Page and Chapman (Child support)

[2019] AATA 2189

Page and Chapman (Child support) [2019] AATA 2189 (29 May 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/SC015593

APPLICANT:  Mr Page

OTHER PARTIES:  Child Support Registrar

Ms Chapman

TRIBUNAL:Member J Thomson

DECISION DATE:  29 May 2019

DECISION:

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

(a)for the interim period 16 July 2018 to 23 December 2018, Ms Chapman is recorded as having 84% and Mr Page is recorded as having 16% care of [Child 1]; and

(b)from the period 24 December 2018, Ms Chapman is recorded as having 0% and Mr Page is recorded as having 100% care of [Child 1].

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 – interim period applied – 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. Mr Page and Ms Chapman are the parents of [Child 1], born 2001.

2. Mr Page seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 1 December 2018. This decision allowed Ms Chapman’ objection to a decision dated 4 August 2018 to reflect the care of [Child 1] as 100% to Mr Page and 0% to Ms Chapman from 16 July 2018. The objection decision determined an interim care period from 16 July 2018 to 21 October 2018, recording Ms Chapman as having 84% care and Mr Page 16% care of [Child 1].

3. The Tribunal heard the matter on 5 March 2019. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it papers provided by the Department numbered 1 to 160. Both parents had copies of these papers with them at hearing and those documents were admitted into evidence and marked Exhibit 1.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by both parents at the hearing, and the documentation admitted into evidence and marked Exhibit 1.

2. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989 (the Act), as amended. 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 up until the date of the notification and what was likely to happen thereafter?

3. Subsection 51(1) of the Act applies if:

   (a)    the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

   (b)    a care arrangement applies in relation to the child; and

   (c)    the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)    a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

4. Subsection 51(2) of the Act provides that the Registrar must determine, under section 49 or 50, two percentages of care in relation to the responsible person. Subsection 51(3) provides that the first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil). Subsection 51(4) provides that the second percentage of care is to be:

   (a)    for a determination under section 49 – 0%;

   (b)    for a determination under section 50 – a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 51(1)(d) were not to succeed.

5. Paragraph 53A(1)(a) of the Act provides that the interim period for a determination under section 49 or 50 of a responsible person’s percentage of care for a child is the period beginning on the responsible person’s change of care day and ending, where more than 38 weeks has elapsed between the date of the court order and the change of care day, 14 weeks from the change of care day.

6. Mr Page notified the Department of a change in care for [Child 1] on 18 July 2018. Prior to his notification, the care percentages being assessed by the Department were 84% to Ms Chapman and 16% to Mr Page.

7. At the hearing, Mr Page’s case was that he objected to paying child support for [Child 1] during the interim care period determined by the objections officer in the decision under review because he has had 100% care of [Child 1] from 16 July 2018.

8. Although Mr Page gave evidence as to the circumstances in which [Child 1] came to live with him from 16 July 2018, the issue at hearing centred on the circumstances giving rise to the objections officer’s decision to determine an interim care period, based on Ms Chapman’s action to enforce the care arrangements reflected in orders made in the Magistrates Court of Victoria at [location] on 14 April 2004 (the Court Orders), when [Child 1] was an infant of little more than two years of age.

9. A copy of the Court Orders was before the Tribunal at pages 27 to 29 of Exhibit 1. They provided for care arrangements for the period up to [Child 1]’s commencing primary school, including, relevantly, provision 4(c), that from 2 June 2004, Mr Page was to have overnight care of [Child 1] from 5 PM Wednesday until 8:30 AM the following Thursday morning. Paragraph 5 of the Court Orders provided that upon [Child 1] commencing primary school, her contact with Mr Page, including extended holiday contact would be as agreed or failing agreement determined by the Court, with liberty for the parents to apply.

10. Assuming the parents were following the Court Orders, the relevant care arrangements would be for the period following [Child 1]’s commencing primary school as agreed between the parents. By reference to paragraph 5 of the Court Orders, the agreement reached between the parents regarding their respective care percentages seems to have been 84% to Ms Chapman and 16% to Mr Page. That appears to be the basis for the accepted care pattern reflected in the care percentages Mr Page provided to the Department as the pattern of care prior to the change in care he notified on 18 July 2018 following [Child 1] coming to stay with him on 16 July 2018.

11. Neither parent disputed the care percentages in place prior to the change in care notification, and, although Mr Page said in his evidence that the Court Orders had not been strictly followed by the parents, the Tribunal is satisfied the pattern of care prior to the change in care notification on 18 July 2018 appears to have been consistent with the care pattern reflected in paragraph 4(c) of the Court Orders.

