Cortright and Cortright (Child support)

[2023] AATA 4863

Cortright and Cortright (Child support) [2023] AATA 4863 (20 December 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC026066

APPLICANT:  Mr Cortright

OTHER PARTIES:  Child Support Registrar

Mrs Cortright

TRIBUNAL:Senior Member K Dordevic

DECISION DATE:  20 December 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to pattern of care to father having 100% care – existing percentages applied to interim period between father’s notification and department’s decision – reasonable action to ensure care arrangement complied with – teenager unlikely to be compelled to return – special circumstances – child does not feel safe in mother’s care – mother friends with reportable offender who has unsupervised contact with children – no evidence that child at risk of harm – 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

BACKGROUND

1. Mr Cortright (the father) and Ms Cortright (the mother) are the parents of three children. This application concerns the care of [their eldest child] (the child), born 7 October 2006.

2. On 16 July 2019 Services Australia – Child Support (Child Support) registered a child support assessment in respect of the children. From 1 November 2021 Child Support recorded the care percentages of the child as 14% to the father and 86% to the mother, based on Court orders dated 28 April 2021.[1]

   [1] At folios 23 to 26

3. On 1 December 2022 the father contacted Child Support to report that the child had been in his sole care since 22 November 2022.

4. On 18 January 2023 Child Support made the decision that the child was in the father’s 100% care and the mother’s 0% care from 22 November 2022 but that an interim period should apply to the administrative assessment for the period 22 November 2022 to 22 May 2023 whereby the care of the child is to be reflected as being in the mother’s 86% care and the father’s 14% care. The father lodged a timely objection and on 27 April 2023 Child Support disallowed the objection.

5. On 5 May 2023 the father lodged an application for review of the objections officer’s decision with the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal).

6. The matter was to be heard on 8 November 2023, however the father was not contactable due to an Optus network outage. The matter was rescheduled to 13 November 2023. The father and mother appeared by MS Teams audio. The Child Support Registrar elected not to attend the hearing. The Tribunal also considered the documentation provided by Child Support (folios 1 to 190) and the father (marked folios A1 to A8) and the mother (marked folios B1 to B63).

7. At hearing the father submitted that he had evidence to support his contention that there are special circumstances such that the discretion to refuse to apply an interim period is enlivened. The father agreed to provide this evidence by close of business 13 November 2023, which he did (marked folios A9 to A16). This information was then exchanged with the mother who had until close of business on 27 November 2023 to provide a response. The mother provided her response on 24 November 2023 (marked folios B64 to B119).

8. The Tribunal reached its decision on 20 December 2023.

ISSUES

1. The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).

2. The issues which arise in this case are as follows:

   ·Was there a change to the child’s care arrangements?

   ·If so, from what date should the existing care determination be revoked?

   ·From what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

1. The legislative scheme requires a new care percentage determination to be made following notification to Child Support of a change to a child’s care arrangements. The relevant provisions are set down in Division 4 of Part 5 of the Act.

2. The father’s position is that the decision under review is fundamentally wrong. He is liable to pay child support for a child who is in his sole care. The child was 16 years of age and is now 17 and there is not a chance that the courts, police or any government body will compel him to return to his mother's care. He acknowledges that the child came into his care on 22 November 2022 on a trial basis. The child emailed his mother on the same day advising that he would like to live with his father over the holidays.[2] The father is of the view that the email from the child dated 6 January 2023 is the date from which there is no ground to apply interim care. The father went on to state that he has taken reasonable action. He states that this is demonstrated by him providing proposed final parenting orders on 8 February 2023.[3] He also stressed that the mother withdrew her contravention application on 10 February 2023[4] and certainly from this date had ceased taking reasonable action. In fact, as the contravention order had “zero change of success” it cannot even be established that the mother took reasonable action. The father agreed that the matter is set down for trial in February 2024 after the child-inclusive conference took place.

