Lovell and Child Support Registrar (Child support)

[2019] AATA 5104

Lovell and Child Support Registrar (Child support) [2019] AATA 5104 (25 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC016731

APPLICANT:  Mr Lovell

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Leonard

DECISION DATE:  25 September 2019

DECISION:

The decision under review is varied so that [Child] is to be recorded as in the 77% care of Ms McAndrew and 23% care of Mr Lovell for an interim period from 3 September 2018 to 3 March 2019 and, thereafter, that [Child] be recorded as in the 92% care of Ms McAndrew and the 8% care of Mr Lovell.

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 - court orders not complied with – whether reasonable action taken by parent with reduced care – whether reasonable action taken by parent with increased care - interim period applied for 26 weeks - 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 Lovell and Ms McAndrew are the parents of [Child], born February 2009, who was recorded by the Department as in the 23% care of Mr Lovell and the 77% care of Ms McAndrew from 27 December 2015. This percentage was recorded to reflect a care regime from court orders made in 2014 for [Child]. This application concerns the percentages of care of [Child] used in the child support assessment.

2. On 2 November 2018, Ms McAndrew notified the Department that care was no longer taking place in accordance with the order from 3 September 2018. She advised [Child] was in the care of Mr Lovell for two nights every 30 days with extra nights during school holidays depending on Mr Lovell’s work roster.

3. On 25 February 2019 the Department changed the assessment and recorded that from 3 September 2018 Mr Lovell’s care percentage was reduced to 9%, but that Ms McAndrew’s care percentage was not increased to 91% until 2 November 2018 due to the delay in notifying of the change in care.

4. On 28 March 2019, Mr Lovell objected to that decision. Mr Lovell told the Department that Ms McAndrew was in breach of the court orders and that he was making reasonable attempts to have the previous care restored.

5. On 29 May 2019 an objections officer disallowed the objection. Mr Lovell applied to the Tribunal for review of the objection decision on 13 June 2019. On 12 September 2019 the Tribunal conducted a hearing and spoke to Mr Lovell by conference telephone who gave his oral evidence under affirmation. Ms McAndrew did not apply to be a party to the proceedings. The Tribunal adjourned to allow Mr Lovell to provide further evidence.

6. In reaching a decision, the Tribunal has considered the oral evidence, additional evidence provided after the hearing, together with the documents provided by the Department (folios 1 to 145).  

ISSUES

1. In this case the Tribunal has to decide the percentage of care that each parent has or is likely to have of [Child] in the care period. If this is different to the percentage of care used in the child support assessment, the Tribunal must decide the date of effect of such change.

CONSIDERATION

1. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act).

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

Assessment of the pattern of care

1. Care was recorded by the Department as 23% (84 nights per year) to Mr Lovell and 77% (281 nights per year) to Ms McAndrew from December 2015.

2. The court-ordered care provided that whilst of school age, Mr Lovell is to have care of [Child] each alternate weekend from Friday afternoon until Sunday afternoon during school terms, every second Wednesday afternoon from 3.30 pm to 6.00 pm, one half of each school term vacation and other special days and days as agreed between the parties. There are 40 weeks in a school year (40 nights care per year for Mr Lovell). In the 12 weeks of school holidays, the orders provide for Mr Lovell to have 42 nights of care.  Allowing for other nights of care, the Tribunal finds that Ms McAndrew had 77% care and Mr Lovell had 23% care of [Child].

3. Mr Lovell commenced a new job on 3 September 2018 as a fly-in fly-out worker. He stated he did not have care of [Child] after this due to a combination of Ms McAndrew not making [Child] available and also because of his work commitments he was unable to have care of [Child] for three weeks during the December 2018/January 2019 school holiday period. Mr Lovell stated that the orders provided that if he was unable to have fortnightly care of [Child] due to work commitments, he was to supply Ms McAndrew with his roster and Ms McAndrew was to ensure that [Child] was available for contact during his rostered week off; paragraph 4(2)(m) of the orders. Mr Lovell stated the orders were not clear on this point as the orders refer to this arrangement while [Child] is of kindergarten age, but it was understood and agreed by the parents that this would be the arrangement in subsequent school years.

4. The critical issue before the Tribunal is whether the change of care which took place on 3 September 2018 was because an existing care arrangement was not being complied with. If so, the Tribunal must then determine whether Mr Lovell was taking reasonable action to ensure the care arrangement was complied with.

5. Mr Lovell claims Ms McAndrew was withholding care, whereas the discussions between Ms McAndrew and the Department is to the effect that Mr Lovell was unable to have care due to his work commitments.

6. The documents contain evidence of Mr Lovell’s work roster. The dates Mr Lovell claimed he had overnight care of [Child] are consistent with the evidence from Ms McAndrew contained in the documents.

