Estell and Child Support Registrar (Child support)

[2021] AATA 4229

Estell and Child Support Registrar (Child support) [2021] AATA 4229 (29 July 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC021266

APPLICANT:  Mr Estell

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member D Cox (Presiding)

Member S Cullimore

DECISION DATE:  29 July 2021

DECISION:

The decision under review is set aside and a new decision is substituted that an interim care determination is made for the period from 19 October 2020 to 26 November 2020.

This means that during that period the care percentages of the parents are fixed at 28% to Mr Estell and 72% to Miss Estell, for child support purposes.

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 – court orders 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 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. The following information is taken from the records of the Department of Human Services – Child Support (“the CSA”) and is not in dispute, and the Tribunal finds each matter as a fact.

2. Mr Estell and Miss Estell are the parents of two children, [Child 1] and [Child 2].

3. The child support case was first registered on 31 March 2009 and is Registrar Collect.

4. Court orders made on 3 June 2020 in the Federal Circuit Court provided for the care of [Child 2] and [Child 1].[1]

   [1] See C74-C78

5. From 2 February 2018 onwards, following the court orders, the care percentages for both children were recorded by the CSA as 28% to Mr Estell and 72% to Miss Estell.

6. On 19 November 2020 Miss Estell contacted the CSA.[2]

   [2] C21

7. In that contact, Miss Estell advised a change of care, she had gained 100% care of both [Child 2] and [Child 1] from 19 October 2020.

8. On 14 December 2020 a delegate made the following decisions:

   ·      From 19 October 2020 to 26 November 2020, the care of [Child 2] and [Child 1] was reflected as 100% care to Miss Estell; and

   ·      From 27 November 2020, the care of [Child 2] and [Child 1] reflects 72% to Miss Estell and 28% to Mr Estell.[3]

   [3] C13

9. On 30 December 2020 Mr Estell lodged an objection.

10. On 12 April 2021 an objections officer disallowed the objection.

11. On 19 April 2021 Mr Estell sought a review of the objection decision by this Tribunal.

12. In terms of child support, under the objection decision, Mr Estell was liable to pay Miss Estell:

    ·      $343.21 per fortnight from 1 August 2020 to 18 October 2020;

    ·      $460.04 per fortnight from 19 October 2020 to 26 November 2020; and

    ·      $343.21 per fortnight from 27 November 2020 to 31 October 2021.[4]

    [4] C54-59

DOCUMENTARY EVIDENCE AND HEARING

1. The Tribunal had before it a bundle of documents provided by the CSA. This bundle is referred to in this decision as C1 to C113.

2. Mr Estell provided further documents before the hearing (A1 to A58).

3. The hearing occurred on 29 July 2021 via teleconference and Mr Estell made verbal submissions.

4. Miss Estell was given the opportunity but declined to participate in the hearing.

5. The Tribunal made its decision on 29 July 2021.

ISSUES

1. The issues to be decided by the Tribunal are:

   ·      which of the care provisions contained in the Child Support (Assessment) Act 1989 (“the Assessment Act”) apply to the circumstances? and

   ·      should an interim care determination be made and, if so, for what period?

CONSIDERATION

The relevant child support law

1. The CSA makes determinations of each parent’s percentage of care in accordance with sections 49 to 54L of the Assessment Act.

2. The legislative scheme requires the CSA to determine if a new care percentage should be fixed following notification to it of a change of the care arrangements.

3. Care percentages normally follow the pattern of actual care which is occurring between the parents: section 50 of the Assessment Act.

4. Actual care may be worked out based on the number of nights that the child was or is likely to be in the care of the person: section 54A.

5. If section 51 of the Assessment Act applies, then section 50 does not apply: this is provided for by subsection 50(4).

6. Sections 51 to 53A provide that – in some circumstances – care percentages should follow the terms of court orders, although those court orders are not being followed. These decisions, if made, are put in place for a limited time only, and are known as “interim care determinations”.

7. These provisions cover situations where actual care that a parent is having “does not comply with the extent of care” that the person should have under the court orders: paragraph 51(1)(c). They are not dependent upon wilful contraventions of orders, by either parent, as such.

8. It is a requirement for these rules to apply that the parent with the reduced care “is taking reasonable action to ensure” that the court orders are being followed (see paragraph 51(1)(d)).

9. The length of the interim care determination (which is itself known as the “interim period”) for a particular case is prescribed in the “Table” in subsection 53A(1) of the Act.

10. That Table identifies a number of factors which are relevant in fixing the length of the interim period namely:

    ·      the date of the court orders;

    ·      whether the person with increased care has taken, and has continuously been taking, “reasonable action to participate in family dispute resolution”;

    ·      whether the parent with the reduced care “ceases to take reasonable action” to ensure that the court orders are being followed; and

    ·      whether “special circumstances exist in relation to the child” (item 6 of the Table).

11. As the Tribunal interprets item 6 of the Table, an interim care determination can, effectively, be refused where “special circumstances exist in relation to the child”. That is, the care percentages will in this event follow actual care, potentially from the change of care day, onwards.

12. The Child Support Guide speaks of “special circumstances” encompassing situations where a child is at risk of physical or mental harm in the care of the parent with reduced care.

13. The overall effect of this complex set of rules is that the maximum “interim period” can be 52 weeks, 26 weeks or 14 weeks, depending on the factors mentioned in paragraph 29, above.

14. The interim period is only 14 weeks if the person with increased care (here Ms Estell) has taken, and has continuously been taking, “reasonable action to participate in family dispute resolution”.  

15. That term “family dispute resolution” is itself defined to mean that the person should either initiate and participate in family dispute resolution or should participate in family dispute resolution initiated by the other parent (subsection 53A(3)).

16. “Family dispute resolution” is also defined to mean the mediation of, for example, care issues by an accredited “family dispute resolution practitioner”. It does not include a judicial process (see Family Law Act 1975, section 10F).

17. In essence, the CSA has based its decision in this matter solely on the finding that the parent with the reduced care, Mr Estell, did not take reasonable action to ensure that the court orders were being followed (paragraph 51(1)(d)). It did not address any other issues.

DISCUSSION OF EVIDENCE, CONCLUSIONS AND REASONING

1. Against the above background, the Tribunal has carefully considered all of the information on the CSA file and the evidence and submissions (both verbal and documentary) as presented both to the CSA, and to it.

Special circumstances in relation to the children

1. The Tribunal noted that there are two domestic violence orders (DVOs) dated 9 November 2020. In one the aggrieved is Miss Estell and the respondent is Mr Estell.  In the second Mr Estell is the aggrieved and respondent is Miss Estell.  Both orders were made by consent without admissions.[5]

   [5] A45-A56

2. There is clearly a history of disputes between Mr Estell and Miss Estell and the DVOs are indicative of that. 

3. However, on the issue which it must resolve, the Tribunal is not convinced, on the evidence which is before it, that the circumstances amount to special circumstances in relation to the safety of the children when in the care of Mr Estell, pursuant to section 53A of the Assessment Act.

Reasonable action to enforce court orders

1. The objections officer determined Mr Estell had not taken reasonable action to ensure compliance with the court order.

2. The Tribunal finds that the relevant events relating to care are as follows:

   ·      Mr Estell’s care did not occur in accordance with the court orders on the following dates:

   a) on 27 September 2020 [Child 2] was withheld for 8 nights;
   b) on 30 October 2020 [Child 2] and [Child 1] were withheld for 3 nights; and

   c) on 13 November 2020 [Child 2] and [Child 1] were withheld for 3 nights.

   ·      According to Mr Estell’s evidence his school holiday care for both children was to commence on Sunday 27 September 2020 at 12 midday with handover at the children’s school.  At 4 pm on Friday 25 September 2020 Mr Estell’s solicitors sent him an email informing him that Miss Estell’s solicitors had advised the children would be dropped off at 3 pm on 27 September.  Shortly after midday on 27 September 2020 Mr Estell received a call from the children telling him they were waiting at the school to be collected.  When he arrived [Child 2] remained in the car with her mother.  She sent Mr Estell a text informing him that she would stay with him the next weekend.  Which did not eventuate.[6]

   ·      Both [Child 2] and [Child 1] were in Mr Estell’s scheduled care on the weekend commencing 16 October 2020.

   ·      On 30 October 2020 Mr Estell received an email from his solicitors with a letter from Miss Estell’s solicitors attached saying the children refused to spend time with him that weekend.

   ·      On 13 November 2020 Mr Estell attended the school to pick up the children.  He found Miss Estell there with the children in the car.  They did not come to him.  She remained for some time.  He called the police and asked them to enforce the custody order which they refused to do.  Miss Estell left with the children in the car.

   [6] A9-A11

3. Mr Estell gave the following account of his efforts to enforce the orders through action by his solicitors:

   ·      As care of [Child 1] and [Child 2] was a long running dispute he was in constant contact with his solicitor.

   ·      When the children were not made available in accordance with the court orders he immediately phoned his solicitor.

   ·      An affidavit dated 19 November 2020 was sworn and posted to the Federal Circuit Court seeking to enforce the orders.

   ·      Mr Estell’s solicitor advised him that the contravention application was returned by the Registrar of the Federal Circuit Court unfiled because the matter was due for a mention/interim hearing on 25 November 2020 when the matters raised by him in the contravention application could be dealt with.

   ·      At the hearing on 25 November 2020 the matter was listed for a contested interim hearing on parenting issues on 27 January 2021.

   ·      Mr Estell told the Tribunal a 2-day trial was scheduled for May 2021 to determine permanent care orders. The contravention application could have been considered then. However, because of Miss Estell’s conduct on the first day, the Judge adjourned and scheduled a 4-day trial, which is not expected to take place for 18 months.       

4. The Tribunal finds, based on the above facts and the sequence of events, that Mr Estell was at all material times taking reasonable action to have the court orders followed and did not “cease to take” such reasonable action. He immediately sought legal advice and a contravention application was promptly prepared and sent to the Federal Circuit Court.

5. In short, it is difficult to see what else Mr Estell could have done, or that he could have acted in a more timely way, to enforce the court orders. The finding by the objections officer (at C14) that Mr Estell had not taken reasonable action to ensure compliance with the court order cannot be sustained given the evidence provided by Mr Estell.

6. The Tribunal finds therefore that Mr Estell was at all material times taking reasonable action to enforce the court orders.

Taking reasonable action to participate in family dispute resolution

1. “Family dispute resolution” is an extra-judicial process.

2. As Miss Estell declined to appear at the hearing the Tribunal did not have an opportunity to take evidence as to whether she had taken any steps to initiate a family dispute resolution process.

3. In any event the need for such a process was removed when care arrangements consistent with the court order resumed on 27 November 2020.

4. The Tribunal finds that Miss Estell did not take reasonable action to participate in a family dispute resolution process such as a mediation to resolve any issues relating to the contraventions of orders that occurred between 19 October 2020 and 27 November 2020.

Conclusions

1. The Tribunal finds in conclusion that (i) there are no special circumstances in relation to the children; (ii) Mr Estell was at all material times taking reasonable action to have the court orders followed; and (iii) Miss Estell did not at any stage take reasonable action to participate in family dispute resolution.

2. Mr Estell should have had care of [Child 2] for 8 days from 27 September 2020. And of both [Child 2] and [Child 1] for 3 days on the two weekends commencing on 30 October 2020 and 13 November 2020.

3. Care was restored to 72%/28%, as per the previous court orders, from 27 November 2020.

4. It follows that he is entitled to an interim care determination of 38 days from the change of care day on 19 October 2020 and ending on 26 November 2020. His child support liability should be adjusted accordingly.

DECISION

The decision under review is set aside and a new decision is substituted that an interim care determination is made for the period from 19 October 2020 to 26 November 2020.

This means that during that period the care percentages of the parents are fixed at 28% to Mr Estell and 72% to Miss Estell, for child support purposes.