Kendall and Child Support Registrar (Child support)

[2018] AATA 527

Kendall and Child Support Registrar (Child support) [2018] AATA 527 (2 February 2018)

DIVISION:  Social Services & Child Support Division

REVIEW NUMBER:  2017/SC012551

APPLICANT:  Mr Kendall

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:  Member A Ducrou

DECISION DATE:  02 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS

Child Support – Percentage of care – Care arrangement – Reasonable action for compliance – No special circumstances – Interim determination 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 Kendall and [Ms A]are separated. Their children include [Child 1] (born January 2003). This review is about the assessment of the percentages of care for Mr Kendall and [Ms A] that apply in relation to the administrative assessment of child support for [Child 1]. A case with the Department of Human Services - Child Support (the Department) for an administrative assessment of child support was registered in respect of [Child 1] January 2003. The Department’s records show that care percentages of 27% for Mr Kendall and 73% for [Ms A] were recorded for [Child 1] with effect from 30 September 2016.

2. According to the Department’s records, Mr Kendall contacted the Department on 23 May 2017 and advised that [Child 1] had been in his care 100% of the time from 4 May 2017. This was confirmed by [Ms A] on 6 June 2017. [Ms A] also advised that court orders made for [Child 1]’s care had been breached and that she had taken steps to initiate court proceedings for a recovery order. On 13 June 2017 the Department received documents from [Ms A].

3. On 11 July 2017 a delegate of the Child Support Registrar (the Registrar) decided to make new determinations of the care percentages in relation to [Child 1]. The delegate determined that for the interim period commencing on 4 May 2017 and ending on 10 August 2017 Mr Kendall had a care percentage for [Child 1] of 27% and [Ms A] had a care percentage for [Child 1] of 73%. The delegate also made a determination of the care percentages that applied for Mr Kendall and [Ms A] for [Child 1] with effect from 11 August 2017.the Department’s records show that the care percentages for [Child 1] that were recorded with effect from that date were 100% for Mr Kendall and 0% for [Ms A].

4. On 21 July 2017 Mr Kendall lodged an objection to the decision made on 11 July 2017 to record the care percentages for the interim period. On 19 September 2017 an objections officer of the Department decided to disallow his objection. As a consequence, care percentages of 27% for Mr Kendall and 73% for [Ms A] continued to apply for the interim period that commenced on 4 May 2017 and ended on 10 August 2017and care percentages of 100% for Mr Kendall and 0% for [Ms A] were applied with effect from 11 August 2017.

5. On 21 September 2017 Mr Kendall applied to this tribunal by telephone for an independent review of the objections officer’s decision. The tribunal conducted a hearing on 2 February 2018. Mr Kendall attended the hearing in person. He gave oral evidence on affirmation and made oral submissions. [Ms A] did not participate at the hearing. She was not a party to the review. Prior to the hearing the tribunal registry advised [Ms A] that Mr Kendall had applied for review of a decision made by the Registrar that may affect her interests. The letter invited her to apply to be made a party to the review but [Ms A] did not apply. The tribunal had before it: documents provided by the Registrar (numbered 1 to 143). Copies of the Registrar’s documents were provided to Mr Kendall. The tribunal made its decision on 2 February 2018.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The issue which arises in this case is:

   ·       What care percentages apply for [Child 1] from 4 May 2017 to 10 August 2017?

CONSIDERATION

Issue – What care percentages apply for [Child 1] from 4 May 2017 to 10 August 2017?

1. The legislation establishes a system for the assessment of the rate of child support payable in a particular child support case. In the majority of cases a statutory formula is applied. The percentage of care for a parent for a child affects the annual rate of child support assessed and payable in each case. A parent’s percentage of care is determined under sections 49 or 50 of the Assessment Act. This requires consideration of the actual, or likely, pattern of care that the parent will have in relation to the child. Sections 49 and 50 require a new determination of a parent’s percentage of care for a child to be made in certain circumstances. Prior to making a new percentage of care determination under these provisions it is necessary to determine whether the existing care percentage determination can be revoked.

2. In certain specified situations, where a care arrangement applies in relation to a child, sections 51 and 52 of the Assessment Act provide for exceptions to the way in which a determination is made under either sections 49 or 50 and a percentage of care determination must be made for an interim period based on the extent of care that a person has, or is to have, under the care arrangement. The term “care arrangement” is defined by the legislation and includes parenting orders within the meaning of the Family Law Act 1975.

