Provisor and Barwick (Child support)

[2023] AATA 4297

Provisor and Barwick (Child support) [2023] AATA 4297 (9 November 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026382

APPLICANT:  Mr Provisor

OTHER PARTIES:  Child Support Registrar

Ms Barwick

TRIBUNAL:Member R Prasad

DECISION DATE:  9 November 2023

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 – 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. Since 7 January 2015, Mr Provisor (the father) and Ms Barwick (the mother) have had a registered child support assessment for [their child], born on 11 August 2007. Services Australia – Child Support (Child Support) has collected child support on the basis the father had 14% care and the mother 86% care of the child. These percentages denote the existing percentages of care.

2. On 20 July 2015, Family Court orders were made by consent that the child reside with the mother and spend one day a week with the father.

3. On 4 December 2022, the mother notified Child Support that she had 100% care of the child from 1 August 2019.

4. On 20 February 2023, Child Support amended the particulars of the assessment to reflect that the father had 0% care from 22 November 2019 and the mother had 100% care from 4 December 2022 (the original decision). Both parents provided evidence which included telephone conversations with Child Support, statements, and images of SMS messages. As the mother had notified the change of care more than 28 days after it happened, the decreased care percentage was applied from the date care changed, and the increased care percentage from the date Child Support was notified.

5. On 28 February 2023, the father objected to the original decision on the basis the mother was not allowing him to see the child.

6. Following receipt of further evidence, on 25 May 2023, Child Support disallowed the father’s objection and upheld the original decision (the objection decision).

7. On 10 July 2023, the father sought review of the objection decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

8. The matter was heard on 9 November 2023. The father was represented by [Ms A], barrister from [Chambers], who made submissions on his behalf, and they both appeared separately by MS Teams audio. The mother was self-represented and appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing, but provided documentation (folios 1 to 296).  

ISSUES

1. The relevant issue before me is whether there was a change to the child’s care arrangements and, if so, the date of effect of the new care determination.

CONSIDERATION

What is required?

1. Section 49 of the Child Support (Assessment) Act 1989 (the Act) provides that if I am satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for a period (the care period) as I consider to be appropriate in the circumstances, I must determine the percentage of care for the child to be 0%. If an existing determination of care percentage is revoked or suspended, and I am satisfied a responsible person has had, or is likely to have, a pattern of care for the child during the care period as I consider appropriate in the circumstances, under section 50, I must determine the responsible person’s percentage of care. I must therefore consider the relevant pattern of care for the child.

2. Section 51 of the Act provides the percentage of care where a care arrangement applies but is not complied with, and the person with reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

3. The Act, under section 54, defines ‘reduced care of a child’ to mean where a person has less actual care than the care that is provided for under a care arrangement such as a Court order. Section 54A provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in the care of the relevant person.  

4. Under section 54F of the Act, a determination of an existing care percentage must be revoked if there is a change to a person’s cost percentage, which is dependent on a change to the care percentage. If notice of the care change is more than 28 days after the change occurred, the revocation of the determination takes effect from the day before the notification day for the person with increased care, and from the day before the care changed for the person with reduced care.

5. Section 54G of the Act is applicable where notification of the care change has been made in a reasonable period.

What information has been provided in relation to the care of the child?

1. In his application for review, the father was concerned that the care percentage was backdated more than 28 days of the day Child Support was notified, that the objection decision did not provide adequate reasons for disallowing his objection to the original decision, and that the reasons did not take into account the efforts he made to enforce the Court orders, the mother’s refusal and COVID-19 pandemic measures.

2. At the hearing, it was not disputed that the father’s care had reduced. What was submitted on the father’s behalf was that in the absence of any documentary evidence by either party, the existing or Court ordered care percentages should be maintained until 27 February 2021. On this date, the father sent an SMS to the mother saying the child may wish to spend time with her friends, but he still wanted to see her on a regular basis and asked whether he could message the child to meet for a few hours either after school or on the weekend. It was also submitted that the father’s care percentage from that date was between nil and 14% (52 nights). It was also asserted that the mother had advised the child that she could decide for herself whether she wished to see her father, rather than encouraging her to do so.

3. In relation to the objection decision, it was submitted on the father’s behalf that it specifically noted ‘it was relatively unclear to what extent based on the actual number of nights that [the child] is likely to be in the care of the parents during the relevant care period’ and that therefore, a care percentage for the child could not immediately be determined. It was contended that the objection decision did not assess whether the original decision was correct or not, identify the relevant care period, nor have an adequate explanation why care change was recorded as 22 November 2019, and that make up events were not taken into account.

4. The parties confirmed the relevant evidence was in the hearing papers and the dates discussed between them were shown through their SMS messages arranging care for the child. These messages indicate that the child has not stayed in the father’s care one night each week in accordance with the Court orders. Care appears to have occurred sporadically throughout the period from November 2019. In particular, taking a favourable view of the information before me, it appears that the dates the child visited the father included 14 November 2020, 4 and 25 March 2021, and 22 December 2021, and the days the child had overnight stays with the father included 2 and 23 December 2019, 3 April 2020, 12 June 2020, 4 and 28 September 2020, 14 December 2020, 11 September 2021 and 21 December 2022. The messages indicate that on some of the nights requested by the father, the child was unwell or otherwise the mother or child already had plans, such as on 22 November 2019 and 15 December 2022. Where days were not agreed or did not eventuate, there do not appear to be any make up days as asserted. The father has attempted to make arrangements to see the child in the future, rather than make up the days that he had missed. The father explained that he has shift work and his roster was arranged six weeks in advance making it difficult to change days quickly.

