Castle and Jonas (Child support)

[2022] AATA 1702

Castle and Jonas (Child support) [2022] AATA 1702 (19 April 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022484

APPLICANT:  Mr Castle

OTHER PARTIES:  Child Support Registrar

Ms Jonas

TRIBUNAL:Member P Jensen

DECISION DATE:  19 April 2022

DECISION:

The decisions under review are 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 interim period applies after the maximum interim period of determination – 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

1. Mr Castle and Ms Jonas are the parents of [Child 1] and [Child 2]. A child support case was registered in February 2013 with what is commonly called the Child Support Agency or CSA. From August 2013, Mr Castle was recorded as providing 27% care and Ms Jonas was recorded as providing 73% care for the children. Court orders were made in August 2015 concerning the parents’ care of the children. In the absence of an agreement to the contrary, Mr Castle was to provide care for two nights per fortnight and for one half of all school holidays. The CSA continued to record Mr Castle as providing 27% care and Ms Jonas as providing 73% care.

2. On 17 May 2021, Ms Jonas informed the CSA of changes in care that occurred on 28 September 2019. The CSA decided to record Mr Castle as providing 8% care for [Child 1] and 0% care for [Child 2] with effect from 28 September 2019, and Ms Jonas as providing 92% care for [Child 1] and 100% care for [Child 2] with effect from 17 May 2021. Mr Castle objected to those decisions. An objections officer disallowed the objections. Mr Castle applied to the Tribunal for further review. I heard the matter on 8 April 2022. Mr Castle and Ms Jonas gave sworn evidence via a Teams conference call.

3. Both parents agreed that the CSA’s decisions fairly reflected Mr Castle’s actual care for [Child 1] and [Child 2] from 28 September 2019. Mr Castle stated that he had attempted to provide his court-ordered care but Ms Jonas had prevented him from doing so. Ms Jonas denied that she had prevented Mr Castle from providing his court-ordered care.

4. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (“the Act”). They involve the revocation of the existing care determinations (which in this case were the determinations to record Mr Castle as providing 27% care and Ms Jonas as providing 73% care) and the making of new care determinations. New care determinations usually reflect the parents’ actual patterns of care. However, in certain circumstances and for a limited period, parents can be recorded as providing the care prescribed by a care arrangement such as a court order rather than the care that was actually being provided.[1] Such care determinations are called interim determinations and they are made pursuant to section 51 of the Act.

   [1]The term “care arrangement” is defined in section 5 of the Act.

5. Returning to the revocation of the existing care determinations, the starting point is section 54G of the Act. It contains a number of requirements, one of which is that the parent with increased care reported the change in care within a period that was reasonable in the circumstances. Ms Jonas explained that she did not promptly report the changes in care because she did not want to start a potential dispute. She said the changes in care only came to the CSA’s attention when she contacted it about another matter. She did not report the changes in care within a reasonable period. Section 54G is not satisfied.
   Section 54F of the Act also provides for the revocation of existing care determinations. Subsections 54F(1) and (2) state:

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

   (1)The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care ) for a child made under section 49 or 50 if:

   (a)the Registrar or 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

   (b)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

   (c)section 54G does not apply; and

   (d)subsection (2) applies in relation to the individual.

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

   (2)This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)all of the following apply:

   (i)section 51 did apply in relation to the responsible person;

   (ii)the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;

   (iii)an interim period does not currently apply in relation to the earlier determination;

   (iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note: For when section 51 does not apply, see section 53.

6. Paragraphs 54F(1)(a) to (c) are clearly satisfied in the current case. Subparagraph 54F(2)(c)(iv) suggests that references in subsection 54F(2) to “section 51 did not apply” and “section 51 did apply” are references to whether interim determinations had actually been made, rather than merely references to whether the requirements of section 51 were satisfied, although the issue is debateable. However, on either interpretation, paragraph 54F(1)(d) is satisfied in the current case.[2] The existing care determinations to record Mr Castle as providing 27% care and Ms Jonas as providing 73% must be revoked pursuant to section 54F.

   [2]The term “maximum interim period” is defined in section 53A of the Act. If section 51 did apply in the current case, the maximum interim period would have started on 28 September 2019 and it would have ended 26 weeks later on 28 March 2020: item 2 of section 53A of the Act.

7. Subsection 54F(3) states:

   The revocation of the [existing care] determination takes effect at the end of: 

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the [change in care] within 28 days after the change of care day for the responsible person--the day before the change of care day; or 

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that [change in care] more than 28 days after the change of care day for the responsible person and: 

   (i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or 

(ii)the responsible person's care of the child has reduced--the day before the change of care day.

1. Given the delay in the reporting of the changes in care, the revocation of Mr Castle’s existing care determinations took effect at the end of the day before the changes in care occurred: subparagraph 54F(3)(b)(ii). The revocation of Ms Jonas’ existing care determinations took effect at the end of the day before the CSA was notified of the changes in care: subparagraph 54F(3)(b)(i). The CSA made new care determinations regarding the care of [Child 2] pursuant to section 49 of the Act and the care of [Child 1] pursuant to section 50 of the Act. The CSA concluded that Mr Castle was not taking reasonable action to ensure compliance with the court order and therefore section 51 did not apply. The new care determinations had effect from the day after the revocation of the relevant old care determinations: subsection 54B(1A) and subparagraph 54B(2)(c)(ii) of the Act. It was for those reasons that the CSA made the decisions that are currently under review.

2. Subsection 51(1) of the Act states:

   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)This section applies if:

   (a)the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and

   (b)a care arrangement applies in relation to the child; and

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

Note: This section does not apply in certain circumstances: see section 53.

