Pretorius and Child Support Registrar (Child support)

[2020] AATA 3670

Pretorius and Child Support Registrar (Child support) [2020] AATA 3670 (1 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019029

APPLICANT:  Mr Pretorius

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J D'Arcy

DECISION DATE:  1 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – percentage of care correctly determined - 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. This review concerns the care percentages used in a child support assessment made by the Department of Human Services – Child Support (Child Support) (now Services Australia) for [Child 1], [Child 2] and [Child 3], the children of Mr Pretorius and Ms [A].

2. On 2 September 2019 a child support assessment commenced between Mr Pretorius and Ms [A], with 100% of care of [Child 1], [Child 2] and [Child 3] attributed to Ms [A] and 100% of [Child 4’s] care attributed to Mr Pretorius.

3. Mr Pretorius disputes the level of care attributed to Ms [A] for his daughters, relying on an undated and unsigned order made in the Federal Circuit Court which stated:

   Commencing on 1 February 2019 the children spend time with the father as agreed between the parents and failing agreement each alternate weekend from after-school or 3 PM on non-school days until the commencement of school on Monday or 9 AM on non-school days.

   Unless otherwise agreed between the parents the time provided for in the previous Order shall:

   ·          primarily occur at the home of the paternal grandparents:

   ·          shall be substantially in the presence of either of the paternal grandparents:

   ·          shall involve all of the children as a group.

4. On 2 September 2019 Mr Pretorius objected to the decision contending that he had care of his daughters every second weekend, three nights in school terms, at least one half of the school holidays and on other special occasions. On 20 February 2020 Child Support disallowed his objection.

5. On 13 May 2020 Mr Pretorius applied for a review of the decision to the Administrative Appeals Tribunal (the tribunal).

6. Child Support provided Mr Pretorius, Ms [A] and the tribunal with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 statement and documents (114 pages).

7. The hearing took place with Mr Pretorius by telephone on 1 July 2020. Ms [A] had been removed as a party prior to the proceedings.

ISSUES

1. The issues which arise in this case are:

   ·      whether there should be a change to the care percentages used in a child support assessment for the period; and, if so,

   ·      what care percentages should be used?

   ·      what is the date of the change to the care percentages? and

   ·      what is the date of effect of the tribunal’s decision?

CONSIDERATION

1. The court order, which Mr Pretorius described as an interim court order, was purportedly made on 1 February 2019. It stated that the children were to spend time with Mr Pretorius as agreed between the parties or, where there is no agreement, every alternate weekend.

2. Mr Pretorius stated that he has had very little contact with the children and could only recall that he had care of his daughters for two nights in December 2019. His daughters are mostly cared for by his parents, whom he described as being so intimidated by Ms [A], that they will not notify him to allow him to see them when the children are in their care.

3. Mr Pretorius’s evidence in the hearing was in sharp contrast to the evidence provided by his representative and partner, Ms [named], who stated that he continues to care for the children three nights a fortnight. He collects the children from his parents’ house. On the rare occasion he has work commitments the children sleep over at their grandparents’ house. She requested that the statement made by his mother regarding her care of the children should be disregarded because she is not of sound mind and the statement was obtained through manipulation.

4. The tribunal notes that Mr Pretorius [Senior], grandfather, stated that his son has not continued to care for the children three nights a fortnight and the children always sleep at his place on his son’s nights. Medical evidence was provided by Mrs Pretorius [Senior’s] general practitioner that she does not have a mental illness.

5. The tribunal found that the pattern of care for [Child 1], [Child 2] and [Child 3] was established by the Federal Circuit Court order purportedly made on 1 February 2019 and that the care period commenced at the date of commencement of the Child Support assessment on 1 September 2019. On balance, the tribunal accepted the evidence from Mr Pretorius, which is consistent with the evidence of his parents, that he is not currently caring for the children on the nights designated under the court order.

6. The tribunal found that the order creates a care arrangement and the care arrangement has not been complied with.

7. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child. However, this may not apply if a care arrangement applies and that care arrangement is not being complied with.

16.Section 51 of the Act states that an interim care determination may be made if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the court order complied with. The term “reasonable action” is not defined in the Act, but the government policy on this issue is explained in the Child Support Guide (the Guide), which states, at paragraph 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 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.

1. Mr Pretorius advised that he was representing himself in the Family Court matters. He attended a court hearing in December 2019 and telephone hearings on 6 and 8 May 2019 when directions were made for the hearing scheduled for September 2020. When asked what attempts he had made to enforce the order he stated that he had raised the matter in court, with the children’s solicitor and in the May hearings but no action had resulted. He felt that there was a need for an investigation to discover where the children were actually living. He repeatedly stated in the hearing that he has no problem paying child support as long as he is paying it to the person or persons who are caring for the children.

2. On the basis of Mr Pretorius’s evidence the tribunal was satisfied that he had not taken reasonable action to enforce the court order. Raising the matter in a hearing with no follow-up action does not constitute reasonable action. Therefore an interim care determination could not be made.

1. The decision made by Child Support to make a care determination on the basis of the actual care which is occurring is reasonable and appropriate in the circumstances.

2. The tribunal was not satisfied that there should be a change to the care percentages used in the child support assessment from 1 September 2019.

DECISION

The decision under review is affirmed.