Mollison and Austen (Child support)

[2022] AATA 4999

Mollison and Austen (Child support) [2022] AATA 4999 (7 December 2022)

DECISION AND REASONS FOR DECISION

DIVISION:     Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024533

APPLICANT:  Mr Mollison

OTHER PARTIES:  Ms Austen 

ChildSupport Registrar

TRIBUNAL:  Member J Nalpantidis

DECISION DATE:  7 December 2022

DECISION

The tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Mollison and Ms Austen are the parents of [Child 1] (born January 2014) (the child). This review is about the percentage of care for Mr Mollison and Ms Austen that applies in relation to the administrative assessment of child support for the child.

2.From 14 August 2015 the care reflected in the child support assessment was 86% to Ms Austen and 14% to Mr Mollison. On 1 June 2022, Mr Mollison notified a change in care for the child as 57% for Ms Austen and 43% for Mr Mollison from 25 February 2022, notified on 1 June 2022.

3.On 23 June 2022, Services Australia – Child Support (the Agency) had recorded the care determination for the child as Ms Austen having 57% care of the child and Mr Mollison 43% from 25 February 2022 (the original decision).

4.On 27 June 2022, Ms Austen objected to the original decision on the basis that there is no change to care level. Ms Austen advised Mr Mollison does not have the child more than two nights a fortnight, and any additional care level that Mr Mollison has was only due to catch-up in relation to past care missed by Mr Mollison and he was only making up care time that he has missed. Ms Austen also advised that Mr Mollison is aware that for any care change to happen it has to be via court decision and he has to have a permanent residence at [Town 1] as per the court orders.

5.On 29 June 2022 Mr Mollison responded to Ms Austen’s objection and provided additional information to the Agency. Mr Mollison advised that Ms Austen’s statement was not correct, he is living at [Town 1], and currently living in [rental accommodation] until he finds adequate housing in [Town 1]. Mr Mollison advised the whole purpose of him moving to [Town 1] was to increase his care, which he has done.

6.On 24 August 2022, an Agency objections officer allowed Ms Austen’s objection. The effect of the objection decision was that the care determination for the child was recorded as 14% to Mr Mollison and 86% to Ms Austen from 25 February 2022 notified on 1 June 2022.

7.On 26 August 2022 Mr Mollison applied to this tribunal for review of the objection decision.

8.The tribunal conducted a hearing on 28 October 2022. Mr Mollison participated at the hearing by telephone via Microsoft Teams audio and provided oral evidence on affirmation and made oral submissions at the hearing. Ms Austen was also to participate by telephone via Microsoft Teams audio and did not respond to the tribunal’s call at the scheduled hearing time. The tribunal proceeded with the hearing in Ms Austen’s absence. The Registrar did not participate in the hearing. The tribunal had before it documents provided by the Registrar numbered 1 to 202 which had been copied to Mr Mollison and Ms Austen before the hearing.

9.        Mr Mollison told the tribunal he did not receive the hearing papers from the Agency. The tribunal deferred the matter and sent Mr Mollison a copy of the hearing papers provided by the Agency via email. Mr Mollison told the tribunal he would provide further evidence within the next two weeks.

10.Mr Mollison provided further information on 5 December 2022 (A1 to A26) and provided further information on 6 December 2022 which was duplicate of the information he provided on 5 December 2022. A copy of this information was provided to [Ms A] and the Registrar).

11.On 7 December 2022 the tribunal made its determination.

ISSUES

12.The issues for the tribunal to determine are:

a)What were the actual care arrangements in relation to the care of the child in the relevant care period?

b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

CONSIDERATION

13.The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).

14.Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. 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. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period. The percentage determined must be the percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person has had, or is likely to have, during the relevant care period.

15.The pattern can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

16.In this case, there were court orders regarding the care of the child, which provide Mr Mollison has care of the child every second weekend and once he moves to [Town 1] his care would increase. Mr Mollison contends his actual pattern of care of the child is more than that outlined in the court orders. Accordingly, the tribunal considered the parents’ percentages of care must be based on the pattern of actual care which was taking place.

17.The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflecting the actual care that a person has, or is likely to have, during the care period. In this case the tribunal is satisfied that a 12-month care period is appropriate. The tribunal notes that although the tribunal has decided that a 12-month care period is appropriate, this will continue to apply until a further change of care is notified (which may be before or after a 12-month period has elapsed).

