Frith and Frith (Child support)

Frith and Frith (Child support) [2024] AATA 3575 (8 August 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2024/BC027941
APPLICANT:  Ms Frith
OTHER PARTIES:  Child Support Registrar
Mr Frith

TRIBUNAL:Member J Thomson
DECISION DATE: 8 August 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the care percentage determinations for [Child 1] to be applied in the assessment are 13% to Ms Frith and 87% to Mr Frith from 10 April 2023, notified on 11 October 2023.

The Tribunal decides not to make a subsection 87AA(2) determination pursuant to the Child Support (Registration and Collection) Act 1988 and the date of effect of the Tribunal’s new care percentage determinations can only be from the date of Ms Frith’s objection on 15 April 2024.

CATCHWORDS

CHILD SUPPORT – percentage of care – change to the likely pattern of care – parent not deliberately withholding care – existing percentage of care determinations revoked – new determinations made – 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 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

Ms Frith and Mr Frith are the parents of [Child 1], born 2011.
Ms Frith seeks review of an objection decision made by Services Australia (Child Support) on 6 May 2024. This decision disallowed her objection to an earlier Child Support decision dated 17 February 2024 to reflect the Family Assistance Office (the FAO) determination of care of [Child 1] as 0% to Ms Frith and 100% to Mr Frith from 1 May 2023, notified on 11 October 2023.
The Tribunal heard the matter on 19 July 2024. Ms Frith attended the hearing via conference telephone and gave affirmed evidence. Mr Frith did not attend the hearing despite being given notice of the time, place and date for the hearing and being contacted by telephone by the Tribunal hearing room attendant and case manager at the time and date of the hearing. As he did not respond to those calls, the Tribunal decided to proceed with the hearing in his absence.
The Tribunal had before it documentation provided by Child Support (folios 1 to 80), admitted into evidence and marked Exhibit 1. Ms Frith provided documentation (folios A1 to A15), admitted into evidence and marked Exhibit A. Ms Frith had copies of these documents with her at the hearing.

ISSUES

The issues which arise in this case are:
·      Should the existing care determinations be revoked? And, if so
·      What are the new percentage of care determinations? And
·      What is the date of effect of the decision?

