Joelson and Audette (Child support)

[2022] AATA 3964

Joelson and Audette (Child support) [2022] AATA 3964 (19 September 2022)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2022/AC024162

APPLICANT:  Mr Joelson

OTHER PARTIES:  Ms Audette

Child Support Registrar

TRIBUNAL:  Ms Hamilton-Noy, Member

DECISION DATE:  19 September 2022

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – percentage of care – court orders not complied with – whether interim period should be applied – special circumstances exist – 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 application relates to a decision by Services Australia – Child Support (the Agency) relating to the particulars of the assessment in the child support case for the child [Child 1].

2. On 8 March 2022, Ms Audette contacted the Agency to request that a child support case be registered.  At the time of contact, Ms Audette advised the Agency that she had had 100% care of [Child 1] from 18 January 2022.

3. On 31 March 2022, an employee of the Agency made a decision to accept the application for the child support assessment and to find that the particulars of care used in the assessment of child support were that Ms Audette had had 100% care of [Child 1] and Mr Joelson had had 0% care of [Child 1] from 18 January 2022, and that this care percentage took effect from 8 March 2022 when the child support case for [Child 1] commenced.

4. On 11 April 2022, Mr Joelson objected to this decision.

5. On 5 June 2022, an objections officer of the Agency disallowed the objection.

6. On 24 June 2022, Mr Joelson made an application to the Administrative Appeals Tribunal for an independent review of the Agency’s decision. 

7. The Tribunal hearing was conducted on 15 September 2022, on which date both parties spoke to the Tribunal by MS Teams audio and gave evidence on affirmation.  At the hearing the Tribunal had before it documents provided by the Agency (1 to 117), copies of which were provided to the parties prior to the hearing.  Both parties confirmed receipt of the Agency documents with the Tribunal.  Following the hearing, Mr Joelson provided further documents to the Tribunal (documents prepared by Ms Audette for separate legal proceedings), which were sent to Ms Audette for her information.  The Tribunal had regard to these and proceeded to make a decision on all of the information before it on 19 September 2022.

CONSIDERATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act), the Child Support (Registration and Collection) Act 1988, the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) and the Family Law Act 1975 (the Family Law Act). The legal issues for the Tribunal in this matter are whether the Agency correctly accepted an application for a child support assessment and if so, whether the particulars of care have been correctly reflected in child support assessment.

2. Part 4 of the Assessment Act provides the requirements for applications to register for an administrative assessment of child support. Section 23 of the Assessment Act states that an application for an administrative assessment of child support is properly made if it complies with section 24 (children in relation to whom applications may be made), section 25 or 25A (persons who may apply, which include parents and non-parent carers) and section 27 (the formal requirements for applications).

3. The Tribunal accepted from the information before it that the parties are the parents of [Child 1] and that an application for registration of a child support assessment was properly made by Ms Audette to the Agency on 8 March 2022.

4. In these circumstances, subsection 30(1) of the Assessment Act states that the Registrar must, if satisfied that an application has been properly made, accept the application. Section 31 of the Assessment Act then states that, if the Registrar accepts an application for administrative assessment of child support for a child, the Registrar must as quickly as possible, either assess both parents in respect of the costs of the child (where both parents are involved) or assess the parties (where there is a non-parent carer involved) and assess the annual rate of child support payable a parent in a child support period starting on the date on which the application was made.

5. Section 35 of the Assessment Act sets out the method formula for calculating child support, using both parents in a single child support case with no non-parent carer. As part of this formula, the Agency is required at Step 4 to work out “each parent’s percentage of care for the child for the day”. Section 49 of the Assessment Act then deals with circumstances where there is no pattern of care of a child and section 50 where there is a pattern of care of a child.

6. Section 51 of the Assessment Act is of relevance in this case, given the matters raised by Mr Joelson before the Agency and in his application to the Tribunal. This section provides as follows:

   (1)  This section applies 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.

   Note:          This section does not apply in certain circumstances: see section 53.

