Seacole and Gusfield (Child support)

[2021] AATA 4489

Seacole and Gusfield (Child support) [2021] AATA 4489 (18 October 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC022103

APPLICANT:  Mr Seacole

OTHER PARTIES:  Child Support Registrar

Ms Gusfield

TRIBUNAL:Member J Bakas

DECISION DATE:  18 October 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 – 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 removed 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 Seacole and Ms Gusfield are the parents of [Child 1], in respect of whom a child support assessment is in place.

2. On 22 March 2021, Mr Seacole contacted Services Australia – Child Support (the Department) to advise that from 19 March 2021 [Child 1]’s care was in accordance with a previous 2016 court ordered care whereby he has care of [Child 1] from Friday through to Monday morning every second weekend.

3. The pre-existing care on record for [Child 1] was 100% to Ms Gusfield from 4 December 2020. Mr Seacole sought to have this care percentage changed to 21% care to him and 79% care to Ms Gusfield in accordance with the court order.

4. On 11 June 2021, the Department decided to not accept the care change had taken place.  Mr Seacole sought a review of that decision on 15 June 2021.  On 4 August 2021 the objection was disallowed.

5. On 17 August 2021 Mr Seacole made an application to the Social Security and Child Support Division of this Tribunal (the Tribunal) for a review of that decision.

6. The matter was heard on 18 October 2021 and both Mr Seacole and Ms Gusfield participated by conference telephone.  Both parties gave oral evidence to the tribunal on affirmation.  At hearing both parties confirmed receipt of documents provided by the Department.

7. No further documentary evidence was provided to the Tribunal by either parent.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The issues which arise in this case are:

   ·Should the existing determination of percentage of care be revoked?  If so, from when should it be revoked?

   ·Should a new determination of a percentage of care be attributed to Mr Seacole and Ms Gusfield in respect of [Child 1]?

   ·If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the change?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to the Department of a change of care arrangements.  The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.  The tribunal’s task on review is the same and is to stand in the shoes of the original decision-maker.

2. The term “pattern of care” is not defined in the legislation. It involves an examination of a person’s future likely care. 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). The Department’s policy in this regard, as set out in chapter 2.2.1 of the Child Support Guide (the Guide), is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal and the tribunal can determine a different care period.

3. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period).  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 the Department.  It is not appropriate in undertaking that task, to assess care based on what happened from initial notification to the Department 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 the Department. In the Tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Department – so that a new primary care percentage decision can be considered, and made if appropriate, as has occurred in this case. 

Existing percentage of care determination is not revoked

1. Relevantly to the circumstances of this case, section 54F of the Act provides for revocation of a determination of a percentage of care if (among other requirements) the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care and the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child.

2. It is apparent that the objections officer was unable to form the necessary state of satisfaction, on the evidence available, so as to revoke the existing care determination.

15.Mr Seacole’s evidence at the hearing included the following:

·There is a court order dated 17 May 2016 included in the hearing papers.  It cost him a lot of money to obtain a court order.

·He has not gone back to court to enforce the court order due to time and cost.

·However he wants the child support assessment to reflect the court order that states he is to have care of [Child 1] for three nights every second weekend from 6.00pm on Friday until Monday before school as well as half the school holidays.

·This court order was followed until he went to [Country 1] late November 2020 and this is what caused the care change to 100% care of [Child 1] to Ms Gusfield. When he returned he was required to quarantine until 15 March 2021.

·His care resumed on 19 March 2021 until June at which time care arrangements were not followed because of COVID-19.

·On 21 May 2021 after he picked up [Child 1] from school he kept him for the weekend but did go past his home for [Child 1] to pick up some books he wanted.

·He insists that he had care of [Child 1] on the following nights:

o19 to 21 March 2021

o2 to 4 April 2021

o23 to 25 April 2021

o7 to 9 May 2021

o21 to 23 May 2021.

16.Ms Gusfield’s evidence at the hearing included the following:

·Mr Seacole never arranged to have care of [Child 1] in half of the school holidays despite the court order.  He just wanted to have this care set up to reduce his child support amount.

·She works full time and during the school holidays she had to pay for child care.

·Further, on the alternate weekends that Mr Seacole would pick up [Child 1] he would return him on Sundays back to her and never on Mondays as he did not have [Child 1]’s school uniform with him.

·[Child 1] had become distressed with Mr Seacole constantly talking negatively about her and her partner and it has started affecting [Child 1]’s mental health.

·She agrees that Mr Seacole had care of [Child 1] on 19 and 20 March 2021, 2, 3, 23 and 24 April 2021. However after this period [Child 1] has had limited contact with his father and it is highly unlikely that he will have any care as [Child 1] does not want to see him.

·He could not have had [Child 1] on Sunday nights as he did not have a school uniform with him.

·She agrees that on 21 May 2021 she had advised Mr Seacole that if he wanted to have a relationship with his child then perhaps he could try picking him up from school as [Child 1] refuses to go with his father from her house. When Mr Seacole arrived at the school, the school called Ms Gusfield and she stated that if [Child 1] is happy to go with his father then they can let him go.  Mr Seacole did pick up [Child 1] from school but then in the car proceeded to talk negatively about her and [Child 1] started crying and was not consolable and Mr Seacole brought him back to her house that same night. [Child 1] had recorded the conversation with his father.

·She also agrees that she told the Department on 3 April 2021 that she does not agree with the care change being purported by Mr Seacole.  She advised that they were trialling a care change for [Child 1] however, Mr Seacole was not following that trial and that she wanted to see how things go over the next month.

1. I note that Mr Seacole is stating that he has care three nights per fortnight in accordance with the 2016 court order.  However that court order also states that he has care of [Child 1] for half of all school holidays. Ms Gusfield’s position included that in the past, prior to his trip to [Country 1], Mr Seacole would not have [Child 1] for half of the school holidays. 

2. I also note that Term 1 school holidays this year in NSW were from 2 April 2021 to 18 April 2021.  By Mr Seacole’s own evidence he did not have care of [Child 1] in accordance with the court order nor does it appear he sought care for six consecutive nights of the Term 1 holidays.

3. I found Mr Seacole’s evidence somewhat contradictory. On the one hand he stated that Ms Gusfield blocks his care of [Child 1] and that it is too expensive and takes too long to go to court to enforce the order.  On the other hand he stated that he is continuing to have care for three nights per fortnight.

4. Further he requested that the Department reflect the care in accordance with the court order. However, I am satisfied that Mr Seacole is not having care of [Child 1] in half of the school holidays and there is no evidence before me that Ms Gusfield had blocked this care or that Mr Seacole had tried to arrange the care for half of the school holidays. 

5. At the same time it appears that Ms Gusfield told the Department on 13 May 2021 that [Child 1] had not stayed with Mr Seacole since the night of 3 April 2021 whereas she later acknowledged that he did in fact have care of [Child 1] on 23 and 24 April 2021. However I also note that the hearing papers include emails and texts from Ms Gusfield to Mr Seacole stating that [Child 1] refused to go with him at various times including 16 April 2021, 14 May 2021 and 4 June 2021. She had also advised Mr Seacole that if he wants to see [Child 1] then perhaps pick him up from school, which I note Mr Seacole did on 21 May 2021. Ms Gusfield’s position includes that Mr Seacole has had no care of [Child 1] since 24 April 2021.

6. Having considered all of the evidence before me I am satisfied that Mr Seacole had care of [Child 1] on 19 and 20 March 2021, 2, 3, 23 and 24 April 2021 and that he has not had any further overnight care of [Child 1].

7. I am not satisfied that at the time of the original decision (11 June 2021) this care represents a disruption to a pattern of care such that the care is likely to be ongoing.

8. The effect of the legislation in these circumstances is that the existing care determination continues in effect, as the criteria for its revocation cannot be established.

9. For the sake of completeness, I also note that it is unclear whether the court order referred to dated 17 May 2016 was still current and whether it was actually being complied with prior to Mr Seacole’s trip to [Country 1] late in 2020. In any event, it is clear that it was not being followed upon his return. There is also no evidence before me of Mr Seacole undertaking reasonable action in an attempt to regain care in accordance with that court order. 

DECISION

The decision under review is affirmed.