Satterly and Satterly (Child support)

[2021] AATA 4242

Satterly and Satterly (Child support) [2021] AATA 4242 (29 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC021908

APPLICANT:  Ms Satterly

OTHER PARTIES:  Child Support Registrar

Mr Satterly

TRIBUNAL:Member M Reid, Presiding member

Member J Longo

DECISION DATE:  29 September 2021

DECISION:

The Tribunal affirms the decision under review and attributes 96% of care to the father and 4% of care to the mother from 20 January 2021. This means that the appeal was unsuccessful.

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. Ms Satterly (the mother) and Mr Satterly (the father) are the parents of [the child]. A child support assessment has been in place for [the child] since 11 August 2009.

2. From 18 May 2017, Services Australia – Child Support (Child Support) recorded the mother as having 67% care of the child and the father 33%.

3. On 22 January 2021, the father reported a change in care for [the child] that from 20 September 2020 she had been 100% in his care. On 29 April 2021, Child Support decided to attribute 78% of care to the father and 22% to the mother from 20 January 2021 (the “original decision”).

4. On 8 May 2021 the mother objected to the original decision. On 28 June 2021, Child Support partly allowed the objection, attributing 96% of care to the father and 4% to the mother. The mother then appealed that decision to the Tribunal, and this is the subject of this decision.

5. Both parents spoke to the Tribunal via conference telephone and gave sworn evidence. In making its decision, the Tribunal took into consideration the documents provided by Child Support, which consisted of 354 pages of primary hearing papers as well as two other documents of 46 and 11 pages. Copies of these documents were provided to both parents prior to the hearing.

6. The issues which arise in this case are:

   • Should the existing care percentages for the mother and the father be revoked?
   • If so, from what date should the existing care percentages be revoked?
   • What is the correct level of care to be attributed to the parents? and
   • What is the effective date of the new care determinations?

CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

2. The law relevant to care percentage determinations is found in the Act. Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies 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”.

3. Section 50 applies 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”.

4. The care period is such a period as the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act).  Child Support’s policy in this regard, as set out in chapter 2.2.1 of Child Support Guide (the Guide), provides that a care period is generally assumed to apply for the subsequent 12-month period, unless otherwise advised.

5. The Tribunal's task on review is to stand in the shoes of the original decision maker.  In this respect, on review, there is a clear “temporal element” in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to Child Support up to the time of the Tribunal’s hearing – and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to Child Support. In the Tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to Child Support – so that a new primary care percentage decision can be considered and made if appropriate.

6. The term “pattern of care” is not defined in the legislation. The Tribunal must have regard to the actual or likely pattern of care at the point in time of the initial notification to Child Support.

Issue 1 – Should the existing care percentages of 33% care of [the child] to the father and 67% care of [the child] to the mother be revoked?

1. Prior to 22 January 2021, care of [the child] was 67% to the mother and 33% to the father. This care percentage determination had been in place with Child Support since 18 May 2017. A Federal Circuit Court order on 30 May 2017 stated that the child is to live primarily with the mother, with the father having care every second weekend as well as school holidays.

2. On 20 January 2021, a new interim court order[1] specified that the child was to live with the father and required the mother and child to attend weekly counselling sessions with clinical psychologist, [Ms A]. The new court order also stated that the mother may “spend time with the child as may be agreed between the parties”, and  “upon the completion of six (6) weekly therapeutic counselling sessions, or at such later time which may be recommended by the treating therapeutic Psychologist, [[the child] may] spend time with the mother” every second weekend.

   [1] Page 51 of Child Support documents

3. On 22 January 2017, the father reported a change in care for [the child] from 20 September 2020, stating that she had been 100% in his care. In making its initial determination of care being 78% to the father and 22% to the mother from 20 January 2021, Child Support clearly considered the terms of the interim court order which came into effect on that date.

4. Based on the information within the hearing papers and the evidence provided at the hearing, both parents did not dispute that 20 January 2021 is the appropriate date for commencement of a new care period. The Tribunal is also satisfied that the care should change from 20 January 2021, as the care which had been determined by Child Support from 18 May 2017 was no longer taking place. The Tribunal therefore revokes the earlier care determination of 33% to the father and 67% to the mother from 19 January 2021, the day before the care changed.

Issue 2 – What is the correct level of care attributed to the parents?

1. The interim court order stated that [the child] is to live with the father but allows for [the child] to spend time with the mother periodically, as agreed by the parents. It also states that the mother is entitled to have care of [the child] on Friday and Saturday nights every second weekend, once she had completed the six counselling sessions with [Ms A].

