Cherrill and Boris (Child support)

[2022] AATA 5043

Cherrill and Boris (Child support) [2022] AATA 5043 (28 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024640

APPLICANT:  Ms Cherrill

OTHER PARTIES:  Child Support Registrar

Mr Boris

TRIBUNAL:Member J Prentice

DECISION DATE:  28 December 2022

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 – decision under review affirmed

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. As relevant to this application, Ms Cherrill and Mr Boris are parties to a child support case registered with Services Australia – the Child Support Agency (the CSA) in relation to financial support to be provided for [Child 1] (born April 2008) and [Child 2] (born [in] January 2011). This application concerns a single decision of the CSA about the recorded care for [Child 1] only.

2. From 28 February 2022, the pre-existing percentages of care applying in the child support case for [Child 1] were 58% to Ms Cherrill and 42% to Mr Boris.

3. On 30 May 2022, Mr Boris lodged an online change of care advice with the CSA and advised a change to the care position of [Child 1] from 11 May 2022 stating that he had 100% care of [Child 1].

4. On 3 June 2022, the CSA decided to revoke the pre-existing percentage of care determinations and record new percentage of care determinations of 0% to Ms Cherrill and 100% to Mr Boris from 11 May 2022.

5. On 18 July 2022, Ms Cherrill objected to this decision and, on 5 September 2022, a CSA objections officer disallowed the objection.

1. On 12 September 2022, Ms Cherrill lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating (unedited but with redactions):

   The decision made was based on the fact below:

   "In response to [Ms Cherrill]’s objection, [Mr Boris] reported that he has 100% care of [Child 1]

   because she asked him if he can pick her up from [Ms Cherrill] and stay with him."

   The fact is [Mr Boris] lied to and manipulated [Child 1] to get that result, he told [Child 1]

   that I was …. …. during my relationship with him, and destroyed her trust with

   me prior to [Child 1] asking to stay with him. He alienated [Child 1] against me while

   [Child 1] was staying with him. I only found out the real reason [Child 1] ran away during

   my email exchanges with [Mr Boris] in June 2022. [Mr Boris] is a …… …. and

   he used [Child 1] as a tool to hurt me and gain child support against the family court

   orders, and he continues …. …. …. and pretend it’s her decision, when in

   fact [Child 1] was …. …. …… ….. living with [Mr Boris]. [Mr Boris] did not support [Child 1] to get any counselling during the time she stayed with him, [Child 1] missed school at least one day a week, claimed she was depressed. [Child 1] cut off communications with me for months at a time until the truth came out in June 2022. I have lodged contravention application in February 2022 with the Family Court, the hearing date for the case is 13/12/2022. I have suffered ….. …… ….. …… …… ….. and I had a two year ADVO against …….

   Child Support did not consider the reason why [Child 1] is staying with [Mr Boris] and the

   wellbeing of [Child 1].”

1. The hearing of the application was held on 17 November 2022. Ms Cherrill and Mr Boris both 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.

2. In considering the application, the Tribunal took into account the oral evidence of Ms Cherrill and Mr Boris and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 148). Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Ms Cherrill and Mr Boris which 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

10.  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 Registration Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

11.  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.

12. 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 a pattern of care or no pattern of care for a child during a care period.

13.  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 the CSA 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.

14.  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 the CSA 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.

15.  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.

16.  Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

17. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or 50 of the Act.

18. 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.

19. 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.

20.  The Tribunal notes that on 8 December 2021 the CSA made an interim care decision for a period of 14 weeks to Ms Cherrill to apply the court-ordered care of 75% to Ms Cherrill and 25% to Mr Boris for [Child 1] from 9 October 2021 to 14 January 2022.

ISSUES

21.  It follows that the issues to be determined by the Tribunal are as follows:

(a)Are the pre-existing percentage of care determinations for Ms Cherrill and Mr Boris to be revoked? And, if so,

(b)What are the new percentage of care determinations for Ms Cherrill and Mr Boris? And,

(c)What is the date of application of the revocation of the pre-existing percentage of care determinations and the date of application of the new percentage of care determinations?

CONSIDERATION

22.  Relevant documentation, evidence and information in the CSA’s records includes as follows:

(a)Family Court Consent Orders signed by both parties on 26 July 2018.

