Tyndall and Tyndall (Child support)

[2021] AATA 999

Tyndall and Tyndall (Child support) [2021] AATA 999 (5 March 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/MC020630

APPLICANT:  Ms Tyndall

OTHER PARTIES:  Child Support Registrar

Mr Tyndall

TRIBUNAL:Presiding Member H Moreland

Member J Longo

DECISION DATE:  05 March 2021

DECISION:

The decision under review is affirmed.

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 - court orders not complied with – whether reasonable action taken by parent with reduced care – interim period applied - decision under review affirmed

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. Ms Tyndall and Mr Tyndall are the parents of [the child]. Mr Tyndall is the parent liable to pay child support.

2. From 2 April 2019 the Department of Human Services (now Services Australia) – Child Support (the Department) determined that Ms Tyndall had a percentage of care for [the child] of 72% and that Mr Tyndall had a percentage of care of 28% for [the child].

3. On 18 August 2020 Ms Tyndall contacted the Department and advised that her care percentage for [the child] was 100% from 15 February 2020.

4. On 21 Augst 2020 the Department determined that Ms Tyndall had 100% care of [the child] and that Mr Tyndall had 0% care of [the child] from 15 February 2020, with effect from 18 August 2020.

5. On 28 August 2020, Mr Tyndall lodged an objection to the decision of the Department. On 11 January 2021, an objections officer allowed Mr Tyndall’s objection and made an interim determination with Mr Tyndall having 28% care of [the child] and Ms Tyndall having 72% of [the child] from 15 February 2020 to 27 October 2020 and then a second care determination with Mr Tyndall having 0% care of [the child] and Ms Tyndall having 100% from 28 October 2020.

6. On 15 January 2021 Ms Tyndall lodged an application to the Administrative Appeals Tribunal (the Tribunal) for an independent review of the decision. The hearing took place on 25 February 2021. Mr Tyndall and Ms Tyndall participated in the hearing by telephone and gave sworn evidence. In making its decision, the Tribunal considered the documents provided by the Department (330 pages), which were also sent to Ms Tyndall and Mr Tyndall.

CONSIDERATION

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

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

1. It is uncontroversial that the care of [the child] changed from 15 February 2020 from the care percentages previously determined by the Department. Ms Tyndall and Mr Tyndall were assessed from 2 April 2019 as having a care percentage for [the child] of 72% for Ms Tyndall and 28% for Mr Tyndall from this date. Mr Tyndall and Ms Tyndall both stated that prior to the change in care for [the child] on 15 February 2020, a court order for the care of [the child] had been made on 30 October 2019, which provided for Ms Tyndall to have care of [the child] for 72% of the time and for Mr Tyndall to have care of [the child] for 28% of the time. In relation to the care of [the child] which was to commence from this date these orders were as follows:

   2. That [the child] spend time and communicate with the father as follows:

   2.1. During [the child]’s school terms:

   2.1.1. Commencing 31 October 2019, in week one from 6:00pm on Thursday until 7:00am on Friday morning, with the father to collect [the child] from the mother’s residence at the commencement of his time and return [the child] to the mother’s residence at the conclusion of his time.

   2.1.2. Commencing 8 November 2019, in week two from the conclusion of [activity] on Friday until 7:00am on Monday morning, with the father to collect [the child] at the commencement of time and return [the child] to the mother’s residence at the conclusion of time.

   2.2. For the purposes of Orders 2.1 herein, in the event that [the child] is not attending [activity], then the father’s time with [the child] shall commence from 6:00pm with [the child] to be collected from the mother’s residence.

   2.3. From 5:00pm 23 December 2019 until 10:00pm 24 December 2019;

   2.4. From 12 noon 25 December 2019 until 12 noon 26 December 2019; and

   2.5. From 6:00pm 1 January 2020 until 9:00pm 12 January 2020;

   2.6. Time pursuant to Order 2.1.2 shall resume on 31 January 2020;

   2.7. Time pursuant to Order 2.1.1 shall resume on 6 February 2020;

   2.8. [The child]’s time with the Father scheduled to occur on 31 October 2019 shall not occur and in lieu thereof [the child] shall spend time with the Father from 6:00pm Thursday 7 November 2019 until 7:00am Friday 8 November 2019;

   2.9. [The child]’s time with the Father scheduled to occur on 14 November 2019 shall not occur and in lieu thereof [the child] spend time with the Father from the conclusion of [activity] on Wednesday 13 November 2019 until 7:00am Thursday 14 November 2019;

   [The child]’s time with the Father scheduled to occur on the weekend commencing 6 December 2019 shall be suspended from 3:00pm on Saturday 7 December 2019 and resume at 10:00am Sunday 8 December 2019;

   2.11. [The child] spend make up time with the Father from the conclusion of [activity] on 13 December 2019 until 3:00pm 14 December 2019.

