Simen and Wimshurst (Child support)

[2021] AATA 4239

Simen and Wimshurst (Child support) [2021] AATA 4239 (15 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021931

APPLICANT:  Mr Simen

OTHER PARTIES:  Child Support Registrar

Ms Wimshurst

TRIBUNAL:Member K Dordevic

Member D Tucker

DECISION DATE:  15 September 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 – whether interim period should apply – no care agreement in place – 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. Ms Wimshurst (the mother) and Mr Simen (the father) are the parents of one child. This application concerns the child’s care arrangements from 23 February 2020.

2. A child support assessment was registered with the Department of Human Services (now Services Australia) – Child Support from 31 October 2013. From 30 September 2017 the child was recorded as being in the mother’s 86% care and the father’s 14% care.

3. The mother reported a care change on 22 April 2021, advising that she had 100% care of the child from 23 February 2020. Her care change application was accepted on 14 May 2021. The father objected to that decision on 19 May 2021 and the objection was disallowed on 19 June 2021.

4. The father sought review of the first and second care decisions by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal) on 13 July 2021. The matter was heard on 15 September 2021. The mother and father appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. In reaching its decision, the tribunal considered the sworn evidence of the mother and father as well as the documentation provided by Child Support (folios 1 to 137).

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act). The tribunal also had regard to the Child Support Guide (the Guide), which sets out Child Support’s policies.

2. The issues which arise in this case are as follows:

   ·Should the existing determination of percentages of care in respect of the child be revoked? If so, from when should they be revoked?

   ·Should a new determination of percentages of care be attributed to the mother and father in respect of the child?

   ·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 changes?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change of care arrangements. The provisions in Division 4 of Part 5 of the Act require Child Support (and the tribunal on review) to determine whether the existing care determination is correct, whether it can be revoked, and if so, what new care percentage decision can be made. Section 50 of the Act requires the primary decision maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances.

Was there a care change on 23 February 2020?

1. There is no dispute that the Federal Circuit Court ordered, by consent, that the child shall live with the mother and spend time with the father, outlined at orders 10 to 17. Order 3 stated:

   That the orders below at 10 to 17 inclusive will commence immediately upon approval by the Court and will automatically terminate without further Court order of the parties [sic] consent [in] September 2018 being [Child 1]’s 5^th birthday.

   The orders go on to state (at order 4) that the parents must attend mediation to discuss ongoing care after the child’s 5^th birthday.

2. The mother’s position is that the parties did attend mediation, which concluded without an agreement being reached. In support of this contention, she provided a letter dated 17 September 2018 from [Ms A], associate of [Law Firm 1], sent to the father’s lawyers, which stated that:

   Although Orders 10 to 17 automatically terminated without further Court Order or the parties’ consent [in] September 2018, our client is willing to continue to follow the provisions of the 24 March 2015 Orders, pending agreement being reached as to alternative arrangements by consent.

   We note that during Mediation which took place on 12 September 2018, an interim proposal as to care arrangements was put forward by our client, and it was advised that your client would respond to this proposal subsequent to Mediation.

   We look forward to receipt of your client’s response to this proposal.

3. The father seeks that an interim care determination pursuant to section 51 of the Act:

   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)  This section applies 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;

   (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 that period (which may be nil);

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

4. The term “care arrangement” is defined under section 5 of the Act as having the same meaning in the Family Assistance Act. Care arrangement is defined under section 3 of the A New Tax System (Family Assistance) Act 1999 as:

   “care arrangement” in relation to a child means:

   (a)  a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

   (b)  a parenting plan for the child; or

   (c)  any of the following orders relating to the child:

   (i)a family violence order within the meaning of section 4 of the Family Law Act 1975;

   (ii)a parenting order within the meaning of section 64B of that Act;

   (iii)a State child order registered in accordance with section 70D of that Act;

   (iv)an overseas child order registered in accordance with section 70G of that Act.

5. The Child Support Guide is instructive about what constitutes a written agreement. At Chapter 2.2.1, it relevantly states:

Agreements & orders regarding care

A written agreement is an agreement in writing and signed by both parents or the parent/s and a non‑parent carer regarding how a child will be cared for.

A parenting plan is a type of written agreement signed and dated by both parents. It is made under section 63C of the FL Act between separated parents regarding how their child or children will be cared for and supported (which may include the parents agreeing to care being provided by a non-parent carer).

…

A court order is an order made by the Family Court of Australia, the Federal Circuit Court of Australia or a court of summary jurisdiction in each state or territory (e.g. state magistrates courts and local courts exercising jurisdiction under the FL Act) which makes provision for the care of the children.

…

In this case, the tribunal accepts that the policy is consistent with the objects of the Act and that there is no inconsistency between the legislative provisions and the policy when determining what constitutes a written agreement.

1. The father asserts that correspondence between him and the mother’s solicitors making proposals of care arrangements are suggestive of there being a written agreement. The tribunal is not satisfied that proposals and negotiations constitute a written agreement between the parties, and certainly none of the correspondence in evidence indicates that there was ever a written agreement signed by both the parents regarding the child’s care arrangements [post] September 2018. At hearing, the father also stated that he has text messages that will evidence an agreement that he had not provided to the Agency or this tribunal. The tribunal is not satisfied that the text messages would meet the requirement of being signed by both parents, as required by the Guide.

2. The tribunal concludes that there is no current parenting plan, written care agreement or court‑ordered care arrangement in place regarding the child’s care [from] September 2018 onwards.

15.Subsection 54F(1) of the Act provides, in relevant part, that in circumstances where: the current care decision has been made under section 49 or 50 of the Act, if section 51 or 52 of the Act apply and the interim period has ended, the Registrar (or tribunal in the shoes of the Registrar) is satisfied that the new level of care advised is not consistent with the existing care determination and that the actual care of the child results in a change to the rate of child support payable due to a change in the cost percentages and section 54G of the Act is not applicable, then the current care decision must be revoked.

1. The tribunal is satisfied that all five criteria under this provision are met. In relation to paragraph 54F(1)(a) of the Act, there is no dispute that there were existing determinations for the parents of 14% to 86% made in accordance with section 50 of the Act. The existing determinations were not subject to sections 51 or 52 of the Act. As such, there was no interim period in place and the criterion under paragraph 54F(1)(b) is therefore satisfied. The tribunal is satisfied that the care as notified by the mother to the Agency on 22 April 2021 did not correspond to the care registered, thereby satisfying the third criteria under paragraph 54F(1)(c) of the Act. In relation to paragraph 54F(1)(d) of the Act, the tribunal is satisfied that each parent’s cost percentage would change. If new determinations were to be made in accordance with the tribunal’s findings above, the cost percentages of the father and mother would be 100% and 0% respectively. Accordingly, the tribunal is satisfied that, if new determinations were to be made, the cost percentages of both parties would change, thereby satisfying the second criterion under paragraph 54F(1)(d) of the Act. The tribunal has already determined that section 54G is not applicable in this case, thereby satisfying the fifth and final criterion under paragraph 54F(1)(e) of the Act. As all of the criteria of subsection 54F(1) of the Act are met, the tribunal must revoke the existing determinations of percentage of care in respect of the child.

2. Paragraph 54F(3)(b) of the Act states, in situations where the change was notified outside 28 days of the care change (as is the case in this matter), the date of revocation is different, dependent on whether the responsible person’s care has increased or decreased. Thus, the tribunal revokes the existing care percentages and replaces it with new care percentages of 0% to the father from 23 February 2020 and 100% to the mother from 22 April 2021.

DECISION

The decision under review is affirmed.