Bromfield and Jordison (Child support)

Bromfield and Jordison (Child support) [2023] AATA 3296 (14 June 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024886
APPLICANT:  Mr Bromfield
OTHER PARTIES:  Child Support Registrar
Ms Jordison

TRIBUNAL:Member J Prentice
DECISION DATE: 14 June 2023

DIRECTION TO ALTER DECISION OR REASONS FOR DECISION:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the following alterations are made to the decision and reasons for the decision:

The date in the decision of paragraph one line three which states “7 March 2022” is replaced with “6 March 2022”.
The date in paragraph 62 of the written statement of reasons for the decision which states “7 March 2022” is replaced with “6 March 2022”.
The date in paragraph 63 of the written statement of reasons for the decision which states “1 December 2018” is replaced with “6 September 2021”.
The date in paragraph 64 of the written statement of reasons for the decision which states “7 March 2022” is replaced with “6 March 2022”, and the date “8 March 2022” is replaced with “7 March 2022”.

Member J Prentice
12 July 2023

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024886
APPLICANT:  Mr Bromfield
OTHER PARTIES:  Child Support Registrar
Ms Jordison

TRIBUNAL:Member J Prentice
DECISION DATE: 14 June 2023
DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

The existing percentage of care for Mr Bromfield is revoked on 5 September 2021. The first percentage of care of the child for Mr Bromfield is 65%, applying from 6 September 2021 to the end of the interim period (7 March 2022), and the second percentage of care of the child for Mr Bromfield is 0%, applying after the end of the interim period.
The existing percentage of care for Ms Jordison is revoked on 1 May 2022, and a new care determination of 100% applies from 2 May 2022.

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 – 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

As relevant to this application, Mr Bromfield and Ms Jordison are parties to a child support case registered with Services Australia – Child Support (Child Support) from 21 September 2017 in relation to financial support to be provided for [Child 1] (born September 2005) (the child). The application concerns a single decision by Child Support about the recorded care for the child utilised in calculation of the child support liability.
From 1 December 2018 the pre-existing percentages of care applying in the child support case for the child were 65% to Mr Bromfield and 35% to Ms Jordison.
On 2 May 2022 Ms Jordison contacted Child Support and advised a change to the care position of the child from 20 August 2021, stating that there was an intervention order in place and she now had 100% care of [Child 1].
On 27 June 2022, Child Support decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Mr Bromfield and 100% to Ms Jordison from 20 August 2021, notified 2 May 2022. Notably, as Ms Jordison notified the change of care on 2 May 2022, more than 28 days after the change of care was found to have occurred on 20 August 2021, the recorded increased percentage of care determination from 35% to 100% to Ms Jordison applied from 2 May 2022 (the date of notification). However, the recorded decreased percentage of care determination from 65% to 0% to Mr Bromfield applied from 20 August 2021 (the date of the care change).
On 12 July 2022, Mr Bromfield objected to this decision and, on 18 October 2022, a Child Support objections officer disallowed the objection.

