CONFIDENTIAL 1 and SOCIAL SECURITY APPEALS TRIBUNAL - [2013] AATA 125

[2013] AATA 125

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2009/5531

Re

CONFIDENTIAL 1

APPLICANT

And

SOCIAL SECURITY APPEALS TRIBUNAL

RESPONDENT

And CONFIDENTIAL 2
OTHER PARTY

DECISION

Tribunal
Ms K Hogan, Member

Date 11 March 2013

Place
Perth

DECISION SUMMARY
The Tribunal sets aside the decision of the Social Security Appeals Tribunal under review and that of the Objections Officer dated 30 July 2009.
…(sgd) K Hogan.....
Ms K Hogan, Member
It is noted that publication of this decision is approved by the Administrative Appeals Tribunal pursuant to section 110x(4)(h) of the Child Support (Registration & Collection) Act 1988 (Cth).
Catchwords
Child Support - Assessment of Percentage of Care by Child Support Agency During a Care Period - - Non-Compliance with Court Order – Significant Change in Level of Care – Whether Reasonable Action Taken to Reach New Agreement – Whether a Determination is Possible under Section 52 or Section 53 of the Child Support (Assessment) Act 1989 – If Determination is Possible Under Both Sections 52 and 53 Determination must be Made Under Section 53 – Other Party did not make the Daughter Available to the Applicant – No Determination Possible Under Section 53 – Significant Difference Between Ordered Care and Actual Care – No Reasonable Excuse for Non-Compliance With Ordered Care – No Determination Possible Under Section 52 – No Change in Level of Care Under Court Order – Decision Under Review Set Aside
Legislation
Child Support (Assessment) Act 1989 – Part 5 Division 1
Cases
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Hawkins v Ingham [2009] SSATACSA 9
In theMarriage of Stavros (1984) 9 Fam LR 1025
Secondary Materials
CSA Guide
REASONS FOR DECISION
Ms K Hogan, Member
11 March 2013
HISTORY