(b)On 8 December 2021 the CSA made an interim care decision to apply the court-ordered care for [Child 1] of 75% to Ms Cherrill and 25% to Mr Boris from 9 October 2021 to 14 January 2022.

(c)On 18 July 2022 – Ms Cherrill provided a copy of the “Contravention Application” she had filed with the Court on 3 February 2022.

23.  Ms Cherrill told the Tribunal that she is not disputing that [Child 1] is in the 100% care of Mr Boris, but she is objecting to the CSA decision as she is challenging the reason why and the lack of support [Child 1] is receiving.

24.  Ms Cherrill informed the Tribunal that she is concerned that [Child 1] is not getting the support and help that she needs and she is not attending school and she is subsequently struggling. The Tribunal advised Ms Cherrill that the application before the Tribunal is restricted to reviewing the CSA Decision that [Child 1] is recorded as having been in the 100% care of Mr Boris since 11 May 2022.

25.  Ms Cherrill said that because [Child 1] stayed with her for three nights in the school holidays, Mr Boris should not be able to claim 100% care. The Tribunal discussed with Ms Cherrill that this would likely be considered a one-off event and not be considered as a change in the pattern of care actually occurring for [Child 1].

26.  Ms Cherrill told the Tribunal that Mr Boris’ care of [Child 1] is in contravention of the Court Orders. She said she had attempted mediation with Mr Boris on multiple occasions previously but she considered that because it had been unsuccessful previously she felt there was no point in attempting it this time. Ms Cherrill said she had reached out to [Child 1] but [Child 1] was not interested in returning to her care. However, Miss Cherrill commented that she felt this was because [Child 1] had been told false stories about her. Ms Cherrill noted that the Family Court hearing is still some weeks away.

27.  Mr Boris confirmed to the Tribunal that [Child 1] has been in his 100% care since May 2022. Mr Boris said that he and Ms Cherrill have previously tried mediation and he agrees with Ms Cherrill that there was no point in pursuing mediation.

28.  Mr Boris told the Tribunal that he was “only a bit player” and he feels that the court system is unable to deal with disputes between parents and their children. Mr Boris took objection to the suggestion that he was harbouring [Child 1] when in fact he is just offering her a place to stay as she has made it extremely clear that she has issues with her mother and does not want to be in her mother’s care.

29.  Mr Boris said that since May 2022 (as directed by the Court) he has been advised to facilitate time between [Child 1] and Ms Cherrill and has attempted that on several occasions but each and every time he has made arrangements Ms Cherrill has caused problems and the arrangements did not proceed. Mr Boris commented that in summary he has attempted to facilitate time between [Child 1] and her mother but has met with resistance from both parties and the result is that [Child 1] has been in his 100% care.

30.  As discussed with both parties, the Tribunal notes that [Child 1] is 14 years of age and both parties concede that the teenage years can be a challenging time for parents as children can have a mind of their own about what they want to do and when they want to do it, including in whose care they may choose to be.

31.  The CSA’s records show that the care of [Child 1] has been recorded as:

(a)75% to Ms Cherrill and 25% to Mr Boris from 10 June 2020 to 8 October 2021 in accordance with actual care occurring pursuant to a Court Order dated 26 July 2018;

(b)75% to Ms Cherrill and 25% to Mr Boris from 9 October 2021 to 14 January 2022 continuing the recording of the court-ordered care for an interim period despite actual care then being different to the court-ordered care;

(c)0% to Ms Cherrill and 100% to Mr Boris from 14 January 2022 in accordance with actual care then occurring;

(d)58% to Ms Cherrill and 42% to Mr Boris from 28 February 2022 in accordance with actual care occurring.

1. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 11 May 2022. Further, the Tribunal is satisfied, based on the evidence, that the actual care of [Child 1] from 11 May 2022 was 0% to Ms Cherrill and 100% care to Mr Boris, as notified by Mr Boris on 30 May 2022.The care that was actually taking place of [Child 1] from 11 May 2022 did not correspond with the existing care percentages recorded by the CSA of 58% to Ms Cherrill and 42% to Mr Boris. Section 54G does not apply as care was not being made available. A change in the care percentage determinations from 58% to 0% for Ms Cherrill and from 42% to 100% for Mr Boris would result in a change to the parents’ respective cost percentages.

2. Section 54F applies and requires that the existing care percentages of 58% to Ms Cherrill and 42% to Mr Boris be revoked and new percentage of care determinations be made pursuant to paragraphs 49(1)(b) and 50(1)(b) of the Act.

3. As notification of the 11 May 2022 change in care was made on 30 May 2022, within 28 days of when the change occurred on 11 May 2022, the date of effect of the revocation of the pre-existing percentage of care determination would usually be the day before the care changed, 10 May 2022 (subsection 54F(3)).

4. However, as already noted, pursuant to section 51 of the Act, the framework for determining when new care percentages apply is treated differently where action is taken by the parent with reduced care to ensure that a care arrangement (which includes a court order) in relation to a child is complied with. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

5. The Tribunal has found that new percentage of care determinations are required to be made pursuant to sections 49 and 50 of the Act. Paragraph 51(1)(a) is therefore satisfied.

6. Section 5 of the Act provides that “care arrangement” has the same meaning as in the A New Tax System (Family Assistance) Act 1999. A court order is a care arrangement: section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999. Paragraph 51(1)(b) is therefore satisfied. Consent Orders were signed by both parties on 26 July 2018 and the Tribunal is satisfied that the Court Order continued to be the relevant care arrangement pursuant to which care was meant to occur.

7. Ms Cherrill’s actual care of [Child 1] has been less than as prescribed by the Court Oder since 11 May 2022. Paragraph 51(1)(c) is therefore satisfied.

39.  As regards to whether Ms Cherrill was taking reasonable action to ensure that the care arrangement was 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.

40.  The Guide, at clause 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.

41. The evidence shows that following 11 May 2022, Ms Cherrill was only taking limited action to re-establish the previous care arrangements, with both Ms Cherrill and Mr Boris agreeing at hearing that there was no point in further mediation. However, even if the Tribunal were satisfied that reasonable action was being taken to ensure the care arrangement was being complied with, subsection 53(2) of the Act specifically provides that section 51 does not apply in relation to a determination made under section 49 or section 50 if there was an earlier interim care determination, the later determination is made after the end of the maximum interim period for the earlier determination and the later determination relates to the same care arrangement as the earlier determination.

42.Pursuant to subsection 5(1) of the Act, the term “maximum interim period” is defined for a court order as the period beginning on the change of care day and ending at the later of:

(a)  the period of 52 weeks starting on the day the court order takes effect; or

(b)  the end of the period of 26 weeks starting on the change of care day.

43.An earlier interim period has already been applied in relation to the Court Order of 26 July 2018 with a change of care day of 9 October 2021. It follows that the maximum interim period for the purposes of ascertaining whether subsection 53(2) of the Act prevents the application of section 51 again, is the period beginning 9 October 2021 (the change of care date in relation to the earlier determination) and ending on 8 April 2022 (the end of 26 weeks staring on the change of care date).

44.As determined by the Tribunal the later determination to revoke the pre-existing care determinations and make new percentage of care determinations is to be made on 11 May 2022. As 11 May 2022 is after the end of the maximum interim period, subsection 53(2) applies and section 51 does not apply.

45.What this all means is that because there has been a previous interim care decision in relation to the 26 July 2018 Court Order applied between 9 October 2021 and 14 January 2022; and the new change of care determination is to be made after the maximum interim period that could have applied in relation to the 9 October 2021 change in care; no further interim period can apply where the care can be recorded as the court-ordered care rather than the actual care occurring.

Conclusion

46.  As the decision reached by the Tribunal is the same as that of the objections officer, the decision under review will be affirmed.

OTHER MATTERS

47.  The Tribunal acknowledges Ms Cherrill’s concerns about [Child 1]’s welfare. However, as discussed with Ms Cherrill at hearing, the Tribunal on review is limited to reviewing the decision before it and has no role to play in relation to the CSA’s processes or in relation to making, enforcing or compliance with Court Orders in relation to care. Ms Cherrill is at liberty to pursue other avenues in that regard if she chooses. The Tribunal’s role on review in relation to this application is only to review the care percentages that are recorded for the purposes of the child support case. It has no discretion to exercise in relation to the matters of concern to Ms Cherrill.

DECISION

The decision under review is affirmed.