12. The evidence given by both parents at hearing regarding the circumstances in which [Child 1] went to live with Mr Page on or about 16 July 2018 suggests that it was as a result of a falling out between [Child 1] and her mother, Ms Chapman, the details of which, whilst controversial, are not relevant to the substance of the decision under review.

13. Ms Chapman sent the Department an email via Webmaster on 30 July 2018 enclosing, amongst other things, a copy of the Court Orders. In that email, she advised that she had already initiated action to have the care arrangements pursuant to the Court Orders enforced, and an initial mediation appointment had been set for Friday, 27 June 2018 (see page 19 of Exhibit 1).

14. At page 38 of Exhibit 1, the Department’s file note dated 4 August 2018 records a telephone conversation with Ms Chapman in which she makes reference to action on her part to enforce the court-ordered care arrangements she contended were being followed prior to Mr Page’s notification on 18 July 2018 of a change in care on 16 July 2018.

15. The Department’s file note dated 20 August 2018 at page 90 of Exhibit 1, records, relevantly, Ms Chapman informing the Department that she had taken action to enforce the court-ordered care arrangements for [Child 1] by contacting [Agency 1], a family dispute resolution organisation located in  [Victoria]. She also noted that the Court Orders provided specifically that Mr Page was to have one night’s care of [Child 1] per week and care during the school holidays as agreed between the parents.

16. Ms Chapman provided a copy of correspondence from [Agency 1] dated 23 August 2018 which contains a reference to an assessment appointment at [Agency 1]’s [office] at 1pm on 27 July 2018. This may be the date Ms Chapman mistakenly referred to as 27 June 2018 in her evidence.

17. She also gave evidence at hearing of her having consulted solicitors as to her enforcement rights with respect to the Court Orders, and both parents acknowledged in evidence that they attended a mediation on 17 September 2018.

18. The Tribunal is therefore satisfied the evidence, on balance, is that Ms Chapman did take action to enforce the court-ordered care on or about 23 August 2018, within a reasonable time from the date of the change in care notified by Mr Page as occurring on 16 July 2018.

19. Mr Page acknowledged in his evidence to the Tribunal at hearing that he did not take any action to initiate a family dispute resolution as required by subparagraph 53A(3)(a)(i) of the Act, but he did acknowledge that he participated in such a dispute resolution process on 17 September 2018, in accordance with the provisions of subparagraph 53A(3)(a)(ii).

20. The Tribunal is satisfied he took reasonable action within 14 weeks of the change in care date on 16 July 2018, but later than 26 weeks (see subsection 53A(1), table item 2(a) “conditions to be met”, and 2(b) “the interim period ends”).

21. The Tribunal is satisfied it is appropriate to grant an interim care period commencing on the change of care day, 16 July 2018 for a period of 14 weeks, ending on 23 December 2018.

22. Both parents acknowledged at the hearing that the dispute regarding [Child 1]’s care failed to resolve at the mediation on 17 September 2018, and although Ms Chapman said she engaged solicitors who sent a letter to Mr Page in November 2018, threatening further legal action, due to financial constraints, she has taken no further action since that date, and has had no care of [Child 1] since 16 July 2018.

23. Reverting to the requirements of subsection 51(3) of the Act referred to above, the first percentage of care to be determined for Ms Chapman is the percentage of care she was having under the Court Orders, prior to Mr Page’s notification on 18 July 2018. The Tribunal finds that percentage was 84%.

24. The evidence, on balance, regarding Ms Chapman’s likely care pattern from 16 July 2018 is that she has had no care of [Child 1] from that date onward. Accordingly, the second care percentage should be determined under section 49 of the Act at 0%.

25. The Tribunal therefore determines an interim care period should be applied from 16 July 2018 for a 14-week period commencing on the day Mr Page participated in the dispute resolution session on 17 September 2018, and ending on 23 December 2018 during which the care percentages to be recorded with respect to the child [Child 1] should be 84% to Ms Chapman and 16% to Mr Page. Thereafter, the care percentages to be recorded with respect to [Child 1] should be 0% to Ms Chapman and 100% to Mr Page.

DECISION

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

(a)    for the interim period 16 July 2018 to 23 December 2018, Ms Chapman is recorded as having 84% and Mr Page is recorded as having 16% care of [Child 1]; and

(b)    from the period 24 December 2018, Ms Chapman is recorded as having 0% and Mr Page is recorded as having 100% care of [Child 1].