Gathercole and Loveridge (Child support)

[2021] AATA 5182

Gathercole and Loveridge (Child support) [2021] AATA 5182 (14 December 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022341

APPLICANT:  Ms Gathercole

OTHER PARTIES:  Child Support Registrar

Mr Loveridge

TRIBUNAL:Member E Kidston

DECISION DATE:  14 December 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 – whether reasonable action taken by parent with reduced care – whether reasonable action taken by parent with increased care - interim period applied for 14 weeks - 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 Gathercole and Mr Loveridge are the parents of [Child 1] (born 2008) (the child).

2. This review application is about the percentages of care for Ms Gathercole and Mr Loveridge that apply in relation to the child support case registered with Services Australia – Child Support Agency (CSA).

3. From 13 December 2020, the percentage of care determinations recorded by the CSA for the child were 50% to Ms Gathercole and 50% to Mr Loveridge in accordance with the Court Order made on 29 January 2020 (Court Order).

4. On 29 January 2021, Ms Gathercole notified the CSA of a change in care concerning the child.  She told the CSA that on 27 January 2021 the child was meant to return to Mr Loveridge’s care and had refused to go.  Ms Gathercole was informed by an officer of the CSA that the event was not sufficient to establish a new care pattern and was advised to notify should the child not return to Mr Loveridge’s care from 8 February 2021.

5. Ms Gathercole subsequently informed the CSA on 9 February 2021 that the child had chosen to remain in her care from 27 January 2021 and that she had, and intended to have going forward, 90% care of the child and Mr Loveridge would have 10%.

6. On 12 February 2021, Mr Loveridge informed the CSA that he disagreed with the change in care and advised that the child was being withheld from him and that he would be taking legal action to reinstate care in accordance with the Court Order. Mr Loveridge provided evidence to the CSA of taking reasonable action, including confirmation of making an appointment at a Family Relationship Centre on 10 March 2021.

7. Ms Gathercole responded to the reasonable action initiated by Mr Loveridge on 14 April 2021, when she confirmed by email her intention to attend a mediation on 24 April 2021. 

8. On 14 May 2021 a Mediation Certificate was issued and on 20 May 2021 Mr Loveridge made an application in the Federal Court concerning the contravention of the Court Order.   

9. It was common ground that the child has not resided with Mr Loveridge since 27 January 2021 and the Court Order was not followed from that date. Further, it was not in dispute that both parties had taken reasonable action by initiating, responding to and attending mediation.  It is also accepted that the parties continued to participate in family dispute resolution.

10. Based on the information before it, on 20 May 2021 the CSA made an interim care determination to apply an interim period of 14 weeks from 27 January 2021. This had the practical effect of continuing the recorded care percentages for the child in accordance with the Court Order as 50% care to Ms Gathercole and 50% care to Mr Loveridge to 4 May 2021. After the interim period, that is from 5 May 2021, the recorded percentages of care for the child changed to reflect the actual care as 100% care to Ms Gathercole and 0% care to Mr Loveridge (original decision).

11. On 15 July 2021 Ms Gathercole objected to the original decision and requested that actual care of the child be applied as the recorded care percentage from 27 January 2021, as it was the child’s choice to remain in her sole care from that date.

12. Although Ms Gathercole’s objection to the original decision was more than 28 days after the original decision, the CSA found that there were special circumstances in accordance with section 87AA of the Child Support (Registration and Collection) Act 1988.  On 17 September 2021 the CSA allowed the objection (in part), and the original decision was amended as the objections officer found that Ms Gathercole first participated in family dispute resolution concerning contravention of a court order on 14 April 2021 and as such, the interim period would end 14 weeks after that date and not from 27 January 2021.  The effect being that the actual care percentage of 100% care of the child to Ms Gathercole would only apply after the amended interim period, that is on and from 21 July 2021.  This resulted in a less favourable outcome for Ms Gathercole.

1. On 20 September 2021, Ms Gathercole lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision. As a person whose interests may be affected by the Tribunal’s decision, Mr Loveridge was added as a party to Ms Gathercole’s application.

2. The application was heard by the Tribunal on 14 December 2021. Ms Gathercole and Mr Loveridge participated in the hearing by conference telephone and each gave evidence on affirmation. As is customary, the Child Support Registrar did not participate in the hearing and did not attend.

