Froud and Child Support Registrar (Child support)

[2021] AATA 2286

Froud and Child Support Registrar (Child support) [2021] AATA 2286 (26 May 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/AC021076

APPLICANT:  Mr Froud

OTHER PARTIES:  Child Support Registrar    

TRIBUNAL:Member R King

DECISION DATE:  26 May 2021

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that, from 21 May 2020 until 3 July 2020 the care percentages for [the child] were 100% with [Ms A] and 0% with Mr Froud and from 4 July 2020, the care percentages for [the child] were 81% with [Ms A] and 19% with Mr Froud.  The tribunal’s decision has effect from 4 July 2020.

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 - 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

1. Mr Froud and [Ms A] are the parents of [the child] who is currently aged 18 years.  At all relevant times, Mr Froud was paying child support to [Ms A] under an administrative assessment. Prior to 18 September 2020, the Child Support Agency (CSA) determined that Mr Froud had 19% of [the child]’s care and [Ms A] had 81% of his care. 

2. On 31 August 2020, [Ms A] contacted the CSA and advised that [the child] had been 100% in her care since 1 April 2020.  After taking evidence from both parents, the CSA decided, on 18 September 2020, that [the child] had been entirely in the care of [Ms A] since 1 April 2020.  On 2 December 2020 (more than 28 days after receiving this decision), Mr Froud lodged an objection.

3. On 24 February 2021, an objections officer disallowed Mr Froud’s objection.  The objections officer found that there was insufficient evidence to disturb the original decision.  This meant that [the child] remained 100% in [Ms A’s] care and there was no basis for changing the care percentages that had been recorded after she advised that [the child] was 100% in her care.

4. On 22 March 2021 (less than 28 days after receiving the objection decision), Mr Froud applied to the tribunal for review of the care percentage decision.  [Ms A] did not apply to be added as a party to Mr Froud’s application. 

5. The tribunal conducted a hearing on 26 May 2021.  Mr Froud participated by conference telephone and provided sworn evidence.  Although not a party to the proceedings, [Ms A] provided evidence with Mr Froud’s consent.

CONSIDERATION

1. Mr Froud told the tribunal that he accepted that travel restrictions associated with the COVID-19 pandemic prevented [the child] from travelling from Sydney to Adelaide with him in accordance with the court order, prior to 1 July 2020.  However, once the borders re-opened, he expected visits to resume but was unable to negotiate arrangements with [Ms A].  He said that he continued communication with [Ms A] until she failed to respond to an email he sent on 23 September 2020.  It was clear to him then that she was withholding [the child] and he initiated court action, lodging his application and associated documents on 1 October 2020.  This application resulted in resumption of regular care and a “catch-up” care period.

2. [Ms A] told the tribunal that there was a combination of reasons [the child] did not spend time with his father from July 2020.  She said that [the child] was reluctant and she respected his wishes.  She said that she was also concerned about disruption to his year 12 studies.  She said that there remained a risk of sudden border closures, which could mean that [the child] had to go into quarantine, which would make it very difficult for him to maintain his year 12 studies.

3. In response to [Ms A’s] evidence, Mr Froud said that there was no significant risk to [the child]’s study because it was quite feasible for him to undertake any study he needed to do during the term breaks while with him in Adelaide.  Mr Froud told the tribunal that there was no risk of [the child] being required to stay in quarantine because the public was always provided with notice regarding impending border closures and given time to get home.

4. Subsequent to the hearing, Mr Froud provided a copy of orders issued by the Federal Circuit Court, on 8 May 2013, 13 December 2017 and 23 May 2018.  These orders provide that [the child] was to live with [Ms A] in Sydney but visit his father in Adelaide for two nights once a month, for half the school holidays and on some other occasions, as specified.

Application of the law

1. The relevant provisions are contained in the Child Support (Assessment) Act 1989 (“the Act”). The Child Support Guide contains detailed policy guidelines for CSA officers to use when applying the Act. The tribunal is not bound by these guidelines but, for the sake of consistency in decision making, the tribunal follows the guidelines, unless it would be clearly inconsistent with the proper application of the law to do so.

2. Under section 50 of the Act, when a person applies to the CSA for an assessment, the pattern of care must be determined, and a care percentage recorded for each parent. The evidence before the tribunal suggests that the CSA initially determined that Mr Froud had 19% of [the child]’s care and that [Ms A] had 81% of his care.

