Hirst and Langford (Child support)

[2022] AATA 2375

Hirst and Langford (Child support) [2022] AATA 2375 (8 June 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC023597

APPLICANT:  Mr Hirst

OTHER PARTIES:  Child Support Registrar

Ms Langford

TRIBUNAL:Member E Kidston

DECISION DATE:  8 June 2022

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 - no interim period applied – 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. Mr Hirst and Ms Langford are the parents of [Child 1] (born 2006) and [Child 2] (born 2008), (the children).

2. This review application is about the percentages of care for Mr Hirst and Ms Langford that apply in relation to the child support case registered with Services Australia – Child Support Agency (CSA) for the children.

3. On 23 January 2009 consent orders were obtained which addressed the division of care of the children by Ms Langford and Mr Hirst (Court Order).

4. On 7 January 2016, Ms Langford and Mr Hirst agreed to certain care terms stated in a parenting plan issued by the [the] Family Relationship Centre on that date (Parenting Plan).   The CSA was provided a copy of the Parenting Plan.

5. The pre-existing percentage of care determinations recorded by the CSA for the children, that applied from 7 January 2016, was 78% to Ms Langford and 22% to Mr Hirst.

6. On 11 July 2021, Ms Langford lodged online a change in care application with the CSA, in which she notified that from 22 June 2021 she intended to have 100% care of the children going forward.

7. In July 2021, Mr Hirst and Ms Langford separately attended at the [named] Family Relationship Centre to resolve care arrangement issues concerning the children. On 2 August 2021 the process was dismissed and a certificate was issued in accordance with section 601 of the Family Law Act 1975.  

8. Mr Hirst asserted that since the end of June 2021, care and access to the children have been withheld from him.

9. It was common ground that the children have not resided with Mr Hirst since 25 June 2021 and the formal care agreement was not followed from that date. Mr Hirst has not made an application with the Court seeking a recovery order to restore the pattern of care in accordance with the Court Order.

10. On 17 October 2021 the CSA made a determination that the care taking place in relation to the children did not follow the Court Order or the Parenting Plan and therefore an interim period could not apply. It accepted the evidence that a change in care event occurred as notified by Ms Langford on 11 July 2021 and recorded percentage of care of the children to reflect the actual care as 100% care to Ms Langford and 0% to Mr Hirst, with effect from 25 June 2021.

11. On 24 December 2021, Mr Hirst objected in writing to the CSA’s decision of 17 October 2021 and requested that the recorded care percentage of the children should reflect the formal care agreements (both the Court Order and Parenting Plan) as 22% care to him.

12. On 17 March 2022, an objections officer of the CSA disallowed Mr Hirst’s objection.

13. On 31 March 2022, Mr Hirst lodged an application with the Administrative Appeals Tribunal (the Tribunal) for an independent review of the CSA’s decision. As a person whose interests may be affected by the Tribunal’s decision, Ms Langford was added as a party to Mr Hirst’s application.

14. The application was heard by the Tribunal on 6 June 2022. Mr Hirst and Ms Langford participated in the hearing by conference telephone and each gave evidence on affirmation. As is customary, the Child Support Registrar did not participate in the hearing and did not attend.

15. In considering the application, the Tribunal took into account the oral evidence of Mr Hirst and Ms Langford as well as the documentary material in evidence as provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 comprising of folios 1 to 137 (marked Exhibit 1).

RELEVANT LAW

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act). This legislation sets out the rules for the Registrar, that is, the CSA, for making and revoking care percentage determinations which are then used as part of the child support formula to assess child support payment rates. In a majority of cases, the percentage of care determination for a parent of the child(ren) affects the annual rate of child support assessed and payable in each case.

2. A parent’s percentage of care is determined under section 49 or 50 of the Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child(ren).