3. The term “pattern of care” is not defined in the legislation. In determining the pattern of care the decision-maker must consider the actual care of the child in the care period. The “care period” is the period which the decision-maker considers is appropriate having regard to all the circumstances of the case. The Department’s online policy guide, the Child Support Guide (the Guide), version 4.29, at 2.2.1 states that a care period is generally a 12-month period from the day on which the actual care of a child began or changed. The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 the Full Court of the Federal Court it was held that tribunal decision making could be informed by government policy which is not inconsistent with the provisions or objects of the legislation. In this case the tribunal accepted that the applicable policy is consistent with the objects of the Act and that there was no inconsistency between the relevant legislative provisions and the policy for making determinations under the legislation in relation to the care that is provided for children.

4. The material facts in this case were not at issue. The tribunal finds that Mr Kendall and [Ms A] are the separated parents of [Child 1]. The tribunal finds based on the Department’s records that percentages of care of 27% for Mr Kendall and 73% for [Ms A] for [Child 1] were recorded with effect from 30 September 2016. The evidence established that court orders were made on 21 September 2016 by consent by the Federal Circuit Court of Australia for the care of Mr Kendall’s and [Ms A]’s children, including [Child 1]. A sealed copy of the court orders was provided to the tribunal. The tribunal examined the court orders carefully and was satisfied that the care percentages for [Child 1] that were recorded from 30 September 2016 complied with the extent of care for [Child 1] that Mr Kendall and [Ms A] had, and were to have, under the court orders.

5. The tribunal finds that Mr Kendall contacted the Department on 23 May 2017 and advised that there was a change in [Child 1]’s care from 4 May 2017 as she had been in his care for 100% of the time since then. Based on the Department’s records the tribunal finds that on 6 June 2017 [Ms A] agreed that [Child 1] was in Mr Kendall’s care for 100% of the time from 4 May 2017 and that she advised that she had instituted proceedings for the court ordered care of [Child 1] to be restored. [Ms A] also advised that there was a court hearing the following week. The tribunal finds that the Department received documents from [Ms A] on 13 June 2017. The documents included:

   ·     a copy of a letter dated 25 May 2017 from [Ms A]’s solicitor ([Ms B]) to Mr Kendall’s solicitors ([Law firm 1]) that enclosed by way of service a sealed copy of [Ms A]’s application, lodged on 24 May 2017 with the Federal Circuit Court of Australia, for a recovery order in respect of [Child 1]; and

   ·     a sealed copy of an affidavit made by [Ms A] on 24 May 2017 lodged with the Federal Circuit Court of Australia in support of her application.

6. Based on the letter from [Ms B] the tribunal finds that [Ms A]’s application was listed for mention before the court on 15 June 2017. Mr Kendall told the tribunal that when they went to court the judge said that you could not force a teenager to do what they didn’t want to do. They returned to court in August 2017 and saw another judge. Court orders were made concerning their other daughter but not for [Child 1]. There have been no further court proceedings in relation to [Child 1]. [Child 1] is still staying with him full-time.

7. The main matter of concern for Mr Kendall was that the child support assessment did not reflect the actual care of [Child 1] for the interim period. Mr Kendall did not dispute that the level of care that he had for [Child 1] from 4 May 2017 exceeded the extent of care that he was to have under the court orders. However, he emphasised that it was unfair for child support for [Child 1] to be assessed on any other basis other than his 100% care for [Child 1] from 4 May 2017. Mr Kendall pointed out that it had not been his decision for [Child 1] to stay with him on a full-time basis. [Child 1] had made that decision on her own without consulting him. When she came to his home after school on 4 May 2017 he was shocked to see her there as she was not supposed to be with him.

8. [Child 1] told him that she had enough of her mother and was sick of the way her mother treated her. The tribunal asked Mr Kendall if [Child 1] described what happened. He told the tribunal that she told him a little but not much. She did not claim that [Ms A] abused her physically but said that there was a lot of yelling and that her mother constantly put her down and that she was scared of what might happen when her mother became angry. [Child 1] told him that her mother blamed her when her younger sister did things. He decided to take [Child 1] for counselling. When he spoke to [Child 1]’s school principal the next day, the principal suggested[Counselling service 1]. They did not have to wait long for an appointment.

9. Mr Kendall told the tribunal that he tried to get [Child 1] to contact [Ms A]. [Child 1] had a mobile telephone her mother gave her and she also had access to his telephone but she refused to call [Ms A]. The only time she saw [Ms A] was when the family report was prepared for court. To his knowledge the only other contact [Child 1] had with [Ms A] was on the weekend after she came to stay with him. [Ms A] rang and [Child 1] agreed to speak to her but [Ms A] started yelling and blaming [Child 1] for breaching the court orders and said that she would call the police. [Child 1] hung up. [Ms A] has tried to call [Child 1] since then but [Child 1] will not answer the calls. [Ms A] also went to [Child 1]’s school to pick her up after school but [Child 1] just walked away from her mother. He has tried many times to reason with [Child 1] to tell her that she should speak to her mother but she just rolls her eyes at him.

10. The tribunal drew Mr Kendall’s attention to [Ms A]’s affidavit and noted that the information it contained was consistent with the other evidence provided, stating that the tension between [Ms A] and [Child 1] resulted from differences between them regarding discipline. Mr Kendall told the tribunal that he had rules too but that the tension between [Child 1] and [Ms A] was more than a matter of discipline. It resulted from [Child 1]’s fear of what her mother may do when her mother became angry. [Child 1] told him numerous times that she was scared of the consequences if she approached her mother about things but she never went into details of what the consequences were. The tribunal asked Mr Kendall whether he had ever contacted the police about the tension between [Child 1] and [Ms A]. Mr Kendall told the tribunal that he had not. He dealt with matters concerning the children’s care through his solicitor.

11. The legislative provisions for determining whether percentages of care apply for an interim period are set out in sections 51 and 52 of the Assessment Act. Both sections apply where a responsible person’s percentage of care for a child during a care period is required to be determined under section 49 or 50 of the Assessment Act in circumstances where the decision-maker 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 the care that they should have had, or are to have, under a care arrangement that applies in relation to the child during that period. There are other requirements that must also be satisfied for sections 51 and 52 to apply. The tribunal considered first whether section 51 applied in this case. For section 51 to apply all of the requirements set out in paragraphs 51(1)(a) to (d) must be satisfied.

12. Under paragraph 51(1)(a) of the Assessment Act the decision-maker (in this review the tribunal) must be required under sections 49 or 50 of the Assessment Act to determine a responsible person’s percentage of care for a child during a care period. It was not at issue that the legislative requirements for revocation of the existing percentages of care for Mr Kendall and [Ms A] for [Child 1] were met in the circumstances in this case and that the revocation of the existing percentages of care of 27% for Mr Kendall and 73% for [Ms A] took effect at the end of 3 May 2017.

13. Based on the available evidence the tribunal was satisfied that the appropriate care period in this case was the 12-month care period that commenced on 4 May 2017. This corresponds with the 12-month period that followed the date identified as the change of care date when Mr Kendall notified the Department on 23 May 2017 and is consistent with the evidence of the care that was taking place for [Child 1]. Based on the available evidence the tribunal concluded that for the care period that commenced on 4 May 2017 Mr Kendall had, or was likely to have, a pattern of care for [Child 1] of 100% and [Ms A] had or was likely to have no pattern of care for [Child 1]. Therefore, it follows that new percentages of care are required to be determined in respect of [Child 1] for Mr Kendall and [Ms A]. The determination of the new percentage of care for Mr Kendall is required under subsection 50(3) of the Assessment Act and must be a percentage that corresponds with the actual care that he has, or is likely to have for [Child 1] for the care period that commenced on 4 May 2017 unless sections 51 or 52 apply in relation to Mr Kendall. The determination of the new percentage of care for [Ms A] is required under subsection 49(3) of the Assessment Act and must be 0% for the care period that commenced on 4 May 2017 unless sections 51 or 52 apply in relation to [Ms A].

14. The tribunal has found that court orders were made on 21 September 2016 for the care of [Child 1]. The tribunal was satisfied that the court orders were a “care arrangement” as defined in subsection 5(1) of the Assessment Act. Therefore, a care arrangement applied in relation to [Child 1] as required under paragraph 51(1)(b) of the Assessment Act.

15. Paragraph 51(1)(c) of the Assessment Act directs the tribunal’s attention to whether 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 they should have had, or is to have, under the care arrangement during that period. Based on its findings the tribunal was satisfied that the actual care that Mr Kendall had, and was likely to have, for [Child 1] during the care period that commenced on 4 May 2017 was 100% and that [Ms A] had and was likely to have no actual care for [Child 1] during that care period. The tribunal has found that under the court orders made on 21 September 2016 the extent of care that Mr Kendall should have had, or was to have, during the care period that commenced on 4 May 2017 was 27% and that the extent of care that [Ms A] should have had, or was to have, during that care period was 73%. Therefore, the tribunal concluded that the actual care that Mr Kendall and [Ms A] had, and were likely to have, for [Child 1] for the care period that commenced on 4 May 2017 did not comply with the extent of care that they should have had, or were likely to have, under the court orders made on 21 September 2016. This means that the requirements of paragraph 51(1)(c) of the Assessment Act were satisfied.

16. Paragraph 51(1)(d) of the Assessment Act requires the person who has reduced care of the child to have taken reasonable action to ensure that there is compliance with the care arrangement. Section 2.2.4 of the Guide sets out examples of the types of actions that a parent may take to ensure compliance. The Guide notes that the list of examples is not exhaustive and that other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The listed examples include filing an application to a court to have an order made or enforced and attending a hearing at court to seek an order to be made or enforced. The tribunal has found that [Ms A] applied to the Federal Circuit Court of Australia on 24 May 2017 for a recovery order to return [Child 1] to her care as provided for under the court orders. The tribunal accepted based on the available evidence that [Ms A] also attended court in relation to those proceedings. The tribunal was satisfied that [Ms A] took reasonable action to ensure compliance with the court orders made on 21 September 2016 for the care of [Child 1]. Therefore, the requirements of paragraph 51(1)(d) of the Assessment Act were met.

17. As all of the requirements set out in subsection 51(1) of the Assessment Act were met the tribunal concluded that subsection 51 of the Assessment Act applies in this case. As the tribunal found that [Ms A] took reasonable action to ensure compliance with the court orders the tribunal was satisfied that section 52 of the Assessment Act did not apply.

18. Subsections 51(2) to (4) of the Assessment Act provide for two percentages of care to be determined for each person. The first percentage of care corresponds with the extent of care that each person should have had, or is to have, under the care arrangement (subsection 51(3)). The second percentage of care corresponds with the actual care each person would be likely to have during the care period if the action taken to ensure compliance with the care arrangement were not to succeed (subsection 51(4)). The tribunal decided to make new determinations of percentages of care in this case. The first determination corresponds with the extent of care under the care arrangement and results in a percentage of care of 27% for Mr Kendall and a percentage of care of 73% for [Ms A]. The determinations of the percentages of care for Mr Kendall and [Ms A] are made under section 50 of the Assessment Act. The second determination corresponds with the actual care that Mr Kendall and [Ms A] would be likely to have during the care period if the action taken to ensure compliance with the care arrangement were not to succeed, and results in a percentage of care of 100% for Mr Kendall and a percentage of care of 0% for [Ms A]. The determination of the percentage of care for Mr Kendall is made under section 50 of the Assessment Act and the determination of the percentage of care for [Ms A] is made under section 49 of the Assessment Act.

1. However, under subsection 51(5) of the Assessment Act if the tribunal is satisfied that special circumstances exist in relation to the child, the tribunal may determine, under section 49 or 50 a single percentage of care in relation to the responsible person. If the single percentage of care is determined under section 49 that percentage of care is 0%. If the single percentage of care is determined under section 50 that percentage must correspond with the actual care of the child that the tribunal is satisfied that the responsible person would be likely to have during the care period if the action taken to ensure compliance with the care arrangement were not to succeed. According to section 2.2.4 of the Guide, the discretion provided for under subsection 51(5) is only to be exercised in unusual cases such as where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. The Guide explains that the discretion recognises that a person should not benefit from the application of an interim period even if they are seeking the return of the child in circumstances where their own unreasonable or inappropriate actions are a significant cause for the non-compliance with the care arrangement.

2. The Guide notes that the individual circumstances that led to the change in care must be considered to determine whether they 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. The Guide sets out examples of unreasonable or inappropriate behaviour of the parent. The examples include: violence towards the child; 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 Guide provides that information provided by the parent with less care as well as information from the person who gained care should be taken into account and states that decisions should be made on the basis of evidence that supports relevant findings of fact, particularly where the facts are disputed.

3. The tribunal examined the evidence in relation to the circumstances in which the change in care for [Child 1] occurred carefully. Mr Kendall’s evidence about what [Child 1] told him and his observations of the tension between [Child 1] and [Ms A] has already been discussed. The letter that Mr Kendall provided to the Department from [Dr C]of [Counselling service 1]was dated 27 July 2017. The letter confirmed that [Child 1] told [Dr C]that she had elected to live with Mr Kendall exclusively. [Dr C] went on to state that in the past [Child 1] had consistently expressed her wish to live exclusively with Mr Kendall and that she saw that as a safe environment. The letter dated 14 September 2017 from[Ms D], Psychologist confirmed that it was [Child 1]’s wish to live with Mr Kendall full-time. [Ms D]stated that in her opinion this was the best outcome for [Child 1]’s mental health for the present time. The information in the affidavit from [Ms A] about the reason for the tension between her and [Child 1] has already been discussed. Other information she provided to the Department was consistent with her affidavit, stating that the tension between her and [Child 1] resulted from differences between them regarding discipline.

4. The tribunal accepted based on the available evidence that the relationship between [Ms A] and [Child 1] was turbulent and troublesome. This is not unusual for many teenage children and parents. The evidence established that it was [Child 1] who made the decision to live with Mr Kendall full-time. The tribunal accepted based on the medical evidence that living with Mr Kendall exclusively was likely to produce a better outcome for [Child 1] in terms of her mental health. However, the tribunal was not satisfied based on the evidence before it that [Ms A] acted unreasonably or inappropriately or that the change in [Child 1]’s care was occasioned by [Ms A]’s unreasonable or inappropriate actions. Further, the tribunal was not satisfied that there was a substantial risk to the physical, emotional or psychological well-being of [Child 1] if the care provided for under the court orders had continued to be followed. The tribunal, therefore, concluded that special circumstances did not exist in relation to [Child 1] and that the discretion set out in subsection 51(5) of the Assessment Act should not be exercised in the circumstances of this case. This means that the tribunal must determine two percentages of care for Mr Kendall and [Ms A] in accordance with subsections 51(2) to (4) of the Assessment Act.

5. Section 54C of the Assessment Act sets out the period to which each of the determinations of percentage of care applies. Under paragraph 54C(1)(c) the first determination (that is, the determination that corresponds with the care under the care arrangement) applies to the interim period. Under paragraph 54C(1)(d) the second determination (that is, the determination that corresponds with the actual care that each person would be likely to have during the care period if the action to ensure compliance with the care arrangement were not successful) applies to each day in a child support period that occurs after the interim period.

6. The interim period is required to be determined in accordance with subsection 54C(2) of the Assessment Act. Here the tribunal was satisfied that the interim period commenced at the beginning of 4 May 2017 (which was the beginning of the application day as defined in section 54B, being the day after the day from which the revocation took effect). The end date for the interim period is determined as the earliest of the four dates specified in paragraph 54C(2)(b) of the Assessment Act. In this case the earliest of those dates was on 10 August 2017 which was the last day of the 14 week period starting on the day on which the change of care for the responsible person occurred.

7. The tribunal, therefore, concluded that the interim care percentages of 27% for Mr Kendall and 73% for [Ms A] applied for the interim period that commenced on 4 May 2017 and ended on 10 August 2017. As the interim period ended on 10 August 2017 these care percentages can only apply up to that date and the second percentages of care for [Child 1] which are a care percentage of 100% for Mr Kendall and a care percentage of 0% for [Ms A] apply with effect from 11 August 2017.

8. It was clear that Mr Kendall was distressed and aggrieved by what he perceived as the unfairness of applying percentages of care for [Child 1] for the interim period that did not reflect the actual care of [Child 1]. The matters he raised are important concerns. However, as explained to Mr Kendall at the hearing the tribunal cannot change the law and it is bound to apply the applicable law in this review.

DECISION

The decision under review is affirmed.