Varley and Folwell (Child support)

Varley and Folwell (Child support) [2021] AATA 4798 (4 November 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/SC021883
APPLICANT:  Mr Varley
OTHER PARTIES:  Child Support Registrar
Ms Folwell

TRIBUNAL:Member J Thomson
DECISION DATE: 4 November 2021
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the period 28 March 2021 to 24 April 2021, an interim period applies and the care percentage determinations applying for [Child 1] and [Child 2] are 50% to Mr Varley and 50% to Ms Folwell.

From 25 April 2021 the care percentage determinations applying for [Child 1] and [Child 2] are 0% to Mr Varley and 100% to Ms Folwell.

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 – care arrangement not complied with – whether 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 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

Mr Varley and Ms Folwell are the parents of [Child 1], born 2005, and [Child 2], born 2008. At the time of hearing, [Child 1] and [Child 2] were teenage children, approximately 16 and 13 years of age respectively.
On 16 April 2021, Ms Folwell notified the Child Support Agency (the Agency) of a change in care for [Child 1] and [Child 2] on 28 March 2021.
Prior to Ms Folwell’s notification on 16 April 2021, the care percentages being assessed by the Agency were 51% to Mr Varley and 49% to Ms Folwell.
On 1 May 2021, the Agency made a decision to record Ms Folwell as having 100% care and Mr Varley as having 0% care of [Child 1] and [Child 2] from 28 March 2021.
On 5 May 2021, Mr Varley objected to the Agency’s decision of 1 May 2021, and on 1 July 2021, an Agency objections officer disallowed his objection.
Mr Varley seeks review of the objections officer’s decision of 5 May 2021.
The Tribunal heard the matter on 21 October 2021. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by the Agency (admitted and marked Exhibit 1), documentation provided by Mr Varley (admitted and marked Exhibit A), and documentation provided by Ms Folwell (admitted and marked Exhibit B). Both parents had copies of these documents with them at the hearing.

ISSUES

The issues which arise in this case appear from the reasons set out below.

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documents contained in Exhibits 1, A and B.
The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 applies, relevantly, if the parent “has had, or is likely to have a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same; what happened up until the date of notification and what was likely to happen thereafter?
Subsection 51(1) of the Act applies, relevantly, if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Subsection 51(2) of the Act requires the Registrar to determine two percentages of care in relation to the responsible person. The first percentage (pursuant to subsection 51(3) of the Act) is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil). The second percentage (pursuant to subsection 51(4) of the Act) is to be:
(a) for a determination under section 49 – 0%; or
(b) for a determination under section 50 -a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 51(1)(d) were not to succeed.
Section 53A of the Act defines the meaning and extent of the interim care periods referred to above, relevant to the date of care arrangement agreement entered into between the parents.
At the hearing, Mr Varley gave evidence of the equal 50% shared care arrangement he asserts was being followed by the parents prior to Ms Folwell’s change in care notification on 16 April 2021. He provided copies of the correspondence exchanged between the parents’ respective legal representatives in the months of February 2013 and April 2013 reflecting the parents’ agreement to week-about care (see pages 17 to 22 of Exhibit 1).The Tribunal finds the letter of 25 February 2013 from Ms Folwell’s legal representatives, [Law firm 1] proposing the week-about care arrangement and the response from Mr Varley’s legal representatives, [Law firm 2] of 8 April 2013 accepting that proposal concludes that care arrangement, effective from acceptance on 8 April 2013.
Ms Folwell acknowledged in her evidence to the Tribunal at hearing that the care arrangement recorded in the correspondence exchange between her legal representatives, [Law firm 1] and Mr Varley’s solicitors, [Law firm 2] referred to in the preceding paragraph was the care arrangement in place from February 2013 until 28 March 2021.
The Tribunal is satisfied that there was a week-about shared 50% equal care arrangement, the terms of which were reduced to writing in the parties’ legal representatives’ correspondence referred to above.
Mr Varley gave evidence of the circumstances in which the above-mentioned care arrangements changed on 28 March 2021, when he attended at Ms Folwell’s house to collect the children for his regular week-about care period.
He said Ms Folwell had contacted him on or about 22 March 2021 to inform him of an event which had occurred at the children’s school as a consequence of which the school authorities had imposed a suspension period on both children. Ms Folwell suggested that the children remain with her for the forthcoming weekend, when Mr Varley was due to have care, because they were traumatised by the events occasioning their suspension.
When Mr Varley attended at Ms Folwell’s house to collect the children on 28 March 2021, after some discussion, he left without the children, and did not have care as per the agreed care arrangements referred to above.
He said he sought an opportunity to discuss the future care arrangements with Ms Folwell and the children. Both children came to stay for one night with him on 7 April 2021, and in the period that followed, there were exchanges between the children and Mr Varley in which the children indicated their desire to make their own decisions regarding which parent they spent time with and their desire for flexibility in their future care arrangements, generally, there was a shut-down in communications with the children.
Mr Varley said he initiated a mediation process with [Service provider] and Ms Folwell in the weeks following the events of 28 March 2021 with a view to ensuring compliance with the care arrangements in place prior to 28 March 2021.
Ms Folwell did not challenge Mr Varley’s evidence in this regard.
Both parents acknowledged at the hearing that Mr Varley had taken reasonable action to ensure that the care arrangements reflected in the parties’ legal representatives’ correspondence exchange referred to above were complied with by initiating a mediation process with [Service provider], and that a mediation conference was scheduled for 8 November 2021.
In discussions with the Tribunal, both parents acknowledged and agreed that it was appropriate for the Tribunal to determine an interim care period in this case, while the mediation process scheduled for 8 November 2021 was in train.
The Tribunal has found and the parents agree a written care arrangement regarding the care for the children was entered into between the parents on 8 April 2013. The Tribunal is satisfied that following the change in the pattern of care of the children that took place on 28 March 2021, Mr Varley is taking reasonable action to ensure the care arrangement is complied with. The Tribunal is further satisfied that Ms Folwell is taking reasonable action to participate in family dispute resolution, and that she commenced taking that reasonable action within a reasonable period of the change of care day.
In those circumstances, subsection 53A(1) of the Act provides that the interim period for a determination under sections 49 and 50 of the Act of a responsible person’s percentage of care for a child is (subject to subsection (4)), 4 weeks starting on the change of care date, in this case, 28 March 2021.
The Tribunal therefore determines an interim care percentage of 50% shared equal care for the children for each parent from 28 March 2021 until 24 April 2021. Thereafter, the care percentages will revert to 100% to Ms Folwell and 0% to Mr Varley.

DECISION

From 25 April 2021 the care percentage determinations applying for [Child 1] and [Child 2] are 0% to Mr Varley and 100% to Ms Folwell.

[2021] AATA 4798

4 November 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness