Mendez and Morton (Child support)

[2019] AATA 3844

Mendez and Morton (Child support) [2019] AATA 3844 (29 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC015980

APPLICANT:  Ms Mendez

OTHER PARTIES:  Mr Morton

Child Support Registrar

TRIBUNAL:Member P Jensen

DECISION DATE:  29 July 2019

DECISION:

The decision under review is set aside and, in substitution, Ms Mendez is recorded as providing 84% care and Mr Morton is recorded as providing 16% care with effect from 7 September 2018, and Ms Mendez is recorded as providing 100% care and Mr Morton is recorded as providing 0% care with effect from 8 March 2019.

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 – interpretation of section 53 of the Assessment Act – reasonable action taken – interim period applied – 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

1. All of the provisions that I refer to in these Reasons for Decision are contained in the Child Support (Assessment) Act 1989, unless stated otherwise.

Introduction

1. Ms Mendez and Mr Morton are the parents of [Child 1] who was born in 2006. A child support case was registered with the Department of Human Services – Child Support (“the CSA”), as it is now called, in 2006. Court orders were issued concerning the parents’ care of [Child 1]. From 2014, Ms Mendez was recorded as providing 84% care and Mr Morton was recorded as providing 16% care pursuant to those Court orders.

2. On 27 November 2018, Ms Mendez reported a change in care. On 6 December 2018 an original decision-maker decided to record Ms Mendez as providing 100% care with effect from 27 November 2018, and decided to record Mr Morton as providing 0% care with effect from 1 September 2018.

3. Mr Morton promptly objected to that decision. On 12 February 2019 an objections officer allowed his objection and made the following decision:

   We [sic] have made the decision to accept that [Mr Morton] has 16% care and [Ms Mendez] has 84% care of [Child 1] as ordered from 1 September 2018. This applies for the interim period of 27 November 2018 to 2 March 2019.

4. Ms Mendez promptly applied to the Tribunal for further review. I heard the matter on 28 June 2019. Ms Mendez and Mr Morton participated in the hearing by conference phone. After the hearing, at my request, the Registrar provided written submissions in respect of the correct interpretation of paragraph 53(1)(c). In fairness to the parents, I also provided them with an opportunity to provide written submissions on that narrow issue. Mr Morton provided general submissions and further evidence which could have been provided during the hearing. After having regard to section 30 of the Child Support Review Directions, I decided to not accept his post-hearing submissions and evidence.

Change in care

1. There is no dispute that Mr Morton provided care on the nights of 24 and 25 August 2018 pursuant to the Court orders, and in the ordinary course he would have provided care again on the nights of 7 and 8 September 2018 pursuant to the Court orders. There is no dispute that he did not provide care on 7 September 2018 and he has not subsequently provided any care. The change in care occurred on 7 September 2018.

2. The making of new care decisions normally involves the revocation of the existing care determinations and the making of new care determinations. Care determinations can be revoked pursuant to section 54F, 54G or 54H. One of the requirements of section 54F is that 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G. It is worth noting that care determinations are rarely revoked pursuant to section 54H, which effectively grants a discretion to make a new care decision even though the change in care will not affect the rate of child support payable.

Section 54G

1. Subsection 54G(1) states:

   If:

   (a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and

   (b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child,[1] despite another responsible person for the child making the child available to the first responsible person; and

   (c)a determination of the other responsible person's percentage of care for the child has been made under section 50; and

(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

theRegistrar must revoke both determinations.

Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

[1]Less than regular care is less than 14% care: section 5.

1. It is sufficient to focus on paragraph 54G(1)(d). The change in care occurred on 7 September 2018. Ms Mendez informed the CSA of the change in care on 27 November 2018. When asked why she had not informed the CSA of the change in care sooner, she replied that [Child 1] had not wanted to go into Mr Morton’s care, but she had been hopeful, at the time, that [Child 1] would change his mind. However, later in the hearing, when asked whether she would have allowed [Child 1] to go into Mr Morton’s care if he had changed his mind, she said that after a telephone conversation with Mr Morton’s mother on 10 October 2018, she would not have allowed that to occur.

2. From time to time the CSA issued assessment notices to the parents that included the following:

   To ensure that your child assessment reflects your current situation, you need to tell CSA within 14 days of any changes in your circumstances, such as care arrangements, …

3. I find that Ms Mendez did not notify the Registrar (which effectively means the CSA) or the Secretary (which effectively means Centrelink) of the change in care within a period that was reasonable in the circumstances. Paragraph 54G(1)(d) is not satisfied and therefore section 54G is not satisfied.

Section 54F

1. Subsections 54F(1) and (2) state:

   (1)The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care) for a child made under section 49 or 50 if: 

   (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's existing percentage of care for the child; and 

   (b)the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and 

   (c)section 54G does not apply; and 

   (d)subsection (2) applies in relation to the individual. 

   Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b)

   (2)This subsection applies in relation to a responsible person if: 

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or 

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or 

   (c)all of the following apply: 

   (i)section 51 did apply in relation to the responsible person; 

   (ii)the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended; 

   (iii)an interim period does not currently apply in relation to the earlier determination; 

   (iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision. 

   Note: For when section 51 does not apply, see section 53.

2. The Registrar was notified that the parents’ care of [Child 1] did not correspond with the parents’ existing care determinations. Paragraph 54F(1)(a) is satisfied.

3. New care determinations are made pursuant to sections 49 and 50. The term “cost percentage” is defined in section 55C. 100% care, 84% care, 16% care and 0% care all have different cost percentages. Changing the parents’ percentages of care pursuant to sections 49 and 50 to reflect the care that was actually taking place would change the parents’ cost percentages. Paragraph 54F(1)(b) is satisfied.

4. Section 54G does not apply. Paragraph 54F(1)(c) is satisfied.

5. Section 51 and paragraph 53(1)(c) are discussed in detail below. It is sufficient for present purposes to state that when the change in care occurred, paragraph 54F(2)(a) was satisfied, and therefore paragraph 54F(1)(d) is satisfied.

6. The requirements of section 54F are satisfied. The existing care determinations that recorded Ms Mendez as providing 84% care and Mr Morton as providing 16% care from 2014 must be revoked, and I revoke those determinations.

Sections 49 and 50

1. New care determinations must be made pursuant to sections 49 and 50.

2. Paragraph 49(1)(b) relevantly provides that section 49 applies if a parent’s existing care determination is revoked and the parent has had, or is likely to have, no pattern of care. Section 49 applies to Mr Morton, and his percentage of care must be 0% unless section 51 applies to him: subsection 49(3).

3. Paragraph 50(1)(b) relevantly provides that section 50 applies if a parent’s existing care determination is revoked and the parent has had, or is likely to have a pattern of care. Section 50 applies to Ms Mendez’ full-time care. Her percentage of care must be 100% unless section 51 applies to her: subsection 50(4).

Section 51

1. Section 51 provides for what are commonly called interim care determinations, or interim determinations. It relevantly states:

   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 is taking reasonable action to ensure that the care arrangement is complied with. 

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

   (2)Subject to subsection (5), 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 …

1. Sections 49 and 50 required the determination of new care percentages for the parents. Paragraph 51(1)(a) is satisfied.

2. The term “care arrangement” is defined in section 5. It includes Court orders concerning the care of a child. Court orders apply in relation to the care of [Child 1]. Paragraph 51(1)(b) is satisfied.

3. Following the change in care, neither parent’s care of [Child 1] complied with the Court orders. Paragraph 51(1)(c) is satisfied.

4. Mr Morton provided evidence to the CSA concerning the action he took, and is continuing to take, to ensure that the parents comply with the Court orders. Ms Mendez acknowledged that at all relevant times, Mr Morton has been taking reasonable action to ensure that the parents comply with the Court orders. In my opinion, that acknowledgement was properly made. Paragraph 51(1)(d) is satisfied.

5. Section 51 therefore applies, subject to section 53.

Section 53

1. Section 53 states:

   Section 51 does not apply in certain circumstances

   (1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if: 

   (a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination -- the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or 

   (b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination -- the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or 

   (c)the Registrar has revoked the determination under section 54F or 54H.