   2 percentages of care in relation to the responsible person

   (2)  Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

   (3)  The first percentage of care 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).

   (4)  The second percentage of care 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 (1)(d) were not to succeed.

Single percentage of care in relation to the responsible person

(5)  If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

(6)  The single percentage of care 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 (1)(d) were not to succeed.

1. The Tribunal finds that, upon acceptance of Ms Audette’s application to the Agency, the Agency was required to determine each parent’s percentage of care during a care period for the purposes of the child support assessment.

2. A “care arrangement” is defined at section 5 of the Assessment Act to have the same meaning as in the Family Assistance Act. A care arrangement in relation to a child is defined at section 3 of the Family Assistance Act to include:

   (a)  a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

   (b)  a parenting plan for the child; or

(c)  any of the following orders relating to the child:

(i) a family violence order within the meaning of section 4 of the Family Law Act;

(ii) a parenting order within the meaning of section 64B of that Act;

(iii)  a State child order registered in accordance with section 70D of that Act;

(iv)  an overseas child order registered in accordance with section 70G of that Act.

1. The Tribunal accepts that a consent order was made in the Family Court between the parties, providing for each party to provide equal overnight care of [Child 1], and that this is a parenting order within the meaning of section 64B of the Family Law Act.

2. The Tribunal heard from Mr Joelson at the hearing that he had not had any overnight care of [Child 1] since 18 January 2022.  This was consistent with information Ms Audette had previously provided to the Agency.   The Tribunal accepted, and finds, that the actual care of [Child 1] provided by Mr Joelson has not complied with the extent of care that Mr Joelson should have had under the consent order from 18 January 2022 onwards.

3. As to whether Mr Joelson had been taking reasonable action to ensure the care arrangement was complied with, Mr Joelson stated to the Tribunal that he was “currently taking proceedings that involve challenging that” and that these “haven’t yet been concluded”.  Later in his evidence to the Tribunal, when asked what action he had taken as of January when care arrangements had changed, he stated that he had engaged in legal advice but could not clarify when that had occurred.  The Tribunal noted that the Agency documents indicated Mr Joelson had emailed his solicitor on 26 February 2022, to which Mr Joelson stated that sounded correct.  As to any other action he had taken, he stated that he had made numerous attempts to contact [Child 1] which had been unsuccessful, and when asked how he had attempted to contact [Child 1] he stated this had been on a “messenger platform”. 

4. Mr Joelson told the Tribunal that after speaking to his lawyer he made an assessment of the costs that would be involved in proceeding with the matter and decided he was not in a position to afford legal fees.  The Tribunal noted that he had earlier given evidence that he was involved in proceedings involving challenging the order.  Mr Joelson stated it was not an order, but “arrangements”.  When asked whether his lawyer had sent correspondence to Ms Audette or whether he had undertaken any other action, he stated he was not in a financial position to engage a legal representative due to the costs involved. 

5. The term “reasonable action” is not defined in the Assessment Act. The Child Support Guide (the Guide) at 2.2.4 notes that reasonable action could include negotiation with the other party in a genuine attempt to ensure compliance with a care arrangement; making or attending a Family Relationship Centre or other dispute resolution service; 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 be made or enforced; or notifying police that the child has been taken without consent. The Guide states that this list is not exhaustive and other forms of action may be considered reasonable according to the circumstances of both parties and the child. While not binding on the Tribunal, the Tribunal considered the Guide provides some guidance in the scope of paragraph 51(1)(d) of the Act.

6. The Tribunal accepts, for the reasons further set out below, that there was an incident at Ms Audette’s house which occurred at the time of the change of care arrangements.  The Tribunal accepted Mr Joelson’s evidence that, following this incident, he made attempts to contact [Child 1] and that he spoke to a lawyer to discuss his options around returning to court.  This is evidenced by an invoice contained in the Agency documents confirming that Mr Joelson incurred expenses for a conference about “intervention order and parenting issues regarding [Child 1]”.  While Mr Joelson did not ultimately proceed to any form of mediation or court application, the Tribunal is satisfied, on balance, that he has established that reasonable action was taken following the care change, having regard to the examples provided in the Guide as to what may constitute reasonable action.

