Frobisher and Child Support Registrar (Child support)

[2021] AATA 4235

Frobisher and Child Support Registrar (Child support) [2021] AATA 4235 (1 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/PC021958

APPLICANT:  Ms Frobisher

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member S Brakespeare

DECISION DATE:  01 September 2021

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 – 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 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. Ms Frobisher is the parent liable to pay child support to Mr [A] in respect of their two children. This review is in respect of the child [Child 1], who is 15 years old.

2. On 17 July 2020 an officer of the Child Support Agency made an interim care decision reflecting that each parent had 50% care of [Child 1] for the period 6 March 2020 to 30 March 2021 (the original decision). From 31 March 2021 the percentage of care determinations reflected actual care (100% to Ms Frobisher and 0% care to Mr [A]).

3. Ms Frobisher objected to the original decision on 16 April 2021. An objections officer disallowed the objection on 22 June 2021. Ms Frobisher lodged an application for review of the objection decision with the tribunal.

4. A hearing was held on 1 September 2021. Ms Frobisher gave evidence on affirmation to the tribunal via conference telephone.[1] The Child Support Agency provided the tribunal and Ms Frobisher with bundles of paper relevant to the review (237 pages).

   [1] Mr [A] did not accept an invitation from the tribunal to apply to be an added party to the review.

5. Relevant aspects of the evidence and material before the tribunal will be referred to in the tribunal’s consideration of the issues which it has to decide.

ISSUES

1. The statutory provisions relevant to this review are the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. The issues which arise in this case are:

   ·      Whether there should be an interim care determination in respect of the child; and

   ·      What is the date of effect of the tribunal’s decision?

CONSIDERATION

1. In relation to care change matters, the legislative scheme requires any new care percentage determination to be made following notification to the Child Support Agency of a change of care arrangements. The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same. 

2. In circumstances where many months have passed before the tribunal conducts the review, further changes to the care arrangements may have occurred. However, the tribunal may review only the primary decision. In the tribunal’s view, the legislative scheme deals with any such subsequent change of care by requiring further notification to the Child Support Agency - so that a new primary care percentage decision can be considered, and made if appropriate.   

3. The primary decision-maker’s essential task was to consider any pattern of care based on actual care to the time of notification and likely care thereafter (for an appropriate care period). In this respect, on review, there is a clear ‘temporal element’ in reviewing care percentage decisions having regard to the actual or likely pattern of care at the point in time of the initial notification to the Child Support Agency. It is not appropriate, in undertaking that task, to assess care based on what happened from initial notification to the Child Support Agency up to the time of the tribunal’s hearing - and evidence as to care for this period is not likely to be relevant, save to the extent that such evidence may inform the actual or likely pattern of care as at the date of notification to the Child Support Agency.

Issue 1 – Should there be an interim care determination?

1. Section 54F of the Act provides that an existing care percentage decision must be revoked if the Child Support Agency is notified, or otherwise becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. Section 54F applies if section 54G of the Act does not apply. (The tribunal is satisfied that section 54G does not apply in this case.)

2. The existing percentage of care determinations reflect that Ms Frobisher and Mr [A] each have 50% care of the child. It is not in dispute and the tribunal finds that as of 5 May 2020 Ms Frobisher had 100% care of the child and Mr [A] had 0% care.

3. Section 55C of the Act explains how to determine a parent’s cost percentage based upon their percentage of care for their children. The tribunal is satisfied that the change in care would affect the cost percentage and therefore the existing percentage of care determinations are to be revoked in accordance with section 54F of the Act.

4. Sections 49 and 50 of the Act require new care percentage determinations to be made where the tribunal is satisfied that the existing care percentage determinations should be revoked. These sections are subject to section 51 of the Act.

15.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking ‘reasonable action’ to have the court order (or a parenting plan) complied with by the other parent. However, if the Registrar determines that special circumstances exist in relation to the child, a single percentage of care can be determined. The Child Support Guide sets out the policy in relation to how care determinations should apply in a variety of circumstances. It states at 2.2.4, that an interim period may not apply if there are special circumstances as follows:

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.

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.

16.The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full Federal Court 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, the tribunal accepts that the policy is consistent with the objects of the Act and assists in making determinations under the legislation. Therefore, the tribunal will apply the same considerations as contained within the Child Support Guide.

1. It is not in dispute, and the tribunal finds that Mr [A] commenced court proceedings on 10 June 2020 in respect of having the child returned to his care, and the proceedings were adjourned to 7 September 2020.

2. Ms Frobisher told the tribunal that the Independent Children’s Lawyer (ICL) advised her verbally in June 2020 that the Court would not be forcing the child to return to Mr [A]’ care at that time due to the child’s mental health issues. Ms Frobisher acknowledged that there is no written Order to that extent. She also acknowledged that the matter was set down to be heard on 7 September 2020 and that Mr [A] was continuing to insist on 50/50 care.

3. On 27 April 2021 Ms Frobisher provided the Child Support Agency with a copy of a text message to her from Ms [B] (the ICL which states):

   I am writing to let you know that I have filed my Single Expert Report with the Family Court of WA

   In my report I confirm that in response to her expression of [blank] and presentation at hospital, [Child 1] has lived with you full time, by her own choice, since earlier in in 2020.

   I have subsequently set out the details of my interviews with [Child 1] and my recommendations that [Child 1] has been residing with you for her emotional mental health and that forcibly returning her to have any contact with her father would have been detrimental to her well-being. It is my recommendation to the Family Court that [Child 1]s wishes would be upheld and that she continues to reside full-time with you.

4. The Child Support Agency gave Mr [A] the opportunity to respond to Ms Frobisher’s objection. It was his view that Ms Frobisher was still in contravention of the Orders by not allowing the child to travel to both houses. He stated that he believed it was in the child’s best interests to spend time with both parents for her mental and physical health. He said that he would be returning to court as soon as Ms [B]’s report was provided to the courts. He noted that Ms Frobisher had prior history of contravening court orders; he also indicated that his belief was that Ms Frobisher had lied to the Court and the ICL. The tribunal notes that the test message from the ICL was sent almost 12 months from when the care change was first notified. It contains little detail about the basis of the recommendations, and in the tribunal’s view it would be informed by both events and the passage of time that have occurred since ethe original decision was made.   

5. The tribunal is not satisfied by the evidence before it that, at the time the care change occurred, there was a substantial risk to the child’s emotional or psychological well-being if the care arrangement had continued to be followed. The tribunal accepts that the child has mental health issues and that the child has indicated a preference to live with Ms Frobisher; however a court order that provides for the other parent to have substantial care should not be lightly dismissed and the child’s preference should not be the major or sole determinator of where the child should live.  Further, at the time the care change was notified, the case had been adjourned whilst information was being gathered for the Court.  Whilst no recovery order was made at the time, there was also no change to the Order. The tribunal is not satisfied that the circumstances in this case in respect of the child are such that they constitute special circumstances.

6. The tribunal therefore finds that in accordance with section 51 and subsection 53A(1) of the Act:

   ·For the period 6 May 2020 to 31 March 2021 Ms Frobisher and Mr [A] each have 50% care of the child;

   ·From 1 April 2021 Ms Frobisher’s percentage of care for the child is 100% and Mr [A]’s percentage of care for the child is 0%.

7. As the tribunal is not changing the original decision there are no date of effect implications arising from the late lodgement of the objection.

DECISION

The decision under review is affirmed.