Confidential 1 and Social Security Appeals Tribunal and Anor

[2011] AATA 371

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 371

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2419

GENERAL ADMINISTRATIVE DIVISION		)
Re		CONFIDENTIAL 1

Applicant

And SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And          CONFIDENTIAL 2

Other Party

DECISION

Tribunal Ms K Hogan, Member

Date31 May 2011

PlacePerth

Decision The Tribunal affirms the decision of the Social Security Appeals Tribunal under review  

...(sgd) 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 –- decision of SSAT affirmed.

LEGISLATION

Child Support (Assessment) Act 1989 – Part 5  Division 1

Administrative Appeals Tribunal Act1975

CASES

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

31 May 2011 Ms K Hogan, Member

HISTORY

1.The applicant and the other party are respectively the mother and father of four children.  This application relates to the daughter born 12 October 1999.

2.The applicant was the parent liable to pay child support to the other party in respect of the daughter on the basis of the applicant having 160 nights (43%) per year care and the other party having 205 nights (57%) per year care.

3.On 12 May 2009, the applicant applied to change the child support records from 205 nights of care of the daughter to the other party and 160 nights of care of the daughter to the applicant to 0 nights (0%) of care to the other party and 365 nights (100%) of care of the daughter to the applicant from 7 May 2009.

4.On 28 September 2009, the Child Support Agency (CSA) rejected the  application to alter the child support records and decided to change the records to 253 nights (70%) of care of the daughter to the other party and 112 (30%) of care of the daughter to the applicant from 7 May 2009.

5.On 22 October 2009, the applicant lodged an objection to the decision of 28 September 2009.

6.On 18 December 2009 an Objections Officer of the CSA disallowed the objection.

7.On 12 January 2010, the applicant lodged an appeal with the Social Security Appeals Tribunal (SSAT) against the decision.

8.On 13 May 2010 the SSAT decided to set aside the decision under review and to substitute its decision that as from 7 May 2009 the level of the care of the daughter remains unchanged at the previous level of 205 nights (57%) of care of the daughter to the other party and 160 nights (43%) of care of the daughter to the applicant.

9.The applicant applied by these proceedings to review that decision.

ISSUE

10.The issue to be considered by this Tribunal is the respective level of care of the daughter provided by the applicant and the other party.

LEGISLATIVE FRAMEWORK AND POLICY

11.The legislation relevant to this decision is contained in the Child Support (Assessment) Act 1989 (“the Act”).

12.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).

13.Division 1 of Part 5 of the Child Support (Assessment) Act 1989 sets out the basic formula used to determine the annual rate of child support and includes as one of the components the liable parent’s percentage of care.

14.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 the period (the care period) of 12 months 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%.

15.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.

16.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.

17.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.

18.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.

19.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 AND CONTENTIONS

20.The Respondent was not represented before the Tribunal.

21.The Tribunal was provided with a number of documents:

(a)   written submission from the applicant;

(b)   written submission from the other party;

(c)   section 37 documents.

22.The Tribunal heard evidence from the applicant and the other party.

23.It was not in dispute that the other party has had no actual nights of care of the daughter since 7 May 2010.

24.The parties agreed that the Family Court orders in force as at 7 May 2009 provided for 205 nights (57%) of care of the daughter to the other party and 160 nights (43%) of care of the daughter to the applicant.

25.Subsequent to the hearing, the applicant, at the request of the Tribunal, provided correspondence from Ms Anne Masel and Ms Margaret Cherubino to confirm the dates the daughter attended counselling sessions in the period from 7 May 2009 to 24 March 2010.  The dates were as follows:

(a)         Ms Masel: 8 August 2009;

(b)Ms Cherubino: 8 August 2009, 31 August 2009, 23 November 2009; 28 January 2010, 6 March 2010 and 13 March 2010.

26.There was no evidence that the daughter attended counselling in the months of May, June, July, September, October, December 2009 or February 2010.

Applicant

27.From November 2008 there had been a shared care arrangement of the daughter under Family Court orders being 57% to the other party and 43% to the applicant.

28.On 1 May 2009 the applicant made a complaint to the police and to the Department for Child Protection (DCP) that the other party had sexually assaulted the daughter.

29.Whilst the outcome was no conviction against the other party, the daughter was still not happy to go back to stay with the other party.

30.The applicant disputes the findings of the DCP and considered that in finding that she did not have “an acceptable reason to deviate from the court ordered care” that the CSA was taking on “the adversarial role of the Family Court” [T1 : T4 dated 12.1.2010]

31.From 7 May 2009 the applicant had the fulltime care of her 11 year old daughter because of the allegations made against the other party. 

32.The other party signed an affidavit on 28 May 2009 agreeing not to have contact with the daughter until the police investigation had been concluded.

33.The CSA determined the level of care as per the court order and not as “actual care” of the daughter which meant that the applicant was liable for child support payments to the other party which related to the daughter in her actual care.

34.On 24 March 2010 the applicant obtained a stay order to stay the payments and prevent the CSA from deducting the payments through her employer.

35.The other party did not provide for the daughter in any way during the period between 7 May 2009 and 24 March 2010.

36.A supplementary Court order for supervised contact through Anglicare for 2 hours per fortnight was made on 13 April 2010.

37.New legislation from 1 July 2010 determines that the CSA should base the determination of care on where the child is actually living.

38.The Court appointed psychologist, Stephen Cohen, said it was most appropriate that the daughter “remain resident with her mother” and that she undertake “therapy with her father to resolve the issues”.[TI: T3 page 41]

39.Care was neither refused nor withheld.  The other party never communicated a request to see the daughter.

40.She was not withholding the daughter and she was not obstructing the reconciliation. She advised that she waited for the agencies to contact her regarding therapy.

41.“When I’ve been contacted by whichever agency I’ve responded and we’ve made the appointment” [Transcript page 12]

42.The applicant advised that she had been following the same instructions as the other party that he was not to have any contact with the daughter until after the police report and thereafter that family therapy to bring the daughter back into contact with the other party was the correct response.

43.The first appointment with Anglicare for supervised contact was in August which was one month after the police had finished their investigation.

44.The daughter refused to go in.  It has been a gradual process to encourage the daughter to meet with the other party.

45.The order dated 13 April 2010 is an order for supervised contact which doesn’t fit “hand in hand” with a shared care arrangement.  If the other party wants the care of the daughter he has to go to the Family Court and say so.

Other Party

46.The child support payments are for the son as well as the daughter so only a percentage of the assessment relates to the daughter.

47.The new laws came into effect in July 2010 and the relevant period in this case is the 12 months from 7 May 2009 which is not within that period.

48.The Social Security Appeals Tribunal decided that the applicant was withholding the daughter.

49.The allegations that were made by the applicant and the daughter were investigated.

50.The DCP was “concerned that Kelly has been influenced or coerced into making an inaccurate or incorrect disclosure of sexual abuse against her father…” [T1: T3 at page 40]

51.During the period the daughter was away the court orders were in effect and the other party was the primary caregiver until the allegations were made.

52.The advice of the police, the psychologist and the daughter’s lawyer was that the other party should not have contact with the daughter until the police report was concluded which occurred in approximately July 2009 at which time no charges were laid.

53.In relation to the consent order of 13 April 2010, the order was brought about because of the allegations and it was seen as a way of moving forward.  The applicant had made an application for a stay order and one for a change of orders to 100% care for the daughter.  The presiding judge declined and adjourned that further application.

54.The other party accepted the advice that there should be a graduated reconnection with the daughter because of the allegations that had been made.

55.The applicant failed to make the daughter available promptly for counseling sessions.

56.It was not until a special listing before Crooks, J was made that the applicant arranged an appointment.

FINDINGS

57.In the Family Court orders dated 5 February 2008, orders 1 and 6 set out principle care arrangements.

58.In the Family Court orders dated 4 November 2008, order 1 discharges order 1(b) of the orders dated 5 February 2008.  Orders 2 and 3 set out additional care arrangements.

59.In the Family Court orders dated 24 March 2010, order 1 stays the collection of child support payable by the applicant to the other party.  It does not refer to a stay on the assessment of the child support.  Order 2 relates to the obligation of the other party to advise the CSA that the daughter has lived with the applicant since 7 May 2009 and that the applicant is not liable for child support since 7 May 2009.  That paragraph is not clear as to whether it purports to order anything other than a notification to the CSA of the stay application.