7. The provisions in subsection 51(1) of the Assessment Act are met. However, subsection 51(1) is subject to subsection 51(5), which states that a single percentage of care is to be made for a responsible person where “special circumstances exist in relation to a child”. The term special circumstances is also not defined in the Assessment Act but the Guide provides some guidance as to the interpretation of this provision. At 2.2.4 the Guide states that:

   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.

   The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

   Suitable evidence may include (but is not limited to):

   ·a police report detailing violent behaviour towards a child or the person with increased care

   ·an intervention order preventing contact with the child or person with increased care, or

   ·statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

8. The Tribunal considered that this section of the Guide is consistent with the intention of the legislation and provides guidance for the Tribunal in making a decision in this matter.

9. The Tribunal accepts that there was an incident at Ms Audette’s house between Mr Joelson and Ms Audette’s current partner.  Mr Joelson stated to the Tribunal that there are two intervention orders in place at present where he is the respondent.  The Tribunal understood from the evidence of the parties that one relates to an intervention order applied for by the police with Ms Audette’s current partner listed as a protected person and the other relates to an intervention order applied for by Ms Audette, with Ms Audette, and possibly also [Child 1], listed as protected persons.  (The Tribunal notes that Ms Audette gave evidence that [Child 1] is not a protected person under this order.  Mr Joelson provided a copy of Ms Audette’s application following the hearing in which [Child 1] is also listed as a protected person and submitted that this went to the credibility of Ms Audette.  The Tribunal accepted that this document is evidence of Ms Audette having applied to have [Child 1] also protected under the intervention order but is not evidence of what a court finally decided as to who was protected under the order.)  Mr Joelson stated that there are also criminal proceedings relating to an alleged assault from the date of the incident which are listed for a contested hearing.  While not disputing that an incident occurred, or that police were involved and applied for an intervention order on behalf of Ms Audette’s current partner, Mr Joelson stated that he had also sustained injuries and that there were “a number of factors leading up to that event” which the Tribunal understood Mr Joelson was submitting somehow explained his actions on the day. 

10. The Tribunal notes that it is not making a decision as to whether the intervention order applications are justified or whether Mr Joelson will, or should, be found guilty of criminal charges – these are clearly matters for a separate decision maker in a separate jurisdiction. The Tribunal in this matter is required to consider whether, on balance and having carefully weighed up all of the evidence before it, it is satisfied that special circumstances exist in this case for the purposes of application of section 51 of the Assessment Act.

11. The Tribunal is satisfied from the evidence before it that there was an altercation between Mr Joelson and Ms Audette’s current partner.  The Tribunal accepts from documents Mr Joelson provided to the Tribunal after the hearing that this altercation occurred on 28 January 2022.  The Tribunal accepts from Ms Audette’s evidence, which was given clearly and credibly and which was consistent with information she had previously provided to the Agency, that [Child 1] was a witness to the altercation.  The Tribunal accepts that police attended and were concerned enough to apply for an intervention order naming Ms Audette’s current partner as a protected person.

12. In these circumstances, and having regard to the scope of “special circumstances” described in the Guide as set out above, the Tribunal finds that there is sufficient evidence of special circumstances in relation to [Child 1] such that subsection 51(5) of the Assessment Act applies. Given this, the Tribunal finds that it cannot make an interim care determination continuing to reflect the court-ordered care arrangements and that the care percentage of [Child 1], for child support purposes, is to reflect the actual care that has occurred. The Tribunal therefore finds that the Agency’s decision that [Child 1] has been in Ms Audette’s 100% care since 18 January 2022 (effective from 8 March 2022 as this is the date the child support case commenced) is legally correct and this decision is affirmed.

DECISION

The Tribunal affirms the decision under review.