Harris and Harris (Child support)

[2023] AATA 2137

Harris and Harris (Child support) [2023] AATA 2137 (8 June 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/PC025449

APPLICANT:  Mr Harris

OTHER PARTIES:  Child Support Registrar

Ms Harris

TRIBUNAL:Senior Member R Ellis

DECISION DATE:  08 June 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Harris provides 33 per cent care and Ms Harris provides 67 per cent care of [Child 1] and [Child 2] from 6 March 2020 until 3 September 2020; and

• Mr Harris provides 0 per cent care and Ms Harris provides 100 per cent care of [Child 1] and [Child 2] from 4 September 2020.

• In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from the date on which Mr Harris objected to the original care decision, which was 25 October 2022.

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 – reasonable action taken – interim period applied – date of effect – 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. This review is about a change to the percentage of care determinations for Mr Harris and Ms Harris in respect of their children [Child 1] (born August 2004) and [Child 2] (born April 2007).  There has been a child support assessment in place since 15 April 2011.

2. From 7 December 2011 the child support assessment reflected Mr Harris as having 33 per cent care and Ms Harris as having 67 per cent care of [Child 1] and [Child 2].

3. On 17 November 2021 Ms Harris informed Services Australia – Child Support (Child Support) of a change to the care arrangements stating she had 100 per cent care of [Child 1] and [Child 2] from 6 March 2020.

4. On 20 September 2022 Child Support made the decision that Mr Harris provides 0 per cent care and Ms Harris provides 100 per cent care of [Child 1] and [Child 2] from 6 March 2020 but with effect from 6 March 2020 for Mr Harris and from 17 November 2021 for Ms Harris.

5. On 25 October 2022 Mr Harris objected to this decision and on 18 January 2023 Child Support disallowed (the objection decision).

6. On 19 January 2023 Mr Harris applied to the Administrative Appeals Tribunal (the Tribunal) for a review of the objection decision.

7. The Tribunal conducted a hearing into the application on 8 June 2023.  Mr Harris appeared before the Tribunal and gave evidence on affirmation.  Ms Harris gave evidence on affirmation by Microsoft Teams audio.  Child Support provided the Tribunal and the parties with papers relevant to the matter (235 pages).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the R&C Act).

2. Child Support 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. Where a parent has a pattern of care for a child, Child Support determines care percentages that correspond with the actual care of a child the parent has, or is likely to have, during a care period (section 50 of the Act). In other words, Child Support makes care decisions at a point in time based on what has happened up until the change in care is considered and what is the likely care thereafter. The task of the Tribunal on review is the same.

4. Child Support revokes care percentages in the circumstances set out in sections 54F, 54G and 54H of the Act and can then make a new care determination to take account of a care change.

5. Section 51 of the Act states that a care determination, known as an interim determination, may be made if a care arrangement is not being complied with and the parent with reduced care takes “reasonable action” to have the care arrangement complied with.

6. The issues which arise in this case are:

   ·     whether or not there has been a change in the pattern of care for [Child 1] and [Child 2] which requires the existing percentages of care to be revoked and new care determinations made and, if so, from what date should the new percentage of care determinations take effect; and

   ·     whether or not an interim care determination should be made and, if so, for what period should any such determination apply?

CONSIDERATION

1. Mr Harris told the Tribunal there were court orders in place relating to the care of [Child 1] and [Child 2].  Mr Harris said he had struggled for many years to ensure Ms Harris complied with the orders and had been to court on numerous occasions in the past seeking to have the orders enforced.  Mr Harris said Ms Harris was again withholding care of the children. 

2. Mr Harris said he did not dispute that Ms Harris had 100 per cent care of [Child 1] and [Child 2] from 6 March 2020.  Mr Harris said he last had care of the children on the weekend of 23 February 2020.  Mr Harris argued that Ms Harris had effectively kidnapped the children in contravention of the court orders.  He said under the orders he was supposed to have care of three nights per fortnight and half the school holidays plus additional care at other times.

3. The Tribunal notes in evidence from Child Support a copy of consent orders handed down in the Family Court of Western Australia [in] March 2018.  In relation to care, the orders state the children are to spend time with Mr Harris for three nights a fortnight during school term and half the school holidays with this care to be extended during public holidays and on other occasions.  The orders state his term care is to start from after school on a Friday.

4. Mr Harris said Ms Harris continued to prevent him from seeing [Child 1] and [Child 2] or maintaining any sort of relationship with him.