   [2] At folio 79

   [3] At folios 135 to 140

   [4] At folios A4 to A5

3. The mother’s submits that the decision under review is correct. She continues to meet the child’s costs by way of school fees, medications and skin treatments. Child Support struck the middle ground in not providing an interim care period for 52 weeks.

Was there a care change on 22 November 2022?

1. The Tribunal finds that [in] April 2021 the [Magistrates Court] ordered, following the father’s participation in a Men’s Behaviour Change program, that from 1 August 2021 the father would spend 4.5 hours with the child each Tuesday afternoon and alternate weekends from 8 am Saturday to 6 pm Sundays.[5] 

   [5] At folio 25

2. There is no dispute between the parents that prior to 22 November 2022 the Court orders were largely adhered to and that, since 22 November 2022, the child has been in the father’s sole care. The Tribunal finds accordingly.

3. Section 54G of the Act states that a care percentage must be revoked if a person is to have at least regular care but does not have regular care despite the other responsible person making the child available, the care percentage determination in place was made under section 50 of the Act and the other responsible person notified Child Support of the change within a period that is reasonable in the circumstances.

4. The Tribunal finds on the basis of the parents’ consistent testimony that the mother had 0% care and the father 100% care of the child from 22 November 2022. The mother asserts that the father did not make the child available. The father refutes this, stating that given the child’s age he cannot force the child to return to the mother’s care. On balance, the Tribunal is persuaded that the father was making the child available. Instead, it is apparent that it is the child that has refused to return to the mother’s care.

5. The Tribunal finds that the mother was to have at least regular care, that the existing care percentage determination was made pursuant to section 50 of the Act and is satisfied that in advising Child Support that there was a change to the child’s care arrangements within eight days of it occurring the father notified within a period that is reasonable in the circumstances.

6. Therefore, all the requirements of section 54G are satisfied.

Should an interim period apply?

1. In this matter, the father asserts that an interim period should not apply.

2. The Act contains provisions which apply when the extent of a parent’s care is determined in accordance with a “care arrangement”, but the care arrangement is not being complied with. Section 5 of the Act states that the term “care arrangement” has the same meaning as in the Family Assistance Act. Section 3 of the A New Tax System (Family Assistance) Act 1999 states that a care arrangement includes a parenting order within the meaning of 64B of the Family Law Act 1975. The Tribunal is satisfied that the Court order is a parenting order pursuant to subsection 64B of the Family Law Act 1975.

3. An interim period may apply if the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, unless there are special circumstances that mean an interim period should not apply. During the interim period the care used in the child support assessment continues to be in accordance with the extent of care in the care arrangement. Section 53A of the Act outlines the length of the interim period by taking into account the length of time elapsed between the date of the court orders or care arrangement and the change of care day, amongst other factors not relevant to this review.

4. The Tribunal finds that there was a care arrangement in place for the child from 21 August 2021. The Tribunal is also satisfied that, from 22 November 2022, the care arrangement does not correspond with the actual care of the child. Paragraphs 51(1)(b) and (c) of the Act are satisfied.

5. The Tribunal next turned its mind to whether the mother, as the person with reduced care, took reasonable action to ensure that the care arrangement was complied with, as required by paragraph 51(1)(d) of the Act.

6. The mother provided email correspondence authored by her and addressed to the father and his legal representative dated 25 November 2023 advising that should the child not be returned to her care within five business days she will instigate a contravention application and seek a recovery order in relation to the child.[6] There is also in evidence a Contravention Application filed in the Family Court of Western Australia (the Family Court) on 23 December 2022, with the matter listed for directions on 1 February 2023.[7]  There is in evidence the father’s proposed final parenting orders, lodged with the Family Court on 8 February 2023[8] and the mother’s proposed orders (date unknown).[9] On 14 February 2023 [Justice A] ordered that the trial be vacated and, amongst other orders, the children are to attend a child-inclusive case assessment conference with a Family Consultant, to be convened as soon as possible and a callover to take place not before June 2023.[10]  A screenshot of the eCourts Portal of Western Australia indicates that a child related proceeding also took place on 9 May 2023, a case assessment conference took place on 30 June 2023 and the matter was pended for a callover on 14 July 2023.[11]