3. Before care percentage determinations can be made under the Act, the care percentage determinations in place (if one already exists) must first be revoked. The circumstances in which existing care percentage determinations may be revoked are restricted to those set out in Division 4, Subdivision C of the Act, and relevantly to the circumstances of this matter, as set out in section 54G. In simple terms, existing care percentages generally apply until the CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that results in a parent having less than regular care.

4. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case.

5. Departmental policy has been developed to assist decision-makers when deciding whether there has been a change in the pattern of care. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to do otherwise.[1] The relevant policy appears at 2.2.2 of the Child Support Guide (the Guide).

   [1] Re Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 and Re Drake and Minister for Immigration and Ethnic Affairs(No 2) [1979] AATA 179.

6. The Guide also explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, consideration will be given to the information provided and obtained and whether there is some common expectation about future care. It further states that if the information and evidence provided by the parents cannot be reconciled, the decision-maker will weigh the evidence and information provided about care to determine the pattern of care likely to occur from the relevant date.

ISSUES

1. There is no dispute that a change in care occurred on 25 June 2021 and the children have been in Ms Langford’s sole care since that date, contrary to the Court Order.  

2. The Tribunal points out that there are a number of background issues of importance to both Mr Hirst and Ms Langford in evidence which are not relevant to the issues before the Tribunal and therefore are not mentioned in these Reasons. By not noting those issues, the Tribunal does not diminish the importance of other matters in any way, merely that the Tribunal is limited to considering the relevant issues concerning the decision under review.

3. The application before the Tribunal is limited to a point in time consideration of the likely pattern of actual care of the children from 25 June 2021, and whether the existing percentages of care determinations in respect of them should be revoked. If so, the Tribunal must then decide what new care percentages are to be attributed to Mr Hirst and Ms Langford in respect of the children, and the dates of effect, if relevant.

CONSIDERATION

1. Mr Hirst told the Tribunal that the pre-existing care percentage recorded by the CSA on 7 January 2016 of 22% to him was the actual care he had of the children from that time, in accordance with a combination of the formal care agreements (Court Order and the Parenting Plan).  

2. Although Mr Hirst acknowledged that his care of the children changed in mid-2021 to 0%, he disagreed with the CSA’s reduced care percentages to him from 25 June 2021 as he considers Ms Langford was, and continues to be, in breach of the Court Order and Parenting Plan.

3. In speaking with the Tribunal, Mr Hirst said that he had wanted his care of the children to continue at 22% in accordance with what he and Ms Langford had agreed under the Court Order and Parenting Plan; however, from mid-2021 Ms Langford withheld the children from him. He said Ms Langford limits the phone contact he has had with the children and he does not know where they reside.

4. Mr Hirst considered the CSA’s decision to record the care percentage as 100% to Ms Langford with effect from 25 June 2021 financially rewards her for breaching the formal care arrangement and financially penalises him. He is of the view that the CSA’s record of care percentage should continue to reflect the formal care arrangement of 22% to him from 25 June 2021, despite the actual care provided by him to the children has been nil from that date.

5. Ms Langford told the Tribunal that she agreed with Mr Hirst’s statements in part. In stating that, Ms Langford explained that the pre-existing care percentage of 22% to Mr Hirst accurately reflected the division of care under the Court Order and Parenting Plan from January 2016 and that Mr Hirst had care of the children as two nights a fortnight, five weeks of school holidays and half of the public holidays in a 12-month period up until mid-2021.

6. Ms Langford said that in June 2021 the children (then aged 13 and 15) both decided that they did not want to spend time with Mr Hirst and they told him of their decision themselves by telephone on 22 June 2021. She said Mr Hirst’s next weekend for having care of them was on 25 June 2021; however, the children refused to go and that was the first departure from the formal care arrangement. Ms Langford said that she notified the CSA of the change in care event as being from 22 June 2021 as that was the date the children had informed Mr Hirst of their decision not to stay with him, even though the date that care did not follow the pattern was from 25 June 2021.

