Hannigan and Poeschel (Child support)

[2020] AATA 2028

Hannigan and Poeschel (Child support) [2020] AATA 2028 (23 April 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/AC018479

APPLICANT:  Ms Hannigan

OTHER PARTIES:  Child Support Registrar

Mr Poeschel

TRIBUNAL:Member A Schiwy

DECISION DATE:  23 April 2020

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 – interim period applied for 52 weeks – decision under review affirmed

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. Ms Hannigan and Mr Poeschel are the separated parents of two children: [Child 1] who is 16 years old and [Child 2] who is 12 years old.  This application for review is about the respective percentages of care that each parent has for the children.

2. Court orders issued in 2015 allowed for 50/50 care of the children and the Department of Human Services (Child Support) made a determination that Ms Hannigan had 51% care of the children and Mr Poeschel had 49% care.

3. A change in care for [Child 2] occurred on 16 November 2018 and a change for [Child 1] on 9 January 2019; Ms Hannigan commenced having 100% care on those dates.  Child Support determined that Ms Hannigan had 100% care and also applied an interim care period from 9 January 2019 to 17 April 2019.

4. On 28 February 2019 new court orders were made that were to remain in place until further orders were made.  These orders allowed for Mr Poeschel to have care of the children for three nights (Friday to Monday) every second week during term time; and for half of the school holidays.  The first weekend of care for Mr Poeschel, following these orders, was for Friday 8 March 2019.  A further hearing was to be held on 21 May 2019 to allow for the parents to make further submissions and for reports to be obtained.

5. Mr Poeschel has not had the children in his care since 9 March 2019.

6. On 28 August 2019 Child Support decided that a change in care occurred on 28 February 2019 (76% Ms Hannigan and 24% Mr Poeschel) and a further change in care on 9 March 2019 whereby Ms Hannigan has 100% care.  Child Support also decided that an interim care period should apply from 9 March 2019 to 26 February 2020.

7. On 2 September 2019 Ms Hannigan objected to the interim period being applied until 26 February 2020 on the basis that Mr Poeschel ceased taking reasonable action to have the court orders applied from 21 May 2019.

8. On 20 February 2020 an objections officer disallowed Ms Hannigan’s objection. 

9. On 26 February 2020, Ms Hannigan applied to this tribunal for an independent review of the objections officer’s decision.

10. A hearing into the application for review was held by the tribunal on 23 April 2020 in Hobart.  Ms Hannigan and Mr Poeschel participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

11. 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 folios 1 to 444.  Ms Hannigan and Mr Poeschel supplied further documentary evidence (A1–A10 and B1–B48).  A copy of all of the papers was provided to the parents prior to the hearing. 

ISSUES

1. In this case, it is not in dispute that since 9 March 2019 the children have not been cared for in accordance with the court orders which were issued on 28 February 2019.  The issue in this case is whether or not an interim care period should apply.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Act) contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Act.  Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver.  That determination remains in force until it is revoked.  If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones.   

2. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies and that care arrangement is not being complied with (see section 51 of the Act).

3. A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.  In this case a court order was issued on 28 February 2019 that allowed Mr Poeschel to have care of the children for three nights per fortnight and for half of the school holidays.

4. Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes ‘reasonable action’ to have the court order complied with.  What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[1]

   ·      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 Relationship 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 a court to have an order made or enforced;

   ·      attending a hearing at court to seek an order to be made or enforced; or

   ·      notifying the police that the child has been taken without consent.

   The tribunal is not bound by policy as set out in the Guide.  However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, the 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 decided that the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [1] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.41 – can be found at >

   A hearing was held in the Family Court on 21 May 2019 and court orders were made ‘upon noting that the father gives an undertaking that he will not seek to actively enforce or act on paragraph 1 of the orders made on 28 February 2019 that the children spend time with him.’  The court orders were that an Independent Children’s Lawyer be appointed.  The matter was adjourned until 20 August 2019.  On 20 August 2019 further orders were made that a private family report be prepared by [Psychology centre] Psychology.  The matter was adjourned until the next available court date and it is clear from the evidence that legal action in relation to care is ongoing.