18.Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

19.There is no contention by the parties that nights were an unsuitable measure of the care of the child and the tribunal finds that nights are an appropriate method of ascertaining the actual care in this case.

20.For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”1 the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

Mr Mollison’s evidence and contentions

21.Mr Mollison told the tribunal he called the Agency because he had more contact with the child. As Ms Austen did not respond by the due date, the Agency accepted his evidence of increased care and changed the care percentage as he had advised. After the decision was made Ms Austen contacted the Agency and they took her verbal evidence rather than his evidence and changed the care determination.

22.Mr Mollison told the tribunal he provided dates of texts and a text stating they agreed he would have care for five days out of 14, that is, five days per fortnight. Mr Mollison acknowledged court orders were in place that provides for him to have care every second weekend and once he moved to [Town 1] his care would increase to five days per fortnight. He told the tribunal that he tried to go to court in relation to increasing his care of the child and a mediation was arranged but Ms Austen did not turn up. Nevertheless, he increased his care of the child to more than two days per fortnight. Mr Mollison told the tribunal his work roster impacted his ability to have care of the child, but his roster changed so as he could have care of the child for five days per fortnight. He told the tribunal he started this process approximately two months ago and from February 2022 to September 2022 his care had been increasing. He said that his work roster involved him

1 Paragraph 50(1)(a) of the Assessment Act

working away for 14 days and being back home for five days and he had care of the child for the five days he was home. Mr Mollison told the tribunal in the last month his roster changed to seven days being away and seven days at home, and he has care of the child for the seven days he is back home.

23.Mr Mollison told the tribunal he contacted Ms Austen by letter through his lawyer and she did not respond. He told the tribunal he has discussed his circumstances with his lawyer, including his care arrangements, court orders and so forth. He submitted he needs to have more savings in the bank to afford court action. He said taking court action is expensive but it is “tracking towards there”.

24.Mr Mollison contends what Ms Austen told the tribunal is incorrect. He has never missed any care weekends with the child and if he did miss a weekend, he never had to make up the time. He told the tribunal he has lived in [Town 1] from November 2021 but it was hard to find rental accommodation and he stayed in [a specified rental accommodation] for five days at a time, being the time off work per his work roster. He has had a residential address in the last five months and can provide details of this to the tribunal, including where he stayed, the dates and what he paid for his accommodation. Mr Mollison told the tribunal he would text Ms Austen when he picked up and dropped off the child and these texts show that Ms Austen agreed to him having five days care per fortnight but then she stopped texting about these things. Mr Mollison referred to text messages between the parties which he contends support he had care of the child for five nights per fortnight.

25.Mr Mollison provided further information to the tribunal on 5 December 2022 and 6 December 2022, including text messages which had been included in the Agency material before ethe tribunal with handwritten notations identifying when he had care of the child, check-in, and check-out dates for accommodation in [Town 1] from 30 March 2022 to 3 April 2022 and 6 June 2022 to 9 June 2022. He also provided tax receipts for accommodation in [Town 1] covering the periods 14 February 2022 to 16 February 2022, 6 May 2022 to 8 May 2022, and 5 June 2022. He provided a document confirming he had been approved for rental accommodation in [a local location] and paid rent from 5 July 2022 to 7 December 2022. Mr Mollison provided a Certificate for a Family Dispute Resolution Practitioner dated 18 August 2022 in relation to a Parenting Plan stating the parties did not attend mediation.

Ms Austen’s evidence

26.The objections officer’s decision listed the evidence supplied by Ms Austen was as follows:

·Ms Austen’s self-statement regarding care stating the following:

·Mr Mollison has no permanent residency in [Town 1] and still travels 10 hours from [Town 2] to [Town 1] for his care visit.

·Ms Austen stated that the extra time Mr Mollison had in February was to make up for days Mr Mollison had previously missed due to work commitments.

·A one-page court document (witnessed, signed, and dated [in] July 2017). The consent order indicates that:

Upon Father relocating on a permanent basis to [Town 1], the parties shall within (90) days attend at FDR to discuss and review these Consent Orders with the intention that if it is agreed it is in [Child 1’s] best interests, to increase the time [Child 1] spends with her Father

27.The objections officer stated:

During our discussions with Ms Austen, she stated that her care for [Child 1] has not changed - Mr Mollison does not have [Child 1] more than 2 nights a fortnight.

Mr Mollison was only making up care time missed due his work commitments.