The Federal Court set aside the Tribunal’s previous decision in this matter and remitted it to the Tribunal for rehearing.
The applicant and the other party are respectively the mother and father of three (3) children.
This application relates to the daughter born 1 January 1993 (the daughter).
The daughter was residing fulltime with the applicant in Perth. The other party, who lives in Queensland, was required to pay child support to the applicant.
On 5 January 2009, the other party advised the Child Support Agency (CSA) that the daughter would be residing with him from 6 January 2009 and requested that child support assessment be amended to reflect this.
On 21 May 2009, the CSA decided not to change the level of the applicant’s care for the daughter from 6 January 2009.
On 3 June 2009, the other party lodged an objection to that decision.
On 30 July 2009, an objections officer of CSA allowed the other party’s objection to change the applicant’s percentage of care for the daughter to below regular care from 6 January 2009.
The applicant appealed the objections officer’s decision to the Social Security Appeals Tribunal (SSAT).
The SSAT decision was made following a hearing on 27 October 2009, to affirm the decision of the objections officer.
The applicant appealed to the Administrative Appeals Tribunal (AAT). The AAT heard the matter on 31 May 2010 and affirmed the decision of the SSAT.
The applicant appealed to the Federal Court and the matter was remitted to the AAT for a rehearing.
The matter was heard by this Tribunal on the papers.
ISSUE
It is not in dispute that the Family Court Orders in force as at 14 August 1995 (the 1995 Orders) provided for primary care of the daughter to the applicant and reasonable access of the other party to the daughter.
It is not in dispute that the applicant has had no actual nights of care of the daughter from on or about 6 January 2009.
The issue to be considered by the Tribunal is whether a decision to change the child support assessment for the child can be made under sections 52 and 53 of the Child Support (Assessment) Act 1989 ( the Act).
LEGISLATIVE FRAMEWORK AND POLICY
The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (the Act).
Child support legislation is interpreted by CSA officers with the aid of the CSA Guide (the Guide). The Tribunal is not bound by law to apply policy 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 (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The annual rate of child support is determined by the basic formula set out in Division 1 of Part 5 of the Act. The liable parent’s percentage of care is included as one of the components of the formula.
Section 48 of the Act provides that a person’s percentage of care for a child for a day in a child support period is the percentage of care of the child that the person is likely to have during a period (the care period) of 12 months. The care period is taken to begin from either the day on which an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child, or the day on which the Registrar becomes aware of a change of at least 7.1% in the percentage of care of the child that the person has that affects the annual rate of child support payable for the child, or that the person’s percentage of care for the child has fallen below 14%.
Section 49 of the Act provides that agreements, parenting plans or court orders may determine the percentage of care that a parent has or is likely to have in a care period.
Section 52 of the Act provides for a determination as to the respective percentages of care to be made by the Registrar where, among other things, there is an agreement or order in place about the percentage care of the child and one parent does not agree that the actual percentage care of the child is in accordance with that agreement or order.
However, section 53 of the Act provides for a determination to be made by the Registrar where a parent was to have regular care of a child under an agreement or order.
The expression regular care is found at section 5(2) of the Act. It provides that a person has regular care of a child if the person has at least 14 per cent but less than 35 per cent of the care of a child during a care period. The expression care period is found at section 48 of the Act and it is a period of 12 months commencing when a parent is assessed with respect to the cost of the child or, relevantly for these proceedings, there is a change in the percentage of care for that child. The expression percentage of care is not defined but in a notation at the conclusion of section 48 of the Act, there is a recording that the percentage of care is calculated having regard to the number of nights that a child is likely to be in the care of a person during the care period.
Section 53(8) of the Act provides that if a determination may be made under both section 52 and section 53, then that determination must be made under section 53 and not under section 52.
EVIDENCE
The Respondent was not represented before the Tribunal.
The Tribunal was provided with a number of documents:
a)section 37 documents;
b)written submissions from the applicant: 17 March 2010 and 30 January 2013 ;
c)written submissions from the other party: 9 April 2010 and 7 February 2013;
d)transcript of Tribunal Hearing on 31 May 2010;
e)Federal Court Order dated 20 August 2012;
The applicant and the other party dispute the evidence regarding:
(a)previous compliance with the 1995 Orders;
(b)contact between the daughter and the applicant and the daughter and the other party at various times prior to 6 January 2009 and thereafter.
Whilst the evidence shows that the applicant was aware of discussions regarding a potential move to Queensland by the daughter (e.g. contact made by applicant to CSA on 1 December 2008 and 22 December 2008) the applicant contended that when the daughter boarded the plane for Queensland, on 5 January 2009, whilst the applicant was at work, it was for a holiday and not for the purposes of moving interstate.
The applicant consistently objected to the fact that she was not given written notice, in accordance with the 1995 Orders, of the proposed change to care arrangements.
The other party did not dispute that he was technically in breach of the orders and had been fined for the breach, but his evidence was that he was surprised by the response of the applicant to the decision of the daughter to move as there had been no adverse ramifications when a similar 'breach' arose when another daughter had moved from the care of the applicant to live with the other party and his wife and their children.
The evidence of the applicant is that when she returned from work on 5 January 2009, the daughter's belongings had been packed up by another daughter (T 1: CSA contact record 6 May 2009). On 4 February 2009, the other party advised the CSA that the daughter's belongings had been sent to Queensland. The decision of the Objection Officer, 30 July 2009 (T 1), records this as the applicant having sent the belongings however the CSA record of that discussion is that it was the action of another daughter
The evidence of the applicant's attempts to contact the daughter after 6 January 2013 is minimal. The applicant gave evidence before the previous Tribunal, on 31 May 2010, that:
I didn't feel happy about ringing up and talking to her. The first few times that I rang up and spoke to (the daughter) I could hear laughing in the background, and that just upset me, so it wasn't worth the trouble (Transcript page 24)
The documents supplied to the Tribunal show significant efforts were made by the other party between February 2009 and September 2009 to facilitate a new parenting agreement.
A new agreement was signed by the parties in September 2009 which acknowledged that the daughter would live with the other party and that the applicant would have access to the daughter once a year in 2009 and twice a year in 2010.
The other party contended that he had acted in accordance with the wishes of the daughter and that he had “always acted in the best interest of the child" (OP submission 7 February 2013).
The applicant contended that the other party had failed:
a)to make the daughter available;
b)to take reasonable actions and steps to ensure the ordered care was complied with;
c)to provide an 'acceptable reason’ for the other party's contravention of the 1995 Orders; and
d)to take reasonable action to seek to reach agreement or a court order about the care of the daughter.
