Braithwaite and Braithwaite (Child support)

[2022] AATA 3376

Braithwaite and Braithwaite (Child support) [2022] AATA 3376 (15 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023526

APPLICANT:  Ms Braithwaite

OTHER PARTIES:  Child Support Registrar

Mr Braithwaite

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  15 August 2022

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Ms Braithwaite provides 35 per cent care and Mr Braithwaite provides 65 per cent care of [Child 1] from 28 April 2021 until 4 October 2021;

• Ms Braithwaite provides 0 per cent care and Mr Braithwaite provides 100 per cent care of [Child 1] from 5 October 2021; and

• pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Ms Braithwaite’s application for review was made within that period.

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

CHILD SUPPORT – percentage of care – date of effect provisions – whether there were special circumstances that prevented the objection being lodged in time – sent back with direction about date of effect

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review - whether there were special circumstances that prevented the application for review being lodged in time - special circumstances exist - tribunal decides to make a determination under subsection 95N(2)

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. This review is about a change to the percentage of care determinations for Ms Braithwaite and Mr Braithwaite in respect of their child [Child 1] (born November 2009).  Ms Braithwaite and Mr Braithwaite are the parents of two children, however, this matter relates to [Child 1] only.  There has been a child support assessment in place since 11 December 2017.

2. From 8 February 2021 the child support assessment reflected Ms Braithwaite as having 35 per cent care of [Child 1] and Mr Braithwaite as having 65 per cent care.

3. On 24 May 2021 Mr Braithwaite advised the Child Support Agency of a change to the care arrangements stating that he had 100 per cent care of [Child 1] from 28 April 2021.

4. On 10 June 2021 the Child Support Agency made the decision to reflect that Ms Braithwaite provides 0 per cent care and Mr Braithwaite provides 100 per cent care of [Child 1] from 28 April 2021.

5. On 10 November 2021 Ms Braithwaite objected to this decision and on 12 January 2022 the Child Support Agency disallowed the objection (the objection decision).

6. On 22 March 2022 Ms Braithwaite applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 2 June 2022.  Ms Braithwaite gave evidence on affirmation by Microsoft Teams audio.  The Tribunal wrote to Mr Braithwaite on 29 April 2022 advising him the application for review would be heard on 2 June 2022 at 4:00 pm.  On 30 May 2022 and on 1 June 2022 the Tribunal sent Mr Braithwaite SMS text messages reminding him of the details of the hearing.  The Tribunal attempted to contact Mr Braithwaite on the day of the hearing at the specified time but was unsuccessful.  Mr Braithwaite did not participate in the hearing.

8. The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (162 pages).  At hearing the Tribunal agreed Ms Braithwaite could provide additional evidence relating to her medical condition.  This was received on 10 June 2022 (A1–A3) and copies were distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent. The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. Where a parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, the Child Support Agency makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. The Child Support Agency revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act states that a care determination, known as an interim determination, may be made if a care arrangement is not being complied with and the parent with reduced care takes “reasonable action” to have the care arrangement complied with.

6. The issues which arise in this case are:

   ·     whether or not there has been a change in the pattern of care for [Child 1] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new percentage of care determinations take effect; and

   ·     whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Ms Braithwaite told the Tribunal court orders relating to the care of [Child 1] had been in place since 2018 and in her view the parents were following the orders.  Ms Braithwaite explained that the court orders allowed the parents to make their own arrangements for care which was why the existing pattern of care was not consistent with the care set out in the orders.

2. Ms Braithwaite said while the parents had come to an agreement in relation to the care of [Child 1] she had never agreed that Mr Braithwaite could have 100 per cent care.  Ms Braithwaite submitted that Mr Braithwaite was withholding care of [Child 1] in contravention of the court orders.

3. The Tribunal notes in evidence from the Child Support Agency a copy of consent orders issued by the Family Court of Australia on 22 August 2018.  The orders provide for the children to live with Ms Braithwaite while Mr Braithwaite is to have care of two nights per fortnight “and at such further and other times as may be agreed between the parties” (clause 42) as well as school holiday care.  The orders also state at clause 53 that “the children spend time with each of the parties at all other times as agreed”.

4. Ms Braithwaite told the Tribunal at the outset the parents had followed the care as stipulated under the court orders but later agreed to changes for the benefit of the children.  Ms Braithwaite said initially their arrangement was for shared care of the children.  Ms Braithwaite argued that, in her view, this was in compliance with the court orders.

5. Ms Braithwaite told the Tribunal that Mr Braithwaite had previously threatened to keep [Child 1] and withhold care.  Ms Braithwaite confirmed she had not had care of [Child 1] since 28 April 2021.

6. Ms Braithwaite said she had immediately contacted the police and child safety to have [Child 1] returned.  Ms Braithwaite said at the recommendation of the police she had engaged with an organisation called Act for Kids but Mr Braithwaite would not be involved.  Ms Braithwaite said, in addition, she tried to arrange mediation but this did not proceed because mediation was not considered the best path to follow.  Ms Braithwaite added that during this time she had also sought legal advice and was now pursuing a recovery order in the courts.  Ms Braithwaite pointed out that at no stage had Mr Braithwaite attempted to engage with her to discuss a return to the court ordered care and he had even blocked her calls.