5. Ms Hannigan has submitted that Mr Poeschel ceased taking action to have the 28 February 2019 court orders enforced on 21 May 2019 when he made an undertaking to the court not to pursue those orders. 

6. Mr Poeschel submitted that he did provide such an undertaking as he was advised that his attempts to enforce the orders were damaging his relationship with his children.  He said there had been ‘unpleasantries’ at the children’s school when he attempted to take them into his care.  Judge [A]had advised him to reconsider his approach; to take a softer approach, and try to re-establish his relationship with the children.  Mr Poeschel said that since then he has been trying to re-engage with the children.

7. Mr Poeschel pointed out that although he undertook not to ‘actively enforce’ the court orders he is still trying to have care in accordance with the orders; but he is taking a ‘softer’ approach as advised. 

8. His ability to communicate with the children has been hampered as they were provided with new phones and they have not provided him with their new telephone numbers.  His communication has therefore been limited to emails.  He stated that at the hearing on 20 August 2019 he sought urgent family therapy between him and the children.  On 11 September 2019, through his solicitor, he wrote to Ms Hannigan’s solicitor about a number of issues and seeking Ms Hannigan’s cooperation in encouraging the children to see Mr Poeschel.  Mr Poeschel provided a letter from [Psychology centre] dated 24 September 2019 stating that interviews had been set up, including one with Mr Poeschel.

9. Ms Hannigan has submitted that she has encouraged the children to see Mr Poeschel to discuss their relationship and that the children are free to stay with Mr Poeschel if they so choose.

10. Ms Hannigan provided a letter from Mr Poeschel’ solicitor to her solicitor dated 5 June 2019.  The letter suggests finalising all current applications before the courts and having a consent order for equal care of the children.  Ms Hannigan submitted that this offer was a ‘take it or leave it’ offer in that it offered no discussion or amendment.  She made a counter offer the next day of orders allowing for the children to live with her and spend time with Mr Poeschel in accordance with their wishes.  This was not accepted.

11. After considering the evidence the tribunal was satisfied that Mr Poeschel has been actively seeking care of the children in accordance with the 28 February 2019 court orders since they were breached on 8 March 2019.  The undertaking provided on 21 May 2019 was not an undertaking to not seek care of the children; it was to not take enforcement action on the basis that he needed to build his relationship with the children.  He has been trying to do that and he has been engaging in the processes set up, including having an interview with [Psychology centre].  The action he is taking is reasonable given the circumstances.

12. As a consequence, subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under the care arrangement (or written parenting agreement) and the other being the care actually taking place.  In this instance, the tribunal concluded that those percentages of care would be:

    ·      care according to 2019 court order – 76% for Ms Hannigan and 24% care for Mr Poeschel (pursuant to subsection 51(3) of the Act); and

    ·      care that is actually occurring – 100% for Ms Hannigan and nil for Mr Poeschel (pursuant to subsection 51(4) of the Act).

13. 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 meaning of special circumstances is not defined in the Act, but is described in the Guide, which 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.

    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.

14. Ms Hannigan has submitted that it is the children’s choice not to stay with Mr Poeschel and noted that [Child 1] was 15 years old at the time and [Child 2] was 12.  She provided a psychological report stating that [Child 2] was mature beyond her years and capable of making her own decisions about her care.  The tribunal did not consider that the children’s possible reluctance to spend time with their father constitutes special circumstances and there was no evidence in this case to exercise the discretion provided for in subsection 51(5) of the Act not to make an interim care determination. 

15. Section 53A of the Act provides a table for working out the end date for the interim period.  In a case where the change in care is less than 26 weeks from the date of the court order the interim care determination made under section 51 of the Act applies for 52 weeks; that is until 26 February 2020.

16. The tribunal therefore affirms the decision under review.

DECISION

The decision under review is affirmed.