Wu and East (Child support)

[2019] AATA 6745

Wu and East (Child support) [2019] AATA 6745 (12 December 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC017575

APPLICANT:  Ms Wu

OTHER PARTIES:  Child Support Registrar

Mr East

TRIBUNAL:Member A Byers

DECISION DATE:  12 December 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care on an earlier date – date of care change correctly determined – 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. Mr East and Ms Wu are the parents of [Child].  This matter concerns a change to [Child’s] care in September/October 2018. 

2. [In] March 2018 the Federal Circuit Court made a consent order under which [Child] was to live with Ms Wu and spend time with Mr East.  According to this arrangement, unless otherwise agreed by the parties, Mr East had [Child] for 54 nights during school holidays with an option of a further 11 nights of care during school terms.  Thus, if Mr East exercised this option he would be expected to have 65 nights (or 17% care) and Ms Wu 300 nights (or 83% care) in a period of 365 days.

3. Clause 14 of the order provided:

   In the event that [Child] expresses to either parent and/or a third party including his teacher or school counsellor a very strong view, that is consistent and present for not less than three
   consecutive months, that he wishes to return to [City] to live with the father, that the parents,
   in a reasonable time period thereafter, facilitate that return occurring and in that event, these

   orders shall apply mutatis mutandis for the mother.

4. As the parties understood this clause, the caring roles were essentially to be reversed if the threshold condition was met; namely, that [Child] expressed a very strong view for at least three consecutive months that he wished to live with Mr East. 

5. [In] May 2018 Ms Wu sent Mr East an email consenting to [Child’s] move to Victoria to live with Mr East for a trial period.   Following notification, the Child Support Agency (CSA) decided that, from 25 May 2018, Mr East had 86% and Ms Wu 14% of [Child’s] care.[1] 

   [1] This decision recognises the care arrangement during school holidays and does not include the option of additional care during school terms. 

6. Ms Wu contacted the CSA [in] October 2018 to advise that [Child] recommenced living with her from 22 September 2018.  Ms Wu indicated that she anticipated she would have 300 nights care per year in accordance with the consent order.  Based on these details, the CSA decided that Mr East had 17% and Ms Wu 83% of [Child’s] care from 22 September 2018.

7. [In] November 2017 an objections officer allowed Mr East’s objection and decided that the new care arrangement commenced from 2 October 2018 rather than 22 September 2018. The care percentages were unchanged (17% for Mr East and 83% for Ms Wu).

8. On 8 October 2019 Ms Wu sought review by the Tribunal of the objections officer’s decision.  At the hearing on 12 December 2019 the parties gave sworn evidence by conference telephone.  I accepted into evidence the Subsection 37(1) Statement and Documents provided by the CSA, comprising folios 1 to 252 (Exhibit 1) and additional documentation from Ms Wu, comprising folios 1 to 34 (Exhibit A).      

CONSIDERATION

1. As noted, the parties obtained a consent order by the Federal Circuit Court [in] March 2018.  Clause 14 (as quoted) is unusual and there may be some doubt as to its legal efficacy.  In any event, I am satisfied that it was not followed as the threshold period of three months had not elapsed before [Child] moved to live with Mr East.  Although the consent order allowed the parties to depart from the order, after doing so the order no longer regulated [Child’s] care.  Both parties agreed to follow the reversed care position envisaged in clause 14; however, this amounted to an oral agreement between them.

10. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[2]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care. 

[2] All legislative references are to this Act unless otherwise stated.

11.  Sections 49 and 50 provide that, before a determination can be made in relation to a person, any care determination already in place for that person must be revoked.  As far as is relevant, a revocation under section 54F can occur only if the Registrar were to determine (under sections 49 or 50) a different percentage of care for a specified care period and the person’s cost percentage would change as a result.[3] 

[3] Care determinations can also be revoked under other provision.  However, these provisions have no present relevance.

12.  The wording of subparagraphs 49(1)(b)(ii) and 50(1)(b)(ii) require a decision-maker to have regard to the care position at the time a person contacts the CSA regarding a change.  The decision-maker must consider the care period that should be adopted, as well as both the care in the period that has already occurred to the date of contact and the care that is likely to occur in the remainder of the period after this date.   

13.  In conducting a merits review, the Tribunal takes the place of the original decision-maker and makes a decision completely afresh.  It therefore adopts the same position as described above for the original decision-maker.

1. The preceding observations are apposite in the present matter, as it transpires that Ms Wu’s reason for seeking a review is that the care that has actually taken place in the 12 months following [Child’s] return to live with her is different from what she anticipated when she contacted the CSA [in] October 2018.  As I understand matters, it turns out from Ms Wu’s care records that Mr East has had less than 14% care.

15.  In line with my observations, I indicated to the parties that my restricted role does not enable me to act as a decision-maker with respect to a departure from a pattern of care previously advised.  Where a party concludes that there is a new pattern of care based on the care actually taking place (or that the care pattern advised is not occurring), the appropriate course of action is to inform the CSA of the changed circumstances.  The CSA will then determine when the new care pattern commenced (or when it can be said that there was a consistent failure to follow a previously advised pattern). 

16.  As I understood Ms Wu, she was told by the CSA that she had to wait for 12 months to see if the actual care conformed to the pattern previously advised.  If it did not, then the pattern advised could be amended retrospectively.  I understand that Ms Wu delayed her application to this Tribunal on the understanding that I would be able to make the retrospective assessment.  If this is the case then, for the reasons provided, the advice given was profoundly misconceived.

17.  As to what lies within the ambit of my review, the facts are essentially not in dispute.  Both parties accept there was a change of care on 2 October 2018.  In this regard, as noted the parties were following the terms of the consent order on the understanding that the care roles were reversed.  Thus, [Child] visited Ms Wu for the September 2018 school holidays on 22 September 2018 and was expected to return to Mr East’s care on 2 October 2018. 

18.  As [Child] did not return to Mr East’s care on 2 October 2018 after the agreed visit, I am satisfied this date signals the care change.  I am also satisfied that, when Ms Wu contacted the CSA [in] October 2018 about the change, it was likely that the care arrangement under the consent order would resume.  That is, as Ms Wu indicated at the time, it was anticipated she would have 300 nights care (83%) and Mr East 65 nights (17%).

19.  The objections officer’s decision will therefore be affirmed.

DECISION

The decision under review is affirmed.