7. The Tribunal notes in evidence a section 60I certificate[1] from the Family Relationship Centre dated 29 June 2021 advising that Ms Braithwaite did not attend family dispute resolution because it was not considered appropriate.  The Tribunal also notes a letter dated 18 November 2021 from [Ms A] at Act for Kids.  The letter explains that Act for Kids offers a family support program and has been working with Ms Braithwaite since May 2021 including around engagement with child support matters.  The letter states the children reside with Mr Braithwaite and “As the Father has not provided his consent to engage with our service, I am unable to interact with or support the children in his home”.  The Tribunal further notes a letter from [name] of [Law Firm 1] dated 25 March 2022 confirming the firm acts for Ms Braithwaite and commenced proceedings for a recovery order on 16 December 2021.

   [1] A certificate for family dispute resolution as issued under section 60I of the Family Law Act 1975

8. Ms Braithwaite told the Tribunal she had wanted to file the recovery order sooner but was advised by her lawyer that it was better to wait and deal with other issues first.  The Tribunal notes in evidence an email to Ms Braithwaite from her lawyer dated 2 August 2021 which confirms that Ms Braithwaite wished to proceed with a recovery order.

9. Although Mr Braithwaite did not participate in the hearing the Tribunal notes that during a conversation with a child support officer on 10 November 2021 he is recorded as stating that he had engaged with the police in relation to concerns about the treatment of the children and a temporary protection order had been issued.  In a further conversation on 23 November 2021 Mr Braithwaite is recorded as stating he had never heard from Act for Kids.

10. The Tribunal notes in evidence from the Child Support Agency a temporary protection order dated 5 October 2021 naming [Child 1] and [Child 2] as protected persons.  Under this order, which remains in place until a further order is issued, Ms Braithwaite is prohibited from locating or attempting to locate the children.

Issue 1 – Change in the pattern of care

1. It is not in dispute and the Tribunal finds that care of [Child 1] changed from 28 April 2021 with Ms Braithwaite providing 0 per cent care and Mr Braithwaite providing 100 per cent care from this date.

2. The existing percentages of care reflected in the assessment for [Child 1] were 35 per cent care to Ms Braithwaite and 65 per cent care to Mr Braithwaite in accordance with their agreement. Ms Braithwaite has argued that this agreement was in keeping with the court orders which permitted the parents to make such arrangements.  There is no evidence from Mr Braithwaite to dispute this.

3. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the parents’ existing percentage of care and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

4. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked.

5. The Tribunal finds that Mr Braithwaite notified the Child Support Agency of the change in care on 24 May 2021 which is less than 28 days after the change occurred on 28 April 2021.

Issue 2 – Interim care determination

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their child.

2. The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies. For section 51 of the Act to apply, a care arrangement, such as a court order or parenting plan, must be in place and the actual care of the child during the care period does not comply with the extent of care of the child under that care arrangement (paragraphs 51(1)(b) and 51(1)(c) of the Act). The parent who has reduced care must also be taking “reasonable action” to ensure that the care arrangement is complied with (paragraph 51(1)(d) of the Act).

3. The Tribunal is satisfied that court orders relating to the care of [Child 1] were in place and, in accordance with clauses 42 and 53, the court orders were being followed by the parents prior to the change in care.

4. The term “reasonable action” is not defined in the Act. The Explanatory Memorandum to the Bill for the amending Act that introduced section 51, referring to reasonable action, states:

   For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.

5. The Tribunal is satisfied, based on the evidence provided, that Ms Braithwaite took reasonable action to recover her care under the court orders and this reasonable action commenced from the date care changed.  The reasonable action being taken by Ms Braithwaite is ongoing.  The letter from Act for Kids indicates that Mr Braithwaite was not involved with their family support program, however, Mr Braithwaite told the Child Support Agency he had not heard from the organisation.  There is no evidence before the Tribunal to suggest Mr Braithwaite was actively engaged in resolving the dispute over the care of [Child 1] to ensure compliance with the care arrangement.

6. As a care arrangement is in place and Ms Braithwaite, the parent with reduced care, took reasonable action, subsection 51(2) of the Act requires that two percentages of care be determined. One being the care that should have occurred under the care arrangement and the other being the actual care taking place.

7. The Tribunal finds that a care determination can be made for an interim period.  The Tribunal concludes the percentages of care should be:

   · care according to the arrangement between the parents under the court orders being 35 per cent care to Ms Braithwaite and 65 per cent care to Mr Braithwaite (pursuant to subsection 51(3) of the Act); and

   · care actually occurring being 0 per cent care to Ms Braithwaite and 100 per cent care to Mr Braithwaite (pursuant to subsection 51(4) of the Act).

8. Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, a single percentage of care, rather than two percentages of care, may be determined based upon the actual care taking place. Section 2.2.4 of the Child Support Guide followed by the Child Support Agency states, in relation to special circumstances:

   Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person’s own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.

9. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

10. Mr Braithwaite has provided evidence in the form of a temporary protection order which confirms he had legitimate concerns relating to the welfare of [Child 1].  The temporary protection order was made on 5 October 2021.  Ms Braithwaite told the Tribunal that she denied allegations raised by Mr Braithwaite in relation to domestic violence and the welfare of the children.

11. The temporary protection order was made more than five months after Mr Braithwaite notified the Child Support Agency of the change in care for [Child 1].  The Tribunal is satisfied there are no special circumstances such that an interim care determination should not be made in this case.

Issue 3 – Term of the interim period

1. The meaning of interim period is given in section 53A of the Act. The start day of the interim period is usually the change of care day and the end day of the interim period is usually governed by the table in subsection 53A(1) of the Act.

2. The length of the interim care period is determined by 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.  It also depends upon whether or not the person with increased care took “reasonable action” to participate in family dispute resolution.

3. The Tribunal is not satisfied, based on the evidence provided, that Mr Braithwaite also took “reasonable action” to participate in family dispute resolution within a reasonable period.

4. As more than 38 weeks has elapsed between the date of the court orders and the change of care day and Ms Braithwaite was the only parent to take reasonable action, the Tribunal is satisfied the interim care period should be 26 weeks starting on the change of care day (item 2, column 3, paragraph (a) of the table in subsection 53A(1) of the Act).

5. The date that is 26 weeks from 28 April 2021, being the change of care day, is 26 October 2021. As this is after the temporary protection order relating to [Child 1] was made on 5 October 2021, the Tribunal is satisfied the interim care period should end on 4 October 2021 (in accordance with item 6 of the table under subsection 53A(1) of the Act).

6. The Tribunal has revoked the existing care determinations and new care determinations must, therefore, be made. Section 54C establishes the application days if two percentages of care apply under section 51 of the Act:

   ·     the first care percentage is that Ms Braithwaite provides 35 per cent care and Mr Braithwaite provides 65 per cent care of [Child 1] from 28 April 2021 until 4 October 2021; and

   ·     the second percentage of care is that Ms Braithwaite provides 0 per cent care and Mr Braithwaite provides 100 per cent care of [Child 1] from 5 October 2021.

7. Section 95N of the R&C Act determines the date of effect of a Tribunal decision to set aside a care percentage decision.

8. Ms Braithwaite applied to the Tribunal on 22 March 2022 for a review of the objection decision made by the Child Support Agency on 12 January 2022.  The Tribunal is satisfied Ms Braithwaite was advised about the outcome of the objection decision by electronic means in a letter from the Child Support Agency dated 12 January 2022.  Given her application to the Tribunal was not within 28 days of receiving notice of this objection decision, the date of effect of any new decision by the Tribunal is the date she applied for review.

9. The Tribunal may extend the 28 days if there are special circumstances that prevented Ms Braithwaite from applying for review within this period. While the R&C Act does not define special circumstances, the Child Support Guide at 4.1.8 provides some clarification. It states the circumstances must be “sufficiently special for the applicant to receive the benefit of an extension”.

1. Ms Braithwaite told the Tribunal she suffers with mental health disorders and was under the care of a psychiatrist around the time of the objection decision.  Ms Braithwaite explained that, due to her condition and the various medications she was taking, she struggled to communicate and found it difficult to focus on multiple issues.

2. Following the hearing Ms Braithwaite provided the Tribunal with a letter from her psychiatrist, [Dr B], dated 8 October 2021.  The letter, addressed to her GP, confirms Ms Braithwaite is experiencing mental health issues and being treated accordingly.

3. The Tribunal finds there were special circumstances preventing Ms Braithwaite from applying for review within the timeframe prescribed. Accordingly, the Tribunal determines pursuant to subsection 95N(2) of the R&C Act, that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Ms Braithwaite’s application for review was made within that period.

4. On 10 November 2021 Ms Braithwaite objected to the original care decision made by the Child Support Agency. Her objection was disallowed. It appears, according to the evidence provided, that Ms Braithwaite then submitted her objection outside the required timeframe. As this decision made by the Tribunal will apply in substitution of the objection decision made by the Child Support Agency the date of effect of the Tribunal decision is in accordance with subsection 87AA(1) of the R&C Act (being 10 November 2021 when Ms Braithwaite objected to the original care decision). The Child Support Agency may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires the Child Support Agency to make an original decision which the Tribunal is unable to make in the current proceedings.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Ms Braithwaite provides 35 per cent care and Mr Braithwaite provides 65 per cent care of [Child 1] from 28 April 2021 until 4 October 2021;

• Ms Braithwaite provides 0 per cent care and Mr Braithwaite provides 100 per cent care of [Child 1] from 5 October 2021; and

• pursuant to subsection 95N(2) of the Child Support (Registration and Collection) Act 1988 that subsection 95N(1) of that Act applies in this matter as if the reference to 28 days in paragraph 95N(1)(b) is a reference to a longer period such that Ms Braithwaite’s application for review was made within that period.