Culver and Culver (Child support)

[2021] AATA 2431

Culver and Culver (Child support) [2021] AATA 2431 (10 June 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC020905

APPLICANT:  Mr Culver

OTHER PARTIES:  Child Support Registrar

Ms Culver

TRIBUNAL:Member M Douglas

DECISION DATE:  10 June 2021

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)In accordance with subparagraph 54F(3)(b)(i) of the Child Support (Assessment) Act 1989, Ms Culver’s care percentage for [Child 1] is revoked with effect on 23 September 2020;

(b)In accordance with subparagraph 54F(3)(b)(ii) of the Child Support (Assessment) Act 1989, Mr Culver’s care percentage for [Child 1] is revoked with effect on 23 January 2020;

(c)In accordance with subsection 51(3) of the Child Support (Assessment) Act 1989, the first percentage of care for Ms Culver and the first percentage of care for Mr Culver for [Child 1] are:

·Ms Culver 50%;

·Mr Culver 50%;

(d)In accordance with subsection 51(4) of the Child Support (Assessment) Act 1989, the second percentage of care for Ms Culver and the second percentage of care for Mr Culver for [Child 1] are:

·Ms Culver 100%

·Mr Culver 0%.

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 – care 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. The Tribunal is reviewing an objection decision a delegate of the Child Support Registrar made on 5 February 2021 relating to the care percentages for Mr Culver and Ms Culver’s son, [Child 1]. 

2. The Registrar acts through staff employed within the Government department known as Services Australia – Child Support. The delegate who issued the objection decision was such an employee.  It is convenient hereafter to refer to the Registrar as Services Australia and so a reference to Services Australia in this decision is to be read as a reference to the Registrar.

3. An assessment of child support for [Child 1] commenced on 3 November 2017. The care percentages for [Child 1] for that assessment were determined by Services Australia to be 51% for Ms Culver and 49% for Mr Culver.    

4. On 24 September 2020 Ms Culver contacted Services Australia and told it that since 13 January 2020 she has had 100% care of [Child 1], although subsequently she corrected the date on which that change in [Child 1’s] care occurred to 24 January 2020.   

5. On 28 November 2020 Services Australia made the following decisions:

   (1)revoked Ms Culver’s percentage of care of 51% for [Child 1], which in accordance with subparagraph 54F(3)(b)(i) of the Child Support (Assessment) Act 1989 (the Act) took effect on 23 September 2020;

   (2)determined a new percentage of care for Ms Culver for [Child 1] under subsection 50(2) of the Act of 100%, which applied from 24 September 2020;

   (3)revoked Mr Culver’s percentage of care of 49% for [Child 1], which in accordance with subparagraph 54F(3)(b)(ii) of the Act took effect on 23 January 2020;

   (4)determined a new percentage of care for Mr Culver for [Child 1] under subsection 49(2) of the Act of 0%, which applied from 24 January 2020.

6. On 1 December 2020 Mr Culver lodged an objection with Services Australia regarding those decisions.  He sought, by his objection, to have the care percentages for [Child 1] of 49% for him and 51% for Ms Culver restored, which Mr Culver contended reflected an agreement that he and Ms Culver had reached [in] March 2016 at a mediation conducted by two mediators at Family Relationships Centre. He did not contest, by way of his objection, that [Child 1] had been living all the time with Ms Culver since 24 January 2020.   

7. On 5 February 2021, Child Support disallowed his objection, meaning that the decisions set out in paragraph 5 above remained in force.  In the explanation that Services Australia provided for its objection decision, it said that “if a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care”.  Services Australia noted that a care arrangement in relation to a child includes a written agreement between the parents of the child that relates to the care of the child, but Services Australia also said that:

   A written agreement exists between separated parents (or a parent and another person who cares for the child) if:

   There is a document in writing,

   The document is signed and dated by both parties, and

   Both parties agree on the care arrangements of the child, which are specified in the document.

8. Services Australia further explained in its objection decision that:

   [T]he parents have confirmed that they attended the Family Relationship Centre on [a day in] March 2016 and a parenting arrangement was made for 50/50 care.  However, Ms Culver and Mr Culver both confirmed that this care arrangement was not signed or dated.

