Gazzard and Child Support Registrar (Child support)

[2021] AATA 5499

Gazzard and Child Support Registrar (Child support) [2021] AATA 5499 (7 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021853

APPLICANT:  Ms Gazzard

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Presiding Member K Dordevic

Member D Tucker

DECISION DATE:  7 September 2021

DECISION:

The tribunal set aside the decision under review and, in substitution, decides that from 7 November 2020 the care record must reflect that the father has 0% care and the mother 100% care of the children [Child 1] and [Child 2].

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders not complied with – whether reasonable action taken – whether interim period applied - special circumstances exist – 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 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. Mr Gazzard (the father) and Ms Gazzard (the mother) are the parents of three children in respect of whom there has been a child support assessment in place since 8 January 2020 with Services Australia – Child Support (the Agency). It is not in dispute that their eldest child is in the sole care of the mother. This review is about the percentages of care used in the child support assessment in respect of their two younger children (hereafter referred to as the children).

2. From the date of registration of the administrative assessment the mother was assessed as having 100% care of the children.

3. On 12 March 2021 the father advised the Agency that there were court orders in place dated [in] September 2020 that dictated that he was to have 14% care and the mother 86% care of the children. He advised that from 3 November 2020 the mother had withheld care of the children.  

4. On 13 April 2021 the Agency accepted the father’s care application and determined that from [date] September 2020 the father was to have 20% care per annum. On 14 April 2021 the Agency made an interim care determination, on the basis that the father was not having any care of the children (as dictated by the court order) so that from 3 November 2020 to 23 September 2021 the care record should reflect that the mother had 80% care and the father 20% care of the children.

5. On 22 April 2021 the mother lodged an objection to the care decision. On 24 June 2021 the objection was disallowed.

6. On 29 June 2021 the mother lodged an application for review by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the tribunal).

7. On 10 August 2021 the tribunal received an application for a non-disclosure order under subsection 37(1) of the Administrative Appeals Tribunals Act 1975. The Agency sought to prohibit the disclosure of case notes from the mother’s therapist, [Ms A], during the period 11 March 2010 to 6 March 2020. The tribunal granted the order on 13 August 2021.

8. The application was heard on 7 September 2021. The mother participated in the hearing by conference telephone. The father declined the invitation to be added as a party. The Child Support Registrar did not participate in the hearing. As well as the sworn evidence of the mother the tribunal also had regard to the documents provided by Child Support (marked folios 1 to 208). After having the benefit of the mother’s testimony at hearing, the tribunal determined that the case notes from the mother’s therapist had probative value and so took them into evidence (marked folios C1 to C14), which had the effect of revoking the non-disclosure order granted on 13 August 2021. The tribunal considers that as both parties to this application had access to the documents, there is no lack of procedural fairness in not formally exchanging the documents with the mother prior to hearing.

ISSUES

1. The statutory provisions relevant to this review are in the Child Support (Assessment) Act 1989 (the Act). The tribunal also had regard to the Child Support Guide (the Guide).

2. A parent’s percentage of care for a child is determined based on the care he or she is likely to provide for the child in a care period. The percentage of care is used in a child support assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they are providing for the child.

3. The issues in this case, therefore, are:

• whether the father (for the purpose of section 51) was taking reasonable action in relation to the court orders; and

• whether there were special circumstances such that an interim period should not apply.

CONSIDERATION

Was the father taking reasonable action to ensure the court orders were complied with?

1. The Act contains provisions which apply when the extent of a responsible person’s care is determined in accordance with a ‘care arrangement’ (such as court orders or a parenting plan), but the care arrangement is not being complied with. An interim period may apply if the person with reduced care is taking reasonable action to ensure the care arrangement is complied with, unless there are special circumstances that mean an interim period should not apply (subsection 51(5) of the Act). During the interim period the care used in the child support assessment continues to be in accordance with the extent of care in the care arrangement. The length of the interim period is determined taking into account the length of time elapsed between the date of the court orders and the change of care day, amongst other factors not relevant to this review (section 53A of the Act).

2. The extent of the mother and father’s care of the child from [date] September 2020 is in accordance with the Federal Circuit Court orders set down on the same day. The orders state that earlier consent orders (date unknown) were amended to reflect that from 27 January 2021 the father is to have four nights care of the children per fortnight. There are Minute of Orders attached which outline a gradual increase in the father’s care of the children, which can be summarised as follows:

   ·     From 30 September to 12 October 2020 two x 5 hour blocks of care with both children;

   ·     From 13 October to 2 November 2020 three x 8 hour blocks of care, one block of 5.5 hours of care with both children + one block of 5.5 hours care with one child;

   ·     From 3 to 23 November 2020 each Saturday night (5pm on Saturdays to 12pm Sundays), one block of 5.5 hours of care with both children + one block of 5.5 hours care with one child;

   ·     24 November to 23 December 2020 each Saturday night (10am Saturday to 12 pm Sunday), two blocks of 5.5 hours of care with both children + one block of 5.5 hours care with one child;

   ·     5 hours on 25 December 2020; and

   ·     11 to 16 January 2021 (five nights).

