Hansford and Hansford (Child support)

[2022] AATA 5047

Hansford and Hansford (Child support) [2022] AATA 5047 (13 December 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/PC024830

APPLICANT:  Mr Hansford

OTHER PARTIES:  Child Support Registrar

Ms Hansford

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  13 December 2022

DECISION:

The decision under review is affirmed with the care period commencing from 2 May 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – what was the likely pattern of care from the start of the administrative assessment – 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. This review is about the percentage of care determinations for Mr Hansford and Ms Hansford in respect of their child [Child 1] (born July 2006).

2. A new child support case was registered by the Child Support Agency on 6 June 2022 with the child support liability commencing from 2 May 2022.

3. On 6 June 2022 the Child Support Agency also made the decision to record the level of care under the assessment as Mr Hansford having 0 per cent care and Ms Hansford having 100 per cent care of [Child 1] from 2 May 2022.

4. On 21 July 2022 Mr Hansford objected to this decision and on 30 September 2022 the Child Support Agency disallowed the objection (the objection decision).

5. On 10 October 2022 Mr Hansford applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

6. The Tribunal conducted a hearing into the application on 13 December 2022.  Mr Hansford appeared before the Tribunal and gave evidence on affirmation.  Ms Hansford gave evidence on affirmation by conference telephone.  The Child Support Agency provided the Tribunal and the parties with papers relevant to the matter (134 pages). 

7. The Tribunal also received additional information from Mr Hansford (A1–A26) and Ms Hansford (B1–B14) prior to the hearing and copies were distributed to the parties.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The Child Support Agency makes child support assessments using a formula outlined in the Act and the elements of this formula include care percentages for each parent.  The percentage of care is used in an assessment to calculate the percentage of the cost of the child that each parent is meeting directly through the care they provide for that child.

3. If a new application is made for a parent to be assessed in respect of the costs of a child and the parent has a pattern of care for a child, the Child Support Agency determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (sections 49 and 50 of the Act).

4. The issues which arise in this case are:

   ·     what is the percentage of care each parent has for [Child 1]; and

   ·     from what date should the care determinations take effect?

CONSIDERATION

1. Mr Hansford told the Tribunal that care of [Child 1] was the subject of court orders dated 2 August 2017.  Mr Hansford said in accordance with these orders the parents were supposed to have 50-50 shared care, however, Ms Hansford was withholding care of [Child 1] in contravention of the orders.  Mr Hansford said he did not dispute that at the time Ms Hansford made her application for a child support assessment she had 100 per cent care of [Child 1].

2. Mr Hansford said when Ms Hansford first stopped following the court-ordered care he had successfully sought an interim care determination in 2021.  Mr Hansford explained that since then Ms Hansford had continued to prevent him from having care of [Child 1] and so he had returned to court on four separate occasions seeking compliance with the orders.

3. The Tribunal notes that according to Child Support Agency records an interim care determination was made on 20 August 2021 as Mr Hansford was found to be taking action to have the court-ordered care reinstated.  The court-ordered care was applied to the assessment under this decision for the period from 19 March 2021 to 17 September 2021.

4. Mr Hansford advised the Tribunal that as a result of his efforts to ensure a return to shared care further consent orders were issued by the courts on 7 May 2021, 21 October 2021, 7 February 2022 and 25 May 2022.  Mr Hansford pointed out that neither parent had sought a change to the care arrangements under the 2 August 2017 orders during these hearings and the subsequent consent orders affirmed the 50-50 care.  Mr Hansford said it was his strong view the subsequent consent orders were new care arrangements in keeping with the Act and this meant further interim care determinations should be made.  Mr Hansford said Ms Hansford should not be financially rewarded for continuing to withhold care.

5. The Tribunal notes in evidence provided by Mr Hansford copies of consent orders issued by the Family Court on 7 May 2021, 21 October 2021, 7 February 2022 and 25 May 2022.  These consent orders deal primarily with family therapy matters and there is no reference to a change in the care arrangements for [Child 1].

6. Mr Hansford argued the subsequent orders did not supersede the order of 2 August 2017 and each was to be read in conjunction with the other.  Mr Hansford reiterated that he believed the subsequent orders were nonetheless new care arrangements.

7. Ms Hansford told the Tribunal she agreed the court orders dated 2 August 2017 were no longer being followed and [Child 1] was currently in her 100 per cent care.  Ms Hansford said this was because [Child 1] did not wish to live with her father at the moment.  Ms Hansford said she was not withholding care and continued to encourage a better relationship between [Child 1] and Mr Hansford with a view to [Child 1] returning to his care when she felt ready.

