O’Connor and O’Connor (Child support)

[2019] AATA 4349

O’Connor and O’Connor (Child support) [2019] AATA 4349 (16 July 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016424

APPLICANT:  Mr O’Connor

OTHER PARTIES:  Child Support Registrar

Ms O’Connor

TRIBUNAL:Member K Buxton

DECISION DATE:  16 July 2019

DECISION:

The decision under review is varied so that [Child 1] is to be recorded as in the 64% care of Mr O’Connor and in the 36% care of Ms O’Connor for an interim period from 24 August 2018 to 30 January 2019 and, thereafter, that [Child 1] be recorded as in the 50% care of Ms O’Connor and the 50% care of Mr O’Connor.

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 - court orders not complied with - reasonable action taken to enforce court order – reasonable action to participate in family dispute resolution - interim period applied – shorter interim period applied - decision under review varied

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. Mr O’Connor and Ms O’Connor are the parents of [Child 1], born February 2002, who was recorded by the Child Support Agency (CSA) as in the 64% care of Mr O’Connor and the 36% care of Ms O’Connor. This percentage was recorded to reflect a care regime from Court Orders made in 2016 for [Child 1] and for the parents’ daughter, [Child 2], born May 2011. This review concerns a decision by the CSA about the recorded levels of care only for [Child 1].

2. On 4 September 2018, Ms O’Connor notified the CSA that care was no longer taking place in accordance with the order and [Child 1] was now in the 50% care of each parent from 24 August 2018. The CSA were unable to contact Mr O’Connor and, on 5 February 2019, accepted the information from Ms O’Connor and decided to record [Child 1] as in the 50% care of each parent from 24 August 2018.

3. On 13 February 2019, Mr O’Connor objected to that decision. Mr O’Connor told the CSA that Ms O’Connor was in breach of the court orders and that he was making reasonable attempts to have the previous care restored and requested that an interim care period for [Child 1] be recorded to reflect the court-ordered care. On 18 April 2019, a CSA objections officer allowed Mr O’Connor’s objection and decided to implement an interim care determination from 24 August 2018 to reflect the previously recorded care for [Child 1] of 64% for Mr O’Connor and 36% for Ms O’Connor then, from 23 February 2019, to record [Child 1] as in the actual 50% care of each parent.

4. Ms O’Connor and Mr O’Connor each separately applied to the tribunal for review of the objection decision. Both review applications were listed to be heard consecutively on 16 July 2019 and, at the hearing the parents agreed that their evidence in each application was to be accepted by the tribunal as evidence in the other application. Therefore, on 16 July 2019, the tribunal heard sworn evidence from Mr O’Connor and Ms O’Connor, who both appeared at the tribunal in person. In reaching a decision, the tribunal has considered that evidence, together with the Statements and Documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1).

CONSIDERATION

1. 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 consideration of the actual, or likely, pattern of care that the parents will have in relation to the children.

Assessment of the pattern of care

1. The court-ordered care regime agreed allowed for Ms O’Connor to have care of [Child 1] for four nights each fortnight, plus 50% of school holiday care, amounting to 33% care across the year, plus any other care for Ms O’Connor to be agreed between the parents, with the balance of the care with Mr O’Connor. Contemporaneously with the court orders, in mid-2016, the parents exchanged emails in which Ms O’Connor noted that she had additional care of [Child 1], amounting to 36% in total, as a result of travel undertaken from time to time by Mr O’Connor during which [Child 1] would stay with her in addition to the specified regular pattern of care in the order, and Mr O’Connor accepted this statement. Care has been recorded in this way in the child support case until the events of August 2018 and both parents accepted during the hearing that the court orders were being complied with until [Child 1] spent increased time with Ms O’Connor from 24 August 2018. Mr O’Connor noted during the hearing that the care of [Child 1] provided for in the court order for Ms O’Connor was 33% and no more. However, the parents both agreed when those orders were first reflected in the recorded care percentages for [Child 1] that the orders were to be complied with by Ms O’Connor having [Child 1] in her care for 36% of the time. The tribunal therefore finds that, but for any change in actual care from 24 August 2018, the care that the parents would have had for [Child 1] was that reflected in the recorded percentages at that time, viz: 36% for Ms O’Connor and 64% for Mr O’Connor. Each parent accepted that actual care of [Child 1] has been on an equal shared care basis from 24 August 2018 onwards.

2. Having regard to all of the evidence the tribunal finds that care was taking place in accordance with the court orders until 24 August 2018, from which date [Child 1] was in the equal shared care of Ms O’Connor and Mr O’Connor. The tribunal finds that the pattern of care for [Child 1] changed such that Ms O’Connor and Mr O’Connor each had 50% care of [Child 1] from that date. The question for the tribunal is whether the parents have taken reasonable steps to resolve the issues around the court-ordered care and, if so, how those steps should impact the recorded care for [Child 1].

