Ramsey and Ramsey (Child support)

[2022] AATA 741

Ramsey and Ramsey (Child support) [2022] AATA 741 (10 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022381

APPLICANT:  Ms Ramsey

OTHER PARTIES:  Child Support Registrar

Mr Ramsey

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  10 February 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 Ms Ramsey and Mr Ramsey in respect of their child [Child 1] (born [in] January 2009).

2. Ms Ramsey and Mr Ramsey are the parents of [Child 2], [Child 1], [Child 3] and [Child 4].  This matter related to [Child 1] only.  There has been a child support assessment in place since 11 July 2017 and Mr Ramsey is the liable parent under the assessment.

3. From 15 November 2019 the child support assessment reflected Ms Ramsey as having 61 per cent care and Mr Ramsey as having 39 per cent care of [Child 2], [Child 1], [Child 3] and [Child 4].

4. On 10 September 2020 Ms Ramsey advised the Child Support Agency of a change to the care arrangements for [Child 2], [Child 1], [Child 3] and [Child 4] stating that she had 100 per care and Mr Ramsey had 0 per cent care from 10 March 2020.

5. On 27 November 2020 the Child Support Agency made the decision to refuse the change of care for [Child 1] as advised by Ms Ramsey.

6. On 5 July 2021 Ms Ramsey objected to this decision and on 18 August 2021 the Child Support Agency disallowed the objection (the objection decision).

7. On 23 September 2021 Ms Ramsey applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

8. The Tribunal conducted a hearing into the application on 10 February 2022.  Ms Ramsey and Mr Ramsey gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (312 pages). Additional documents were received from Ms Ramsey (A1-A167) prior to the hearing and copies were distributed to the parties.

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 new care determinations to take account of a care change.

5. The issues which arise in this case are:

   ·     has there been a change in the pattern of care for [Child 1] 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?

CONSIDERATION

1. Ms Ramsey told the Tribunal that care of the children was the subject of court orders dated [in] November 2019 and the parents were following the orders up until 10 March 2020.

2. Ms Ramsey said under the orders Mr Ramsey was to have care of five nights per fortnight and half the school holidays.  Ms Ramsey explained that when the COVID-19 pandemic hit New South Wales there were government-imposed restrictions which prevented anyone from leaving the home environment.  She said, in addition, Mr Ramsey lived in the same building as his elderly parents and was concerned that having the children around may increase the risk of passing on the virus. 

3. Ms Ramsey said all the children, including [Child 1], were exclusively in her care from 10 March 2020 as that was when the lockdown commenced.

4. Ms Ramsey said later, when restrictions eased, she allowed the children to see their father and they stayed with him during the school holidays in July 2020.  Ms Ramsey explained that there was then a serious incident of domestic violence between [Child 2] and Mr Ramsey and Mr Ramsey was prevented from having contact with [Child 2].  She said, after the incident, only [Child 1] continued to have overnight care with Mr Ramsey.  Ms Ramsey said she was uncertain how many nights [Child 1] had stayed with Mr Ramsey but it was sporadic.

5. The Tribunal notes in evidence from the Child Support Agency a copy of text message exchanges between Ms Ramsey and Mr Ramsey. The first exchange is dated Saturday, 11 July [2020]. Ms Ramsey asks, “When are the boys returning to me”? to which Mr Ramsey responds, “Sunday late afternoon”. The second exchange is dated Thursday, 30 July [2020]. Mr Ramsey states he has picked up the boys in accordance with the court orders and taken them to the dentist. Ms Ramsey then enquires as to which dentist.

6. Ms Ramsey said following the assault on [Child 2] she felt the children were no longer safe with Mr Ramsey.  Ms Ramsey reiterated that from 10 March 2020 Mr Ramsey had no care of [Child 1] or any of the other children until the school holidays commenced.

7. Ms Ramsey told the Tribunal that Mr Ramsey had sent her an email on 27 January 2021 confirming he had no care of the children for 20 weeks but this was not given proper consideration by the Child Support Agency.  Ms Ramsey said she had also provided a third- party statement which supported her sole care of the children from 10 March 2020.

8. The Tribunal notes in evidence from the Child Support Agency a copy of an email from Mr Ramsey to Ms Ramsey dated 27 January 2021.  The email states, relevantly, “I have not been given access to see or speak with [Child 4], [Child 3] and [Child 1] for the past 20 weeks”.   

9. The Tribunal further notes in evidence provided by Ms Ramsey a third-party statement from a family friend, [Friend A], who has a son at school with [Child 1].  [Friend A] states, in relation to the care of [Child 1], that:

   [Ms Ramsey] has supplied me with the dates specifically pertaining to [Child 1’s] care:

   1)    March 2020 to July 7 2020 - 20 weeks continuous care during COVID peak when we were all in isolation

   2)    10 days care to [Mr Ramsey] between July and September 10/90 days 11%

   3)    September 2020 to current.  100% my care.

