Summerhays and Mollett (Child support)

[2024] AATA 488

Summerhays and Mollett (Child support) [2024] AATA 488 (5 February 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC027064

APPLICANT:  Mr Summerhays

OTHER PARTIES:  Child Support Registrar

Ms Mollett

TRIBUNAL:Member I Sheck

DECISION DATE:  05 February 2024

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 pattern of care – care arrangement - not satisfied parent who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with - no interim care - 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 Mollett and Mr Summerhays are the parents of twins [Child 1] and [Child 2], born [date] November 2022. A case was registered with Services Australia – Child Support (“Child Support”) for the assessment and collection of child support on 29 March 2023.  The assessment of child support was based on care percentages of 100% for Ms Mollett and 0% for Mr Summerhays.

2. On 21 August 2023 a Child Support officer determined that the parties each had 50% care of [Child 1] and [Child 2] from 15 June 2023 onwards.  The determination had been made following advice received from Centrelink regarding the care assessment for family assistance.  Pursuant to the care alignment provisions the new care determination was applied by Child Support to the child support record.

3. On 4 September 2023 Ms Mollett objected to the decision, stating that Mr Summerhays had no overnight care of the children and did not have 50% care from June 2023.  On 12 September 2023 Mr Summerhays informed Child Support that he had care of the children for four nights (Monday to Thursday inclusive) in the first week of each fortnight and three nights (Monday to Wednesday) in the second week.  Both parties were requested to provide supporting evidence and did so.  On 10 November 2023 an objections officer of Child Support allowed Ms Mollett’s objection.  This meant that Ms Mollett’s care percentage for both children reverted to 100% and Mr Summerhays’s 0%.

4. By application received on 16 November 2023, Mr Summerhays asked this Tribunal to review the decision of the objections officer. On 5 February 2024, the Tribunal conducted a hearing at which Mr Summerhays and Ms Mollett gave evidence by MS Teams audio.  The Tribunal had before it the relevant documents from Child Support (pages 1 to 304), which had been copied to the parties.

CONSIDERATION

1. The legislative provisions relevant to this decision are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Act sets out the statutory formula for the calculation of child support, which takes into account each parent’s adjusted taxable income and the level of care they provide for each child of the assessment. The provisions require Child Support (and the Tribunal on review) to determine whether an existing care determination can be revoked and if so, what new care percentage decision can be made.

Has there been a change in care?

1. As at 15 June 2023 Child Support had recorded that in respect of [Child 1] and [Child 2], Ms Mollett had an attributed percentage of care of 100% and Mr Summerhays, 0%. The first issue to be determined is whether the care that was actually taking place corresponded with the recorded percentages of care.

2. The background to the case is as set out above.  Also, during the period under review Ms Mollett and Mr Summerhays lived in the same apartment block, but not the same apartment.  Ms Mollett and Mr Summerhays have never been partnered.   Mr Summerhays has since moved from his previous address.  Mr Summerhays told the Tribunal that after Ms Mollett and the twins came home from hospital Ms Mollett returned to work.  She would drop the twins off at his apartment at 5am and pick them up again at 4pm, when she finished work.  Then she stopped bringing them entirely.   In response to this Ms Mollett agreed that she returned to work around four weeks after the twins were born, for financial reasons.  She left the children with Mr Summerhays while she worked for only one week or so.  After this point he told her he could not look after the children any more, so she arranged for a friend to look after them in her apartment while she worked.  The Tribunal accepts that Mr Summerhays had daytime care of the children for a short period that appears in any event to have been prior to the registration of the child support liability.

