Turner v Turner [2011] SSATACSA 1 | Family Law Express Decisions

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Decision under Review

A decision made by an objections officer of the Child Support Agency on 12 November 2010 to disallow an objection to a decision made on 6 September 2010 to record Mr Turner has having 0% care and Ms Turner as having 100% care of Tanya and Joanne from 2 September 2010.

Tribunal

The Tribunal was constituted by Mr XXXXX.

Hearing

The hearing was conducted on 20 January 2011. Mr Turner and Ms Turner gave their evidence by telephone. The Child Support Registrar did not attend.

Decision of the Tribunal

On 20 January 2011 the Tribunal decided to set aside the decision under review and substitute a new decision to record Mr Turner as having 25% care of Tanya and 21% care of Joanne and Ms Turner as having 75% care of Tanya and 79% care of Joanne from 5 September 2010.

Date of despatch 25 January 2011

REASONS FOR DECISION

Mr Turner is the parent liable to pay child support to Ms Turner in respect of their children Tanya (born in 1994) and Joanne (born in 1998).

On 6 September 2010 the Child Support Agency (‘the CSA’) decided to record Mr Turner has having 0% care and Ms Turner as having 100% care of Tanya and Joanne from 2 September 2010. Mr Turner objected to that decision and his objection was disallowed. Mr Turner sought further review and the matter was heard by the Tribunal on 20 January 2011. Mr Turner and Ms Turner gave their evidence by telephone. The Tribunal has also had regard to the ‘subsection 95(3) Statement and Documents’ (exhibit 1) and the ‘subsection 95(5) Statement and Documents’ (exhibit 2). The Child Support Registrar did not attend.

To appreciate what occurred in early September 2010 it is necessary to recount some of the history of the parents’ care of their children. At the start of 2010, Mr Turner was recorded as providing greater than primary care of Joanne and Ms Turner was recorded as providing greater than primary care of Tanya (exhibit 1, page 13).

On 7 January 2010 both parents signed a parenting plan in the following terms:

That [Tanya] reside with [Ms Turner].

That [Mr Turner] visit with Tanya at all times as agreed between the parties.

That [Joanne] reside with [Mr Turner].

That [Ms Turner] visit with Joanne at all times as agreed between the parties.

That the parties agree that the current arrangements for visits by Joanne with [Ms Turner] shall continue.

On 31 May 2010 the CSA recorded Mr Turner as saying Joanne had gone into Ms Turner’s care on 2 April 2010 but he had had about 10 nights care of Joanne over the preceding two months (exhibit 1, page 77). This equates to 60 nights per year or 16%. On 1 June 2010 the CSA recorded Ms Turner as saying Mr Turner will be having at least two nights care of Joanne per fortnight (exhibit 1, page 76). On 1 June 2010 the CSA decided to record Mr Turner as providing 16% care of Joanne from 2 April 2010 but it inadvertently recorded him as providing 84% care from that date. Ms Turner notified the CSA of its error (exhibit 1, page 73) but the error does not appear to have been corrected (exhibit 1, page 13).

On 27 July 2010, Mr Turner advised the CSA of his various nights of care of Tanya during the period from 24 April to 30 June 2010 and asked, ‘Can you please review the information I have provided and advise of the impact this has on [my] Child Support since the Object letter determined Tanya was in 100% of her mother’s care from 25/12/09.’ (exhibit 1, pages 55 and 56). That was clearly a request for a new determination of his percentage of care of Tanya but it appears the CSA did not consider his request.

In correspondence recorded by the CSA on 3 September 2010, Mr Turner advised the CSA of his further care of Tanya (exhibit 1, page 71). The CSA made a file note of its conversation with Mr Turner on the same day (exhibit 1, page 54). It states, in part:

Chris advised on 05/09/2010 he will be dropping both children Tanya & Joanne to Angela and will be trying to arrange ongoing care arrangements for both children however wanted to have child support assessment reflecting that he is having care of both children.

Chris advised at this stage the ongoing care from 05/09/2010 onwards is unknown, if he is unsuccessful in arranging care with Angela on 05/09/2010 he will be following through with obtaining legal orders/plan.