Ms Austen also advised that Mr Mollison is aware that for any care change to happen it has to be via court decision Mr Mollison has to have relocated to [Town 1] as per the court order.

Ms Austen provided evidence to support her claim being – Ms Austen’s self-statement advising us that Mr Mollison can only have more level of care if he has relocated to [Town 1]. In order to have more care level, both parties have to re-negotiate this via another court hearing within 90 days of Mr Mollison relocation

In addition to Ms Austen’s evidence was the one-page court document (witnessed, signed, and dated [in] July 2017). The consent order indicates that Upon Father relocating on a permanent basis to [Town 1], the parties shall within (90) days attend at FDR to discuss and review these Consent Orders with the intention that if it is agreed it is in [Child 1’s] best interests, to increase the time [Child 1] spends with her Father.

Mr Mollison responded to the objection stating the he has relocated to [Town 1], residing in [a rental accommodation] until he finds adequate housing in [Town 1]. Mr Mollison stated that the whole purpose of him moving to [Town 1] was to increase his care, which he has done.

Mr Mollison provided evidence to support his claim being text messages between both parties discussing care.

Tenancy rental dated 5 July 2022 unsigned.

Text messages from February 2022 does not indicates the care that is happening. However, one of the messages in February, from Mr Mollison clearly states that when he leaves [Town 1], he will text/notify Ms Austen the dates when he will be coming back .

Text messages between both parties was predominately for the month of June no indication that a care changed occurred since February 2022.

Text message made on 22 April 2022 clearly indicates Mr Mollison stating that he will be in [Town 1] 29, 30, 1, 2, 3 and on the 26 April 2022, Mr Mollison advised that his days off have changed.

Ms Austen at a point indicated that this was messing up her rostering.

The tribunal’s consideration

28.In this case there is a disagreement between Ms Austen and Mr Mollison as to the care each parent has of the child. Evidence has been provided by both parents; both provided self-statements. The tribunal notes Ms Austen did not attend the hearing to give direct oral evidence to the tribunal; nevertheless, the material provided by the Agency is clear that Ms Austen disagrees there was a change in care of the child.

29.A key piece of evidence in this case is the court document which states upon Mr Mollison relocating to [Town 1] - on a permanent basis - both parties shall within (90) days attend at Federal District Court to discuss and review these Consent Orders with the intention that if it is agreed it is in (the child’s) best interests, to increase the time (the child) spends with her father.

30.There is no evidence that the parties have a renegotiation of care level as per the court orders has commenced. Mr Mollison gave clear evidence that he has made attempts to renegotiate the care level, however this has not occurred and it is his intention to pursue the matter, including through formal legal proceedings if needed.

31.Mr Mollison provided some additional evidence to the Agency including an unsigned tenancy form dated 5 July 2022, which indicates that he is just in the process of the relocation on a permanent basis. This is well after the date (being 25 February 2022) which Mr Mollison claims the change in care occurred, and after the date the claimed change was notified (being 1 June 2022).

32.The matter was deferred for Mr Mollison to be provided with the Agency hearing papers and the opportunity to review the material and provide his response. He was also given the opportunity to provide further evidence in support of his claim. Mr Mollison provided further information which included tax messages (which had been included in the Agency material) with handwritten notations of when he had care of the child, tax receipts, confirmation of a rental agreement on 5 July 2022 with rental history from 5 July 2022 to 7 December 2022 and check-in and check-out information from accommodation in [Town 1].

33.Mr Mollison referred to text messages from 25 February 2022 between the parties discussing care arrangements. These text messages do not indicate the care that is actually occurring . The tribunal notes that one of the messages in February from Mr Mollison states that that when he leaves [Town 1], he will text/notify Ms Austen the dates when he will be coming back. The tribunal notes that the text messages are predominately for the month of June and do not support Mr Mollison’s claim of a change in care arrangement from February 2022. The further material provided by Mr Mollison shows he had paid for accommodation in [Town 1] from time to time but does not support pattern of actual care of the child for Mr Mollison was 5 days per fortnight from February 2022 (as notified on 1 June 2022).

34.On balance the tribunal is satisfied there has not been a change in care of the child from 25 February 2022 (notified on 1 June 2022) as claimed by Mr Mollison. On the available evidence, tribunal was satisfied the care of the child is 86% to Ms Austen and 14% to Mr Mollison from 25 February 2022.

DECISION

The decision under review is affirmed.