Tazewell and Riehle (Child support)

[2021] AATA 3688

Tazewell and Riehle (Child support) [2021] AATA 3688 (21 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021521

APPLICANT:  Mrs Tazewell

OTHER PARTIES:  Child Support Registrar 

Mr Riehle

TRIBUNAL:Member R King

DECISION DATE:  21 July 2021

DECISION:

The tribunal varies the decision under review such that:

1. until 11 December 2020, Mrs Tazewell had 79% of [Child 1]’s care and Mr Riehle had 21% of [Child 1]’s care; and

2. from 11 December 2020, Mrs Tazewell had 100% of [Child 1]’s care and Mr Riehle had 0% of [Child 1]’s care.

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. Mrs Tazewell and Mr Riehle are the parents of [Child 1] (age 14 years).  This application concerns whether an interim care period should be determined for [Child 1] in respect of his care during 2020.

2. At all relevant times, Mr Riehle was paying child support to Mrs Tazewell under an administrative assessment made by the Child Support Agency (CSA). Consistent with a court order, dated [in] May 2020, the care percentages for [Child 1], determined for purposes of the assessment, were 79% with Mrs Tazewell and 21% with Mr Riehle. 

3. On 25 January 2021, Mrs Tazewell contacted the CSA and advised that she had the sole care of [Child 1] from 19 September 2020.  On 4 February 2021, the CSA determined that the care of [Child 1] was 100% with Mrs Tazewell from 19 September 2020.

4. On 8 February 2021 (within 28 days after receiving the original decision) Mr Riehle lodged an objection, stating that Mrs Tazewell was withholding [Child 1] in contravention of the current court order.

5. On 13 May 2021, an objections officer allowed Mr Riehle’s objection.  The objections officer found that prior to 19 September 2020, the pattern of care for [Child 1] was consistent with the court order, that from this date, Mrs Tazewell withheld [Child 1] and Mr Riehle took reasonable action to ensure compliance with the terms of the court order until 25 January 2021.  The objections officer determined an interim care period from 19 September 2020 to 25 January 2021.  This meant that, for the purposes of the child support assessment, Mr Riehle retained 21% of [Child 1]’s care until 26 January 2021, from which date, Mrs Tazewell had 100% of his care.

6. On 17 May 2021 (within 28 days after receiving the objection decision) Mrs Tazewell applied to the tribunal for review of the care percentage decision. 

7. Mr Riehle applied to be added as a party to Mrs Tazewell’s application.  His application was accepted.

8. The tribunal conducted a hearing on 21 July 2021.  Both Mrs Tazewell and Mr Riehle participated by conference telephone and provided sworn evidence. 

CONSIDERATION

1. Mrs Tazewell told the tribunal that there was no basis for an interim care period because she did not withhold [Child 1].  Mrs Tazewell said that the only barrier to [Child 1] being in Mr Riehle’s care was that there were difficulties in the relationship between [Child 1] and his father, which made [Child 1] unwilling to stay with him.  She said that these difficulties preceded the incident on 19 September 2020 when [Child 1] left Mr Riehle (ran away) and returned to her place during a period of care with Mr Riehle.  Mrs Tazewell said that [Child 1] and Mr Riehle had been meeting with a family therapist ([named]) to resolve these difficulties but there had been no progress.  Mrs Tazewell said that she was not responsible for the difficulties between [Child 1] and Mr Riehle and that she had made [Child 1] available at each of the following periods when Mr Riehle was scheduled to have [Child 1]’s care.  She said that Mr Riehle failed to meet her and [Child 1] at the designated hand-over point until he was required to do so by a subsequent court order, issued on 10 December 2020.  Mrs Tazewell said that handovers remained unsuccessful because [Child 1] refused to get into Mr Riehle’s car.

2. Mr Riehle told the tribunal that he ceased attending scheduled handovers after Mrs Tazewell wrote to his solicitors advising that she was withholding [Child 1] pending a further court hearing on 10 December 2020.  Mr Riehle said that his lawyer responded immediately to this communication, advising that she must facilitate compliance with the court order and had no reasonable basis to withhold [Child 1] pending a future court hearing.   Mr Riehle told the tribunal that when Mrs Tazewell did not respond to this letter, he reasonably assumed that she did not intend to make [Child 1] available and therefore did not attend scheduled handover meetings.  He said that he disregarded a text message from Mrs Tazewell on the advice of his lawyer.  Mr Riehle told the tribunal that after the court order issued on 10 December 2020, he attended handover meetings, but [Child 1] refused handover and Mrs Tazewell failed to exercise her parental responsibility to ensure that the handover was successful.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (the Act).  The Child Support Guide (the Guide) contains detailed policy guidelines for CSA officers to use when applying the Act.  The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent.  The evidence before the tribunal suggests that the CSA initially determined that Mr Riehle had 21% of [Child 1]’s care but that this was revoked after Mrs Tazewell advised that [Child 1] had been in her sole care from 19 September 2020.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked.  Under section 54G of the Act, a care percentage determination must also be revoked if the effect of a change of care is such that a parent has less than 14% of the care.  Section 54G can only be applied if the responsible person notifies the CSA within a reasonable period and has been making the child available to the other party.  If a change of care is insufficient to require a change to the cost percentage, the original determination may be revoked under section 54H of the Act but this is not mandatory because the change in care percentage does not affect the overall child support assessment.  When a care percentage determination is revoked under sections 54F, 54G or 54H but the revocation is not in the context of a terminating event, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent. 

4. On 4 February 2021, the CSA revoked the existing care determination because there was a change in care with [Child 1] being 100% in the care of Mrs Tazewell from 19 September 2020. 

5. Under section 51 of the Act, when, prior to the revocation, care was provided in accordance with a court order or parenting plan, an interim care period can be determined if the change of care has occurred because one parent is withholding care and the person with reduced care is taking reasonable action to ensure that the pre-existing care arrangement is complied with.  This means that in such circumstances, two care percentages can be determined; one that reflects the actual care and the other that reflects the care percentages under the pre-existing care arrangement.  The latter provides the basis for an interim care period, the duration of which depends on conditions set out in section 53A of the Act.  Subsection 51(5) allows for a single care percentage to be determined if special circumstances exist in relation to the child.  The single care percentage will reflect the actual care and not the care that would have occurred under the pre-existing care arrangement.

6. It is not in dispute that Mrs Tazewell was [Child 1]’s sole care provider from 19 December 2020.  However, for reasons set out below, the tribunal is of the view that there was no change in the pattern of care until 2 October 2020.  The change of care from this date involved a change in the cost percentages, which means that the tribunal must revoke the pre-existing care percentages and make a new care percentage determination.

7. It is not in dispute that the care arrangements for [Child 1] were subject to a court order.  This means that the tribunal must determine whether or not an interim care period can be determined.  It follows that the tribunal must first make findings as to whether or not Mrs Tazewell was withholding [Child 1] and, if so whether Mr Riehle was taking reasonable action to ensure compliance with the court order.

8. The tribunal is satisfied that Mrs Tazewell formally advised Mr Riehle, through his lawyer, that she was withholding care of [Child 1] pending a court hearing on 10 December 2020.  Mrs Tazewell told the tribunal that she did not proceed as advised and instead made [Child 1 variant] available at the next scheduled handover meeting, sending him a text message that should have alerted him to this change of mind.  Mr Riehle said that he was advised to disregard such informal and ad hoc communication and await a response from Mrs Tazewell to the letter sent by the lawyer and that he acted in accordance with this advice. 

9. The tribunal is satisfied that there had been a history of difficulties in communication between Mrs Tazewell and Mr Riehle and that both parties had reservations as to whether the other was acting in good faith.  In such circumstances, the tribunal is of the view that it was reasonable for Mr Riehle to doubt that a text message was sufficient to establish that Mrs Tazewell was in fact making [Child 1] available and to seek and act on legal advice.  The tribunal is therefore satisfied that Mrs Tazewell was in effect withholding [Child 1] from 2 October 2020, which is the date when Mr Riehle would have next had the care of [Child 1] after the incident on 19 September 2020 when he ‘ran away” from Mr Riehle and returned to Mrs Tazewell’s care.  The tribunal does not accept that this incident or what followed should be regarded as Mrs Tazewell withholding [Child 1]’s care from Mr Riehle and should not be seen as disturbing the pre-existing pattern of care.

