Dalding and Dalding (Child support)

Dalding and Dalding (Child support) [2023] AATA 430 (15 February 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/SC024876
APPLICANT:  Mr Dalding
OTHER PARTIES:  Child Support Registrar
Ms Dalding

TRIBUNAL:Senior Member K Dordevic, Presiding
Deputy President K Synon

DECISION DATE: 15 February 2023
DECISION:

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

for the period 30 September 2022 to 5 January 2023 the care record is to reflect that Mr Dalding has 28% care and Ms Dalding has 72% care of [the child]; and
from 6 January 2023 the care record is to reflect that Mr Dalding has 0% care and Ms Dalding has 100% care of [the child].

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 – written agreement 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

Mr Dalding (the father) and Ms Dalding (the mother) are the parents of two children. This application concerns the care of [their youngest child] (the child).
From 13 July 2020, following notification of a change to the children’s care arrangements, Services Australia – Child Support (the Agency) recorded the care percentages of the children as 28% to the father and 72% to the mother.
On 4 October 2022 the mother contacted the Agency to report that the child had been in her sole care since 16 September 2022.
On 8 October 2022 the Agency made the decision that the child was in the mother’s 100% care and the father’s 0% care from 16 September 2022. The father lodged a timely objection and on 19 October 2022 the Agency disallowed the father’s objection.
On 20 October 2022 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).
The matter was heard on 8 February 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 the Agency (folios 1 to 67).
The matter was deferred to allow the father to provide further evidence regarding a written care agreement, as applied to the child support assessment from 13 July 2020, by close of business on 15 February 2023. The mother advised that she would only require 24 hours in which to provide a response to any evidence provided by the father. Therefore, the matter was deferred to 17 February 2023. The father provided further evidence (marked folios A1 to A6) on the day of hearing. A copy of these documents was provided to the mother. On 14 February 2023 the mother advised that she did not intend to provide a response to the additional documents.
The tribunal reached its decision on 15 February 2023.

ISSUES

The statutory provisions relevant to this review are outlined in the Child Support (Assessment) Act 1989 (the Act).
The issues which arise in this case are as follows:
·      Should the existing determination of percentages of care in respect of the child be revoked? If so, from when should it be revoked?
·      Should a new determination of percentages of care be attributed to the mother and father in respect of the child?
·      If there is a change in the percentage of care attributed to the parents, from what date should the administrative assessment be amended to reflect the changes?

CONSIDERATION

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

Was there a care change on 16 September 2022?

