Rees and Rees (Child support)

[2021] AATA 252

Rees and Rees (Child support) [2021] AATA 252 (6 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020174

APPLICANT:  Mr Rees

OTHER PARTIES:  Child Support Registrar

Ms Rees

TRIBUNAL:Member S Brakespeare

DECISION DATE:  06 January 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 – court orders not complied with – reasonable action taken – interim period correctly applied – 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. Mr Rees is the parent liable to pay child support to Ms Rees in respect of [their child], who is 15 years old. The existing percentage of care determinations reflected that Ms Rees had 68% care of the child and Mr Rees had 32% care of the child.

2. Mr Rees notified the Child Support Agency of a change in care on 1 May 2020.

3. On 8 May 2020 an officer of the Child Support Agency revoked the existing percentage of care determinations and decided that Mr Rees had 100% care and Ms Rees had 0% care of the child with effect from 20 March 2020 (the original decision).

4. Ms Rees objected to the decision. On 8 October 2020 an objections officer allowed the objection and made the following percentage of care determinations (the objection decision):

   ·Ms Rees has 68% care and Mr Rees has 32% care of the child for the period 4 April 2020 to 2 October 2020

   ·Ms Rees has 0% care and Mr Rees has 100% care of the child from 3 October 2020.[1]

   [1] The Child Support Agency advised that a subsequent care determination was made by  an officer of Centrelink to give effect to new court orders reflecting a percentage of care for Ms Rees of 79% and for Mr Rees of 21%, from 23 June 2020. The subsequent determination is not before the tribunal.

5. The first determination reflected an interim care determination and the second determination reflected actual care.

6. Mr Rees lodged an application for review of the objection decision with the tribunal. A hearing was held on 6 January 2021. Both Mr Rees and Ms Rees gave evidence on affirmation to the tribunal via conference telephone. The Child Support Agency provided the tribunal and the parties with papers relevant to the review (189 pages). Ms Rees provided extra documents to the tribunal (folioed B1 to B27) and a copy was distributed to the parties prior to the hearing.

7. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

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

2. The issues which arise in this case are:

   ·     Whether the percentage of care determinations are to be revoked and replaced; and if so

   ·     Whether an interim care determination should apply.

CONSIDERATION

Issue 1 – Should the percentage of care determinations be revoked?

1. The law relevant to care percentage determinations is set out in sections 49 and 50 of the Act. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Child Support Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate, and when such a divergence occurs, a parent can notify the Child Support Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

2. Section 54F of the Act provides that an existing care percentage decision must be revoked and replaced under section 49 or section 50 of the Act if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply.

3. Section 55C of the Act explains how to determine a parent’s cost percentage based on their percentage of care for their children.

4. Section 54G provides that if a person was to have at least regular care of a child (that is, at least 14%) and the person had either no care or less than regular care despite the other responsible person making the child available, and the other responsible person notifies the Child Support Agency or Centrelink of the change in care within a period that the Child Support Agency considers is reasonable in the circumstances, the percentage of care determinations must be revoked and replaced under section 49 or section 50 of the Act.

5. The tribunal finds that at the time the change of care occurred the percentage of care determinations were in accordance with court orders dated 1 November 2017 which were the current orders.

6. It is not in contention and the tribunal finds that Ms Rees was meant to have more than 14% care of the child, however she had no care of the child from 4 April 2020. As Mr Rees did not make the child available to Ms Rees section 54G does not apply in this case. As the change in care would affect the cost percentage  section 54F of the Act applies and the existing percentage of care determinations must be revoked and replaced.

Issue 2 – Does an interim care determination apply?

1. The tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide whether section 51 applies (subsections 49(3) and 50(4)). For section 51 to apply, a parent who has reduced care (defined in section 54 of the Act) because a care arrangement is not being complied with, must be taking reasonable action to ensure that the care arrangement is complied with.

2. Subsection 51(1) of the Act provides that if:

   (a)  the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

   (b)  a care arrangement applies in relation to the child; and

   (c)   the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during the period (which may be nil); and

   (d)  a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with;

   the Registrar must determine, under section 49 or 50, two percentages of care in relation to the responsible person. The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil), and the second percentage of care is to be, for a determination under section 49, 0%, or, for a determination under section 50, a percentage that corresponds with the actual care of the child the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 51(1)(d) were not to succeed.

3. Subsection 51(5) of the Act provides that if the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person, which is to be, for a determination under section 49, 0%, or for a determination under section 50, a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 51(1)(d) were not to succeed.

4. Mr Rees told the tribunal:

   ·  He disagrees with having to pay child support for the child for the three month period that the child was in his care.

   ·  He chose to not return the child to Ms Rees after the school holidays in April due to the restrictions coming into place due to COVID-19. The child was terrified about the pandemic and was reluctant to leave his home. In his view it was also easier for the child to do remote learning at his home as she had good access to the internet. He had heard that Ms Rees only allows the child limited internet access. The child’s grades improved whilst in his care.

   ·  He took no action to have the court order amended or to reach a new agreement regarding the child’s care. He did not communicate his intentions to Ms Rees as he does not have any direct communication with Ms Rees.

5. Ms Rees drew the tribunal’s attention to a number of letters issued by her solicitor to Mr Rees from 26 March 2020 through to 26 May 2020 as well as a number of text messages she sent to Mr Rees regarding the handover arrangements for the child.

6. Ms Rees told the tribunal:

   ·     The rules around the COVID-19 lockdowns did not prevent shared care arrangements being adhered to;

   ·     There was nothing to prevent the child from undertaking remote learning at her (Ms Rees’s) home; as this is what occurred during the second COVID-19 lockdown and the child’s grades improved during that second lockdown period;

   ·     She does not know why Mr Rees’s percentage of care from 3 October 2020 was 100%, given the court order that was made, and adhered to, from 23 June 2020 which gave her 79% and Mr Rees 21%.

7. The tribunal is satisfied that Ms Rees took reasonable action to ensure that the care arrangement was complied with. The tribunal finds the factors set out in section 51 of the Act are met in this case and therefore an interim care determination is to be made. There are no special circumstances and therefore subsection 51(5) does not apply.

8. An interim care period is determined according to the table set out in subsection 53A(1) of the Act. Item 2, column 3, paragraph (a) applies in this case, providing for the granting of an interim care period of 26 weeks, starting on the change of care day for the second care percentage pursuant to paragraph 51(4)(b) of the Act.

9. The tribunal finds that the interim care period commences from the change of care date, being 4 April 2020, and runs for a period of 26 weeks. The percentage of care that applies during the interim care period is 68% care to Ms Rees and 32% care to Mr Rees (being the court ordered care under the final court orders dated 1 November 2017). From 3 October 2020 the percentage of care determinations reflect the actual care that occurred at the time the change of care was advised (as the decision being made by the tribunal is the decision that could have been made at the time of the original decision (a point in time decision)). The actual care at the time was 100% to Mr Rees and 0% to Ms Rees.

10. There has been a subsequent change of care, and new determinations have been made by Centrelink. Those new determinations are not before the tribunal and are not disturbed by the tribunal’s decision.

DECISION

The decision under review is affirmed.