Henderson and Willis (Child support)

[2019] AATA 5123

Henderson and Willis (Child support) [2019] AATA 5123 (8 October 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/SC016324

APPLICANT:  Ms Henderson

OTHER PARTIES:  Child Support Registrar

Mr Willis

TRIBUNAL:Member T Bubutievski

DECISION DATE:  8 October 2019

DECISION:

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care. Ms Henderson has 100% care and Mr Willis has 0% care of all three children as assessed from 29 January 2018.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the likely pattern – refusal to revoke the existing percentage of care determinations – 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 concerns the care percentages used in a child support assessment.

2. Ms Henderson and Mr Willis are the parents of three children. At the time the case was registered with the Department of Human Services (Child Support) (the Department) Ms Henderson was assessed to have 100% care of the children, with Mr Willis having 0% care.

3. On 30 April 2018 the parties signed consent orders which provided for Ms Henderson to have 79% care and Mr Willis to have 21% care from 25 May 2018. It is not dispute that Mr Willis attempted to commence his care from 25 May 2018, but the children did not go with him, and that they have remained 100% in the care of Ms Henderson since then. On 25 May 2018 Mr Willis advised the Department that his care of the children was to commence from that day.

4. On 10 July 2018 the Department decided to assess the care percentages at 79% to Ms Henderson and 21% to Mr Willis from 25 May 2018.

5. Ms Henderson lodged an objection to that decision, which was partly allowed on 13 March 2019, with the result that the Department made a determination that the care percentages of 79% to Ms Henderson and 21% to Mr Willis would apply for an interim period from 25 May 2018 to 28 April 2019.

6. On 11 April 2019 Ms Henderson made an application to the Social Services and Child Support Division of this tribunal for a review of that decision. Mr Willis was added as a party to the application.

7. The application was heard in Sydney on 2 September 2019. Ms Henderson and Mr Willis gave sworn evidence by telephone. In addition to oral evidence, the tribunal had regard to documents provided by the Department (folios 1 to 224) and submissions made by the parties after the hearing.

ISSUES

1. The issues the tribunal must decide are:

   ·     whether the care pattern for the children changed such that the previous care percentages should be revoked;

   ·     the care percentages that should be used and the date from which they should apply; and

   ·     whether an interim determination should be made while the parents took court action in relation to the children.

CONSIDERATION

1. The law that applies in this review is found in the Child Support (Assessment) Act 1989 (the Assessment Act). In the usual course of events, the Department (acting for the Child Support Registrar) makes child support assessments using a statutory formula in Part 5 of the Assessment Act. The formula contains a number of elements called “particulars of the assessment”. This includes the “percentage of care” and a “cost percentage” for each parent in relation to each child.

2. The Department makes determinations of each parent’s percentage of care (a care percentage decision) in accordance with sections 49 to 54L of the Assessment Act. These provisions require the Department to make determinations of each parent’s percentage of care when first making a child support assessment and if there is a change to the care pattern which means that an earlier determination should be revoked.

3. Care percentages must be revoked under section 54F of the Assessment Act if:

   ·     the care of a child that is actually taking place does not correspond with a person's existing percentage of care for the child; and

   · the pattern of care for the child has changed such that if care was to be determined on the basis of the new care pattern, the care percentages used in the assessment would change and new cost percentages (determined under section 55C of the Assessment Act) would apply.

4. Sections 49 and 50 require the Registrar, or this tribunal, to determine the likely pattern of care for a child during a period that is considered appropriate (a care period). Section 54A of the Assessment Act provides that the extent of care that a person is to have under a care arrangement may be worked out on the number of nights that a child is likely to be in that person’s care in a care period.

5. The date of effect of any revocation of care percentages, or changes to the percentages used depends on when the Department was notified or otherwise became aware of the change (section 54F of the Assessment Act).

6. Section 53A of the Assessment Act allows a determination of care percentages to be made for an interim period if the parents are taking action to change the care arrangements for the children and the final outcome is not yet decided. If the care arrangement is ordered by a court, the maximum length of time for an interim period is 52 weeks.

Was there a change to the care pattern for the children?

1. Ms Henderson told the tribunal that she has followed due course making applications to the court, and that there had been new court orders made on 20 February 2019, before the objection decision was made. Ms Henderson said that she sent a copy of these orders to the Department prior to the making of the objection decision, but they were not considered in that decision. These orders provide for Mr Willis to have only supervised contact with the children for six hours each weekend.

