Szabo and Szabo (Child support)

[2020] AATA 5842

Szabo and Szabo (Child support) [2020] AATA 5842 (8 December 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC018187

APPLICANT:  Ms Szabo

OTHER PARTIES:  Child Support Registrar

Mr Szabo

TRIBUNAL:Member T Bubutievski

DECISION DATE:  8 December 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care on 5 November 2018. There was a change of care on 30 November 2018, but an interim period applies between 30 November 2018 and 14 February 2019 such that the care percentages remain unchanged during that period.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of care change – existing percentage of care determinations revoked and new determinations made – whether an interim period applies – decision under review set aside and substituted

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 concerns the care percentages used in a child support assessment.

2. Ms Szabo is the mother of [Child 1]. On 9 April 2019, Services Australia – Child Support (the Department) made a decision to assess the care of [Child 1] as 100% to Mr Szabo from 5 November 2018.

3. Ms Szabo lodged an objection to that decision on the basis that she had taken reasonable action to have the care arrangement complied with. On 11 December 2019 the Department disallowed her objection.

4. On 9 January 2020 Ms Szabo made an application to the Social Services and Child Support Division of this Tribunal for a review of that decision.

5. The application was initially heard in Sydney on 6 April 2020. Ms Szabo and Mr Szabo gave sworn evidence by telephone. In addition to oral evidence, the Tribunal had regard to documents provided by the Department (folios 1 to 158) and by Ms Szabo (folios A1 to A295). A copy of those documents had been provided to both parents. After the hearing the Tribunal deferred the matter to further research the law.

6. The Tribunal did not decide the matter at that time. A further hearing was conducted by the Tribunal (differently constituted) on 8 December 2020. Prior to conducting this hearing, the Tribunal examined all of the evidence and listened to the recording of the previous hearing. Although Ms Szabo had been correctly notified of the rehearing she was not available at the hearing time, so the Tribunal proceeded to speak to Mr Szabo alone.

ISSUES

1. The issues the Tribunal must decide are:

   ·whether the care pattern for [Child 1] changed such that the previous care percentages should be revoked;

   ·the care percentages that should be used and the date from which they should apply; and

   ·whether an interim determination should be made to continue the previous child support percentages for a period of time.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The various levels of care are defined in section 5 of the Assessment Act. The rate of child support payable by a person is dependent upon both their percentage of care and their cost percentage set out in section 55C of the Assessment Act.

3. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

4. Care percentages must be revoked under section 54F of the Assessment Act if:

   ·the care of a child that is actually taking place does not correspond with a person’s existing percentage of care for the child; and

   ·the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

5. Sections 49 and 50 require the Registrar, or this Tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

6. The date of effect of any revocation of care percentages, or changes to the percentages used, depends on when the Department was notified of or otherwise became aware of the change. A change in care takes effect on the day that it occurred if the Department is notified within 28 days of that change, otherwise it takes effect on the date of notification (subsection 54F(2) of the Assessment Act).

7. In some cases where there is a court ordered care arrangement or a written care agreement an interim period may apply. This has the effect of continuing the previous care percentages for a period of time, while the parents make provision for the care arrangement to return to normal. An interim period cannot last for more than 52 weeks (subsection 53A(1) of the Assessment Act).

Was there a change to the care pattern for [Child 1]?

1. At the relevant time, the care of [Child 1] was proceeding in accordance with a court order of [a day in] October 2017. [Child 1] lived with Mr Szabo but spent time with Ms Szabo during half the school holidays and every second weekend during school term. These orders were substantially similar to original court orders made [in] November 2013.

2. There has clearly been some conflict between the parents around the care of [Child 1] and Ms Szabo made an application to the court for a contravention order in 2017. At that time, Mr Szabo was found guilty of contravening the orders [in] July 2017 and the court orders of [October] 2017 were made.

3. The parents confirmed that care was occurring in accordance with the court orders until 5 November 2018. Ms Szabo had her scheduled care that weekend. She was next to spend time with [Child 1] on 16 November 2018. The parents agree that Ms Szabo’s other daughter attended to collect [Child 1] for that event. [Child 1] had [an event] on that weekend, and as it turned out Ms Szabo would have been unable to transport her to the [event]. Mr Szabo told the Tribunal that [Child 1] rang him and asked if she could stay with him that weekend instead because he was able to take her to the [event]. Mr Szabo said that he agreed to this as he did not want [Child 1] to miss out on her [event]. There were no arrangements made for an alternative care event to make up the time that Ms Szabo missed.

