Mourtada and Child Support Registrar (Child support)

[2019] AATA 1737

Mourtada and Child Support Registrar (Child support) [2019] AATA 1737 (15 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016201

APPLICANT:  Mr Mourtada

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member K Buxton

DECISION DATE:  15 May 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that from 31 August 2018 no change of care be recorded for the children.

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders not complied with for a short period - whether care determinations should have been revoked and new determinations made - decision under review set aside and substituted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

BACKGROUND

1. Ms Assif and Mr Mourtada are the parents of [Child 1] and [Child 2]. A child support case is registered with the Child Support Agency (CSA). Ms Assif was recorded as having 79% care and Mr Mourtada was recorded as having 21% care of [Child 1] and [Child 2].

2. On 7 November 2018 Mr Mourtada informed the CSA that his children were being withheld from his care by Ms Assif following his return from an overseas trip. He stated that care was previously taking place in accordance with a court order. The CSA attempted unsuccessfully to contact Ms Assif. On 21 November 2018 the CSA decided to change the recorded care for [Child 1] and [Child 2] to 100% with Ms Assif 31 August 2018, with effect in the child support case from 7 November 2018.

3. On 13 December 2018 Mr Mourtada objected to the CSA’s decision and, on 15 February 2019, a CSA objections officer disallowed the objection. Mr Mourtada applied to the tribunal for review of the objection decision. At the hearing on 15 May 2019 the tribunal heard sworn evidence from Mr Mourtada, given by telephone, and accepted into evidence the subsection 37(1) Statement and Documents provided by the CSA (Exhibit 1). Mr Mourtada supplied additional documents immediately following the hearing. Ms Assif did not respond to an invitation by the tribunal that she apply to be joined as a party to the review application.

CONSIDERATION

1. The tribunal is first to determine whether there has been a care change for [Child 1] and [Child 2]. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require a new determination of a percentage of care for a child to be made in certain circumstances. First, the question arises as to whether the existing care determination should be revoked. Subsection 54F(1) provides that the determination must be revoked in circumstances where a different cost percentage would apply if the care percentage determination was changed. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the child.

2. Mr Mourtada stated during the hearing that he had not stopped having a level of care for the children as he consistently met expenses for them and he has had them in his overnight care for extensive periods over the school holidays. Mr Mourtada stated that, following his contact with the CSA on 7 November 2018 it was the CSA, not him, who decided to record a change in care. Mr Mourtada submitted that the correct or preferable decision was not to record a care change for the children, and he stated that he had not requested any changes to the child support case.

3. Mr Mourtada stated that he left for an overseas trip [in] August 2018 and returned around [October] 2018. He stated that his care of the children prior to this time had comprised a regular pattern on three nights each fortnight. He stated that court orders were made in 2017 giving him two nights of care of the children each fortnight, and that these orders had been modified by a parenting agreement evidenced by solicitors’ correspondence. Mr Mourtada provided documents after the hearing which were consistent with his evidence as to his pattern of care for the children.  Mr Mourtada stated that, prior to travelling overseas, he had additional care of the children from 17 to 20 August, in addition to his scheduled care on 24 to 27 August, so that he would not miss out on his time with the children.

4. During the hearing, Mr Mourtada stated that, immediately upon his return from overseas, Ms Assif did not make the children available to be collected by him and that he therefore missed two care events, being his scheduled fortnightly care in October. He stated, and the tribunal accepts, that as a result of the extra care he had prior to his trip he had only missed one care event whilst overseas. Mr Mourtada stated that he filed an application for a recovery order and that this order was granted and the children returned to him.

5. It is open to the registrar to make a new determination when the registrar is notified, or otherwise becomes aware of a change in care. When Mr Mourtada contacted the CSA on 7 November 2018 he was not expressly reporting an ongoing change to the pattern of care for the children, either from 31 August 2018 or at all. The CSA attempted to contact Ms Assif to discuss a possible care change. When the CSA could not contact her, they decided to record a change in care, even though Mr Mourtada was uncertain at that time as to whether his regular care would be restored. The CSA did not accept Mr Mourtada’s claim that his care had been taking place in accordance with a court-ordered arrangement or parenting plan and therefore did not consider whether it was appropriate to make an interim care order. In the event, Mr Mourtada’s regular care was swiftly restored and his evidence is to the effect that his care has increased through having the children in his care for longer periods over the Christmas and Easter school breaks.

6. The registrar was not expressly notified by either parent of a care change, or asked to make a new care determination. It is difficult to see how the registrar could have “become aware” of a care change when no contact was made with the mother and when the father had simply notified the CSA that he has missed a couple of care events and was not yet sure whether his care would be restored. A common sense and appropriately cautious approach is to be taken in exercising the power to revoke an existing care determination when neither parent is requesting that course of action and there is scant evidence about whether, and to what extent, the care arrangements have altered. The tribunal is not satisfied, from 31 August 2018 or from any date up to 7 November 2018, that the care taking place for the children was different to the recorded care. The correct or preferable approach based on the information provided by Mr Mourtada on 7 November 2018 was, therefore, not to make a decision about care at that time.

10.  As the correct and preferable decision was to refuse to record a change in care for [Child 1] and [Child 2] from 31 August 2018 as a result of the notification by Mr Mourtada on 7 November 2018, the decision under review is set aside and a decision substituted giving effect to the tribunal’s findings.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that from 31 August 2018 no change of care be recorded for the children.