Medwin and Shipway (Child support)

[2021] AATA 5206

Medwin and Shipway (Child support) [2021] AATA 5206 (6 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022034

APPLICANT:  Mr Medwin

OTHER PARTIES:  Child Support Registrar

Ms Shipway

TRIBUNAL:Member J Thomson

DECISION DATE:  06 December 2021

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court orders not complied with – whether reasonable action taken by parent with reduced care – interim period applied for 14 weeks – decision under review affirmed

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 Medwin and Ms Shipway are the parents of [Child 1], born 2009.

2. Mr Medwin seeks review of an objection decision made by the Child Support Agency (the Agency) on 9 July 2021. This decision disallowed Mr Medwin’s objection to an earlier Agency decision dated 2 March 2021 to record an interim care determination for [Child 1] of 50% to Mr Medwin and 50% to Ms Shipway for the period 5 April 2020 to 11 July 2020, and 100% to Ms Shipway and 0% to Mr Medwin from 12 July 2020.

3. The Tribunal heard the matter on 21 October 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency (Exhibit 1), and documentation provided by Mr Medwin (Exhibit A).

ISSUES

1. The issue which arises in this case is the objections officer’s determination of a 14 week interim care period from 5 April 2020 to 11 July 2020. At hearing Mr Medwin submitted a 26-week interim period should apply because of Ms Shipway’s failure to take reasonable mediation action following the change in care for [Child 1] on 5 April 2020.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1 and A before the Tribunal.

2. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same, what happened up until the date of notification and what was likely to happen thereafter?

3. Subsection 51(1) of the Act applies, relevantly, 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 is taking reasonable action to ensure that the care arrangement is complied with.

4. Subsection 51(2) of the Act requires the Registrar to determine two percentages of care in relation to the responsible person. The first percentage (pursuant to subsection 51(3) of the Act) 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). The second percentage (pursuant to subsection 51(4) of the Act 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 51(1)(d) were not to succeed.

5. Section 53A of the Act defines the meaning and extent of the interim care periods referred to above, relevant to the date of care arrangement entered into between the parents. Subsection 53A(3) provides, relevantly, that if:

   (a)  a person:

   (i) initiates and all participates in family dispute resolution; or

   (ii) this participates in family dispute resolution that was initiated by the person referred to in paragraph 51(1)(d) who has reduced care of the child; and

   (b)  in relation to determining whether an interim period begins on the change of care day for the person – the person takes an action referred to in paragraph (a) within a reasonable period of that day.

6. At the hearing, both parents acknowledged and agreed that a change in the pattern of care for [Child 1] occurred on 5 April 2020 when Ms Shipway withheld care of [Child 1] following her adverse reaction to her flu vaccination.

7. Both parents acknowledged and agreed that Mr Medwin was due to have his regular court ordered care pursuant to the terms of court orders made in the Federal Circuit Court of Australia, Brisbane [in] July 2013 (the Court Orders), commencing after school on 5 April 2020, which happened to coincide with the commencement of the Easter school holidays.

8. It was also acknowledged and agreed by both parents at the hearing that prior to the change in care on 5 April 2020, the parents had been following the Court ordered care pattern of care for [Child 1], and it was accepted that the pattern of care equated to 50% shared equal care by the parents.

9. Mr Medwin’s evidence at hearing was that he was sceptical of the basis upon which Ms Shipway withheld care of [Child 1] on 5 April 2020; this was reflected in text messages exchanged between the parents at this time, (see Mr Medwin’s submissions forwarded to the Agency on 27 January 2021 at pages 29 to 38 of Exhibit 1).  His efforts to achieve a restoration of the Court Ordered care pattern have, to date, been unsuccessful, and the matter is presently listed for mention before the Federal Circuit Court early in 2022.

10. Mr Medwin’s summary of events in his submissions of 27 January 2021 at pages 29 to 38 of Exhibit 1 referred to above contain the substance of the text message exchanges between the parents and [Child 1] during the period following the change in care date, 5 April 2020 until 21 November 2020, during which Mr Medwin attempted to achieve a restoration of the Court ordered care arrangements and initiated an unsuccessful mediation process with [Agency 1]. The text message exchanges also reflect [Child 1’s] reluctance, as an 11-year-old adolescent at the time, to return to the Court ordered care arrangements and spend time with her father.

11. Mr Medwin’s case at the hearing was that Ms Shipway, as the parent with the increased care following the change in care on 5 April 2020, was required by subsection 53(3) of the Act to take reasonable action to participate in family dispute resolution within a reasonable period of the change in care date – 5 April 2020. He submitted that as Ms Shipway had failed to do so, an interim period of 26 weeks starting on the change of care date should apply.

12. Ms Shipway acknowledged at the hearing that although she had not initiated any family dispute resolution action following the change in care on 5 April 2020, she had responded to calls from [Agency 1’s] family dispute resolution practitioner, [Ms A], regarding her participation in a family dispute resolution process initiated by Mr Medwin within a reasonable time, and had taken all such action as was reasonably required of her to comply with the requirement that she participate in such a process.

13. Mr Medwin’s summary of events post change in care on 5 April 2020 referred to above records his efforts to engage Ms Shipway in discussions with a view to achieving some form of mediated restoration of his court ordered care between 5 April and 16 October 2020. His summary at page 37 of Exhibit 1 records him contacting [Agency 1] on 22 September 2020, completing the necessary paperwork initiating the [Agency 1] mediation process on 25 September 2020 and securing an initial ‘entry’ interview with the mediation service on 16 October 2020. His summary records [Agency 1] informing him on 30 October 2020 that Ms Shipway had booked an initial meeting with the mediation service and been given an estimate that the likely date for such a meeting would be towards the end of November 2020.

14. Evidence provided by Mr Medwin to the Agency in the form of a certificate issued by the appointed [Agency 1] practitioner, [Ms A], dated 26 November 2020 at page 45 of Exhibit 1 pursuant to section 60i of the Family Law Act 1975 confirms that Mr Medwin and Ms Shipway had begun attending family dispute resolution with [Agency 1], but after considering the matters mentioned in subsection 25(2) of the Family Law Act 1975, the [Agency 1] practitioner decided that it would not be appropriate to continue the family dispute resolution process, an outcome not surprising having regard to the contents of the email/text messages passing between the parents and [Child 1] in the months following the change in care event on 5 April 2020.

15. Mr Medwin gave evidence that following the issue of the certificate referred to in the preceding paragraph, he instructed his solicitors to commence the contravention and enforcement of the Court ordered care proceedings in the Federal Circuit Court in January 2021 (see pages 39 to 57 of Exhibit 1).

16. The Tribunal is satisfied Ms Shipway has complied with the requirements of section 53A as the parent having increased care by participating in the family dispute resolution process initiated by Mr Medwin in September 2020, and that, having regard to all the circumstances, particularly the circumstances reflected in Mr Medwin’s summary of events following the change in care event on 5 April 2020 set out above, Ms Shipway has acted within a reasonable period of that day.

17. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal therefore affirms that decision.

DECISION

The decision under review is affirmed.