Tallantyre and Driver (Child support)

[2023] AATA 429

Tallantyre and Driver (Child support) [2023] AATA 429 (12 January 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024890

APPLICANT:  Mr Tallantyre

OTHER PARTIES:  Child Support Registrar

Ms Driver

TRIBUNAL:Member H Moreland

DECISION DATE:  12 January 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that from 1 August 2022, Mr Tallantyre had 29% care and Ms Driver had 71% care of [Child 1].

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 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. Mr Tallantyre and Ms Driver are the parents of [Child 1].

2. From 1 October 2020, Services Australia – Child Support (the Agency) determined that Mr Tallantyre had a percentage of care of 282 nights (78%) and Ms Driver had a percentage of care of 83 nights (22%) in relation to the care of [Child 1].

3. On 2 August 2022, Ms Driver contacted the Agency and informed it that there had been a change in care of [Child 1] and that, as a result, she had 283 nights (78%) and Mr Tallantyre had 82 nights (22%) care of [Child 1].

4. On 23 September 2022, the Agency decided to accept this change in care. On 27 September 2022, Mr Tallantyre lodged an objection to this decision. On 21 October 2022, an objections officer disallowed Mr Tallantyre’s objection.

5. On 24 October 2022, Mr Tallantyre lodged an application with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision. The hearing took place on 12 January 2023. Mr Tallantyre participated in the hearing by telephone and gave evidence on affirmation.

6. The Tribunal attempted to contact Ms Driver numerous times (at least 5 times) between 9am and 9.40am (Queensland time) on the number provided to the Tribunal by the Agency for Ms Driver. Ms Driver however, failed to answer the phone. The Tribunal notes that a hearing confirmation was emailed to Ms Driver on 9 December 2022, which showed when the hearing would be held and on which number Ms Driver would be called. Further, an SMS reminder was sent to Ms Driver, by the Registry, on 11 January 2023. The Tribunal concluded that Ms Driver had been provided with adequate notice of the method, date and time of the hearing and, accordingly, decided to proceed with the hearing, in Ms Driver’s absence.

7. In making its decision, the Tribunal considered the documents provided by the Agency (93 pages), which were also sent to Mr Tallantyre and Ms Driver.

CONSIDERATION

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

2. The Tribunal also referred to the Australian Government Guides to Social Policy Law – Child Support Guide (the Guide) in making this decision. The Guide sets out the approach taken by the Agency in its consideration of social security matters. It expresses policy and the Tribunal is not bound by such policy; however, in Drake and Minister for Immigration and Ethnic Affairs (Drake),[1] the Full Court of the Federal Court held that a Tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the relevant legislation. The Tribunal adopts this approach in the present matter.

   [1] (No 2) [1979] AATA 179.

Has there been a change in the care of [Child 1]?

10.As noted above, Ms Driver contacted the Agency on 2 August 2022, to inform it that there had been a change in care in relation to [Child 1]. At this time, according to the Agency papers, Ms Driver told the Agency:

Why has the care changed?: [Child 1] has moved up to the [Region 1] with me and now resides with me 78% of the time this is effective as of the 1st August 2022
When did this care start occurring?: 01/08/2022
 DRIVER's care percentage: 78
Does TALLANTYRE provide the remaining care percentage: true

TALLANTYRE's care percentage: 22

11.Mr Tallantyre told the Tribunal that [Child 1] had commenced a new job as a [occupation] closer to her mother’s home, on the [Region 1], in mid-2022 and that as a result, [Child 1] had decided to stay at her mother’s home when she was working, to reduce her travel time. Mr Tallantyre told the Tribunal that [Child 1] had stayed with her mother for 4 to 5 nights per week, depending on her roster, but travelled to his home every weekend and stayed there because her boyfriend and friends all remained in [Town 1].