5. Mr Harris told the Tribunal when it became obvious Ms Harris was not going to allow him to have his usual weekend care in accordance with the court orders he immediately sought preliminary legal advice and attempted to have the orders enforced through the courts.  Mr Harris said, due to financial constraints, he initially tried to file his own contravention order but this failed.  He said it then became difficult to access the courts due to lockdowns associated with COVD-19 and he was again unable to pursue the matter himself.  Mr Harris said ultimately he was forced to engage a law firm but was subsequently informed there was little prospect of success in enforcing the orders as the children were at an age where they would be able to make their own decisions about where they lived.

6. Mr Harris said it was for this reason that he did not pursue the matter further through legal means.  Mr Harris added that he did not attempt mediation as he had been down this path before and Ms Harris had always refused to attend mediation.  Mr Harris said he felt he was out of options but continued to try to comply with the orders through communication with Ms Harris and the children.  He said that Ms Harris never responded to his communication.

7. The Tribunal notes in evidence from Child Support an affidavit and correspondence from Mr Harris stamped as received by the Family Court of Western Australia [in] July 2020.  In the correspondence Mr Harris sets out his reasons for seeking an urgent contravention hearing.  The Tribunal further notes correspondence from law firm [Firm 1], acting for Mr Harris, to the Family Court of Western Australia.  The correspondence, dated 21 August 2020, confirms Mr Harris is seeking a contravention order and an enforcement application in relation to non-compliance with the court orders dated [March] 2018.

8. Ms Harris told the Tribunal she was attempting to follow the court ordered care but it had become increasingly difficult as the children grew older and started making up their own minds about where they wanted to stay.  Ms Harris said her task was made more challenging because Mr Harris was a [Occupation 1] and frequently travelled overseas to sell [specified] in Asia, missing his court ordered time with the children.  Ms Harris pointed out that it was one such occasion in March 2020 after Mr Harris had travelled to [Country 1] and was forced to quarantine that caused the girls to decide they no longer wished to live with their father.

9. Ms Harris told the Tribunal she was not withholding care of [Child 1] and [Child 2] but simply respecting their wishes.  Ms Harris said she could not force the children to stay with Mr Harris.

10. Ms Harris said she was not aware Mr Harris had initiated legal action after the girls decided they no longer wished to stay with him from 6 March 2020 but this did not surprise her.  Ms Harris said she had been through a revolving door to the Family Court as a result of action Mr Harris had taken since separation.  Ms Harris said Mr Harris was vexatious and the consistent legal action had taken its toll on her and the children.  Ms Harris added that she no longer communicated with Mr Harris due to his attitude and the abusive nature of his communication.  She acknowledged that any attempt at mediation would be pointless.

Issue 1 – Change in the pattern of care

1. It is not in dispute and the Tribunal finds that care of [Child 1] and [Child 2] changed from 6 March 2020 with Ms Harris providing 100 per cent care from this date.

2. The existing percentages of care reflected in the assessment for [Child 1] and [Child 2] are 33 per cent care to Mr Harris and 67 per cent care to Ms Harris in keeping with court orders dated [March] 2018.

3. The Tribunal is satisfied, in the circumstances of this case, that section 54G of the Act does not apply. Section 54F of the Act provides that if the care of the child that is actually taking place does not correspond with the existing percentage of care for the parents and a change in the percentage of care would result in a change to the cost percentage, then the existing percentage of care determinations must be revoked and replaced by new percentage of care determinations.

4. As section 54F of the Act is met, the Tribunal finds the previous determinations must be revoked.

Issue 2 – Interim care determination

1. 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.

2. The Tribunal, in making a new percentage of care determination 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, such as a court order or parenting plan, must be in place and the actual care of the child during the care period does not comply with the extent of care of the child under that care arrangement (paragraphs 51(1)(b) and 51(1)(c) of the Act). The parent who has reduced care must also be taking “reasonable action” to ensure that the care arrangement is complied with (paragraph 51(1)(d) of the Act).

3. The Tribunal is satisfied that court orders relating to the care of [Child 1] and [Child 2] were in place and the parents were attempting to follow these orders prior to the change in care.

4. The term “reasonable action” is not defined in the Act. 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.

5. Mr Harris has told the Tribunal he sought legal advice after it became obvious he was unable to have care of [Child 1] and [Child 2] in keeping with the court orders.  Mr Harris argues he then sought a recovery order through the courts but this was delayed because he attempted to lodge the application himself and there were difficulties associated with COVID-19.  The Tribunal accepts this explanation.  Ms Harris said she was not aware of the action taken by Mr Harris but it was not unexpected.  Ms Harris told the Tribunal she did not communicate with Mr Harris and both parents have agreed that mediation was not pursued.

6. The Tribunal is satisfied, based on the evidence provided, that Mr Harris took reasonable action to recover his care under the court orders and this reasonable action commenced from the date care changed.  The Tribunal is also satisfied the reasonable action being taken by Mr Harris is ongoing.

