Nelson and Bonham (Child support)

[2020] AATA 588

Nelson and Bonham (Child support) [2020] AATA 588 (10 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018193

APPLICANT:  Mr Nelson

OTHER PARTIES:  Child Support Registrar

Ms Bonham

TRIBUNAL:Member J Thomson

DECISION DATE:  10 February 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Mr

Nelson is recorded as having 100% care of [Child] from 31 August 2019.

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 - 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 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 Nelson and Ms Bonham are the parents of [Child], born 2003 and 16 years of age at the time of Mr Nelson’s notification of a change in care on 6 September 2019.

2. Mr Nelson seeks review of an objection decision by the Department of Human Services – Child Support (the Department) on 2 January 2020. This decision partially allowed Ms Bonham’s objection to a decision dated 9 October 2019 recording Mr Nelson as having 100% care of [Child] from 31 August 2019. The objections officer set aside the Department’s decision of 9 October 2019 and, in substitution, decided to reflect the care percentages for [Child] as 68% to Mr Nelson, and 32% to Ms Bonham, with effect from 31 August 2019.

3. The Tribunal heard the matter on 4 February 2020. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Department which was admitted into evidence and marked Exhibit 1. Ms Bonham sought to tender written submissions dated 29 January 2020, but conceded the contents of those submissions were not relevant to the issues before the Tribunal in the decision under review, and consequently, those submissions were not accepted into evidence.

ISSUES

1. The statutory provisions relevant to this review are set out in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Department makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergence occurs, a parent can notify the Department and a new care determination can be made. However, the legislative test at first instance and on review remains the same: What had happened until the date of the notification and what was likely to happen thereafter?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by both parents at the hearing and the documents contained in Exhibit 1 before the Tribunal.

2. Prior to Mr Nelson’s notification of a change in care for [Child] on 6 September 2019, the  care percentages being assessed by the Department were 50% shared equal care, in accordance with orders made in the Federal Magistrates Court, Brisbane [in] February 2008. A copy of those orders was before the Tribunal at the hearing.

3. During the course of August 2019, Ms Bonham informed Mr Nelson she intended taking five months’ sabbatical leave from her employment as [Occupation 1] with [Employer 1], so that she could travel to the [Country] capital, [City], to care for her current partner, who was employed as [Occupation 2] with [Employer 2], based in [City], and who was then suffering from a medical condition. Ms Bonham gave evidence that she also intended devoting her time in [City] to completing her [study] on [a subject], and that she would be departing Australia on 31 August 2019, leaving [Child] in Mr Nelson’s 100% care.

4. She gave evidence that prior to her departure for [City], she raised with Mr Nelson the prospect of [Child] travelling to [City] at her expense to spend his September/October 2019 school holidays with her in [City]. However, she conceded at hearing that no concluded agreement was reached with Mr Nelson about that proposal, nor was there any concluded agreement as to any pattern of care for [Child] following her departure from Australia for her five-month sabbatical leave in [City], other than that [Child] would remain in Mr Nelson’s 100% care until her return to Australia in five months’ time – on or about 31 January 2020.

5. Mr Nelson gave evidence that Ms Bonham’s decision to take five months’ sabbatical leave in [City], leaving [Child] in his 100% care, was not acceptable to him as he had a full-time job, and depended on Ms Bonham’s support in sharing the care responsibilities for [Child]. Nor did he agree to Ms Bonham’s proposal for [Child] to travel to [City] to spend the September 2019 school holidays with Ms Bonham.

6. He gave evidence that [Child] came into his care from 24 August 2019, which he said was the last date upon which Ms Bonham had contact with [Child] prior to her departure on 31 August 2019, and that following Ms Bonham’s departure from Australia for [City] on 31 August 2019, he notified the Department of a change in care for [Child] on 6 September 2019, as appears from the Department’s file record of that date contained in Exhibit 1 at page 46.

7. Ms Bonham gave evidence that she proceeded with her proposed arrangement to have [Child] travel to [City] to stay with her during the course of his September/October school holidays, regardless of the lack of any concluded agreement with Mr Nelson for that arrangement to take effect. She gave evidence that she secured a “stand-by” return airline ticket for [Child] to travel to [City] to spend his September school holidays with her in [City] from 19 September 2019.

