Pascoe and Davenport (Child support)

[2018] AATA 3211

Pascoe and Davenport (Child support) [2018] AATA 3211 (15 June 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/BC013698 and 2018/BC013734

APPLICANT:  Miss Pascoe

OTHER PARTIES:  Child Support Registrar

Mr Davenport

TRIBUNAL:Member J Thomson

DECISION DATE:  15 June 2018

DECISION:

2018/BC013698

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

·Miss Pascoe had 41% care and Mr Davenport had 59% care of [Child 1] with effect from 8 June 2017.

2018/BC013734

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

·Make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision in 2018/BC013698 is 8 June 2017.

CATCHWORDS

Child support – Percentage of care – Change to the likely pattern of care – Existing percentages of care determinations revoked - New percentages of care determined – Decision under review set aside and substituted

Child support – Percentage of care - Date of effect of objection decision – Whether special circumstances prevented lodgement of the objection within time – Special circumstances exist - Determination made under subsection 87AA(2) - 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. Miss Pascoe and Mr Davenport are the parents of [Child 1] (born 2016).

2. Miss Pascoe seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 13 March 2018. This decision allowed Mr Davenport’s objection to a decision dated 27 July 2017 to accept her child support application and record [Child 1] as being in the 51% care (50% cost percentage) of Miss Pascoe, and the 49% care (50% cost percentage) of Mr Davenport with effect from 8 June 2017 to 30 November 2018.

3. The Department objections officer set aside the Department’s decision of 27 July 2017, and, in substitution, decided to accept Mr Davenport had 100% care and Miss Pascoe had 0% care of [Child 1] from 1 November 2016, with effect from the start date of the child support assessment, 8 June 2017, the effect of which would be to reduce Mr Davenport’s child support by a lump sum of $1,022.14 for the period his liability was collectable from 10 July 2017 to 2 March 2018, resulting in an overpayment of child support to Miss Pascoe of $433.06, and Mis Pascoe being required to pay Mr Davenport child support from 8 June 2017 in the amount of $420 for the period 8 June 2017 to 7 September 2017.

4. The Tribunal heard the matter on 22 May 2018. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it copies of documents provided by the Department. Both parents had copies of these documents with them at hearing. The Department’s documents were admitted into evidence and marked Exhibit 1.

5. At hearing, Mr Davenport provided further documents, comprising, relevantly, a [particular] Family Relationship [Centre]– Agreement to Participate agreement signed by both parents and the conducting mediation practitioner, [dated] 18 April 2017, and an unsigned Parenting Plan between the parents with respect to the child, [Child 1]. These documents have been admitted into evidence and marked Exhibits D1 and D2 respectively.

6. Copies of these documents were provided to Miss Pascoe via email by Mr Davenport during the course of the hearing for her perusal. She acknowledged receipt and did not offer any adverse comment in respect of those documents.

7. At the direction of the Tribunal at hearing, Miss Pascoe provided extracts from a contemporaneously compiled calendar diary she maintained for the months of June, July, August and September 2017 in which she recorded the nights of care she and Mr Davenport had of [Child 1] between 8 June 2017 and 27 September 2017.

8. Mr Davenport was provided with copies of these diary extracts for comment, and has confirmed his agreement with the respective parent’s nights of care recorded in those diary extracts for the period 8 June 2017 to 27 September 2017. These diary extracts have been admitted into evidence and marked Exhibit P1.

CONSIDERATION

1. The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989, (the Act). 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 is likely to happen thereafter?

2. In reaching its decision, the Tribunal has considered the affirmed evidence of both parents and the documents contained in Exhibits 1, D1, D2 and P1 respectively.

3. Both parents agreed at hearing that the care percentages from the date of registration of the assessment on 1 November 2016 to 8 June 2017, and from 27 September 2017 onward were as reflected in consent orders made by the Federal Circuit Court at [City 1] [on] 27 September 2017 (see Exhibit 1, pages 69 to 77); (the court orders), relevantly, 50% shared equal care. Both parents acknowledged that, since 27 September 2017, they have been abiding by the court orders as regards their care of [Child 1].

4. The parents also acknowledged and agreed that the issue they required the Tribunal to determine at hearing was the appropriate care percentages of each parent during the period 8 June 2017 and 27 September 2017.

