Lorenz and Halloran (Child support)

[2020] AATA 4776

Lorenz and Halloran (Child support) [2020] AATA 4776 (10 September 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC019583

APPLICANT:  Ms Lorenz

OTHER PARTIES:  Child Support Registrar

Mr Halloran

TRIBUNAL:Member J Longo

DECISION DATE:  10 September 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that Ms Lorenz has a percentage of care of 40% for [Child 1] and [Child 2] and Mr Halloran has a percentage of care of 60% for [Child 1] and [Child 2] from 29 January 2020.

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 – 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 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

BACKGROUND

1. Mr Halloran and Ms Lorenz are the parents of [Child 1] and [Child 2]. Mr Halloran was the parent liable to pay child support. From 11 May 2018 the Department of Human Services (now Services Australia) – Child Support (the Department) had determined that Ms Lorenz had a percentage of care for [Child 1] and [Child 2] of 100% and that Mr Halloran had a percentage of care of 0% for [Child 1] and [Child 2].

2. On 30 January 2020, Mr Halloran notified the Department that there had been a change in the care for [Child 1] and [Child 2], stating that he had 100% care of [Child 1] and [Child 2] from 29 January 2020.

3. On 23 May 2020, the Department refused to make a new determination of care for [Child 1] and [Child 2]. On 5 June 2020, Mr Halloran lodged an objection to the care decision. On 22 July 2020, the Department allowed the objection and determined that Mr Halloran had 100% care of [Child 1] and [Child 2] and Ms Lorenz had 0% care of [Child 1] and [Child 2] from 29 January 2020.

4. On 31 July 2020, Mr Halloran lodged an application to the Administrative Appeals Tribunal (the tribunal) for a review of the decision. The hearing took place on 10 September 2020. Ms Lorenz and Mr Halloran spoke to the tribunal via conference telephone and gave sworn evidence. In making its decision the tribunal took into consideration the documents provided by the Department (79 pages), which were also sent to the parties prior to the hearing. Ms Lorenz also provided additional information to the Tribunal (A1toA5), which was provided to all parties prior to the hearing.

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

What is the care of [Child 1] and [Child 2]?

1. It is not in dispute that the Department had recorded the care of [Child 1] and [Child 2] as Ms Lorenz having 100% and Mr Halloran having 0% of the care from 11 May 2018. It is also not in dispute that Mr Halloran contacted the Department on 30 January 2020 to advise that the care of [Child 1] and [Child 2] had changed. The tribunal finds accordingly.

2. Ms Lorenz and Mr Halloran both confirmed that there were no court orders or parenting plans in place for [Child 1] and [Child 2]. Ms Lorenz stated that [Child 1] and [Child 2] were in her care until 19 March 2020, when a family incident occurred and the Police called Mr Halloran to pick up the children from her house. Ms Lorenz stated that there was another incident that occurred in January 2020 when Mr Halloran was called by Police to collect [Child 1] and [Child 2] but they only stayed with Mr Halloran for one night and then returned to her care.

3. Mr Halloran confirmed that Ms Lorenz had 100% of the care of [Child 1] and [Child 2] prior to January 2020. He confirmed that he was called by the Police to collect [Child 1] and [Child 2] and that this occurred on several occasions until 19 March 2020. He stated that the children would be in his care for between a number of days to one week and then they would return to Ms Lorenz. He stated that he was called to collect the children from Ms Lorenz by the Police on a number of occasions. He estimates that police, generally from [Suburb] Police Station, called him four to five times during this period. He described the care of the children as yo-yoing between him and Ms Lorenz until 19 March 2020 when the children remained in his care. Mr Halloran stated that the Department of Health and Human Services was involved prior to 19 March 2020 but did not recommend that the children remain in his care until 19 March 2020. He estimated that prior to 19 March 2020, he had 60% of the care of [Child 1] and [Child 2] and Ms Lorenz had around 40% care of [Child 1] and [Child 2].

