Dashwood and Dashwood (Child support)

[2022] AATA 3052

Dashwood and Dashwood (Child support) [2022] AATA 3052 (4 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/AC023931

APPLICANT:  Ms Dashwood

OTHER PARTIES:  Child Support Registrar

Mr Dashwood

TRIBUNAL:Member A Byers

DECISION DATE:  4 August 2022

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – court orders not complied with – whether reasonable action taken by parent with reduced care – whether reasonable action taken by parent with increased care – interim period applied for 14 weeks – 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. Ms Dashwood and Mr Dashwood are the parents of [Child 1] (born March 2008) and [Child 2].  This matter only concerns [Child 1’s] care following a Federal Circuit Court (FCC) order of [October] 2018.

2. The court order provided that [Child 1] (and [Child 2]) were to live with each parent on a week about basis.  Accordingly, for child support purposes the care arrangement in place according to the Child Support Agency (CSA) was that the parties each had 50% care of [Child 1].   

3. Although there were prior issues involving [Child 1’s] care, the present matter was precipitated by a change of care on 3 August 2021.  On 7 January 2022 Mr Dashwood is recorded as informing the CSA that [Child 1] had refused to return to Ms Dashwood’s overnight care on 3 August 2021. 

4. [In] August 2021 Howe J of the FCC ordered that Mr Dashwood return [Child 1] to Ms Dashwood’s care that day.  Howe J also ordered that the parties attend family dispute resolution (FDR) on 14 October 2021.  The matter was adjourned until 22 November 2021 for a compliance hearing.

1. Mr Dashwood attempted a handover on 4 August 2021 in accordance with Howe J’s order.  However, [Child 1] refused to cooperate and, following a police presence, it was agreed that [Child 1] remain with Mr Dashwood.  It is common ground that [Child 1] did not return to Ms Dashwood’s care at any material point and there is now an FCC order of June 2022 formally placing [Child 1] in Mr Dashwood’s sole care.

2. The FDR ordered by Howe J proceeded and [in] November 2021 Brown J of the FCC made a consent order according to which [Child 1] (and the parties) were to attend “reunification therapy” with clinical social worker, [Social Worker A].  The first available appointment was 10 January 2022.  Mr Dashwood did not attend the therapy.

3. On 19 February 2022 the CSA made an interim care decision whereby each party was taken to have 50% of [Child 1’s] care pursuant to the court order of October 2018 for a period of 14 weeks from 3 August 2021 to 8 November 2021.  The period of 14 weeks was said to recognise that Ms Dashwood was taking action to enforce the court order but that Mr Dashwood (as the parent with increased care) was involved in FDR to address the care issue. 

4. On 21 April 2022 an objections officer disallowed Ms Dashwood’s objection.

5. Ms Dashwood sought review by the Tribunal on 19 May 2022 and the matter was heard on 4 August 2022.  The parties appeared by conference telephone and both provided sworn evidence. 

10.  Prior to the hearing the CSA provided the “Section 37(1) Statement and Documents” comprising folios 1 to 322 (marked Exhibit 1).   

CONSIDERATION

11. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  Before determinations under section 49 or 50 can be made, the care percentage determinations in place must be revoked.  However, a revocation can occur only if the CSA was to determine (under section 49 or 50) a different percentage of care for a specified care period and the person’s cost percentage would change as a result.

[1]All further legislative references are to this Act unless otherwise stated.

12.  Section 51 applies where a person with reduced (actual) care has taken reasonable action to ensure compliance with a care arrangement (defined to include an arrangement under a court order).  This provision requires a decision-maker to make two care percentage determinations.  The first, under subsection 51(3), is the care percentage that the person should have had under the court order and the second, under subsection (4), is the actual care percentage.  Where special circumstances exist, subsections 51(5) and (6) empower a decision-maker to make a single care determination reflecting the actual care.     

13.  The effect of section 54B is that, where only one percentage of care for each parent was determined under section 51 (due to the presence of special circumstances), the new care determinations made take effect from the change of care day.  Where section 54B applies, despite the breaching of a court order an interim period (see below) does not apply. 

14.  The effect of section 54C is that, if new care percentage determinations are made under sections 49 or 50 as to the actual care taking place, for child support purposes the care arrangement specified under a breached court order stays in place during an interim period and the actual care occurring applies thereafter.