3. Mr Summerhays told the Tribunal that Ms Mollett’s father came to live with her and the children in June 2023.  The father put to Mr Summerhays that Mr Summerhays should be responsible for all of the children’s expenses and in return, Ms Mollett would withdraw her child support application and Mr Summerhays would have care of the children for four days in the first week of every fortnight and three days in the second week.  They signed an agreement to that effect.  In relation to the form of the “agreement”, this appears to be the Centrelink form “FA12 – Details of your child’s care arrangements.”  Mr Summerhays provided this to Child Support on 2 October 2023 and it appears that it had originally been lodged with Centrelink in June or July 2023 for family assistance purposes.  The form indicates that [Child 1] would be in the care of Mr Summerhays for 40% of the time and of Ms Mollett 60% of the time.[1]  At question 29 and 30, however, the care was stated as 183 nights of the year with Mr Summerhays and 182 nights with Ms Mollett, which is of course a 50/50 arrangement.  In relation to [Child 2], the care percentages are listed as 50% each.[2]  The form appears to have been signed by both parties on 15 June 2023.  Although Ms Mollett indicated in her dealings with Child Support[3] that Mr Summerhays had fraudulently added her electronic signature to the form, she did not repeat this claim at the hearing and confirmed that the parties had made an agreement that the care of the children would be 50% each.

   [1] Question 27 of the form, page 131 of the hearing papers

   [2] Question 27, page 133 of the hearing papers

   [3] Page 185 of the hearing papers

4. It was unclear from the evidence provided by the parties to Child Support whether the agreement of 15 June 2023 was ever followed.  Mr Summerhays was clear in his statement of 12 September 2023 that it was indeed being followed: “I definitely have 50% care from 15 June 2023. Week 1 - I provide 4 nights care being - Monday, Tuesday, Wednesday and Thursday nights.  Week 2 - I provide 3 nights care being - Monday, Tuesday and Wednesday night.  We both signed paperwork for Centrelink confirming this arrangement.  To date, I continue to provide 50% care for [Child 2] and [Child 1]. This pattern will continue in the future.”[4]  The Tribunal took Mr Summerhays to his diary entries at pages 145 to 155 where he has noted “Having the kids over for the whole day” of June 19, 20, 21, 26, 27, 28, 29 and July 3, 4, 5, 10, 11, 12 and 13.  Mr Summerhays explained that he had noted in the diary the days that the children were to stay with him in accordance with the agreement.  Despite Mr Summerhays’s unequivocal evidence to Child Support that the care agreement was being followed, at the hearing the parties both agreed that it was not and never had been.  The Tribunal therefore finds that it was not.  Mr Summerhays has not had the overnight care of [Child 1] or [Child 2] at any point.

   [4] Page 117 of the hearing papers

What is the care determination that should be made?

1. On the face of it, it would appear that from 15 June 2023 Ms Mollett’s care percentage for the children should remain 100% as she continued to have 100% of the care of them.  On this point, however, Mr Summerhays put to the Tribunal that he had been given legal advice that if there was an agreement regarding the care of children and it was not being followed then the child support should be assessed on the basis of the agreed care.  He also referenced this in his letter to Child Support of 25 October 2023:[5]

   I sorted [sic] for legal advice and was advised to continue requesting to have my children from Ms Mollett and her father on the days I am meant to have them and document days they refused to bring them believing that since we all had an agreement and signed a Centrelink form that reflects that agreement, it will be believed that I am meeting my care obligations even though I don’t have them physically because should Ms Mollett adhered to her own side of the agreement and bring the children to me, I would have performed my care obligation for my children but since she is the one who is intentionally refusing to bring the kids to me for reasons best known to her, then my care will still count for child support purposes

   [5] Page 195–196 of the hearing papers

2. The legislative requirements referred to by Mr Summerhays are set out at section 51 of the Act, as follows:

   51 (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; 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 that 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.

3. If section 51 applies an “interim care determination” may be made, which essentially assesses the child support on the basis of the care percentages as set out in the care agreement. This is not however an open-ended determination. Mr Summerhays did not appear to be aware that for a care arrangement that is not a Court Order, the maximum length of an interim care determination is 14 weeks, after which point the assessment reverts to the actual care percentages. In this case any interim care determination would be in force to no later than 21 September 2023. In considering whether section 51 does apply in this case the Tribunal considered whether there is a care arrangement for the children. Section 5 of the Act defines “care arrangement” as having the same meaning as in the A New Tax System (Family Assistance) Act 1999. This definition includes “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; ...”  The Tribunal is satisfied that the form FA12 dated 15 June 2023 constitutes a care arrangement and that under this arrangement, Mr Summerhays was intended to have care of the children for 50% of the time.  The Tribunal has also found that Mr Summerhays has never had care of the children for 50% of the time as set out in the care arrangement.

