Wilder and Child Support Registrar (Child support)

[2022] AATA 370

Wilder and Child Support Registrar (Child support) [2022] AATA 370 (15 February 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/HC022180

APPLICANT:  Mr Wilder

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member C Breheny

DECISION DATE:  15 February 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether interim period should be applied – no care arrangement put in place so interim period should not apply – decision under review affirmed

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 Wilder and [Ms A] are the separated parents of [Child 1], born April 2014. A child support case has been registered for collection with Services Australia – Child Support (Child Support) since 21 August 2020 and Mr Wilder is assessed as the parent liable to pay child support to [Ms A] on the basis that [Ms A] has 86% and Mr Wilder has 14% care of [Child 1].

2. On 18 January 2021, [Ms A] notified Child Support that she has had 100% care of [Child 1] since 21 November 2020. Mr Wilder disagreed, stating that [Ms A] withheld care and he was taking action to have care reinstated. On 10 March 2021 [Ms A] advised that she now has 50% care of [Child 1].

3. On 11 March 2021 a decision was made that [Ms A] had 100% care of [Child 1] from 21 November 2020 and a further decision that [Ms A] and Mr Wilder had 50% shared care of [Child 1] from 6 March 2021. On 28 May 2021 Mr Wilder objected to the decision that [Ms A] had 100% care from 21 November 2020 and on 17 July 2021 a Child Support objections officer decided to disallow the objection.

4. On 31 August 2021, Mr Wilder applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal for an independent review of the objection decision. The application was heard on 15 February 2022. Mr Wilder attended the hearing by conference telephone and gave evidence on affirmation. [Ms A] did not apply to be a party to the review and did not participate in the hearing. I had before me the Statement and Documents provided by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, received on 25 November 2021 (documents numbered 1–152).

ISSUES AND CONSIDERATION

1. The relevant legislation is the Child Support (Assessment) Act 1989 (the Act). The legislation in relation to care matters was updated in 2018 to cover situations where a parent or non-parent carer does not comply with a care arrangement. It now allows for “interim care determinations” to be made in certain circumstances.

2. 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.

3. Section 54F of the Act provides that an existing care percentage decision must be revoked if Child Support is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment.  Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children.

4. In this case Child Support records indicate that [Ms A] had 86% and Mr Wilder had 14% care of [Child 1] (from 1 June 2020) and that these care percentages have been applied to the administrative assessment of child support since the case was registered on 21 August 2020. [Ms A] notified a care change on 18 January 2021 such that she had 100% care from 21 November 2020. Mr Wilder agreed that [Ms A] has had 100% care from that date until court orders were made on 6 March 2021 and having regard to section 55C of the Act, I am satisfied that such a change in care would result in a change to the cost percentages.  Thus, the existing care determinations ought to be revoked pursuant to section 54F of the Act.

Interim care determination

1. Section 51 of the Act provides that a care determination may be made (known as an “interim care determination”) if the actual care does not comply with a care arrangement for the child and the parent with reduced care (in this case Mr Wilder) takes “reasonable action” to have the care arrangement complied with. The length of the interim care determination is provided for in section 53A of the Act and depends on a number of factors, such as whether or not the previous care arrangement was a court order, written agreement or parenting plan and the time elapsed between the previous care arrangement being made and the reported care change, as well as whether the person with increased care also took “reasonable action” and whether “special circumstances” exist in the case.

2. Section 5 of the Act states that a “care arrangement” has the same meaning as in the A New Tax System (Family Assistance) Act 1999. Section 5 of the Family Assistance Act defines a “care arrangement” as a written agreement between the parents of the child that relates to the care of the child or a parenting plan or a court order.

3. A parenting plan has the meaning given by section 63 of the Family Law Act 1975 and it provides (at subsection 63C(1)) that

   (1)  Aparenting plan is an agreement that:

   (a)  is in writing; and

   (b)  is or was made between the parents of a child; and

   (ba)  is signed by the parents of the child; and

   (bb)  is dated; and

   (c)  deals with a matter or matters mentioned in subsection (2).

Mr Wilder

1. Mr Wilder provided the following evidence in relation to his case:

   ·He and [Ms A] separated on 5 June 2020. Between June and August 2020 he was able to have “as much care of [Child 1] as he wanted”, but once Child Support became involved the care arrangement became more formalised.

   ·He and [Ms A] attended a mediation session to reach an agreement regarding [Child 1]’s care, but eventually lawyers had to become involved due to ongoing disagreements.

   ·He had hoped for shared care of [Child 1], but he was working a lot at the time and [Ms A] would not allow [Child 1] to be in the care of his family members. This meant he did not have much care of [Child 1].

   ·He then proposed an “interim parenting plan” that would suit his (then) work roster and would give him a little more care until formal court orders could be made.

   ·After some negotiation [Ms A] eventually signed the interim parenting plan (but did not date it) and her solicitor forwarded this document to his solicitor on 19 November 2020 (letter, folio 33).

   ·He attended his solicitor on 24 November 2020 and signed and dated the interim parenting plan.