1. Having heard from the parents, I find that Mr Castle was taking reasonable action to ensure compliance with the court order. He could have taken additional action, but that is beside the point. Paragraphs 51(1)(a) to (d) were satisfied. The question then arises as to whether interim determinations can still be made pursuant to section 51 notwithstanding the parents’ delay in reporting the changes in care.

2. Section 53 of the Act states:

   Section 51 does not apply in certain circumstances

   (1)Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:

   (a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination--the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or

   (b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination--the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or

   (c)the Registrar has revoked the determination under section 54F or 54H.

   (2)Section 51 also does not apply in relation to a responsible person in relation to whom a determination (a later determination) has been made under section 49 or 50 if:

   (a)an earlier determination determined the responsible person's percentage of care for a child under that section for the purposes of subsections 51(3) and (4); and

   (b)the later determination is made after the end of the maximum interim period for the earlier determination; and

   (c)the later determination relates to the same care arrangement as the earlier determination.

3. Paragraphs 53(1)(a) and (b) concern applications to register child support cases. They effectively provide that if the requirements of section 51 were satisfied prior to the application to register the child support case but the maximum interim period for any such interim determination would have expired, section 51 does not apply.

4. Subsection 53(2) concerns the situation where interim determinations were made in respect of a care arrangement, the maximum interim period of those interim determinations has ended, a decision-maker is making a new care decision and the new care decision relates to the same care arrangement. In those circumstances, section 51 does not apply.

5. On an initial reading of paragraph 53(1)(c), there is no scope, or almost no scope, to ever make interim determinations once a child support case has commenced. Existing care determinations can only be revoked pursuant to section 54F, 54G or 54H of the Act, and paragraph 53(1)(c) appears to prevent the making of interim determinations if the existing determinations have been revoked pursuant to section 54F or 54H. That leaves section 54G. However, section 54G includes requirements that a parent was to have at least 14% care of a child but is actually having less than 14% care despite the other parent making the child available. Section 51 is concerned with situations where one parent is having less than their prescribed level of care despite taking reasonable action to have their prescribed level of care. Interpreting paragraph 53(1)(c) according to that initial reading would lead to a result that is manifestly absurd.

6. Having considered the provisions at length, it appears, with respect, that the Legislature inadvertently omitted to include the following words at the end of paragraph 53(1)(c): “the Registrar has revoked the determination under section 54F or 54H after the end of the maximum interim period for the determination” (“the proposed interpretation”).

7. The proposed interpretation would result in section 53 expressing a consistent legislative intent: if an interim determination could have been made or was made in respect of the relevant care arrangement but the maximum interim period would have ended or has ended, then section 51 does not apply in respect of the care decision that is currently being made.

8. The proposed interpretation is also supported by the Explanatory Memorandum to The Family Assistance and Child Support Legislation Amendment (Protecting Children) Bill 2017 which resulted in the current section 53 being enacted. It is appropriate to have regard to the Explanatory Memorandum: subparagraph 15AB(1)(b)(ii) and paragraph 15AB(2)(e) of the Acts Interpretation Act 1901. It relevantly states, with underlining added:

   Item 31 also replaces section 53. New section 53 incorporates the concept of a “maximum interim period” rather than the 14‑week interim period that is currently in section 53. Current subsection 53(1) provides that section 51 does not apply if certain events in relation to the determination of a responsible person’s percentage of care for a child occur 14 weeks or more after the change of care day. New subsection 53(1) provides similarly but in relation to those events occurring after the end of the maximum interim period. This recognises that the maximum interim period may be different depending on the time that has elapsed since the change of care day, and the nature of the care arrangement.

   New subsection 53(1) also takes the maximum interim period into account, so that section 51 does not apply in cases where the Registrar has revoked a determination of a responsible person’s percentage of care for the child, under section 54F or 54H.

   New subsection 53(2) further provides that section 51 does not apply in relation to a responsible person in relation to whom a determination has been made under section 49 or 50, if an earlier determination determined the responsible person’s percentage of care for the purposes of subsections 51(3) and 51(4), the later determination is made after the end of the maximum interim period for the determination, and the later determination relates to the same care arrangement as the earlier determination.

9. The second paragraph of that quote is a reference to paragraph 53(1)(c), but on an initial reading of paragraph 53(1)(c), it does not take the maximum interim period into account, whereas the proposed interpretation would.

10. On the question of whether it is ever permissible to read additional words into a statutory provision, the High Court has stated:[3]

    The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills "gaps disclosed in legislation" or makes an insertion which is "too big, or too much at variance with the language in fact used by the legislature".

    [3]Taylor v Owners - Strata Plan No 11564 (2014) 253 CLR 531 per French CJ, Crennan and Bell JJ at paragraph 38, with footnotes omitted.

11. The proposed interpretation would avoid a manifestly absurd result. It would give effect to the legislative intent as expressed in the Explanatory Memorandum and as can be discerned from a broader reading of the provisions that deal with the making of care decisions. I consider it to be the preferrable interpretation. Paragraph 53(1)(c) therefore provides that section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if the Registrar has revoked the determination under section 54F or 54H after the end of the maximum interim period for the determination. When the original care decision was made in the current case, the existing care determinations which recorded Mr Castle as providing 27% care and Ms Jonas as providing 73% care were revoked pursuant to section 54F, new care determinations were to be made pursuant to sections 49 and 50, and the maximum interim period of any potential interim determination had ended. Section 51 does not apply: paragraph 53(1)(c). The decision under review is correct.

DECISION

The decisions under review are affirmed.