4. Ms Szabo was next due to have care of [Child 1] on 30 November 2018. She was to collect [Child 1] from after school care. On that day, [Child 1] refused to go with Ms Szabo. Mr Szabo said the after school care service rang him and asked him to attend the service. Mr Szabo said that he did not want to attend in case there was a confrontation between himself and Ms Szabo, so he advised the service to contact the police. They did so. Mr Szabo understood from the manager of the service that the police attended and gave [Child 1] the choice of either going with her mother or going with them to the police station. [Child 1] chose to go with them to the police station. Mr Szabo said he collected her from there around 7:30 PM.

5. The next care was scheduled to take place on 14 December 2018. The parents agreed that Ms Szabo did not attend to collect [Child 1] for that care event.

6. The next care event was on 26 December 2018. All the parties attended [Location 1] for the purpose of the change-over. The parents gave conflicting evidence about the reason for [Child 1] not going with Ms Szabo for the scheduled contact, but it is agreed that [Child 1] did not go with Ms Szabo for the scheduled contact. All the parties attended [a named] police station and were advised that the police would not take any action. [Child 1] returned home with her father.

7. Ms Szabo gave evidence that at that time the court was closed, but that on 8 January 2019 she lodged an initiating application for parenting orders. She said that this was the first opportunity that she could do so. A copy of the orders was provided at A46 of her documents and are date stamped by the court on 8 January 2019. Ms Szabo said that she made a request of the Registrar to treat the application as an urgent application, but the Registrar declined to do so. Ms Szabo said that it was her understanding that the application contained wording which amounted to a recovery order, but that as Mr Szabo had sole parental responsibility for [Child 1] under the court orders of [October] 2017 the recovery provision could not be given legal operation.

8. The Tribunal examined the initiating application. The final orders requested under this application include a change of residence for [Child 1], so that she would reside with Ms Szabo and spend time with Mr Szabo. The interim orders requested, however, do, at clause 3.1 include a recovery order requiring the Marshal of the Court and all officers of State and Federal police to find and recover [Child 1] and deliver her to the mother. At clause 3.3 it requests the father to bring the child to weekend change-overs at [Location 1]. Clause 3.4 requests make-up time for school holiday contact that has not occurred in December 2018 and January 2019.

9. Mr Szabo argued that the interim application did not include a recovery order and the court had still not dealt with the matter at the time of the initial hearing.

10. The Tribunal noted that a copy of these orders was not provided to it by the Department, so it is not clear whether or not the Department ever saw these orders, although they are referred to as evidence in the objection decision. The Department formed the view that it was unable to make an interim determination as although Ms Szabo had taken action in relation to the care, she had not taken reasonable action to ensure the current care arrangement was being complied with, because she was after new orders which substantially change those arrangements. The Tribunal disagrees with this view. It is clear that the interim orders requested in the initiating application amount to reasonable action to have the current care arrangement complied with in the interim, until the court makes a decision about the final orders requested.

11. Ms Szabo said that the parenting application was to be dealt with in April 2020, but the court date was vacated due to the COVID-19 pandemic. She agreed that the court did not deal with her recovery order immediately although it had been requested to do so. She actually lodged the application herself, but she got the wording from [a legal service].

12. Ms Szabo said that she attempted to call [Child 1] for her birthday in January but the calls were not answered. Mr Szabo disputed this. Ms Szabo said that she also attempted to communicate with Mr Szabo because [Child 1] was starting at a new school in 2019 as she was commencing high school at [School 1], which is a private school. Ms Szabo said that she tried to make arrangements to meet with [Child 1] for her next contact which was due after school holidays on 1 February 2019.

13. The parents agreed that Ms Szabo’s contact with [Child 1] returned to its normal pattern, in accordance with the court orders, from 15 February 2019. Ms Szabo said that there was some lack of clarity around the orders now as they specify that she is to have contact with [Child 1] for half the school holidays, but now that [Child 1] is privately educated the school holidays are longer. Ms Szabo agreed that she first had this additional contact in the June/July 2019 school holidays as [Child 1] had an extra week of holidays. She said that she also had care of [Child 1] from 4 December 2019 until 26 December 2019 as [Child 1] has additional holidays in summer as her school finishes early.