Application of law

1. Mr O’Connor stated that he immediately took steps to have the court-ordered care restored by writing to Ms O’Connor, through her lawyer, and informing her that she was in contravention of the orders. The material provided by the CSA includes copies of various letters from Mr O’Connor to Ms O’Connor and to her lawyer in which the contravention is asserted and the legal implications discussed. Oddly, Mr O’Connor did not take the opportunity, in any of the letters, to simply ask for [Child 1] to be returned to his care, or to offer to collect him from Ms O’Connor’s home, in accordance with the court orders and the parent’s accepted practice, at any time other than the week-about changeover which commenced from 24 August 2018.

2. Mr O’Connor stated that he could not immediately institute proceedings for a contravention order as the court orders required the parties to mediate. However, it was Ms O’Connor, through her lawyer, who initiated the mediation process required in the court-ordered regime. Ms O’Connor stated that she consulted her lawyer in September 2018 and he prepared draft amended consent orders to reflect the equal shared care arrangement for [Child 1] and asked Mr O’Connor to consent to those orders. When consent was not given, she instructed her lawyer to commence mediation through Relationships Australia as required by the Court orders, and this process was initiated by Ms O’Connor on 24 October 2018. The matter was certified as not suitable to continue with mediation in February 2019. Mr O’Connor stated that he intended to commence proceedings after that, but the material indicates that he did not file an application with the court until 2 April 2019. This application was returned unfiled because of some technical deficiencies and under cover of a letter from the registrar noting the age of the child and the poor prospects of success. Mr O’Connor stated during the hearing that, with this in mind, and having regard to the interests of the children and the likely costs, he chose not to proceed with the application to court.

3. Ms O’Connor stated that [Child 1] was 16 years of age and did not wish to return to the 64% care of his father, despite encouragement by Ms O’Connor to do so. Ms O’Connor submitted that, had Mr O’Connor attended at her home to collect [Child 1] in accordance with the court-ordered pattern of care, she would have encouraged him to go. However, Ms O’Connor also submitted that [Child 1] was independent and had formed his own view as to where he wanted to live.

4. Pursuant to subsection 53A(1)(a) of the Act an interim period can be applied from the first day that the actual care of the child ceased to correspond with the care provided for under the court-ordered care arrangement. As those court orders were made more than a year prior to the change of care, the maximum interim period in the circumstances is 26 weeks from the change of care day.

5. Pursuant to paragraph 53A(1)(b) of the Act a shorter interim period may apply if the change of care occurs after the first 26 weeks from the day the court order takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution, and continues to so participate. The shorter interim period will end at the earlier of:

   a.    14 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the court order took effect), or

   b.    26 weeks from the change of care day.

6. The evidence demonstrates that, when the pattern of care changed for [Child 1] on 24 August 2018, Mr O’Connor did not agree to the change. He wrote to Ms O’Connor and her lawyer and pointed out that the orders were not being complied with, and indicated that mediation was appropriate, although in the event it was Ms O’Connor who was first in time to refer the matter to mediation. The tribunal is satisfied that, although Mr O’Connor’s correspondence focussed on the legality of Ms O’Connor’s action, rather than the return of [Child 1] to the court-ordered care arrangement, Mr O’Connor’s intent that this occur could be readily inferred from his correspondence. The tribunal is satisfied that this early action constituted reasonable steps to have the court-ordered care restored. However, on 24 October 2018 Ms O’Connor took steps to arrange mediation, as was required under the court orders where changes to the care regime in those orders may have occurred. Her actions in initiating the mediation constitute reasonable steps to participate in family dispute resolution.

7. Accordingly, an interim care determination for [Child 1] of 64% care to Mr O’Connor and 36% care to Ms O’Connor should apply from 24 August 2018. However, that interim period should end on 30 January 2019, being 14 weeks after 24 October 2018, as that is the date on which Ms O’Connor commenced reasonable steps to participate in family dispute resolution and the tribunal is satisfied Ms O’Connor continued to participate in that process.

8. This tribunal has reached the same decision as the decision under review as to the relevant care determinations and the percentages of care, including for an interim period, but has reached a different conclusion as to the duration of the interim period. The correct and preferable decision is that [Child 1] is to be recorded as in the 64% care of Mr O’Connor and in the 36% care of Ms O’Connor for an interim period from 24 August 2018 to 30 January 2019 and, thereafter, that [Child 1] be recorded as in the 50% care of Ms O’Connor and the 50% care of Mr O’Connor. The decision under review is varied to take account of the findings of the tribunal as to the proper duration of the interim period of care to be recorded for [Child 1].

DECISION

The decision under review is varied so that [Child 1] is to be recorded as in the 64% care of Mr O’Connor and in the 36% care of Ms O’Connor for an interim period from 24 August 2018 to 30 January 2019 and, thereafter, that [Child 1] be recorded as in the 50% care of Ms O’Connor and the 50% care of Mr O’Connor.