Sackrider and Weckman (Child support)

[2020] AATA 1478

Sackrider and Weckman (Child support) [2020] AATA 1478 (24 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018181

APPLICANT:  Ms Sackrider

OTHER PARTIES:  Child Support Registrar

Mr Weckman

TRIBUNAL:Member Y Webb

DECISION DATE:  24 March 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether an interim care determination should be 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. This review is about the percentages of care of Ms Sackrider and Mr Weckman in relation to their child (“the child”) who is now 13 years old.

2. The child support case was registered on 3 February 2010 and has been collectable by the Department of Human Services (“Child Support Agency”) since that date.

3. There are court orders in relation to the care of the child and these were made on 5 April 2013.  In summary, these orders provided that Mr Weckman would have care of the child each alternate weekend from Friday to Sunday (two nights) during school terms; for one week in each of the short school holidays and between Christmas Day and 8 January in the summer holidays.

4. The history of care in relation to the child is that from 22 June 2012 the care was recorded by the Child Support Agency as 76% to Ms Sackrider and 24% to Mr Weckman.

5. On 13 September 2018 Ms Sackrider contacted the Department of Human Services (“Centrelink”) and reported a change in care.  Ms Sackrider stated that from 9 January 2018 she had had 100% care of the child. She told Centrelink that the reason for the change of care was that allegations of physical and mental abuse had been made against Mr Weckman towards the child.  She stated that the court orders had been suspended as a result.  She provided a copy of an application to the Federal Circuit Court of Australia dated 24 July 2018.

6. Mr Weckman denied the allegations.  He asserted that Ms Sackrider had withheld the care of the child and that she was breaching the court orders.  He stated that there was an upcoming court hearing on 7 November 2018.

7. On 6 December 2018 Ms Sackrider contacted the Child Support Agency and stated that the child was in her 100% care and that she had informed Centrelink of the change in September 2018.

8. On 17 April 2019 Ms Sackrider again contacted the Child Support Agency reiterating that the child had been in her 100% care since 8 January 2018.

9. On 7 May 2019 the Child Support Agency made a decision that the child was in the 100% care of Ms Sackrider since 8 January 2018 effective on the assessment from 17 April 2019.

10. Mr Weckman objected to that decision on 18 June 2019. He reiterated that Ms Sackrider was withholding the care of the child and he was taking steps to have his care restored.

11. Ms Sackrider responded that the care of the child was withheld due to safety concerns.

12. On 24 December 2019 an objections officer partly allowed Mr Weckman’s objection.  The objections officer determined that the child had been in Ms Sackrider’s 100% care since 8 January 2018 effective on the assessment from 13 September 2018.

13. On 9 January 2020 Ms Sackrider requested review by the Administrative Appeals Tribunal (the Tribunal).

14. The Child Support Agency provided papers relevant to this matter (pages 1-325) and these were marked (as a bundle) as Exhibit C1. 

15. The parents both attended the hearing on 24 March 2020 by way of a telephone conference.  Ms Sackrider gave sworn evidence and Mr Weckman gave evidence on affirmation.

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of the child in the relevant care period?

   b)Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?

   c)Should an interim care determination be made in relation to the child and, if so, for what period should it apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988.

2. A change in the legislation occurred from 1 July 2018 regarding the date of effect of changes in care.  Any changes which took place prior to 1 July 2018 and were notified to the Child Support Agency by 30 December 2018 would have effect under the old legislative provisions rather than the new ones.  Hence in this case the old legislation applies.

3. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

4. The “care period” is effectively defined in the Assessment Act as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflects the actual care that a person has, or is likely to have, during the care period. The Tribunal is satisfied that a care period for a 12-month period from 8 January 2018 was appropriate in this case.

5. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the pattern of care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

6. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

7. In this case, Ms Sackrider and Mr Weckman did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

8. In this case, there were court orders in existence from 5 April 2013. The Assessment Act refers to a “care arrangement”. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975. Hence the Tribunal finds that the court order of 5 April 2013 is a “care arrangement” for the purposes of the Assessment Act and that it provided in brief summary that Mr Weckman would have care of the child each alternate weekend from Friday to Sunday (two nights) during school terms and for one week in each of the short school holidays and between Christmas Day and 8 January in the summer holidays.

9. There is no dispute between the parents that the court orders were being followed until 8 January 2018 when the child went into the 100% care of Ms Sackrider.

10. Mr Weckman, while agreeing that the child was in Ms Sackrider’s 100% care from 8 January 2018, stated that in his view his care of the child was being withheld by Ms Sackrider.  He stated that he had attempted mediation and that there were ongoing court proceedings regarding the care of the child, including court ordered family counselling.  He contended that he was taking all reasonable actions to have his care restored.

11. The legislation does not define “reasonable action” in relation to a parent attempting to regain their care of the child.  The Child Support Guide in relation to the pre-July 2018 legislative changes refers to the following examples of what may be considered “reasonable action”: initiating court action, initiating mediation to re-establish the care arrangement or negotiating with the other parent with a view to re-establishing the care arrangement.  However, it states that this list is not exhaustive and other forms of action may be reasonable according to the circumstances of the parents and the child.

12. In this case the Tribunal is satisfied that Mr Weckman was taking reasonable action to have his care of the child restored.

13. The Tribunal then considered whether an interim care determination could be considered.

14. In some limited circumstances where a formal care arrangement (such as a court order) was in place and care was occurring in accordance with those orders but a parent is then prevented from having the care detailed in those orders, and the parent is taking reasonable action to have their care restored, an interim care determination can be made.

15. However, a decision to base a care determination on the court-ordered care will have effect for a limited period. Generally this will be a period of 14 weeks from the day the care ceased to be in accordance with the court orders.  In special circumstances the interim period may be extended to 26 weeks.

16. In this case it is unlikely that special circumstances would extend the interim period to 26 weeks but even if it did the period from when the care changed on 8 January 2018 until 13 September 2018 when the change was notified to Centrelink is more than 26 weeks.  The 26-week period expired on 8 July 2018.  Hence, the Tribunal finds that no interim period applies.

17. The legislation (in force at that time) dictated that if the Child Support Agency was notified of the change in care after the maximum interim period had ended the change in care would only apply from the date of notification (13 September 2018).

18. Therefore the previous care determination of 76% care to Ms Sackrider and 24% care to Mr Weckman must be revoked in accordance with section 54F of the Assessment Act and new percentages of care of 100% to Ms Sackrider and 0% to Mr Weckman made (in accordance with sections 50 and 49 respectively of the Assessment Act) from 8 January 2018 with a date of effect of 13 September 2018.

1. As the Tribunal agrees with the decision of the objections officer the decision under review is affirmed.

DECISION

The decision under review is affirmed.