On 21 October 2022, Mr Bromfield lodged an application with the Tribunal seeking an independent review of Child Support’s decision stating (unedited):
The decision did not take into consideration all of the evidence provided by the father and that the Mother failed to provide relevant evidence.
i)There is a written agreement in place in the form Family Court Order in place [Since 21 September 2017] for care arrangements until [Child 1] is 18 years of age. From 1 December 2018 the Mother provides 35% and the Father provides 65% until [Child 1] is 18 or as otherwise agreed by the parties. I have not agreed to 100% care arrangement in the Mothers favour.
ii)The Father's objection was not only based on his concerns for the whereabouts of his child, if she was attending school. As previously advised, the Fathers core concerns were with the Mother contravening court orders and removing the child into her care without his knowledge or agreement. This is evidenced by letter from [Lawyers 1] dated 11 and 21 October 2021.
iii)The Father objects to the Family Court Orders not being used in the objection to the assessment in the Fathers favour, however, the Court Orders appear to have been used in support of the Mothers claim.
iv)The Father objects that a Residential Tenancy agreement has been valid "evidence" that the Mother is justified in claiming 100% care. The Respondent has rented properties for the duration of the Court Orders (as have I) and this not evidence that there is reason for the assessment to have been changed now or in the past.
v)The Father has taken continuous action to have the care arrangement to be complied with since 8th September 2021.
The Father has:
·Tried to negotiate with the other party in a genuine attempt to ensure compliance with the care arrangement;
·Made an appointment at a Family Relationship Centre (FRC) with the aim of ensuring the care arrangement is adhered to
·Sought and obtained legal advice regarding the making of a court order Filing an application to a court to have an order made or enforced Notified the police that the child has been taken without consent.
vi)The Mother has not taken reasonable action to participate in Family dispute resolution, file an application with the Court to vary Orders or take any steps in any other way.
vii)The Mother has exposed the child to drug, alcohol and substance abuse.
viii)The child was in the Fathers care up to and including the 6th September 2021. The Court Orders were contravened from 8th September 2021 and the child was not returned to the Fathers care by the Mother after ordered time. The child was not 100% in the Mothers care from 20 August 2021.
ix)The level of care from Court Orders 2017 was pre agreed to vary approximately 7% from the end of 2017 to December 2018 (based on the Mother's mental health improving) with there being no other variation in place to care arrangements. The Maximum care agreed to is current and did not change from 1 December 2018 to current. The assumption that because the Father accepting a change of 7% care in the Mothers favour, as so Ordered, cannot be extrapolated to the Father accepting a 0% care arrangement.
x)There have never been any reports of Domestic Violence from either the child or the mother whilst the child was in my care. The Mother commenced making false allegations of Domestic Violence when the child WAS NOT in my care. Interim ADVO dated [in] November 2021 served on the Father. There being NO protection order in place from 20 August 2021 to [November] 2021 - a period of 3 months where the Mother is wrongfully claiming 100% care due to Family Violence. CSA cannot retrospectively include the provisional ADVO in the considerations during a time where it did not exist. The provisional ADVO did not prevent the child from returning to the care of the Father.
xi)The Mother does not live in my home with my wife, [Child 1] and I and has no evidence of my home being "unsafe".
xii)The care arrangements were being adhered to up until the Mother contravened them. By virtue of them being in place, and having been followed the Contravention application is valid. If the Court Orders were not being adhered ot, I would not have lodged Contravention application. Under the circumstances, the care percentage should be applied based on what the Family Court Order States is the care.
The hearing of the application was held on 14 March 2023. Mr Bromfield participated in the hearing by conference telephone and gave evidence on affirmation. The Child Support Registrar did not participate in the hearing and did not attend. The Tribunal attempted to call Ms Jordison several times on the number she had provided but the calls were disconnected. At one point a female voice answered the call but said she was not Ms Jordison and then hung up. The presiding member then contacted the acting case manager and asked them to attempt to contact Ms Jordison. They informed the Tribunal that Ms Jordison had called earlier and was concerned that she had missed the call from the Tribunal. However, it was realised that Ms Jordison had been confused by the different time zone in South Australia. The Tribunal officer tried several times to contact Ms Jordison and also sent her a SMS message, but all attempts were unsuccessful. Having spent more than 20 minutes attempting to contact Ms Jordison, the Tribunal decided to proceed with the hearing.
In considering the application, the Tribunal took into account the oral evidence of Mr Bromfield and the documentary material provided by Child Support to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 218). Copies of all documents were exchanged with each party.
Subsequent to the hearing, the Tribunal sought submissions from the Child Support Registrar as to the application of the legislative provisions to these particular circumstances. Child Support’s submissions were provided to Mr Bromfield and Ms Jordison to enable them to provide any written comment or response to those submissions if they wished. No response was received from either Mr Bromfield or Ms Jordison to that invitation, so the Tribunal proceeded to make its decision based upon Exhibit 1, Mr Bromfield’s oral evidence and Child Support’s submissions of 4 May 2023.
There are a number of background circumstances of understandable importance to Mr Bromfield that were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, Child Support, with rules for assessing and changing care determinations, which are then used as part of the child support formula to assess child support rates.
The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities that, in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.
Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.
A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless Child Support is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.
The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify Child Support and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.
Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.
The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.
However, in certain circumstances, pursuant to section 51, parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing; that is, an interim care determination may apply.