CONSIDERATION

In reaching its decision the Tribunal has considered the affirmed evidence given by Ms Frith at the hearing and the documents contained in Exhibits 1 and A before the Tribunal at the hearing.
The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent ‘has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. Section 50 applies, relevantly, if the parent ‘has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. When there is an existing care determination for a child, a parent may notify the Registrar of a care change and the existing care determinations can be revoked under section 54F, 54G or 54H of the Act.
Subparagraph 50(1)(b)(ii) of the Act provides, relevantly, that if the Registrar is satisfied that the parent has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to the circumstances, subsections 50(2) and (3) of the Act require the Registrar to determine the parent’s percentage of care for the child during the care period and that care percentage must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied the parent has had, or is likely to have, during the care period.
To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had, or likely to be had, by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, but a longer period may be considered, depending on the circumstances of each case.
On 11 October 2023, Mr Frith notified the FAO of a change in care for [Child 1], contending that since 1 May 2023 he was having 100% care of [Child 1] (see page 31 of Exhibit 1). Prior to his notification, the care percentages being assessed by Child Support for [Child 1] were 100% to Ms Frith and 0% to Mr Frith.
On 17 February 2024, Child Support became aware of Mr Frith’s 11 October 2023 FAO change in care notification (see page 32 of Exhibit1) and aligned the care determinations made by the FAO of 100% to Mr Frith and 0% to Ms Frith with effect in the child support assessment for Ms Frith from 1 May 2023 and for Mr Frith, from 11 October 2023.
However, as set out in the Reasons below, Ms Frith’s evidence places the change in care date as 10 April 2023, the Easter Monday on which [Child 1] was to be returned to Ms Frith following her agreed stay over the Easter long weekend with Mr Frith.
The Tribunal intends considering the patterns, or likely patterns, of care of the parents over a 12-month care period from 10 April 2023 to 9 April 2024 (the care period).
As noted above, Mr Frith did not attend the Tribunal hearing and Ms Frith’s affirmed evidence given at the hearing and set out below was unchallenged.
Ms Frith gave evidence that since 5 March 2020 there had been a Domestic Violence Protection Order (DVO) in place against Mr Frith, protecting, relevantly, [Child 1], and restricting Mr Frith’s contact with the child, other than with the written consent of Ms Frith or in compliance with a Court Order, as a consequence of which Ms Frith said Mr Frith had little contact with the children, [Child 2] and [Child 1], for a period of approximately 3 years, and [Child 1] had remained in Ms Frith’s 100% care until Easter 2023.
According to Child Support’s records at pages 32 to 42 of Exhibit 1, Child Support notified Ms Frith on 17 February 2024 of Mr Frith’s notification of change in care of [Child 1] on 11 October 2023. Ms Frith lodged her objection on 15 April 2024, more than 28 days after notification of Child Support’s decision to accept Mr Frith’s change in care notification of his 100% care of [Child 1] lodged with the FAO in October 2023.
Ms Frith said that prior to Easter 2023, [Child 1] was residing with her and in her 100% care, although Mr Frith had been having limited contact with [Child 1] since 2019. [Child 2], the elder child in the assessment, turned 16 in February 2024 and was making his own decisions about which parent he lived with, and was residing with Mr Frith.
Ms Frith gave evidence that at the commencement of the Easter 2023 long weekend on Friday 7 April 2023, [Child 1] went to stay with Mr Frith with Ms Frith’s consent and was due to return to her care on Monday 10 April 2023.
Ms Frith said she recalled receiving a call from the police to inform her that Mr Frith had invited them to call at his house to confirm it would be in order for [Child 1] to stay at his house over the Easter weekend, to which she said she made no objection. However, on Monday 10 April 2023, the day she was due to collect [Child 1] from Mr Frith’s house, she received a text massage from Mr Frith informing her that [Child 1] would be remaining in his care from 10 April 2023.
Ms Frith’s evidence regarding her attempts to recover care of [Child 1] was sketchy and lacking in detail. She said she sought advice from local lawyers in the nearby suburb of [Suburb 1] about her recovery options; she was living in the nearby suburb of [Suburb 2] at the time. She gave evidence of the commencement of negotiations with Mr Frith to conclude a Family Law property settlement in respect of which her lawyers submitted documentation to Mr Frith encompassing issues of contact and child support for [Child 1] but no final binding agreement was concluded.