2. Mr Wilder said that both he and [Ms A] already adhered to the interim parenting plan prior to it being signed until [Ms A] withheld care on 21 November 2020. He had [Child 1] in his care on 16 or 17 November 2020 and told him that he had a new partner. [Child 1] must have discussed this with [Ms A] and he was not allowed to return to Mr Wilder’s care on 21 November 2020.

3. Mr Wilder agreed that he had no care of [Child 1] until early March 2021 but submitted that an interim care determination ought to apply, as [Ms A] did not follow the interim parenting plan and [Child 1] was out of his care without his consent. He immediately took reasonable action to have care reinstated.

[Ms A]

1. [Ms A] did not participate in the hearing. She provided the following evidence to Child Support in the past:

   ·On 18 January 2021 she stated that she had 100% care of [Child 1] because of an “incident” that occurred at Mr Wilder’s home (folio 14).

   ·On 3 February 2021 [Ms A] that she had “concerns about [Child 1]’s welfare” (folio 34).

   ·On 22 February 2021 [Ms A] stated that they were following a “parenting plan that was signed in approx. August 2020” and that they were due to go to court on 3 March 2021, as Mr Wilder had made an application that she was withholding care. She confirmed that [Child 1] was not seeing his father as she had concerns about [Child 1]’s welfare (folio 44).

   ·On 10 March 2021 [Ms A] confirmed a care change from 6 March 2021 such that each parent had 50% care of [Child 1] (folio 48).

   ·In response to Mr Wilder’s objection [Ms A] stated on 15 June 2021 that she and Mr Wilder went to mediation and everything was “going fine” until 21 November 2020. She stopped care because the last time Mr Wilder had care of [Child 1] on the weekend, [Child 1] slept in the same bed as Mr Wilder and his new partner. She found this concerning but could not talk to Mr Wilder about the issue and eventually got lawyers involved (folio 104).

Other evidence

1. Mr Wilder provided a copy of an interim parenting plan dated 24 November 2020. The pages are initialled by both parents and signed by both [Ms A] and Mr Wilder (folios 28-32).

2. The interim parenting plan indicates that the parties attended a Family Dispute Resolution Conference and have reached an interim agreement to provide stability of time for [Child 1] until a further agreement or court order can be made (folio 28).

3. Mr Wilder also provided a copy of a “Section 60I certificate” stating that they had attended a family dispute resolution conference on 23 September 2020 (folio 95).

4. Child Support calculated that according to the interim parenting plan dated 24 November 2020 Mr Wilder would have 28% and [Ms A] would have 72% care of [Child 1] (folios 107-108).

5. Mr Wilder provided a copy of his affidavit to the Family Court, lodged on 25 January 2021 (folio 74) in relation to his application for interim and final parenting orders.

Conclusion

1. The main facts in this case are not in dispute. Mr Wilder agreed that [Ms A] had 100% care of [Child 1] from 21 November 2020. He submits though that an interim care determination should be made because [Ms A] withheld care contrary to an existing care arrangement.

2. The evidence before me, however, is somewhat confusing. [Ms A] thought they followed a parenting plan signed much earlier, in about August 2020 and everything was going fine until an incident in November 2020.

3. Mr Wilder noted that care was not “an issue” prior to August 2020 but became more “problematic” after Child Support became involved. He and [Ms A] attended mediation to work out an interim parenting plan. He noted that some matters had to be resolved before [Ms A] finally signed the parenting plan in about mid-November 2020. He then signed and dated the parenting plan on 24 November 2020; however it had been adhered to prior to 24 November 2020.

4. Documents indicate that Mr Wilder and [Ms A] attended mediation on 23 September 2020 and I have no evidence before me of any parenting plan signed and/or dated prior to 24 November 2020.

5. Mr Wilder stated that he had [Child 1] in his care around 16 November 2020 and was supposed to have him again on 21 November 2020. [Ms A] said Mr Wilder had care of [Child 1] on “a weekend” and she stopped [Child 1] going to Mr Wilder’s the following weekend due to concerns.

6. I note that 16 November 2020 was a Monday and 21 November 2020 was a Saturday. It appears highly likely that Mr Wilder had [Child 1] in his care on the weekend of 14/15 November 2020 and was to have care again the following weekend 21/22 November 2020. This appears to indicate a care pattern of one night per week (52 nights or 14% care), which is the care pattern established at the beginning of the child support case, i.e. from August 2020 (as recorded by the Agency).

7. The interim parenting plan dated 24 November 2020 provides for Mr Wilder to have 28% care. [Ms A] may have agreed to increased care for Mr Wilder and (after some negotiation) eventually signed the interim parenting plan, but I have no evidence before me that this plan was actually ever put into practice.

8. Instead, the evidence appears to indicate that Mr Wilder and [Ms A] were following the care arrangement of one night per week, established as of August 2020. There is no record, however, that this particular care arrangement was ever put into a parenting plan (as suggested by [Ms A]) or formalised in any other way.

9. This then means that there was no care arrangement in place as of 21 November 2020 and an interim care determination in accordance with section 51 of the Act cannot be made.

10. I have reached the same conclusion as the objections officer and therefore affirm the decision under review.

DECISION

The decision under review is affirmed.