Franks and Gabriel (Child support)

[2020] AATA 1745

Franks and Gabriel (Child support) [2020] AATA 1745 (11 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/BC017678

APPLICANT:  Ms Franks

OTHER PARTIES:  Child Support Registrar

Mr Gabriel

TRIBUNAL:Member M Baulch

DECISION DATE:  11 February 2020

DECISION:

The decision under review is affirmed.

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 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. This application for review is about the percentages of care that have been applied to a child support assessment for Ms Franks and Mr Gabriel by the Department of Human Services – Child Support (the Department).

2. On 1 August 2019 a departmental employee decided that there should be a change to the care percentages applying to the child support assessment for [the Child].  It was decided that the care percentages would be 50% to Ms Franks and 50% to Mr Gabriel for the period 1 June 2019 to 6 September 2019, and 100% to Ms Franks from 7 September 2019 (the decision under review).

3. Ms Franks objected to that decision and, on 17 October 2019, that objection was disallowed.  Ms Franks has now applied to this tribunal for an independent review of the Department’s decision.

4. A hearing into the application for review was held by the tribunal on 11 February 2020. Ms Franks and Mr Gabriel participated in the hearing by conference telephone and both gave evidence under affirmation during the hearing. A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. The tribunal had before it relevant documents provided to it by the Department pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 which were labelled folios 1 to 180, copies of which both parties confirmed they had received prior to the tribunal hearing. 

ISSUES

1. The statutory provisions relevant to this review application are found within the child support law, in particular the Child Support (Assessment) Act 1989 (the Act).

2. The issue which arises in this case is what should the care percentages be in the child support assessment that applies to Ms Franks and Mr Gabriel?

CONSIDERATION

1. The Act provides for an administrative assessment of the child support payable by one parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the number of children and their percentages of care. 

2. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to the children during a care period.  Since at least 13 December 2012 the percentages of care applied to the child support assessment recorded Ms Franks as having 51% of the care of [the Child] and Mr Gabriel as having 49%.  These percentages of care align with a written court order dated 13 December 2012.

3. On 14 June 2019 Ms Franks advised the Department that she had 100% care of [the Child] from 1 June 2019.  At hearing, Mr Gabriel did not dispute that he has not had any care of [the Child] since 1 June 2019.

4. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies and that care arrangement is not being complied with (see section 51 of the Act).

5. A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1]  I was satisfied that the court order dated 13 December 2012 constitutes a care arrangement.  I therefore considered if section 51 of the Act should be applied in this case.

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999.

6. Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a written parenting plan, is not being complied with and the parent with reduced care takes “reasonable action” to have the written parenting plan complied with.  What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[2]

   ·      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 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.

   I am not bound by policy as set out in the Guide.  However, in Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, Justice Brennan held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [2] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.46 – can be found at >

   Mr Gabriel’s evidence was that he obtained legal advice in June 2019 and was advised against taking any action through the courts to enforce the court orders, because doing so might estrange him further from [the Child].  In relation to what action he had undertaken, Mr Gabriel stated that he had engaged in the mediation processes and repeatedly contacted Ms Franks in attempts to have the previous care arrangements resume. 

7. Ms Franks stated that it was she who had initiated the mediation and, other than Mr Gabriel continuously contacting her, she feels that he did not take any action seeking to have the court orders enforced.

8. Negotiating with the other party and attending appointments at a Family Relationship Centre or other dispute resolution service are listed in the Guide as reasonable action and, based upon Ms Franks’s own evidence, these are steps Mr Gabriel took.  Having considered this evidence, I was satisfied that Mr Gabriel took reasonable action to have the court order dated 13 December 2012 complied with care.

9. As a consequence, subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under the care arrangement (or court order) and the other being the care actually taking place.  In this instance, I concluded that those percentages of care would be:

   ·      care according to court order – 50% for Ms Franks and 50% care for Mr Gabriel (pursuant to subsection 51(3) of the Act); and

   ·      care that is actually occurring – 100% for Ms Franks and 0% for Mr Gabriel (pursuant to subsection 51(4) of the Act).

10. 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 meaning of special circumstances is not defined in the Act, but is described in the Guide, which states:

    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.

11. Ms Franks stated that [the Child] ceased spending time with her father because that is what she wished.  There were issues around [the Child]’s wellbeing which meant that Ms Franks thought it inadvisable to force the issue.  Ms Franks stated that Mr Gabriel was not being abusive or doing anything specific to cause [the Child] not to be in his care, but later claimed that Mr Gabriel’s conduct constituted emotional abuse of [the Child].

12. Ultimately, allegations of abuse are easy to make.  However, the Guide states that allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.  The Guide says 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. I identified no evidence that [the Child] ceased being in Mr Gabriel’s care due to abuse and declined to exercise the discretion provided for in subsection 51(5) of the Act not to make an interim care determination in this case. 

14. Section 53A of the Act provides a table for working out the end date for the interim period.  The end date is dependent on whether the parent with increased care, in this case that is Ms Franks, themselves takes reasonable action to participate in family dispute resolution.  The Guide describes reasonable action to participate in family dispute resolution as follows:

    Reasonable action means initiating or participating in family dispute resolution with an accredited family dispute resolution practitioner within a reasonable period of the change of care day. 

    There is no dispute that Ms Franks initiated family dispute resolution, in particular between [the Child] and Mr Gabriel.  I found that Ms Franks herself has taken reasonable action.  Therefore, the interim care determination made under section 51 of the Act applies for 14 weeks; that is until 6 September 2019.

15. As I have found that an interim determination applies, section 54C of the Act sets out that the percentage of care determined pursuant to the court order applies for the interim period.  I therefore found that the care percentage determinations that should apply to the child support assessment are as follows:

    ·      from 1 June 2019 to 6 September 2019, Ms Franks should be recorded as having 50% care of [the Child] and Mr Gabriel as having 50% care; and 

    ·      from 7 September 2019 the care percentages should be recorded as Ms Franks having 100% care of [the Child] and Mr Gabriel as having 0% care.

16. Having arrived at the same decision as that of the objections officer, I consequently affirmed the decision under review.

DECISION

The decision under review is affirmed.