She gave evidence that she contacted Relationships Australia to initiate a mediated settlement of the care issues relating to [Child 1], but Mr Frith failed to respond to the last mediation appointment on 23 July 2023 and Ms Frith said she decided not to proceed with Court action to recover her care of [Child 1] because she did not wish to put [Child 1] through the trauma of litigation. She gave evidence of the child suffering from mental health issues for which she was being treated at the [Clinic 1] and that she was on medication up until Easter 2023.
In her evidence at the hearing, Ms Frith described [Child 1], at 12 years of age (as she was in April of 2023), as a strong-willed adolescent and difficult to control. She gave evidence of the child’s failure to attend school throughout 2023, of her ultimate expulsion from school at the end of 2023 and her refusal to attend school in 2024.
As noted above, the child was already receiving treatment for mental health issues, and there was evidence in the Child Support papers, Exhibit 1, of the father citing disagreements between Ms Frith and [Child 1]. At page 49, Exhibit 1, Mr Frith makes reference to an incident between the mother and [Child 1] as a consequence of which, he contends, [Child 1] refused to return to Ms Frith’s care. Ms Frith commented in the course of her evidence that [Child 1] made her own decisions as to which parent she chose to stay with and when she chose to do so.
Periodic disagreements between adolescent children and their parents are not an uncommon feature in most family situations and the evidence in this case suggests that the change in care on 10 April 2023 preceding Mr Frith’s contact with both the police and Ms Frith concerning [Child 1] continuing to remain in his care was most likely founded on a decision by [Child 1] not to return to her mother’s care, at least for the time being, as appears from the course of care events post 10 April 2023, rather than a case of Mr Frith deliberately withholding care.
In response to questioning by the Tribunal at the hearing, Ms Frith gave evidence of dates on which she had care of [Child 1] after 10 April 2023. She gave this evidence with the assistance of her mobile phone text message records of her communications directly with [Child 1]. A summary of those dates of care and the circumstances relating to that care is as follows:
·      Friday 2 June 2023 to Sunday afternoon 4 June 2023 – 2 nights of care. This was in anticipation of [Child 1’s] forthcoming birthday [in] June 2023. Ms Frith collected [Child 1] and her brother, [Child 2], from Mr Frith’s house with his consent. Both children remained in her care on Friday and Saturday nights; Ms Frith returned them to Mr Frith’s house on Sunday afternoon;
·      Friday 23 June 2023 to Sunday afternoon 25 June 2023 – 2 nights of care. Ms Frith collected both children from Mr Frith’s house (she commented that his driver’s licence had been suspended at this time for 5 years). Both children remained in her care with Mr Frith’s consent until she returned them to his house on Sunday afternoon;
·      Thursday 13 July 2023 to Saturday afternoon 15 July 2023 – 2 nights of care. Ms Frith collected [Child 1] from her [sport 1] lessons, returning her to Mr Frith on Saturday afternoon, again with Mr Frith’s consent;
·      Thursday 27 July 2023 to Sunday afternoon 30 July 2023 – 3 nights of care. Ms Frith collected both [Child 1] and her brother, [Child 2], from Mr Frith’s house with his consent, taking them to her house to assist her removal from her [Suburb 2] rented premises to her new rented town-house premises at [Suburb 3];
·      Monday 7 August 2023 to Sunday afternoon 13 August 2023 – 6 nights of care. Ms Frith said this extended care arrangement was concluded between [Child 1] and Ms Frith. In response to Tribunal questioning about Mr Frith’s attitude to this arrangement, Ms Frith said the arrangement was on a loose basis, initiated by [Child 1], in her own strong-minded manner, with Mr Frith’s tacit approval. It was a period during which [Child 1] was not attending school and at the time of Ms Frith’s final attempt at reaching a mediated settlement of the care arrangements for [Child 1], which, as noted above, failed when Mr Frith failed to attend the mediation session set for 23 July 2023;
·      Friday 1 September 2023 to Thursday afternoon 7 September 2023 – 6 nights of care;
·      Wednesday 18 October 2023 to Sunday afternoon 22 October 2023 – 4 nights of care;
·      Sunday 19 November 2023 to Friday afternoon 24 November 2023 – 5 nights of care;
·      Sunday 3 December 2023 to Friday afternoon 8 December 2023 – 5 nights of care;
·      Saturday 16 December 2023 to Thursday afternoon 21 December 2023 – 5 nights of care.
Ms Frith said she had no care of [Child 1] for the remainder of December 2023 and the whole of January 2024. However, her care pattern resumed in February 2024 as follows:
