Milsom and Child Support Registrar (Child support)

[2018] AATA 1732

Milsom and Child Support Registrar (Child support) [2018] AATA 1732 (8 March 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/MC013166

APPLICANT:  Mr Milsom

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Dordevic

DECISION DATE:  8 March 2018

1. The decision of the tribunal and the reasons for the decision were delivered orally on 8 March 2018.

2. The following paragraphs are the reasons for the tribunal’s decision.

CATCHWORDS
Child Support – Percentages of care – Change to the likely pattern of care – Notification of the change in care not made within a reasonable period of time - Change applies from date of notification - 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)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

Reasons for decision

1. Mr Milsom and [Mrs A] are the parents of [Child 1] (born [date] August 2001). A child support assessment was in place for [Child 1] from 22 October 2002 and from 19 June 2015 [Mrs A] was recorded as having 86% care of [Child 1].

2. On 12 July 2017 [Mrs A] advised the Department of Human Services – Child Support (the Department) that there was a change to the existing care arrangements and requested the care register reflect that she had 96% care of [Child 1] from 28 October 2016. On 17 August 2017 her application was accepted, with the date of effect being 12 July 2017.

3. Mr Milsom objected to the decision and his objection was disallowed on 19 December 2017.

4. Mr Milsom applied for review of that decision to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 20 December 2017.

5. The Department provided the tribunal and Mr Milsom with documents (folios 1 to 82) relevant to the decision. Mr Milsom appeared by conference telephone. [Mrs A] did not elect to be added as a party to the review.

6. The hearing took place on 8 March 2018. Mr Milsom was advised at the conclusion of the hearing there would be a brief adjournment and the tribunal would contact him by conference telephone to deliver its oral decision. The tribunal contacted Mr Milsom at the agreed upon time, but his telephone went unanswered. After attempting to contact Mr Milsom several times with no success the tribunal delivered its oral decision in his absence.

7. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

8. The issue which arises in this case is whether there was a change to [Child 1]’s care arrangements from October 2016.

9. Relevant to this application, section 50 of the Act provides for a new care decision to be made if the parent has had, or is likely to have, a pattern of care during a period as the Registrar considered to be appropriate in the circumstances. The decision-maker’s task is to determine the pattern of care based on the actual care at the time of notification and the likely care thereafter.

10. The tribunal’s task on review is the same. There is a clear temporal element in reviewing care percentage decisions. At first instance, and on review, the questions are the same – what was the pattern of care up until the date of notification and what was likely to occur thereafter? If there is a divergence from what was considered likely to happen, a parent can notify the Department and a new care determination can be made from the date of divergence.

11. It is not in dispute that there are no court orders or parenting plans dictating [Child 1]’s care arrangements. The care record was amended in 2015 to reflect a verbal agreement between the parents whereby Mr Milsom cares for [Child 1] one night per week (usually Tuesdays), though this is flexible and does change on occasion.

12. In support of her assertion that there was a change to the care arrangement, [Mrs A] provided a handwritten note to the Department that indicated that Mr Milsom provided care on the following occasions:

    ·28 October  2016;

    ·21 and 22 November 2016;

    ·3 and 25 December 2016;

    ·7 February 2017;

    ·21 and 28 March 2017;

    ·3 April 2017;

    ·4 and 26 May 2017; and

    ·20 June 2017.

13. Mr Milsom was advised of [Mrs A]’s application on 17 July 2017. The departmental record indicates that he stated that he could not recall when he last had care of [Child 1], but thought the care arrangement was once a fortnight. When asked at hearing why he made such a statement Mr Milsom stated that he disputed the Department’s record of the discussion, but if he did in fact make these statements, they were made in error. He noted that since that conversation he has consistently stated that there was no change to the care arrangement. 

14. The Departmental record indicates that on 23 August 2017 Mr Milsom advised that [Mrs A] has made it “impossible” for him to see [Child 1] and she is actually withholding care. He went on to state that there has been no change to the care arrangements, though [Mrs A] did withhold care on occasion. At hearing Mr Milsom explained that what he actually meant was that [Child 1] was often busy either working in [a certain role] or caring for her younger siblings at the behest of her mother. His statement merely reflected his frustration with [Child 1] working and care having to be rescheduled. He stated that his statements as recorded by the Department were a bit “drastic” and he remained adamant that notwithstanding [Child 1]’s work and babysitting commitments the level of care of one night per week is maintained as he simply works around [Child 1]’s schedule. 

15. On 4 September 2017 Mr Milsom advised the Department that he would provide evidence of [Child 1] being in his care on 18 July, 5 May, 6 April, and 21 and 28 March 2017. At hearing Mr Milsom stated that he chose to provide only one text message as to require him to provide more was unfair given their personal nature and would place [Child 1] at risk of verbal abuse from [Mrs A] if they were to be exchanged. He went on to speak more generally about the bias and unfairness of this case; especially that the Department accepted a handwritten note from [Mrs A] and not his statements to the contrary.

16. As stated above, there is a temporal element when determining care. The tribunal is satisfied there is sufficient evidence to suggest there was a change to the pattern of care, that is, that [Child 1] was no longer in her father’s care on a weekly basis. This conclusion is reached on the basis of Mr Milsom’s initial statements to the Department made on 17 July 2017 and 23 August 2017; the tribunal is of the view that these contemporaneous statements made by Mr Milsom are to be preferred over his subsequent statements that care has remained unchanged. Furthermore, Mr Milsom has stated that he has text messages to reflect that he had five nights of care of [Child 1] during the period 21 March to 18 July 2017, which largely aligns with [Mrs A]’s assertions that there was a change and reduction to Mr Milsom’s care.

17. Thus, the tribunal is satisfied that [Mrs A] had 96% care of [Child 1] from 28 October 2016. 

18. Therefore, the tribunal concludes that [Child 1]’s actual care did not comply with the care determination in place since 28 October 2016. The tribunal finds that since that time [Mrs A] had at least 96% care.

19. The tribunal next considered the date of effect of the change of care, having regard to the Child Support Guide (the Guide) which is the policy guide used by the Department to interpret and apply the law. The Guide states at 2.2.3 that a reasonable period of time in which to notify a change to the care arrangements is within 28 days of the change to the pattern of care. The tribunal is not bound to apply this policy but will generally do so unless the policy is inconsistent with the law or there are cogent reasons for not doing so: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.

20. The tribunal finds that [Mrs A] did not notify the Department of the change to the pattern of care within a period that is reasonable in the circumstances. Therefore, this care determination takes effect from 12 July 2017, the date on which [Mrs A] notified the Department of the care change.

DECISION

The decision under review is affirmed.