Munster and Jolley (Child support)

[2019] AATA 3855

Munster and Jolley (Child support) [2019] AATA 3855 (23 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016377

APPLICANT:  Mr Munster

OTHER PARTIES:  Child Support Registrar

Ms Jolley

TRIBUNAL:  Member S Cullimore

DECISION DATE:  23 July 2019

DECISION:

The decision under review is set aside and a new decision is substituted that:

·     the care percentages in respect of [Child 1] are 100% to Ms Jolley from 5 November 2018 and 0% to Mr Munster from 29 August 2018.

This means that the application for review is unsuccessful.

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 – care arrangement not complied with – special circumstances exist – single percentage of care determined – 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. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as fact.

2. Ms Jolley and Mr Munster are the parents of two children, now aged [age] and [age].

3. From 5 November 2015 onwards the care percentages were fixed at 62% to Ms Jolley and 38% care to Mr Munster for each child. Those percentages reflected court orders.[1]

   [1] At C71

4. On 5 November 2018 Ms Jolley contacted the CSA and notified that a care change had occurred from 29 August 2018. From that date, she advised that she had 100% care of the older child, [name].

5. On 27 November 2018 a delegate decided to change the care percentages to 100% to Ms Jolley and 0% to Mr Munster in respect of [Child 1], effective in the child support assessment from 5 November 2018.

6. Mr Munster lodged an objection to that decision on 29 November 2018.

7. On 26 March 2019 an objections officer disallowed the objection.

8. On 23 April 2019 Mr Munster sought a further review by this Tribunal.

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C411.

2. Both parties attended the hearing on 17 July 2019 via teleconference and gave evidence and made verbal submissions.

3. The Tribunal deferred making a decision to receive further documents from Mr Munster. These were A1 to A26.

4. The Tribunal made this decision on 23 July 2019.

ISSUE

13.The principal issue to be decided by the Tribunal is:

·what are the correct care percentages of the parents in relation to the child, [name], and from what date or dates should they be effective?

CONSIDERATION

The relevant child support law

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

15.The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

16.The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of the care arrangements.

17.Care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Assessment Act.

18.Sections 51 to 53A of the Assessment Act deal with situations where care is fixed by court orders (or other written arrangements) but actual care does not reflect those orders or arrangements.

19.These provisions (inserted in May 2018) lay down complex rules for the CSA to determine whether in some circumstances care percentages should follow the terms of court orders, although those court orders are not being followed, and, if so, for how long. These determinations are known as “interim care determinations”. The CSA will in fact fix two care percentages in these situations: one that follows the court orders (for a limited time), the other which reflects actual care.

20.However, under subsection 51(5), if “special circumstances exist in relation to the child”, a single care percentage may be fixed under section 49 or section 50. The legislation makes clear that this will be the case even though the parent with reduced care is taking reasonable action to ensure that the court orders are complied with.

21.If a care percentage is fixed under section 50, it applies for each day in a child support period until the determination which fixed that care percentage is revoked: see subsection 54B(1A).

22.Section 54F then states that if the Registrar is notified that the actual care arrangements do not correspond with the existing care percentages, and if changing the care percentages would produce a change in the person’s “cost percentage”, then the Registrar must generally revoke the old care determination and make a new care determination.

23.If a care change notification is made more than 28 days after care has changed, as occurred here, then (i) for the person with increased care (here Ms Jolley) the revocation of the old care determination takes effect at the end of the day before notification, but (ii) for the person with reduced care (here Mr Munster) the revocation of the old care determination takes effect at the end of the day before care in fact changed: see paragraph 54F(3)(b).

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

24.The Tribunal considered all of the information on the CSA file and the documentary and verbal evidence as presented by the parents both to the CSA and to it.

25.As stated above, on 29 August 2018, following an incident at [Child 1]’s school, there was a change in care. From that date onwards Ms Jolley had sole care of [Child 1]. Care of the younger child, after some interruption, followed the court orders.

26.The Tribunal finds there were and are “special circumstances in relation to [Child 1]”, within the meaning of subsection 51(5) of the Act, which is discussed above.

27.The Tribunal has reached this conclusion based in summary upon the following evidence:

·The fact that it is not in dispute that [Child 1] suffers from some form of [medical condition], diagnosed when he was only 5;

·The evidence of the events which occurred at [Child 1]’s school, on 29 August 2018, when he refused to go into his father’s care;

·The contents of a report on [Child 1] by a psychologist, [Ms A], dated 4 June 2019, based upon extensive interviews with [Child 1], and a further report by [Ms B], a family psychotherapist, dated 10 December 2018.[2]

[2] See A21 - 26

28.The gist of these reports is that [Child 1] has, for whatever reason, lost trust in and faith in his father and is reluctant to resume being in his father’s care.

29.The Tribunal accepts that since care changed Mr Munster has taken reasonable action to have the court orders enforced or to have new court orders made. In April 2019 court proceedings were commenced by him, seeking new and expanded care orders (A12). This followed months of him (and Ms Jolley) engaging various psychologists and counsellors to try to resolve [Child 1]’s evident problems regarding care by his father.

30.Those court proceedings have not yet been heard or resolved but according to the parties should be resolved in the next few months.

31.Despite the evidence of these reasonable efforts being made by Mr Munster, the Tribunal is satisfied that [Child 1]’s state of mind as to the care arrangements, as disclosed by the evidence of what occurred on 29 August 2019 and by the psychologist’s reports, seems to be sufficiently unusual or out of the ordinary that special circumstances in relation to him can be said to exist.

32.The Tribunal also notes that his age, namely [age], adds a further dimension to the issue of special circumstances, as his individual choice or preference as to the care arrangements to be put in place for him should start to be given weight both by the parents and the family court system.

33.As the Tribunal has found that there were and are “special circumstances in relation to [Child 1]”, within the meaning of subsection 51(5) of the Act, then the Tribunal should now fix a single care percentage for each parent. This is to be done under section 50 of the Assessment Act, where the pattern of actual care is the main factor.

34.There is no dispute that Ms Jolley has had 100% care since 29 August 2018. Nor is there any dispute that that care change did change the cost percentages of the parents.

35.The child support law (section 54F) provides therefore that the old care determination (i.e. the 62%/38%) must be revoked.

36.To this point, the Tribunal agrees with the objection decision.

37.The date for the revocation of the old care determination is however a different date for each parent. For Ms Jolley it is the end of the day before notification, i.e. the end of 4 November 2018; for Mr Munster it is the end of the day before care in fact changed, i.e. the end of 28 August 2018.

38.The new care determinations (100%/0%) therefore take effect on 5 November 2018 and 29 August 2018, respectively.

39.This is, in the Tribunal’s view, the correct application to the circumstances of paragraph 54F(3)(b) of the Assessment Act and other relevant provisions.

DECISION

The decision under review is set aside and a new decision is substituted that:

·     the care percentages in respect of [Child 1] are 100% to Ms Jolley from 5 November 2018 and 0% to Mr Munster from 29 August 2018.

This means that the application for review is unsuccessful.