3. In considering the application, the Tribunal took into account the oral evidence of Ms Gathercole and Mr Loveridge as well as the documentary material in evidence: as provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 comprising of folios 1 to 222 (marked Exhibit 1) and written submissions from Ms Gathercole received on 14 October 2021 (marked Exhibit A).

RELEVANT LAW

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). This legislation sets out the rules for the Registrar, that is, the CSA, for making and revoking care percentage determinations which are then used as part of the child support formula to assess child support payment rates.

2. Pursuant to Division 4 of Part 5 of the Assessment Act, the Registrar, that is, the CSA, may revoke and make new care determinations to take into account a change in care. In simple terms, existing care percentages generally apply until CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact cost percentage. The decision is made by CSA with reference to a point in time, and usually corresponds with the actual care based on what has happened up until the change in care is notified.

3. It is not without regard that a care pattern may change and, when that is the case, a parent is to notify the CSA and a new care determination may be made from the date of a change. However, where a care arrangement concerning the child (including a court order) is in place and there is a departure from the terms of the arrangement by one of the parties and the other party disagrees with the change, then it is known as a “disputed care arrangement” and the legislation provides a different framework for determining when new care percentages apply. This is further explained in the CSA’s Child Support Guide at 2.2.4 as an “interim care determination” and concerns the application of sections 51 and 53A of the Assessment Act.

4. CSA policy, including the Child Support Guide, has been developed to assist decision-makers in interpreting the child support legislation and where relevant, the circumstances of when an interim period determination applies. The Tribunal is not bound by such policy; however, where the policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.[1]

ISSUES

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

1. The application before the Tribunal is limited to a point in time consideration of the percentages of care determinations to be recorded for Ms Gathercole and Mr Loveridge at the time of Ms Gathercole’s notification to the CSA of the change in care concerning the child from 27 January 2021.

2. There is no dispute that a change in care occurred on 27 January 2021 and the child has been in Ms Gathercole’s sole care since that date, contrary to the Court Order. As the care that was actually taking place for the child did not correspond with the existing care percentages as recorded by the CSA set under the Court Order, the issue to be determined by the Tribunal in this matter is the application of an interim care determination on the care percentages, and the date of effect of any changes to the determinations, if relevant.

EVIDENCE

1. Ms Gathercole’s application for review is comprehensively set out in the written submissions received by the Tribunal on 14 October 2021, which are set out (unedited) hereunder:

   We are currently undertaking a challenge with the Child Support Division around an outstanding debt arising as a result of [Child 1] deciding (of her own accord), to remain within my care permanently.

   My question to this review is the following:

   Statement of Fact: In the eyes of the Family Law Courts of Australia, [Child 1] is deemed a “Mature Minor” now and has the right of input and decision as to her care and where she resides”.  She has decided that with her feet, not me!

   (1)   Why then does Centrelink not recognise this fact that she is a mature minor and has the right to decide?

   (2)   Why am I ([Ms Gathercole]), now being penalised for [Child 1]’s decision to remain in my care?

   (3)   As I now have to pay ALL School Fees ($15,000pa) as [Mr Loveridge] has withdrawn from the contract and actually initially advised the school in question that [Child 1] would not be in attendance at the school on “His weeks” – which is illegal anyway; and

   (4)   I have to pay all ongoing medical expenses for a child with a Chronic disease; and

   (5)   I have to pay all ongoing living needs and recreational needs!

2. During the hearing Ms Gathercole submitted, in effect, that an interim care determination should not apply as she has not withheld the child from Mr Loveridge, she has, and continues to, encourage the child to speak and spend time with Mr Loveridge however, the child is old enough to make her own decisions and is refusing to spend time with Mr Loveridge.  Ms Gathercole said that as the child is a teenager and considered a mature minor, decisions about her care should be based on the child’s preference.  Further, Ms Gathercole submitted that as the child has been in her sole care since 27 January 2021, she has incurred all costs and shouldn’t have to pay Mr Loveridge for child support that has not been provided by him from that date.

3. Mr Loveridge’s evidence to the Tribunal at the hearing was that he immediately took action to recover care of the child in accordance with the Court Order and, in effect, agrees with the interim care determination made by the CSA as amended by the objection decision on 17 September 2021.  Although Mr Loveridge’s evidence in Exhibit 1 was that he considered the child was being withheld from him by Ms Gathercole, he conceded at the hearing that the choice to remain in Ms Gathercole’s care was made by the child for social reasons, and that Ms Gathercole encouraged their continued communication.

4. Notably, there were a number of background issues of importance to both Ms Gathercole and Mr Loveridge in evidence which are not relevant to the issue before the Tribunal and therefore not mentioned or canvassed in these Reasons. By not canvassing them in these Reasons the Tribunal is not diminishing the importance of those issues, but merely is only taking into account matters directly relevant to the decision under review.

CONSIDERATION

1. The provisions relating to the revocation of a determination of a person’s percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Assessment Act.

2. Care determinations can be revoked pursuant to section 54F, 54G or 54H. One of the requirements of section 54F is that section 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G.

3. Subsection 54G(1) of the Act provides for the mandatory revocation of an existing care percentage determination in specified situations where there is less than regular care for a parent and the change in care was notified to the Agency within a reasonable period. Each criterion of subsection 54G(1) as set out in paragraphs (a) to (d) must be satisfied in order for an existing care percentage determination to be revoked under the provision.

4. In considering the evidence, the Tribunal finds that the requirements of subsection 54G(1) were satisfied, as follows:

   (a) The Tribunal has found that there were existing percentage of care determinations made under section 50 of the Assessment Act for Ms Gathercole and Mr Loveridge for the child in which Mr Loveridge was to have 50% care, that is at least regular care, from 27 January 2021 – paragraph 54G(1)(a).

   (b)  The Tribunal has found that Mr Loveridge has had less than regular care of the child despite Ms Gathercole making the child available to Mr Loveridge from 27 January 2021 – paragraph 54G(1)(b).

   (c) A percentage of care determination for the child had been made under section 50 for Ms Gathercole – paragraph 54G(1)(c).

   (d)  Ms Gathercole contacted the CSA on 29 January 2021 and 9 February 2021 and advised that the actual care of the child did not correspond with the percentages of care in the existing care determinations and that the care she was expecting from 27 January 2021 was almost 100% care of the child from that date. It follows that the Tribunal is satisfied that Ms Gathercole notified within a period that was reasonable in the circumstances – paragraph 54G(1)(d).

5. In summary, the Tribunal has found that from 27 January 2021, the likely pattern of actual care by Ms Gathercole of the child was 100%.  This did not correspond with the existing percentages of care of 50% to Ms Gathercole and 50% to Mr Loveridge. Based on the above finding that the provisions of subsection 54G(1) are met, it was then necessary for the CSA to determine and apply new care percentages.

6. As a general rule, a parent’s recorded care will reflect their actual care. However, there are exceptions to that general rule, and the potentially relevant exception in this matter is in section 51 of the Assessment Act. Under section 51, the framework for determining when the new care percentages apply is treated differently where action is taken by the parent with reduced care to ensure that a care arrangement set under a court order in relation to a child is complied with. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

7. From the evidence in Exhibit 1, the Tribunal is satisfied that the four requirements in subsection 51(1) are met, as follows:

   (a)the CSA was required to make a new care decision following the change in care that occurred on 27 January 2021;

   (b)a Court Order applies in relation to the child;

   (c)the parents’ actual care of the child since 27 January 2021 has not complied with the Court Order; and

   (d)Mr Loveridge took reasonable action to recover care under the Court Order by contacting his solicitor and the Family Relationship Centre within a reasonable period.

8. Subsection 51(2) of the Act requires the CSA to make and apply two percentages of care to the child support case for each person. The first percentage of care reflects the care that should have been provided pursuant to the Court Order (subsection 51(3)). Such a decision is called an interim care determination and it applies for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (the interim period). The second percentage of care reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)).

9. Essentially, the application of section 51 for child support assessment purposes results in the percentages of care reflecting the care arrangement as specified under a breached court order staying in place during an interim period and percentages of care reflecting the actual care occurring applying afterwards. However, the legislation provides a discretion at subsection 51(5) to only apply the second care percentage determination for each person if the decision-maker is satisfied that special circumstances exist in relation to the child. In such cases, the percentage of care determinations for each person are immediately based on the actual care and no interim period applies.

Special circumstances

1. The term “special circumstances” is not defined in the Assessment Act, however the Child Support Guide at 2.2.4 particularises the kind of special circumstances that might result in this discretion being exercised. Examples include where there is evidence of violence towards the child or other inappropriate behaviour including, but not limited to: exposing the child to family violence, directly involving the child in a criminal act, exposing the child to illicit substances, and neglecting the child’s basic needs such as medical care, food, shelter and hygiene.

2. Exhibit 1 includes copies of CSA’s records of various contacts with Ms Gathercole and Mr Loveridge. From that evidence, and from the oral evidence given at the hearing, the Tribunal is of the view that there is no suggestion that special circumstances exist of the kind as outlined in the Guide at 2.2.4. The Tribunal therefore concludes that the discretion in subsection 51(5) of the Assessment Act should not be exercised. This means the interim care determination must apply, and the Tribunal so finds.

3. Having determined that an interim care determination must apply in this matter, the Tribunal considered the start date and duration of the interim period.

Interim period

1. As stated above, the length of the interim period depends on a number of factors, including whether or not the previous care arrangement was a court order, and whether the person with increased care also took reasonable action.

2. The evidence before the Tribunal is that Mr Loveridge commenced action to recover care by consulting with a solicitor and scheduling a mediation through the Family Relationship Centre on 10 March 2021. The Tribunal is satisfied that Mr Loveridge was taking reasonable action to ensure that the care arrangement was complied with such that paragraph 51(1)(d) of the Assessment Act is satisfied.

3. The duration of an interim period is determined in accordance with section 53A of the Assessment Act. Paragraph 53A(1)(a) of the Assessment Act provides that an interim period begins on the change of care day. Given that the change of care event happened more than 38 weeks after the Court Order, the interim care period is determined in accordance with item 2 of the Table in subsection 53A(1) as ending either:

   (a)26 weeks from the date of the care change on 27 January 2021; or

   (b)14 weeks from the date that a person who has increased care of the child (in this case Ms Gathercole) began continuously taking reasonable action to participate in family dispute resolution, and the end date does not exceed the date 26 weeks from the date of care change.

4. Ms Gathercole told the Tribunal that as the care of the child increased to her from 27 January 2021, she did not initiate the family dispute resolution process as there was no incentive for her to do so despite the care contravening the Court Order.  However, she readily participated once she was notified in April 2021 that Mr Loveridge had commenced the resolution process, and continues to participate in the process. Ms Gathercole’s evidence is that she was not notified before 14 April 2021 that Mr Loveridge had initiated reasonable action.

1. From the evidence in Exhibit 1 (at Folio 16), the objections officer found that although Ms Gathercole took reasonable action from 14 April 2021 to participate in the family dispute resolution process, as the change in care occurred on 27 January 2021, her action was not within a reasonable period. 

2. The term “reasonable period” is not defined in the legislation, and is generally determined based on the individual circumstances of the matter. In this matter, there was no evidence that Ms Gathercole intended to commence family dispute resolution before 14 April 2021 and was unable to, her evidence is to the contrary. The Tribunal considers that commencing reasonable action as a responsive measure more than 10 weeks from the date of change cannot fall within the reasonable period contemplated under paragraph 53A(3)(b) of the Assessment Act, and so finds.

3. Accordingly, the Tribunal is satisfied that the shortened interim period is calculated in accordance with item 2 of the table in subsection 53A(1) as ending 14 weeks after starting on 14 April 2021 (the day Ms Gathercole began taking reasonable action) which is 20 July 2021.

4. In response to Ms Gathercole’s submission that given there is no dispute that the child was in her care from 27 January 2021, she cannot understand why care is therefore not recorded to her as 100% from that date, the Tribunal acknowledges the legislative framework in relation to how care is to be recorded for child support purposes is not uncomplicated and the Tribunal does not disregard the possible difficulties that can arise in understanding how the law operates in relation to whether an interim care determination applies and the duration of an interim period. However, in stating that, as discussed with Ms Gathercole at hearing, the Tribunal is required to consider the issues before it based on the facts and the application of the law and cannot change the child support legislation. Accordingly, for the reasons canvassed, despite Ms Gathercole having 100% care of the child from 27 January 2021, the child support legislation requires that an interim period be applied for a period determined in accordance with section 53A of the Assessment Act, ending on 20 July 2021.

5. The Tribunal finds the new percentages of care of 100% to Ms Gathercole and 0% to Mr Loveridge take effect from 21 July 2021, the day after the interim period ends. 

6. As the Tribunal’s view on the application of the law is the same as the objection officer’s, the decision under review will therefore be affirmed. 

DECISION

The decision under review is affirmed.