ISSUES

It follows that the issues to be determined by the Tribunal are:
(a) whether there has been a change in the pattern of care for the child which requires the existing percentages of care to be revoked and new care determinations to be made; and
(b) whether an interim care determination should be made, and if so, for what period an interim care determination should apply.

CONSIDERATION

It is not in dispute that Mr Bromfield has not had care of the child since 6 September 2021.
On 2 May 2022 Ms Jordison contacted Child Support and advised a change to the care position of the child from 20 August 2021 stating that there was an intervention order in place and she now had 100% care of [Child 1].
Mr Bromfield told the Tribunal that his primary concern continues to be for the welfare of his daughter, [Child 1], who he has not seen since 5 September 2021 (which was Father’s Day). Mr Bromfield said he and his family miss [Child 1] and it is very upsetting and distressing that they have no contact with her and don’t even know where she is.
Mr Bromfield informed the Tribunal that the court orders of 2009 determined that Ms Jordison would have 65% care of the child and he would have 35% care. However, in 2016 these court orders were suspended and the child lived with him and he had 100% care on an interim basis. In September 2017 there were new court orders, which started with Mr Bromfield having 72% care and Ms Jordison having 28% care. Mr Bromfield noted that in line with 4(d) of these court orders (as per page 60 of the hearing papers), Ms Jordison had increased care of the child from December 2018, which was reflected as 35% care to Ms Jordison and 65% care to him. Mr Bromfield noted that care arrangements have always been in line with the court orders.
As detailed by Mr Bromfield in written evidence to the Tribunal (and detailed in paragraph 6 of these Reasons), he took immediate and ongoing action to have [Child 1] returned to his care, however, he added that it was very difficult to “negotiate” with Ms Jordison as he did not know where she and [Child 1] were or how to contact them.
Mr Bromfield noted that his first concern was for [Child 1’s] welfare and the police assured him that she was okay and was not being held against her will.
In response to questions from the Tribunal, Mr Bromfield said that he had not advised Child Support about the change in care event as he had kept hoping that the situation would be rectified and [Child 1] would be returned to his care and everything would settle down.
Having regard to the evidence from the police, the Tribunal is satisfied that the child, being 17 years old, has chosen to be in Ms Jordison’ care and is not being held against her will.
Exhibit 1 records the following relevant conversations between Mr Bromfield and Child Support and Ms Jordison and Child Support:
(a)    On 2 May 2022 – Ms Jordison advised a change in care from 20 August 2021.
(b)    On 27 June 2022 – Mr Bromfield informed Child Support that he “has taken action to get a court order to regain access to the child”.
(c)    On 19 July 2022 – Ms Jordison acknowledged she is “operating outside of the court orders” but claimed that when the child was staying with Mr Bromfield “the environment became unsafe and (we) had to move to an undisclosed location for safety reasons”.
(d)    On 14 August 2022 – Mr Bromfield confirmed that the written care arrangements are as per the court order of [September] 2017 and Ms Jordison “abducted the child on 6 September 2021”.
(e)    On 26 August 2022 – Ms Jordison claimed the child had been in her 100% care since 20 August 2021.
(f)     On 26 September 2022 – Mr Bromfield called Child Support and provided more information for the objection and advised he was seeking an interim care determination.
Relevant documentation and evidence provided to Child Support included as follows:
(a)    Copy of court orders dated [in] September 2017.
(b)    Copy of a Residential Tenancy Agreement made on 19 August 2021 and valid until 26 August 2022 for Ms Jordison and the child, provided by Ms Jordison.
(c)    Copy of a Contravention Application to the Federal Circuit and Family Court of Australia that Mr Bromfield lodged in May 2022 alleging a contravention on 4 October 2021 (unenrolling the child from her school) and 8 September 2021 (failing to return the child to the father’s care), provided by Mr Bromfield.
(d)    Copy of correspondence from Mr Bromfield’s lawyers, [Lawyers 1], dated 11 October and 21 October 2021.
(e)    Copy of text messages between Mr Bromfield and Ms Jordison.
(f)     Copy of [email] messages between Mr Bromfield and Ms Jordison.
(g)    Ms Jordison provided a copy of a Provisional Order (Apprehended Domestic Violence) (ADVO) dated [in] November 2021.
(h)    Copy of Mr Bromfield’s statement with his application to the Federal Court dated [in] July 2022, alleging the child was abducted by Ms Jordison effective 8 September 2021.
(i)   Statement by Ms Jordison dated 26 July 2022 explaining her situation and attaching a copy of the Provisional ADVO which, inter alia, notes that “police spoke to [Child 1] who fears that because the defendant is aggressive, the abuse might escalate from being verbal to physical”.
(j)   Copy of Mr Bromfield’s complaint under the Anti-Discrimination Act.
(k)    Copy of email correspondence between Mr Bromfield and [School 1] including advice that Ms Jordison had informed them that the child was changing to another school, [School 2], for Year 11, 2022.
(l)   Copy of response to Mr Bromfield from the [Agency 1] with respect to his request for mediation.
(m)   Copy of Local Court of NSW “Advice of Court Result” dated [in] October 2022, which indicates that “The application for an apprehended violence order is withdrawn and dismissed”.
(n)    Copy of correspondence to Members of Parliament from Mr Bromfield detailing the chronology of events.

The care percentage result of Child Support’s determination is:

TO 19 August 2021	FROM 20 August 2021	FROM 2 May 2022
Mr Bromfield	65%	0%	0%
Ms Jordison	35%	35%	100%

The Tribunal notes that Child Support decided that “there were no court orders in place at the time of the change in care”. The Tribunal sought submissions from the Child Support Registrar on this point. In their submission dated 4 May 2023, the Registrar stated that “A care arrangement will generally be said to “apply” for the purposes of section 51 where both parents have complied with it immediately prior to the change in care. A care arrangement that has not been followed by the parents cannot be said to apply to the child in respect of whose care it was made. In those circumstances, section 51 should be found not to apply.” The Tribunal understands it to be the contention of the Child Support Registrar that the parents in this matter were not complying with the court orders of [September] 2017 immediately prior to the change in care.
Having regard to the evidence of Mr Bromfield and the court orders of [September] 2017, the Tribunal is satisfied that care of the child was being undertaken in line with those court orders (which were still in place) until 6 September 2021. In particular, the court orders refer to increased care by the mother “commencing the first school term of 2018”; and “as agreed between the parties” and dependent on the “prognosis for the mother’s health”. This resulted in care of 65% to Mr Bromfield and 35% care to Ms Jordison. The Tribunal is satisfied that the court orders dated [in] September 2017 are a care arrangement within the meaning of the Act, and that the care arrangement applied in relation to [Child 1].
Having regard to all the evidence, the Tribunal is satisfied that:
·      The child spent Father’s Day with Mr Bromfield on 5 September 2021.
·      The child has been in the 100% care of Ms Jordison since 6 September 2021.
·      Prior to 6 September 2021, care arrangements were as per the court orders of [September] 2017, that is, 65% care to Mr Bromfield and 35% care to Ms Jordison.
·      The child, being 17 years old, has chosen to be in Ms Jordison’s care and is not being held against her will.
·      Mr Bromfield took all possible action to have the child returned to his care and restore the agreed care arrangements.
·      Ms Jordison notified Child Support of the change in care on 2 May 2022.
Having had regard to all of the evidence, the Tribunal considers that the appropriate care period is 12 months from 6 September 2021. Further, the Tribunal is satisfied, based on the evidence, that the actual care of the child from 6 September 2021 was 0% care to Mr Bromfield and 100% care to Ms Jordison, as notified by Ms Jordison on 2 May 2022.
Section 54F therefore requires that the existing care percentages be revoked.
There is an exception to the general rule that a parent’s recorded care will reflect their actual care. Under section 51, the framework for determining when percentage of care determinations apply may be treated differently where a care arrangement is in place, it is not being complied with and the parent with reduced cared is taking reasonable action to ensure compliance. Essentially, the application of section 51 results in the care as specified under a breached care arrangement being recorded or continuing to be recorded for child support purposes during an “interim period” and the actual care occurring applying after the interim period ends.
In light of the late notification of the care change in this matter, the Tribunal sought submissions from the Child Support Registrar as to whether section 51 should apply in this matter, and in particular whether paragraph 53(1)(c) has the effect that section 51 should not apply. The Tribunal notes that in other matters the Tribunal (differently constituted) has taken the view that paragraph 53(1)(c) should be read as preventing section 51 from applying in certain circumstances.
In their submissions dated 4 May 2023, the Registrar rejected the contention that paragraph 53(1)(c) prevents the application of section 51 in circumstances where there has been a late notification of a care change. The Tribunal takes this to mean that the Registrar’s contention is that section 51 will apply, notwithstanding a late notification of a change in care, provided the provisions of subsection 51(1) are met.
While the Registrar’s submission on this point does raise some questions, the Tribunal accepts that as it is written paragraph 53(1)(c) cannot prevent the application of section 51 to the new determination of care for Ms Jordison. The Tribunal finds that section 51 therefore applies to the new determinations of care for both parents in this case, if the requirements set out in subsection 51(1) are met.
Turning then to whether there was a care arrangement in place that was not being complied with, care arrangement in relation to a child means:
(a)a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or
(b)a parenting plan for the child within the meaning of section 63C of the Family Law Act 1975; or
(c)any of the following orders relating to the child:
(i)a family violence order within the meaning of section 4 of the Family Law Act 1975;
(ii)a parenting order within the meaning of section 64B of the Family Law Act;
(iii)a State child order registered in accordance with section 70D of that Family Law Act;
(iv)an overseas child order registered in accordance with section 70G of that Family Law Act.

Chapter 2.2.4 of the Guide provides guidance as follows:
A written agreement exists between separated parents (or a parent and another person who cares for the child) if:
·      there is a document in writing
·      the document signed and dated by both parties, and
·      both parties agree on the care arrangements for the child, which are specific in the document.
A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it signed by both parties. The written agreement must indicate that the care arrangement constituted an agreed, ongoing care arrangement for the child.