   (2)Section 51 also does not apply in relation to a responsible person in relation to whom a determination (a later determination) has been made under section 49 or 50 if: 

   (a)an earlier determination determined the responsible person's percentage of care for a child under that section for the purposes of subsections 51(3) and (4); and 

   (b)the later determination is made after the end of the maximum interim period for the earlier determination; and 

   (c)the later determination relates to the same care arrangement as the earlier determination.

2. Paragraph 53(1)(a) concerns the initial care determinations that are made when a child support case is registered. Paragraph 53(1)(b) concerns the initial care determinations that are made when a relevant dependent child is added to a child support case. Neither paragraph is relevant to the current proceedings.

3. On one interpretation of paragraph 53(1)(c), section 51 does not apply because the determinations recording Ms Mendez as providing 84% care and Mr Morton as providing 16% care have been revoked under section 54F. On that interpretation, section 51 would not be satisfied whenever care determinations were revoked pursuant to section 54F or 54H. As the Registrar noted, such an interpretation would ultimately render the interim care determination provisions largely ineffective.

4. The Registrar submitted that “paragraph 53(1)(c) … prevents the Registrar from making an interim care determination where there has been a revocation of the care percentage that was in effect during the time in which an interim care determination could have been made, but was not.” Reasons were provided in support of that submission, and the following scenario was provided to demonstrate when paragraph 53(1)(c) would preclude the making of section 51 determinations:

   ·    The Registrar makes determinations under section 50, giving 50% care of the child to each parent, which reflects the care arrangement (such as a court order).

   ·    Parent A takes 100% care of the child (this is the change in care).

   ·    Parent A informs the Registrar of the change in care, in accordance with paragraph 54F(1)(a), and the Registrar accordingly makes a determination to revoke the existing percentage of care under section 54F and, following from applications of paragraphs 49(1)(b) and 50(1)(b), determines percentages of care under sections 49 and 50 (the first determination).

   ·    Section 51 may apply to the determination of care under section 49 or 50 but (in this example) does not because Parent B did not inform the Registrar of action that would satisfy paragraph 51(1)(d) (about reasonable action to ensure the care arrangement is complied with).

   ·    Another (subsequent) change in care happens such that Parent A has 80% care of the child and Parent B has 20%.

   ·    Parent A informs the Registrar of the change in care, in accordance with paragraph 54F(1)(a), and the Registrar accordingly makes a determination to revoke the existing percentages of care under section 54F (the first determination) and, following from the application of paragraphs 49(1)(b) and 50(1)(b), determines percentages of care under sections 49 and 50 (subsequent determination).

   ·    Parent B informs the Registrar they consider the first determination should have been an interim care determination (on the basis section 51 should have been applied).

   ·    The Registrar is precluded by paragraph 53(1)(c) from applying section 51 to make an interim determination in relation to the first determination because that determination has been revoked under section 54F.

5. With respect, there are difficulties with those submissions. The facts in the fourth dot point could more accurately be stated as follows: The Registrar found that Parent B was not taking reasonable action to ensure that the care arrangement was being complied with, and therefore decided to not make an interim determination. The facts in the seventh dot point could more accurately be stated as follows: Parent B objected to that decision. On review, in the ordinary course, an objections officer would allow Parent B’s objection and make an interim determination. I do not accept that paragraph 53(1)(c) effectively prevents a person from seeking (meaningful) review of an incorrect original care decision in the circumstances described by the Registrar. More generally, I do not accept the Registrar’s submissions concerning the interpretation of paragraph 53(1)(c).

6. I compared the current legislation with the legislation prior to the most recent amendments that were introduced by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018, and I considered the Explanatory Memorandum in respect of the amendments. It did not assist.

7. I will use a different example to explain what I consider to be the correct interpretation of paragraph 53(1)(c). For simplicity, I will only consider the legislation as it applies to one parent. In the example, the Registrar is promptly notified of all changes in care.

• Parent A provides 50% care pursuant to Court orders and the Registrar records Parent A as providing that percentage of care (“the first care determination”).

• Parent A starts providing 100% care in contravention of the Court orders (“the first change in care”). The Registrar revokes the first care determination and makes an interim determination, which requires two percentages of care. The first is the percentage of care that should have been provided pursuant to the Court orders and the second is the percentage of care that is being provided. Parent A is recorded as providing the first percentage of care, i.e. 50%, during what is called the interim period, and the second percentage of care, i.e. 100%, thereafter.

• Parent A starts providing 80% care (“the second change in care”). The Registrar suspends the interim determination and makes a determination to record Parent A as providing 80% care.

• Parent A starts providing 60% care (“the third change in care”). The Registrar revokes the 80% care determination pursuant to paragraph 54F, and makes a determination to record Parent A as providing 60% care. The Registrar does not make another interim determination pursuant to section 51 because paragraph 53(1)(c) is satisfied. Crucially, the reference in paragraph 53(1)(c) to a revocation under section 54F is a reference to a revocation that occurs while an earlier determination is suspended.

The first change in care in the example

1. In my example, assume that when the first change in care occurs, paragraphs 54F(1)(a) to (d) are satisfied. The first care determination must be revoked. Assume that paragraphs 51(1)(a) to (d) are satisfied, and so, subject to subsection 51(5), the Registrar must make an interim determination and determine the care that should have been provided and the care that is actually being provided: subsections 51(3) and 51(4) respectively. In my example, assume subsection 51(5) is not satisfied. The interim determination applies pursuant to section 54C, which states:

   Days to which the percentage of care applies if 2 percentages of care apply under section 51 in relation to a responsible person

   (1)This section applies if: 

   (a)a determination of a responsible person's percentage of care for a child is made under section 49 or 50; and 

   (b)2 percentages of care were determined for the purposes of subsection 51(2) in relation to the responsible person; and 

   (c)the determination is not suspended under subsection 54FA(2) or 54HA(2). 

   (2)Until the determination is revoked or suspended under Subdivision C of this Division: 

   (a)the percentage of care referred to in subsection 51(3) applies to each day in a child support period that occurs in the interim period for the determination; and 

   (b)the percentage of care referred to in subsection 51(4) applies to each day in a child support period that does not occur in the interim period for the determination.

2. Section 53A states when an interim period starts and ends. It is a lengthy section and I will not reproduce it here.

3. Section 5 states:

   "maximum interim period" for a determination under section 49 or 50 of a responsible person's percentage of care for a child is the period beginning on the change of care day for the responsible person and ending at: 

   (a)for a determination relating to a court order--the later of: 

   (i)the end of the period of 52 weeks starting on the day the court order first takes effect; or 

   (ii)the end of the period of 26 weeks starting on the change of care day; or 

   (b)for a determination relating to a written agreement or parenting plan--the end of the period of 14 weeks starting on the change of care day.

4. The registrar revokes the first care determination and makes an interim determination whereby Parent A is recorded as providing 50% care during the interim period and 100% care thereafter.

The second change in care in the example

1. When the second change in care occurs, section 54G is not satisfied. Paragraphs 54F(1)(a) to (c) are satisfied. The question then arises as to whether paragraph 54F(1)(d) is satisfied, which occurs if paragraph 54F(2)(a), (b) or (c) is satisfied.

2. Section 51 did apply, so paragraph 54F(2)(a) is not satisfied.

3. The maximum interim period in respect of the interim determination has not ended, so paragraph 54F(2)(b) is not satisfied.

4. As noted earlier, paragraph 54F(2)(c) states:

   all of the following apply: 

   (i)section 51 did apply in relation to the responsible person; 

   (ii)the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended; 

   (iii)an interim period does not currently apply in relation to the earlier determination; 

   (iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision. 

5. Section 51 did apply. The maximum interim period for the interim determination, which was an earlier determination, has not ended. The interim period does not currently apply in relation to the interim determination. Subparagraphs 54F(2)(c)(i), (ii) and (iii) are satisfied.

6. In subparagraph 54F(2)(c)(iv), the reference to “the determination referred to in subsection (1)” is, in my example, the interim determination. It was not made during the suspension of an earlier determination. Subparagraph 54F(2)(c)(iv) is not satisfied, and therefore the interim determination cannot be revoked pursuant to section 54F.

7. Section 54H is similar to 54F, and paragraph 54H(2)(c) is identical to paragraph 54F(2)(c). The interim determination cannot be revoked pursuant to section 54H.