12.The Tribunal asked Mr Tallantyre why he initially agreed that his care percentage would be 22% when he was contacted by the Agency.[2] Mr Tallantyre told the Tribunal that he had said that at that time because he was unaware exactly what [Child 1]’s plans were and how the care would actually change. Mr Tallantyre said that for the period from August to the end of October 2022, [Child 1] would have spent 3 nights at his home on 3 to 4 weekends; and 2 nights at his home for the remainder of those weeks.

[2] The Agency papers, p 32.

13.The Tribunal accepts Mr Tallantyre’s evidence and notes the letter provided by Mr Tallantyre’s mother, Ms Tallantyre, dated 19 October 2022, which states:

I Tallantyre mother of Tallantyre has witnessed [Child 1] Tallantyre in Mr Tallantyre’s care every weekend from 4^th of August 2022.[3]   

[3] The Agency papers, p 73.

14.The Tribunal concludes that the care of [Child 1], from 1 August 2022 was based on [Child 1] generally being in the care of her mother during the week (5 nights) and spending every weekend with Mr Tallantyre (2 nights).

15.The Tribunal notes that the papers contained text messages between Mr Tallantyre and [Child 1] but it disregarded those at it does not, in the ordinary course, consider evidence from children who are subject to a review. The Tribunal also notes that there appeared to be no letters of support for Ms Driver, to support the contention that she had a care percentage of 78% in relation to [Child 1]’s care.

16.The Tribunal is satisfied that Ms Driver contacted the Agency on 2 August 2022 to notify of a change in care from 1 August 2022 and that there was a change in care. The Tribunal finds however, that rather than the care changing from Mr Tallantyre having a care percentage of 78% and Ms Driver having a care percentage of 22% to Mr Tallantyre having a care percentage of 22% and Ms Driver having a care percentage of 78%, the actual care change was that Mr Tallantyre had a care percentage of 29% and Ms Driver a care percentage of 71%.

Should the existing care determinations in relation to [Child 1] be revoked?

17.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

18.In this case, the Tribunal has determined that a care determination was made under section 50 of the Act from 1 October 2020 with Mr Tallantyre having a care percentage for [Child 1] of 78% and Ms Driver having a percentage of care of 22%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. This means the existing care determination in relation to [Child 1] is revoked.

19.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking “reasonable action” to have the court orders complied with.

20.The Guide states, at 2.2.4 Disputed care arrangements: Taking reasonable action to ensure compliance with care arrangement:

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 continue to be 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. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·     a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative

·     documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·     documentation of police or court action.

Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was not made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F).[4]

[4] shown in the Agency papers, court orders were in place in relation to [Child 1]’s care, under which [Child 1] was to be in the care of Mr Tallantyre and spend every second weekend and half of all school holidays with Ms Driver.

22.Mr Tallantyre told the Tribunal that he had notified the Agency of a change in care in July 2021 when [Child 1] completed Year 10 through the TAFE system because, he said, at that time the care changed because [Child 1] no longer had school holidays. Mr Tallantyre told the Tribunal that that change in care was not accepted by the Agency.

23.The Tribunal notes that based on the evidence of Mr Tallantyre, the court orders had not been followed for some time by the time the change in care that is the subject of this review occurred (the change in care from 1 August 2022). Further, the change in care was driven by [Child 1]’s work schedule and not opposed by Mr Tallantyre. The Tribunal did ask Mr Tallantyre if he took any action to have the court orders followed when the change in care occurred on 1 August 2022 and Mr Tallantyre said that he had previously been advised by the police that court orders were not enforceable once children reached 16 years of age and that the Agency had told him that court orders were not relevant to care.

24.Given the circumstances, the Tribunal is not satisfied that Mr Tallantyre was taking “reasonable action” to ensure the court orders were being complied with under section 51 of the Act. Therefore, the Tribunal has determined that it is not appropriate to apply an interim determination in relation to the care of [Child 1].

25.This means that the care percentage is to be based on the actual care Mr Tallantyre and Ms Driver had from 1 August 2022, rather than the court-ordered care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that from 1 August 2022, Mr Tallantyre had 29% care and Ms Driver had 71% care of [Child 1].