3. The tribunal finds that the Minutes to the Orders dictate that the father is to have no overnight care until 7 November 2020; from that date to until 26 January 2021 he is to have a pattern of care of 14% (or about one night per week). From 27 January 2021 the father is to have 28% and the mother to have 72% care of the children.

4. There is no dispute, however, that from 7 November 2020 the father has not had any care of the children in accordance with the court orders. The tribunal finds accordingly.

5. The tribunal finds that on 7 December 2020 the father sought interim parenting orders and to have the current parenting orders enforced. On 11 February 2021 the father lodged a contravention order with the Federal Circuit Court of Australia. His affidavit attached to this application indicates that the mother initially complied with the orders, allowing Sunday contact with the children from 4 October to 1 November 2020. However, the court ordered care from 7 November 2020 was not adhered to. The father sought to be granted sole care of the children from 21 December 2020.

6. Thus, the tribunal is satisfied that the father took reasonable action to have the care arrangements adhered to for the purposes of section 51 of the Act. The tribunal is thus required by subsections 51(2), (3) and (4) of the Act to determine two percentages. In respect of the father, the first percentage is 14% while the second percentage is 0%

Do special circumstances exist in relation to the children?

1. 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 tribunal next considered whether to exercise the discretion to make one percentage of care determination, rather than two, based upon the actual care taking place.

2. The Child Support Guide (version 4.57) sets out the Agency’s policy concerning taking reasonable action to ensure compliance with a care arrangement at Chapter 2.2.4. The tribunal is not bound by that policy but will generally follow it unless there are cogent reasons not to do so in a particular case: Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] 2 ALD 634. Relevantly, the policy states:

   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. 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. [Tribunal’s emphasis]

   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. Examples of unreasonable or inappropriate behaviour of the parent include:

   ·    violence towards the child,

   ·    exposing the child to family violence (within the meaning of section 4AB of the FL Act),

   ·    violence towards the person with increased care,

   ·    directly involving the child in a criminal act,

   ·    exposing the child to alcohol, drugs or substance abuse,

   ·    substantially failing to comply with legal schooling requirements, and/or

   ·    neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

   The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

   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.

3. In this case the tribunal accepts that the policy is consistent with the objects of the Act and that there is no inconsistency between the legislative provisions and the policy when determining whether there are special circumstances.

4. The mother’s evidence can be summarised as follows. The mother asserts that it is the children who do not wish to have contact with the father, as they are fearful of him. She continued to make them available and the children would run away; she was not even present when this occurred, as she was at work and the father was to collect the children from school. In her discussion with an Agency officer on 15 March 2021 (F74) the mother asserts that the children have not had contact with the father for three years, as there were issues of domestic violence during the marriage. She went on to state that the children run away from the father when he attends their schools to collect them.

5. The tribunal discussed at hearing with the mother case notes from therapy sessions she attended in the last decade, which she provided to the Agency on 15 June 2021. The tribunal notes that the Agency refers to these being the case notes of [Mr B], social worker. At hearing, the mother stated that this is not correct, and that they are in fact case notes from her psychotherapist, [Ms A]. The tribunal accepts the mother’s oral testimony that the author of the case notes is [Ms A].

6. The mother recounted episodes of family violence perpetrated by the father during the marriage; these were consistent with those incidents that she disclosed to [Ms A]. On 14 March 2013 [Ms A] first notes discussing a safety plan with the mother and “strongly advised” her to seek an appointment with the domestic violence liaison officer at [named police station] after the mother had “reported hsb punching his fist into the mirror in the bedroom in front of the children and screaming “you are [expletive] sending me broke””. On 14 February 2014 [Ms A] noted that after a joint session between the mother and father she contacted the mother and discussed with her again referral to Domestic Violence Liaison Officers. On 29 March 2014 [Ms A] noted:

   ·     Ongoing statements provided by [Ms Gazzard] [the mother] symptomatic of verbal, psychological, financial and emotional DV

   ·     eg key card taken off [Ms Gazzard] by hsb, not being spoken to, being called “a thing” & a “dud root”

7. On 25 June 2014 [Ms A] noted that the mother reported an incident when the father threw objects at her and ridiculed her for days following that incident, and the children witnessed the behaviours. During this contact the mother expressed concerns for her safety and disclosed an incident of being “held by the throat” by the father in March 2013, which was witnessed by the eldest child. The eldest child attended a session with the mother on 15 November 2014 and reported feeling responsible for an argument that occurred between the parents, after she had told the mother that the father had consumed two beers whilst driving all the children in the car. The mother reported that this “led to an incident of aggressions” from the father. On 25 July 2015 [Ms A] noted that she had separate sessions with each of the three children. The children apparently reported that they missed their home but were enjoying staying with their grandparents as “it’s a safe and a happy place”. In another session with the mother and the children on 1 June 2018 [Ms A] recorded:

   ·[The eldest child] concerned re her father’s anger “I don’t want to talk to him”

   ·All children reported feeling frightened of their father ‐ more anxious at night

   …

   ·[The eldest child] stated that she refused to spend any time with her father, speak on the phone or acknowledge him if he turned up to sporting or schooling events

   ·[The eldest child] talked about her distress when father filmed her on his phone when she became distressed at a sporting event

   ·[The mother] expressed ongoing concern for her safety and that of the children re [the father]

   …

8. In another session with the mother and the children on 21 July 2018 [Ms A] recorded:

   ·[The eldest child] still refusing to see or talk with her father – “I hate him”

   ·Youngest 2 children spend time with [Mr Gazzard] every Sunday if not attending sporting activities

   ·The children stated that night time was when they were scared their father might break into the house & hurt them or their mother

   ·Children discussed their memories of living with their father when he would become

   aggressive eg on 1 occasion they stated their father “locked them in their rooms for

   misbehaving and he held the door closed”

9. In separate sessions with the children on 6 August 2019 [Ms A] recorded:

   ·     [The middle child] discussed feeling terrified that his father would try to break into their house when they are all asleep

   ·     [The middle child] stated that he stays awake for much of the night looking out the window in his bedroom and “patrolling the house” checking that doors and windows are locked.

   ·     “Angry Pants” ‐ the name [The middle child] gave to his behvr when he becomes angry and irrational. The behvr was linked to his feel8ings of anxiety/fear. It was identified as being in direct proportion to his level of anxiety/fear of his father attempting to break into the new house and hurt the family.

   ·     The girls reported sleeping in the bed with their mother due to high levels of fear that their

   father might break into the house while they sleep.

   ·     [The middle child] more anxious as he was sleeping in his room away from his mother and the girls.

   ·     Cslr suggested that [the middle child] might like to put a mattress on the floor in his mother’s room until he felt safe to sleep back in his bedroom

   ·     [The middle child] asked his mother if they could get cameras and alarms put on the house, so they can be warned if their father approaches the house when they have gone to bed.

   ·     All children expressed concern that their father might know where they were now living.

   ·     [The eldest child] appeared distressed during the session, often with tears in her eyes when discussing events she had witnessed: eg when her father was arguing with her mother/ chasing the children down the corridor of the [specified] house/ drinking beer/ “yelling at us”

   ·     [The youngest child] reiterated that she would see her father “only to get him to buy me stuff that mum can’t afford and to get my Barbie dolls from the house”

   ·     [The middle child] expressed his distress that he has been promised things by his father who fails repeatedly to “deliver on the promises” eg “he said if I went with him, I could take my bike home. When it was time to go back to mum, he said I wasn’t allowed to take it so I am not going anymore”

10. In a situation such as this when the father has denied that the children are at risk in his care, and the mother states the opposite, the tribunal is required to assess the available evidence and come to a conclusion after weighing the significance of the various pieces of information before it. It is a difficult exercise as it relies on assessments of subjective matters, including credibility, inferences and likelihoods. In reaching its conclusion, the tribunal is cognisant that the father chose not to be added as a party and so did not have the benefit of providing the tribunal with testimony. On balance, the tribunal is satisfied that the father’s own behaviour has significantly contributed to the care arrangements not being complied with. In reaching this conclusion the tribunal has placed significant weight on the contemporaneous counselling records authored by [Ms A], that span more than a decade and were not prepared for the purposes of any care proceedings. [Ms A]’s record includes counselling sessions with the children, who disclosed that they were exposed to family violence perpetrated by the father and were subsequently fearful of the father. The tribunal is persuaded on the evidence before it that in the special circumstances of this case as they relate to the children of the assessment, the father should not have the benefit of an interim period. Accordingly, the tribunal is satisfied that there existed special circumstances in relation to the children to justify the exercising of the discretion provided for in subsection 54(5) of the Act. Thus, the interim period is not to apply.

For what period should the new percentages of care apply?

1. Paragraph 51(6)(a) of the Act outlines the relevant percentage of care must be 0% when the responsible person has no pattern of care (pursuant to section 49 of the Act).  The mother has 100% care of the children from 7 November 2020 (being the night that the children were to have their first overnight care with the father), and not 3 November 2020 as determined by the Agency.

DECISION

The tribunal set aside the decision under review and, in substitution, decides that from 7 November 2020 the care record must reflect that the father has 0% care and the mother 100% care of the children [Child 1] and [Child 2].