Clemet and Clemet (Child support)

[2022] AATA 3503

Clemet and Clemet (Child support) [2022] AATA 3503 (15 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023882

APPLICANT:  Mr Clemet

OTHER PARTIES:  Child Support Registrar

Ms Clemet

TRIBUNAL:  Member R King

DECISION DATE:  15 August 2022

DECISION:

The tribunal sets aside the decisions under review, and, pursuant to section 51 of the Child Support (Assessment) Act 1989 (the Assessment Act), determines two percentages of care for both children:

• The first period of care has a duration of 14 weeks from the change of care and reflects the pre-existing care arrangement by which Mr Clemet had 50% of the care of both children and Ms Clemet had 50% of the care of both children (the interim care period).

• The second period of care reflects the actual care following the change of care, which is that Ms Clemet had 100% of the care of both children and Mr Clemet had 0% of the care of both children.

The change of care date for [Child 1] is 18 October 2021 and the change of care date for [Child 2] is 1 November 2021.

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 – parenting plan not complied with - reasonable action taken - 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

1. Mr Clemet and Ms Clemet are the parents of [Child 2] (age 11) and [Child 1] (age 10).  A child support assessment has been in place since 27 July 2020, at which time the care percentages for [Child 2] and [Child 1] were recorded by the Child Support Agency (CSA) as being 50% with Mr Clemet and 50% with Ms Clemet.

2. On 13 November 2021, Ms Clemet contacted the CSA and advised that both children were now in her sole care.

3. After speaking with both parents, on 15 January 2022, the CSA revoked the pre-existing care percentage determination for [Child 1] with effect from 12 October 2021 and replaced it with a care percentage determination that, from 13 October 2021, [Child 1’s] care was 100% with Ms Clemet and 0% with Mr Clemet.  On the same date, the CSA revoked the pre‑existing care percentage determination for [Child 2] with effect from 26 October 2021 and replaced it with a care percentage determination that, from 27 October 2021, [Child 2’s] care was 100% with Ms Clemet and 0% with Mr Clemet.

4. On 15 February 2022, Mr Clemet contacted the CSA and objected to the new care percentage determinations.  He advised that, while the actual care had changed, this was only because Ms Clemet was withholding the children, contrary to a written parenting plan.

5. On 21 April 2022, after speaking with both parents and considering further documentary evidence provided by both parents, an objections officer partly allowed the objection.  The objections officer changed the date of effect of the care percentage determination for [Child 1] to 18 October 2021 and changed the date of effect of the care percentage determination for [Child 2] to 1 November 2021.  The objections officer noted a signed parenting plan, dated 25 June 2020, but was not satisfied that it constituted a written care arrangement for child support purposes.  This meant that there was no basis for the determination of an interim care period.

6. On 12 May 2022 (within 28 days of receiving the objection decision), Mr Clemet applied to the tribunal for review of the care percentage decisions for [Child 2] and [Child 1]. Ms Clemet was added as a party to Mr Clemet’s application. 

7. The tribunal conducted a hearing on 27 July 2022.  Mr Clemet discussed the application and provided sworn evidence in person.  Ms Clemet discussed the application and provided sworn evidence by telephone.

CONSIDERATION

1. Mr Clemet told the tribunal that Ms Clemet first withheld [Child 1] (on 29 October 2021) and subsequently [Child 2], without good reason.  He said that, as children, they were allowed a voice but not a choice, and it was Ms Clemet’s responsibility to encourage and facilitate handover rather than to yield to, or, worse, tacitly encourage reluctance on the part of one or both of the children.

2. Mr Clemet told the tribunal that he was seeking an interim care period as there was a parenting plan in place, care was not being provided in accordance with the parenting plan and he had taken reasonable action to restore the care arrangement.  More specifically he said that he had contacted his solicitor without delay (on 1 November 2021) and that family dispute resolution had been arranged but did not proceed because Ms Clemet ultimately declined to participate after initially failing to respond to correspondence sent to her by his solicitor in November and December 2021. 

3. Ms Clemet told the tribunal that she withheld [Child 1] on 29 October 2021 when [Child 1] was clearly very distressed at handover and did not want to go with Mr Clemet.  She said that Mr Clemet became angry and she called the police who advised her to discuss the shared parenting difficulties with her solicitor.  Ms Clemet told the tribunal that while Mr Clemet had a reasonably good relationship with [Child 2], he treated [Child 1] differently and made no attempt to understand her sensitivities.  She said that both children were receiving psychological counselling to help them deal with the breakdown of the relationship between her and Mr Clemet.  They were both vulnerable and she did not consider it reasonable to expose them to further psychological harm by requiring them to spend time with Mr Clemet, contrary to their wishes.

4. Ms Clemet said that there was a delay in response to communications regarding family dispute resolution because of the tardiness of her own solicitor.  She said that she changed solicitors but that both she and her second solicitor considered family dispute resolution premature, given the vulnerability of the children.  She said that she never refused to participate and that it was a matter of appropriate timing.  Ms Clemet told the tribunal that there has been progress this year towards re-establishing a shared parenting arrangement, including mediation and interim court orders that have specified a period of reunification counselling.

5. Ms Clemet submitted that the tribunal should find that there was no care arrangement in place for the children, for the reasons provided by the objections officer.  She further submitted that, if the tribunal finds that there was a care arrangement in place, it should find that she had not breached it because the arrangement required her consent to Mr Clemet’s care.  Finally, Ms Clemet submitted that if the tribunal found that there was a breach, the tribunal should find that there were special circumstances affecting the children that warranted withholding their care from Mr Clemet.

Application of the law

1. The relevant provisions pertaining to care percentage determinations and the revocation of care percentage determinations are contained in the Assessment Act. The Assessment Act also specifies the circumstances in which an interim care period can be determined.

2. The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying child support legislation.  The tribunal is not bound by these guidelines, but, for the sake of consistency in decision-making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

3. It is not in dispute that [Child 1] has been in Ms Clemet’s sole care since 18 October 2021 and that [Child 2] has been in Ms Clemet’s sole care since 1 November 2021.  The issue before the tribunal is whether an interim care period should be determined, allowing the pre-existing care arrangement to provide the basis for the care percentages for child support purposes for a specified period of time after the change in the actual pattern of care.

4. The legislation pertaining to interim care periods is set out in section 51 and section 53A of the Assessment Act.

5. Under paragraph 51(1)(b), an interim care period can only be determined if a care arrangement is in place.  The objections officer found that an agreement signed by both parents on 25 June 2020 was not a care arrangement because it did not specify an agreed ongoing care arrangement for the children. The objections officer noted that the document provided that each parent had mutually agreed access of up to 50% of the calendar days but that it otherwise lacked specificity.  In effect, the objections officer concluded that the document provided a framework for a care arrangement but not a proper care arrangement.  Ms Clemet submitted that the document required mutual agreement, which meant that shared care was contingent on both parents agreeing.  This meant that she could withhold the children without breaching the care arrangement.

6. The tribunal disagrees with both the objections officer and Ms Clemet.  The agreement may be poorly written, but the tribunal is satisfied that it gives expression to a clear intent that Mr Clemet and Ms Clemet equally share care.  The document is written so as to allow the parents flexibility as to how they arrange the equally shared care, but the tribunal is satisfied that references in the document to mutual agreement refer to a mutual agreement that care is to be equally shared and does not imply that each episode of care must be mutually agreed.

7. The tribunal notes that care of [Child 2] and [Child 1] had been equally shared in a manner that was broadly consistent with the document and that the CSA had appropriately recorded the care percentages accordingly.

8. The tribunal is therefore satisfied that a care arrangement applied to both children and that this care arrangement provided for each parent to have 50% of their care.

9. Under paragraph 51(1)(c) of the Assessment Act, the tribunal can only determine an interim care period if it is satisfied that the actual care did not reflect the care arrangement. Under paragraph 51(1)(d) of the Assessment Act, the tribunal must also be satisfied that the person with reduced care took reasonable action to ensure compliance with the care arrangement.

10. It is not in dispute that the shared care arrangement for both children broke down in late October and early November 2021 and that Ms Clemet had sole care of [Child 1] from 18 October 2021 and sole care of [Child 2] from 1 November 2021.  This means that the requirements of paragraph 51(2)(c) are met.

