Pridgen and Abramov (Child support)

[2021] AATA 1761

Pridgen and Abramov (Child support) [2021] AATA 1761 (22 April 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020716

APPLICANT:  Mr Pridgen

OTHER PARTIES:  Child Support Registrar

Ms Abramov

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  22 April 2021

DECISION:

The decision under review is affirmed.

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 – no interim determination – 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 a change to the percentage of care determinations for Mr Pridgen and Ms Abramov in respect of [their child] (born March 2006).  There has been a child support assessment in place since 24 November 2006.

2. From 5 May 2010 the child support assessment reflected Mr Pridgen as having 24 per cent care and Ms Abramov as having 76 per cent care of [the child].

3. On 18 June 2020 Ms Abramov advised the Child Support Agency of a change in care stating that she had 100 per cent care of [the child] from 30 November 2018.

4. On 13 July 2020 the Child Support Agency made the decision that Mr Pridgen provides 0 per cent care and Ms Abramov provides 100 per cent care of [the child] from 30 November 2018 but with effect from 30 November 2018 for Mr Pridgen and from 18 June 2020 for Ms Abramov.

5. On 24 July 2020 Mr Pridgen objected to this decision and on 29 January 2021 the Child Support Agency disallowed the objection (the objection decision).

6. On 3 February 2021 Mr Pridgen applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 22 April 2021.  Mr Pridgen and Ms Abramov gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (128 pages).

ISSUES

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

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act).  In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter.  The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act says that a care determination may be made (known as an interim determination) if a care arrangement is not being complied with and the parent with reduced care takes “reasonable action” to have the care arrangement complied with.

6. The issues which arise in this case are:

   ·     whether or not there has been a change in the pattern of care for [the child] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new percentage of care determinations take effect; and

   ·     whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Mr Pridgen told the Tribunal there were court orders in place relating to the care of [the child], however, Ms Abramov was in breach of those orders by not facilitating care.

2. Mr Pridgen said Ms Abramov was preventing [the child] from seeing him even though he wanted to spend time with her.  Mr Pridgen explained that he lived in Sydney and [the child] lived with her mother in [City] and he had been forced to cancel flights for [the child] to spend time with him on numerous occasions because Ms Abramov had failed to encourage her to visit.

3. The Tribunal notes in evidence from the Child Support Agency a copy of orders relating to the care of [the child] issued by the Federal Circuit Court of Australia on 29 August 2017.  These orders state that Mr Pridgen is to have care of [the child] during all school holiday periods as well as two nights on the fifth weekend of each school term and one weekend each school term in the [City] area.

4. Mr Pridgen acknowledged the court orders had not been followed for several years but said he had tried to comply with them from day one.  He said he last had care of [the child] for two nights on 13 and 14 January 2020 when unfortunately, due to an incident, she left his care early without his knowledge and returned to her mother in [City].  Mr Pridgen said prior to that he had care of [the child] for two nights on 5 and 6 April 2019.

5. Mr Pridgen reiterated that Ms Abramov was not adhering to the court orders by failing to send [the child] for visitation.  He said Ms Abramov was manipulating the system for financial gain.

6. Mr Pridgen told the Tribunal mediation had not worked with Ms Abramov in the past and was a lost cause.  He said the parents had not tried mediation since Ms Abramov had notified the Child Support Agency that care had changed.  Mr Pridgen added that he could not afford to go back to court in an attempt to have the court orders enforced.

7. Ms Abramov told the Tribunal that she was not withholding care of [the child] but rather [the child] did not wish to stay with Mr Pridgen.  Ms Abramov said the parents had tried to follow the court orders initially but [the child] had soon refused to stay with her father. Ms Abramov said despite her best efforts to encourage [the child] to spend time with Mr Pridgen she would not.

8. Ms Abramov said that in the past two years Mr Pridgen had care of [the child] for only four nights.  Ms Abramov said although [the child] had been refusing to stay with Mr Pridgen well before 30 November 2018 she thought this was a date when [the child] was supposed to visit with him.  Ms Abramov said there was no particular event on that date but rather that it was the date she recalled [the child] not wanting to spend time with her father again.

9. Ms Abramov said the only attempts at mediation were well before earlier court orders in 2010.  She said no recent attempts at mediation had been made by Mr Pridgen. She said Mr Pridgen could always file for a recovery order if he wished but she did not think that would make a difference to [the child] who made up her own mind about where she stayed.

10. The parents agree the court orders have not been followed for several years and at least since 30 November 2018.  Mr Pridgen acknowledges that he has had care of only four nights since that date but states this has been through no fault of his own.

11. For section 51 of the Act to apply, a care arrangement, such as a court order or parenting plan, must be in place.  The parent who has reduced care because this care arrangement is not being complied with must also have taken “reasonable action” to ensure that the care arrangement is complied with.  Section 51 does not apply in certain circumstances.

12. The term “reasonable action” is not defined in the Act. The Explanatory Memorandum to the Bill for the Amending Act that introduced section 51, referring to reasonable action, states, “For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”

13. While there was a court order in place regarding the care of [the child] both parents have told the Tribunal it was not being followed at the time Ms Abramov notified the Child Support Agency that care had changed.  There is no evidence before the Tribunal to suggest Mr Pridgen was negotiating with Ms Abramov in a genuine attempt to ensure compliance with the court orders.  Mr Pridgen did not attempt mediation after care changed and has not sought legal advice.

14. The Tribunal accepts Mr Pridgen feels frustrated about not having care of [the child].  The Tribunal is not satisfied, however, that he took reasonable action to have the court ordered care complied with.  An interim care determination cannot, therefore, be made under section 51 of the Act.

15. As an interim care arrangement could not be applied the Tribunal considered the actual care of [the child].

16. The Tribunal is satisfied that care of [the child] changed from at least 30 November 2018 and therefore a new child support period commenced from this date.  The parents do not dispute that Mr Pridgen has had care of four nights since 30 November 2018.  A care period is generally a 12-month period from the day on which the actual care changed.  As Mr Pridgen had care of two nights, being 5 and 6 April 2019, during the 12-month care period from 30 November 2018 the Tribunal finds that he provides 0 per cent care and Ms Abramov provides 100 per cent care of [the child].

17. The existing percentages of care reflected in the assessment for [the child] were 24 per cent care to Mr Pridgen and 76 per cent care to Ms Abramov. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply.  Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

18. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked and replaced with the pattern of care that took place.

New care percentage determinations

1. Having revoked the existing determinations, the Tribunal must make new percentage of care determinations for Mr Pridgen and Ms Abramov under sections 49 and 50 of the Act.

2. The Tribunal finds that Mr Pridgen provides 0 per cent care and Ms Abramov provides 100 per cent care of [the child] from 30 November 2018.

Date of effect of new care percentage determinations

1. The Tribunal finds that Ms Abramov notified the Child Support Agency of the change in care on 18 June 2020.  As this is more than 28 days after the change occurred on 30 November 2018, according to paragraph 54F(3)(b) of the Act, the existing care determinations are revoked for the parent with increased care from the day before the date of notification and for the parent with reduced care from the day before the date the change occurred.

2. The new determinations can be made from 30 November 2018 for Mr Pridgen and 18 June 2020 for Ms Abramov.

DECISION

The decision under review is affirmed.