The CSA made a file note of its conversation with Ms Turner on the same day (exhibit 1, page 53). It states, in part:

have called Angela to discuss the care change pended by Chris

have asked Angela what is actually happening in regards to care

Angela has advised Chris has the children at this time but took them without her permission and the children will be returned to her care as at 05/09/2010

Angela has advised that she is expecting the children to be in her full time care and that care will not be shared

there are no court orders but they are seeking court action whilst we speak

have transferred the case to specialised care to determine dispute

The CSA’s next file note states, in part (exhibit 1, page 52):

Angela was trf from MS (transferred from Mainstream Services)

…

Angela advised the care arrangements from 15/08/2010 is that child Tanya was being disrespectful to Angela and they had a disagreement. Tanya then contacted Chris and he came and collected both children on 15/08/2010. Angela advised she did not approve of this or accept this.

Angela advised Chris is bringing both children back to her care this Sunday 05/09/2010.

She advised she and Chris do not communicate and he will not be having any overnight care of the children until the outcome of the court custody hearing has been made.

On 6 September 2010 the CSA decided to record Mr Turner as having 0% care and Ms Turner as having 100% care of Tanya and Joanne. As noted earlier, Mr Turner’s objection to that decision was refused and he sought further review by the Tribunal.

At the hearing, Mr Turner and Ms Turner were both impressive witnesses. They both appeared to be genuinely desirous of assisting the Tribunal to ascertain the truth. They were courteous to each other. They acknowledged the limits of the matters upon which they could give evidence. Ms Turner in particular acknowledged the possibility that her recollection of some events last year may have faded. They were in general agreement about the actual care that had been provided to the children. The major discrepancy concerned the nights that Mr Turner’s mother (Mrs Turner) cared for the children after Ms Turner had delivered them to her. Both parents submitted that the children were in their care on those nights. In response to a question from the Tribunal, Ms Turner said that if Mrs Turner had concerns about the children she would have contacted Mr Turner first. The Tribunal finds that while the children were with Mrs Turner they were in the care of Mr Turner.

Although the parenting plan gives the impression that each parent will predominantly care for one child, in practice the children, who were almost always together, would indicate which parent they wanted to spend time with and the parents would agree.

From 1 January 2010 to 22 April 2010, both children were in Ms Turner’s care.

In considering the period from 23 April 2010 to 14 August 2010, Mr Turner acknowledged that Ms Turner may have collected the children from Mrs Turner on 26 July 2010 and the Tribunal finds that she did. As noted earlier, nights spent with Mrs Turner were nights in Mr Turner’s care and those dates appear in italics in the table below. The remaining dates in dispute have been underlined in the table below:

	Tanya	Joanne
April	23, 24, 25, 26	23, 24, 25, 26
May	13, 14, 15, 16	13, 14, 15, 16
June	6, 7, 8, 9, 10, 11, 12, 13	11, 12, 13, 14
July	6, 7, 8, 18, 19, 20, 21, 22, 23, 24, 25	6, 7, 8, 18, 19, 20, 21, 22, 23, 24, 25
August	6, 7, 8, 9, 10, 11	6, 7, 8, 9, 10

The Tribunal is satisfied that both parents were honest in their recollections, assisted by their diaries. However the Tribunal formed the view that Mr Turner had applied himself more diligently to maintaining his diary and the Tribunal finds, on balance, that his recollection of the nights of care is correct.

A general pattern of care is discernable: the children were in Mr Turner’s care for five or so nights per month with extra time being spent in his care following the mid-year school holidays. During the 105 night period from 23 April 2010 to 5 August 2010 (so that the period is not starting and ending with the same parent’s care), Mr Turner had the care of Tanya for 27 nights (25%) and Joanne for 23 nights (21%).

The children were next in Mr Turner’s care on 15 August 2010 and were in his care up to and including 4 September 2010. Ms Turner stated that she had had an argument with the children and they wanted to be with Mr Turner, but by 5 September 2010 they wanted to be with her. She noted that she and both the children were under medical care. Mr Turner stated that during the few weeks the children were with him they had concerns for Ms Turner’s welfare but the children were in contact with Ms Turner.

