Brower and Dearborn (Child support)

[2021] AATA 696

Brower and Dearborn (Child support) [2021] AATA 696 (4 February 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC020142

APPLICANT:  Mr Brower

OTHER PARTIES:  Child Support Registrar

Ms Dearborn

TRIBUNAL:Member M Martellotta

DECISION DATE:  04 February 2021

DECISION:

The decision under review is affirmed.

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 – whether reasonable action taken by parent with reduced care – whether an interim period should apply – 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 Brower and Ms Dearborn are the parents of a child[1] who is a child of an administrative assessment for child support. This review is about the level of care relating to that child.

   [1] DOB 21 April 2008. There is also another child but this review does not concern his level of care.

2. There has been an active child support assessment in place since 5 June 2016.

3. Family Court orders relevant to the child’s care were made on 9 August 2017. Based upon those orders, the percentage of care recorded by Services Australia – Child Support (the Agency) was that as from 30 January 2018 Ms Dearborn had 290 nights of care (80%) and Mr Brower had 75 nights care (20%).[2]

   [2] As from 2018 the mother and children resided in Victoria and the father in South Australia; this was anticipated in the Court orders.

4. On 11 March 2020, Ms Dearborn advised the Agency that there had been a change in care for the child in that the father had not provided overnight care of the child since the child refused to visit his father on 7 June 2019. She also advised that Mr Brower had not sought care since then in accordance with the orders.

5. On 20 March 2020 Mr Brower confirmed with the Agency that the child was in the mother’s full-time overnight care but that this was in contravention of the Court orders and he was taking action.

6. On 20 March 2020 the Agency decided to change the percentage of care recorded to reflect that Ms Dearborn had 100% care and Mr Brower had 0% care as of 7 June 2019. The Agency applied the change of care percentage for Ms Dearborn as from 11 March 2020 (date of notification) and the change of care percentage for Mr Brower from 7 June 2019 (the date of event).

7. On 23 March 2020 Mr Brower objected to the decision. On 22 October 2020 the Agency disallowed the objection. Mr Brower lodged his application with the tribunal on 29 October 2020.

8. The tribunal held a hearing on 4 February 2021. Mr Brower and Ms Dearborn each appeared by conference telephone and gave evidence on affirmation.  The Agency provided documents relevant to their decision (216 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[3]

   [3] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The main issues which arise in this case are:

• Should the existing care determination be revoked and if so, from when?

• Should a new determination of care percentage be made and if so, from what date?

CONSIDERATION

Issue 1 – Should the existing care determination be revoked and if so from when?

1. Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.  The percentage of care so determined must be a percentage that corresponds with the actual care of the child.  Section 51 deals with situations in which the care arrangement is not being complied with. 

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care.  A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

Mr Brower

1. Mr Brower submits that the objection decision is wrong because it should have applied an interim determination of 26 weeks under section 51 of the Act from 7June 2019; he says another interim determination should apply from 7 September 2019. He said section 51 of the Act ought to have applied in this matter and that section 53 of the Act as applied by the Agency is irrelevant.

2. Subsection 51(5) refers to special circumstances; Mr Brower does not agree that there is evidence to support a finding of special circumstances to avoid the application of an interim period.  That evidence provided by a treating psychologist included in the papers was superseded by a similar letter which was provided at the Court’s request and was more impartial.

3. He does not understand why the Agency took the view that he had not provided evidence of taking reasonable action to enforce the Court orders given the details provided of letters between the lawyers and the mediation certificate.

4. In support of his submissions Mr Brower provided the following evidence:

   a)The Court orders in this matter allowed for him to have 20% care in circumstances where he was living in South Australia.  However, when he moved to Melbourne in September 2019 the orders increased his level of care to 28%. There was a dispute between himself and Ms Dearborn as to whether that part of the orders was triggered as she did not accept that he had moved.

   b)He does have a complicated existence due to his work so he spends a lot of time in South Australia and rural Melbourne so often he is not in Melbourne but the key thing is that he would ensure he was available in Melbourne if the orders were being followed.

   c)He did not apply for recovery orders but did commence other proceedings to have the existing Court orders changed on the basis of showing a significant change in circumstances. That application did not meet the relevant threshold and was abandoned.

   d)From the time the orders were made until January 2018 the orders which applied when both he and Ms Dearborn were in the same state were being followed.  When Ms Dearborn moved to Melbourne in early 2018 then the part of the orders relevant to that arrangement came into effect and were being followed.

   e)There was a change in care on 7 June 2019. At this point in time he was in Adelaide and Ms Dearborn was in Melbourne.  The child was meant to travel to Adelaide to visit him, however, the child became highly anxious which resulted in Ms Dearborn taking him to [a] Hospital and on their assessment, it was determined that the child should not visit his father.