3. Section 54F of the Act requires that, when the CSA becomes aware that the actual care of a child does not correspond with a care percentage determined under section 50, and that a change in the care percentage would have an effect on the cost percentage, the original care percentage determination is revoked. If the change is insufficient to require a change to the cost percentage, the original determination is revoked under section 54H of the Act. In either case, a new care percentage is then determined under section 50 of the Act that does correspond with the actual percentages of care provided by each parent.

4. The evidence before the tribunal suggests that the initial care determination was revoked by the CSA, under section 54F of the Act, after [Ms A] reported that [the child] was 100% in her care as a result of the COVID-19 lockdown. The initial care determination was replaced by a new determination that [the child]’s care was 100% with [Ms A]. Mr Froud was unsuccessful in his objection to this decision, which is why it is now before the tribunal.

5. It is not in dispute that [the child] was continuously in [Ms A’s] care from 9 March 2020 until December 2020, despite court orders that specified monthly weekend care and school holiday care by Mr Froud.

6. When a court order is in force and one parent withholds care and the other takes reasonable steps to ensure that the order is complied with, an interim care period can be determined under section 51 of the Act. In such circumstances the interim care period reflects the percentage of care required under the court order and not the actual percentage of care.

7. Mr Froud has submitted that [Ms A] withheld care from 1 July 2020, when the borders between New South Wales and South Australia reopened.  The court order provides that in even numbered years, Mr Froud has [the child] for the first half of the school holidays.  As the NSW winter holidays for 2020 commenced on 4 July, the COVID-19 flight restrictions between Sydney and Adelaide would not have prevented compliance with the order for this holiday period and the tribunal is satisfied that [Ms A] was withholding care from this time until care resumed in December 2020.

8. It follows that that tribunal must determine whether Mr Froud took reasonable steps to enforce the court order from 4 July 2020.  Mr Froud told the tribunal that he initially made attempts to negotiate a resumption of the usual care arrangements. Her persevered with this approach over the course of several communications with [Ms A].  However, when [Ms A] did not respond to an email he sent on 23 September 2020, he approached the court and lodged a formal application.  The parties reached an agreement about the resumption of the care arrangement and the court noted on 8 October 2020 that the application was withdrawn (Folio 90).

9. The tribunal accepts Mr Froud’s evidence and is satisfied that it establishes that he took reasonable steps to enforce the existing order after [Ms A] withheld care from 4 July 2020. It follows that the tribunal must determine an interim care period. Under section 53A of the Act, as there is no evidence that [Ms A] took reasonable action to participate in family dispute resolution, this period can be up to 26 weeks. In this case an interim period is required only until the resumption of normal care on 4 December 2020. It follows that Mr Froud had 0% of [the child]’s care from 1 April 2020 to 3 July 2020 and 19% of [the child]’s care from 4 July 2020. This means that [Ms A] had 100% of [the child]’s care from 1 April 2020 to 3 July 2020 and 81% of [the child]’s care from 4 July 2020.

10. The objections officer found that Mr Froud did not object to the original decision of 18 September 2020 until 2 December 2020, which is more than 28 days after he should have received the original decision.  In such circumstances, under section 87AA of the Child Support (Registration and Collection) Act 1998 (the R&C Act), the decision of the tribunal has effect from the day Mr Froud objected to the decision and not from the date of the change of care, unless special circumstances prevented him from seeking review within 28 days.

11. Mr Froud told the tribunal that he objected within 28 days and, subsequent to the hearing provided the tribunal with a copy of an online submission to the CSA, dated 19 October 2020 in which he, among other things advised of the outcome of his recent court application and, in effect, objected to the decision of 18 September 2020.  Allowing for delivery by mail of the original decision, the tribunal accepts this online submission as evidence that Mr Froud objected to the decision within 28 days.  It follows that the tribunal’s decision can have effect from the change of care day and not from the date of the objection.

12. In this case, the tribunal is of the view that 4 July 2020 should be treated as the change of care day.  Prior to then, while [Ms A] had 100% of [the child]’s care this was because of circumstances beyond the control of either party and not because there was a change of care.  While it is right and proper that a change of care percentage be recorded for the period when borders between Sydney and Adelaide were closed, as [Ms A] bore the full cost of the care, this was not a change of care for purposes of application of section 87AA of the R&C Act.  However, once [Ms A] commenced withholding [the child], there was a change of care, hence the interim care period.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that, from 21 May 2020 until 3 July 2020 the care percentages for [the child] were 100% with [Ms A] and 0% with Mr Froud and from 4 July 2020, the care percentages for [the child] were 81% with [Ms A] and 19% with Mr Froud.  The tribunal’s decision has effect from 4 July 2020.