15.  For a court order, the maximum interim period for a determination under section 49 or 50 is the period beginning on the change of care day (as characterised in section 5) and ending on the later of 52 weeks starting from when the court order first takes effect and 26 weeks starting on the change of care day.

16.  As to the interim period relating to a court order that applies in a specific case, subsection 53A(1) provides, as far as is relevant:

53A  Meaning of interim period

(1)  An interim period for a determination under section 49 or 50 of a responsible person’s percentage of care for a child is (subject to subsection (4)) the period:

(a)  beginning on:

(i)  the responsible person’s change of care day, unless subsection (2) applies; … and

(b)  ending:

(i)  as set out in the applicable item of the following table, unless subparagraph (ii), (iii) or (iv) applies; or

(ii)  if the person referred to in paragraph 51(1)(d) who has reduced care of the child ceases to take reasonable action to ensure that the care arrangement is complied with—on the day the person so ceases; or

(iii)  if a care arrangement in relation to the child ceases to apply on a day—on that day; or

(iv)  if a care arrangement in relation to the child begins to apply on a day—on the day before that day.

17.  For present purposes, it will be instructive to include the relevant part of the table in subsection 53A(1):

Interim period
Item	If the following conditions are met …	the interim period ends …
1	(a) the care arrangement for the child is a court order; (b) the Registrar is not satisfied that special circumstances exist in relation to the child; (c) assuming table item 2 applied, the period that would apply under that item ends before the end of the period of 52 weeks starting on the day the court order first takes effect	at the end of that 52 week period.
2	(a) the care arrangement for the child is a court order; (b) the Registrar is not satisfied that special circumstances exist in relation to the child; (c) table item 1 does not apply	at the end of: (a) the period of 26 weeks starting on the change of care day, unless paragraph (b) applies; or (b) the period of 14 weeks starting on the day the person who has increased care of the child began continuously taking reasonable action to participate in family dispute resolution if: (i) that 14 week period ends before the end of the 26 week period referred to in paragraph (a); and (ii) the person takes that reasonable action throughout that 14 week period.
6	the Registrar is satisfied that special circumstances exist in relation to the child	on the day determined by the Registrar, being a day before the day the period would otherwise end if the special circumstances did not exist in relation to the child.

18.  Thus, an interim care period (if it applies at all) can only apply if the parent with reduced care takes reasonable action to ensure the care arrangement is complied with.  The maximum interim period can only potentially apply if, throughout the period, the reasonable action continues.  

19.  Whether the maximum interim period of 26 weeks applies depends on the application of items 2 and 6 in the above table.  Accordingly, a maximum interim period can be shortened if there are special circumstances concerning the child, or the parent with increased care is taking reasonable action to participate in FDR.

20.  Section 5 indicates the definition of FDR is to be found in section 10F of the Family Law Act 1975 (the FLA).  As far as is relevant, section 10F provides:

Family dispute resolution is a process (other than a judicial process):

(a)  in which a family dispute resolution practitioner:

(i)  helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other;

21.  Under section 10G of the FLA, FDR involves the presence of a person accredited or otherwise authorised to conduct FDR.

Was there a departure from the court ordered care?

22.  As indicated, it is not in dispute that a change of care occurred on 3 August 2021 whereby Ms Dashwood had 0% and Mr Dashwood 100% of [Child 1’s] care.  The prior care arrangement was 50% for each party in accordance with the court order of October 2018. 

23.  Accordingly, the care from 3 August 2021 for child support purposes is the actual care in place unless an interim period applies.  If an interim period applies, the equal share care arrangement under the order applies up to a maximum of 26 weeks from 3 August 2021.  That is, from 3 August 2021 to 31 January 2022. 

Did Ms Dashwood take reasonable action to ensure compliance with the court order?

24.  It is not in dispute in the present matter that Ms Dashwood did take reasonable action as required.  In this regard, Ms Dashwood instigated recovery proceedings for [Child 1’s] return to her care in accordance with the court order of October 2018, which resulted in Howe J’s recovery order of [August] 2021.  Ms Dashwood also had court proceedings in place throughout the period 3 August 2021 to 31 January 2022, which resulted in the final FCC order in June 2022 relating to [Child 1’s] care.

