Hingerton and Creadey (Child support)

[2024] AATA 2764

Hingerton and Creadey (Child support) [2024] AATA 2764 (28 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/SC027139

APPLICANT:  Mr Hingerton

OTHER PARTIES:  Child Support Registrar

MsCreadey

TRIBUNAL:Member J Thomson

DECISION DATE:  28 June 2024

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS 

CHILD SUPPORT – percentage of care – change in the pattern of care – withholding of care of the child – a breach of the court orders – pre-existing care percentage revoked – 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 theChild Support (Registration and Collection) Act 1988

REASONS FOR DECISION

BACKGROUND

1. Mr Hingerton and Ms Creadey are the parents of [Child 1], born 2017.

2. Mr Hingerton seeks review of an objection decision made by Services Australia (Child Support) on 4 December 2023. This decision disallowed his objection to an earlier decision made by Child Support on 1 August 2023, deciding to reflect the care of [Child 1] as 100% to Ms Creadey and 0% to Mr Hingerton from 24 April 2023, notified on 19 July 2023.

3. The Tribunal heard the matter on 12 April 2024. Both parents attended the hearing via conference telephone and gave affirmed evidence. The Tribunal had before it documentation provided by Child Support (folios 1 to 119) admitted into evidence and marked Exhibit 1. Both parents had copies of these documents with them at the hearing.

4. At the conclusion of the hearing, the Tribunal directed Ms Creadey to provide a copy of orders made by the Federal Circuit Court of Australia on 19 January 2024 (the FCC Orders) regarding care of [Child 1]. Ms Creadey has complied with the Tribunal’s direction and the copy of the FCC Orders (folios 8 to 15) she provided has been admitted into evidence and marked Exhibits B8 to B15. At the hearing, Mr Hingerton acknowledged and agreed he did not require a copy of these court orders to be provided to him as he had a copy and was present in the court when the orders were made by consent of the parents.

5. Post-hearing, Ms Creadey provided further written submissions (folios 1 to 7). These submissions have been received into evidence and marked Exhibits B1 to B7, copies of which were sent to Mr Hingerton on 22 April 2024 for his consideration and comment by 29 April 2024. No response has been received from Mr Hingerton as at the date of this decision.

ISSUES

1. The issues which arise in this case are:

   ·      Should the pre-existing care determinations be revoked? and

   ·      Should an interim care determination be made? and

   ·      From what date should any new percentage of care determination apply?

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by the parents at the hearing and the documentation contained in Exhibits 1 and B.

2. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for new care decisions to be made. Section 49 applies, relevantly, if the parent ‘has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. Section 50 applies, relevantly, if the parent ‘has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances’. When there is an existing care determination for a child, a parent may notify the Registrar of a care change and the existing care determinations can be revoked under sections 54F, 54G or 54H of the Act.

3. To consider whether the existing care percentages should be changed, it is necessary to examine the actual or likely pattern of care being had or likely to be had by the parents by reference to an appropriate care period. Child Support generally considers a period of 12 months to be appropriate, the approach the Tribunal intends adopting in this case.

4. Subsection 51(1) of the Act applies, relevantly, if:

   (a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

   (b)a care arrangement applies in relation to the child; and

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

5. Subsection 51(2) of the Act requires the Registrar to determine two percentages of care in relation to the responsible person. The first percentage (pursuant to subsection 51(3) of the Act) is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil). The second percentage (pursuant to subsection 51(4) of the Act) is to be:

   (a)for a determination under section 49 – 0%; or

   (b)for a determination under section 50 – a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph 51(1)(d) were not to succeed.

6. On 19 July 2023, Ms Creadey notified Child Support of a change in care for [Child 1] which she said occurred on 24 April 2023. Prior to her notification, the care percentages being assessed by Child Support for [Child 1], as recorded by Child Support in its letters to the parents at pages 16 to 19 of Exhibit 1, were 79% to Ms Creadey and 0% to Mr Hingerton.

7. There was evidence before the Tribunal of complex court-ordered care being determined by the Federal Circuit Court of [Australia], on [date] August 2022 (the FCC Orders; see pages 43 to 52), according Mr Hingerton, of graduated care periods, relevantly, of three nights per fortnight for a period of six months commencing on 24 February 2023 and, for the school holidays up to the commencement of term one in 2023, two nights each fortnight followed by blocks of four nights in the school holiday periods in terms one, two and three of 2023. The Tribunal notes that these court orders were made in response to an application by Ms Creadey’s mother, Mrs [A], with Mr Hingerton and Ms Creadey listed as respondents, although separately represented, and [an organisation] listed as the Independent Children’s Lawyer, presumably for the child in the assessment, [Child 1].

