McDanah and McDanah (Child support)

[2024] AATA 2543

McDanah and McDanah (Child support) [2024] AATA 2543 (4 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027602

APPLICANT:  Mr McDanah

OTHER PARTIES:  Child Support Registrar

Ms McDanah

TRIBUNAL:Member R Prasad

DECISION DATE:  4 June 2024

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 29 March 2023 and a new care determination is made that Mr McDanah had 0% care and Ms McDanah had 100% care of the child from 30 March 2023.

The Tribunal decides not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and so the Tribunal’s decision has effect from 5 March 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – child now in 100% care of mother – no overnight pattern of care for father – no reasonable action to ensure care arrangement complied with and delay in applying for review – interim period not applicable – 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. Since 16 April 2014, Mr McDanah (the father) and Ms McDanah (the mother) have had a registered child support assessment for their children, [Child 1] (the child) and [Child 2] born 19 January 2011. Services Australia – Child Support (Child Support) has collected child support on the basis that the mother had 38% care of the child and the father had 62% care from 14 February 2023. These percentages denote the existing percentages of care of the child.

2. On 4 April 2023, the mother notified Child Support that there were parenting orders in place from 30 March 2023 providing that the parents have equal shared parental responsibility, but the child had been full-time in her care since 15 February 2023.

3. On 20 April 2023, Child Support made an interim care decision to reflect the parenting orders for a period of 52 weeks, namely that the parents had equal shared care from 30 March 2023 to 27 March 2024, and to reflect the actual care of 100% to the mother and 0% to the father from 30 March 2023, effective from 28 March 2024.

4. On 17 May 2023, the mother lodged an objection to this decision. On 24 July 2023, Child Support disallowed the mother’s objection.

5. On 5 March 2024, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

6. The matter was heard on 22 May 2024. The father appeared by MS Teams video and the mother appeared by MS Teams audio and provided documentation (folios B1 to B65). The Child Support Registrar elected not to be represented at the hearing but provided documentation (folios 1 to 307).

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements, and if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with. This is known as an ‘interim care determination’.

3. The Act, under section 54, defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a court order. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. If notice of the care change is more than 28 days after the change occurred, the revocation of the determination takes effect from the day before the notification day for the person with increased care, and from the day before the care changed for the person with reduced care.

5. Section 54G of the Act is applicable where a person was to have at least regular care of a child during a care period and has had less than regular care of the child despite the child being made available, a determination has been made that the other responsible person had at least regular care of the child and the other person notified of the care change within a reasonable period. Subsection 5(2) of the Act provides that a person has ‘regular care’ of a child if the person has at least 14% but less than 35% care of the child.

6. A person’s percentage of care determination may be revoked under section 54H of the Act, if sections 54F and 54G do not apply

7. The Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) provides for the date of effect of objections where care percentage decisions are allowed. Section 95N provides that if an application to the Tribunal was made more than 28 days after notice of the care percentage decision was given, and the Tribunal varies or substitutes the objection decision, then the Tribunal decision takes effect on and from the day the application for review by the Tribunal was first made, unless there are special circumstances to extend the 28 day period.

What information has been provided in relation to the care of the child?

1. The father advised that the Family Court process took several months to complete, and he wished for the care of the child to be reflected in accordance with the parenting orders. He confirmed that the child has stayed with him a few nights, and that they have spent time together such as in relation to seeing football matches. The father had informed Child Support that the mother had withheld care of the child and he had requested her to return the child pursuant to the orders. He also advised that he was speaking to his lawyers as well. At the hearing, the father stated that since February 2023, he has been trying to reconnect with the child, who may have felt that he was being taken away from the mother as the child was made to go to a new school, which the child is now settled in and has made new friends. He advised that he was still getting funds to obtain a lawyer.

2. The father advised that he was not aware of the time limit in seeking review of the objection decision and noted it had been a stressful time for him. He asserted that while he received numerous letters from Child Support, which he did read, he might not have understood all the information as he did not realise the care decision reflecting the parenting orders would only be for 12 months.

3. The mother considered the objection decision to be correct. She said that when she objected to the original decision, she could not understand why care had been reflected as 50/50 care when the child was with her 100%. She did not seek further review of the objection decision as she thought that the father’s care would have increased in 12 months, but there was still quite some work to do in that respect. She advised Child Support that she had organised counselling for the child to assist with this. At the hearing, she advised that so far, the child has only spent Christmas and four days over Easter with the father, but there has been no overnight pattern of care. The father confirmed that there had been no pattern of care but he has still spent some time with the child.

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh and am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or was likely to have been, in a parent’s care. While I am considering the relevant care, I understand I am able to consider relevant events that have occurred after the date of notification of the change in care.[1]

   [1] Child Support Registrar v BKCZ [2023] FCA 1109 at [86]; Child Support Registrar v DQFY [2023] FCA 601 at [94].

2. The information before me indicates that at least since the parenting orders were made, the father has not had regular care of the child. I am satisfied that he has had some overnight care of the child, such as over Christmas and Easter, but I am not satisfied that there has been a pattern of care for the father as confirmed by the parents.

3. Accordingly, for the father, the requirements of section 49 of the Act are satisfied and there was likely no pattern of care during the care period, from 30 March 2023. Therefore, the relevant care percentage for the father is 0% from 30 March 2023 pursuant to subsection 49(3). The child has been in the mother’s care and, pursuant to section 50, her percentage of care is 100% from 30 March 2023.

4. I also note that I have considered the parties’ evidence, and I am not satisfied that the child had been withheld from the father’s care. The father had advised that as the child was made to change schools and perhaps felt that the child was being taken away from the mother, the child was reluctant to be in his care. Further, the father has been spending time with the child and there has been overnight care during Christmas and Easter. I am therefore satisfied that the father was to have at least regular care but had less care despite the child being made available, and that the mother’s percentage of care has been made under section 50 and she notified the care within a reasonable period. Accordingly, pursuant to section 54G, the determination of the existing care percentage is revoked on 29 March 2023.

5. The father has advised he is seeking review of the objection decision as he was not aware the interim care determination would only apply for 12 months and he wishes for the care to be reflected in accordance with the parenting orders.

6. I note that the Act has been amended in relation to interim care determinations and a particular provision, paragraph 53(1)(c), has been revoked with effect from 29 March 2024, pursuant to the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024. This was in response to a Federal Court decision in the matter of Child Support Registrar v CMU23 [2024] FCA 109 (CMU23), which clarified that the effect of paragraph 53(1)(c) of the Act was that if an existing care determination was revoked under sections 54F or 54H of the Act, section 51 could not apply when making a new care determination in the matter. As mentioned above, I have revoked the pre-existing care determination in this matter under section 54G, and therefore CMU23 is not relevant here. I note that the Child Support Guide at 2.2.4 provides that an interim period cannot be made if a previous care determination has been revoked and the change in care occurred prior to 29 March 2024. However, as the Federal Court in CMU23 refers only to revocation under sections 54F and 54H, I consider it is appropriate to depart from policy and consider interim care as requested by the father because the revocation is made pursuant to section 54G in this matter.

7. Section 51 of the Act requires the person with reduced care of the child to be taking reasonable action to ensure the care arrangement is complied with. The father has advised that he has been making attempts to reconnect with the child and is still in the process of obtaining funds to retain a lawyer. The Child Support Guide at 2.2.4 provides examples of what reasonable action could include, such as seeking and obtaining legal advice regarding the making of a court order or filing an application to a court to have an order enforced. The father has not sought or obtained legal advice or filed an application to a court regarding enforcement of an order. I am therefore not satisfied that the father has been taking reasonable action to ensure the care arrangement is complied with. Accordingly, section 51 is not applicable and I am not satisfied that that interim care period should apply.

8. Given interim care does not apply, the actual care percentages, as outlined in paragraph 20 in my reasons above, must apply.

When does the new care determination take effect?

26. I have considered whether there were special circumstances pursuant to subsection 95N(2) of the Registration and Collection Act, preventing the father applying to the Tribunal within 28 days after the notice of the objection decision was given to him.

1. While the father has said that he was not aware of the decision as it had been a stressful period at the time and he did not understand it would only apply for 12 months, he confirmed he did get numerous letters from Child Support, which he did read, but asserted he might not have understood. As he was in receipt of the letters and was notified of the decision which clearly provided the period the interim care would apply, I am not satisfied there are special circumstances for the father’s delay in making the application for review. I note the mother has also not sought review of the objection decision. I therefore find that pursuant to subsection 95N(1) of the Registration and Collection Act, my decision is to take effect from 5 March 2024, being when the father lodged his application for review with the Tribunal.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the existing care determination is revoked on 29 March 2023 and a new care determination is made that Mr McDonah had 0% care and Ms McDanah had 100% care of the child from 30 March 2023.

The Tribunal decides not to make a determination under subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 and so the Tribunal’s decision has effect from 5 March 2024.