9. Mr Culver, aggrieved by the objection decision, applied to the Tribunal for a review of it. The Tribunal heard his application on 11 May 2021. Mr Culver and Ms Culver both participated in the hearing by Microsoft Teams. Mr Culver gave sworn oral evidence and Ms Culver gave affirmed oral evidence. No one from Services Australia participated in the hearing, which is customary. Services Australia did however provide the documents it had that were relevant to its objection decision (the hearing papers), which was in accordance with its obligation under subsection 37(1) of the Administrative Appeals Tribunal Act 1975.  Ms Culver also provided the Tribunal, before the hearing, a bundle of documents, which were received into evidence and marked B1–B44. 

10. At the conclusion of the hearing the Tribunal ordered Services Australia pursuant to section 39AA of the Administrative Appeals Tribunal Act 1975 to provide written submissions regarding whether a care arrangement, as defined in section 5 of the Act and insofar as that definition includes a written agreement between the parents of a child that relates to the care of a child, must be signed and dated by the parents of the child.  Services Australia provided written submissions dated 26 May 2021, which have been marked C1–C2.  Mr Culver and Ms Culver were given until 8 June 2021 to provide written submissions in response to Services Australia’s submissions.  Neither did. 

ISSUES

1. The following matters are uncontroversial:

   (1)Mr Culver and Ms Culver were having week about care of [Child 1] up to and including 23 January 2020.  That occurred in Sydney.  Since 24 January 2020, [Child 1] has been residing with Ms Culver all of the time in [a different region];

   (2)In March 2016 Mr Culver and Ms Culver participated in a mediation that was facilitated by [named staff] of Family Relationships Centre that culminated in an agreement between Mr Culver and Ms Culver on [a day in] March 2016 that “the week about care arrangement” that had been in place regarding [Child 1] would continue.  That arrangement they reached regarding [Child 1’s] care was recorded in a document titled “Parenting Agreement” that was dated [that day in] March 2016 and that bore the insignia of the Family Relationships Centre.  That document appears at pages 68–72 of the hearing papers.

2. Given those uncontroversial matters, the outcome of this review hinges upon whether section 51 of the Act is engaged in the circumstances of this case.  That provision reads as follows:

   51  Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)  This section applies if:

   (a)  the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

   (b)  a care arrangement applies in relation to the child; and

   (c)  the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)  a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

   Note:        This section does not apply in certain circumstances: see section 53.

   2 percentages of care in relation to the responsible person

   (2)  Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

   (3)  The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).

   (4)  The second percentage of care is to be:

   (a)  for a determination under section 49—0%; or

   (b)  for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

   Single percentage of care in relation to the responsible person

   (5)  If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

   (6)  The single percentage of care is to be:

   (a)  for a determination under section 49—0%; or

   (b)  for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

CONSIDERATION

1. Mr Culver’s evidence to the Tribunal was that the mediation at the Family Relationships Centre, at which he and Ms Culver agreed upon the living arrangements for [Child 1], occurred over three sessions, with each session being one to two hours in duration.  Mr Culver and Ms Culver separately engaged with the mediators in the first two sessions.  For the final session they convened together and it is at this time that the agreement was reached that [Child 1], and also their eldest son [Child 2], would live with each of them on a week about basis, which is what had been happening to that point.  Mr Culver’s evidence was that neither he nor Ms Culver was legally represented in the mediation.  He said that the two mediators drew up the parenting agreement and went through it with him and Ms Culver and assisted them with their negotiations to reach that agreement. 

2. Mr Culver’s evidence was that following the conclusion of the mediation Ms Culver’s lawyers submitted to his lawyers an Application for Consent Orders that Ms Culver had signed and in which, at paragraph 20, she had noted that the care of both [Child 2] and [Child 1] was shared.  He said that the application was not pursued but he contended that the fact that Ms Culver submitted it to him corroborated that she had agreed to [Child 1] living week about with him and her.

3. Mr Culver’s evidence was that the agreement that they made at the mediation with the Family Relationships Centre was done freely and without any coercion from one party to the other.

4. Mr Culver said that [Child 1] has issues with his mental health.  He said that he became aware of that at the end of December 2019 when, whilst he was at work, a psychologist whom [Child 1] had been consulting called him and told him that [Child 1] was having some issues at school.  Mr Culver said that the psychologist did not provide him specific details about the issues [Child 1] was experiencing, but invited Mr Culver to make an appointment with her, which Mr Culver did for the following week.  Mr Culver said that he “ended up” taking [Child 1] to his local GP, because he considered it to be an urgent matter and he felt that it was best for [Child 1] to see his GP who could see [Child 1] earlier than Mr Culver could see the psychologist.  Mr Culver said that his GP assessed [Child 1] and recommended that Mr Culver speak with [a named agency], which was near his residence.  Mr Culver said he had several conversations with that centre who advised him that they did not see [Child 1’s] issues as urgent. Mr Culver said that the centre made an appointment for [Child 1] to see them in late January.  Before the date of the appointment came around, [Child 1] went to live full time with Ms Culver and so no-one from the centre saw [Child 1]. 

5. Mr Culver’s evidence was also that after being told by the psychologist that [Child 1] had issues with his mental health, Mr Culver contacted the headmaster of the school at which [Child 1] attended who informed him that a mental health study of [Child 1] had previously been done and that no issue had arisen as a consequence of that. 

6. Mr Culver’s evidence was that when he learned that Ms Culver was moving [Child 1] to [Town 1] to live with her and would not be returning to stay with him in the week commencing 24 January 2020, he instructed his solicitors to write to Ms Culver and to demand that [Child 1] be returned to his care on 24 January 2020.  A copy of Mr Culver’s solicitor’s letter of 22 January 2020 to Ms Culver appears at pages 37–39 of the hearing papers.

7. Ms Culver thereupon consulted her solicitors who responded to Mr Culver’s solicitor’s letter on 24 January 2020. Their letter appears at B19–B21. Ms Culver’s lawyers notified Mr Culver’s solicitors that [Child 1] had expressed suicidal ideation to his mother and to a counsellor.  Ms Culver’s solicitors also advised Mr Culver’s solicitors that Ms Culver had “very serious concerns about [Child 1’s] wellbeing” whilst [Child 1] was in Mr Culver’s care, although Ms Culver’s solicitors did not provide any precise details about what those concerns were.  Ms Culver’s solicitors advised Mr Culver’s solicitors that [Child 1] had advised Mr Culver that he wishes to live in [Town 1] with Ms Culver, where his brother [Child 2] was living.  Ms Culver’s solicitors noted that Mr Culver’s solicitors had suggested that the parties attend mediation and Ms Culver’s solicitors advised Ms Culver was amenable to that occurring urgently.  Ms Culver’s solicitors advised that they had arranged for an appointment with a mediator in the following week.

8. Shortly after that correspondence Mr Culver filed an application in the Federal Circuit Court of Australia seeking orders that essentially preserved the status quo of [Child 1] residing on a week about basis in Sydney with him and Ms Culver, but as an alternative for the situation where Ms Culver would remain in [Town 1] he sought orders that [Child 1] reside with him with the exception of every alternate weekend between 6pm Friday and 4pm Monday and half of each school holiday period when [Child 1] would reside with Ms Culver. 

9. Ms Culver did not demur to any of the matters set out in [13] to [20] above, and the Tribunal accepts that the circumstances set out in [13] to [20] above are what occurred. 

10. Based on that the Tribunal finds that a written agreement was made between Mr Culver and Ms Culver [in] March 2016 regarding the care of [Child 1].  That agreement was that [Child 1] would reside with each of them on a week about basis, meaning that the care of [Child 1] would be shared equally between them. 

11. The definition of “care arrangement” in section 5 of the Act imports the definition of that term in section 3 of the A New Tax System (Family Assistance) Act 1999.  The term as defined within section 3 of that Act includes, at paragraph (a), “a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relate to the care of the child” (hereafter limb (a) of the definition).  There is no requirement within limb (a) of the definition that the agreement needs to be signed by the parties to the agreement before it can constitute a care arrangement.  As indicated earlier, Services Australia in its objection decision said that the parenting agreement that Mr Culver and Ms Culver made [in] March 2016 was not a care arrangement because it had not been signed.  That position of Services Australia accords with its policy as expressed in 2.2.4 of the Child Support Guide. 

12. Because that is the policy of Services Australia and also because no one from Services Australia participated in the hearing, the Tribunal required Services Australia to provide written submissions on whether Services Australia had impermissibly read into limb (a) of the definition a requirement that the written agreement be signed in order that a written agreement can constitute a care arrangement.  Services Australia in its written submissions noted that limb (a) of the definition did not “specifically” require a written agreement be signed by both parties.  Services Australia also submitted the following:

    [T]he Registrar has taken the policy position that the signing and dating of a written agreement is required in most cases to evidence that both parents have in fact agreed to the terms of the written arrangement. This is especially so, given child support cases often involve disagreements over care. In this respect, the signing and dating of a written care arrangement provides evidentiary value of an agreement between the parties.

