Mosley and Child Support Registrar (Child support)

[2022] AATA 737

Mosley and Child Support Registrar (Child support) [2022] AATA 737 (25 February 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2021/MC022587

APPLICANT:  Mr Mosley

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  25 February 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 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

BACKGROUND

1. This application relates to a decision by Services Australia – Child Support (the Agency) relating to the particulars of assessment in the child support case for the child [Child 1].

2. Mr Mosley and [Ms A] are the separated parents of [Child 1].  A child support case has been registered with the Agency since 20 November 2018 and Mr Mosley is the payer of child support in this matter and [Ms A] the payee.  Under the administrative assessment of child support, [Ms A] was recorded as having 100% care of [Child 1] and Mr Mosley was recorded as having 0% care of [Child 1].

3. On 7 May 2021, Mr Mosley contacted the Agency stating that from 7 May 2021, he would have care of [Child 1] for two nights per fortnight.

4. On 2 July 2021, an employee of the Agency made a decision to refuse to revoke the existing determination of care.

5. Mr Mosley objected to this decision on 2 August 2021.

6. On 3 September 2021, an objections officer of the Agency disallowed the objection.

7. On 25 October 2021, Mr Mosley made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision. 

8. The hearing was due to be held on 10 February 2022 by telephone.  At the time of the hearing the Tribunal had before it documents provided by the Agency (1 to 126).  Mr Mosley had been advised of the hearing details by letter dated 12 January 2022 and had been sent an SMS reminder of the hearing on 9 February 2022.  The Tribunal contacted Mr Mosley at the time of the hearing and he stated he was at work and was not aware the hearing had been scheduled.  Given the applicant was notified at the address and mobile telephone number he had provided, of the hearing details, the Tribunal made a decision not to adjourn the hearing to another date but to give Mr Mosley 14 days to provide the Tribunal with any information or submissions he was seeking to rely on. 

9. Nothing was provided by the applicant during the deferral period and, following the time given to Mr Mosley to provide information and make written submissions, the Tribunal proceeded to make a decision on all of the information before it on 25 February 2022.

CONSIDERATION

1. The statutory provisions relevant to this review are 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). The legal issues for the Tribunal in this matter are whether it is able to revoke the existing determination of care and to make a new care determination, following Mr Mosley’s contact with the Agency on 7 May 2021.

2. The provisions relevant to the revocation of an existing determination of care are set out in sections 54F, 54G and 54H of the Assessment Act.

Does section 54F of the Assessment Act apply?

1. The Tribunal first considered section 54F of the Assessment Act. Subsection 54F(1) provides that there must be a revocation of an existing determination of care in the following circumstances:

   (1)   The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) 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).

1. The existing percentage of care in this case reflected that Mr Mosley had 0% care of [Child 1] and [Ms A] had 100% care of [Child 1].  The Tribunal finds that on 7 May 2021, the Registrar was notified by Mr Mosley that the care of [Child 1] that was actually taking place did not correspond with his existing percentage of care of [Child 1].  Paragraph 54F(1)(a) is met.

2. The Tribunal did not have the benefit of speaking to Mr Mosley, nor of receiving written submissions from him in this matter setting out what is wrong with the Agency’s decision and what he is seeking the Tribunal find in this matter.  The Tribunal has therefore based the following findings on the information in the documents provided by the Agency.

3. The Tribunal finds that on 7 May 2021, Mr Mosley advised the Agency that he would have two nights per fortnight of care of [Child 1] from 7 May 2021.  When subsequently contacted by the Agency on 18 June 2021, he told the Agency that regular care had occurred from 28 December 2020.  In contrast, [Ms A], when contacted by the Agency, told the Agency on various occasions that there had been no set pattern of care, that Mr Mosley was helping her out and that care had been irregular.

4. The Tribunal finds that [in] March 2021, a final intervention order had been made in the Magistrates’ Court where Mr Mosley was listed as the respondent in the matter.  The intervention order included a 200m exclusion clause from [Ms A]’s home and place of work.  This was varied by a subsequent order [in] August 2021 naming both [Ms A] and [Child 1] as protected persons. 

5. There are a number of text messages in the Agency documents, confirming that Mr Mosley had some care of [Child 1] between February and April 2021.  The texts confirm that [Child 1] was in the care of Mr Mosley during the day on half a dozen occasions and was undertaking activities with him such as fishing and going to the park, but do not confirm that [Child 1] was in the care of Mr Mosley two nights per fortnight.  The texts between Mr Mosley and [Ms A] on 6 February 2021 suggest that overnight care of [Child 1] by Mr Mosley took place on that date.  On 13 May 2021, [Ms A] sent Mr Mosley a text proposing pick up and drop off details for [Child 1] for the weekend of 14 to 16 May 2021.  Mr Mosley responded on 13 May 2021 stating, “nope not happening”. 

6. The Tribunal finds that the text messages provided to the Agency are consistent with [Ms A]’s information to the Agency that care had been sporadic and that Mr Mosley had not had care of [Child 1] since 24 April 2021.  The Tribunal notes that Mr Mosley has given inconsistent information to the Agency about when he claims the pattern of care changed, and that at the time he contacted the Agency on 7 May 2021 an intervention order was in place and he does not appear to have had overnight care of [Child 1] for over two weeks.  The Tribunal is prepared to accept that Mr Mosley had overnight care of [Child 1] on 6 February 2021 and 24 April 2021 but is not prepared to accept – on the evidence before it and given Mr Mosley’s lack of evidence provided to the Tribunal in this matter – that Mr Mosley had overnight care of [Child 1] on other dates. 

7. The Tribunal is not satisfied that there was an agreement between the parties as of 7 May 2021 when Mr Mosley contacted the Agency that the pattern of care for [Child 1] was to change.  Nor is it satisfied that the pattern of care had changed in December 2020 based on the information before it.

8. Paragraph 54F(1)(b) is not met. The existing determination of care is unable to be revoked under section 54F of the Assessment Act.

Does section 54G of the Assessment Act apply?

1. Subsection 54G(1) of the Assessment Act provides that the section applies in circumstances where a responsible person was to have at least regular care of a child under a determination and has no care of the child, or has a pattern of care that is less than regular care of the child. Regular care is defined at subsection 5(2) of the Assessment Act to be at least 14% but less than 35% care of a child.

2. The Tribunal finds that subsection 54G(1) of the Assessment Act does not apply in the circumstances of this case on the basis that Mr Mosley was not having at least regular care of [Child 1] under the existing determination of care.

3. The existing determination of care is unable to be revoked under section 54G of the Assessment Act.

Does section 54H of the Assessment Act apply?

1. Subsection 54H(1) of the Assessment Act provides for the revocation of an existing determination of care in the following circumstances:

   (1)   The Registrar may revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) 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, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person's percentage of care for the child, the other percentage would not be the same as the person's existing percentage of care for the child; and

   (c) sections 54F, 54FA and 54G do 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. The Tribunal is satisfied that on 7 May 2021, the Registrar was notified by Mr Mosley of a claimed change to the care arrangements for [Child 1].  Paragraph 54H(1)(a) is met.

3. For the reasons set out above, the Tribunal has accepted that Mr Mosley had overnight care of [Child 1] on 6 February 2021 and 24 April 2021.  The Tribunal must consider whether these two nights of care represent a change in the care arrangements for [Child 1].

4. In so considering, the Tribunal has had regard to the Child Support Guide at 2.2.2 which sets out the Agency’s police regarding care determinations and changes in care.  This section of the Guide notes that:

   When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. The Registrar will need to determine the percentage of care that is likely to occur in the care period.

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case. In cases where a person's care percentage would drop below 14%, the Registrar may make a below regular care determination (see 2.2.3 for more information).The Registrar will consider all the information provided to determine if there has been a change in the pattern of care.

Not all changes in care will result in a change to the care percentage. Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

No pattern of care - point of agreement

There may be situations where the Registrar is advised that the care of a child will change, or has changed, but no pattern of care exists that will assist in determining the care percentages for a new care period. In these situations, the Registrar will consider the information provided by the parents and non-parent carers to decide whether care percentages can be determined. If the information provided by all parties is consistent, then the Registrar will determine the care percentages based on that information.

If conflicting information has been provided by the parties, the Registrar will consider whether there is some common expectation about future care. If the information provided shows that a different care percentage would be calculated, and there is agreement to a certain point on what the new care arrangements will be, then the Registrar will use that 'point of agreement' to determine the new care percentage.

1. The Tribunal is not bound by the policy of the Agency.  However, in in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, the Tribunal accepted that the policy is consistent with the objects of the Assessment Act and assists the Tribunal in making a determination in accordance with the relevant legislation.

2. For the same reasons as those set out above, the Tribunal is not persuaded that as of 7 May 2021 when Mr Mosley contacted the Agency, the pattern of care of [Child 1] had changed.  The Tribunal finds that Mr Mosley had provided overnight care to [Child 1] on two ad hoc occasions but that these occasions did not signify a change in the agreement between the parents as to any ongoing regular pattern of care for [Child 1].  The Tribunal finds that, given the existence of the intervention order, as of 7 May 2021 there was not a common expectation between the parties about the future care arrangements for [Child 1].  The Tribunal finds, therefore, that it is not appropriate to determine another percentage of care for the parents in respect of [Child 1].

3. The existing determination of care is unable to be revoked under section 54H of the Assessment Act. The Tribunal therefore finds that the decision made by the Agency is legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.