5. The hearing papers include a number of statements and statutory declarations provided by both the mother and father. The mother provided a statutory declaration from the child’s older sibling dated 2 February 2023 stating that the father had not had the child on a regular basis, only taking her for a family gathering during Christmas 2019 and that prior to this, he had not taken the child for several months. It was further stated that he had only seen the child with the father at his grandfather’s place in the past three years. The mother also provided a statutory declaration from her husband dated 13 May 2023, who stated that he has told the child she could decide whether she wants to see her father, and that the child has not gone with her father on Fridays as she was working. I have given little weight to both statutory declarations as they are general in nature, and it is not contradicted by the parties that the care was irregular or that the child at times had other plans.

6. The statements provided by the father include an email dated 30 April 2023 from a person with a daughter the same age as the child, which indicates that the child would stay at the father’s house on weekends, the father would have birthday parties for the child, and they would spend time together during special occasions such as Easter and Christmas, before they stopped. It is not clear when these events occurred, I have therefore placed little weight to this statement. There are further statements in the hearing papers including from the father’s brother saying that the father brought the child to the house of the father’s brother on a regular basis, to spend time with the child’s grandparents and siblings who also lived there. The statement indicates that several dates and times for family gatherings were cancelled or changed as they did not fit in with the mother’s schedule. This statement does not contradict the other evidence before me.

7. During the hearing, the father confirmed that the child has not stayed overnight in his care this year, with the last occasion being in December 2022. He said that the child wants to spend time with her friends and sister, and he has not enforced the Court orders as he has not wanted to fracture his relationship with the child. It was apparent at the hearing that the father was concerned about maintaining a relationship with his child and the child’s wellbeing, which is further evidenced with SMS messages from the father to the mother about the child staying with the mother on Fridays during the COVID-19 pandemic. The parties also confirmed that while the Court orders required the father to make arrangements through the mother, from 14 December 2022 the mother gave the father permission to make plans with the child directly.

8. There was no explanation by the mother why she notified Child Support of the change in care in December 2022 when the change was alleged to have occurred in August 2019. The hearing papers indicate that she was not requesting the care percentage to be backdated, rather she was seeking the father pay 100% care for the next two and half years (until the child turns 18 years old) to make up for the fact he had not taken the child one night each week as agreed.

Has there been a change to the care of the child?

1. I am undertaking a review of the applicable care percentage afresh, and therefore do not need to address whether the objection decision provided adequate reasons, nor seek to explain how the decision was reached.

2. The facts before me indicate that the father’s care of the child has changed and is less than what is provided for under the Court orders. The reasons for the reduced care include the COVID-19 pandemic, the child not being available due to prior and/or alternate plans made by the mother or the child, or the child being unwell. There were also assertions made that the child was being told by the mother she could decide whether or not to go with her father rather than being encouraged to spend time with him. While the COVID-19 pandemic made it difficult to maintain a care pattern despite the father being willing to see his child, and the concerns surrounding the fact the mother has not encouraged the child to see her father, I am required to consider the actual care undertaken. While undertaking this task, the Act provides that actual care may be worked out based on the number of nights the child was, or is likely to have been, in a parent’s care.

3. Having considered the information before me, I am unable to be satisfied that the limited occasions the father saw the child since November 2019, constituted a pattern of care. Prior to 22 November 2019, I am not satisfied there had not been any care, as Child Support was originally notified, as the SMS evidence and the other information before me did not confirm this was the case. Therefore, the care period I am considering commences from 22 November 2019, which constitutes the first recorded day that planned care was cancelled. Since this date, there had been intermittent periods of care comprising of visits for several hours or the occasional overnight stay, with no overnight stays from 2023. The reason for this was to not strain the relationship with the child. I am also not satisfied that the care changed from 27 February 2021 as asserted, as it is clear that the father has not had care of the child for one night a week for a much longer period.

4. Accordingly, for the father, the requirements of section 49 of the Act are satisfied and there was likely no pattern of care during the care period, from 22 November 2019, and since. Therefore, the relevant care percentage for the father is 0% from 22 November 2019 pursuant to subsection 49(3). While submissions made on behalf of the father accepted that care is less than 14%, albeit from a later date, but more than 0%, I am not satisfied that the intermittent periods of care constituted a meaningful pattern of care. Regardless, the cost percentage for a care pattern of between 0% and 14% is still 0%.

5. In relation to the mother’s care, the requirements of section 50 are satisfied as there was likely to have been a pattern care where the mother had 100% care of the child from 22 November 2019.

6. While the father has wanted to see his child, which was made difficult due to various factors mentioned above, he has not sought to enforce the existing Court orders in order to maintain a relationship with his child. Section 51 of the Act is therefore not applicable.

7. Further, I do not consider notification of the care change was made within a reasonable period, and therefore section 54G does not apply. As the mother notified of the care change more than 28 days from when care changed, pursuant to subsection 54F(3) of the Act, the date of revocation of the determination of the existing percentage of care is 22 November 2019 for the father and 4 December 2022 for the mother.

DECISION

1. The decision under review is affirmed.