Errington and Errington (Child support)

[2022] AATA 3966

Errington and Errington (Child support) [2022] AATA 3966 (25 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024074

APPLICANT:  Mr Errington

OTHER PARTIES:  Child Support Registrar

Ms Errington

TRIBUNAL:Member J Prentice

DECISION DATE:  25 August 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

1. The first percentage of care of the children for Mr Errington is 78% applying from 25 December 2021 to the end of the interim period, and the second percentage of care of [Child 1] for Mr Errington is 0% applying after the end of the interim period.

2. The first percentage of care of the children for Ms Errington is 22% applying from 25 December 2021 to the end of the interim period and the second percentage of care of [Child 1] for Ms Errington is 100% applying after the end of the interim period.

3. The maximum interim period that applies is a period of 52 weeks commencing on 16 December 2021.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked – court orders not complied with – 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 removed 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. As relevant to this application, Mr Errington and Ms Errington are the parents of [Child 1] (born January 2009). The application concerns a single decision of the Child Support Agency (CSA) about the recorded care for [Child 1] (only) in relation to a child support case registered with the CSA from 11 March 2020.

2. From 13 November 2021, the pre-existing percentages of care recorded by the CSA for the children were 78% to Mr Errington and 22% to Ms Errington.

3. On 28 December 2021, Ms Errington contacted the CSA and advised a change to the care position of the children from 25 December 2021 stating that [Child 1] had been 100% in her care since 25 December 2021. Ms Errington advised that there was a Court Order dated 16 December 2021 in place and care was no longer occurring in accordance with the Court Order.

4. On 5 April 2022, the CSA decided to apply an interim care period from 25 December 2021 to 28 January 2022 meaning that care of the children was to continue to be recorded as 78% to Mr Errington and 22% to Ms Errington for that interim period with the care of the children then to be recorded as 0% to Mr Errington and 100% to Ms Errington from 29 January 2022.

5. On 8 April 2022, Mr Errington objected to this decision and, on 31 May 2022, a CSA objections officer disallowed the objection.

1. On 13 June 2022, Mr Errington lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating:

   The decision breaches the legislation, ignores final federal circuit court orders that took 2 years to obtain, allows the ongoing abuse of a child, financially incentivises a parent committing a legal offence of breaching court orders to the detriment of a child.

1. The hearing of the application was held on 24 August 2022. Mr Errington participated in the hearing by conference telephone and gave evidence on affirmation. Ms Errington chose not to participate. The Child Support Registrar did not participate in the hearing and did not attend.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Errington and Ms Errington and the documentary material provided by the CSA (marked Exhibit 1, pages 1 to 372). Mr Errington submitted further material subsequent to the hearing.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support Assessment Act 1989 (the Act). Unless otherwise noted, all legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

10.  The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains governmental guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, whilst it may be guided by policy, it is not bound to follow 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. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

11. Sections 49 and 50 require initial percentage of care determinations to be recorded for a care period upon initial registration of a child support case or for new percentage of care determinations to be recorded when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

12.  Existing care percentages generally apply until a change is notified and a new decision is made and requires assessment of the actual or likely pattern of care to determine whether existing percentage of care determinations are to be revoked and new percentage of care determinations are to apply.

13.  A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances and is generally the 12-month period starting from the date the actual care of the child began or changed.

14.  The term pattern of care is not defined in the legislation. It involves an examination of a person’s future likely care.

15. Sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

16.  Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the numbers of nights that a child was, or is likely to be, in the care of a person.

17. Parents are normally recorded as providing the care they are actually providing pursuant to sections 49 or 50 of the Act.

18. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

19.  However, in certain circumstances, pursuant to section 51 parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a Court Order or parenting plan, rather than the care they were actually providing, that is an interim care determination may apply.

20.  It follows that the issues to be determined by the Tribunal are as follows:

(a)  Does an interim care determination apply and if so what percentage of care determinations apply for each parent and for what periods? And, if not,

(b)Should the pre-existing percentage of care determinations recorded by the CSA as at 28 December 2021 in relation to the children be revoked pursuant to sections 54F, 54G or 54H? And, if so,

(c)What are the new percentage of care determinations to be recorded for Mr Errington and/or Ms Errington? And,

(d)What is the date of effect of the revocation of the pre-existing percentage of care determinations and the date of effect of the new percentage of care determinations?

