Parham and Buckby (Child support)

[2021] AATA 3692

Parham and Buckby (Child support) [2021] AATA 3692 (5 August 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021640

APPLICANT:  Mr Parham

OTHER PARTIES:  Child Support Registrar

Ms Buckby

TRIBUNAL:Member Y Webb

DECISION DATE:  05 August 2021

DECISION:

The Tribunal sets aside the decision under review and in substitution, decides that the care percentages in relation to the children were 100% to Ms Buckby and 0% to Mr Parham from 26 January 2021 with a date of effect on the child support assessment of 1 April 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – determination of the likely pattern of care from the start of the administrative assessment - decision under review affirmed

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. This review is about the percentages of care of Mr Parham and Ms Buckby in relation to their children who are nine and eight years old. (“the children”).

2. On 1 April 2021, Ms Buckby applied for a child support assessment with Services Australia (Child Support Agency).  She declared that the children were in her 100% care and that that had been the case since 26 January 2021.

3. In accordance with the sharing of information between Centrelink and the Child Support Agency, Centrelink informed the Child Support Agency that its records showed that the care of the children was 100% to Ms Buckby from 1 February 2021.

4. On 13 April 2021 the Child Support Agency contacted Mr Parham.  He stated that the children had been taken out of his care on 26 January 2021 by Ms Buckby and that prior to that date he had had 100% care of the children since 2018.  He stated that he was now having supervised day time visits with the children.

5. On 13 April 2021, a delegate of the Registrar decided that the care of the children was 100% to Ms Buckby and 0% to Mr Parham from 1 February 2021 with a date of effect of 1 April 2021 that being the date that Ms Buckby applied for a child support assessment.

6. On 15 April 2021, Mr Parham objected to that decision and contended that an interim period should be applied to the assessment.

7. On 20 May 2021, an objections officer decided that Mr Parham’s objection should be disallowed.

8. On 1 June 2021, Mr Parham requested a review by the Administrative Appeals Tribunal (“the Tribunal”).

9. Both parents attended the hearing on 5 August 2021 by way of a telephone conference and both gave evidence on affirmation.

10. The Child Support Agency provided a bundle of documents relevant to this matter and this was marked Exhibit C1. 

ISSUES

1. The issues for the Tribunal to determine are:

• the percentages of care of the children for Mr Parham and Ms Buckby;

• does a “care arrangement” apply to the children; and if so,

• whether an interim determination should be made.

CONSIDERATION

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

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed or the date that the child support assessment commenced and reflecting the actual care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period was appropriate in this case (noting that this will apply until a further change of care is notified and determined).

4. The pattern can be established either according to a “care arrangement” or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement”. Section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes “a written agreement between the parents of the child.that relates to the care of the child”.  The Child Support Guide at 2.2.4 provides further clarification on what constitutes a “written agreement”.  It states that the agreement must be in writing; be signed and dated by both parties; and it must be clear that both parties agree on the care arrangements specified in the document.  It also states that a document that acknowledges that care is occurring in a particular way does not constitute a written agreement even if it is signed by both parties.  Rather, the written agreement must indicate that the care arrangement constitutes an agreed, ongoing care arrangement for the child.

6. In this case there is a dispute about whether there was a care arrangement in the form of a written agreement regarding the care of the children. 

7. Mr Parham contended that there was a written agreement regarding the care of the children.  He referred to an “Application for Consent Orders” which was filed in the Family Court of Australia on 9 June 2020.  This application stated that the children “will reside 100% with Mr Parham” and refers to the “attached consent order”[1].  The consent order states that “Mr Parham will take full parental responsibilities of son (name) and daughter (name) and (the children) will live with Mr Parham 100% of time throughout the year defined as 52 weeks or 356 days.  Ms Buckby’s future assistance may be required when it is genuinely needed.  Mr Parham will be solely and fully responsible for all living expenses incurred by the children up to their legal independent age as defined by Australian law, ie age of 18 and/or beyond”[2]. 

   [1] C1-page 97

   [2] C1-page 121

8. Ms Buckby responded that the consent orders were never approved.  She stated that they were rejected by the Registrar of the court.  She stated that she was advised to obtain legal advice about the draft application.  She stated that she was referred to and accepted the advice to engage a solicitor through Legal Aid.  She stated that the court application should not be relied upon as it was never accepted by the court.  Ms Buckby stated that she was excluded from the children’s lives by Mr Parham for more than two and a half years. 

9. The Tribunal considered the statements of the parents and the documentation within the C1 papers. In relation to the care arrangements as detailed in the draft application for consent orders filed on 9 June 2020 Mr Parham agreed that they were rejected by the Registrar but maintained nevertheless that they constituted a care arrangement which was not being complied with for the purposes of section 51 of the Assessment Act.

10. The Tribunal is not satisfied that the application for consent orders which was rejected by the Registrar; was never allocated a file number; was never finalised and which Ms Buckby did not support constituted a genuine, written agreement about the care of the children. The Tribunal finds that the application for consent orders, filed with the Family Court on 9 June 2020, is not a care arrangement for the purposes of the Assessment Act.

11. Mr Parham also contended that the written “undertaking” by Ms Buckby dated 24 December 2020 and signed only by Ms Buckby in relation to the care of the children between 23 December 2020 and 11 January 2021 was a “care arrangement” for the purposes of the Act.  However, the Tribunal is not persuaded that that document constitutes a “written agreement” as it is not signed and dated by both parties and only relates to a short period of time between 23 December 2020 and 11 January 2021.  Mr Parham contended that the duration of that holiday period should be extended by reference to the letters of the parents’ respective lawyers which included proposals for care of the children up to the commencement of term one, 2021.  However, the Tribunal finds that proposals from the lawyers does not constitute a “care arrangement” on the grounds that those proposals did not constitute an agreement by the parents; they were not signed and dated by both parents and they did not constitute agreed ongoing care arrangements for the children.

12. Hence, the Tribunal finds that there was no care arrangement in the form of a written agreement in existence at the time that the children went into the 100% care of Ms Buckby on 26 January 2021 and therefore that the actual care of the children is the determinant in relation to the percentages of care of the children.  The Tribunal acknowledges that there have been multiple court orders since 26 January 2021; however, these all post-date the change in care which occurred on 26 January 2021. 

13. Because there was no care arrangement in place at the time that the care of the children changed, the Tribunal cannot consider making an interim care determination.

14. Section 54A of the Assessment Act then provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

15. In this case, Mr Parham and Ms Buckby did not contend that nights were an unsuitable measure of the care of the children and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

16. There was no dispute between the parents that on 26 January 2021 the children went from the 100% care of Mr Parham and the 0% care of Ms Buckby into the 100% care of Ms Buckby and the 0% care of Mr Parham and the Tribunal so finds.

17. The Tribunal notes that the objections officer decided that the change in care occurred on 1 February 2021 following an incident which occurred on 26 January 2021.  The Tribunal also notes that 1 February 2021 was the date which Centrelink had notified as the change of care date.  However, both parents were clear in their recollection that the date when the care changed was 26 January 2021.  Whichever of those two dates (26 January 2021 or 1 February 2021) is determined makes no difference to the date of effect on the child support assessment – that being when Ms Buckby made her application for a child support assessment on 1 April 2021.  However, for the sake of the record being accurate the Tribunal will set aside the decision of the objections officer and substitute its decision that the percentages of care were 100% to Ms Buckby and 0% to Mr Parham from 26 January 2021 with a date of effect on the child support assessment of 1 April 2021.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentages in relation to the children were 100% to Ms Buckby and 0% to Mr Parham from 26 January 2021 with a date of effect on the child support assessment of 1 April 2021.