The applicant contended that it would be unjust and inequitable to change the child support orders as it would 'reward' the behaviour of the other party.
The other party contended 'that child support is for the child, not compensation to the mother' (OP Submission dated 7 February 2013).
In support of her appeal, the applicant relied upon the following cases:
Hawkins v Ingham [2009] SSATACSA 9 which involved a claim to alter the level of care for the parties' child. At [23] it was that found that, pursuant to section 53 of the Child Support (Assessment) Act 1989, once it has been found that a court order provides for at least regular care of the child then the next question is in fact whether the relevant parent had no care or a pattern of care that was less than regular care. At [50] it was held that because a determination could not be made under sections 52 or 53 of the Act, the percentage of care for the child must be determined pursuant to the terms of the relevant court order. At [46] the Tribunal found it relevant that the views of the child (to not see his father) had likely been influenced by the mother.
At [25] Hawkins the following appears:
In Stevenson v Hughes [1993] FamCA 14, Nygh J, with the agreement of Fogarty J and Gun J, in approving the findings of the Full Court in In theMarriage of Stavros (1984) 9 Fam LR 1025, said ‘that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep’.
and further at [26]:
Fogarty J further adopted the following passage from Stavros, ‘I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of a custodian’s obligations, express or implied, to point to words and actions and to say, in effect: ‘You see I tried. But the child does not want to go,’ and thereafter to figuratively fold their arms as if that were the end of the matter. Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.’
FINDINGS AND CONSIDERATION OF THE ISSUES
The Tribunal finds since 6 January 2009, despite the 1995 Orders, the other party has had 100% of actual nights of care and the applicant has had 0% actual nights of care of the daughter.
The Tribunal finds that whilst the applicant had not taken steps to enforce the terms of the 1995 Orders by application to the Court, it is explained by the advice which she accepted that no recovery order could be maintained as the daughter was 16.
The Tribunal finds that the other party took reasonable action to seek to reach an agreement or a court order about the care of the daughter.
The Tribunal considered section 53 of the Act. In relation to paragraphs (a) and (c) the applicant was to have primary care of the daughter during the relevant period under the 1995 Orders and whilst the applicant has had no actual care of the daughter since 6 January 2009 the issue is whether the applicant had no care despite the daughter being made available to her.
The Act does not define the expression making the child available, though the use of the word making suggests positive action to ensure success or development.
The Tribunal finds that whilst there is no evidence that the other party took independent or active steps to discourage the daughter from seeing the applicant there is no evidence that he took any independent or active steps to encourage the daughter to see the applicant. The other party's consistent evidence is that he encouraged his daughter to have telephone and text contact with the applicant but that he did not and would not make arrangements for her to return to WA to visit her mother unless she wished to ( T1: pages 34 and 48).
Subsection 53(b) of the Act does not contain an exception even if there is a reason not to make the child available. The Tribunal finds, on the basis of the other party's evidence, that he did not make the daughter available to the applicant. Accordingly no determination can be made under s 53.
The Tribunal then considered Section 52 of the Act which provides for a determination as to the respective percentages of care to be made by the Registrar where, among other things, there is an agreement or order in place about the percentage care of the child and one parent does not agree that the actual percentage care of the child is in accordance with that agreement or order.
Subsection 52(1)(c) provides for an interim determination in the circumstances of the case, where the care percentage when used in the child support assessment provides an unjust and inequitable level of financial support for the child.
The Tribunal notes that the Registrar had originally determined that the percentage of care based on the 1995 Orders to be 72% (261 nights) for the applicant and 28% (104 nights) for the other party. This amounts to primary care for the applicant and regular care for the other party.
The CSA Guide at 2.2.6. provides:
Unjust and inequitable level of financial support
In making an interim care determination CSA must decide if, in the circumstances of the case, the care percentage when used in the child support assessment provides an unjust and inequitable level of financial support for the child. In most situations an unjust and inequitable level of financial support is considered to exist where:
· there is a significant difference between the agreed, planned or ordered care and the actual care; and
· there is an acceptable reason for the court order, parenting plan or written agreement not being complied with.
In the circumstances of this case there is a significant difference between the Family Court ordered care and the actual care.
There is no evidence to dispute the other party's contention that he was the only parent incurring expenses for the provision of care to the daughter. In the circumstances of this case, the care percentage based on the 1995 Orders when used in the child support assessment potentially provides an unjust and inequitable level of financial support for the child.
Whilst the Tribunal is satisfied that there is a significant difference between the agreed, planned or ordered care and the actual care, the Tribunal must also consider if there is an acceptable reason for non compliance with the agreement, plan or order:
Acceptable Reason
CSA will consider the following to be acceptable reasons for a court order, parenting plan or written agreement not being complied with:
Domestic Violence or Abuse
CSA must be satisfied that the agreement, plan or order is not being complied with because of abuse that would or could result if the agreement, plan or order was followed.
Abuse could include sexual, physical or psychological abuse, or a genuine fear of violence or abuse (of the carer, parent or a child). Customers will need to provide evidence to substantiate this claim. This could be in the form of police reports, a letter from medical practitioners, apprehended violence orders, domestic violence orders, applications for a restraining order and restraining orders.
Where a parent fails to seek or sustain contact
CSA must be satisfied that the agreement, plan or order is not being complied with because a parent fails to seek or sustain contact despite the child being made available.
There is no evidence to suggest in this case, and the Tribunal is not able to find, that the 1995 Orders are not being complied with because of abuse that would or could result if the 1995 Orders were followed.
The Tribunal has found at paragraph 48 above that the other party did not make the daughter available to the applicant. The Tribunal is not able to find that the 1995 Orders are not being complied with because “a parent fails to seek or sustain contact despite the child being made available.” Accordingly, the Tribunal finds that subsection 52(1)(c) is not satisfied. It is therefore not required to consider whether subsection 52(1)(c) applies and therefore no determination can be made under section 52 or section 53 of the Act.
The Tribunal finds there has not been a change in the level of care provided for the child by the other party and the provisions in subsection 48(1)(b) of the Act do not take effect.
DECISION
The Tribunal sets aside the decision of the Social Security Appeals Tribunal under review and that of the Objections Officer dated 30 July 2009.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member.

.....(sgd) T Freeman...................
Associate
Dated 11 March 2011

Date of hearing On the papers

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2009/5531
Re	CONFIDENTIAL 1
APPLICANT
And	SOCIAL SECURITY APPEALS TRIBUNAL
RESPONDENT

Tribunal	Ms K Hogan, Member
Date	11 March 2013
Place	Perth