25.  It follows that an interim period applies in the absence of a finding of special circumstances under subsection 51(5).  The period will be 3 August 2021 to 31 January 2022 unless a shorter period applies because special circumstances (under section 53A) relating to [Child 1] are present, or Mr Dashwood was taking reasonable action to participate in FDR.

Are there special circumstances relating to [Child 1]?

26.  What amounts to special circumstances is not defined in the Act.  However, policy guidance is found in 2.2.4 of the Child Support Guide (the Guide).  Although the reference in the Guide is to the position under subsection 51(5), in the absence of further Guide commentary I accept this policy also accurately reflects the matters to be considered under section 53A.

27.  According to the Guide, special circumstances are those which caused the change in care and which would involve a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued.  Examples provided include violence towards the child, exposing the child to family violence, directly involving the child in a criminal act, exposing the child to substance abuse, or neglecting the child's basic needs.

28.  Mr Dashwood submitted that special circumstances in relation to a child are not restricted to issues that may be present in a parent’s home.  Although Mr Dashwood suggested there were occasions of “physical reprisal” by Ms Dashwood when [Child 1] spoke out, he did not suggest that the home environment was toxic in any of the ways described in the Guide.  Rather, the special circumstances were said to involve psychological harm to [Child 1] if he was required to spend time with Ms Dashwood, due both to his relationship with her and issues with his brother.

29.  The hearing papers include a detailed family report by clinical psychologist, [Psychologist A], dated 3 June 2021.  [Psychologist A] spoke in detail with all family members and Ms Dashwood’s current partner was also present.  There is nothing in [Psychologist A’s] report to support a view that [Child 1] was emotionally or psychologically disturbed by the prospect of week about care, or by the prospect of [Child 2’s] company whilst in Ms Dashwood’s care, and [Psychologist A’s] recommendation was that this care pattern continue.

30.  Mr Dashwood was disparaging of [Psychologist A’s] report.  Ultimately, [Psychologist A] is a clinical psychologist and I accept her professional opinion.  It is of course true that [Child 1] preferred to live with Mr Dashwood and was subsequently prepared to “run away” to avoid being in Ms Dashwood’s care.  However, I am satisfied this preference was not the result of anything that could be considered special circumstances in the terms of either subsection 51(5) or section 53A. 

Mr Dashwood’s participation in FDR

31.  As noted, [in] August 2021 Howe J ordered that the parties attend FDR on 14 October 2021.  The matter was adjourned until 22 November 2021 for a compliance hearing.

32.  The parties attended the FDR and (consistent with Brown J’s order of [November] 2021), the practitioner evidently recommended that [Child 1] (and the parties) attend reunification therapy. As noted, the therapy was with [Social Worker A] and the first available appointment was 10 January 2022. 

33.  [Social Worker A] reported to [Lawyer A] that Mr Dashwood refused to participate in the scheduled therapy session and it appears he also did not participate in some subsequent sessions.

34.  My view is that the reunification therapy is not part of the FDR process for the straightforward reason that it did not involve an FDR practitioner.  I am satisfied the FDR process (although conducted on 14 October 2021) finished with the FCC’s review published in Brown J’s order of [November] 2021.  Thus, although Mr Dashwood failed to attend the scheduled therapy on 10 January 2022 and breached Brown J’s order by doing so, he did everything necessary to participate in FDR.

35.  Accordingly, I consider the interim period ends 14 weeks starting from 3 August 2021 in accordance with the start date set in paragraph 53A(3)(b). The interim period is therefore 3 August 2021 to 8 November 2021 (as determined by the CSA). 

Date of effect for child support purposes

36.  Although an interim period applies, the change of care day for the purposes of section 5 remains 3 August 2021 (when [Child 1] was not returned to Ms Dashwood’s care).    

37.  It follows from my findings that the CSA correctly replaced the determinations in place before 3 August 2021 with determinations under subsections 51(3) and (4) as regulated by section 54C.  Accordingly, each party had 50% care of [Child 1] from 3 August to 8 November 2021 and Ms Dashwood had 0% care and Mr Dashwood had 100% care from 9 November 2021.   

DECISION

The Tribunal affirms the decision under review.