7. Mr Lovell stated he had emailed Ms McAndrew with suggested make-up days to ensure the orders were complied with and he had approached the Family Relationship Centre for mediation. An intake assessment was undertaken by the Family Relationship Centre and a letter dated 15 January 2019 stated Ms McAndrew is willing to participate in mediation. Mr Lovell advised the Tribunal Ms McAndrew then refused to participate. Mr Lovell provided a certificate issued under section 601 of the Family Law Act 1975. It states that the practitioner decided that family dispute resolution was not appropriate having regard to the matters contained in subregulation 25(2) of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. The certificate was issued on 20 February 2019.

8. Mr Lovell’s lawyers wrote to Ms McAndrew’s lawyers on 7 May 2019 in which they noted 12 weekends between 14 September 2018 and 28 April 2019 where Ms McAndrew had breached the order by rejecting Mr Lovell’s request for make-up time during the weeks he is rostered off. Mr Lovell advised that a contravention application was filed in the Federal Circuit Court in June 2019. He stated that following a court hearing in August 2019, Ms McAndrew is to make [Child] available for 24 make-up nights due to a breach in the orders.

9. The evidence before the Tribunal is to the effect that Mr Lovell made attempts to ensure the orders were complied with. He negotiated directly with Ms McAndrew regarding make-up care while on his rostered days off, sought legal advice and representations, and initiated mediation and court action.

10. Having regard to all of the evidence the Tribunal finds that care was taking place in accordance with the court orders until 3 September 2018. Between 3 September 2018 and 25 February 2019, the date of the original decision, Mr Lovell had overnight care of [Child] on:

    ·21, 22 September 2018,

    ·26, 27, 28 October,

    ·23, 24, 25 November,

    ·20, 21, 22, 24, 26 December,

    ·20, 21, 22, 23, 24 January 2019, and

    ·22, 23 February 2019.

11. In the 175 days between 3 September 2018 and 25 February 2019 Mr Lovell had care of [Child] for 20 nights which is 8% of the time (rounded down).

12. The existing care determination must be revoked under section 54F of the Act as the cost percentages would change if a new determination were to be made. The date of revocation is the day before the change of care day, 2 September 2018, for Mr Lovell and 1 November 2018 for Ms McAndrew due to the late notification of the change in care.

Does an interim period apply?

1. The Tribunal finds that special circumstances in relation to [Child] do not exist in this case such that a single percentage of care should apply; subsection 51(5) of the Act.

2. As Mr Lovell is taking reasonable action to ensure the care arrangement is being complied with, two percentages of care must be determined under section 50 of the Act. The first percentage is the percentage pursuant to the court orders:  77% for Ms McAndrew and 23% for Mr Lovell, and the second percentage is the percentage that corresponds with the actual care:  92% for Ms McAndrew and 8% for Mr Lovell.

3. Pursuant to paragraph 53A(1)(a) of the Act an interim period can be applied from the first day that the actual care of the child ceased to correspond with the care provided for under the court-ordered care arrangement. The court orders were made on 25 March 2014, more than a year prior to the change of care, and so the maximum interim period in the circumstances is 26 weeks from the change of care day.

4. Pursuant to paragraph 53A(1)(b) of the Act a shorter interim period may apply if the change of care occurs after the first 26 weeks from the day the court order takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution, and continues to so participate. The shorter interim period will end at the earlier of:

   a.    14 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the court order took effect), or

   b.    26 weeks from the change of care day.

5. When the pattern of care changed for [Child] on 3 September 2018 Mr Lovell did not agree to the change. He wrote to Ms McAndrew regarding the orders, sought legal advice, instigated mediation and his lawyers wrote to Ms McAndrew’s lawyers and pointed out that the orders were not being complied with. Contravention orders were then filed.

6. The Tribunal is satisfied that Mr Lovell’s intent the court-ordered care continue could be readily inferred from his action and correspondence. The Tribunal is satisfied that this early action constituted reasonable steps to have the court-ordered care restored and Mr Lovell was taking reasonable action pursuant to paragraph 51(1)(d) of the Act.

7. In a letter to Mr Lovell from the Family Relationship Centre dated 15 January 2019 it is stated that Ms McAndrew is willing to participate in mediation. Although Mr Lovell stated that Ms McAndrew then failed to agree to mediation, this is not supported by the section 601 certificate which states that the practitioner decided mediation was not suitable. If Ms McAndrew had refused or failed to attend mediation, the practitioner could have indicated this at paragraph (a) of the certificate.

8. The Tribunal finds that from 15 January 2019 Ms McAndrew took reasonable action to participate in family dispute resolution and so the interim period extends for 14 weeks from the date reasonable action commenced, but cannot extend beyond 26 weeks after the change of care date; table item 2(b) of subsection 53A(1) of the Act.

9. Accordingly, an interim care determination for [Child] of 77% care to Ms McAndrew and 23% to Mr Lovell should apply from 3 September 2018 and extend for 26 weeks and end on 3 March 2019. From 4 March 2019 the child support assessment will be based on the actual care that was occurring.

DECISION

The decision under review is varied so that [Child] is to be recorded as in the 77% care of Ms McAndrew and 23% care of Mr Lovell for an interim period from 3 September 2018 to 3 March  2019 and, thereafter, that [Child] be recorded as in the 92% care of Ms McAndrew and the 8% care of Mr Lovell.