In respect of the hand-over on 5 September 2010, both parents gave evidence that they expected the care arrangement which had been in place up until 15 August 2010 to resume, although Mr Turner expected that the children would initially spend more time with their mother because they had not been in her care for some time. Mr Turner referred to the CSA’s file notes of its conversations with him at that time. He said he was asked what care he expected to have and he had been unable to state when the children would return to his care, but that needed to be understood in the above context. Ms Turner agreed that she expected the children to continue to indicate which parent they wanted to spend time with and that the parents would agree with their wishes.

The provisions relating to care assessments under the Child Support (Assessment) Act 1989 (‘the Assessment Act’) substantially changed with effect from 1 July 2010. A new concept of care percentage decision was introduced. Where there was an existing care determination prior to 1 July 2010, the transitional provisions in section 100 of the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 operated to deem a revocation of the existing determination immediately before 1 July 2010 and to deem an equivalent new percentage of care determination under section 49 or 50 of the Act, applicable with effect from 1 July 2010.

Prior to 1 July 2010, the CSA had inadvertently recorded Mr Turner as providing 0% care of Tanya and 84% care of Joanne and Ms Turner as providing 100% care of Tanya and 16% care of Joanne. Given the effect of the transitional provisions outlined above, the Child Support Registrar is taken to have made identical determinations of the parents’ percentages of care with effect from 1 July 2010.

Section 54F of the Assessment Act states, relevantly:

Determination must be revoked if there is a change to the responsible person’s cost percentage

(1)If:

a determination of a responsible person’s percentage of care (the existing percentage of care ) for a child has been made under section 49 or 50; and

if section 51 or 52 applied in relation to the responsible person–the interim period for the determination has ended; and

the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

section 54G does not apply;

the Registrar must revoke the determination.

Note:The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

(2)The revocation of the determination takes effect at the end of:

if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:

in a case where that change of care day occurs during the interim period for the determination–the day on which the interim period ends; or

otherwise–the day before that change of care day; or

if the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended–the day on which the interim period ends; or

otherwise–the day before the day on which the Registrar or the Family Assistance Secretary is notified, or otherwise becomes aware, of that matter.

If paragraphs 54F(1)(a) to (e) are satisfied, the Registrar must revoke the previous percentage of care determination. The determination referred to in paragraph (a) is deemed to have been made on 1 July 2010. Paragraph (b) is satisfied because sections 51 and 52 did not apply. The CSA was notified on 3 September 2010 that the actual care of the children did not correspond with its recorded care of the children. A determination made in accordance with the actual care provided by the parents would change the parents’ cost percentage for the children. Section 54G did not apply.

The deemed determination made on 1 July 2010 is therefore revoked from 4 September 2010. A new determination must be made pursuant to either section 49 or section 50, depending on the circumstances, with effect from 5 September 2010. Section 49 applies if there is no pattern of care. In this case, there is a pattern of care. Section 50 states, relevantly:

Determination of percentage of care-responsible person has had etc. a pattern of care for a child

This section applies if:

either of the following applies:

an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

and the Registrar is satisfied that a responsible person for the child 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; or

the Registrar:

revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and

is satisfied that the responsible person 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.

The Registrar must determine the responsible person’s percentage of care for the child during the care period.

The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

From 5 September 2010, the parents were likely to have the same pattern of care they had from 23 April 2010 to 5 August 2010, with Mr Turner having 25% care of Tanya and 21% care of Joanne. Sections 51 and 52 do not apply as both sections have a requirement that the actual care is not in accordance with a care arrangement, which includes a parenting plan. In this case, the care is in accordance with the parenting plan.

In summary, there are three main points to note. Firstly, the CSA has inadvertently recorded Mr Turner as providing 84% care of Joanne from 2 April 2010 although it intended to record him as providing 16% care. The CSA should correct that slip. Secondly, the CSA is required to consider the request made by Mr Turner on 27 July 2010 to make a new determination of his percentages of care of the children. Thirdly, Mr Turner is to be recorded as having 25% care of Tanya and 21% care of Joanne from 5 September 2010.

Decision

XXXXXX Member 25 January 2011