5. The Tribunal considers it useful to record the relevant history of the events since the child support case was registered on 8 June 2017 up until the making of the court orders on 27 September 2017, as reflected in the Department’s documents, Exhibit 1, and the evidence of the parents at hearing.

6. Page 137 of Exhibit 1 records Miss Pascoe’s application to the Department for collection of child support for [Child 1] on 8 June 2017. The Department appears to have recorded the care arrangements with respect to [Child 1] at the time of Miss Pascoe’s application as being 100% in her favour.

7. At hearing, Mr Davenport gave evidence that the actual care the parties were having was shared equal 50% care in accordance with a mediated agreement the parents had reached at mediation on 18 April 2017, as evidenced by the documents he provided at Exhibits D1 and D2.

8. Miss Pascoe did not dispute his evidence in this respect. Accordingly, the evidence is that at the time Miss Pascoe applied to register the child support case on 8 June 2017, the parents’ care percentages were 50% equal shared care, and not 100% in favour of Miss Pascoe, as recorded at page 137, Exhibit 1 of the Department’s documents.

9. The Department’s file note at page 18 of Exhibit 1, purporting to record Miss Pascoe’s collection application, records the parents’ care percentages as 50% each, based on three nights care per week and alternate Saturday nights. This pattern is substantially reflected in a Parenting Plan Exhibit D2, referred to by Mr Davenport in his evidence.

10. Page 20 of Exhibit 1 records the Department’s telephone conversation with Mr Davenport on 27 July 2017 in which he informs the Department (amongst other things) that Centrelink has, or is in the process of, making a care determination (presumably with respect to the child, [Child 1]). The Department officer,  notes that the Department will apply Centrelink’s anticipated determination to the child support assessment to be issued by the Department in response to Miss Pascoe’s child support collection application.

11. According to this file note, Mr Davenport also informs the Department officer that no court orders, parenting plans or written agreements regarding [Child 1]’s care arrangements were in existence at that time. This is in conflict with the evidence given by Mr Davenport at hearing, as was the Department’s record as to the care arrangements regarding [Child 1] at page 137 of Exhibit 1.

12. The Tribunal accepts Mr Davenport’s evidence as to the actual pattern of care the parents were having as at the date of Miss Pascoe’s application for collection of the child support on 8 June 2017, in preference to that which is recorded in the Department’s file records.

13. Mr Davenport gave evidence at hearing that, on 27 July 2017, the evening of the day both parents spoke with different officers of the Department regarding the care arrangements with respect to [Child 1], he attended at Miss Pascoe’s home, in response to a dinner invitation, where he said he found [Child 1] alone in the back garden of the premises. Upon gaining entry to the house, he found Miss Pascoe in a drug induced sleep, and unable to be awakened.

14. He said he took [Child 1] to his home where she remained until 2 August 2017, when Miss Pascoe had care of her for two nights (2 and 3 August 2017), following which [Child 1] was returned to Mr Davenport’s care on 4 August 2017 until 6 September 2017, when Miss Pascoe collected her from [Child 1]’s child care centre, [without] Mr Davenport’s prior knowledge or consent.

15. A Department file note of 25 August 2017, at page 48 of Exhibit 1, records Mr Davenport contacting the Department to notify a change of care for [Child 1] following his visit to Miss Pascoe’s home on 4 August 2017 when he found [Child 1] locked outside and Miss Pascoe passed out due to drugs. Based on the evidence given by Mr Davenport, this must have been the event which occurred on 27 July 2017, and not on 4 August 2017: as recorded in the Department’s file note.

16. The documents at pages 53, 54 and 56 of Exhibit 1 reflect that Miss Pascoe was suffering from some form of serious substance abuse at this time, and that serious concerns were held by members of her immediate family for the safety and wellbeing of [Child 1], whilst she was in Miss Pascoe’s care.

17. The Department’s file note at page 64 of Exhibit 1 records a telephone conversation with Mr Davenport on 25 October 2017 in which he informs a Department officer of the change in care event which occurred on the night of 27 July 2017.

18. This file note also records the Department’s case documentation supporting Mr Davenport’s notification of the change in care on the night of 27 July 2017 to the Department and Centrelink, but suggests that no change in care investigation was initiated because the Department was awaiting a Family Assistance Office determination in respect of the change in care event on the night of 27 July 2017.

19. The file note records Mr Davenport informing the Department of [Child 1] being in his 100% care from 27 July 2017 until 6 September 2017, and his attendance at his local Centrelink office on 11 September 2017 to notify the further change in care which occurred on 6 September 2017 when Miss Pascoe collected [Child 1] from her child care centre without Mr Davenport’s prior knowledge or consent.

20. Mr Davenport gave evidence that after he became aware that Miss Pascoe had taken [Child 1] from her child care centre on 6 September 2017, he initiated proceedings in the Federal Circuit Court, [City 1] for the court orders referred to above, resulting in the restoration of the earlier 50% equal  shared care for the child from 27 September 2017. Page 68 of Exhibit 1 records Mr Davenport providing a copy of the court orders to the Department on 26 October 2017.

21. The Department’s file note of 25 October 2017 at page 65 of Exhibit 1 also records the Department officer who took Mr Davenport’s call on that date contacting an officer of the Family Assistance Office [and] enquiring as to the status of two changes in care on 27 July 2017 and 6 September 2017, notified by Mr Davenport to the Family Assistance Office on 24 August 2017 and 11 September 2017 respectively.

22. The response was that no determinations had been made, that the officer [would] be escalating the process to a dispute care team, and that, amongst other issues, Family Assistance Office notes indicated that Ms Pascoe was disputing Mr Davenport’s care percentage information.

23. The file note also records discussions regarding Mr Davenport’s acknowledgement that he had not paid child support during the child support arrears period 10 July 2017 to 9 October 2017, or the opt in date, 10 October 2017.

24. The Department’s file note at page 92 of Exhibit 1, relevantly records Mr Davenport’s telephone call to the Department at 13:28 on 15 January 2018 to register his objection to the Department’s decision of 27 July 2017 on the grounds that the decision gave rise to arrears of child support payable by Mr Davenport from 12 July 2017, a period during which he contended [Child 1] was not in Miss Pascoe’s care.

25. This recorded conversation is in conflict with the grounds of objection to the Department’s decision of 27 July 2017 as set out in the Department’s file note at page 94 of Exhibit 1 of a further telephone conversation with Mr Davenport at 15:02 on 15 January 2018 which sets out his objection to the Department’s decision of 27 July 2017 to reflect the care of [Child 1] as per the parenting plan as 50/50 from 1 November 2016, effective in the assessment from 8 June 2017 as being grounded on Miss Pascoe not having 50% shared care of [Child 1] as per the Parenting Plan agreed between the parents at mediation on 18 April 2017,  because she was not drug free at the relevant time and [Child 1] was not in a safe environment, and for that reason, [Child 1] had been removed from her care.

26. The file note records Mr Davenport saying he was objecting to the Department requiring him to pay child support arrears from 10 July 2017 to 9 October 2017 when [Child 1] was in his care for most of that period.

27. The period he was referring to could only be the period from 27 July 2017 to 6 September 2017, following his removal of [Child 1] from Miss Pascoe’s home on the evening of 27 July 2017, when he found the child alone in the back garden of the house and Miss Pascoe in a drug induced sleep inside the house.  

28. According to the Department’s file notes at page 94 of Exhibit 1, the Department officer, with whom Mr Davenport was speaking on 15 January 2018, advised him that he would need to make a special circumstance application in order to have his objection applied from an earlier date, to which he responded that he had only recently been advised of the Department’s decision to accept Miss Pascoe’s collection application, and realised that the recorded care percentages were not in accordance with his understanding of the actual care taking place at the time of her application.

29. The file note also records him informing the Department officer that he had lodged an objection to the Department’s care decision on 9 August 2017, but the Department’s objection in-tray had been deleted on 28 August 2017.

30. The Department’s file note also records Mr Davenport advising the Department officer that he had notified Centrelink on 25 August 2017 of a change in care for [Child 1] from 4 August 2017, but this notification had never been finalised because Miss Pascoe took [Child 1] back into her care on 6 September 2017, following which he applied to the Federal Circuit Court for the court orders of 27 September 2017, effectively restoring the parents’ care for the child to 50% shared equal care.

31. At hearing, the parents acknowledged and agreed they accepted the care percentages at 50% shared equal care for [Child 1] for the period up to 8 June 2017, and as per the court orders from 27 September 2017, but required the Tribunal to determine the care percentages of each parent for the period 8 June to 27 September 2017.