8. Ms Hansford advised the Tribunal there were mental health issues at play and [Child 1] was having ongoing therapy which was a priority.  Ms Hansford said, in he review,  the focus of the subsequent court hearings initiated by Mr Hansford was more on family therapy than care.

9. Ms Hansford said she had complied fully with the previous interim care determination and was opposed to any further such determination being made.

10. The Tribunal is satisfied that an application for a child support assessment was made by Ms Hansford on 2 May 2022 and accepted by the Child Support Agency on 6 June 2022.

11. A care determination is based on the care a parent has provided or is likely to provide for the child in a care period.  In making a determination in relation to the care of [Child 1] the Tribunal must form a judgement about the probable future care when the child support assessment commenced from 2 May 2022.

12. It is not in dispute that at the time Ms Hansford made the application for a child support assessment [Child 1] was in her 100 per cent care.  Mr Hansford argues that Ms Hansford is withholding care in contravention of court orders which allow him 50 per cent care.  Mr Hansford seeks an interim care determination to reflect the care under the court orders.

13. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their child.  The Tribunal, in making percentage of care determinations either under section 49 or section 50 of the Act, must decide if section 51 applies.  For section 51 of the Act to apply a care arrangement must be in place and the actual care of the child does not correspond with the extent of care under the care arrangement.  The parent who has reduced care because this care arrangement is not being complied with must also be taking “reasonable action” to ensure that the care arrangement is complied with (paragraph 51(1)(d) of the Act).  There is no doubt Mr Hansford continues to take reasonable action to have the orders of 2 August 2017 complied with.

14. Section 53 of the Act sets out the circumstances under which section 51 does not apply.  Subsection 53(2) states, in effect, that when a later care determination has been made under section 49 or section 50 a further interim care determination cannot be made if there has already been an earlier interim care determination in relation to “the same care arrangement” as that earlier interim care determination (paragraph 53(2)(c) of the Act).

15. For child support purposes the definition of “care arrangement” includes “a parenting order within the meaning of section 64B” of the Family Law Act 1975. This section of the Family Law Act 1975 clarifies the meaning of a parenting order which may deal with such things as the person or persons with whom a child is to live and the allocation of parental responsibility for a child.  Section 2.2.4 of the Child Support Guide also provides insight into what constitutes a care arrangement for the purposes of interim care:

    For child support purposes, a care arrangement in relation to a child means:

    ·     a written agreement (see details below) between the parents of the child, or between a parent of the child and another person that relates to the care of the child, or

    ·     a parenting plan for the child within the meaning of section 63C of the FL Act, or

    ·     any of the following orders relating to the child

    oa family violence order within the meaning of section 4 of the FL Act

    oa parenting order within the meaning of section 64B of that Act

    oa state child order registered in accordance with section 70D of that Act, or

    oan overseas child order registered in accordance with section 70G of that Act.

16. Although not bound by policy as set out in the Child Support Guide, the Federal Court has held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation.

17. Mr Hansford argues, in his written submission, the consent orders dated 7 May 2021, 21 October 2021, 7 February 2022 and 25 May 2022 are parenting orders and constitute new care arrangements in accordance with the meaning of the Act.

18. The subsequent consent orders referred to by Mr Hansford do not change the extent of care he should have had or is to have in keeping with the court orders dated 2 August 2017. While section 64B of the Family Law Act 1975 does not explicitly mention the need for a parenting order to make provision for care of the child, it is clear that for section 51 of the Act to apply a care arrangement is needed that determines the extent of care a responsible person should have or is to have under that care arrangement.

19. As Mr Hansford has pointed out, the subsequent consent orders do not supersede the care arrangement under the court orders dated 2 August 2017.  The Tribunal finds that the care arrangement under the court orders dated 2 August 2017 remains in place.

20. Given there has already been an interim care determination made in relation to the care arrangement under the court orders dated 2 August 2017 and this care arrangement still applies, the Tribunal is satisfied this precludes the making of a further interim care determination. As an interim care determination cannot be made the Tribunal must consider the actual care of [Child 1].

21. The Tribunal finds that Mr Hansford provides 0 per cent care and Ms Hansford provides 100 per cent care of [Child 1] with the care period commencing on 2 May 2022.

DECISION

The decision under review is affirmed with the care period commencing from 2 May 2022.