Gilkeson and Child Support Registrar (Child support)

Gilkeson and Child Support Registrar (Child support) [2021] AATA 4527 (16 September 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2021/BC021994
APPLICANT:  Ms Gilkeson
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Presiding Member D Lambden, Member Y Webb
DECISION DATE:  16 September 2021
DECISION:

The tribunal decided to set aside the decision under review and to substitute its decision that:

For the period 1 January 2021 to 23 February 2021 the percentages of care for [Child 1] are 50% to Ms Gilkeson and 50% to [Mr A]; and
For the period 24 February 2021 to 23 February 2022 the percentages of care for [Child 1] are 50% to Ms Gilkeson and 50% to [Mr A]; and
Thereafter, from 24 February 2022 actual care of 100% to Ms Gilkeson and 0% to [Mr A] will apply.

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 – interim period applied – 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

Ms Gilkeson and [Mr A] are the separated parents of two children. This application for review is about the respective percentages of care that each parent has for one of the children, [Child 1], who is 13 years old.
When the child support case commenced in 2020 Services Australia (Child Support Agency) made a determination that from 24 July 2020 [Mr A] had 51% care of [Child 1] and Ms Gilkeson had 49% care of [Child 1]. A parenting plan had been developed between Ms Gilkeson and [Mr A] on 24 July 2020.
On 31 March 2021 Ms Gilkeson contacted the Child Support Agency requesting a change in care and stated that she had 100% care of [Child 1] from 1 January 2021 and [Mr A] had not had [Child 1] in his care at all since 1 January 2021.
The Child Support Agency spoke with [Mr A] on 13 April 2021 and he advised that there is a court order in place for the care of [Child 1] to be 50/50 however Ms Gilkeson is withholding [Mr A] having [Child 1] in his care. [Mr A] advised the Child Support Agency that he was in contact with his lawyers as he was trying to have the care that the court ordered put back into place and that there is a court date on 11 May 2021.
On 12 May 2021 the Child Support Agency decided that an interim care period should apply for [Child 1] to reflect Ms Gilkeson as having 51% of care and [Mr A] as having 49% of care from 25 February 2021 to 23 February 2022.
On 17 May 2021 Ms Gilkeson objected to the care decision and advised that since 1 January 2021 [Child 1] had been in her care 100% of the time and [Child 1] had no contact with [Mr A].
On 21 July 2021 the objections officer decided to disallow Ms Gilkeson’ objection. The Child Support Agency took into account that [Mr A] had taken legal action to have [Child 1] return to his care. The Child Support Agency also took into account that there were two court orders dated 17 November 2020 and 24 February 2021 which required the parenting plan dated 24 July 2020 to remain in place. The Child Support Agency found that based on this information that [Mr A] had taken reasonable action to ensure compliance with the care arrangements for [Child 1] and an interim care determination should apply for [Child 1].
On 28 July 2021 Ms Gilkeson applied to this tribunal for an independent review of the objection officer’s decision.
[Mr A] did not apply to be added as a party to this appeal so he has been removed as a party for this appeal.
A hearing into the application for review was held by the tribunal on 16 September 2021 via MS Teams. Ms Gilkeson gave evidence under affirmation during the hearing.
The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled Exhibit C1 folios 1 to 124 and Exhibit C2 folios 125 to 148. A copy of all of the papers was provided to Ms Gilkeson prior to the hearing

ISSUES

The issues for the tribunal to determine are:
a)    What were the care arrangements in relation to the care of the child in the relevant care period?
b)    Should a new determination of a percentage of care for the child be made? If so, what is the percentage of care and from when should it apply?
c)    Should an interim care determination be made in relation to the child and, if so, for what period should it apply?
d)    Were there special circumstances where an interim period does not apply?