32. Miss Pascoe gave evidence that she had maintained a calendar diary of the nights for which the respective parents had care of [Child 1] from 8 June 2017 to 27 September 2017, and provided copies of those calendar extracts (see Exhibit P1). As noted above, these were provided to Mr Davenport for comment and he has since communicated his acceptance of the recorded dates of care to the Tribunal.

33. Based on the agreed nights of care provided by Miss Pascoe in Exhibit P1, the Tribunal finds that for the period 8 June 2017 to 27 September 2017 (122 nights), Mr Davenport had a total of 66 nights (59%) care, and Miss Pascoe had 46 nights (41%) care of [Child 1].

CONCLUSION

1. The above analysis of the Department’s file records suggests this matter has been attended by a great deal of confusion as to the facts and circumstances surrounding the actual care provided by the parents for [Child 1].

2. Sections 49 and 50 of the Act provide for the determination of care percentages on the basis of the actual care which is taking place with respect to the child.

3. The Tribunal finds the following to be the relevant facts and circumstances in this matter:

   1. Miss Pascoe applied to the Department for collection of child support for [Child 1] from Mr Davenport on 8 June 2017;

   2. At the time of her application, she reported the care actually taking place with respect to [Child 1] was 50% equal shared care;

   3. Mr Davenport provided evidence that the parents had attended mediation on 18 April 2017 and had agreed on a Parenting Plan which reflected the care for [Child 1] as 50% equal shared care from that date (see Exhibits D1 and D2). Miss Pascoe did not challenge his evidence;

   4. On 27 July 2017, the Department made a decision to accept Miss Pascoe’s application for collection of child support from Mr Davenport, and notified him of that decision on 27 July 2017(see page 23 of Exhibit 1);

   5. On the evening of 27 July 2017, Mr Davenport removed [Child 1] from Miss Pascoe’s care when he found [Child 1] unattended in the back garden of Miss Pascoe’s home and Miss Pascoe in a drug induced sleep inside her house;

   6. On 9 August 2017, Mr Davenport attempted to lodge an objection to the Department’s decision of 27 July 2017 via the Department’s objection lodgement in-tray, but the in-tray facility was deleted on 28 August 2017, and for various reasons, largely attributable to confusion between Centrelink, the Family Assistance Office and the Department, Mr Davenport’s objection was not processed;

   7. Based on the evidence given by the parties at hearing, and the care recorded by Miss Pascoe in her calendar diaries, Exhibit P1, accepted by Mr Davenport,  the Tribunal has found that the parents had care of [Child 1] at various times during the period 8 June 2017 to 27 September 2017 as reflected in Exhibit P1;

   8. On 6 September 2017, Miss Pascoe collected [Child 1] from her child care centre;

   9. On 11 September 2017, Mr Davenport notified his local Centrelink office of the change in care for [Child 1] which occurred when Miss Pascoe collected the child from her child care centre on 6 September 2017;

   10. Although Centrelink received notification of that change in care, no further action was taken to formalise the change in care;

   11. On 27 September 2017, the parents consented to the court orders made by the Federal Circuit Court at [City 1], relevantly, restoring the care for [Child 1] to 50% equal shared care from 27 September 2017;

   12. Mr Davenport notified the Department of the court orders on 26 October 2017 (see page 68 of Exhibit 1);

   13. The parents have abided by the court orders since that date.

1. In accordance with the care reflected in Miss Pascoe’s calendar diary extracts, Exhibit P1, agreed to by the parents, the Tribunal finds that for the period of 112 nights from 8 June 2017 to 27 September 2017, Mr Davenport had 59% care (66 nights / 112 x 100 = 59%), and Miss Pascoe had 41% care (46 nights / 112 x 100 = 41%) of [Child 1].

2. The Tribunal is satisfied Mr Davenport attempted to lodge an objection to the Department’s decision of 27 July 2017 on 9 August 2017, and in any event, has demonstrated special circumstances prevented him from lodging an objection within the prescribed 28 day period from the date of notification by the Department of its decision on 27 July 2017.

DECISION

2018/BC013698

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

·Miss Pascoe had 41% care and Mr Davenport had 59% care of [Child 1] with effect from 8 June 2017.

2018/BC013734

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

·Make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 with the consequence that the date of effect of the Tribunal’s decision in 2018/BC013698 is 8 June 2017.