60.The Family Court orders dated 13 April 2010 set out contact arrangements between the other party and the daughter and the daughter and her brothers.  The applications which relate to payment of child support and an application to change the orders of February 2008 were adjourned to a further day.

61.Under section 48(1) (b) (vii) of the Act, the care period for this Tribunal to consider is the 12 months from 7 May 2009, the date of change specified in the applicant’s application of 12 May 2009. The parties agree that the orders in force as at 7 May 2009 provided for 205 nights (57%) of care to the other party and 160 nights (43%) of care to the applicant.

62.On or about 28 May 2009 the other party informed the Family Court that he had discussed the Court orders for the care of the daughter and the alleged assault with the police and with the independent children’s lawyer and agreed it would be in the best interests of the daughter not to press for resumed contact until the police had fully concluded their investigation.

63.By letter dated 13 July 2009, the DCP stated that the DCP was not pursuing the allegation and the criminal charges against the other party had been dropped and accordingly the DCP would not be substantiating harm towards the daughter by the other party.

64.By letter dated 5 August 2009 the DCP stated that an investigation by the DCP concerning the daughter had found the allegation of harm or risk of harm was not substantiated and that the DCP did not have significant concerns for the wellbeing of the daughter.

65.It is not the role of this Tribunal to revisit the decision of the DCP or the police. 

66.A report dated 9 November 2009 by Mr Cohen, Clinical Psychologist, stated that the allegation of abuse had not been proved, the other party does not represent a risk of abuse towards his daughter, therapy is required to bring father and daughter back into contact with each other and future overnight stays will arise from the outcome of the therapy.

67.The Tribunal finds some limited family and individual therapy has taken place.

68.The Tribunal finds since 7 May 2009 despite the Family Court orders, the applicant has had 100% of actual nights of care and the other party has had 0% actual nights of care of the daughter.

69.The Tribunal considered section 53 of the Act. In relation to paragraphs (a) and (c) the other party was to have at least regular care of the daughter during the relevant period under the Court orders and whilst the other party has had no actual care of the daughter since 7 May 2009 the issue is whether the other party had no care despite the daughter being made available to him.

70.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.

71.The Tribunal finds that whilst the other party had not taken steps to enforce the terms of the Family Court order by application to the Court, it is explained by the advice which he accepted that it would be in the best interests of the daughter not to press for resumed contact under the Court orders until the police had fully concluded the investigation.  After that investigation was concluded, the psychologist advised that therapy was required to bring the other party, daughter and brothers back into contact.

72.The Tribunal finds that whilst there is no evidence that the applicant took independent or active steps to discourage the daughter from seeing the other party, there is no evidence that she took any independent or active steps to encourage the daughter to see the other party and did not take any independent or active steps to arrange appointments with the psychologist to facilitate the therapy.

73.The Tribunal finds the daughter attended counseling on 8 August 2009, 31 August 2009, 23 November 2009; 28 January 2010, 6 March 2010 and 13 March 2010.

74.The Tribunal finds the daughter did not attend counseling in the months of May, June, July, September, October, December 2009 or February 2010.

75.Section 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 evidence that the applicant did not make the daughter available to the other party. Accordingly no determination can be made under s 53.

76.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.

77.Section 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.

78.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.”

79.In the circumstances of this case there is a significant difference between the Family Court ordered care and the actual care.

80.If the CSA is satisfied that there is a significant difference between the agreed, planned or ordered care and the actual care, CSA must then 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.”

81.The investigations of the DCP and the police found that the other party did not represent a risk of abuse toward the daughter.  Accordingly, the Tribunal is not able to find that the orders are not being complied with because of abuse that would or could result if the orders were followed.

82.The Tribunal has found at paragraph 75 above that the applicant did not make the daughter available to the other party.  The Tribunal is not able to find that the 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 section 52 (1) (d) is not satisfied. It is therefore not required to consider whether section 52 (1) (c) applies and therefore no determination can be made under section 52 or section 53 of the Act.

83.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 section 48(1) (b) of the Act do not take effect.

Decision

84.The Tribunal affirms the decision of the Social Security Appeals Tribunal under review.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Ms K Hogan, Member

Signed: ...(sgd) T Freeman..............

Associate

Date of Hearing  1 March 2011
Date of Decision  31 May 2011
Representative for the applicant            Self represented
Representative for the respondent        Not represented
Representative for the other party         Self represented