7. Exhibit 1 includes copies of CSA’s records of various contacts with Mr Hirst and Ms Langford, third party statement, the Court Order and Parenting Plan (unsigned) as well as documentary evidence from [the] Family Relationship Centre dated 2 August 2021. Of note, the letter dated 2 August 2021 from [the] Family Relationship Centre (folio 103 of Exhibit 1) stated that the family dispute resolution was deemed unsuitable and a certificate was issued in accordance with section 601 of the Family Law Act 1975 (folio 102 of Exhibit 1).

8. With respect to the mediation undertaken at the end of July 2021, Ms Langford told the Tribunal that she and Mr Hirst discussed the need to attend mediation and she instigated the process. She said that they each had a one-on-one private session with the facilitator at the [the] Family Relationship Centre and the children also had a session with the facilitator on their own. The outcome was that mediation was deemed unsuitable in the circumstances. Ms Langford said that she was not aware of Mr Hirst commencing any legal application or undertaking any reasonable action to attain care or access to the children since the attempt at mediation.

9. Mr Hirst told the Tribunal that he is of the view that, as he has not facilitated any breach of the Court Order and Parenting Plan, he is entitled to his proportion of care as stated thereunder. He said that he asked Ms Langford to organise the mediation and that it was up to her to do so if she wished to change the formal care arrangement. Further, Mr Hirst told the Tribunal that he obtained legal advice in relation to his options after the mediation process but was given poor prospects and from that advice he decided to not make an application or commence any action to restore his care of the children. At the hearing Mr Hirst said he had located an email dated 8 August 2021 regarding his attendance with a solicitor.

Issue 1 – Did the existing pattern of care for the children change? If so, when did the pattern of care change?

1. As conveyed at the hearing, the legislation requires the Tribunal to assess what is the likely pattern of care of the children as at the time of notification to the CSA in July 2021 and going forward for a care period.

2. Mr Hirst made allegations that Ms Langford was withholding access of the children. Based on the available evidence before the Tribunal, it is noted that: the children had discussed their choice to remain in Ms Langford’s sole care with Mr Hirst leading up to the change in care event; after discussion(s) with Mr Hirst, Ms Langford had commenced the mediation process with the [the] Family Relationship Centre and both parents and children attended the mediation process when required; the duration of the pre-existing care arrangement; and the age of the children. Thus, the Tribunal considers that access to the children during the relevant care period was made available by Ms Langford.

3. Ultimately both Mr Hirst’s and Ms Langford’s evidence at the hearing and as detailed in Exhibit 1 was that, at the point in time of Ms Langford’s notification to the CSA, Mr Hirst had reduced overnight care of the children, despite the intention of both parties for Mr Hirst to have regular ongoing care. Therefore, Tribunal finds that the actual care for the children changed from 25 June 2021.

4. The provisions relating to the revocation of a determination of a person's percentage of care are set out in Subdivision C of Division 4 – Percentage of Care in Part 5 of the Act.

5. Care determinations can be revoked pursuant to sections 54F, 54G or 54H. One of the requirements of section 54F is that 54G does not apply, and one of the requirements of section 54H is that sections 54F and 54G do not apply, so the starting point is section 54G.

6. Subsection 54G(1) of the Act provides for the mandatory revocation of an existing care percentage determination in specified situations where there is less than regular care for a parent and the change in care was notified to the Agency within a reasonable period. Each criterion of subsection 54G(1) as set out in paragraphs (a) to (d) must be satisfied in order for an existing care percentage determination to be revoked under the provision.

7. In considering the evidence, the Tribunal finds that the requirements of subsection 54G(1) were satisfied, as follows:

(a)The Tribunal has found that there were existing percentage of care determinations made under section 50 of the Act for Mr Hirst and Ms Langford in which Mr Hirst was to have 22% care, that is at least regular care, from 7 January 2016 – paragraph 54G(1)(a).

(b)The Tribunal has found that Mr Hirst has had less than regular care of the children despite Ms Langford making them available from 25 June 2021 – paragraph 54G(1)(b).

(c)A percentage of care determination for the children had been made under section 50 for Ms Langford – paragraph 54G(1)(c).

(d)Ms Langford contacted the CSA on 11 July 2021 and advised that the actual care of the children did not correspond with the percentages of care in the existing care determinations and that the care had been 100% from 22 June 2021 and she was expecting the same percentage of care going forward for a care period. Notably, Ms Langford’s later advice to the CSA showed that her position was based upon the date the children notified Mr Hirst of their wish to stay in Ms Langford’s sole care and that the date of Mr Hirst’s next expected care was 25 June 2021. The Tribunal is satisfied that Ms Langford notified within a period that was reasonable in the circumstances – paragraph 54G(1)(d).

1. In summary, the Tribunal has found that from 25 June 2021, the likely pattern of actual care by Mr Hirst of the children was 0% and by Ms Langford was 100%. This did not correspond with the existing percentages of care of 78% to Ms Langford and 22% to Mr Hirst. Based on the above finding that the provisions of subsection 54G(1) are met, the Tribunal finds it was correct to revoke the existing care percentages.

2. Subsection 54G(2) of the Act sets out when the revocation of the existing determinations of care percentages takes effect. The date of effect of the revocation depends on whether the parent never established a pattern of care or when they ceased to have a pattern of regular care, in accordance with the then existing care determinations.

3. In considering the evidence, the Tribunal finds the revocation of the existing determinations of percentages of care for the children takes effect from 25 June 2021 (paragraph 54G(2)(b)).

Issue 2 – Do new percentage of care determinations apply?

1. It was then necessary for the CSA to determine and apply new care percentages. As a general rule, a parent’s recorded care will reflect their actual care. However, there are exceptions to that general rule, and the potentially relevant exception in this matter is in section 51 of the Act.

Interim period

1. Under section 51, the framework for determining when the new care percentages apply is treated differently where action is taken by the parent with reduced care to ensure that a formal care arrangement (which includes a court order) in relation to a child(ren) is complied with. Essentially, the application of section 51 for child support assessment purposes, results in the care arrangement as specified under a breached court order stays in place during an “interim period” and the actual care occurring applies after the interim period ends.

2. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

3. The four requirements in subsection 51(1) are as follows:

   (a)  Whether the CSA was required to make a new care decision following the change in care that occurred on 25 June 2021;

   (b)  Whether a formal care arrangement (Court Order or Parenting Agreement) applies in relation to the children;

   (c)   Whether the parents’ actual care of the children since 25 June 2021 has not complied with the formal care arrangement; and

   (d)  Whether Mr Hirst took reasonable action to recover care under the formal care arrangement.

4. In this matter, the CSA determined that care of the children leading up to 25 June 2021 had not been following a formal care arrangement and so no interim period could be applied, and the percentage of care recorded was immediately based on the actual care of 100% to Ms Langford.

5. The Tribunal is therefore tasked to consider whether the care recorded for Mr Hirst and Ms Langford leading up to 25 June 2021 followed the formal care agreements and whether an interim period under section 51 of the Act could apply in the circumstances of this matter.

6. Relevantly, in reading the Court Order, it states that the children reside with the mother and the father’s care of the children is “as agreed”.  It then contains provisions for what care must occur in the absence of an agreement between the parents.  Such “open” care provisions are not uncommon in care orders.  The Tribunal considers that where there is an agreement between the parents as to a care pattern then, that care agreement is the formal “care arrangement” followed under the order until the parents no longer agree.

7. It is also noted that the parents subsequently agreed to the Parenting Plan. Generally speaking, parenting plans are negotiated and entered into as a record of the care that is agreed to by the parents.  It is not a legally binding document and does not replace a court order.