CONSIDERATION

21.  Relevant documentation and evidence provided by the CSA included as follows:

(a)Court Orders dated 16 December 2021;

(b)Notes from conversation with Ms Errington on 5 January 2022 confirming that care is not following Court Orders;

(c)Letter to Ms Errington dated 13 December 2021 from the Department of Child Safety, Youth & Women regarding the care of the children;

(d)Copy of care diary provided by Ms Errington;

(e)Copy of messages Mr Errington sent to Ms Errington via “Our Family Wizard” app, as instructed by the Court;

(f)Copy of letters dated 25 February 2022 to Ms Errington and Mr Errington from the Department of Children, Youth Justice & Multicultural Affairs advising that following an assessment being completed that “the outcome is Unsubstantiated – Children Not in Need of Protection”;

(g)Notes from conversations with both Ms Errington and Mr Errington re care arrangements for their daughter.

22.  Relevant additional documentation provided to the Tribunal by Mr Errington includes as follows:

(a)Letter from [a named law firm] dated 7 January 2022 advising that they no longer act for Ms Errington “in relation to children’s matters”;

(b)A statement by Mr Errington in response to some of the allegations made by Ms Errington;

(c)Copy of email from Mr Errington’s lawyers confirming that he has outstanding fees;

(d)Letter from Mr Errington’s lawyers dated 4 January 2022 attempting to arrange for the child to be returned to his care;

(e)Letter from Legal Aid dated 12 August 2022 to Mr Errington advising his application for legal aid for a Recovery Order was successful;

(f)Letter from Legal Aid dated 12 August 2022 to Mr Errington advising his application for legal aid for a Contravention of Parenting Orders was successful.

23.  Mr Errington told the Tribunal that he has always kept the CSA advised of any changes in the care arrangements.

24.  Mr Errington confirmed the application is only with respect to the care arrangements for his daughter, [Child 1].

25.  Mr Errington informed the Tribunal that after multiple interim Court Orders they eventually got a Final Court Order on 16 December 2021.  The Court Order recorded that the father, Mr Errington, was the primary carer and that Ms Errington’s time with her daughter was to be suspended for the remainder of the school holidays and the daughter was to be in the 100% care of Mr Errington for that period; with the exception of six hours on Christmas Day.

26.  However, on Christmas Day Ms Errington returned Mr Errington’s son to his care, but not his daughter.

27.  Mr Errington advised the Tribunal that he immediately messaged Ms Errington and demanded she return the child to his care, however, despite many attempts to contact her, Ms Errington did not return his messages or communicate in any way and did not return the child to his care.

28.  Mr Errington informed the Tribunal that he also contacted the CSA and told them what had happened.

29.  Mr Errington also contacted his lawyers.  However, Mr Errington explained to the Tribunal that it had cost him $200,000 in legal fees to eventually get to the point of obtaining Final Orders (which were then not enforced) and he still had an outstanding legal account with his lawyers of approximately $7,000 and they would not act formally on his behalf until he had settled his account.

30.  Mr Errington said that he immediately applied for legal aid for the purpose of issuing a Recovery Order and a Contravention Order; however, his application has only recently been approved.

31.  Mr Errington advised the Tribunal that throughout this time he continued to turn up to try and facilitate changeovers – but with no success.

32.  Mr Errington concedes that his daughter has not been in his care since 25 December 2021, however, he has constantly taken every action he can to remedy the situation in compliance with the Court Order.

33.  Mr Errington informed the Tribunal that on 15 April 2022 his daughter was “kicked out” by Ms Errington and has not been in her care since that date.  Mr Errington has advised the CSA of the change in care at that point in time (i.e. 0% to Mr Errington and 0% to Ms Errington).  Mr Errington reported that his daughter has run away with her stepbrother ([named] – aged 17 years old) and his girlfriend.  Mr Errington asked his daughter to return to his care but she refuses to do so without the other two.  Mr Errington advised that child safety services are now involved as his daughter has not been attending school.

34.  Mr Errington explained to the Tribunal that he had lodged an objection to the CSA decision of 5 April 2022 because it financially rewarded Ms Errington for breaching Court Orders and encourages her to do the wrong thing.

1. The Tribunal is satisfied that prior to 25 December 2021 care of the child was occurring pursuant to the 16 December 2021 Court Order, that is 78% to Mr Errington and 22% to Ms Errington; and that from 25 December 2021 there was a change in care with Ms Errington having 100% care of [Child 1] and Mr Errington having 0% care.

2. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from the date of the care change, viz 25 December 2021.

37. Accordingly, percentage of care determinations are required to be made under section 49 and section 50. The general rule is that percentage of care determinations recorded in the Child Support Register reflect actual care.

Issue 1 – Does an interim care determination apply and if so what percentage of care determinations apply for each parent and for what periods?

38.  There is exception to the general rule that a parent’s recorded care will reflect their actual care. Under section 51, the framework for determining when percentage of care determinations apply may be treated differently where a care arrangement is in place, it is not being complied with and the parent with reduced cared is taking reasonable action to ensure compliance. Essentially, the application of section 51 results in the care as specified under a breached care arrangement being recorded or continuing to be recorded for child support purposes during an “interim period” and the actual care occurring applying after the interim period ends.

39.  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 within the meaning of section 63C of the Family Law Act 1975; 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 the Family Law Act;
(iii) a State child order registered in accordance with section 70D of that Family Law Act;
(iv) an overseas child order registered in accordance with section 70G of that Family Law Act.

40.  Chapter 2.2.4 of the Guide provides guidance as follows:

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 signed and dated by both parties, and

·both parties agree on the care arrangements for the child, which are specific in the document.

A document that acknowledges that care is occurring in a particular way does not constitute a written agreement, even if it signed by both parties. The written agreement must indicate that the care arrangement constituted an agreed, ongoing care arrangement for the child.  

41.  Section 51 has potential application to the circumstances of this case. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

42.  The four requirements in subsection 51(1) are as follows:

(a)Care percentage determinations are required to be made pursuant to section 49 or section 50;

(b)A formal care arrangement (Court Order or Parenting Agreement) applies in relation to the children;

(c)The parents’ actual care of the children that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement; and

(d)The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.

43. The Tribunal has found that new percentage of care determinations are required to be made under section 49 or section 50.

44.  Paragraph 51(1)(a) is therefore satisfied.

45.  As regards whether a formal care arrangement applies in relation to [Child 1], it is not in dispute that prior to the notification of a change in care by Ms Errington, care was occurring pursuant to a Court Order dated 16 December 2021.

46.  Paragraph 51(1)(b) is therefore satisfied.

47.  The Court Order dated 16 December 2021 provided for [Child 1]’s care to be 78% to Mr Errington and 22% to Ms Errington.

48.  The Tribunal has found that from 25 December 2021 the actual care of [Child 1] was 0% to Mr Errington and 100% to Ms Errington. This does not comply with the extent of care of [Child 1] that Mr Errington and Ms Errington should have had or are to have under the Court Order.

49.  Paragraph 51(1)(c) is therefore satisfied.

50.  As regards whether Mr Errington is taking reasonable action to ensure that the Court Order is complied with, the term reasonable action is not defined in the Act. The Explanatory Memorandum to the Bill for the legislation that introduced section 51, referring to reasonable action, states:

For example, a parent may be negotiating with the other parent to have a care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.

51.  The Guide, at Chapter 2.2.4 provides guidance as follows:

The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. Reasonable action could include:

·     negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement

·     making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to

·     seeking or obtaining legal advice regarding the making of a court order

·     filing an application to a court to have an order made or enforced

·     attending a hearing at court to seek an order to be made or enforced, or

·     notifying the police that the child has been taken without consent.

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·     a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative

·     documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·     documentation of police or court action.

Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was no made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child.