4. The final point to be determined is whether Mr Summerhays was taking reasonable action to ensure that the care arrangement was complied with.  On this point Mr Summerhays asserted that the agreement was that Ms Mollett would hand the children over to him at his apartment and collect them from there at the end of his care period.  She did not do so.  Ms Mollett’s evidence was that Mr Summerhays was to come to her apartment to pick up the children but he never did so.  Mr Summerhays responded that he had received legal advice that he should not go to her apartment as she had made false claims of domestic violence against him.  The Tribunal asked Mr Summerhays what action he took to ensure that the care arrangement was complied with and he replied that he messaged her that he would call the police if she did not comply.  It is unclear whether he ever did so and Ms Mollett only referred to one incident when he had sent the police to her apartment alleging the children were in danger, which occurred in March 2023.  On balance, the Tribunal finds he did not.

5. The parties have both provided a large number of text messages between Mr Summerhays, Ms Mollett and Ms Mollett’s father.  It is clear that the communication between the parties is obstructive and combative.  The oral evidence of Mr Summerhays as to the pick-up and drop-off arrangements for the children is entirely at odds with Ms Mollett’s evidence on that issue.  The Tribunal did not find either of the parties to be particularly credible and they appeared focussed on their asserted motivations of the other party, rather than the events that actually occurred.  Child Support’s view of what constitutes “reasonable action” for this purpose is set out in the Child Support Guide at point 2.2.4 as follows:

   The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

   ·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement

   ·making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to

   ·seeking or obtaining legal advice regarding the making of a court order

   ·filing an application to a court to have an order made or enforced

   ·attending a hearing at court to seek an order to be made or enforced, or

   ·notifying the police that the child has been taken without consent.

   This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child.

6. Having read the text messages provided by the parties, it appears that Mr Summerhays has made no effort to negotiate with Ms Mollett in a genuine attempt to ensure compliance with the care arrangement.  It is also unclear (again, from the text messages) whether any action was taken to ensure compliance with the care agreement until a month or so after it was entered into.  In Mr Summerhays’s letter to Child Support of 25 October 2023 he in fact notes that he was studying at TAFE at the time the agreement was entered into and asked Ms Mollett to drop the children off at day-care when his care was due to commence but Ms Mollett would not do so.   He later transferred his studies to online so that he could be at home to look after the children.  Mr Summerhays had also noted that he sought legal advice and the Tribunal asked when this occurred.  Mr Summerhays indicated that this was after the objections officer’s decision but this cannot be correct, as he mentioned the legal advice in his letter of 25 October 2023, which was some two weeks prior to the objections officer’s decision.  I conclude Mr Summerhays sought legal advice shortly before 25 October 2023, which would be well after the end of any interim care determination that could apply.  Mr Summerhays further stated that he tried to have the matter settled through mediation but Ms Mollett refused to attend.  Ms Mollett responded that she did in fact attend mediation and has a certificate dated 30 November 2023 to confirm this.  The mediation was however unsuccessful.

7. In summary, the parties entered into a care arrangement on 15 June 2023 that Mr Summerhays would have 50% care of the children from that date. His actual care since that date has been 0%. The Tribunal is not satisfied that Mr Summerhays “who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.” As not all of the requirements of section 51 of the Act are met the section does not apply and there is no basis on which an interim care determination can be made. The assessment of the care percentages for the children are to be based on their actual care arrangements, per section 50 of the Act.

8. As at 15 June 2023 Ms Mollett’s care percentages for [Child 1] and [Child 2] were 100% and Mr Summerhays’s 0%.  There was no change to the pattern of care therefore no basis on which to revoke the existing determinations.

DECISION

The decision under review is affirmed.