CONSIDERATION

The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988.
Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.
The “care period” is effectively defined in the Assessment Act as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflects the actual care that a person has, or is likely to have, during the care period.
The pattern of care can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).
Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.
In this case, Ms Gilkeson did not contend that nights were an unsuitable measure of the care of [Child 1] and the tribunal finds that nights are an appropriate method of ascertaining the care in this case.
For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.
[1] Paragraph 50(1)(a) of the Assessment Act
In this case, there were court orders in existence from 17 November 2020. The Assessment Act refers to a “care arrangement”. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975. Hence the tribunal finds that the court order of 17 November 2020 is a “care arrangement” for the purposes of the Assessment Act and that it provides in brief summary that the parenting plan dated 24 July 2021 remains in place which outlines that care is shared by [Mr A] and Ms Gilkeson on a 50/50 basis.
Ms Gilkeson contended that the court order was not being followed from approximately August/September 2020 when [Child 1]’s care arrangements started to change and he was not in [Mr A]’s care for 50% of the time. She stated that [Child 1] gradually made the decision to not be in [Mr A]’s care. Ms Gilkeson advised that she initiated court proceedings on 29 September 2020 seeking interim court orders regarding the care of the children. Ms Gilkeson stated that an initial court order was made on 17 November 2020 which ratified the care arrangements outlined in the parenting plan. Ms Gilkeson stated at the hearing that [Child 1] has not been in [Mr A]’s care since 1 January 2021 and he has only spent one hour with [Mr A] since that date. Ms Gilkeson stated that a further court order was made on 24 February 2021 which stated that the 50/50 shared care arrangements should remain in place for [Child 1]’s care.
According to the evidence provided by the Child Support Agency [Mr A] stated on 1 June 2021 that he continued to have [Child 1] in his care on a weekly basis until mid-January 2021 when he returned [Child 1] to Ms Gilkeson’ care early. [Mr A] stated to the Child Support Agency that he was taking legal action and went back to court on 24 February 2021 when consent orders were put into place that the parenting plan from July 2020 for 50/50 shared care remain in place.
Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked. Relevant to this matter section 54F of the Assessment Act provides for revocation of a determination of a percentage of care if (among other requirements):
· the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and
· the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child; and
· provisions relating to the making of an interim care determination do not apply (sections 51 and 53A of the Assessment Act).
The initial issue which the tribunal needs to determine is whether the pattern of care changed for [Child 1] on and from 1 January 2021 and whether the actual care that was occurring did not correspond with the existing care determination.
The tribunal is satisfied that from 1 January 2021 the care of [Child 1] that was taking place was not the same as the pre-existing percentages of care (or the care as provided in the parenting plan dated 24 July 2020 and the court orders dated 17 November 2020 and 24 February 2021).
The tribunal therefore finds that from 1 January 2021 the care of [Child 1] was 100% to Ms Gilkeson and 0% to [Mr A].
The tribunal finds that pursuant to section 54F of the Assessment Act, the existing percentage of care determination for the parents should potentially be revoked. The tribunal finds that the notification of the change of care was made by Ms Gilkeson on 31 March 2021 which was more than 28 days after the change of care day on 1 January 2021. In the case of Ms Gilkeson, her care increased and according to subparagraph 54F(3)(b)(i) her existing care percentage of 50% would be revoked from 30 March 2021 and a new percentage of 100% determined from 31 March 2021. [Mr A]’s care decreased and according to subparagraph 54F(3)(b)(ii) his existing care of 50% would be revoked from 31 December 2020 and a new percentage of 0% determined from 1 January 2021.
However, before revoking the existing care percentages and making new percentage of care determinations under sections 49 and 50 of the Assessment Act , the Tribunal must consider whether an interim period should apply pursuant to section 51 of the Assessment Act.
Section 51 of the Assessment Act provides that a care determination may be made (called an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care is taking “reasonable action” to have the court order complied with. “Reasonable action” is not defined in the legislation. The Explanatory Memorandum to the Bill for the amending Act that introduced section 51, referring to “reasonable action” states: “... for example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”
In addition, government policy is reflected in the Child Support Guide (the Guide) which states at 2.2.4 that reasonable action could include:
·     negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;
·     making and/or attending an appointment at a family relationships centre or other dispute resolution service with the aim of ensuring the care arrangement is adhered to;