10. The evidence before the tribunal indicates that Mr Riehle took prompt action to ensure compliance with the court order by contacting his lawyer who immediately wrote to Mrs Tazewell requiring that she make [Child 1] available in accordance with the court order.

11. It follows that, unless there were special circumstances in relation to [Child 1], the tribunal can determine an interim care period from 2 October 2020.  Special circumstances are not defined in the Act, but the Guide refers to unreasonable or inappropriate behaviour towards the child and provides examples of circumstances where compliance with the pre-existing care arrangement would be clearly detrimental to the wellbeing of the child.  These include violence towards the child or exposure of the child to family violence.

12. Mrs Tazewell has alleged that Mr Riehle and his partner used force to get [Child 1] into the car during a handover on 19 September 2020.  There is evidence of longstanding and unresolved tensions in the relationship between [Child 1] and his father.  Professional interventions have been unsuccessful in resolving these tensions.  While the tribunal acknowledges a history of significant family relationship difficulties, the tribunal is not satisfied that the evidence is sufficient to establish a pattern of unreasonable and inappropriate behaviour towards [Child 1] on the part of Mr Riehle.  This does not preclude specific instances of unreasonable behaviour but rather indicates the absence of a pattern of behaviour such that overnight care with Mr Riehle would clearly be detrimental to [Child 1]’s wellbeing.  The tribunal is satisfied that [Child 1] did not want to be in Mr Riehle’s care and actively resisted entering his care but this alone does not amount to special circumstances that require care to be determined without consideration of an interim care period.

13. It follows that the tribunal must determine an interim care period.  The tribunal has established that the starting date for the interim care period is 2 October 2020.  The maximum duration of an interim care period is determined in accordance with a table in section 53A of the Act.  Under section 53A, in the circumstances of this case the maximum duration is 26 weeks.  However, an interim care period can terminate prior to the maximum duration if the conditions that allow for determination of an interim care period change.   

14. The evidence before the tribunal indicates that from 11 December 2020, Mrs Tazewell made [Child 1] available and met with Mr Riehle at the pre-arranged place for a handover.  The evidence further indicates that [Child 1] spoke with his father but declined to go home with him.  Mr Riehle submitted that Mrs Tazewell should have left the scene, leaving [Child 1] with no option but to accompany him.  He suggested that her failure to do so was tantamount to withholding [Child 1].  The tribunal does not accept that Mrs Tazewell was withholding care in such circumstances.  She made [Child 1] available and his refusal to accompany Mr Riehle was a matter between [Child 1] and his father.  Once [Child 1] approached Mr Riehle the transfer was complete and he was in his care.  Mrs Tazewell was not obliged to leave the scene and it may well have been neglectful of her to do so, given one or more previous instances of [Child 1] “running away”.

15. This means that the tribunal is satisfied that Mrs Tazewell was not withholding [Child 1] and the requirements for an interim care period ceased to be met from 11 December 2020.  It follows that the interim care period ends on 10 December 2020.

16. Under section 51 of the Act the tribunal must determine care percentages for both the actual care and the interim care period.  In this matter, from 2 October 2020 the actual care percentages for [Child 1] were 100% with Mrs Tazewell and 0% with Mr Riehle.  During the interim care period (from 2 October 2020 to 10 December 2020) the care percentages for [Child 1] were 79% with Mrs Tazewell and 21% with Mr Riehle.

17. The tribunal therefore varies the decision of the objections officer and determines that, for the purposes of the child support assessment, Mrs Tazewell had 71% of [Child 1]’s care and Mr Riehle had 21% of his care until 10 December 2020.  From this 11 December 2020, Mrs Tazewell had 100% of [Child 1]’s care and Mr Riehle had 0% of his care. 

DECISION

The tribunal varies the decision under review such that:

1. until 11 December 2020, Mrs Tazewell had 79% of [Child 1]’s care and Mr Riehle had 21% of [Child 1]’s care; and

2. from 11 December 2020, Mrs Tazewell had 100% of [Child 1]’s care and Mr Riehle had 0% of [Child 1]’s care.