2. A letter written by [Ms A] on 22 June 2021 states that the child attended three counselling sessions and the mother attended two counselling sessions with [Ms A]. The letter also described the inability of both parents to attend counselling sessions amicably and recommended they engage in “mediation or marital counselling” in order to improve the child’s response to any future counselling

3. During the hearing the mother stated that she had seen [Ms A] four times and another psychologist, [Ms B] on two occasions in the first half of 2021. There is no corroborating evidence within the hearing papers to support these claims, and even if there was, these appointments would not satisfy the requirements of the interim court order of 20 January 2021 that would entitle the mother to regular fortnightly care, as the orders specify that the counselling sessions were to occur with [Ms A] (or such other specialist adolescent psychologist as may be agreed between the parties).

4. As part of the review of the mother’s objection to this decision, both parents submitted care diaries showing the mother’s nights of care from 20 January 2021. The father’s care diary (supplied on 7 June 2021) showed that the mother had cared for [the child] for a total of six nights from that date until 28 June 2021 (the date of the original decision), while the mother’s showed that she had cared for [the child] for 37 nights over the same period. The father’s partner, [Ms C] verified the father’s dates. The father also stated that [the child] decided when she wanted to stay with her mother.

5. The Tribunal asked both parents to explain this significant difference in claimed nights of care. The father stated that the mother’s claim was based on her desired or projected nights of care, rather than her actual care which is what his count represented. The mother responded by claiming that the 37 nights was her actual care combined with the care she was denied by the father despite requesting it in accordance with the terms of the interim court order.

6. In support of this submission, the mother drew the Tribunal’s attention to email exchanges on page 215 of the hearing papers. The mother claimed the emails demonstrated that she was being denied access to [the child]. However, the Tribunal finds that they instead show the exact opposite, with the father offering the mother the opportunity to see [the child] on 24 January 2021 and the mother not able to see [the child] as she needed to work that day. This information is also inconsistent with the mother’s care diary, in which the mother has indicated that she had care of [the child] on 23 and 24 January 2021.

7. Further inconsistencies between the mother’s claimed and actual care can be seen on pages 213 and 214. These pages show SMS exchanges between the mother and father on 13 and 14 February 2021 in which the mother is trying to contact [the child], who is with the father at the time. The mother’s care diary shows that she was caring for [the child] on 13 February.

8. As discussed in paragraph 11, the Tribunal's task on review is to stand in the shoes of the original decision maker. This means that the Tribunal needs to consider what the actual or anticipated care was to be at the time of making the original decision in order to determine the appropriate levels of care. The Tribunal finds that in this case, the most appropriate way to consider the care attributable to the mother is to compare it to the requirements of the interim court order.

9. As discussed in paragraph 24, the mother’s claimed care was partly accounted for by the care she believed she was entitled to in accordance with the terms of the interim court order. However, as discussed above, the mother’s participation in the court-ordered six counselling sessions with [Ms A] did not occur, therefore she did not comply with the terms of the interim court order and was not entitled to protected fortnightly care of [the child]. As a result, the Tribunal does not accept the mother’s anticipated care as being that which was intended to occur.

10. There is another clause within the interim court order that allows for the mother to care for [the child] “as may be agreed between the parties”. The father stated that [the child] always decided when she wished to see her mother, therefore any care that did occur complies with this clause and as a result can be considered to be intended care, in accordance with section 50 of the Act.

11. The Tribunal then needed to consider what care the mother actually provided after 20 January 2021 that was in accordance with the interim court order. As discussed above, due to the inconsistencies in the mother’s evidence regarding the care of [the child], the Tribunal prefers the father’s evidence. Accordingly, the Tribunal finds insufficient evidence to substantiate the mother’s claimed dates of care, in excess of care that the father agreed actually took place.

12. The Tribunal finds that the six nights of care by the mother after 20 January 2021 were provided in accordance with the requirements of the interim court order and section 50 of the Act and are therefore the nights that can be used to determine care. The father’s care diary was supplied on 7 June 2021, which is 137 days after 20 January 2021 and all six nights of care occurred during this period. To calculate: 6/137 nights is 4.4% or 4% of care to the mother.

DECISION

The Tribunal affirms the decision under review and attributes 96% of care to the father and 4% of care to the mother from 20 January 2021. This means that the appeal was unsuccessful.