Upton and Laing (Child support)

[2019] AATA 4859

Upton and Laing (Child support) [2019] AATA 4859 (10 September 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC016217

APPLICANT:  Ms Upton

OTHER PARTIES:  Child Support Registrar

Mr Laing

TRIBUNAL:Member K Buxton

DECISION DATE:  10 September 2019

DECISION:

The decision under review is set aside and, in substitution, the tribunal decides that [Child 1] is to be recorded as in the 22% care of Mr Laing and in the 78% care of Ms Upton for an interim period from 14 September 2018 to 11 December 2018 and, thereafter, that [Child 1] be recorded as in the 100% care of Ms Upton and in the 0% care of Mr Laing.

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 – reasonable action taken – 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. Mr Laing and Ms Upton are the parents of [Child 1], born July 2011, and [another child], born October 2009, who were recorded by the Child Support Agency (CSA) as in the 78% care of Ms Upton and the 22% care of Mr Laing. This percentage was recorded to reflect a care regime from court orders made in May 2017. This review concerns a decision by the CSA about the recorded levels of care only for [Child 1].

2. On 18 November 2018 Ms Upton notified the CSA that [Child 1] had been in her 100% care from 14 September 2018, when [Child 1] refused to go into Mr Laing’s care. On 19 November 2019 the CSA decided to record a change in care for [Child 1] such that from 19 September 2018 [Child 1] was recorded as in the 100% care of Ms Upton and the 0% care of Mr Laing.

3. On 22 November 2018 Mr Laing objected to that decision, stating that Ms Upton had withheld [Child 1] from his care. Mr Laing told the CSA that he was making reasonable attempts to have the previous care restored and requested that an interim care period for [Child 1] be recorded to reflect the court-ordered care. On 19 March 2019, a CSA objections officer allowed Mr Laing’s objection and decided that an interim care determination would be made for [Child 1] reflecting the court-ordered care of 78% to Ms Upton and 22% to Mr Laing for a 26-week period from 14 September 2018 to 14 March 2019, and deciding that [Child 1] should be recorded as in Ms Upton’s 100% care from 15 March 2019.

4. Ms Upton applied to the tribunal for review of the objection decision. At the hearing on 10 September 2019, the tribunal heard sworn evidence from Ms Upton and Mr Laing, who both appeared by telephone. In reaching a decision, the tribunal has considered that evidence, together with the Statements and Documents provided by the CSA under subsection 37(1) of the Administrative Appeals Tribunal Act 1975 (Exhibit 1).

CONSIDERATION

1. The law relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children. The court-ordered care regime agreed allowed for Mr Laing to have care of [Child 1] for two nights a fortnight, plus half of the school holidays, amounting to 22% care across the year, with the balance of the care with Ms Upton. Both parents accepted that the court orders were being complied with until on 14 September 2018, [Child 1] would not spend time with Mr Laing. Each parent also accepted that [Child 1] has not been in the overnight care of Mr Laing since that date.

2. Mr Laing stated during the hearing that he had attempted to have the court-ordered pattern of care restored by presenting each fortnight as scheduled and asking [Child 1] to come into his care, and by communications with Ms Upton requesting that the pattern be re‑established. Mr Laing also stated that he had contact with Relationships Australia in relation to re‑establishing the court-ordered care of [Child 1]. A certificate issued on 24 December 2018 indicated that the parents had participated in family dispute resolution until the process ended on 22 December 2018.

3. The tribunal notes that the CSA papers contain two letters from Mr Laing’s solicitors, dated 23 November 2018 and 1 February 2019. In both letters his solicitors request that Ms Upton re-establish the court-ordered care for [Child 1]. However, neither letter mentions the family dispute resolution process which took place contemporaneously with that correspondence. The tribunal accepts that Mr Laing did attempt to collect [Child 1] and did have his solicitors write to Ms Upton with a view to re-establishing the court-ordered care, and documents were presented by him to the CSA, such as text messages and his solicitor’s letters, which support this. However, the tribunal finds that Mr Laing did not take steps to initiate either mediation or a hearing with respect to this issue until about April 2019 when he filed an application for a contravention order. The application was heard by the court in June 2019 but the court did not make orders restoring the previous care.