2. Ms Henderson said that the matter had been transferred to the Magellan list of the Family Court (the Family Court’s urgent case management list where there are allegations of child physical, psychological or sexual abuse) due to allegations of inappropriate physical and sexual contact. The orders of 20 February 2019 have been since amended under the slip rule to add a word, but are otherwise unchanged.

3. Ms Henderson confirmed that the children had been in her sole care since the consent orders of 30 April 2018. She confirmed that Mr Willis did attempt to exercise contact on 25 May 2018, but the children did not go with him. She said it was her understanding that in the JIRT investigation the children did make disclosures but they were not sufficient to lay criminal charges against Mr Willis. This evidence was, however, taken into account by the Family Court.

4. Ms Henderson's recollection was that following that contact attempt, Mr Willis made a contravention application to which she made a response.

5. Ms Henderson said that she did not receive notification of the change of care decision made by the Department. She said that they have subsequently told her that they did not send her a letter.

6. Mr Willis said that interim orders were initially made on 17 July 2017 which provided for 21% care to him and 79% to Ms Henderson. Further interim orders were made in the same terms on 30 April 2018, as Ms Henderson started to withhold the children from December 2017. Mr Willis said that at that time Ms Henderson conceded that she was contravening the previous orders, but did agree to the new orders. Care subsequent to the new orders did not occur. Mr Willis said that he made a contravention application in June 2018, which was heard by the court [in] August 2018. At that time a contravention was conceded, and Ms Henderson was found to have withheld the children without reason. The court orders were reinstated and Ms Henderson was placed on a good behaviour bond. The tribunal notes that the Department was supplied with a copy of these orders and they are in the terms set out by Mr Willis.

7. Mr Willis said that he made a further application for contravention in October 2018 as he still had no care of the children. He said that this went to hearing in June 2019 and the application was dismissed due to the wording of his affidavit.

8. Mr Willis said that Ms Henderson made no application for the orders to be amended until October 2018. He said that there is an investigation into the amendment of the orders of February 2019 under the slip rule as the slip rule was used without notification.

9. Mr Willis said that there had previously been an Apprehended Personal Violence Order (APVO) against Ms Henderson for his protection, and she had been found guilty of domestic violence and malicious damage, but this conviction was quashed in August 2018. He said that there had never been any APVOs against him for the protection of Ms Henderson or the children.

10. Mr Willis said that there was a Magellan report in February 2019, but that Ms Henderson did not make the children available. The court has ordered a Family Report. Mr Willis said that the children had been coached in the disclosures and JIRT found that he had no case to answer.

11. Mr Willis said that he instigated the child support assessment as he had just been declared bankrupt but Ms Henderson was asking for $1,200 per week in child support. He said the court orders have always been in place but that Ms Henderson has continued to contravene them. Mr Willis said that there were investigations into Ms Henderson and her solicitor at the present time.

12. Following the hearing, the tribunal deferred the matter to allow both parties to provide further evidence, including submissions, the JIRT report, the AVPO and its discharge, and the Magellan report. Ms Henderson's solicitor made written submissions on her behalf, including a copy of the orders of 20 February 2019 as amended under the slip rule. The Magellan report was not made available to the tribunal. Mr Willis provided no further evidence other than an email response to the submissions made by Ms Henderson’s solicitor. No other documents were received.

13. Ms Henderson’s solicitor provided the following relevant information:

• [In] March 2018, the matter was transferred from the Federal Circuit Court at [one location] to the Family Court as Ms Henderson raised concerns about sexual abuse being perpetrated by Mr Willis. [Later in] March 2018 the matter was transferred back to the Federal Circuit Court as the allegations were deemed not to meet the Magellan protocol;

• On 12 June 2018, Mr Willis made a contravention application, which was heard [in] August 2018, where Ms Henderson admitted the contravention and was placed on a good behaviour bond;

• In August 2018, Mr Willis made further applications for new orders;

• [In] September 2018 Ms Henderson made an Application in a Case seeking to suspend the parenting orders and have the matter transferred to the Magellan protocol;

• [In] October 2018, the matter was transferred to the Family Court, and [in] December 2018 in the matter was placed in the Magellan list. The Magellan report was ordered;

• On 20 February 2019, the court ordered that the children live with Ms Henderson and spend six hours per weekend of supervised time with Mr Willis. These orders were amended under the slip rule on 22 May 2019.

• The mother asserts that the father does not properly parent the children and subjects them to denigration, inappropriate comments and physical and sexual abuse. One of the female children has reported to her doctor that Mr Willis has acted inappropriately towards her.

1. There is no dispute that the court orders in this case from 17 July 2017 provided for Ms Henderson to have 79% care of the children and Mr Willis to have 21% care. There is also no dispute that there were new consent orders made on 30 April 2018 in the same terms. These orders were confirmed by the Court [in] August 2018. Subsequent orders of 20 February 2019 provide for Mr Willis to have only six hours per week of supervised contact with the children.

2. There is no dispute that care never proceeded in accordance with the arrangements set out in the court orders of 30 April 2018 and [August] 2018. Mr Willis has not had overnight care of the children and they have remained in the 100% care of Ms Henderson. There was no change to the pattern of care, as the child support assessment was based on Ms Henderson having 100% care from 29 January 2018.

Must the care percentages be changed to reflect the court orders even though the actual care did not change? Should an interim period apply?

1. If a care arrangement is determined on the basis of a court order, the care percentages for child support are usually determined in accordance with that order. If there is a departure from the care arrangements set out in the order, the care percentages under the order can continue to apply even though they do not reflect the care that is actually occurring. One of the common situations in which this occurs is when one parent withholds the children and the other parent takes reasonable action to have the care arrangement complied with. This is reflected in section 51 of the Assessment Act.

2. Section 53A of the Assessment Act sets out how long such a determination can last – the length of the “interim period”. Under section 53A, if a person is taking reasonable action to have care arrangement complied with the interim period extends until the end of 52 weeks after the commencement of the court order. In this case, this would mean that the interim period, where the percentages of care under the court orders of 30 April 2018 are maintained, would be from 30 April 2018 to 29 April 2019.

3. However, sections 51 and section 53A of the Assessment Act provide for changes to the care percentages and interim period to be made in the event that “special circumstances” apply in relation to child. If there are special circumstances, the care percentages reflecting the actual care may apply immediately, or the interim period may end at a different time.

4. Special circumstances are not defined in the legislation, but the Child Support Guide at 2.2.4 states the following:

Special circumstances where an interim period does not apply

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…

1. The tribunal is satisfied that in this case, at a minimum, special circumstances exist from 20 February 2019, when orders were made in the Family Court’s Magellan list which provided for Mr Willis to have no unsupervised or overnight care of the children due to allegations of physical and sexual abuse. These orders are substantially different from the orders of 30 April 2018, and supersede them. It would be unfair if they were not taken into account in the child support assessment.

2. The tribunal then considered whether a change to the child support percentages should apply from any earlier date due to special circumstances. Ms Henderson made her first application for the matter to be transferred to the Magellan list due to allegations of abuse in March 2018. This application was rejected. She made a further application in October 2018, which was accepted. Ms Henderson alleges that the children have made disclosures of physical and sexual abuse and her solicitor has advised the tribunal that one of the female children made such disclosures to her doctor. Mr Willis alleges that the children have been coached and that the allegations are untrue. The tribunal is not in a position to be the arbiter of fact in relation to these disclosures. These are matters for the court, FACS and the police. What it does have before it, however, is that the matter was successfully transferred to the Magellan list and subsequent orders provide only for Mr Willis to have supervised contact with the children. At this stage, the court has been satisfied that there is sufficient substance in the allegations made that it must proceed with an abundance of caution. The orders of 20 February 2019 are an acknowledgement that Ms Henderson may genuinely have had a protective reason for withholding the children from the care of Mr Willis. The tribunal is satisfied that special circumstances exist under subsection 51(5) of the Assessment Act such that there should be no interim period.

3. From 25 May 2018 Ms Henderson’s care percentage is 100% and Mr Willis’s care percentage is 0% under section 49 of the Assessment Act. This is the same as the assessment from 29 January 2018, so there can be no change to the care percentages.

4. In actual fact, there has been no change of care. The decision to change the care percentages is incorrect. The manner in which care is proceeding is simply a continuation of the existing assessment.

DECISION

The tribunal sets aside the decision under review and, in substitution, decides that there was no change in care. Ms Henderson has 100% care and Mr Willis has 0% care of all three children as assessed from 29 January 2018.