Section 51 has potential application to the circumstances of this case. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.
The four requirements in subsection 51(1) are as follows:
(a)    Care percentage determinations are required to be made pursuant to section 49 or section 50;
(b)    A formal care arrangement (court order or parenting agreement) applies in relation to the child;
(c)    The parents’ actual care of the child that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement; and
(d)    The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.
The Tribunal has found that new percentage of care determinations are required to be made under section 49 and section 50. Paragraph 51(1)(a) is therefore satisfied.
As regards whether a formal care arrangement applies in relation to [Child 1], the Tribunal notes Child Support’s submissions that ‘A care arrangement will generally be said to “apply” for the purposes of section 51 where both parents have complied with it immediately prior to the change in care.’ The objections officer concluded that care was not in line with the court order prior to the change in care on the basis of the interpretation of the court order of [September] 2017 as providing for Ms Jordison to have 33% care, when the care Ms Jordison was actually having was 35%. However, as already canvassed, the Tribunal is satisfied that the court order (at clause 4(b)) provided for Ms Jordison to have increased care from December 2018, which was reflected as 35% care to Ms Jordison and 65% care to Mr Bromfield and, in any event, further, provided at clause 4(d) for ‘additional time or any changes in time in accordance with the child’s wishes and as agreed between the parties.’. Up until 6 September 2021, the Tribunal is satisfied that care was occurring pursuant to the court order dated [in] September 2017, and specifically pursuant to clauses 4(a), (b), (c) and (d) or a combination of those clauses.
Paragraph 51(1)(b) is therefore satisfied.
The court order dated [in] September 2017 provided for care of the child to be 65% to Mr Bromfield and 35% to Ms Jordison from 1 December 2018 and the Tribunal is satisfied care was taking place on this basis up until 6 September 2021.
The Tribunal has found that from 6 September 2021 the actual care of [Child 1] was 0% to Mr Bromfield and 100% to Ms Jordison. This does not comply with the extent of care of [Child 1] that Mr Bromfield and Ms Jordison should have had or are to have under the court order.
Paragraph 51(1)(c) is therefore satisfied.
As regards whether Mr Bromfield is taking reasonable action to ensure that the court order is complied with, the term reasonable action is not defined in the Act. The Explanatory Memorandum to the Bill for the legislation that introduced section 51, referring to reasonable action, states:
For example, a parent may be negotiating with the other parent to have a care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.
The Guide, at Chapter 2.2.4, provides guidance as follows:
The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:
·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement
·making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to
·seeking or obtaining legal advice regarding the making of a court order
·filing an application to a court to have an order made or enforced
·attending a hearing at court to seek an order to be made or enforced, or
·notifying the police that the child has been taken without consent.
This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:
·a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative
·documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or
·documentation of police or court action.
Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was no made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child.

Based on the evidence before it and as canvassed earlier in these Reasons at paragraph 30, when the child was not returned to his care, Mr Bromfield took immediate action to recover her and continued a series of actions only restricted by not knowing the whereabouts of Ms Jordison and his daughter. These actions included asking the police to conduct welfare checks[1], attempting to communicate with Ms Jordison[2] and having his lawyer send Ms Jordison a letter[3] stating that the court order was being contravened and asking that [Child 1] be returned. He also requested mediation and was provided with a certificate to show he attempted Family Dispute Resolution so as to apply to the court[4]. Mr Bromfield was not immediately able to apply to the court because Ms Jordison and [Child 1] had disappeared and he first had to apply to the court for a location order so that the court documents could be served. Mr Bromfield first applied to the court in May 2022 and then again in June 2022.
[1] See page 152 of the hearing papers which confirms such welfare checks were conducted on 14 September 2021, 5 November 2021 and 11 November 2021
[2] Pages 161 to 164
[3] Pages 170 to 172
[4] Page 173
The Tribunal is therefore satisfied that Mr Bromfield has taken reasonable action, and is continuing to take reasonable action, to ensure that the care arrangement is complied with since the change of care on 6 September 2021. Paragraph 51(1)(d) is therefore satisfied.
The requirements of subsection 51(1) having all been satisfied. Subsection 51(2) requires Child Support to make and apply two percentages of care to the child support case for each person. The first percentage of care reflects the care that should have been provided pursuant to the care arrangement (subsection 51(3)). Such a decision is called an interim care determination and it applies for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (the interim period). The second percentage of care reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)).
Essentially, the application of section 51 for child support assessment purposes results in the percentages of care reflecting the care arrangement as specified under a breached care arrangement staying in place during an interim period and percentages of care reflecting the actual care occurring applying afterwards.
Having determined that an interim period must apply in this matter, the Tribunal considered the duration of the interim period.
Pursuant to paragraph 53A(1)(a), an interim period will usually begin on the change of care day unless an earlier interim period is required to also be taken into account.
Pursuant to paragraph 53A(1)(b), the end date and therefore the length of the interim period depends on a number of factors, including whether or not the previous care arrangement was a court order, parenting plan or written agreement, and in some circumstances also whether and when the person with increased care took reasonable action to participate in family dispute resolution.
Having had regard to the evidence, the Tribunal is satisfied that Ms Jordison was not taking reasonable action to participate in family dispute resolution.
The Tribunal has found that the change in care occurred on 6 September 2021 and that care occurring prior to that time was pursuant to a care arrangement, that is a court order dated [in] September 2017.
The interim care period of 26 weeks therefore commenced on 6 September 2021 and ended on 7 March 2022.
Therefore, pursuant to subsection 51(2) and section 54C, the first percentage of care of the child for Mr Bromfield is 65%, applying from 1 December 2018 to the end of the interim period, and the second percentage of care of the child for Mr Bromfield is 0%, applying after the end of the interim period.
