claims.

5. On 14 April 2020 a delegate of the Child Support Registrar (the Registrar) determined that there was no change of care for the children and decided that new determinations of the percentages of care recorded for Mrs Lalla and Mr Amando should not be made. As a result, the existing percentages of care of 100% for Mrs Lalla and of 0% Mr Amando continued to apply in the administrative assessment of child support for the children from 27 December 2018.

6. On 13 May 2020 Mr Amando lodged an objection to the decision made on 14 April 2020 and he provided information to the Agency in support of his objection. The Agency wrote to Mrs Lalla on 13 May 2020 advising her of the objection and inviting to respond. The letter also invited Mrs Lalla to provide additional information and evidence by 10 June 2020 and that if she did not contact the Agency by then, a decision would be made about the objection based on the available information. A letter in similar terms was sent to Mr Amando on 13 May 2020. A further letter dated 13 May 2020 was sent to Mrs Lalla inviting her to provide additional evidence regarding the percentages of care of the children from 1 February 2020. The letter asked Mrs Lalla to contact the Agency about the objection and advised that if she did not, a decision would be made about the objection based on the available information. Mr Amando contacted the agency on 29 May 2020 and was granted an extension of time until 20 June 2020 to provide evidence. The Agency has no record of any contact with Mrs Lalla or Mr Amando by 20 June 2020.

7. On 6 August 2020 an objections officer of the Department decided to allow the objection lodged by Mr Amando. The objections officer determined that with effect from 1 February 2020 care percentages of 79% for Mrs Lalla and 21% for Mr Amando were to be applied in the administrative assessment of child support for the children.

8. On 7 August 2020 Mrs Lalla applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) for independent review. Her application was lodged by telephone. An invitation was issued to Mr Amando inviting him to apply to be added as a party to the proceeding. Mr Amando responded to the invitation and was added as a party to the review.

9. The tribunal conducted a hearing on 11 September 2020. Mrs Lalla and Mr Amando participated at the hearing by telephone via Microsoft Teams audio. They gave oral evidence on affirmation and made oral submissions. The tribunal had before it documents including supplementary documents provided by the Registrar (numbered 1 to 115). Copies of the documents were provided to the parties. The review was deferred for the tribunal to undertake legal research. The tribunal made its decision on 23 September 2020.

ISSUES

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

2. The issues which arise in this case are:

   ·      Did the pattern of care for the children change?

   ·      Do new care percentage determinations apply for the children?

CONSIDERATION

Issue 1 – Did the pattern of care for the children change?

1. The legislation establishes a system for the assessment of the rate of child support payable in a child support case. In the most cases a statutory formula is applied. The percentage of care for a parent of the child affects the annual rate of child support assessed and payable in each case. A parent's percentage of care is determined under section 49 or 50 of the Assessment Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether any existing care percentage determination can be revoked.

2. In certain specified situations, where a care arrangement applies in relation to a child, section 51 of the Assessment Act provides for an exception to the way in which a determination is made under either section 49 or 50 and a percentage of care determination must be made for an interim period based on the extent of care that a person has, or is to have, under the care arrangement. The term “care arrangement” is defined in subsection 5(1) of the Assessment Act and includes a parenting order within the meaning of section 64B of the Family Law Act 1975. The tribunal is satisfied that the court orders referred to at paragraph 3 of these reasons fall within the definition of care arrangement.

3. The term “pattern of care” is not defined in the legislation. In determining the pattern of care the decision-maker must consider the actual care of the child in the care period. The “care period” is the period which the decision-maker considers is appropriate having regard to all the circumstances of the case. The Department's online policy guide, the Child Support Guide (the Guide) states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepts that the policy in the Guide is consistent with the objects of the Assessment Act and that it assists the tribunal in making determinations under the legislation in relation to the care provided by the parties for the children.

4. The tribunal finds that Mrs Lalla and Mr Amando are the separated parents of the children. The percentages of care that were recorded and applied in the administrative assessment of child support for the children from 27 December 2018 were 100% for Mrs Lalla and 0% for Mr Amando. Based on the oral and documentary evidence the tribunal finds that Mr Amando advised the Agency on 28 February 2020 about a change in the care for the children form 1 February 2020 with the children being in his care for two nights per week. Mr Amando provided further information to the Agency on 3 March 2020. It was common ground that the children were in Mrs Lalla’s care when they were not in Mr Amando’s care.