   f)He received a phone call from the paediatrician advising him of the situation.  From that time due to the child’s anxiety Mr Brower tried to negotiate new arrangements by trying to spend time with the child when he was in Melbourne. He agrees that since 7 June 2019 the Court orders were not being followed.

   g)Since June 2019, however, he has been attempting to negotiate a care arrangement that would accommodate the child’s needs and lessen his anxiety. This included him contacting Ms Dearborn by email or by correspondence through their lawyers.  He offered to visit the child when he travelled to Melbourne but did not see him until September 2019 when the child came out on an outing.  He otherwise would have seen him on four or five occasions for 15-minute periods.

   h)Between September – November 2019 there were letters exchanged through their lawyers concerning the issue of whether Mr Brower had moved to Melbourne and if so if this had triggered that part of the orders which applied when the parents were living in the same state.

   i)He considered taking out a contravention application in the Family Court but for a range of reasons he did not proceed with that.  In terms of trying to make alternative care arrangements he would attempt to reach out on an ad hoc basis by email.

   j)Whilst he agrees that his overnight contact was not happening because of his son’s anxiety and it was his decision, he also believes to some extent the child was influenced by his mother in this regard.

   k)He subsequently attempted mediation through Relationships Australia.  An appointment was made in May 2020, however, the session never happened as Ms Dearborn declined to attend.

   l)In more recent times whilst he still does not have overnight contact, there are gradual steps of himself and the child having some contact.  The child is now 15 years of age and is the person deciding when he has contact with his father.

Ms Dearborn

1. Ms Dearborn told the tribunal that the objection decision was the right decision.  She does not really understand what Mr Brower is seeking in terms of how an interim period and how that can apply post the fact.  Her evidence was as follows:

   a)She does not accept that Mr Brower’s attempts can be characterised as taking reasonable action.  His actions need to be viewed in the context of family violence which has been heavily litigated. She questions the motivations of Mr Brower’s actions. The circumstances are complex.

   b)A letter provided by [the] Hospital in August 2019 should be given weight and seen as a true representation of the child’s state of mental health and the causes of his mental health distress.

   c)The child has not had overnight access with his father in accordance with the Court orders since 7 June 2019.  Mr Brower never presented an alternative plan, she in-fact contacted Mr Brower by email, and he advised he did not know what was best.

   d)The child at the time was 14/15 years of age and making his own decisions.  He had attending the Child and Adolescent Mental Health Service (CAMHS) for some time.

   e)She did not contact the Agency earlier to advise them of the change in care due to the litigation that was on foot at the time and she did not want to put any more pressure into the pot as there were always repercussions.  Mr Brower had made an unsuccessful application to have the 2017 orders changed and there were also property settlement proceedings on foot.

   f)She received the invitation to attend a mediation from Relationships Australia, but she was concerned about Mr Brower’s motivation and for this reason declined.

   g)There has been very limited contact between the child and his father.  Any decision to make contact is up to the child.

2. Documents provided by the Agency include the following relevant materials:

   a)Family Court orders dated 9 August 2017.

   b)Letter dated 28 August 2019 signed by senior clinical psychologist, [Ms A] and a child and adolescent psychiatrist, [Dr B] advising that the child had been attending [the] Hospital CAMHS for seven months.  He presented with symptoms consistent with depression and anxiety which amongst other things have resulted in the child struggling to leave home and having limited face to face contact with his father.  The child has been impacted by acrimony and reported family violence and that it was not in the child’s best interest to continue to be exposed to the acrimony and insecurity.

   c)Email dated 7 June 2019 from Mr Brower to Ms Dearborn noting that the plan for the children to visit their father had been ‘stopped by the crisis’ and asking if Ms Dearborn had any ideas of how weekends might work ‘if he is not going to come to Adelaide, would you be willing for me to spend time with him or both…in Melbourne’?[4]

   d)Email from Mr Brower to Ms Dearborn dated 9 September 2019 advising of a new address in Melbourne proposing that the orders which relate to circumstances in which both parents are in the same state commence and proposing pattern of care dates.

   e)Correspondence between Ms Dearborn’s and Mr Brower’s lawyers regarding Mr Brower’s assertions that he had moved to Melbourne (dated 20, 24, 25 and 26 September and 16 October 2019). Mr Brower’s lawyers letter of 29 October 2019 refers to Mr Brower taking action to have the Court orders changed so that the children relocate back to Adelaide. Further legal correspondence dated 1 and 15 November 2019 referring to care of the children.

   f)Email correspondence between the parties dated 11 and 12 December 2019 and 30 April 2020. These appear to confirm that the child was having limited contact with his father.

   g)Section 601 Certificate dated 9 July 2020 noting that Mr Brower did not attend a scheduled mediation due to the refusal or failure of Ms Dearborn to attend.