On 12 June 2015 final parenting orders,[1] entered into by consent, dictated that the mother and father would provide seven nights of care each fortnight and half of each gazetted school holiday period. Relevant to this application, the order outlines when the children shall reside with the father and includes a provision “as agreed between the parties”.[2]
[1] At folios 8 to 13
[2] Order 4g at folio 10
Care arrangements are generally expected to be complied with. In this case the parents do not contest that they reached an agreement in July 2020 whereby they would no longer comply with the parenting orders and, from that date, the children would spend alternate weekends, from Friday to Sunday nights, in the father’s care. This care change was reported to the Agency by the mother and reflected in a care determination whereby the mother had 72% care and the father 28% care of the children from 13 July 2020.[3]
[3] At folio 47
There is no dispute between the parents that this care arrangement was largely adhered to and that, since 16 September 2022, the child has been in the mother’s sole care. The tribunal finds accordingly.
The mother’s testimony at hearing can be summarised as follows. The parenting orders were followed until the father relocated overseas. When he returned to Australia it was not feasible to resume the court ordered care as the father relocated to [Town], which was about 1.5 hours away from her home. This arrangement was agreed to by the father and was generally adhered to from 2020 until September 2022. She has checked her records and cannot provide any written communication to evidence this agreement, though if any communication did exist, she believes it would be by text message. She simply recalls notifying the Agency about the care change, that the Agency confirmed the care change with the father and so updated the care record accordingly.
On 16 September 2022 the child was due to go into his father’s care. However, this did not occur. She now understands that the children told the father that they could not spend the weekend with him as they had to attend a family event; she was only told after this arrangement had been made that they had fabricated this excuse. After months and years of the child telling her that he did not want to go into the father’s care, the child became adamant that he would not spend alternate weekends with the father. On 1 October 2022 the mother advised the father by text message that the child wanted to live with her on a full-time basis and would not be attending his home that weekend. The father’s response was that the child must come into his care. The child remains in her full-time care.
The father’s position is as follows. The children’s care arrangements changed in 2020, following a period of six months where he lived overseas. He explained that when he returned to Australia, he stated that it was more “practical” for the children to remain in their mother’s care during the school week and spend alternate weekends with him, as he no longer lived near the children’s school. He explained that such is the strained relationship between him and the mother they negotiated the change to the care arrangement by text message. He was confident that he could provide a copy of this communication.
Sometime before the weekend of 16 September 2022, the children contacted him and advised that they would be unable to stay with him that weekend as scheduled, as they had to attend a family event. The father states that in the circumstances, he accepted that they would not be in his care that weekend. However, it was the next fortnight, 30 September 2022, that the child did not come into his care as was scheduled. He received no communication about this and was unable to contact the child. He called the police to request a welfare check. In his view, the changed care arrangement occurred on 2 October 2022 and not before. This is the date from which the interim period should apply. Furthermore, the interim period should end on 23 December 2022, as this is the date on which he communicated with the child and accepted the child’s wish to remain in his mother’s care. The father went on to explain that he does not want to force the child to do something that he does not want to do.
Sections 49 and 50 of the Act require the primary decision maker to consider the actual or likely pattern of care, by reference to a care period considered appropriate, having regard to all the circumstances. It is not in dispute that the father did not care for the child from 16 September 2022; this was apparently on the basis that the children negotiated with the father that they would remain in the mother’s care to attend a family event. As it transpired, this was not the case. The mother’s evidence is that she communicated to the father the child’s wishes to not have ongoing, overnight care on 1 October 2022.
It is on this basis that the tribunal is persuaded that the start date of the relevant care period is 30 September 2022 and not 16 September 2022 as determined by the Agency. Whilst the tribunal accepts that the child did not attend the scheduled care on 16 September 2022, it is apparent that this reflected the flexibility of the care arrangements. However, the tribunal gave significant weight to the fact that the child did not have approval from the father not to go into his care as scheduled on 30 September 2022 and the mother’s evidence that on 1 October 2022 she communicated to the father that the child wanted to reside with her on a full-time basis.
Section 54F of the Act is satisfied in this case. This provision states that a new determination must be made and existing determination revoked if there is a change to a parent’s level of care that would change their care percentage and their cost percentage. The tribunal has determined that the father had 0% care and the mother 100% care of the child from 30 September 2022; therefore, the existing care determination of 28% to the father and 72% to the mother must be revoked.

Should an interim period apply?