   [6] At folio 134

   [7] At folio 42

   [8] At folios 135 to 140

   [9] At folio 101 to 107

   [10] At folios 127 to 133

   [11] At folio 100

7. The Tribunal is satisfied that the mother has taken, and continues to take, reasonable action. In reaching this conclusion the Tribunal accepts that the mother withdrew the contravention application. She gave an adequate explanation for this withdrawal, namely that the advice she received was that the Family Court would be unlikely to compel a teenager to return to a parent’s home. The father’s testimony at hearing regarding the mother’s prospects of success in respect of the contravention order was identical. Nevertheless, Family Court proceedings remain afoot and the mother continues to seek to have the child returned to her care. The matter will proceed to trial in February 2024.

8. The Tribunal next turned its mind to whether the father, as the person with increased care, “began continuously taking reasonable action to participate in family dispute resolution”.[12] Section 5 of the Act states that family dispute resolution has the same meaning given by section 10F of the Family Law Act 1975, which states that it is a process that helps people resolve disputes with each other and is conducted by a family dispute resolution practitioner that is independent of all parties involved. This definition is in accord with the definition of family dispute resolution outlined in section 51 of the Family Court Act 1997 (WA).

   [12] As required under section 53A(3) of the Act

9. There is no evidence before the Tribunal that the father has taken steps to participate in, nor has he participated in, family dispute resolution since assuming sole care of the child. Certainly, none of the correspondence or documents in evidence suggest that this was the case. The Tribunal finds accordingly.

1. Section 53A of the Act provides a table for working out the interim period. In this particular factual scenario, where more than 52 weeks has elapsed between the date of Court order and the change of care day and where both the parent with reduced care has taken reasonable action and the parent with increased care has not, subparagraph 53A(1)(a)(i) of the Act dictates that the interim period starts on 22 November 2022 and subparagraph 53A(1)(b)(i) dictates that it ends 26 weeks later, that is, on 22 May 2023.

2. Thus, during the period 22 November 2022 to 22 May 2023 the care record in respect of the child is to reflect the care the father and mother were to have under the Court order, being 86% to the mother and 14% to the father. The second percentage reflects the actual care of the child from 23 May 2023, the day after the interim period ended, being that the father’s care percentage of the child is 100% and the mother’s care percentage is 0%.

Do special circumstances exist in relation to the child?

1. Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, a single percentage of care – rather than two percentages of care – may be determined based upon the actual care taking place. The Tribunal next considered whether to exercise the discretion to make one percentage of care determination, rather than two, based upon the actual care taking place.

2. The meaning of special circumstances is not defined in the Act, but is described in the Child Support Guide:[13]

   The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:

   ·violence towards the child,

   ·exposing the child to family violence (within the meaning of section 4AB of the FL Act),

   ·violence towards the person with increased care,

   ·directly involving the child in a criminal act,

   ·exposing the child to alcohol, drugs or substance abuse,

   ·substantially failing to comply with legal schooling requirements, and/or

   ·neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

   [13] >

   The father’s position is that special circumstances do exist in this case. He states that the child advised him that he did not feel safe in the mother’s care. The child is said to be the author of an email dated 22 November 2022 where he alleged the mother’s home is “unsanitary, unhealthy and dangerous as [redacted] comes around when I am at school…”.[14] At hearing the father alleged that the mother is friends with a paedophile, [Mr B]. Whilst he does not want to give too much away so as to jeopardise his case in the upcoming Family Court proceedings, he states that [Mr B] is a “reportable offender” and there is a website where it is reported that [Mr B] made multiple court appearances after failing to comply with a data access order; the father has surmised that this must be in relation to child pornography. The father contacted “high up people” in the Police in September 2022 who confirmed that [Mr B] is a reportable offender and who, based on the father’s contact, made a report to Child Protection, as they were concerned that [Mr B] was having contact with the children.