8. Mr Nelson’s evidence with respect to this proposed arrangement was that there had been some inconclusive discussions with Ms Bonham regarding [Child] spending his September school holidays with Ms Bonham in [City], and it was not until after Ms Bonham had departed Australia for [City] on 31 August 2019 that [Child] expressed the wish to spend some part of his September school holidays (19 September 2019 to 1 October) with Ms Bonham in [City], and that Ms Bonham had purchased a “stand-by” airline ticket, that Mr Nelson agreed to [Child] travelling to [City] on 19 September 2019 to spend part of his school holidays with Ms Bonham, returning to Australia on 1 October 2019.

9. Ms Bonham acknowledged that because [Child]’s airline ticket was arranged at short notice and on a “stand-by” basis, Mr Nelson was not given much notice of [Child]’s departure date, and although she had proposed in the course of earlier discussions with Mr Nelson that [Child] travel to [City] for part of the Christmas-New Year 2019/2020, she conceded at the hearing that Mr Nelson had not agreed to those proposals.

10. On 9 October 2019, the Department accepted Mr Nelson’s change in care notification for [Child] on 6 September 2019, and revoked the earlier recorded court-ordered 50% shared equal care determination, and recorded Mr Nelson as having 100% care of [Child] from 31 August 2019 (see pages 89 to 91 of Exhibit 1).

11. Ms Bonham gave evidence that, although she had returned to Australia for brief periods between 22 October and 31 October 2019, during which she appears to have had brief periods of care of [Child] for three and five nights respectively, she acknowledged in her evidence to the Tribunal that these return visits to Australia had not been pre-planned, were sporadic, and at short notice to Mr Nelson.

12. Ms Bonham acknowledged at the hearing that, as at the date of her departure from Australia for [City] on 31 August 2019, it was her intention to remain in [City] for at least five months, and there was no agreed pattern of care for [Child] other than he would remain in Mr Nelson’s 100% care until her ultimate return from [City] in five months’ time. She also acknowledged that her return trips to Australia in October, referred to above, were not part of any agreed pattern of care with Mr Nelson.

13. As noted above, the legislative test to be applied in this matter is to consider the actual or likely pattern of care up until the time of Mr Nelson’s notification to the Department on 6 September 2019. This involves an assessment of past care on 6 September 2019, and the likely future care (the extent of past and future assessment depending on the care period identified as appropriate to use. It is not the Tribunal’s task here to assess care in retrospect, taking account of actual care to the date of hearing; although it is noteworthy that, at the time of hearing, Ms Bonham attended the hearing via conference telephone from [City].

14. Considering the evidence, on balance, the Tribunal finds that on 24 August 2019 Ms Bonham informed Mr Nelson that she intended taking sabbatical leave in [City], the capital of [Country], at which time, the care percentages being assessed by the Department were 51% to Mr Nelson and 49% to Ms Bonham (shared equal 50% care), and departed Australia for [City] on 31 August 2019, leaving [Child] in Mr Bonham’s 100% care with no agreement as to any other pattern of care from that date onward.

15. The Tribunal finds that although [Child] spent part of his September 2019 school holidays (19 September 2019 to 1 October 2019) with Ms Bonham in [City], and subsequently between 22 October 2019 and 31 October 2019 when she returned sporadically to Australia for brief periods at short notice, these were “one-off” arrangement, not intended to be of a permanent nature and not sufficient to constitute an identifiable pattern of care.

16. In conclusion, the Tribunal finds that the parents’ 50% shared care arrangement ceased on 31 August 2019 when Ms Bonham departed Australia to reside in [City] for a period of at least five months, and that from that date onward, she was to have no identifiable pattern of care.

17. The Tribunal will therefore set aside the decision under review, and in substitution, record Mr Nelson as having 100% care of [Child] from 31 August 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Mr Nelson is recorded as having 100% care of [Child] from 31 August 2019.