8. Subsections 54FA(1) and (2) state:

   Suspension of determination before the end of the maximum interim period if there is a change to the responsible person's cost percentage

   (1)This section applies if: 

   (a)a determination (the earlier determination) of a responsible person's percentage of care (the actual percentage ) for a child has been made under section 49 or 50 for the purposes of subsection 51(4); and 

   (b)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person's actual percentage for the child; and 

   (c)the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and 

   (d)sections 54F and 54G do not apply; and 

   (e)an interim period for the earlier determination does not currently apply; and 

   (f)the maximum interim period for the earlier determination has not ended. 

   Suspending the determination 

   (2)The Registrar must suspend the earlier determination. The suspension takes effect at the end of the day before the Registrar or Secretary is so notified or otherwise becomes aware. 

   Note: The Registrar must make another determination under section 49 or 50 when the earlier determination is suspended: see paragraph 49(1)(b) or 50(1)(b).

9. An interim determination has been made pursuant to section 51. The Registrar was notified of the second change in care. Recording Parent A as providing 80% care rather than 100% care would change the cost percentage: section 55C. Paragraphs 54F(1)(a), (b) and (c) are satisfied.

10. Section 54G does not apply. Section 54F does not apply, for the reasons just stated. Paragraph 54FA(1)(d) is satisfied.

11. The interim period does not currently apply and the maximum interim period has not ended. Paragraphs 54FA(1)(e) and (f) are satisfied.

12. Subsection 54FA(1) is satisfied and the Registrar must suspend the earlier determination, i.e. the interim determination, and make a new care determination. The Registrar records Parent A as providing 80% care.

The third change in care in the example

1. When the third change in care occurs, section 54G is not satisfied. The question then arises as to whether the existing determination can be revoked under section 54F. The difference this time is that subparagraph 54F(2)(c)(iv) is satisfied; the 80% care determination was made while the earlier determination, i.e. the interim determination, was suspended. All of the requirements of section 54F are satisfied in respect of the third change in care. The Registrar is required to revoke the 80% care determination and make a new care determination pursuant to section 50.

2. Subsection 54FA(3), which I have not reproduced here, provides for the lifting of the suspension of a determination. In my example, the requirements of that section are not satisfied in respect of the interim determination; it remains suspended.

3. When making the new care determination, the percentage of care for Parent A must be 60% unless section 51 applies. Section 53 states that section 51 does not apply in certain circumstances. In particular, section 51 does not apply if “the Registrar has revoked the determination under section 54F or 54H.” In my opinion, that is a reference to a revocation under section 54F or 54H that occurs while an earlier determination is suspended. On that view, paragraph 53(1)(c) prevents the making of another interim determination during the maximum interim period of an existing albeit suspended interim determination. The suspension of the existing interim determination can be lifted during that maximum interim period: section 53A. That interpretation of paragraph 53(1)(c) appropriately confines the scope of that provision, thereby allowing interim determinations to be made in the ordinary course when the requirements of section 51 are generally satisfied, but prevents the making of concurrent interim determinations. It consequently promotes the legislative intent that can be gleaned from a consideration of the percentage of care provisions as a whole. It strains the plain language of paragraph 53(1)(c), but not impermissibly so: see generally MacAlister v R (1990) 169 CLR 324.

The current case

1. Paragraph 53(1)(c) is not satisfied in the current case. Section 51 therefore applies in the current case.

Subsection 51(5)

1. I am required to determine two percentages of care for each parent unless subsection 51(5) applies.

2. As noted earlier, Ms Mendez stated that when the change in care occurred, she was supportive of [Child 1] returning to Mr Morton’s care. However, she said she spoke to Mr Morton’s mother on 10 October 2018 and she (Mr Morton’s mother) was concerned about Mr Morton’s welfare and said he was “in a black hole”. Mr Morton acknowledged that the period following the change in care, when [Child 1] remained in Ms Mendez’ full time care and Mr Morton was taking reasonable action to have the Court orders complied with, was a difficult time for him. In the absence of any further evidence on point, I am not persuaded that Mr Morton’s depression, if that is what it was, constituted special circumstances in respect of [Child 1]. Subsection 51(5) is not satisfied.

Subsections 51(2) and 51(4)

1. Ms Mendez’ percentages of care are 84% pursuant to subsection 51(3) and 100% pursuant to subsection 51(4).

2. Mr Morton’s percentages of care are 16% pursuant to subsection 51(3) and 0% pursuant to section 51(4).

3. Section 54C states that the subsection 51(3) percentages of care apply during each day of the interim period and the subsection 51(4) percentages of care apply thereafter. The interim period starts on the change of care day, which was 7 September 2018: section 5 and paragraph 53A(1)(a). Pursuant to item 2 of subsection 53A(1), the interim period ends:

   at the end of:

   (a)the period of 26 weeks starting on the change of care day, unless paragraph (b) applies; or

   (b)the period of 14 weeks starting on the day the person who has increased care of the child began continuously taking reasonable action to participate in family dispute resolution if:

   (i)that 14 week period ends before the end of the 26 week period referred to in paragraph (a); and

   (ii)the person takes that reasonable action throughout that 14 week period.

4. Subsection 53A(3) states:

   When a person takes reasonable action to participate in family dispute resolution

   A person who has increased care of a child takes reasonable action to participate in family dispute resolutionif: 

   (a)the person: 

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

(ii)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. 

1. Shortly after the change in care occurred, Mr Morton initiated mediation through a private mediator, [Mr A], and he also initiated mediation through Family Relationships Australia. The private mediation was scheduled for 26 September 2018. Ms Mendez did not participate in that mediation. At the hearing, she stated at one point that she did not attend because other mediation had been organised. Later she stated that she did not attend because she could not afford the fee; it appears it would have cost her approximately $800. In any event, [Mr A] issued a certificate pursuant to section 60I of the Family Law Act 1975 confirming that Ms Mendez did not participate. On 5 October 2018, Mr Morton sent a text message to Ms Mendez that included the following:

   I have a s60i Certificate [Ms Mendez]. I contacted the family relationships centre last week to advise them that I no longer wished to proceed with mediation with their service at the time. Due to the urgent and critical nature of the situation I had to do everything I could to get new orders a [sic] quickly as possible.

2. If Mr Morton cancelled the Family Relationships Australia mediation “last week”, it was shortly after Ms Mendez did not attend the private mediation. It is understandable that he might have felt frustrated by Ms Mendez’ non-attendance. However, Mr Morton originally took the initiative to arrange mediation, and Ms Mendez could not have reasonably concluded that Mr Morton would refuse to participate in subsequent mediation if she initiated it via Family Relationships Australia. For those reasons, I find that Ms Mendez did not continuously take reasonable action to participate in family dispute resolution during the 14 weeks following the change in care. The interim period is therefore a period of 26 weeks. Mr Morton submitted, in effect, that if there is a discretion to extend the interim period, that discretion should be exercised in his favour. There is no such discretion. The interim period commences on 7 September 2018 and ends on 7 March 2019.

Dates of effect

1. Subsection 54F(3) states:

   The revocation of the determination takes effect at the end of: 

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or 

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and: 

   (i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or 

   (ii)the responsible person's care of the child has reduced--the day before the change of care day.

2. If follows that the revocation of Ms Mendez’ existing care determination takes effect on 26 November 2018 and the revocation of Mr Morton’s existing care determination takes effect on 6 September 2018.

3. The subsection 51(3) percentages of care apply during the interim period and the subsection 51(4) percentages of care apply thereafter: subsection 54C(2). The subsection 51(3) percentages of care apply from 7 September 2018 to 7 March 2019 and the subsection 51(4) percentages of care apply from 8 March 2019.

4. Generally, an existing care determination is revoked with effect from the day before the new care determination takes effect, thereby ensuring that only one care determination applies to a parent in respect of any given day. In Ms Mendez’ case, the previous care determination and the new care determination both apply from 7 September 2018 to 26 November 2018, but since both determinations record Ms Mendez as providing 84% care, it is not necessary to consider that anomaly further.

DECISION

The decision under review is set aside and, in substitution, Ms Mendez is recorded as providing 84% care and Mr Morton is recorded as providing 16% care with effect from 7 September 2018, and Ms Mendez is recorded as providing 100% care and Mr Morton is recorded as providing 0% care with effect from 8 March 2019.