14. The Tribunal is satisfied that Ms Szabo’s care of [Child 1] returned to the normal pattern in accordance with the court orders of [October] 2017 from 15 February 2019. There was no change to that care pattern until the middle of 2019, as Ms Szabo then had additional time. At A29 of her documents there is a letter Ms Szabo wrote to the Department, dated 8 November 2019, in which she details the care she has had or is expected to have of [Child 1] in 2019. She shows care of eight nights in June and 17 nights in July, and requests that the care percentages be updated forthwith. Ms Szabo advised the Tribunal that the Department had done nothing about that letter. The Tribunal decided that any changes of care that may have occurred in June 2019 are not before it at this time. The only matter for the Tribunal to determine is the correctness of the Department’s decision to assess 100% care of [Child 1] to Mr Szabo from 5 November 2018. Any further changes to the care arrangement are new events which will need to be examined by the Department to see if any changes to the care percentages are required.

15. At the rehearing of the matter Mr Szabo advised the Tribunal that the parenting orders have not yet been dealt with, but there was shortly to be a court proceeding in which he would be arguing for the application to be dismissed on the basis that there had not been a significant change to warrant Ms Szabo bringing the proceedings (Rice v Asplund (1978) 6 FamLR 570). Mr Szabo felt that he would likely be successful. The Tribunal notes that there have been further changes in the care of [Child 1] in 2020 due to COVID-19 and Ms Szabo’s relocation to a small country town in [another region of] New South Wales. Again, these are new matters to be determined by the Child Support Registrar and are not before the Tribunal at this time.

Must the care percentages be changed?

1. If there was a change of care on 5 November 2018 the care percentages could be changed from this date. Under section 54F of the Assessment Act, the Registrar must revoke a previous determination of a responsible person’s care percentage if they are notified or otherwise become aware that the care of a child that is actually taking place does not correspond with a person’s care percentage, and the new percentage of care would change the person’s cost percentage, and therefore the amount of child support that is payable.

2. The Tribunal is not satisfied that there was a change of care at this time. Ms Szabo had her scheduled care that weekend. The next care event was due to take place on 16 November 2018, and it was agreed that [Child 1] would stay with Mr Szabo, even though there was no make-up time determined and Mr Szabo obviously felt that if he did not allow [Child 1] to stay with him she would miss out on her [event]. The Tribunal is satisfied that the agreement that [Child 1] miss this particular care event means that there was not any change in the care arrangements until [Child 1] refused to go with Ms Szabo on 30 November 2018.

3. There was then a change in the care arrangements which continued until 15 February 2019, when they reverted to their normal pattern. Consequently, the matter before the Tribunal relates to this discrete period.

4. The Tribunal cannot find that it was correct to change the care percentages to 100% to Mr Szabo from 5 November 2018, although it may have been correct to do so from 30 November 2018.

5. Care percentages will only be changed immediately if an interim period does not apply.

Does an interim period apply?

1. If an interim period applies, the child support percentages are not changed until the end of the interim period. This gives the parents time to make court applications, attend family counselling or mediation, or make their own arrangements to have the care pattern resumed. If this has not occurred by the end of the interim period, the actual care percentages are applied. For an interim period to apply, the parents must be taking reasonable action to have the care arrangements complied with.

2. In this case, the Tribunal is satisfied that an interim period does apply. Until 30 November 2018 care of [Child 1] was proceeding according to a court order of [October] 2017. If a change of care occurs more than 38 weeks after a court order was made, an interim period of up to 26 weeks may apply where a person is taking reasonable action to have a care arrangement complied with. The Tribunal is satisfied that the initiating application Ms Szabo lodged with the court on 8 January 2019 amounts to reasonable action. The interim orders sought in that application say clearly that Ms Szabo wants immediate contact with [Child 1], arrangements for change-overs and make-up time for any period of contact missed during December 2018 and January 2019.

3. Between 30 November 2018 and 14 February 2019 Mr Szabo had increased care of [Child 1]. He did not make any applications or take action to have the care arrangement complied with. This means that the maximum interim period of up to 26 weeks from the change of care date applies (table item 2, column 3, paragraph (a) of subsection 53A(1) of the Assessment Act). The interim period in this case could therefore extend up to 31 May 2019. In fact, the normal pattern of care resumed from 15 February 2019, so the interim period must end at that time.

4. As a consequence of this decision, the child support percentages for Mr Szabo and Ms Szabo (which appear from the Department’s file to be 71% to Mr Szabo and 29% to Ms Szabo) will remain unchanged from 5 November 2018.

5. In summary, the Tribunal has found that there was no change of care on 5 November 2018. There was a change of care on 30 November 2018, but an interim period applies such that there are no changes to the care percentages between 30 November 2018 and 14 February 2019. The Tribunal notes that the Department subsequently made a further care determination from 15 February 2019 onwards.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that there was no change of care on 5 November 2018. There was a change of care on 30 November 2018, but an interim period applies between 30 November 2018 and 14 February 2019 such that the care percentages remain unchanged during that period.