Mcleod and Howard (Child support)

[2016] AATA 2010

Mcleod and Howard (Child support) [2016] AATA 2010 (10 November 2016)

APPLICANT  Mr McLeod

OTHER PARTIES  Ms Howard

Child Support Registrar

TRIBUNAL  Ms Y Webb, Member

DECISION DATE  10 November 2016

DECISION

The decision under review is affirmed.

CATCHWORDS
Child Support – Percentage of care – Care arrangement – Reasonable action for compliance – No special circumstances – Interim determination applied – 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)-2(AC) of the Child Support (Registration and Collection Act 1988.

REASONS FOR DECISION

BACKGROUND

1. This review relates to a decision of the Child Support Registrar of the Department of Human Services (Child Support Agency) in relation to the care of the children of Mr McLeod and Ms Howard  On 6 October 2015 an Objections Officer allowed an objection by Ms Howard and decided to apply an interim care determination based on court ordered care for the children of 78% care to Ms Howard and 22% care to Mr McLeod from 10 July 2015.  This decision set aside an earlier decision of the Child Support Agency on 29 July 2015 which had determined that the children were in the 100% care of Mr McLeod and the 0% care of Ms Howard from 10 July 2015.

2. Mr McLeod and Ms Howard are the parents of [Child 1], aged 10 and [Child 2] aged nine (‘the children’).

3. The case has been registered for collection since 2006.

4. There are Federal Circuit Court of Australia orders in relation to the care of the children: specifically there is a court order dated 27 March 2015.

5. A new care determination was made by the Child Support Agency on 20 August 2015 based on Federal Circuit Court of Australia orders granting 100% care of the children to Ms Howard from that date.     

6. On 16 July 2015 Mr McLeod contacted the Child Support Agency to advise that the children had been in his 100% care since 10 July 2015.

7. At the time of Mr McLeod’s contact the existing care of the children was recorded as being 78% to Ms Howard and 22% to Mr McLeod.

8. The Child Support Agency contacted Ms Howard regarding Mr McLeod’s contact.  She agreed that the children were in the 100% care of Mr McLeod but she asserted that this was not a permanent arrangement as she was in the process of taking recovery action for return of the children.

9. On 29 July 2015 the Child Support Agency decided to accept that the care had changed and that Mr McLeod had 100% care of the children and Ms Howard had 0% care.

10. On 7 August 2015 Ms Howard objected to that decision.  She provided a copy of the Federal Circuit Court of Australia orders of 27 March 2015 and in due course a copy of the 20 August 2015 Federal Circuit Court of Australia orders.  Later, Ms Howard also provided an incomplete copy of Federal Circuit Court of Australia orders of 22 September 2015.

11. On 6 October 2015 an Objections Officer allowed Ms Howard’s objection.  He put in place an interim period of court ordered care from 10 July 2015 to 19 August 2015 of 78% care to Ms Howard and 22% care to Mr McLeod based on the court orders of 27 March 2015 and being satisfied that Ms Howard had taken reasonable action to have the court ordered care reinstated.

12. The Objection Officer confirmed that a new care change had been recorded of 100% care to Ms Howard from 20 August 2015.

13. On 8 September 2016 Mr McLeod applied to the Tribunal for review of the decision of 6 October 2015.

14. Mr McLeod and Ms Howard attended the hearing by way of telephone conference and both gave sworn evidence.

ISSUES

1. The issues for the Tribunal to determine are:

   ·the percentages of care of the children for Mr McLeod and Ms Howard

   ·if there has been a change in the level of care, the date of effect of the care change;

   ·does a “care arrangement” apply to the children; and if so,

   ·whether an interim determination should be made.

   ·If the Tribunal varies or substitutes a decision, are there special circumstances which prevented the application from being made to the Tribunal within 28 days of the objection officer’s decision?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (Assessment Act) and the Child Support (Registration and Collection) Act1988 (Registration and Collection Act).

2. The legislation requires the Tribunal to determine a percentage of care for a parent based on the pattern of care that a parent has had or is likely to have for a child in a care period.  The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. 

3. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. A determination is made under section 49 of the Assessment Act in circumstances where a person has no care of the child.

4. Section 54A provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period which is normally a period of 12 months duration.

5. In this case there is no dispute that a ‘care arrangement’ applied in relation to the children.  The Assessment Act at section 5 provides that a ‘care arrangement’ has the same meaning as in the Family Assistance Act.  A New Tax System (Family Assistance) Act 1999 defines a “care arrangement” to include “a parenting order within the meaning of section 64B of the Family Law Act 1975”. That Act provides at section 64B that a parenting order is an order that deals with any of the matters listed in subsection 64B(2) of the Act which in summary can be captured in paragraph 64B(2)(i) being “any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child”. The Tribunal finds that the Federal Circuit Court orders of 27 March 2015 are a “care arrangement” for the purposes of the Assessment Act.

6. In relation to the children of Mr McLeod and Ms Howard the Federal Circuit Court of Australia orders regarding the care of the children made on 27 March 2015 provide that the  care for the children will be as follows:

   ·The children…..live with the father as follows:

   (a)  Each alternate weekend from 5.00pm Friday until 5.00pm Sunday (or 5.00pm Monday in the event Monday is a public holiday) commencing 1 May 2015;

   (b)  Each intervening weekend from 5.00pm Friday until 5.00pm Saturday commencing Friday 27 March 2015.

   ·The children live with the mother at all other times.

   ·For the purposes of Easter 2015, the children [Child 1] and [Child 2] spend time with the father from the conclusion of school Easter Thursday until 12 noon Easter Saturday.

7. The Tribunal finds that this was the court ordered care arrangement which was in place when Mr McLeod contacted the Child Support Agency on 16 July 2015 advising that the children had been in his 100% care since 10 July 2015.

Mr McLeod’s contentions

1. Mr McLeod asserted when he contacted the Child Support Agency on 16 July 2015 that the children were in his care from 10 July 2015 because Child Protection Services had placed them in his care.  He asserted that the children had been abused by Ms Howard  He provided details of a police report. He stated that Ms Howard would be attending court and that he would be seeking sole custody of the children.

2. He referred to a police intervention order which he asserted ordered that Ms Howard could not have care of the children.  He stated that Ms Howard was on bail for assaulting the children.

3. At the hearing Mr McLeod told the Tribunal that there were two periods of time, 12 weeks in total, when the children were in his 100% care. 

4. The Child Support Agency papers indicate that the first period was from 20 March 2015 to 24 April 2015 and that a second period of time when he had the children in his 100% care was from 10 July 2015 to 19 August 2015.

5. Mr McLeod stated that he voluntarily returned the children on 20 August 2015.

Ms Howard’s contentions

1. Ms Howard asserted from the outset, following Mr McLeod’s contact with the Child Support Agency on 16 July 2015, that Mr McLeod was withholding the children and that she was taking steps to recover her care of the children.

2. Ms Howard provided copies of Federal Court of Australia orders of 27 March 2015 and 20 August 2015 regarding the care of the children. 

3. Ms Howard told the Tribunal that she was wrongfully accused of assaulting the children.  She stated that she was arrested although she was not charged.  She stated that within two weeks the police advised her that they would not be taking any action.

4. Ms Howard stated that as soon as Mr McLeod refused to return the children following his care on the weekend beginning Friday 10 July 2015 she immediately contacted her lawyer.  She stated that this was on Monday 13 July 2015.  She advised that on that same day an application was lodged with the Federal Circuit Court of Australia for recovery of the children.  While she did not recover care of the children until 20 August 2015 when the court proceedings occurred, she had taken all of the steps that she could to have the children returned to her care. 

Tribunal’s consideration

1. The Tribunal finds, this not being in dispute, that the children were in the 100% care of Mr McLeod from 10 July 2015. 