7. As a care arrangement is in place and Mr Harris, the parent with reduced care, took reasonable action, 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 and the other being the actual care taking place.

8. 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. Section 2.2.4 of the Child Support Guide, an Australian Government policy document, states in relation to special circumstances, “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.”

9. The Tribunal is satisfied there are no special circumstances such that an interim care determination should not be made in this case.

10. The Tribunal finds that a care determination can be made for an interim period with two percentages of care:

    · care according to the court orders being 33 per cent care to Mr Harris and 67 per cent care to Ms Harris (pursuant to subsection 51(3) of the Act); and

    · care actually occurring being 0 per cent care to Mr Harris and 100 per cent care to Ms Harris (pursuant to subsection 51(4) of the Act).

Issue 3 – Term of the interim period

1. The meaning of interim period is given in section 53A of the Act. The start day of the interim period is usually the change of care day and the end day of the interim period is usually governed by the table in subsection 53A(1) of the Act.

2. The length of the interim care period is determined by a number of factors, such as whether or not the previous care arrangement was a court order, written agreement or parenting plan and the time elapsed between the previous care arrangement being made and the reported care change.  It also depends upon whether or not the person with increased care took “reasonable action” to participate in family dispute resolution.

3. Ms Harris has not participated in mediation and has not engaged with Mr Harris in an attempt to ensure the court ordered care is complied with.  The Tribunal is not satisfied Ms Harris also took reasonable action in the circumstances of this case.

4. Care of [Child 1] and [Child 2] is according to court orders made [in] March 2018, which ceased to be followed on 6 March 2020. As more than 38 weeks has elapsed between the date of the court orders and the change of care day and Mr Harris was the only parent to take reasonable action, the Tribunal is satisfied the interim care period should be 26 weeks starting on the change of care day (item 2, column 3, paragraph (a) of the table in subsection 53A(1) of the Act). The second period of care applies after the interim period ends.

5. As the Tribunal has revoked the existing care determinations for [Child 1] and [Child 2], new care determinations must be made. Section 54C establishes the application days if two percentages of care apply under section 51 of the Act:

   ·     the first care percentage is that Mr Harris provides 33 per cent care and Ms Harris provides 67 per cent care of [Child 1] and [Child 2] from 6 March 2020 until 3 September 2020 (each day in a child support period that occurs in the interim period); and

   ·     the second care percentage is that Mr Harris provides 0 per cent care and Ms Harris provides 100 per cent care of [Child 1] and [Child 2] from 4 September 2020 (each day that does not occur in the interim period until such time as this determination is revoked).

1. The Tribunal must also consider the date of effect of its care decision.  The Tribunal notes that on 25 October 2022 Mr Harris lodged his objection to the original care decision made by Child Support.  It appears, according to the evidence provided, that Mr Harris submitted his objection outside the required timeframe.

2. An objection to a care percentage decision does not have to be lodged within 28 days, however, if it is lodged outside the 28-day period and the objection is either allowed in full or in part, the effective date of the objection decision is the date on which the objection was lodged in accordance with subsection 87AA(1) of the R&C Act. In this case Child Support disallowed the objection and so subsection 87AA(1) does not apply.

3. The Tribunal has found differently. As the decision made by the Tribunal will apply in substitution of the objection decision made by Child Support the date of effect of the Tribunal decision is in accordance with subsection 87AA(1) of the R&C Act.

4. Child Support may, under certain circumstances, make a determination under subsection 87AA(2) of the R&C Act that subsection 87AA(1) applies as if the reference to 28 days was a reference to such longer period as determined to be appropriate. To do so requires Child Support to make an original decision which the Tribunal is unable to make in the current proceedings. It is clear that a care decision and a section 87AA decision (if one is made) are separate decisions with separate review rights (sections 80 and 80A and items 2 and 3 of section 89 of the R&C Act). Mr Harris may apply to Child Support for a decision under subsection 87AA(2) of the R&C Act to be made if he considers this an appropriate course of action.

5. Given the late objection made by Mr Harris the decision of the Tribunal will, therefore, apply from 25 October 2022.  As the first care percentage under the interim care determination made by the Tribunal ends on 3 September 2020, which is before 25 October 2022, the decision of the Tribunal will not take effect unless a determination under section 87AA(2) is made by Child Support.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

• Mr Harris provides 33 per cent care and Ms Harris provides 67 per cent care of [Child 1] and [Child 2] from 6 March 2020 until 3 September 2020; and

• Mr Harris provides 0 per cent care and Ms Harris provides 100 per cent care of [Child 1] and [Child 2] from 4 September 2020.

• In the absence of a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988, the Tribunal’s decision has effect from the date on which Mr Harris objected to the original care decision, which was 25 October 2022.