5. The legislation requires any new care percentage determination to be made following notification to the Department of a change in care arrangements. The legislation makes it clear that the decision-maker is required to assess the actual or likely pattern of care by reference to an appropriate care period in order to determine whether to revoke the existing care determination and make a new care determination. The decision-maker must consider any pattern of care based on actual care to the time of notification and likely care thereafter (for the appropriate care period). In this respect there is a clear temporal element in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point of time of the notification of the change of care to the Department. It is not appropriate, in undertaking that task, to assess care based on what happened after the original decision was made up to the time of the tribunal hearing. Evidence of the care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification.

6. Section 2.2.1 of the Guide makes it clear that what constitutes a change to the pattern of care will depend upon the individual circumstances of the case. Section 2.2.1 also explains that there may be situations where the decision-maker is advised that care of a child will change, or has changed, but no pattern of care exists that will assist in determining the care percentages for a new care period. According to the Guide, the approach to be taken is for the decision-maker to consider the information provided by parents to decide whether care percentages can be determined. If consistent information is provided by both parents, then that information will be used to determine new care percentages. However, where the parents provide conflicting information, consideration will be given to whether there is some common expectation about future care. If the information shows that a different care percentage would be calculated and there is agreement to a certain point on what the new care arrangements will be then the new care percentages will be based on the point of agreement. However, where the information is not sufficient for a pattern of care to be determined and there is no common expectation about future care, the percentages of care known at the time the assessment was made will be assumed to be continuing. As there is no change to the care percentages the assessment will not be changed.

7. The court orders made [in] January 2018 provide that the children live with Mrs Lalla and spend time with Mr Amando as stipulated. The tribunal is satisfied that the court orders provide for Mr Amando to have overnight care of the children upon child two attaining primary school age from the conclusion of school on Friday until 8:00pm on the following Saturday with Mr Amando. While the court orders do not make provision for Mr Amando to have overnight care of the children during school holiday periods, clause 22.4 of the court orders stipulates that they may spend time with him at other times as agreed between him and Mrs Lalla.

8. Mrs Lalla acknowledged that the children spent some nights with Mr Amando from February 2020. However, her position is that Mr Amando did not established a pattern of care for the children. Mrs Lalla disputed that the court orders were being followed as the children only came to be in Mr Amando’s care by chance. They stayed with him when they wanted to stay. Mrs Lalla maintained, that even when the children stayed overnight with Mr Amando, Mr Amando did not provide a proper level of care for them as he did nothing for them except to provide them with somewhere to sleep. As examples, Mrs Lalla pointed out that Mr Amando did not bathe the children, he did not make their lunches for school and he did not take them to school. Mr Amando would simply drop the children off to her home and she did everything for them. Mrs Lalla told the tribunal that often when the children went to Mr Amando’s they did not stay overnight with him as he would call her to come and pick them up. Mrs Lalla could not recall the nights that the children spent with Mr Amando. She was too busy to keep diary records. She did not agree that both children stayed overnight with him equally. She could not recall but believed that child two spent more nights with Mr Amando than child one.

9. Mr Amando told the tribunal that prior to February 2020 he had some overnight care of the children but that there was no pattern in the care that he provided for them until child two started school in 2002. Mrs Lalla asked him to have the children because she was busy, and her personal circumstances had changed. He had also moved in October 2019 to be closer to the children. Mr Amando told the tribunal that he maintained diary records of when the children stayed with him from February 2020. He acknowledged that both children did not always stay with him together and that child two stayed with him more frequently than child one. Mr Amando disagreed with Mrs Lalla’s claims that he did not care for the children properly when they stayed with him. He acknowledged that sometimes he took the children to Mrs Lalla’s after they stayed overnight with him instead of taking them directly to school. This was because he had to go to work. Mr Amando maintained that in all other respects he cared for the children properly and attended fully to their needs fully. He noted that he and Mrs Lalla did things differently. Mr Amando told the tribunal that as a result of him contacting the Agency Mrs Lalla had stopped allowing the children to stay overnight with him. While he wanted to have the children in his care for at least one night per week as provided for in the court orders or more frequently, if possible, he was not taking steps to enforce the court orders because he does not want to go back to court and he is able and does see the children every day during the day. Mr Amando read out information from his diary relating to his care of the children at the hearing. He told the tribunal that the nights when the children stayed with him from February to May 2020 were:

• Child one: February – 7 nights; March- 4 nights; April -2 nights; May – 1 night.

• Child two: February – 8 nights; March- 6 nights; April -3 nights; May – 2 nights.

1. What’s App communications that Mr Amando provided supported his claimed care of the children in February 2020. Written statements that Mrs Lalla provided from other people members are consistent with her account. However, the information in the statements contained limited detail. The oral evidence that Mr Amando gave at the hearing in relation to the nights the children spent with him is consistent with the information in the letter the Agency received from him on 28 February 2020 and with information he provided to the Agency when he lodged his objection. The tribunal had no reason to doubt the oral evidence of Ms Lalla and Mr Amando concerning their expectations of the likely care of the children when Mr Amando contacted the Agency about the change in care. The tribunal accepted that at that point in time Mrs Lalla had no expectation of the likely future care that Mr Amando would provide for the children and that Mr Amando expected that he would be providing, on average, two nights of care per week for the children. The tribunal notes Mr Amando’s oral evidence that he maintains contemporaneous diary records of nights the children spend with him. Based on Mr Amando’s oral evidence, given on affirmation at the hearing, the tribunal accepts that the information that Mr Amando provided in relation to the nights the children spent with him is based on his diary records. Mrs Lalla does not maintain diary records. Having considered the available evidence carefully, the tribunal preferred the evidence of Mr Amando, which was based on his contemporaneous records as providing a more accurate record of the actual care of the children from 1 February 2020.

2. The tribunal determined that the appropriate care period in this case is the 12-month care period that commenced on 1 February 2020. Based on the records maintained by Mr Amando the tribunal was satisfied that when Mr Amando notified the Agency of the change in care from 1 February 2020, Mr Amando had or was likely to have a pattern of care for the children with the children being in his care for one to two nights, on average, per week.  The tribunal therefore determined that for the care period that commenced on 1 February 2020 Mr Amando had, and was likely to have 21 % care of the children and Mrs Lalla had and was likely to have 79% care of the children. The tribunal’s approach is the same as that taken by the objections officer. Whether, the care of the children has changed subsequently is not a matter that is before the tribunal in this review.

Issue 2 – Do new care percentage determinations apply for the child?

1. The provisions relating to the revocation of a determination of a person’s percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Assessment Act. Section 54F of the Assessment Act is relevant in this case. Section 54F provides for the mandatory revocation of an existing care percentage determination in specified situations where there is a change to a person’s cost percentage as a result of a change in care notified to the Agency.

2. The tribunal has found that there were existing determinations of Mrs Lalla’s and Mr Amando’s percentages of care for the child from 27 December 2018. The existing determination for Mrs Lalla was made under section 50 of the Assessment Act and the existing determination for Mr Amando was made under section 49 of the Assessment Act. The tribunal notes Mr Amando’s clear oral evidence that his is not taking action to ensure compliance with the court orders for the children’s care. The tribunal has found that for the care period that commenced on 1 February 2020 Mrs Lalla had the children in her care for 79% of the time and that Mr Amando had the children in his care for 21% of the time. This does not correspond with the existing percentages of care of 100% for Mrs Lalla and 0% for Mr Amando. Based on the available evidence the tribunal is satisfied that the requirements for revoking the existing percentage of care determinations under section 54F(1) are met. In accordance with subparagraph 54F(3)(a) of the Assessment Act were met the revocation of the percentages of care takes effect at the end of 31 January 2020.

3. Under subsection 50(3) of the Assessment Act a new determination of the percentage of care for the child that corresponds with the actual care that the parent has, or is likely to have, for the child during the care period must be made unless section 51 applies. Based on the evidence the tribunal was satisfied that section 51 does not apply. In accordance with subsection 50(3) of the Assessment Act new determinations of the percentage of care for the children of 79% for Mrs Lalla and 21% for Mr Amando are made for the care period that commenced on 1 February 2020. The date of effect of the new care percentage determinations is worked out in accordance with subsection 54B of the Assessment Act. In this case under subparagraph 54B(2)(c)(ii) the new determinations apply from 1 February 2020 which is the day that began immediately after the day when the previous determination was revoked.

1. The tribunal observed that it is open to Mrs Lalla and Mr Amando to notify the Department of subsequent changes in care that they believe have occurred after the original decision was made. The legislative scheme deals with any subsequent change of care by requiring further notification to the Agency so that a new care percentage decision can be considered and made, if appropriate. Such a decision is a separate determination which is not the subject of this review.

DECISION

The decision under review is affirmed.