Tennyson and Shea (Child support)

[2019] AATA 4352

Tennyson and Shea (Child support) [2019] AATA 4352 (19 August 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016575

APPLICANT:  Miss Tennyson

OTHER PARTIES:  Child Support Registrar

Mr Shea

TRIBUNAL:Member H Schuster

DECISION DATE:  19 August 2019

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Tennyson’s care percentage was 100% and Mr Shea’s care percentage was 0% care in respect of [Child 1] from 7 April 2018 until 28 May 2018.

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 court orders were complied with – whether reasonable action taken – no interim period applied - 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 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. Miss Tennyson has sought review of a decision made by the Department of Human Services (Child Support) (the Child Support Registrar) on 1 April 2019 to make an interim care determination to assess Mr Shea as having 100% care of [Child 1] from 7 April 2018 to 28 May 2018.

2. Miss Tennyson and Mr Shea are the parents of [Child 2] (born in 2004), [Child 3] (born in 2006) and [Child 1] (born in 2007). A child support assessment has been in place since 2009.  On 22 August 2011 court orders were made which gave Mr Shea 100% parental responsibility for [Child 2], [Child 3] and [Child 1]. This review concerns the care percentage for [Child 1].

3. Under the assessment in place in April 2018 Mr Shea had 100% care of [Child 1] and Miss Tennyson had 0% care.  

4. On or about 16 April 2018 the Department of Human Services (Centrelink) determined a new care percentage for [Child 1] under the family assistance law: Miss Tennyson was assessed as having 100% care of [Child 1] from 7 April 2018.

5. On 18 May 2018 the Child Support Registrar advised both parties that the child support assessment had been changed from 7 April 2018. The previous care percentage in relation to [Child 1] had been revoked and a new determination had been made that Miss Tennyson had 100% care and Mr Shea had 0% care of [Child 1] from 7 April 2018.

6. On 29 May 2018 Mr Shea obtained a recovery order from the Federal Circuit Court to have [Child 1] returned to his care. On 4 June 2018 Mr Shea notified Centrelink that [Child 1] had returned to his care. The information appears not to have been transmitted to the Child Support Registrar.

7. On 7 December 2018 Mr Shea objected to the decision made on 18 May 2018.

8. On 1 April 2019 the objections officer determined that, although [Child 1] had been in Miss Tennyson’s care from 7 April 2018 to 28 May 2018, an interim care percentage should be determined for that period. Mr Shea was assessed as if he had 100% care of [Child 1], on the basis that a care arrangement was not being complied with and Mr Shea took reasonable action to have [Child 1] returned to his care. The objection officer also found that Mr Shea had 100% care of [Child 1] from 29 May 2018 based on a court order.

9. On 22 May 2019 Miss Tennyson applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.

10. A hearing was conducted on 1 August 2019 which both parties attended by conference telephone.

ISSUES

1. The issues which arise in this case are:

   ·       What is Miss Tennyson’s and Mr Shea’s correct percentage of care in relation to [Child 1] from 7 April 2018 to 28 May 2018.

CONSIDERATION

Evidence of the parties

1. Miss Tennyson disagreed with an interim care percentage being determined for the period before the court order on 29 May 2018 was issued.

2. The basic facts which Miss Tennyson and Mr Shea agreed on were as follows:

   ·       Prior to April 2018 Mr Shea had 100% care of [Child 1].

   ·       In April 2018 Mr Shea found it difficult to deal with [Child 1], who was suffering from declining mental health and he agreed that she could stay with Miss Tennyson.

   ·       From 7 April 2017 Miss Tennyson had [Child 1] in her care. Miss Tennyson took her to see a doctor, enrolled her in a local school and purchased school supplies.

   ·       Mr Shea had no actual care of [Child 1] from 7 April 2017 until she returned to his care.

   ·       On 28 May 2018 Mr Shea obtained a recovery order from the Family Circuit Court for [Child 1]’s return.

   ·       [Child 1] was removed from Miss Tennyson’s care on the basis of the court orders.

3. There was some dispute about the basis and the expectation around the change of care which took place on 7 April 2018.

4. Mr Shea told the Tribunal that he intended [Child 1] to be in Miss Tennyson’s care for only the holiday period but [Child 1] did not return.

5. The Tribunal asked Mr Shea how the arrangements were made to have [Child 1] stay with her mother. He said he had a difficult time managing [Child 1] and she had asked to stay with her mother. When pressed, Mr Shea acknowledged that there had been no conversation with Miss Tennyson before the change was made.

6. Miss Tennyson said that there had been no conversation about how long [Child 1] would stay with her. Mr Shea had dropped the child at her maternal grandmother’s house and she had picked her up from there. She had communication with Mr Shea by text message a few days after the change in respect of getting a birth certificate and a statement from Mr Shea that the change of care was agreed by him. Miss Tennyson provided a text message sent by Mr Shea on 11 April 2018 which stated that he allowed [Child 1] to “temporarily be in her mother’s … care” (A4).

7. The Tribunal asked whether and when Mr Shea spoke to Miss Tennyson after 7 April 2018 to seek [Child 1]’s return. He said he did not speak to her because none of his telephone calls were being answered. He sought advice from the police and was told that he should seek a recovery order. He did so on 29 May 2018, which resulted in [Child 1] being returned to him shortly after.

8. Miss Tennyson stated that she had not received any messages or telephone calls asking for [Child 1]’s return. She denied that she was difficult to contact and noted that Mr Shea spoke to [Child 1] on the phone during the period.

9. The Tribunal is satisfied that Mr Shea allowed [Child 1] to stay with her mother, and though the arrangement was intended to be temporary, the duration of care was not fixed between the parties. The Tribunal was reasonably satisfied that at the time the change of care occurred, it was primarily based on [Child 1]’s wishes. The Tribunal had no evidence that [Child 1] was intended to return to her father after the April school holidays.

10. Miss Tennyson stated that she was unware that Mr Shea was asking for the return of [Child 1] until police officers contacted her after the court order was issued.

Operation of the law

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) as in force on 7 April 2018.

2. The Child Support Registrar makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Generally the percentage of care is determined based on the actual care provided by each parent in relation to each child.

4. Where a parent has no pattern of care for a child in a care period, the Child Support Registrar must set a care percentage of 0% (section 49 of the Act).

5. If the Registrar is notified or becomes aware that the actual care does not correspond with the person’s percentage of care under an earlier determination, and, if the new percentage of care would change the person’s cost percentage, then under section 54F the Child Support Registrar must revoke the earlier determination and use the new care percentage in the assessment. Generally the revocation of the earlier determination is from the date before the change.

6. An exception to this rule is where there is a “care arrangement” in place, that is, either a written agreement between the parents or court orders which set out the parenting arrangement. In this case, the parenting orders made on 22 August 2011, which have not been revoked, constitute a “care arrangement” for the purpose of the Act.

7. Where a “care arrangement” is in place and one of the parents is not complying with that care arrangement, the Child Support Registrar must determine, firstly, whether the parent with the reduced care has taken reasonable action to ensure that the care arrangement is complied with.  If satisfied that the parent with reduced care has taken reasonable action to restore the arrangement, under section 54C of the Act, the Child Support Registrar may determine that the parent with reduced care is to be assessed, for an interim period, on the care percentage based on the care arrangement rather than the actual care.

8. There are two issues, firstly, whether on 7 April 2018 one of the parents was not complying with the care arrangement established by the court orders and, secondly, whether Mr Shea took “reasonable action” to have [Child 1] returned to his care.

9. The court orders of 22 August 2011 state that Mr Shea was to have sole parental responsibility of the three children but also, at clause 4, that the mother spends supervised time with the children at a Relationships Australia Centre “and as agreed between the parties”.

10. As noted above, the change of care on 7 April 2018 to Miss Tennyson occurred voluntarily, which is reflected in Mr Shea’s written declaration on 11 April 2018.

11. Significantly, the court orders allow the parents to agree on time spent by [Child 1] with her mother. Based on the evidence of both parties, the Tribunal was satisfied that the change of care on 7 April 2018 occurred by agreement. Consequently, the Tribunal cannot find that Mr Shea ceased to have care of [Child 1] because of any failure to comply with the care arrangement set up by the 2011 court orders.

12. It could be inferred that Mr Shea’s subsequent application to the Federal Circuit Court to have [Child 1] returned to his care shows the agreement between them ended at some point between 7 April 2018 and the date on which Mr Shea made the application. Mr Shea admitted in his evidence that there had been no agreement about the date on which [Child 1] was to return to him.

13. The Tribunal asked Mr Shea how he had communicated to Miss Tennyson that he was seeking [Child 1]’s return to his care. He said he tried on a number of occasions to call her and speak to her but his calls were either not picked up or not received. He conceded that Miss Tennyson lived in an area where reception was poor. Eventually he approached the police for advice which led him to make the court application.

14. Miss Tennyson denied she would be difficult to contact. She noted that while in her care [Child 1] regularly spoke with Mr Shea on her own telephone. Mr Shea agreed that he had regular telephone contact with his daughter.

15. Mr Shea was given the opportunity to provide the evidence which he had sought to rely, such as an affidavit that would have accompanied his initiating application, when he applied to the Federal Circuit Court for [Child 1]’s return. No such evidence was provided.

16. The Tribunal is unable to determine from Mr Shea’s evidence at what point the parents’ agreement ended.

17. In addition, although obtaining a court order for return of a child is generally “reasonable action”, in this case, the Tribunal has some difficulty in finding that prior to that order Mr Shea made any reasonable efforts to have the child returned to him. On his own evidence he was able to regularly speak or exchange messages with [Child 1] but claims he was unable to communicate with Miss Tennyson.

18. The Tribunal prefers Miss Tennyson’s evidence that she was unaware that Mr Shea had withdrawn his agreement for [Child 1] to be in her care until she was contacted by the police.

19. The Tribunal finds that the change of care in relation to [Child 1] which took place on 7 April 2018 was consistent and compliant with the orders made in August 2011 and that, therefore, section 51 of the Act cannot apply and an interim care period cannot be determined in this case. There was no dispute between the parties that Miss Tennyson had actual care of [Child 1] from 7 April 2018 to 28 May 2018.

20. The matter is to be returned to the Child Support Registrar to determine the child care assessment on the basis that from 7 April 2018 until 28 May 2018 Miss Tennyson had 100% care and Mr Shea had 0% care of [Child 1].

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that Miss Tennyson’s care percentage was 100% and Mr Shea’s care percentage was 0% care in respect of [Child 1] from 7 April 2018 until 28 May 2018.