· Monday 5 February 2024 to Sunday afternoon 11 February 2024 – 6 nights of care;
Ms Frith and [Child 1] had a disagreement following her stay with Ms Frith on 11 February 2024 and Ms Frith had no further care for the remainder of February and March 2024, but her care resumed in April 2024 from 1 April 2024 to the afternoon of 3 April 2024 - 2 further nights of care.
The Tribunal finds the evidence, on balance, is that there was a change in care for [Child 1] on 10 April 2023 when the child was due to return to Ms Frith’s pre-existing 100% care but did not do so. Mr Frith notified the FAO of this change on 11 October 2023, asserting the change in care date as 1 May 2023 and Child Support was not notified of the change in care until the FAO notified the change in care to Child Support on 17 February 2024.
Ms Frith was notified of Child Support’s decision to accept that change in care by letter dated 17 February 2024.
The Tribunal finds that from 10 April 2023 to 9 April 2024 (the relevant care period under consideration) Ms Frith’s sporadic periods of care of [Child 1] as set out above, totalling 48 nights of care, equate to 13% care (48 / 365 x 100 = 13.15%, rounded down pursuant to section 54D of the Act to 13%). Mr Frith’s care percentage determination pursuant to section 50 of the Act would, correspondingly, be 87%.
The Tribunal finds section 54G of the Act has no application in this case because the pre-existing care determinations were 100% to Ms Frith and 0% to Mr Frith, and therefore, he does not have a determination made under section 50 of the Act and paragraph 54G(1)(c) of the Act is not satisfied.
The Tribunal has found that the care of [Child 1] actually taking place during the care period does not correspond with the responsible person’s existing percentage of care for the child, and has determined new care percentage determinations of 13% to Ms Frith and 87% to Mr Frith are to apply in place of the pre-existing care percentages of 100% to Ms Frith and 0% to Mr Frith, as a consequence of which, the care percentages of the parents will change. The Tribunal finds section 54F of the Act applies in this case.
Accordingly, the Tribunal will revoke the pre-existing care percentage determinations of 100% to Ms Frith and 0% to Mr Frith and replace them with care percentage determinations of 13% to Ms Frith and 87% to Mr Frith.
As the Tribunal has reached a different conclusion to that reached by the objections officer in the decision under review, the Tribunal sets aside the objection decision and, in substitution, decides that care percentage determinations of 13% to Ms Frith and 87% to Mr Frith are to apply from 10 April 2023, notified on 11 October 2023.
As Mr Frith notified the FAO on 11 October 2023 of a change in care for [Child 1], which the Tribunal has found occurred on 10 April 2023, more than 28 days after the change in care date, pursuant to subparagraph 54F(3)(b)(i) of the Act, the date of the revocation of the pre-existing care percentages of 100% to Ms Frith and 0% to Mr Frith will take effect, in Mr Frith’s case as the responsible parent with increased care, from 10 October 2023, that being the end of the day before the FAO was notified of the change in care, and in Ms Frith’s case, as the responsible parent with reduced care, from the day before the change in care day, that being 9 April 2023, pursuant to the provisions of subparagraph 54F(3)(b)(ii) of the Act. Pursuant to section 54B, the new care percentage of 13% to Ms Frith applies from 10 April 2023 and the new care percentage of 87% to Mr Frith applies from 11 October 2023.
The Tribunal questioned Ms Frith regarding her late objection on 15 April 2024 to Child Support’s initial decision of 17 February 2024 sent to her via email and recorded as ‘Online Read’ in Child Support’s notification record at page 42 of Exhibit 1. She said she did not recall receiving Child Support’s letter of 17 February 2024 notifying her of that decision. She did not become aware of the decision until she went to her online myGov account on or about 15 April 2024 and noticed the reference to the change in care for [Child 1], increasing Mr Frith’s care from 1 May 2023.
The Tribunal is not satisfied Ms Frith has provided an explanation for her failure to lodge her objection within the 28-day statutory period outlined in the Child Support (Registration and Collection) Act 1988 (the Registration Act) sufficient to meet the requirements of special circumstances preventing her doing so within the 28-day time frame set out in subsection 87AA(2)(b) of the Registration Act.
Accordingly, the Tribunal decides not to make a subsection 87AA(2) determination and the date of effect of the Tribunal’s new care percentage determinations can only be from the date of Ms Frith’s objection on 15 April 2024.

DECISION

[2024] AATA 3575

8 August 2024

Key Legal Topics

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Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies