Marcario and Marcario (Child support)

[2018] AATA 4000

Marcario and Marcario (Child support) [2018] AATA 4000 (23 August 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/MC014378

APPLICANT:  Ms  Marcario

OTHER PARTIES:  Child Support Registrar

Mr Marcario

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 August 2018

The tribunal decided to set aside the decision under review and to send the matter back to the Child Support Registrar for reconsideration in accordance with directions that:

·      for Ms Marcario, the percentage of care for [Child 1] of 50% applies for a 14 week interim period from 20 October 2017 and after that, the percentage of care of 0% takes effect; and

·      for Mr Marcario, the percentage of care for [Child 1] of 50% applies for a 14 week interim period from 20 October 2017 and after that, the percentage of care of 100% takes effect.

CATCHWORDS

Child support - Percentage of care - Non-compliance with care arrangement - Reasonable action taken - Interim determination made - Decision under review set aside and remitted with directions

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. Ms Marcario and Mr Marcario are the separated parents of [Child 1], who turned 16 in 2017.  This application for review is about the respective percentages of care that each parent has for [Child 1].

2. The child support case commenced in 2013 and the Department of Human Services (Child Support) determined that the parents had 50/50 care since July 2014. 

3. Court orders issued in June 2015 allowing for 50/50 care and it is not disputed that up until 20 October 2017 these orders were being followed.

4. On 23 November 2017, Mr Marcario advised Child Support that [Child 1] had been in his sole care since 6 October 2017 (which he later advised was 20 October 2017).  On 20 December 2017, Child Support determined that Mr Marcario had 100% care of [Child 1] from 20 October 2017.

5. On 21 December 2017, Ms Marcario objected to the decision under review on the basis that she was attempting to have an interim decision about care made.

6. On 22 May 2018, the objection was disallowed.

7. On 20 June 2018, Ms Marcario applied to this tribunal for an independent review of the objections officer’s decision.

8. A hearing into the application for review was held by the tribunal on 23 August 2018 in Hobart.  Ms Marcario and Mr Marcario both participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing.    

9. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsections 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 215.

ISSUES

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

2. The issues for the tribunal to consider in this matter are as follows:

   ·Has there been a change in the care arrangements for [Child 1]?

   ·If so, should the existing care percentage determination be revoked and if so from, what date?

   ·Should an interim care determination be made and if so, what care percentages should be attributed to each of the parents?

EVIDENCE

1. Both parents agree that [Child 1] has been in the care of Mr Marcario since 20 October 2017.

2. Ms Marcario stated the following:

   ·[Child 1] has [a behavioural condition] and has displayed violent behaviour since he was four years old.

   ·His behaviour had worsened over the years and became particularly difficult in the 12 months leading up to 20 October 2017.  He was becoming more and more difficult to manage.

   ·If she tried to discipline [Child 1] he would threaten to go to his father’s home.

   ·She felt isolated and vulnerable when trying to deal with [Child 1]’s behaviour and on a couple of occasions had to lock herself in her car or room to remain safe.

   ·She did not think she was receiving appropriate support from Mr Marcario.

   ·On the night of 20 October 2017 [Child 1] became physically violent.  When she was able to contact Mr Marcario he came around and collected [Child 1] and took him back to his home.

   ·She dropped off some of [Child 1]’s possessions to Mr Marcario on 22 October 2017.

   ·She attempted to contact [Child 1] by phone and text on many occasions after he left but it was not until 15 December that she got to speak to him and they had arranged to meet for lunch.  This did not eventuate.

   ·She believed that Mr Marcario would not respond to her calls as he had said to her on a previous occasion that [Child 1] would be better off with him.

   ·She was not aware that Mr Marcario had contacted Child Support about a change in care until 21 December 2017.  When she spoke to Child Support about the issue she was provided advice about taking action to have [Child 1] returned.  Up until then she had assumed there was nothing she could do.

   ·[Child 1] had requested to return to her care several times and she provided details of their communication via text message.  She stated that [Child 1] told her he was homesick on 3 January 2018.  It would appear from the information provided by Ms Marcario that [Child 1] went on a trip with his father in early January but did not enjoy it and sent a few messages saying he wanted to go back to his mother’s house.  This seems to have settled by 12 January 2018.