   [4] Page 130

3. In this matter the parties agree, and the tribunal finds that:

   a)Pursuant to Family Court orders dated 9 August 2017 there was a care arrangement in place whereby when the parents were residing in the same state Mr Brower would have 28% care and Ms Dearborn 72% care and when they were not in the same state Ms Dearborn had 80% care and Mr Brower had 20% care.

   b)The parents were following those Court orders.

   c)As from 7 June 2019 Mr Brower ceased to have any overnight care of the child. From that date Ms Dearborn had 100% care of the child and Mr Brower had 0% care of the child.

   d)On 7 June 2019 Mr Brower emailed Ms Dearborn to ask about alternative arrangements for contact with the child.

   e)On 9 September 2019 Mr Brower emailed Ms Dearborn to suggest a pattern of care based upon him relocating to Melbourne.

   f)Mr Brower and Ms Dearborn both engaged lawyers to correspond regarding disagreement regarding the veracity of Mr Brower’s relocation and noting proceedings in the Federal Circuit Court in which Mr Brower was seeking a review of the 2017 Family Court orders.

   g)On 11 March 2020 Ms Dearborn advised the Agency of the change in care.

   h)On 9 July 2020 a section 601 Certificate confirms that a proposed mediation session did not proceed due to Ms Dearborn declining to participate.

4. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change of care arrangement.  The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.  The tribunal’s task on review is the same.

5. The first issue concerns the revocation of the existing care determination that was in place. The tribunal first is required to consider whether the existing determination is to be revoked under section 54G of the Act.  This provision applies where:

• a parent was to have at least regular care of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

• the other parent must have had their existing percentage of care determined under section 50; and

• the other parent must notify the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.

1. In this case the tribunal concluded that the existing care cannot be revoked under this section because of the delay in Ms Dearborn advising the Agency about the change in care.[5]

   [5] In this regard the Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (the Amending Act) states that: ‘Generally, a reasonable period will be if the Registrar or Family Assistance Secretary is notified within 28 days of the other responsible person becoming aware that the first responsible person never established the pattern of at least regular care, or that that person ceased their previously established pattern of care’.

2. The tribunal next considered if the existing determination is to be revoked under section 54F of the Act.[6] This requires that:

   • the existing percentage of care has been determined under either section 49 or 50;
   • one of the conditions in paragraphs 54F(2)(a-c) apply;
   • the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the determination;
   • if a new percentage were to be determined under either section 49 or 50, it would change the person’s cost percentage; and 
   • section 54G does not apply.

   [6] The tribunal is satisfied that in this matter, legislative amendments introduced on 1 July 2018 apply.

3. In this matter the tribunal is satisfied that the criteria in section 54F are met; this is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application as there was not an interim period in place, the notification of change in care was that actual care was not corresponding with care as determined, the change in care would affect the relevant cost percentage[7] and section 54G does not apply.

   [7] The change in care from 20% to 0% results in the cost percentage changing from 24% to nil.

4. Revocation takes effect pursuant to subsection 54F(3) of the Act which is determined by when the Agency was advised of the change in care.  Where, as in this case, the notification is more than 28 days after the change in care then the date of revocation for the person whose care has increased (Ms Dearborn) – the revocation takes effect the day before the notification, which is 10 March 2020. For the person whose care has decreased (Mr Brower) the revocation takes effect the day before the change of care day which is 6 June 2019.[8]

   [8] Subparagraphs 54F(3)(b)(i) and (ii) of the Act.

5. In this matter the existing care determination of 20% care to Mr Brower is revoked from 6 June 2019 and the existing care determination of 80% care to Ms Dearborn is revoked from 10 March 2020.

Issue 2 – Should a new determination of care percentage be made and if so, from what date?

1. Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.

2. Mr Brower submits that this is a case in which an interim care determination should apply As noted, this arises where there is a care arrangement in place and one of the parents is not complying with that arrangement. In this matter the tribunal has found that the parents were exercising care in accordance with Family Court orders and as such there was a relevant care arrangement in place. The tribunal also found that there was a change in care on 7 June 2019 and that the Agency was advised of this event on 11 March 2020.

3. Section 51 of the Act provides for situations where a person with reduced care is taking reasonable action to ensure that the care arrangement is complied with. Reasonable action is not defined in the legislation and explanatory memorandum of the provisions notes: ‘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’.[9]

   [9] Op cit.

4. In this case the tribunal is satisfied that there is evidence of Mr Brower taking reasonable action to ensure care arrangements were complied with.  This took the form of his email on 7 June 2019 when he became aware that due to the child’s mental health that the child would not be travelling to Adelaide; there is also evidence of correspondence between the lawyers arguing about the terms of the Family Court orders and Mr Brower also approached Relationships Australia.[10]

   [10] Initial attempts were made before the original decision made on 20 March 2020 that an interim period did not apply.

1. Where it is determined that reasonable action has been taken then two percentages of care are to be determined, however, the legislation does provide the decision maker with the discretion to determine that a single percentage of care should apply despite a parent taking reasonable action if satisfied that special circumstances exist in relation to the child.

2. Subsection 51(5) of the Act provides a discretion to not apply an interim period and to instead base the determination upon actual care that is occurring.  According to the Guide such circumstances can include matters that relate to the child directly or to another individual. The tribunal is not limited to consideration of examples provided in the Guide.[11]

   [11] 2.2.4 of the Guide

3. In this matter the tribunal on the presented evidence formed the view that this was a case in which the Court orders ceased to be followed not due to the actions of either parent but due to significant mental health issues being experienced by the child.

4. Whilst at various points in discussions with the Agency Mr Brower stated that Ms Dearborn was ‘in breach of the orders’ he also acknowledged in his evidence to the tribunal that whilst he felt that Ms Dearborn could have ‘done more’ he agreed that the change in care was ultimately due to the child’s own decision making and due to the child’s state of mental health.  As he noted in evidence, the child was not like other young people his age; he had been experiencing significant levels of separation anxiety which had impacted upon his willingness to leave his home.

5. Both parents in their evidence were in agreement that their son has been experiencing significant mental health issues.  Whilst they may disagree over the trigger or cause of that distress neither party disagreed that their son’s refusal was a very significant factor in the Court orders not being followed in relation to that child.

6. Ms Dearborn was clear in her evidence that the child is the person who is making the decision not to see his father.  The tribunal was not presented with any probative evidence that she was preventing contact between the child and Mr Brower. Mr Brower’s own email to Ms Dearborn on 7 June 2019 that the plan for Ms Dearborn to drive the children to visit him had been prevented by the child’s state of health appears to confirm that up until that event contact was happening in accordance with the orders.  Mr Brower acknowledged that on that date he received a call from the child’s medical specialist advising that it was not in the child’s best interest to travel.

7. Apart from the parents’ evidence, independent medical evidence provided by [the] Hospital, Melbourne, both at the request of Ms Dearborn and the Family Court in subsequent proceedings[12] confirms that the child has a history of anxiety with the likely precipitants being the separation of his parents and the acrimony between them which followed.[13]  The child’s distress according to the medical evidence has been manifested (amongst other things) in his reluctance to leave the family home.

   [12] Pages 76 and 138 (extract of report provided by Mr Brower)

   [13] Page 138

8. In the tribunal’s view the level of mental health distress experienced by the child which resulted in the ‘crisis’ of 7 June 2019 and which then resulted in the child not engaging in the level of care as specified in the Court orders is a special circumstance which warrants exercise of the discretion. The tribunal concluded that on the particular facts of this matter there are special circumstances which warrant the non-application of an interim period and on that basis decided that the assessment should reflect the care percentage based on the actual care that occurred.

9. The tribunal has concluded that an interim care determination is not to be applied. The tribunal concluded that the new care determination is to be based on actual care pursuant to sections 49 and 50 of the Act. In this matter on the evidence for the care period commencing 7 June 2019 Mr Brower has had nil nights of care and Ms Dearborn has had 365 nights of care.

10. Where (as in this case) an existing care determination has been revoked, a new determination of care where a person has had or likely to have no pattern of care is provided for under paragraph 49(1)(b) of the Act.  In this case, based upon the agreed evidence Mr Brower has had no care of the children since 7 June 2019 and that situation remains unchanged. Where a person will have a pattern of care the new care determination is made pursuant to paragraph 50(1)(b) of the Act; as noted, Ms Dearborn has had 100% care since 7 June 2019.

11. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. In this matter the existing care determination of 20% care to Mr Brower is revoked from 6 June 2019 and the existing care determination of 80% care to Ms Dearborn is revoked from 10 March 2020. This means that for Mr Brower the new care determination of 0% takes effect 7 June 2019 and the new care determination of 100% for Ms Dearborn takes effect from 11 March 2020.

12. This is the same outcome (albeit for different reasons) as reached by the Agency in their decision.

DECISION

The decision under review is affirmed.