52.  Based on the evidence before it as canvassed earlier in these Reasons, when the child was not returned to his care, Mr Errington took immediate action to recover her and continued a series of actions only restricted by his financial limitations.  Mr Errington has only recently (12 August 2022) received approval from Legal Aid to support his ongoing efforts to have his daughter returned to his care.

53.  The Tribunal is therefore satisfied that Mr Errington has taken reasonable action, and is continuing to take reasonable action, to ensure that the care arrangement is complied with since the change of care on 25 December 2021.

54.  Paragraph 51(1)(d) is therefore satisfied.

1. The requirements of subsection 51(1) having all been satisfied, subsection 51(2) requires the CSA to make and apply two percentages of care to the child support case for each person. The first percentage of care reflects the care that should have been provided pursuant to the care arrangement (subsection 51(3)). Such a decision is called an interim care determination and it applies for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (the interim period). The second percentage of care reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)).

2. Essentially, the application of section 51 for child support assessment purposes results in the percentages of care reflecting the care arrangement as specified under a breached care arrangement staying in place during an interim period and percentages of care reflecting the actual care occurring applying afterwards.

57.  Having determined that an interim period must apply in this matter, the Tribunal considered the duration of the interim period.

58.  Pursuant to paragraph 53A(1)(a) an interim period will usually begin on the change of care day unless an earlier interim period is required to also be taken into account.

59.  Pursuant to paragraph 53A(1)(b), the end date and therefore the length of the interim period depends on a number of factors, including whether or not the previous care arrangement was a Court Order, parenting plan or written agreement, and in some circumstances also whether and when the person with increased care took reasonable action to participate in family dispute resolution.

60.  Having had regard to the evidence the Tribunal is not satisfied that Ms Errington was taking reasonable action to participate in family dispute resolution.

61.  There is no evidence before the Tribunal of any action taken by Ms Errington to participate in family dispute resolution following 25 December 2021. The Tribunal therefore finds that Ms Errington did not take reasonable action to participate in family dispute resolution such that an interim period applies.

62.  The Tribunal has found that the change in care occurred on 25 December 2021 and that care occurring prior to that time was pursuant to a care arrangement, that is a Court Order dated 16 December 2021.

63.  The interim care period therefore begins on 25 December 2021.

64.  As Ms Errington did not take reasonable action to participate in family dispute resolution and the change of care occurred less than 26 weeks after the Court Order of 16 December 2021, the interim period ends at the end of 52 weeks starting on the date of the 16 December 2021 Court Order.

65.  It follows that the maximum interim period starts on 25 December 2021 and ends on 14 December 2022.

66.  Therefore pursuant to section 51(2), the first percentage of care of the children for Mr Errington is 78% applying from 25 December 2021 to the end of the interim period, and the second percentage of care of the children for Mr Errington is 0% applying after the end of the interim period.

67.  The first percentage of care of the children for Ms Errington is 22% applying from 25 December 2021 to the end of the interim period and the second percentage of care of the children for Ms Errington is 100% applying after the end of the interim period.

68.  As the Tribunal has found that an interim period applies it is not necessary to consider the further identified issues.

69.  As this decision is different to the decision reached by the objections officer, the decision under review will be set aside and a new decision substituted.

OTHER MATTERS

70.  As already noted, the legislative scheme deals with any subsequent change to the pattern of care by requiring further notification to be made to the CSA of such changes, and the CSA then is tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. The Tribunal understands that subsequent changes of care have been notified and decisions in relation to subsequent changes of care, if relevant will supersede the position as at 25 December 2021. That is a matter for the CSA to consider in relation to any subsequent notifications of changes in care.

DECISION

The Tribunal sets aside the decision under review and substitutes a new decision that, in respect of [Child 1]:

1. The first percentage of care of the children for Mr Errington is 78% applying from 25 December 2021 to the end of the interim period, and the second percentage of care of [Child 1] for Mr Errington is 0% applying after the end of the interim period.

2. The first percentage of care of the children for Ms Errington is 22% applying from 25 December 2021 to the end of the interim period and the second percentage of care of [Child 1] for Ms Errington is 100% applying after the end of the interim period.

3. The maximum interim period that applies is a period of 52 weeks commencing on 16 December 2021.