Petric and Petric (Child support)

[2023] AATA 4660

Petric and Petric (Child support) [2023] AATA 4660 (14 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/BC026634

APPLICANT:  Mr Petric

OTHER PARTIES:  Child Support Registrar

Ms Petric

TRIBUNAL:Member S Irvine

DECISION DATE:  14 December 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – care arrangement in place through parenting order – whether parent taken reasonable action to ensure that the care arrangement is complied with – reasonable action not taken – no interim determination to be made – change to pattern of care – decision under review affirmed

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 Petric and Ms Petric are the parents of [Child 1] born in 2009, [Child 2] born in 2011 and [Child 3] born in 2014. There has been a child support assessment for the children since 27 May 2020. The children were recorded as being in Ms Petric’s care for 62% of the time and Mr Petric’s care for 38% of the time since 9 August 2021.

2. On 14 June 2023 Services Australia – Child Support (Child Support) decided to revoke the existing percentages of care for all three children and make new care determinations that the three children were in Ms Petric’s 100% care from 27 May 2022. Child Support decided that it had been notified of the change in care on 13 June 2023, and consequently that Mr Petric’s new care percentages applied in the child support assessment from 27 May 2022 and Ms Petric’s new care percentages applied in the child support assessment from 13 June 2023.

3. On 16 June 2023 Mr Petric objected to the decisions of 14 June 2023. On 18 August 2023 Child Support disallowed Mr Petric’s objection.

4. On 21 August 2023 Mr Petric applied to this Tribunal for a review of Child Support’s decisions. A hearing was held on 14 December 2023, Mr and Ms Petric attended the hearing by telephone and gave sworn evidence. The Tribunal had regard to documents submitted by the Child Support Registrar (folios 1–240), and Mr and Ms Petric confirmed at hearing that they had received copies of those documents prior to the hearing. The Tribunal also had regard to documents submitted to the Tribunal by Mr Petric prior to the hearing (folios A1–A14). Ms Petric confirmed at the hearing that she had received copies of those documents.

ISSUES

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

2. The issues which arise in this case are:

   ·      Should the existing percentage of care determinations for the three children be revoked, and if so from what dates; and

   ·      If so, what new care determinations should be made?

CONSIDERATION

1. Sections 49 and 50 of the Act provide that determinations of the percentage of care for a child must be made in certain circumstances, including relevantly where an existing care determination for a child has been revoked. I must therefore first consider whether the existing care percentages for the children of 62% to Ms Petric and 38% to Mr Petric are to be revoked.

2. Subsection 54F(1) of the Act sets out circumstances in which a determination of a percentage of care must be revoked. Specifically, a determination must be revoked pursuant to section 54F if:

   ·      the care of the child that is actually taking place does not correspond with a parent’s existing percentage of care for the child;

   ·      a new care determination corresponding with the parent’s actual care would change that parent’s “cost percentage” for the child;

   ·      section 54G does not apply; and

   ·      subsection 54F(2) applies.

3. There is no dispute in this matter that Ms Petric has had 100% care of all three children from 27 May 2022, or that Child Support was first notified of the change in care on 13 June 2023. I am satisfied that if new care percentages corresponding with each parent’s actual care were made, they would change the cost percentages for the children in accordance with section 55C of the Act.

4. I am satisfied that in this case section 54G does not apply, because that section can only apply if, among other things, the person with increased care notifies the Child Support Registrar of the change in care within a time that is reasonable in the circumstances. In this case Ms Petric did not notify Child Support of the change in care until 13 June 2023, more than 12 months after the change occurred. I therefore find that the change in care was not notified within a reasonable time in the circumstances. I am also satisfied that subsection 54F(2) applies.

5. As all the conditions set out in subsection 54F(1) apply, the existing care determinations must be revoked, and therefore new care determinations must be made for the children.

6. Subsection 54F(3) of the Act provides that where a care determination is revoked under section 54F, and the care change was notified more than 28 days after the date the care actually changed, the existing care determinations are revoked on different days for each parent. The effect of paragraph 54F(3)(b) is that the existing care determinations for Mr Petric are revoked on 26 May 2022, the day before the care actually changed, and the existing care determinations for Ms Petric are revoked from 12 June 2023, the day before Child Support was notified of the change.

7. Section 51 of the Act provides that in certain circumstances where new care determinations are to be made under section 49 or 50, an “interim” care determination can be made. Essentially this means that a care decision can be made in accordance with the amount of care a parent should have under a care arrangement, rather than in accordance with the actual care the parent has of a child, and that care decision can apply in the child support assessment for a period of time.

8. Subsection 51(1) provides relevantly that section 51 applies if the following provisions are met:

   ·      A care arrangement applies in relation to the child; and

   ·      The Registrar is satisfied that the actual care of the child does not comply with the care that should be taking place under the care arrangement; and

   ·      The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.

9. A care arrangement is defined in section 3 of the A New Tax System (Family Assistance) Act 1999 as including a parenting order within the meaning of section 64B of the Family Law Act 1975. It is not disputed that a parenting order was made in relation to the three children on 9 August 2021, and that under the terms of that order the children are to spend time with Mr Petric for five nights per fortnight during school terms, and for essentially half of each school holiday. It is not disputed that this equates to Mr Petric having care of the children for 38% of the time.

10. There is no suggestion that the parenting order has been set aside or otherwise ceased to apply. On that basis I find that there is a care arrangement that applies to the three children. I also find that the actual care of the children that has occurred since 27 May 2022 does not comply with the care that should be taking place under that care arrangement. The question to be determined is whether Mr Petric, as the parent with reduced care, has taken reasonable action to ensure that the care arrangement is complied with.

11. Mr Petric said at the hearing that initially the parenting order was being followed and he was having care in accordance with that order, however over time breaches of the order started to occur. Mr Petric alleged that Ms Petric had breached the order on a number of occasions, and in particular earlier in 2022 she had stopped letting him have care of the children on Monday nights, even though he made it clear that he didn’t agree with that change. He also felt that his relationship with the children was deteriorating, and he attributed that to Ms Petric undermining that relationship. Due to his concerns, Mr Petric discussed the matter with a family lawyer, who advised him that it would be best to try to address the situation through mediation or counselling. Mr Petric approached [Organisation 1] to arrange family dispute resolution.

12. Mr Petric said that he last had overnight care of the children in May 2022. On that last weekend that he had care of them he had felt that his relationship with them had significantly deteriorated and he felt he was being alienated from them. It had become clear that the children were lying to him about things that were happening, and they were misbehaving. So he told the children that he wanted to continue to see them, but he explained that there were certain values that he expected them to uphold, and that he would leave it up to them whether they wanted to continue to see him.

13. He was next due to have care of the children on Monday 27 May, but he didn’t really expect that care to occur as it was a Monday night and he hadn’t had care of the children on a Monday night for some time. He tried to contact Ms Petric prior to his next scheduled care which would have been the first weekend in June, but he got no response. He didn’t take any other action at that time because he had the family dispute resolution appointment coming up and he hoped that it would be sorted out then.

14. Mr Petric said he attended a meeting with [Organisation 1] on 1 June 2022, and he expected that a mediation session would occur in the month or so after that. However, in early September he received a section 60i Certificate from [Organisation 1], stating that the matters he wished to address through the Family Dispute Resolution Services had been assessed as unsuitable.

15. Mr Petric acknowledged that he didn’t take any further steps to seek legal advice about having the parenting order complied with. His previous advice had been that it would be better to address the issues through mediation, but he also didn’t seek any further mediation or counselling sessions as he didn’t see the point. He said that he did continue to try to contact the children and to see them, but to no avail. At that point he felt the parenting order had “gone out the window”.

16. Mr Petric said he next saw the children on 16 June 2023, when he spent the day with them at [Event 1]. Following that he again consulted a family lawyer, hoping to return to having overnight care of the children.