11. Reasonable action will depend on the circumstances, but in broad terms it is expected that the action taken by the parent with reduced care is appropriate, timely, and, pursuant to paragraph 51(1)(c) of the Assessment Act, continuous. The tribunal is satisfied that Mr Clemet contacted his solicitor on 1 November 2021 to seek advice regarding restoration of the care arrangement. The tribunal is satisfied that this action was both appropriate and timely. The evidence indicates that Mr Clemet, through his solicitor, continued to seek restoration of the care arrangement, including attempting to arrange mediation. The tribunal is therefore satisfied that the requirements of paragraph 51(2)(d) are met.

12. Under subsection 51(5) of the Assessment Act, an interim care period is not determined if there are special circumstances in relation to the child. Special circumstances are not defined in the Assessment Act, but the Guide states that the discretion should only be exercised in unusual cases where the unreasonable or inappropriate behaviour of a parent is the cause of the change in the care arrangement. The Guide provides examples of special circumstances to assist the decision-maker. These examples are not exhaustive, but they are intended to be indicative. The examples provided are violence towards the child or the other parent; exposing the child to family violence or to substance abuse; significant neglect of basic needs of the child including neglecting the educational requirements of the child; and involving the child in criminal activity. The tribunal is of the view that subsection 51(5) can only be applied if compliance with a care arrangement risks significant harm to the child.

13. Ms Clemet provided the tribunal with records of psychological treatment of [Child 2] and [Child 1]. These records cover a period prior to and around the time of the breakdown of the care arrangement. The records indicate that both children, but especially [Child 1], experienced significant distress following the breakdown of the relationship between their parents, and that this distress persisted, exacerbated by ongoing tensions and difficulties between Mr Clemet and Ms Clemet. The records indicate that [Child 1] in particular experienced difficulties in her relationship with her father but there is also evidence that the children had some difficulties in their relationship with their mother. The tribunal is not satisfied that the records establish that either child was at risk of significant harm if they continued to spend nights with Mr Clemet. The tribunal accepts that the father-daughter relationships were fraught at times, and that first [Child 1] and then [Child 2] chose not to be in Mr Clemet’s care. However, these difficulties do not, in the view of the tribunal, cross the threshold for special circumstances for the purposes of subsection 51(5) of the Assessment Act. The tribunal accepts that there was an altercation between Mr and Ms Clemet on 29 October 2021 and that Ms Clemet called the police. However, this altercation was the consequence rather than the cause of the change of care, and the police found no basis for further action. Overall, the tribunal finds no basis for a finding that there were special circumstances affecting the children.

14. It follows that the tribunal must determine an interim care period in accordance with section 53A of the Assessment Act. Section 53A contains a table that sets out the duration of an interim care period. When the care arrangement is a written agreement or parenting plan that predates the change of care by more than 48 weeks (as was the case here), the interim care period is 14 weeks but can be less than 14 weeks if the person with increased care took reasonable action to participate in family dispute resolution.

15. It is not in dispute that Mr Clemet attempted, through his solicitor, to arrange family dispute resolution in November and December 2021, but that Ms Clemet declined.  Her position is that it was reasonable to decline as the proposal was premature and she was advised to decline by her solicitor. 

16. The tribunal has some sympathy for her position and accepts that family dispute resolution may have been premature. However, section 53A of the Assessment Act imposes a burden on the person with increased care to take reasonable action to participate. At the bare minimum, this would have required Ms Clemet to meet with the family dispute resolution practitioner to outline her concerns and discuss a suitable time frame. This did not occur. The tribunal is therefore unable to find that Ms Clemet took reasonable action to participate in family dispute resolution.

17. It follows that, pursuant to section 51 and section 53A of the Assessment Act, the tribunal determines an interim care period of 14 weeks from 18 October 2021 for [Child 1] and an interim care period of 14 weeks from 1 November 2021 for [Child 2].

DECISION

The tribunal sets aside the decisions under review, and, pursuant to section 51 of the Assessment Act, determines two percentages of care for both children:

• The first period of care has a duration of 14 weeks from the change of care and reflects the pre-existing care arrangement by which Mr Clemet had 50% of the care of both children and Ms Clemet had 50% of the care of both children (the interim care period).

• The second period of care reflects the actual care following the change of care, which is that Ms Clemet had 100% of the care of both children and Mr Clemet had 0% of the care of both children.

The change of care date for [Child 1] is 18 October 2021 and the change of care date for [Child 2] is 1 November 2021.