·     seeking or obtaining legal advice regarding the making of a court order;
·     filing an application to the court to seek an order to be made or enforced; or
·     notifying the police that the child has been taken without consent.
In determining an application for review and in the interests of consistency of decision making, the tribunal would ordinarily apply such policy providing it was not inconsistent with the Act.[2]
[2] See Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39
Included in the tribunal papers was a letter to Ms Gilkeson dated 29 January 2021 from [the firm] who were representing [Mr A]. The letter refers to the parties having equal shared parenting responsibility. The tribunal also noted the Telstra screenshot page in relation to texts to [Child 1] provided to the Child Support Agency on 7 May 2021. The tribunal accepts that [Mr A] took these actions and that he was taking reasonable action to restore his care of [Child 1].
The Act provides that where a party with reduced care is taking reasonable action to have the court orders enforced, the Assessment Act provides that two percentages of care be determined: one reflecting the court orders and one reflecting the actual care and then provides for the different percentages to apply in respect of different periods depending on the circumstances and conduct of the parties
However, subsection 51(5) of the Assessment Act provides that if “special circumstances” exist in relation to a child, a single percentage of care (which in this case would be 100% in respect of Ms Gilkeson) – rather than two percentages of care – may be determined based upon the actual care taking place. The meaning of “special circumstances” is not defined in the legislation but is described in the Child Support Agency’s policy at item 2.2.4 of the Child Support Guide. It states:
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 fir 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.
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);
…
The tribunal noted that in her communication with the Child Support Agency on 15 April 2021 Ms Gilkeson stated that she had concerns in relation to the care that [Child 1] received when he was in [Mr A]’s care and in her letter dated 25 June 2021 that was provided to the Child Support Agency on 25 June 2021 she states that at times [Child 1] refused to enter into his father’s care. Ms Gilkeson stated to the tribunal that on 17 October 2020 she contacted the police and they undertook a welfare check of [Child 1] when he was in [Mr A]’s care because she was concerned about [Child 1]’s welfare. During his communication with the Child Support Agency on 1 June 2021 [Mr A] stated that [Child 1] experiences attention deficit hyperactivity disorder and he returned [Child 1] to Ms Gilkeson’ care early in mid-January 2021 because [Child 1] had not been given his medication by Ms Gilkeson and therefore he was out of control and being disrespectful.
However no supporting evidence was provided to the tribunal in relation to [Child 1] experiencing a medical condition. In addition, there was no evidence of violence or inappropriate behaviour from [Mr A] such that [Child 1]’s physical, emotional or psychological wellbeing was at risk if the care arrangement had continued to be followed. In these circumstances, the tribunal concluded that special circumstances do not exist in this case that warrant the application of subsection 51(5) of the Assessment Act.
Therefore the tribunal determined that an interim care decision should be made.
Subsection 53A(1) of the Act provides a table for working out the end date for the interim period. In a case where the change in care occurs within 26 weeks of the court order the interim period applies for 52 weeks from the date of the court order. In this case a court order was made on 17 November 2020 and the change in care occurred on 1 January 2021 when [Child 1] was last in [Mr A]’s care. Therefore, the start of the interim care period is 1 January 2021 and the end of the interim period would be 16 November 2021, being 52 weeks from the date of the court order of 17 November 2020. The parents would be recorded as each have 50% care of [Child 1] during this period. Thereafter, a new court order was made on 24 February 2021. This also ordered that the care of 50% to each of the parents continue. Hence, a further interim period will apply from 24 February 2021 to 23 February 2022. Thereafter actual care (of 100% to Ms Gilkeson and 0% care to [Mr A]) will apply.
While the tribunal’s decision appears to be partially consistent with the decision of the objections officer, the tribunal has set it aside so that the period between 1 January 2021 and 23 February 2021 is included as an interim care period in addition to the period from 24 February 2021 to 23 February 2022 and that thereafter actual care will apply.

DECISION

The tribunal decided to set aside the decision under review and to substitute its decision that:

For the period 1 January 2021 to 23 February 2021 the percentages of care for [Child 1] are 50% to Ms Gilkeson and 50% to [Mr A]; and
For the period 24 February 2021 to 23 February 2022 the percentages of care for [Child 1] are 50% to Ms Gilkeson and 50% to [Mr A]; and
Thereafter, from 24 February 2022 actual care of 100% to Ms Gilkeson and 0% to [Mr A] will apply.

[2021] AATA 4527

16 September 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction