Johnsey and Wortham (Child support)

[2024] AATA 4120

Johnsey and Wortham (Child support) [2024] AATA 4120 (27 June 2024)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2024/MC027328

APPLICANT:  Ms Johnsey

OTHER PARTIES:  Child Support Registrar

Mr Wortham

TRIBUNAL:Member J Thomson

DECISION DATE:  27 June 2024

DECISION:

The Tribunal affirms the decision under review.

CATCHWORDS

CHILD SUPPORT – particulars of the administrative assessment – change to percentage of care and date of effect – father’s non-compliance with consent court orders – mother’s brief care but no accurate record or consistent pattern – attempts at mediation – father not taking reasonable action – interim care determination not available – decision under review affirmed

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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. Ms Johnsey and Mr Wortham are the parents of [Child 1], born 2006, [Child 2], born 2008 and [Child 3], born 2009. This matter relates to [Children 2 and 3] only (the children).

2. Ms Johnsey seeks review of an objection decision made by Services Australia (Child Support) on 16 December 2023. This decision partially allowed his objection to an earlier decision by Child Support made on 7 September 2023, deciding to reflect the care of the children [Children 2 and 3] as 100% to Mr Wortham and 0% to Ms Johnsey from 26 July 2023, effective in the assessment from the date of Mr Wortham’s objection lodged on 8 December 2023.

3. The original Child Support decision of 7 September 2023 had determined the care of [Children 2 and 3] as 80% to Mr Wortham and 20% to Ms Johnsey from 26 July 2023, effective in the assessment from the start date of the liability, 26 July 2023.

4. The objections officer also decided not to make a determination under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), in consequence whereof the date of effect of the objection decision was 8 December 2023, the date Mr Wortham lodged his objection.

5. The Tribunal heard the matter on 19 April 2024. Ms Johnsey attended the hearing via conference telephone and gave affirmed evidence. Mr Wortham did not attend the hearing despite being notified of the time and date of the hearing and being contacted by the Tribunal registry on the morning of the hearing. Consequently, the hearing proceeded in his absence.

6. The Tribunal had before it documentation provided by Child Support (folios 1 to 137), admitted into evidence and marked Exhibit 1. Ms Johnsey had copies of these documents with her at the hearing.

ISSUES

1. The issues which arise in this case are:

   ·      What was the likely pattern of care for the children from the start of the administrative assessment? And

   ·      from what date should the new percentage of care determination apply?

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

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Ms Johnsey at the hearing and the documentation contained in Exhibit 1 before the Tribunal at the hearing.

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’.

3. 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.

4. 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.

5. Subsection 51(5) provides that 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. Paragraph 51(6)(a) provides that the single percentage of care is to be, for a determination under section 49 – 0%, and for a determination under section 50, paragraph 51(6)(b) provides that the single care percentage determination is to be 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. [In] July 2023, the Federal Circuit Court of Australia made orders by consent of the parents (the Court Orders), a copy of which was before the Tribunal at pages 36 to 48 of Exhibit 1. These Orders provided, relevantly, that the children, [Children 2 and 3] should live with the father, Mr Wortham, and spend time with Ms Johnsey, initially, for various periods during the day on Mondays and Thursdays until the commencement of the first week of school term 4 in 2023, when the Court Orders accorded her weekly care from 5pm on Sunday to 9am the following Tuesday, care in the first week of each term holiday period and three weeks of care in the long summer holidays in the Christmas/New Year period (see paragraphs 5 and 7 of the Court Orders, pages 38 and 39 of Exhibit 1).

7. Ms Johnsey acknowledged and agreed in her evidence at the hearing that she does not dispute the care percentage determination for the child, [Child 1], of 100% to Mr Wortham.

8. The Court Orders also provided that the parents engage a child and family psychologist, [Ms A], for the purpose of parental coordination, and that, relevantly, the father participate in meeting in-home interventions regarding, amongst other matters, the implementation of parenting expectations (see paragraph 20 of the Court Orders, page 43 of Exhibit 1).

9. The Child Support documentation before the Tribunal reflects Mr Wortham applied to Child Support on 26 July 2023 for an administrative assessment of child support payable by Ms Johnsey for the children, [Children 2 and 3]. Ms Johnsey was notified by Child Support of Mr Wortham’s application and afforded the opportunity to participate in the application process.

10. On 7 September 2023, Child Support accepted Mr Wortham’s application for an administrative assessment of child support for [Children 2 and 3] and issued assessment notices reflecting the care for the children in the assessment as 80% to Mr Wortham and 20% to Ms Johnsey, effective from the start of the administrative assessment being 26 July 2023.

11. On 8 September 2023, Mr Wortham contacted Child Support to object to Child Support’s decision to reflect care in the administrative assessment accepted on 7 September 2023 as 80% to him and 20% to Ms Johnsey (see pages 50 and 51 of Exhibit 1) instead of the care percentages he had nominated in his application of 100% to him and 0% to Ms Johnsey, and subsequently lodged his objection to Child Support’s initial 7 September 2023 decision on 8 December 2023 (see pages 66 and 67 of Exhibit 1).

12. Ms Johnsey’s case at the hearing relied heavily on the provisions of the Court Orders referred to above and, as Mr Wortham did not attend the hearing, her evidence was unchallenged.

13. Ms Johnsey’s submissions at the hearing were to the following effect.

14. She acknowledged and agreed that she did have some brief care of [Children 2 and 3] in the early weeks of August 2023. She said she did not maintain a record of the care actually taking place at that time and was unable to provide accurate evidence as to the duration of her care in August 2023, but thought it was in the first two weeks of that month.

15. She gave evidence that she did not have further care again until Christmas eve, 2023 when she said she had two nights of care, and she has had no further regular pattern of care since Christmas day, 2023.

16. The Tribunal therefore considers Ms Johnsey’s actual care of [Children 2] from the start of the child support case on 26 July 2023 was sporadic and not part of any identifiable consistent pattern of care.

17. In response to the Tribunal’s invitation to indicate the outcome she was seeking from the Tribunal’s review of the objection decision of 16 December 2023 (determining the care percentages of 100% to Mr Wortham for both [Children 2 and 3] from the start of the child support assessment), she said she was seeking an interim care determination to allow her time to take action to have the terms of the Court Orders regarding the care accorded to her under those Orders as set out above which she said amounted to 122 nights of care equating to 33% care (six weeks of holiday care – 42 nights and two nights of care per week in school term time – 40 x 2 = 80 nights: total 122 nights of care).

18. As the Court Orders do not provide for Ms Johnsey to have the regular pattern of care referred to in the preceding paragraph until the commencement of term 4 in 2023, any interim care determination could not commence until the commencement of term 4 in October 2023.

19. In this case, the care arrangements for [Children 2 and 3] have been determined in the Court Orders referred to above, affording Ms Johnsey a significant pattern of care from the commencement of term 4 in October 2023. However, Ms Johnsey’s evidence is that Mr Wortham has not complied with those Court Orders.

20. Ms Johnsey gave evidence that she sought assistance in September 2023 from the child psychologist referred to above, [Ms A], to convene a mediation with Mr Wortham and made further unsuccessful attempts throughout January and March 2024 to have [Ms A]initiate a mediation process with Mr Wortham with a view to having the court-ordered care complied with, but to date, Mr Wortham has shown no interest in participating in such a process. However, she provided evidence post hearing that she is still seeking a mediation appointment with [Ms A] and Mr Wortham.

21. The Tribunal is not satisfied that Mr Wortham is taking reasonable action to participate in a family resolution at this time.

22. Ms Johnsey acknowledged and agreed that she has not instituted any court action to have the Court Orders complied with, because of her financial constraints, although she did mention she had instituted proceedings to enforce the financial aspects of the parents’ family law property settlement orders.

23. As intimated by the Tribunal to Ms Johnsey in the course of the hearing, it may not be open to the Tribunal to grant her an interim care determination pursuant to section 51 of the Act because of the effect of a recent Federal Court of Australia decision on 1 February 2024 in Child Support Registrar v CMU23 [2024] FCA 109. The Federal Court held that paragraph 53(1)(c) had the effect of rendering section 51 inapplicable if the granting of an interim care period involved the revocation of pre-existing care percentages pursuant to section 54F or 54H of the Act for care changes before 29 March 2024.

24. However, in this case, the Tribunal is considering care percentage determinations of 80% to Mr Wortham and 20% to Ms Johnsey determined by Child Support pursuant to Mr Wortham’s application on 26 July 2023 for an administrative assessment of child support and accepted by Child Support on 7 September 2023 from a start date of 26 July 2023, a process which does not involve the revocation of pre-existing care percentage determinations under either section 54F or 54H of the Act.

25. Although the Tribunal is satisfied Ms Johnsey, as the responsible parent with reduced care, has taken steps within a reasonable time to have the court-ordered care referred to above complied with by seeking to engage Mr Wortham in a mediated outcome with the assistance of the child psychologist, [Ms A], and is continuing to pursue that course of action as prescribed by section 51 of the Act, the care she is seeking to have complied with does not commence until term 4 in 2023 (i.e. October 2023), and not from the commencement of the child support assessment case on 26 July 2023.

26. Even if the Tribunal finds subsection 51(1) is satisfied in relation to an interim care period, consideration needs to be given to any special circumstances under subsection 51(5). The Tribunal is satisfied that the terms of the Court Orders have never been complied with by the parties in respect of [Children 2 and 3] and finds this gives rise to special circumstances as contemplated by the provisions of subsection 51(5) of the Act, pursuant to which the Tribunal may determine, under section 49 or 50 of the Act, a single percentage of care in relation to the responsible person.

27. Ms Johnsey’s evidence at the hearing was that she has not had any consistent pattern of care of [Children 2 and 3] since 26 July 2023. Accordingly, the Tribunal therefore determines care percentages for the children of 100% to Mr Wortham and 0% to Ms Johnsey from the start date of the child support assessment on 26 July 2023.

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

DECISION

The Tribunal affirms the decision under review.