13. In this case the evidence establishes that Mr Culver and Ms Culver reached an agreement regarding where [Child 1] would reside and how they would care for [Child 1] and their agreement was recorded in writing [in] March 2016.  That agreement falls squarely within limb (a) of the definition.  There is no explicit legislative requirement that the agreement had to be signed for it to be a care arrangement. To require that, in the Tribunal’s view, is to read words into limb (a) of the definition in a circumstance where there is no apparent error by the Parliament with respect to the drafting of the definition of care arrangement.  That is to say, there was no apparent inadvertence by the Parliament by not including within limb (a) of the definition a requirement that the agreement be signed and it is therefore impermissible, in the Tribunal’s view to read into limb (a) of the definition a requirement that a written agreement be signed in order that it be a care arrangement.[1]

    [1] Taylor v The Owners- Strata Plan No 11564 [2014] HCA 9; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; R v Young (1999) 46 NSWLR 681.

14. The Tribunal therefore finds that the unsigned written agreement Mr Culver and Ms Culver made [in] March 2016 that [Child 1] live with them on a week about basis is a care arrangement within the meaning of that term as defined in section 5 of the Act.

15. The evidence establishes that Mr Culver, who had reduced care of [Child 1] after 24 January 2020, took reasonable action to ensure that that care arrangement was complied with, in that he instructed his solicitors to write to Ms Culver to require that [Child 1] be returned to his care on 24 January 2020, immediately upon his learning that Ms Culver proposed that [Child 1] move with her to [Town 1].  When [Child 1] did not return to his care, he initiated proceedings to seek orders to that effect. 

1. In accordance therefore with subsection 51(1) of the Act, section 51 is engaged in this case. 

2. The Tribunal pauses to note that Services Australia was correct to revoke under subsection 54F(1) the existing care percentages for [Child 1] with effect from the dates computed in accordance with paragraph 54F(3)(b), being 23 January 2020 for Mr Culver and 23 September 2020 for Ms Culver.  This is because the care of [Child 1] that was actually taking place from 24 January 2020 did not correspond with the existing care percentages for him and were there to be a change in the care percentages so as to reflect the actual care Mr Culver and Ms Culver were having of [Child 1] from 24 January 2020, there would be a change in his cost percentages.  Further, section 54G was not engaged in the circumstances of this case because Ms Culver was not making [Child 1] available to Mr Culver. 

3. The Tribunal does not consider there were special circumstances with respect to [Child 1] such that, in accordance with subsection 51(5), only a single percentage of care ought to be determined.  Whilst the evidence establishes that [Child 1] had issues with his mental health, the evidence does not establish that Mr Culver was unable to manage those issues.  Indeed, the evidence discloses that upon learning from [Child 1’s] psychologist that [Child 1] had issues with his mental health, Mr Culver took action to establish what those issues were and how to manage them. 

4. Given there were no special circumstances with respect to [Child 1], the correct decision for Services Australia to have made was, in accordance with subsection 51(2) of the Act, to determine two percentages of care for [Child 1] for each of Mr Culver and Ms Culver. The first percentages of care ought to have been, in accordance with subsection 51(3) of the Act, percentages that corresponded with the extent of care that Mr Culver and Ms Culver would have of [Child 1] under the care arrangement, which was 50% for each of them. The second percentages of care ought to have been, in accordance with subsection 51(4) of the Act, percentages that corresponded with their actual care of [Child 1], which is 0% for Mr Culver and 100% for Ms Culver.

5. The Tribunal accordingly sets aside the objection decision and makes those determinations.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

(a)In accordance with subparagraph 54F(3)(b)(i) of the Child Support (Assessment) Act 1989, Ms Culver’s care percentage for [Child 1] is revoked with effect on 23 September 2020;

(b)In accordance with subparagraph 54F(3)(b)(ii) of the Child Support (Assessment) Act 1989, Mr Culver’s care percentage for [Child 1] is revoked with effect on 23 January 2020;

(c)In accordance with subsection 51(3) of the Child Support (Assessment) Act 1989, the first percentage of care for Ms Culver and the first percentage of care for Mr Culver for [Child 1] are:

·Ms Culver 50%;

·Mr Culver 50%;

(d)In accordance with subsection 51(4) of the Child Support (Assessment) Act 1989, the second percentage of care for Ms Culver and the second percentage of care for Mr Culver for [Child 1] are:

·Ms Culver 100%

·Mr Culver 0%.