   [14] At folio 79

3. In support of his allegation as to the children’s exposure to a paedophile, the father provided the following evidence:

   ·An email he authored and sent to the mother dated 4 September 2022[15]:

   [15] At folios A9 to A10

   Dear Ms Cortright,

   It has been obvious to me that your friend [Mr B] has had an agenda. On 25^th November and 29^th December 2021, I reminded you of concerning activities you had observed from [Mr B] and I advised you he was being charged on a multitude of different offences. One of the charges was failing to abide by a data access order, and that the legislation shows this can relate to child sexual pornography.

   Because of the above, I contacted the police. As a result of this, I received a call from Officer [C] from the Sex Crime Division who said she will be attending his data access court case and making contact with you. Whilst these events make it pretty obvious that [Mr B] is being charged with failing to abide by a data access order by the Sex Crime Division, you never stopped [Mr B] from being around our children.

   It has now been confirmed with me, beyond any doubt, that [Mr B] is a paedophile. He has been convicted of child sex offences and jailed for those offences. That is why he went to jail. That is why he never sees his own children. [Mr B] is a paedophile. A child sex offender who you brought into the house, and have continued to allow to be around our three young children.

   Today I informed the children of the truth about him; although they already thought he was creepy. It is inappropriate for them to accept lollies or chocolates from him (grooming!!) or even be near him. They now know the truth about him. They know that they are not to be around him, and if this happens again, they know to contact me or the police immediately. [The child] has told me that you allowed him to discipline him and have even allowed [Mr B] to remove [the child]’s phone. That is to never happen again. I do not want [Mr B] inside the house and I do not want him anywhere near our children. If you wish to continue seeing this convicted paedophile, it is to be outside the house. I want our children protected from him. I am not sure of the barrier to meet the “high risk offenders level” and whether [Mr B] has met this level of depravity, but if he has, then he will be on the sex offenders register which can be searched by residents who reside in [Suburb] –

   Alternatively, you can apply to the Commissioner of Police for confirmation that he is a reportable offender – B] is a convicted child sex offender.

   Yours Sincerely

   Mr Cortright

   ·A Legal Aid WA information sheet:[16]

   Reportable Offenders

   A reportable offender is a person who has been sentenced for a reportable offence.

   The following are reportable offences:

   1. Class One Offences – sexual offences and/or murder where the victim is a child, including attempting, planning or encouraging offences.

   2. Class Two Offences – child exploitation and similar offences, such as possession, production or distribution of child pornography, showing offensive material to children, indecently assaulting a child and kidnapping, including attempting, planning or encouraging these offences.

   3. Any other offence for which the court has given an offender reporting order.

   ·A letter from Assistant Commissioner [D] dated 9 September 2022, which relevantly states:[17]

   [16] At folio A11

   [17] At folio A12

   Re: Section 85J application to be informed whether [Mr B] is a reportable offender.

   Thank you for your disclosure request under the provisions of Section 85J of the Community Protection (Offender Reporting) Act 2004.
   …

   The information you have provided confirms you are the natural parent of the children named in your application, and the specified person has regular unsupervised contact with those children.

   The specified person nominated in your application is a reportable offender.
   …

   If you have any concerns for the safety of your child please to not hesitate to contact Police on 131 444

   ·An email from Detective Inspector [E], Sex Crime Division WA dated 28 October 2022 which relevantly states:[18]

   Good afternoon Mr Cortright

   Thank you for making the time to meet with Acting Detective Inspector [F] and myself yesterday afternoon, 26 October 2022, and for the opportunity to explain the requirements of the Community Protection (Offender Reporting) Act 2004.

   As we explained, the Act prevents us from discussing or disclosing any information in relation to an individual who is deemed a Reportable Offender (RO), but we can confirm that the requirements of the Act do not prevent a RO from having unsupervised contact with children, rather the RO must report any such contact to the police. As we also advised, if a RO does report such contact, the Serious Offending Management Squad sends a referral to Communities (Child Protection and Family Services) requesting they confirm the safety and welfare of the declared children. We confirm that this assessment it usually involve CPFS checking with the parent who the children reside with.

   Given your concerns in relation to the children's mother potentially protect protecting a child sex offender who has access to your children, we have undertaken to make another referral to CPFS, specifically requesting they contact you as the children's father in order for you to express your concerns. The referral process has been commenced.

   As we also discussed, the behaviour you are concerned about and have outlined to date in relation to the offender and your children does not amount to a criminal offence. We would encourage you to continue to be vigilant and report any offences you believe have occurred as soon as possible. As we advise, substantiating any offending is likely to require the children to be interviewed to obtain information that is able to be presented as evidence.

   We can assure you, the Serious Offender Management Squad takes the monitoring of RO’s very seriously and acts to charge them if offending or a failure to comply with the Act is identified. This is reflected by the charges you have identified and outlined in your correspondence with the Commissioner of Police and the Minister.

   [18] At folio A15 to A16

1. In response, the mother vehemently denies that the child is at risk of harm should he return to her care.  She denies that she has ever been approached by the police or welfare services relating to her care of the children. She states that these allegations are made by the father to distract from his own violence. To neutralise the issue she agreed to not allow the children to have contact with the children.

2. The mother provided the following evidence in support of her contentions:

   ·An email from [Ms G], Senior Child Protection Worker, Child Protection, [Department of Communities] dated 28 April 2020, that relevantly states:[19]

   Good afternoon Ms Cortright,

   My apologies for the time taken to get back to you. I have spoken to my Police colleagues who have advised that if you wish to request further information in relation to [Mr B], the link on the Community Protection website is the best one to use…

   ·A letter from [Ms G], Senior Child Protection Worker, Child Protection, Department of Communities WA dated 28 April 2020, which relevantly states:[20]

   The investigation has found that [the child], aged 13, [Child 2], aged 10, and [Child 3], aged 3, have not been significantly harmed, as a result of sexual abuse. As such, the outcome of the CSI has been recorded as not substantiated. Your family’s case will now be closed to our Department.

   ·An email from [Ms H], Acting Team Leader, Child Protection and Family Support, Department of Communities dated 7 December 2022, which relevantly states:[21]

   Good afternoon Ms Cortright,

   As discussed, it has been determined that there is no ongoing role for the Department and the matter has since been closed.

   ·Minutes of Interim Consent Orders dated 26 July 2023:[22]

   Without admission as to need, the Respondent Mother be restrained by injunction from bringing the children into contact with [Mr B].

   [19] At folio B76

   [20] At folio B78

   [21] At folio B79

   [22] At folio B119

3. The Tribunal accepts that [Mr B] is a reportable offender and that whilst he is permitted to have unsupervised contact with children, he must report this contact and upon reporting this, a referral is made to Child Protection. The Tribunal finds that two investigations were undertaken by Child Protection, the allegations in respect the children of the mother and father were not substantiated and the cases were closed. The Tribunal also considered the summary of the Case Assessment Conference Report[23] dated 4 July 2023 where the children were interviewed and did not disclose any risk of harm whilst in their mother’s care or perpetrated by [Mr B].

   [23] At folios B97 to B1047

4. The Tribunal is not persuaded that there is any corroborating evidence to establish that the child was at risk of harm whilst in the mother’s care. In the absence of such evidence the Tribunal is not satisfied that there was a risk to the physical, emotional or psychological wellbeing of the child if the court ordered care arrangement continued to be followed.

5. Accordingly, the Tribunal is not satisfied that there existed special circumstances in relation to the child to justify the exercising of the discretion provided for in subsection 51(5) of the Act. Thus, the interim period applies.

DECISION

The decision under review is affirmed.