4. Ms Upton stated that it was she, not Mr Laing, who initiated the family dispute resolution process and that this process had nothing to do with the care of [Child 1], and the tribunal accepts that evidence. Ms Upton stated that she wished to return to court to obtain contravention orders with respect to parenting issues, such as the children’s passports and their participation in sport. Ms Upton stated, and Mr Laing accepted, during the hearing that Mr Laing’s participation in the mediation lasted for about 45 seconds and he would not agree to further participate. The tribunal accepts that Ms Upton initiated the family dispute resolution process for reasons other than re-establishing care of [Child 1], but that the process provided an opportunity for resolution of that issue, and that it was not necessary for a second process to be initiated at that time. Up until the date of the mediation, it was reasonable to assume that the mediation would present the opportunity for resolution of the care issue. In the event, that did not occur.

5. Ms Upton submitted that, even if Mr Laing had taken reasonable steps to restore his court‑ordered care of [Child 1], special circumstances existed in relation to [Child 1] such that an interim period should not be applied to recorded care for [Child 1]. Ms Upton stated that she had genuine concerns arising from symptoms of anxiety displayed by [Child 1] and she arranged for [Child 1] to undertake cognitive behavioural therapy from October 2018. [Child 1] also attended a consultant paediatrician on 11 December 2018 and was diagnosed with “[details deleted]” and “high levels of anxiety … around visitations with his father”. Ms Upton stated that [Child 1] was refusing to voluntarily go into the care of Mr Laing and that she sought medical help for him to overcome his symptoms with a view to re‑establishing the regime of contact when [Child 1] was ready. The tribunal accepts the paediatrician’s report. The tribunal is satisfied that the concerns expressed by Ms Upton were genuinely held at the time that [Child 1] was not being returned to the care of Mr Laing, particularly from 11 December 2018 when the diagnoses were obtained. The court has subsequently determined on an interim basis, in June 2019, not to restore care of [Child 1] to Mr Laing but instead to refer the matter for a family report to be obtained. Having regard to the available evidence, the tribunal is satisfied that special circumstances existed in relation to [Child 1] as at 11 December 2018 such that an interim period should not apply from that date.

6. Having regard to all of the evidence, the tribunal finds that care was taking place in accordance with the court orders until, on 14 September 2018, [Child 1] no longer spent time with Mr Laing in accordance with the court orders. The tribunal finds that the pattern of care for [Child 1] changed such that Ms Upton had 100% care of [Child 1] from that date. In relation to care for [Child 1], the tribunal has found that Mr Laing requested that care be restored, both personally and through his lawyers. However, he did not participate meaningfully in an opportunity to resolve the issue on 22 December 2018 when a family dispute resolution process proceeded on related parenting issues. Mr Laing did not take further steps after that time until he commenced proceedings for a contravention order in April 2018, which is more than six months after care arrangements had changed for [Child 1].

7. The tribunal finds, in the circumstances, that the initial steps taken by Mr Laing were undertaken in a timely way and represented reasonable action to ensure compliance with the court-ordered care arrangements from 14 September 2018 to 22 December 2018. Although it was Ms Upton who initiated the family dispute resolution process, the tribunal finds in the circumstances that the steps taken by Mr Laing up until the date of that process were undertaken in a timely way and represent reasonable action to ensure compliance with the court-ordered care arrangements.

8. However, subsection 51(5) of the Act provides a discretion not to apply an interim period (provided for in subsections 51(2) and (3) of the Act) but to instead apply the actual care if special circumstances exist in relation to the child. The tribunal finds that, from 11 December 2018, the diagnoses of [Child 1’s] conditions, and the connection made by the paediatrician between those conditions and spending time with Mr Laing, gave rise to special circumstances why the interim orders should not apply after that date. Accordingly, under subsections 51(2) and (3) of the Act, an interim period would be applied so that an interim care determination for [Child 1] of 22% care to Mr Laing and 78% care to Ms Upton is to apply from 14 September 2018, with the interim period to end from 11 December 2018, after which special circumstances apply and the actual care of [Child 1] is to be recorded.

9. The correct and preferable decision is, therefore, that [Child 1] is to be recorded as in the 22% care of Mr Laing and in the 78% care of Ms Upton for an interim period from 14 September 2018 to 11 December 2018 and, thereafter, that [Child 1] be recorded as in the 100% care of Ms Upton and in the 0% care of Mr Laing. As this differs from the decision under review, that decision is set aside and a decision substituted giving effect to the tribunal’s findings.

DECISION

The decision under review is set aside and, in substitution, the tribunal decides that [Child 1] is to be recorded as in the 22% care of Mr Laing and in the 78% care of Ms Upton for an interim period from 14 September 2018 to 11 December 2018 and, thereafter, that [Child 1] be recorded as in the 100% care of Ms Upton and in the 0% care of Mr Laing.