17. Ms Petric told the Tribunal that she has never withheld care of the children. From her perspective, the problems largely started when Mr Petric moved house. He had previously lived close to her home and close to the children’s school, but around early 2022 he moved to a new home about 30km away. That made it difficult for the children as they had different activities at school requiring different uniforms and equipment and different weekend activities. When Mr Petric lived close by it was easy to drop off or pick up different items from home, but when he moved further away that was much more difficult. As a result, the children became reluctant to spend Monday nights with Mr Petric. Ms Petric also said there had been a deterioration in Mr Petric’s relationship with the children and in particular she said there was an incident in March 2022 when Mr Petric whipped one of the children with a belt, in the presence of the other two children. From that time, the children had been more reluctant to stay with their father.

18. Ms Petric said that after the last weekend the children spent with their father, the children all told her that their father had told them their behaviour was unacceptable and that he didn’t want to see them any more and told them they should contact him if they wanted to start seeing him again. At that stage things had been difficult for a while and they were happy to stop going to stay with him. They then didn’t hear from Mr Petric for some time, until December of that year when he made contact to ask when it would be a good time to drop off Christmas presents for the children. Ms Petric said she did attend a meeting with [Organisation 1] about proposed family dispute resolution in May 2022.

19. There is no specific definition of “reasonable action” in the Act. The Child Support Guide, published by the Department of Social Services, provides at 2.2.4 that reasonable action could include:

    ·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement

    ·making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to

    ·seeking or obtaining legal advice regarding the making of a court order

    ·filing an application to a court to have an order made or enforced

    ·attending a hearing at court to seek an order to be made or enforced, or

    ·notifying the police that the child has been taken without consent.

20. I accept that Mr Petric did want to continue to see his children after 27 May 2022, and I accept his evidence that he did make some effort to contact the children. However, I note that by his own admission the children stopped staying with him after he had told them that he was leaving it up to them whether they wanted to keep coming or not. I also note that Mr Petric submitted to the Tribunal a draft letter to Ms Petric prepared by [Ms A] of [Law Firm 1]. That letter states in part:

    We are instructed that following Consent Orders being made on 9 August 2021 providing that your children [Child 1], [Child 2] and [Child 3] spent overnight time with [Mr Petric], a mutual understanding occurred in or about May 2022 where the children elected to spend no overnight time with him.

    [Mr Petric] reluctantly accepted the position of the children expressed at that time in circumstances where he formed the view that the relationship between he and the children had deteriorated. We are instructed that despite overnight time ceasing, [Mr Petric] has maintained communication with the children by telephone.

21. I find that although Mr Petric did take some steps to maintain contact with the children after 27 May 2022, his actions could not be viewed as taking reasonable action to ensure the parenting order was complied with. On that basis, I find that section 51 does not apply, and no interim determination can be made.

22. As section 51 does not apply, new care determinations must be made for the three children in accordance with the actual care that has occurred. Pursuant to section 49 I find that Mr Petric has had no pattern of care for the children since 27 May 2022, and the percentage of care determined for him in relation to each child is therefore 0%. Pursuant to section 50 I find that Ms Petric has had a pattern of care of 100% for the children since 27 May 2022, and the care determined for her in relation to each child is therefore 100%.

23. I note for completeness that the Child Support Guide currently provides that section 51 would in any event not apply in this situation. The Guide at 2.2.4 currently provides as follows:

    However, an interim determination will only be made where it is the first care percentage determination in relation to a responsible person’s care of a particular child. This is because an interim determination cannot be made where there was an existing care percentage determination that has been revoked.

    I understand that position to be a reference to paragraph 53(1)(c) of the Act, which currently provides that:

    (1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:

    ….

    (c)  the Registrar has revoked the determination under section 54F or 54H.

    In my view paragraph 53(1)(c) of the Act is ambiguously worded, and its actual effect is not entirely clear. However, as I have found that in this matter section 51 will not apply in any event, that question does not need to be resolved for the purpose of this review.

24. Section 54B of the Act provides relevantly that the new care determination for each parent applies in the child support assessment from the day after the previous determination is revoked. This means that Mr Petric’s new care percentages of 0% for each of the children will apply from 27 May 2022, and Ms Petric’s new care percentages of 100% for each of the children will apply from 13 June 2023. 

25. As I have reached the same conclusion as the objections officer in this matter, the decision under review is affirmed.

DECISION

The decision under review is affirmed.