   Both my sons and my own interaction with [Child 1] would support this information.

10. Mr Ramsey told the Tribunal that care of the children was in accordance with court orders dated [in] November 2019 and these orders were being followed by the parents until Ms Ramsey withheld care around August 2020.  Mr Ramsey said after this time he only had overnight care of [Child 1] and this continued until November 2020.  Mr Ramsey said care was currently the subject of an ongoing court dispute between the parents.

11. Mr Ramsey acknowledged there had been occasions when his care of [Child 1] had been disrupted during the COVID-19 pandemic but this happened only twice.  Mr Ramsey said the State went into lockdown at some point after the April 2020 school holidays and during a period of approximately six weeks he recalled missing two periods of care.

12. Mr Ramsey explained that he lived in a duplex below his parents and when the children were staying with him his parents assisted with their care.  Mr Ramsey said he and Ms Ramsey had agreed he might miss some care during the pandemic as there was great uncertainty about the coronavirus and the impact it could have on his parents.  Mr Ramsey said his mother had provided a statement relating to his care of the children.

13. The Tribunal notes in evidence from the Child Support Agency a third-party statement dated 22 June 2021.  Although the name of the writer has been redacted the Tribunal accepts the statement is from Mr Ramsey’s mother.  It states:

    This is to confirm that I have witnessed [Child 2], [Child 1], [Child 3] and [Child 4] Ramsey in [Mr Ramsey’s] care between November 2019 to July 2020. During this time the Parenting Orders were abided by as per the court orders and he had the boys half of school holidays and every second Thursday to Tuesday.

14. Mr Ramsey said the court ordered care continued in June 2020 and he then took the children, including [Child 1], to a farm during the July 2020 school holidays.  Mr Ramsey said he had his holiday care from 3 July 2020 to 12 July 2020.  He said [Child 1] then continued to stay with him on a regular basis until November 2020 when Ms Ramsey withheld care.

15. Ms Ramsey has told the Tribunal she had 100 per cent care of the children, including [Child 1], from 10 March 2020 due to COVID-19 imposed lockdowns.  Ms Ramsey has also said that care of [Child 1] resumed during the school holidays in July 2020 and then continued sporadically for a period of time.  Mr Ramsey has argued that his care of [Child 1] was interrupted briefly from April 2020 when he missed two periods of care due to the pandemic, however, his care of [Child 1] then continued until November 2020.

16. Ms Ramsey has provided a third-party statement which supports she had 100 per cent care of [Child 1] from “March 2020 to July 7 2020” although the statement makes clear the actual dates of this care were provided by Ms Ramsey herself and not the third-party.  Ms Ramsey has also pointed out that in an email to her dated 27 January 2021 Mr Ramsey admitted to not having care of [Child 1] for 20 weeks.  Counting back 20 weeks from the date of the email would indicate Mr Ramsey did not have care from around 9 September 2020.  This does not support that Ms Ramsey had 100 per cent care from 10 March 2020.  Mr Ramsey has provided a third-party statement from his mother, who assists with care of [Child 1], which supports his care continued in accordance with the court orders until July 2020.

17. The Tribunal accepts there may have been some disruption to the care of [Child 1] arising from the coronavirus pandemic and this would not be unexpected given the dynamic nature of the pandemic.  In circumstances where a parent is assessed to have at least regular care of a child and this pattern changes the Child Support Guide (the Guide) states at 2.2.3:

    A parent or non-parent carer ceases a pattern of care when they stop having care of a child in accordance with the previously established pattern. The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:

    ·missed 3 care events in a row

    ·missed 5 care events out of 8, or

    ·missed 20% of the expected nights of care over 12 months (when calculating 20% the Registrar will not include an isolated event that is clearly not a change in the pattern).

18. Although not bound by policy as set out in the Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

19. In light of the conflicting views of the parents the Tribunal cannot be satisfied there was a change to the existing pattern of care for [Child 1] such that a new pattern was likely to continue during a care period commencing on 10 March 2020.  Although Mr Ramsey has confirmed he missed care of [Child 1] for two care periods the Tribunal does not consider this a change to the previously established pattern under the court orders.

20. The Tribunal cannot find, based on the evidence provided, there was a change to the ongoing pattern of care for [Child 1] from 10 March 2020.

21. If there has been a subsequent change to the pattern of care for [Child 1] this would need to be the subject of a separate notification.  The Tribunal notes Ms Ramsey did advise the Child Support Agency on 5 February 2021 that care of [Child 1] changed from 13 August 2020.  The Child Support Agency subsequently made the decision to refuse this change of care as notified by Ms Ramsey.

DECISION

The decision under review is affirmed.