8. The Tribunal notes Ms Creadey did not make reference to the FCC Orders of 22 August 2022 in her change in care notification of 19 July 2023 nor does it appear Mr Hingerton responded to Child Support’s invitations for him to participate in Child Support’s initial change in care investigation process and it was not until he contacted Child Support on 22 August 2023 to lodge his objection to Child Support’s original decision on 1 August 2023 that his version of the events surrounding the change in care of [Child 1] on 24 April 2023 were made known to Child Support.

9. At the hearing, Mr Hingerton gave evidence that, during the course of his regular four‑night court‑ordered care block of [Child 1] shortly prior to the Easter 2023 long weekend, (commencing on 7 April 2023 and due to end on the following Tuesday 11 April 2023 at 5 pm), [Child 1] had made him aware of contentious issues at Ms Creadey’s house relating to Ms Creadey’s relationship with her new boyfriend, [Mr B], a relationship which apparently did not meet with the approval of Mrs [A], the child’s maternal grandmother and the step‑grandfather, Mr [C], all of whom appear to have been residing under the one roof, and which [Child 1] informed him had given rise to arguments and general unpleasantness in Ms Creadey’s household during [Child 1]’s care periods with her mother.

10. Mr Hingerton gave evidence that Ms Creadey had a previous history of drug abuse and the issues giving rise to the disputation in Ms Creadey’s household appear to have caused him to have concerns for the safety of [Child 1] because of the likelihood of her relapsing into her previous drug abuse habits in consequence of the bad influence of her new boyfriend, [Mr B].

11. Mr Hingerton said he raised his concerns with Mr [C] and Ms Creadey over the Easter 2023 weekend shortly before he was due to return [Child 1] to Ms Creadey on 11 April 2023.

12. The upshot of this was Mr Hingerton’s decision to withhold care, based on his perceived concerns for [Child 1]’s safety were he to return her to Ms Creadey at the conclusion of his court‑ordered care period on 11 April 2023.

13. The Tribunal finds that Mr Hingerton’s withholding of care on 11 April 2023 was a temporary departure from the court‑ordered care arrangements while he investigated the living circumstances at Ms Creadey’s house.

14. Mr Hingerton gave evidence he contacted the local police and requested they conduct a welfare check at Ms Creadey’s house. Meanwhile, with the approbation of the local police, he arranged for [Child 1] to stay with his mother while he conducted various enquiries over the course of the ensuing next two weeks with a view to establishing if Ms Creadey had relapsed into her previous drug abuse habit, and the background to the disputation in Ms Creadey’s household.

15. He gave evidence that, during this two-week period during which he had placed [Child 1] in his mother’s care while he arranged for various welfare checks to be conducted, he was in communication with Ms Creadey, who he said made efforts to satisfy him of [Child 1]’s safety at her house. He said she also informed him of her intention to commence contravention proceedings to secure compliance with the existing court orders of 22 August 2022.

16. On conclusion of the police welfare checks, which he acknowledged revealed no evidence of any threat to the child’s safety if she were returned to the mother, he said he arranged for [Child 1] to return to his care during the latter part of the two‑week period during which he had withheld care of the child from Ms Creadey. He gave evidence that he was due to have further court‑ordered weekly care from 23 April 2023. However, he gave evidence that at or about 12.30 pm on Sunday 23 April 2023, while [Child 1] was temporarily unattended in Mr Hingerton’s mother’s motor vehicle at a local service station, the child was taken by Mr [C], Ms Creadey’s step-grandfather, and returned to Ms Creadey’s care, and he acknowledged and agreed in his evidence at the hearing that the child has remained in Ms Creadey’s care since 23 April 2023.

17. The Tribunal finds the change in care event took place on 23 April 2023 when Ms Creadey recovered care of [Child 1] and Mr Hingerton’s care pattern as reflected in the court orders of 22 August 2022 ceased. Accordingly, the care period the Tribunal will consider is the 12‑month period from 23 April 2023 to 22 April 2024.

18. Upon his becoming aware of the child’s ‘abduction’, as described in the preceding paragraph, Mr Hingerton said he immediately notified the local police who he said attended on Ms Creadey at her house, conducted a further welfare check and were content to allow the child to remain with the mother.

19. Mr Hingerton gave evidence that he sought legal advice as to his options, including the restoration of the court‑ordered care arrangements, and engaged a solicitor to represent him in the contravention proceedings which Ms Creadey had initiated in April 2023 for enforcement of the court‑ordered care of [Child 1]. He acknowledged in his evidence at the hearing that those proceedings are still in progress.

20. Mr Hingerton acknowledged and agreed at the hearing that he has not had any care of [Child 1] since 23 April 2023. However, he now seeks review of the objections officer’s refusal to grant him an interim care determination pending the outcome of the contravention proceedings commenced by Ms Creadey.

21. Ms Creadey’s evidence to the Tribunal at the hearing was to the following effect.

22. She acknowledged and agreed that there were issues between her and her mother, Mrs [A], and her step-father, Mr [C], regarding her new relationship with her boyfriend, [Mr B]. However, she denied this had given rise to any form of domestic violence, nor was there any disruption to the normal day-to-day activities within the house she shared with her mother and step-father such as to constitute a threat to the safety and wellbeing of [Child 1] when she was in Ms Creadey’s care.

23. Ms Creadey challenged Mr Hingerton’s evidence that she had, or was likely to, relapse into any former drug abuse behaviour.

24. She gave evidence that she had placed instructions with her legal advisors to initiate a contravention application in the Federal Circuit Court of Australia, that such an application had been filed on 17 April 2023, and that those proceedings were currently in progress.

25. She gave evidence that she had offered Mr Hingerton care of [Child 1] since the child returned to her care on 23 April 2023, but said he has not sought to avail himself of her offers. In that regard, the Tribunal notes that in the course of the objection process, Mr Hingerton is recorded as informing the objections officer that he had ‘taken the decision not to see [Child 1] at this time, and let the court make the decision’ (see Mr Hingerton’s written submission dated 15 October 2023 at page 66 of Exhibit 1).

26. There was no evidence before the Tribunal that there was any substance to Mr Hingerton’s perceived apprehensions regarding threats to [Child 1]’s safety were she to be returned to Ms Creadey’s care at the conclusion of his routine court‑ordered care period on 11 April 2023, nor was there any evidence that Ms Creadey had relapsed into any form of substance abuse at the time of Mr Hingerton’s decision to withhold care in April 2023. The Tribunal finds there was no substance to his concerns for the child’s safety sufficient to justify his decision to withhold care of the child as he did in early April 2023.

27. The Tribunal is also satisfied that Mr Hingerton’s withholding of care of the child in April 2023 constituted a breach of the court orders of 22 August 2022 on his part, conduct relied upon by the objections officer in finding that it was not appropriate to grant an interim care determination in this case, notwithstanding his evidence suggests that, as the parent with reduced care, he appears to have taken reasonable steps, as contemplated in section 51 of the Act referred to above, to ensure that the court-ordered care arrangements were complied with by consulting his solicitors to achieve that outcome.

28. However, to consider whether or not it is open to the Tribunal to grant an interim care determination in this case pursuant to section 51 of the Act, the effect of the recent Federal Court of Australia judgment on 1 February 2024 in Child SupportRegistrar v CMU23 [2024] FCA 109 has to be taken into account. In that case, the Federal Court held that paragraph 53(1)(c) of the Act had the effect of rendering section 51 of the Act inapplicable if the pre-existing care percentages were to be revoked under section 54F or 54H of the Act.

29. The Tribunal finds there was a change in the care of the child on 23 April 2023 when Ms Creadey recovered care of [Child 1] and the child has remained in her care since that date. Mr Hingerton, on his own admission, has not had any care of the child since 23 April 2023. The Tribunal therefore finds Ms Creadey’s level of care of [Child 1] equates to a care percentage of 100%.

30. The Tribunal finds that section 54G of the Act does not apply to this case. However, as the Tribunal has determined a new care percentage of 100% to Ms Creadey, the care of the child does not correspond with the existing percentages of care and the cost percentages will change. Consequently, the Tribunal finds section 54F of the Act applies in this case and pursuant to that section revokes Ms Creadey’s pre-existing care percentage of 79%, replacing it with the new care percentage of 100%.

31. As the Tribunal is revoking Ms Creadey’s pre-existing care percentage of 79% pursuant to section 54F of the Act, for the reason set out above regarding the decision in Child SupportRegistrar v CMU23, an interim care determination cannot apply and only actual care can be considered.

32. Ms Creadey did not notify Child Support of the change in care until 19 July 2023, more than 28 days after the change in care date of 23 April 2023. Accordingly, pursuant to paragraph 54F(3)(b) of the Act, the date of revocation of Ms Creadey’s care percentage of 79%, as the parent with increased care of the child, will be 18 July 2023, that being the day before the date of notification of the change in care. Pursuant to section 54B, Ms Creadey’s new care percentage of 100% applies from 19 July 2023. Mr Hingerton’s care percentage of 0% remains unchanged.

33. As the Tribunal has reached the same conclusion as that reached by the objections officer in the decision under review, the Tribunal therefore affirms that decision.

DECISION

The Tribunal affirms the decision under review.