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. 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 (subsection 51(5) of the Act). 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 (section 53A of the Act).
In this matter, the father seeks to have an interim period apply. He relies on a text message between the parents dated 11 July 2020, reproduced below,[4] as indicating the care arrangement:
[4] At folio A6
[Image deleted]
It is not in dispute that the arrangement, outlined in the text messages above, whereby the children would live with the mother on weekdays and spend alternate weekends and half of all the school holidays with the father, was largely followed for about two years. It is this care arrangement that the mother reported to the Agency on 16 July 2020. The question then, for this tribunal is whether the text message constitutes a care arrangement, within the meaning of paragraph 51(1)(b) of the Act.
Section 5 of the Act states that the term “care arrangement” has the same meaning as in the A New Tax System (Family Assistance) Act 1999, which relevantly states:
“care arrangement" in relation to a child means:
(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 relates to the care of the child; or
(b) a parenting plan for the child; or
(c) any of the following orders relating to the child:
(i) a family violence order within the meaning of section 4 of the Family Law Act 1975 ;
(ii) a parenting order within the meaning of section 64B of that Act;
(iii) a State child order registered in accordance with section 70D of that Act;
(iv) an overseas child order registered in accordance with section 70G of that Act.
Section 63C of the Family Law Act 1975 does not define written agreement, though defines a “parenting plan” as an agreement that is in writing, made between the parents of a child and is signed and dated by the parents of the child.
The Child Support Guide, which sets out Child Support’s policy, relevantly states at 2.2.4:[5]
[5] is a disputed care arrangement?
A dispute in relation to the care of a child exists where a care arrangement for the child is in place and there is a departure from the terms of the arrangement by one of the parties and the other party disputes the care change.
For child support purposes, a care arrangement in relation to a child means:
·a written agreement (see details below) between the parents of the child, or between a parent of the child and another person that relates to the care of the child, or
·a parenting plan for the child within the meaning of section 63C of the FL Act, or
·any of the following orders relating to the child
oa family violence order within the meaning of section 4 of the FL Act
oa parenting order within the meaning of section 64B of that Act
oa state child order registered in accordance with section 70D of that Act, or
oan overseas child order registered in accordance with section 70G of that Act.
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 for the child, which are specified in the document.
A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it is signed by both parties. The written agreement must indicate that the care arrangement constitutes an agreed, ongoing care arrangement for the child.
Disputed care is different from situations where there is disagreement about the facts regarding the care of a child, whether or not a care arrangement is in place for the child. See 2.2.1 for information about how the Registrar deals with conflicting information or disputed facts about a care arrangement.
1. In the absence of judicial consideration, the tribunal has had regard to this relevant policy, although it is not bound by the policy if there are cogent reasons not to apply it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229 the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the tribunal to take into account in performing its review task.
2. In this instance, the tribunal is not persuaded that the policy is consistent with the Act, which simply states that a care arrangement is a written agreement; it makes no reference to the agreement being signed and dated by the parents. In fact, the Guide reflects the meaning of a parenting plan, as outlined in the Family Law Act1975. The tribunal is of the view that, had the legislature intended this, the legislation would have reflected these requirements in the definition of a care arrangement.
3. The mother does not contest the veracity of the text messages provided by the father. Furthermore, the text message provides evidence of the care arrangement that was followed by the parents for some two years. Some five days after the agreement was reached by text message, the mother communicated this to the Agency and the father, when contacted, agreed that it reflected the ongoing care arrangement. It is also noted that the parenting orders envisaged that the children’s care arrangements could be amended in situations where it was agreed between the parents.
4. Taking all these factors into account, the tribunal concludes that, in this particular case, there are cogent reasons not to adopt the policy. The tribunal finds that there was a care arrangement in place for the child from 11 July 2020. The tribunal is also satisfied that, from 30 September 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 father, 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 father provided a section 60I Certificate[6] completed by a family dispute resolution practitioner from [a] Family Relationship Centre dated 1 November 2022 which states that family dispute resolution did not proceed as the mother failed to attend, noting that the last date of attempted attendance was 24 October 2022. It is on this basis that the tribunal is satisfied that the father took reasonable action to have the care arrangements adhered to for the purposes of paragraph 51(1)(d) of the Act from the date the child did not come into his care, being 30 September 2022.
  [6] At folio A3.
7. This section 60I Certificate also supports the finding that the mother did not take reasonable action to have the care arrangements adhered to for the purposes of section 53A of the Act.
8. Section 53A of the Act provides a table for working out the interim period. In this particular factual scenario, where more than 48 weeks has elapsed between the date of the written agreement and the change of care day and the mother has not taken reasonable action, subparagraph 53A(1)(a)(i) of the Act dictates that it starts on 30 September 2022 and subparagraph 53A(1)(b)(i) dictates that it ends 14 weeks later, that is, on 5 January 2023.
9. Thus, during the period 30 September 2022 to 5 January 2023 the care record in respect of the child is to reflect the care the father and mother were to have under the care arrangement, being 72% to the mother and 28% to the father. The second percentage reflects the actual care of the child from 6 January 2023, the day after the interim period ended, being that the father’s care percentage is 0% and the mother’s care percentage is 100%.
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 Guide:[7]
  [7] align="left">…
  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.
1. No evidence was tendered to establish, to the tribunal’s satisfaction, that the child was at risk of harm in the father’s care. 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 continues to apply.
DECISION
The tribunal sets aside the decision under review and, in substitution, decides that:
- for the period 30 September 2022 to 5 January 2023 the care record is to reflect that Mr Dalding has 28% care and Ms Dalding has 72% care of [the child]; and
- from 6 January 2023 the care record is to reflect that Mr Dalding has 0% care and Ms Dalding has 100% care of [the child].

[2023] AATA 430

15 February 2023

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies