Ferraro and Marberry (Child support)

[2020] AATA 1767

Ferraro and Marberry (Child support) [2020] AATA 1767 (3 March 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018173

APPLICANT:  Ms Ferraro

OTHER PARTIES:  Mr Marberry

Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   3 March 2020

DIRECTION TO ALTER DECISIONS OR REASONS FOR DECISIONS:

Pursuant to section 43AA of the Administrative Appeals Tribunal Act 1975, the Review Number on the cover page of the Decisions and Reasons for Decisions is amended from 2019/BC018173 to 2020/BC018173.

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC018173

APPLICANT:  Ms Ferraro

OTHER PARTIES:  Mr Marberry

Child Support Registrar

TRIBUNAL:Member P Jensen

DATE OF DECISION:  3 March 2020

DECISIONS:

The objections officer’s care decision is affirmed.

The objections officer’s decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that paragraph 87AA(1)(b) of the Child Support (Registration and Collection) Act 1988 was not satisfied in respect of Mr Marberry’s objection to the original care decision.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – date of change - existing percentage of care determinations revoked and new determinations made - decision under review affirmed - date of effect - whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist - decision under review set aside and remitted to the Child Support Registrar for reconsideration

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 DECISIONS

1. Ms Ferraro and Mr Marberry are the parents of [Child 1] who was born in 2012 and [Child 2] who was born in 2015. A child support case was registered with the Department of Human Services – Child Support (“the CSA”) from 18 August 2018. Each parent was recorded as providing 50% care to both children with effect from 18 August 2018.

2. On 11 February 2019 the CSA decided to record Ms Ferraro as providing 100% care to both children with effect from 30 January 2019. On 12 September 2019, Mr Marberry objected to that decision. An objections officer allowed his objection and made the following two decisions:

   ·    Ms Ferraro and Mr Marberry are each recorded as providing 50% care to both children with effect from 30 January 2019 to 7 May 2019, and Ms Ferraro is recorded as providing 100% care to both children with effect from 8 May 2019.

   · A determination is made pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”). The determination meant that the objections officer’s care decision had full retrospective effect notwithstanding the objections officer’s finding that Mr Marberry had not objected to the original care decision with 28 days of being served with a notice of that decision.

3. Ms Ferraro applied to the Tribunal for review of those two decisions.

4. From 30 January 2019, Ms Ferraro provided full-time care to both children by withholding care from Mr Marberry. Ordinarily, she would be recorded as providing 100% care with effect from 30 January 2019. However, section 51 of the Child Support (Assessment) Act 1989 (“the Assessment Act”) provides that in certain circumstances, a person can be recorded as providing the care they should have provided pursuant to a formal care arrangement such as a parenting plan, rather than the care they actually provided. Such decisions are called interim determinations. Subsection 51(1) of the Assessment Act states:

   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.

1. The recording of a change in care involves the revocation of the existing care determinations (which in this case are the determination to record each parent as providing 50% care to both children with effect from 18 August 2018) and the making of new care determinations.

2. As a starting point, section 54G provides for the revocation of the existing care determinations if certain requirements are satisfied, including requirements that a parent was previously recorded has providing at least 14% care, and subsequently provides less than 14% care despite the other parent making the child available. Mr Marberry was recorded as providing 50% care but was actually providing 0% care, but Ms Ferraro was not making the children available. Section 54G is not satisfied.

3. Section 54F of the Assessment Act also provides for the revocation of the existing care determinations. The requirements of section 54F are satisfied in this case. In particular:

   (a)     the CSA was notified of a change in care;

   (b) changing the parents’ recorded care from 50% - 50% to 100% - 0% would change each parent’s cost percentage as that term is defined in section 55C of the Assessment Act;

   (c)     section 54G does not apply; and

   (d)     an interim determination had not previously been made in respect of the parents’ care pursuant to the parenting plan.

4. Sections 49 and 50 of the Assessment Act provide for the making of new care determinations. Returning to the requirements of subsection 51(1) of the Assessment Act, the CSA was required to revoke the previous care determinations pursuant to 54F and make new care determinations pursuant to section 50 (for Ms Ferraro) and section 49 (for Mr Marberry). Paragraph 51(1)(a) is satisfied.

5. Turning to paragraph 51(1)(b), the term “care arrangement” is defined in section 5 of the Assessment Act and includes a written parenting plan. On 25 October 2018, both parents entered into a written parenting plan. Broadly speaking, the parenting plan provided that the children “will reside with each parent equally on a 4-day rotation”. The parenting plan also stated that the parents “will review this parenting plan in 3 months and agree this plan will remain in place until a new plan is signed.” No new plan has been signed. Nevertheless, Ms Ferraro stated that the parenting plan ceased to apply when she unilaterally ‘withdrew [her] consent”. She also stated that, in any event, the parenting plan did not have any legal effect. She did not provide any legal authority in support of those submissions. The parenting plan states some requirements for changing the parenting plan, and those requirements were not satisfied. More generally, section 63D of the Family Law Act 1975 states the requirements for varying or revoking a parenting plan, and those requirements were not satisfied.

6. On 7 February 2019 the Magistrates Court made a Temporary Protection Order (“the TPO”) which included the following:

   (4)[Mr Marberry] is prohibited from contacting or attempting to contact or asking someone else to contact [Ms Ferraro] by any means whatsoever including telephone, text or internet.

   - [Mr Marberry] may without contravening this order attend the place of residence to have contact with the children as set out in writing between the parties or in compliance with an order of the court.

7. The order generally prohibited Mr Marberry from contacting Ms Ferraro, but then made an exception if Mr Marberry was attending Ms Ferraro’s home to have contact with the children “as set out in writing between the parties”. The parenting plan, which was still in force but not being complied with when the TPO was made, set out in writing when Mr Marberry (and Ms Ferraro) would have contact with the children. For those reasons I find that when Ms Ferraro started withholding care on 30 January 2019, and when she continued to withhold care after the TPO was made on 7 February 2019, a care arrangement applied. Paragraph 51(1)(b) is satisfied.

8. From 30 January 2019, neither parent was providing the level of care envisaged by the parenting plan. Paragraph 51(1)(c) is satisfied.

9. When Ms Ferraro started withholding care of the children, Mr Marberry promptly contacted a solicitor with a view to resuming his care of the children. On 23 September 2019, Mr Marberry’s solicitor wrote:

   Communication by way of correspondence between the parties’ solicitors for the period of February 2019 until to [sic] July 2019 commenced but no agreement was reached between the parties. Ms Ferraro refused our client to spend time with the children unless supervised …

10. During the hearing, further details were provided concerning that communication. On 4 March 2019, Mr Marberry’s solicitor asked Ms Ferraro to allow Mr Marberry to provide care for four nights from 11 March 2019. That request was refused. On 8 March 2019, Mr Marberry’s solicitor asked Ms Ferraro to allow Mr Marberry to provide care for four nights from 18 March 2019, and noted that the parenting plan remained in force. That request was refused. On 10 April 2019, Mr Marberry’s solicitor once again asked Ms Ferraro to allow Mr Marberry to provide a four-night block of care. Once again, the request was refused. Mr Marberry explained that he did not contact Ms Ferraro directly due to the TPO. Meanwhile, the parents waited for a hearing in respect of Ms Ferraro’s application for a Protection Order. I find that Mr Marberry was taking reasonable action to ensure that the parenting plan was complied with. Paragraph 51(1)(d) is satisfied.

11. Section 53 states that section 51 does not apply in certain circumstances. The requirements of section 53 are not satisfied in this case. In particular, paragraph 53(1)(c) is not satisfied for the reasons stated in Mendez and Morton [2019] AATA 3844.

12. For those reasons, section 51 applies, and an interim determination must be made unless “special circumstances exist in relation to the child”: subsection 51(5). Departmental policy has been developed to assist decision-makers. The Tribunal is not bound by departmental policy, but will apply it unless there is a reason to not apply it. Such an approach promotes consistency in decision-making. The relevant policy appears at 2.2.4 of the Child Support Guide:

    The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child.

    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.

    The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

    Suitable evidence may include (but is not limited to):

    ·a police report detailing violent behaviour towards a child or the person with increased care,

    ·an intervention order preventing contact with the child or person with increased care, or

    ·statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

13. Ms Ferraro stated that she withheld care because she had concerns about the children’s safety while they were in Mr Marberry’s care. She said Mr Marberry smacked the children and would lock them in a bedroom. She said the children did not want to return to Mr Marberry’s care, and they were in tears at the prospect of returning to his care. Ms Ferraro did not provide any corroborative evidence. During the Tribunal hearing, both parents referred to a court report dated 29 July 2019 which they had with them for the hearing, but which was not before the Tribunal. The author of the report noted that the children did not show any signs of fear or concern at the prospect of returning to Mr Marberry’s care. Mr Marberry stated that the report concluded that the children would not be at risk if they returned to Mr Marberry’s care, but it is not clear that the report made that express finding. I invited Ms Ferraro to identify any passages in the report that indicated that the children had been, or would be, at risk while in Mr Marberry’s care. She referred to a passage in which it was noted that both parents had drunk alcohol to excess during their relationship, and Mr Marberry needed to reduce his consumption of alcohol. There was no express finding that the children had been, or would be, at risk while in Mr Marberry’s care. The evidence presented to the Tribunal does not establish that special circumstances existed for the purposes of subsection 51(5) of the Assessment Act.

14. The interim period commenced on the date on which the change in care occurred, which was 30 January 2019: paragraph 53A(1)(a) of the Assessment Act. The interim determination ended 14 weeks later, on 7 May 2019: paragraph 53A(1)(b) of the Assessment Act. For those reasons, the objections officer’s care decision will be affirmed.

15. The original care decision was made on 11 February 2019. Mr Marberry had a right to object to that decision, but his objection would be late if he objected more than 28 days after being served with a notice of the original care decision: paragraph 87AA(1)(b) of the Registration Act. A late objection could potentially affect the date of effect of any subsequent variation to the original care decision. The objections officer concluded that Mr Marberry’s objection was late, but in reaching that conclusion the objections officer did not identify the date on which the CSA issued a notice of the original care decision or the date on which Mr Marberry was served with the notice. In fact, the CSA did not issue a notice of the original care decision to either parent, so the 28-day period never commenced. Section 87AA of the Registration Act therefore does not apply.

DECISIONS

The objections officer’s care decision is affirmed.

The objections officer’s decision to make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 is set aside and the matter is remitted to the Child Support Registrar for reconsideration in accordance with a direction that paragraph 87AA(1)(b) of the Child Support (Registration and Collection) Act 1988 was not satisfied in respect of Mr Marberry’s objection to the original care decision.