4. Section 50 of the Act requires a new determination of a percentage of care to be made where the tribunal is satisfied either that the person has had, or is likely to have, a pattern of care during a care period as considered to be appropriate having regard to all the circumstances. The evidence before the Tribunal is that the percentages of care for [Child 1] and [Child 2] have changed from what was recorded on 11 May 2018.

Should the existing care determinations in relation to [Child 1] and [Child 2] be revoked?

10.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child or children. Mr Halloran notified the Department that the care taking place did not correspond with the existing care of [Child 1] and [Child 2] from 29 January 2020.

11.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 11 May 2018 was that Ms Lorenz had a percentage of care for [Child 1] and [Child 2] of 100% and that Mr Halloran had a percentage of care of 0% for [Child 1] and [Child 2]. Therefore, paragraph 54F(1)(a) of the Act is satisfied. Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of [Child 1] and [Child 2], the tribunal must determine the percentage of care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1)).

12.The Tribunal notes that the original decision in this matter was not made by the Department until 23 May 2020. It is unclear as to why the consideration of whether the care had changed from 29 January 2020 could not be determined earlier. Both Ms Lorenz and Mr Halloran gave oral evidence that the care for [Child 1] and [Child 2] changed during the period from 29 January 2020. Both confirmed that from 19 March 2020, Mr Halloran had 100% care of [Child 1] and [Child 2]. However, the Tribunal is unable to make a determination of the care from 19 March 2020. This is due to the fact that notification of a care change occurred on 30 January 2020 and so therefore the care must be determined from this date and not from a later date.

13.While the care may have changed from 19 March 2020, this has not been considered by the Department. It is unclear whether Mr Halloran notified of a change in care March 2020 or at another date after 30 January 2020, however, even if such a notification occurred, this is not before the Tribunal in this application but is open to be considered further by the Department.

14.The tribunal is required to consider what the actual care of [Child 1] and [Child 2] was or is likely to be during the care period from the date of notification of the change or the date the change occurred if the notification occurs within 28 days of the change in care. The care period is such a period as the Child Support Registrar considers appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal. The tribunal considers that, in the circumstances of this case, the care period from 29 January 2020, being the date from which Mr Halloran stated to the Department that care had changed, should be considered.  

15.The tribunal notes that the additional information provided by Ms Lorenz does not discuss what was occurring at the time of the notification in January 2020 and so is of little assistance in determining the care occurring in January 2020.  Mr Halloran provided a letter from a third party to the Department in support of the change in care. The Tribunal notes that the letter states that the care changed on 18 January 2020 and not 29 January 2020, which is the date Mr Halloran stated that the care changed to the Department. In any event, Mr Halloran’s oral evidence of the care to the Tribunal did not indicate that he had 100% care from 29 January 2020 (or from an earlier date) but rather that he had around 60% care of [Child 1] and [Child 2] and Ms Lorenz had 40% care of [Child 1] and [Child 2]. Mr Halloran did state, which was confirmed by Ms Lorenz, that he has had [Child 1] and [Child 2] in his care 100% of the time since 19 March 2020.

16.The Tribunal has accepted that the care did change from 29 January 2020 and has based that care change on Mr Halloran’s oral evidence at hearing. Accordingly, the determination of care made from 11 May 2018 is revoked from 28 January 2020 and a new determination made from 29 January 2020 which reflects that Ms Lorenz has a percentage of care of 40% for [Child 1] and [Child 2] and Mr Halloran has a percentage of care of 60% for [Child 1] and [Child 2]. This sets aside the objection decision and changes the care determination from this date.

17.The Tribunal notes that both Ms Lorenz and Mr Halloran have confirmed that the care changed again on 19 March 2020 but as has been discussed, the Tribunal cannot make subsequent care determinations in circumstances where the decision has not been made by the Department and reviewed by an objections officer. Such a care change needs to be considered by the Department in the first instance.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that Ms Lorenz has a percentage of care of 40% for [Child 1] and [Child 2] and Mr Halloran has a percentage of care of 60% for [Child 1] and [Child 2] from 29 January 2020.