   2.12. At such further or other times as may be agreed between the parties.

   3 That [the child] live with the Mother at all other times when she is not being cared for by the Father pursuant to Order 2.

2. Mr Tyndall confirmed that [the child] stopped coming into his care from 15 February 2020 and said that he did not have any say in the change in the care.

10.Ms Tyndall told the Tribunal about the difficulty she had in any attempt to ensure [the child] stayed with Mr Tyndall because, she said, [the child] was reluctant to go. Ms Tyndall said that she made [the child] available by speaking to [the child] before she was expected to go and stay with Mr Tyndall by reminding [the child] that she needed to communicate with Mr Tyndall about the planned weekend visits.

11.The Tribunal is satisfied that Ms Tyndall contacted the Department on 18 August 2020 to notify of a care change from 15 February 2020 and that at this time Ms Tyndall told the Department that she had had 100% care of [the child] since 15 February 2020.

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

12.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.

13.In this case, the Tribunal has determined that a care determination was made under section 50 of the Act from 2 April 2019 with Ms Tyndall having a care percentage for [the child] of 72% and Mr Tyndall having a percentage of care of 28%. Therefore, paragraph 54F(1)(a) of the Act is satisfied. This means the existing care determination in relation to [the child] is revoked.

14.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 order complied with.

15.As noted above, the Registrar was notified on 18 August 2020 that the care of [the child] which was actually taking place had changed from 15 February 2020. There is no dispute that the care arrangements as determined by the Department on 2 April 2019 were not occurring. Ms Tyndall stated to the Department that she had 100% care of [the child] from 15 February 2020. Mr Tyndall stated to the Tribunal that while this was the actual care, it was not what should have occurred according to the court orders.

16.Mr Tyndall told the Tribunal that he had taken steps to ensure the care arrangements that were ordered by the court were followed. He said that he attended [the child]’s [activity] classes and Ms Tyndall’s home to collect [the child] as had been arranged but that on these occasions [the child] would not go with him. Mr Tyndall also provided diary entries showing his attempts to contact [the child] and for her to stay with him, as per the care arrangement stipulated in the court order dated 30 October 2019.

17.Copies of correspondence between Ms Tyndall and Mr Tyndall’s solicitors were included in the documents provided to the Tribunal by the Department. These include letters from Patrick Smith Lawyers (Ms Tyndall’s solicitor) dated: 27 November 2019, 12 December 2019, 12 February 2020, 19 May 2020, 28 May 2020, 25 June 2020 and 23 July 2020; and letters from Sayer Jones (Mr Tyndall’s solicitor) dated: 6 December 2019, 18 December 2019, 18 February 2020, 22 May 2020, 1 July 2020, 2 July 2020, 14 July 2020, 23 July 2020 and 27 July 2020.

18.The Tribunal concludes that the letters and Mr Tyndall’s actions in attending [the child]’s [activity] school and Ms Tyndall’s home to collect [the child] as had been arranged, confirm an ongoing pattern of Mr Tyndall making ongoing attempts for the orders made by the court on 30 October 2019 to be complied with.

19.This means the Tribunal is satisfied that Mr Tyndall was taking ‘reasonable action’ to ensure the court order was being complied with under section 51 of the Act from 15 February 2020 when the care is stated to have stopped.

20.Therefore, the Tribunal has determined that it is appropriate to apply an interim determination in relation to the care of [the child] from 15 February 2020. This means that while Ms Tyndall had 100% of the actual care of [the child] and Mr Tyndall had 0% care of [the child], the Tribunal has determined that there is an interim determination of 72% care of [the child] by Ms Tyndall and 28% care by Mr Tyndall.

21.According to subsection 53A(1) of the Act, when a change of care occurs up to 26 weeks after court ordered care, and the person with decreased care has taken reasonable action to ensure the court orders were complied with, an interim care period will end at the end of 52 weeks starting on the commencement of the court order. In this case, the court order was made on 30 October 2019, so the interim period ends on 27 October 2020. A second care percentage will then apply from 28 October 2020, reflecting the actual care Ms Tyndall was having from this date (100%) and that Mr Tyndall was not providing care (0%) of [the child] from this date.

DECISION

The decision under review is affirmed.