   ·She made an appointment with a community legal service in December for 15 January 2018 (she could not afford a lawyer).  She eventually met with Legal Aid on 16 February 2018 and she was advised that attempting to enforce the court orders would be a lengthy and costly process and, given the history of violence, not likely to be successful.

   ·She made an appointment for mediation in December 2017 and the first available time was 1 February 2018.  Ms Marcario provided a letter from the Family Relationship Centre dated 8 January 2018 confirming that a mediation appointment would be held on 1 February 2018.

3. Mr Marcario stated the following:

   ·He picked up [Child 1] from Ms Marcario’s home on 20 October 2017.  This was the third time in around three months that this type of incident had occurred.

   ·[Child 1] denies that he was violent towards his mother and made accusations about his mother being violent.

   ·[Child 1] said he did not want to return and given the situation with his mother, Mr Marcario believed this was in the best interests of [Child 1] and Ms Marcario.  [Child 1] was not safe or happy with his mother.

   ·He told Ms Marcario if she wanted to enforce the court order she would need to take appropriate legal action.

   ·He attended the first mediation session.

   ·[Child 1] was 16 years old at the time and could have chosen to stay with his mother if he wanted; Mr Marcario would not have been able to prevent this.

CONSIDERATION

Legislative framework

1. The Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account a number of factors including each parent’s adjusted taxable income and the level of care they provide for their child or children.

2. The care provisions require the Registrar (and a tribunal on review) to determine whether there has been a change in care, whether the existing care determination can be revoked and if so, what new care percentage decision can be made and from when it applies.

3. When a change of care occurs that is sufficient to affect the parent’s “cost percentage”, the Registrar must revoke the existing percentage of care determination under section 54F or 54G of the Act.  When the revocation is under section 54F, the date of effect of the revocation depends on whether the Agency was notified of the change within 28 days of the “change of care day”.

4. Once a determination is revoked, the Registrar will make new determinations of care under section 49 or 50 of the Act.  Section 49 of the Act will apply to a parent who is likely to have no pattern of care over the care period.  Section 50 of the Act will apply to a parent who is likely to have a pattern of care over the care period.  A new care determination made under sections 49 or 50 of the Act would apply unless section 51 or 52 of the Act applies (subsection 49(3) of the Act and subsection 50(4) of the Act).

5. Sections 51 and 52 of the Act apply when a “care arrangement” (for example a court order) is not being followed and the parent with reduced care is taking reasonable action to ensure the care arrangement is being complied with or a new care arrangement is made. 

6. “Reasonable action” is not defined in the Act, and the Child Support Guide (the Guide) at 2.2.8 observes that what is reasonable will depend on the circumstances of each case.  The Guide provides as an example of reasonable action the initiation of mediation, through a Family Relationship Centre or other service, to re-establish the care arrangement.  Although the tribunal is not bound by policy guidelines such as those set out in the Guide, it is well established that tribunals should make decisions consistent with government policy guidelines unless there are cogent reasons not to do so: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60. The tribunal considers that the policy regarding the term “reasonable action” unobjectionable in the current case.

7. Section 51 of the Act, rather than section 52 of the Act, is the provision that is potentially applicable in the present case.  Under section 51, if reasonable action has been taken, the Registrar must determine two percentages of care. The first is a percentage that corresponds with the extent of care that the person should have had under the care arrangement. The second percentage is either:

   ·0% for a determination under section 49; or

   ·the likely percentage of the parent’s care during the care period for a determination under section 50 of the Act, assuming the reasonable action does not succeed.

   There is an exception to the operation of section 51 in some circumstances under section 53 of the Act.  Section 53 of the Act will prevent a section 51 determination being made in some circumstances where more than 14 weeks have elapsed since the change of care day.  

8. Where a section 51 of the Act determination is made, the first percentage applies for an “interim period”, and then the second percentage takes effect (section 54C of the Act).  The interim period runs from “the application day” which is the day the change in care occurs (subsection 52C(2) of the Act).

9. The interim period ends on a day specified by the Registrar, or the day before the reasonable action stops, or the day before a new care arrangement begins to apply, whichever occurs first (paragraph 54C(2)(b) of the Act).  A day specified by the Registrar must not be later than 14 weeks from the change of care day unless, in special circumstances, the Registrar allows a longer period of up to 26 weeks (subsections 54C(3) and (4) of the Act).  On the question of special circumstances, the Guide (at 2.2.8) observes that normal delays associated with mediation or court processes would not constitute special circumstances, as such delays are not out of the ordinary.  The Guide provides as an example of special circumstances the situation where a parent has travelled overseas with a child without the consent of the other parent, resulting in delays in mediation and court action.

Has there been a change in the care arrangements for [Child 1]?

1. There is no dispute between the parents, and the tribunal therefore finds, that since at least 2015 the parents equally shared the care of [Child 1].  This reflected a court order made in 2015 (the 2015 court order).  A care determination such that each parent had 50% care has applied since 2014.

2. The tribunal then considered whether or not a change in care had occurred on 20 October 2017.  Ms Marcario has submitted that a new pattern of care was not in place at that time.  Given the history of behavioural problems Ms Marcario outlined, the tribunal decided that as at 20 October 2017 it was likely that for at least the next 12 months [Child 1] would remain in the care of Mr Marcario.  There was no evidence to show that there was any intention of [Child 1] returning to his mother’s care at that time.

3. The tribunaI was therefore satisfied, and so found, that there was a change in the care arrangements for [Child 1] on 20 October 2017.

Should the existing care percentage determinations be revoked and if so from, what date?

1. When Mr Marcario notified the change of care of [Child 1] on 23 November 2017, it was necessary to revoke the existing care percentages of 50% and 50% under section 54F of the Act and a care determination that Mr Marcario had 100% care of [Child 1] should be made.

2. In working out the date of effect of the revocation under subsection 54F(2) of the Act, it is necessary to ascertain the change of care day.  The “change of care day” is defined as the first day on which the care of the child that was actually taking place ceased to correspond with the parent’s percentage of care under the determination that is being revoked.  In the present case, the tribunal has found that the care of [Child 1] changed on 20 October 2017.  As Mr Marcario did not notify the Agency of the change of care within 28 days of the change of care day, the revocations take effect on 23 November 2017, being the date he advised Child Support of the change in care (subsection 54F(3) of the Act).

3. The new percentages of care under section 49 and 50 of the Act are 0% for Ms Marcario and 100% for Mr Marcario, subject to the operation of section 51 of the Act.

Should an interim care determination be made and if so, what care percentages should be attributed to each of the parents?

1. In considering whether or not section 51 of the Act applies in this case, the tribunaI considered whether or not Ms Marcario had taken “reasonable action” to ensure that the previous care arrangements (as set out in the 2015 court order) were being complied with.

2. Ms Marcario’s actions were initially limited to attempt to contact [Child 1] and talk with him about returning.  However on or around 21 December 2017 she contacted a legal service and a mediation service and made appointments with them.  She has provided documentary evidence of the latter.  As this was within 14 weeks from 20 October 2017 the tribunal was satisfied, having regard to the Guide (at 2.2.8) that Ms Marcario had taken reasonable action to ensure the 2015 court order would be complied with.  She was still pursuing the matter as at 26 January 2018 (the end of the 14 week period).  Therefore, under section 51(2) to (4) of the Act, two percentages of care must be determined for each parent.  For Ms Marcario, those percentages are 50% and then 0%.  For Mr Marcario, they are 50% and then 100%.  

3. Under section 54C of the Act, the 50% and 50% percentages apply for an interim period commencing on the date of the change in care, that is 20 October 2017.  The percentages should apply for 14 weeks.  As noted earlier, there is a power to extend the 14 week period in special circumstances but, consistent with the observations in the Guide, the tribunal did not consider there are special circumstances in this case. 

4. The result then is that the 50% / 50% care percentages will continue in force for 14 weeks from when the care changed on 20 October 2017, and then the care percentages of 0% and 100% will take effect.

DECISION

The tribunal decided to set aside the decision under review and to send the matter back to the Child Support Registrar for reconsideration in accordance with directions that:

·      for Ms Marcario, the percentage of care for [Child 1] of 50% applies for a 14 week interim period from 20 October 2017 and after that, the percentage of care of 0% takes effect; and

·      for Mr Marcario, the percentage of care for [Child 1] of 50% applies for a 14 week interim period from 20 October 2017 and after that, the percentage of care of 100% takes effect.