1. In this matter, as the parents’ oral evidence was that they agreed to the care provided to the children from January 2016 to June 2021 as being 22% to Mr Hirst and that the actual care followed the agreed care. In the Tribunal’s view, that is the care as agreed between the parents under the scope of the Court Order. Therefore, the Tribunal finds that the care provided by Mr Hirst to the children prior to the change in care event was in accordance with the Court Order and followed the formal care arrangement.

2. Despite the Tribunal’s finding that care had followed the formal care arrangement and subsections 51(1)(b) and 51(1)(c) are satisfied, the Tribunal must also consider whether Mr Hirst satisfied paragraph 51(1)(d) – that is, whether he “is taking reasonable action to ensure that the care arrangement is complied with”

3. The term “reasonable action” is not defined in the Act; however, the Guide at chapter 2.2.4 states:

   The parent must take reasonable action to ensure compliance with the care arrangement in order to have the child support assessment continue to be based on the care arrangement for the interim period. Reasonable action could include:

   ·    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 (FRC) 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.

   This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

   ·    a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,

   ·    documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

   ·    documentation of police or court action.

4. From the evidence in Exhibit 1, and from the oral evidence given at the hearing, the Tribunal accepts that Mr Hirst sought legal advice after the mediation was dismissed on 2 August 2021. However, the Tribunal is of the view that no further steps were taken by him to either enforce the care previously agreed to or renegotiate care of the children.

5. Paragraph 51(1)(d) of the Act requires that the person with reduced care “is taking” reasonable action. The Tribunal considers “is taking” to mean; as at the time of the original decision-maker’s determination. Mr Hirst’s evidence at the hearing was that he decided not to take further action after he sought legal advice on or about 8 August 2021. As the CSA’s original decision was made on 17 October 2021, the Tribunal is of the view that Mr Hirst was not at that time, and had not been for several weeks, undertaking reasonable action to ensure care under the formal care arrangement was complied with.

6. Consequently, the Tribunal finds that paragraph 51(1)(d) is not satisfied and an interim period cannot apply in this matter.

7. It follows, the Tribunal agrees with the CSA’s decision: actual care percentage of 100% to Ms Langford and 0% to Mr Hirst is to apply from 25 June 2021.

Other matters - date of effect (late objection)

59. Subsection 87AA(1) of the Registration and Collection Act provides that if a person lodges an objection outside 28 days of being served notice of a care percentage decision, the date of effect of a review decision changing that decision is the day the person lodged the objection.

60.  As noted in paragraph 11 of these Reasons, the CSA records that Mr Hirst did not lodge an objection to the original decision of 17 October 2021 until 24 December 2021. This was well outside the 28 days, and the time to lodge an objection can only be extended if there are special circumstances which prevented an objection being made within the 28 days (subsection 87AA(2)).

61.  As the objections officer disallowed Mr Hirst’s objection on 17 March 2022, no determination was made as to the application of section 87AA. Consequently, as the Tribunal affirms the CSA’s decision, this issue is not before the Tribunal to determine.  However, for completeness the Tribunal considers it appropriate in the circumstances to address it.

62. Notionally, had the objections officer made a decision that an interim period under section 51 of the Act should have applied, the objections officer would then have been required to consider section 87AA to the late objection and, subject to a finding of special circumstances, the date of effect of a favourable decision for Mr Hirst would only have applied from 24 December 2021 (the date of objection). As this date is well after the date the interim period of 14 weeks from the change in care ends (1 October 2021), such a determination to not apply an interim period would have had no practical effect for Mr Hirst.

63.  The Tribunal acknowledges the legislative framework in relation to how care is to be recorded for child support purposes is not uncomplicated and the Tribunal does not disregard the possible difficulties that can arise where a person tries to understand how the law operates in the child support scheme when care is disputed. However, in stating that, as discussed at hearing, the Tribunal is required to consider the issues before it based on the facts and the application of the law.

DECISION

The decision under review is affirmed.