2. Immediately prior to that notification the care of the children was occurring in accordance with the Federal Circuit Court of Australia orders of 27 March 2015 which detailed the care in accordance with paragraph 21 above.

3. The Tribunal finds that the care detailed in those orders was 78% (283 nights) to Ms Howard and 22% (82 nights) to Mr McLeod  The Tribunal acknowledges that there is some ambiguity in the wording of the orders; it not being entirely clear whether the care ordered to commence from 1 May 2015 superseded the care that was taking place from 27 March 2015 or whether the care from 1 May 2015 was in addition to the care ordered from 27 March 2015.  However, the Tribunal’s view is that the care in the “intervening weekend” is intended to be in addition to the care relating to “each alternate weekend”.  Hence, the Tribunal has calculated that the care (as detailed in the orders) for Mr McLeod was as follows: 

   ·two nights (Friday and Saturday) each alternate weekend = 52 nights

   ·Friday nights in the intervening weekends = 26 nights

   ·two nights at Easter 2015 = 2 nights

   ·two other public holidays = 2

   Total = 82 nights = 22.46% = 22%

4. Based on the undisputed evidence of the parties and records of the Child Support Agency the Tribunal finds that on 10 July 2015, the care of the children changed such that Mr McLeod had 100% care of both children and Ms Howard had nil care of the children.  The Tribunal finds that from 10 July 2015 Ms Howard had “reduced care of a child” as defined in section 54 of the Assessment Act which states:

   54  When a person has reduced care of a child

   A person has reduced care of a child if:

   (a)a care arrangement applies in relation to the child; and

   (b)the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

   (c)the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.

1. The Tribunal is satisfied that Ms Howard advised the Child Support Agency - when contacted regarding Mr McLeod’s notification that he had the children in his 100% care - that the recent change in the care arrangement was only temporary and that there was a court order in relation to the care of the children which she was taking steps to enforce.

2. The Tribunal finds that Ms Howard took action to ensure that the care arrangement (the court orders) was complied with.  The Tribunal accepts that as soon as Ms Howard became aware that Mr McLeod was not going to return the children she sought legal advice and her lawyer lodged an application for a recovery order.  The Tribunal is satisfied that court proceedings occurred on 20 August 2015 in relation to the recovery of the children and the future care arrangements regarding them.  Ms Howard provided the orders granted by the Federal Circuit Court of Australia on 20 August 2015.  These orders state that Mr McLeod must “do all things necessary to return the children to the [city] Registry of Federal Circuit Court by no later than 1.00pm on 20 August 2015” and “…in the event that the Father or his agents do not return the children as required….then a recovery order shall immediately issue”.  These orders of 20 August 2015 suspended previous orders and provided that until further order the children live with the Mother.  The Tribunal has had regard to the Child Support Agency’s policy, as set out in chapter 2.2.8 of the Child Support Guide and it accepts that Ms Howard took reasonable action to try to regain the care of her children by contacting her lawyer and lodging court proceedings within a very short period of time.

3. Paragraph 51(1)(d) of the Assessment Act applies to both Mr McLeod and Ms Howard in this situation. This states:

   51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)This section applies if:

   (a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

   (b)a care arrangement applies in relation to the child; and

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)a person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.

   Note:This section does not apply in certain circumstances: see section 53.

   (2)The Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

   (3)The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).

   (4)The second percentage of care is to be:

   (a)for a determination under section 49—0%; or

   (b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

   (5)If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

   (6)The single percentage of care is to be:

   (a)for a determination under section 49 – 0%; or

   (b)for a determination under section 50 – a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 1(d) were not to succeed.

1. I am satisfied that subsection (1) above applies to Ms Howard in that:

   ·a parenting order applies to the children; and

   ·the actual care of the children does not comply with the extent of the care detailed in the parenting order; and

   ·Ms Howard (being the person with reduced care of the children) has taken reasonable action to ensure that the parenting order is complied with.

2. Subsections (2), (3) and (4) of section 51 require that two percentages of care be determined in relation to Ms Howard and Mr McLeod.

3. The first determination under subsection 51(3) relates to the percentage of care that corresponds with the extent of care under the parenting order.  I find that, in this case, this is 78% care to Ms Howard and 22% care to Mr McLeod.

4. The second determination under subsection 51(4) relates to the percentage of care that the parents would be likely to have if the action taken by Ms Howard to regain care of the children were not to succeed. 

5. The extent of care under the care arrangement and the actual care may be worked out based on the number of nights of care (section 54A).  The Tribunal is satisfied that in this case the number of nights of care appropriately reflects the extent of car under the care arrangement and the actual care of the children.

6. Under subsection 51(4), I find that Ms Howard would have care of the children for nil nights (0%) and Mr McLeod would have care of the children for 365 nights (100%).  The Tribunal is satisfied that this is the actual care that was likely to occur if the action to ensure compliance with the care arrangement (parenting orders) were not to succeed.

7. Section 54C of the Assessment Act sets out how the first and second percentages of care apply.  The first percentage of care applies for an interim period (paragraph 54C(1)(c)).  An “interim period” is defined in subsection 54C(2) and states as follows:

   (2) The interim period for the determination:

   (a)      starts on the application day for the determination; and

   (b)      ends at the end of the earliest of the following days:

   (i)       the day specified by the Registrar;

   (ii)if section 51 applied in relation to the responsible person – the day before the day on which the action referred to in paragraph 51(1) ends;

   (iii)if section 52 applied in relation to the responsible person – the day before the day on which the action referred to in subparagraph 52(1)(d)(ii) ends;

   (iv)if a care arrangement in relation to the child begins to apply on a day after the application day for the determination – the day before the day on which the care arrangement begins to apply

8. The percentage that corresponds to the extent of care determined under section 51 will apply for an interim period no longer than 14 weeks starting from the day that the care changed for the responsible person. If special circumstances exist, the interim period for which the extent of care applies, may be extended to a maximum of 26 weeks. In this case The Tribunal finds that the interim period starts on 10 July 2015 (being the day that the care changed) and ends on 19 August 2015 being the day prior to a new percentage of care as determined by a new court order and a new care determination of 100% care to Ms Howard and nil care to Mr McLeod.

9. The Tribunal is mindful that subsection 51(5) provides that if special circumstances exist in relation to the child, the Registrar may determine a single percentage of care in relation to the responsible person (rather than two percentages of care).  The Tribunal considered that Mr McLeod made allegations of abuse of the children by Ms Howard as the reason why he retained the children in his care from 10 July 2015.  However, Mr McLeod did not provide verifying evidence that the children had been abused or assaulted by Ms Howard  While the Tribunal accepts that there was police involvement in relation to allegations against Ms Howard Mr McLeod has not produced evidence confirming that the allegations were sustained and that abuse of the children by Ms Howard had occurred.  Furthermore, the court orders of 20 August 2015 grant Ms Howard 100% care of the children and restrain the father from communicating with or attempting to communicate with the children or Ms Howard. The Tribunal is satisfied that there are no special circumstances in relation to the children which would appropriately invoke subsection 51(5) in this case.

1. The Tribunal therefore concludes, in agreement with the Objections Officer’s decision of 6 October 2015, that an interim care determination applies based on court ordered care arrangement for the children from 10 July 2015 of 78% care to Ms Howard and 22% care to Mr McLeod

2. The Tribunal notes that a new court ordered care change was made from 20 August 2015.

3. As the Tribunal agrees with the decision of the Objections Officer of 6 October 2016 it is not necessary to consider section 95N of the Registration and Collection Act and determine whether Mr McLeod’s circumstances were special to the extent that they prevented him from applying for review by the Tribunal within 28 days after the notice of the decision was given.

DECISION

The decision under review is affirmed.