As to the date of application of the two percentages of care for Ms Jordison, there is an anomaly in the legislation. Pursuant to paragraph 54F(3)(b) of the Act, the date of revocation of the 35% percentage of care determination to Ms Jordison is 1 May 2022. Pursuant to section 54B, the existing determination of 35% therefore has effect in the child support assessment until that date. However, section 54C provides that where new care determinations have been made pursuant to subsection 51(2), the first percentage applies on each day that occurs in the “interim period for the determination”, and the second percentage applies on each day that does not occur in the “interim period for the determination”. The interim period for the determination is the period defined in section 53A, and in this case is the period beginning 6 September 2021 and ending on 7 March 2022 as set out above. Therefore, pursuant to section 54C the date of application of the 100% percentage of care for Ms Jordison is from the day after the end of the interim period, 8 March 2022.
The effect of the two sections appears to be in conflict. The Child Support Registrar’s submissions suggest, and the Tribunal accepts, that there is no provision in the legislation that would prevent section 51 applying in relation to the new care determination for Ms Jordison. The Tribunal can see no other obvious mechanism in the legislation for resolving the apparent conflict. However, it is not possible for two different care determinations to apply in the child support assessment at the same time. In the Tribunal’s view, it is unlikely that the intention of the legislation was that a parent with increased care who had failed to notify the child support registrar of a change of care in a timely manner would have the benefit circumventing the provisions in subparagraph 54F(3)(b)(i) in a situation where the parent was in contravention of a care arrangement. The Tribunal’s view is therefore that the preferable decision is that the new percentage of care determination of 100% to Ms Jordison applies from the date of notification of the change in care, 2 May 2022.
The Tribunal therefore finds that existing care determination for Ms Jordison of 35% will continue to apply in the assessment until 1 May 2022. The determination made pursuant to subsection 51(4) of 100% applies from 2 May 2022.
As the Tribunal has found that an interim period applies it is not necessary to consider the further identified issues.

Conclusion

As this decision is different to the decision reached by the objections officer, the decision under review will be set aside and a new decision substituted as detailed in the table below:

5 September 2021

FROM

6 September 2021

FROM

7 March 2022

FROM

2 May 2022

Mr Bromfield

65%

(actual care 0%)

Ms Jordison

35%

(actual care 100%)

35%

(actual care 100%)

100%

OTHER MATTERS

As already noted, the legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to Child Support of such changes, and Child Support is then tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision.
The Tribunal acknowledges Mr Bromfield’s concerns about how this matter has been dealt with by Child Support. However, the Tribunal is bound to apply the legislative provisions as enacted. As discussed with Mr Bromfield at hearing, the Tribunal on review is limited to reviewing the decision before it and has no role to play in relation to Child Support’s processes. Mr Bromfield is at liberty to pursue other avenues in that regard if he so chooses.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

The existing percentage of care for Mr Bromfield is revoked on 5 September 2021. The first percentage of care of the child for Mr Bromfield is 65%, applying from 6 September 2021 to the end of the interim period (7 March 2022), and the second percentage of care of the child for Mr Bromfield is 0%, applying after the end of the interim period.

The existing percentage of care for Ms Jordison is revoked on 1 May 2022, and a new care determination of 100% applies from 2 May 2022.

[2023] AATA 3296

14 June 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction

Appeal