Keysor and Treweek (Child support)

[2021] AATA 5500

Keysor and Treweek (Child support) [2021] AATA 5500 (3 September 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/SC021798

APPLICANT:  Mr Keysor

OTHER PARTIES:  Child Support Registrar

Ms Treweek

TRIBUNAL:Member D Lambden, Member Y Webb

DECISION DATE:  03 September 2021

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 - interim period not to apply - 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 review is about the percentages of care of Ms Treweek and Mr Keysor in relation to their son [Child 1] who is now 12 years old.

2. The child support case was registered with the Services Australia (Child Support Agency) on 30 September 2009 and has been collectable by the Child Support Agency since this date.

3. There is a Federal Circuit Court of Australia court order dated [in] June 2020 in relation to the care of [Child 1]. This order (in brief summary) provides that Mr Keysor will have care of [Child 1] from 3 June 2020 during school terms for five nights a fortnight.  In school holidays each parent will have care for half of the duration. (The orders also contain provisions relating to care at Christmas and other special days such as birthdays, Father’s Day and Mother’s Day.)

4. The pre-existing care arrangements for [Child 1] as recorded by the Child Support Agency were that Mr Keysor had 33% care and Ms Treweek had 67% care.

5. On 18 December 2020 Ms Treweek contacted the Child Support Agency and advised that [Child 1] was in her 100% care from 2 November 2020 on medical  recommendation that [Child 1] not be in Mr Keysor’s care. She provided an extract of [Child 1]’s medical report from [Hospital 1] with a printed date of 1 December 2020 which states that [Child 1] should not go into Mr Keysor’s care due to a medical crisis which entails him being suicidal if he is to go and reside with Mr Keysor.

6. On 23 December 2020 Mr Keysor disagreed with the care change lodged from 2 November 2020 as there is a court order in place in relation to [Child 1]’s care. He confirmed that he had not seen [Child 1] for a few weeks as Ms Treweek would not allow it.

7. On 3 February 2021 Ms Treweek provided the Child Support Agency with a [Hospital 1] report detailing the medical records of [Child 1] for the month of November 2020.

8. On 3 February 2021 the Child Support Agency unsuccessfully attempted to contact Mr Keysor in order to further discuss the disputed change in care relating to [Child 1].  The Child Support Agency issued a disputed care contact letter dated 3 February 2021 to Mr Keysor with a response date of 13 February 2021. However, no response was received by the Child Support Agency from Mr Keysor.

9. On 16 February 2021 a delegate of the Registrar decided that the care of [Child 1] was 100% to Ms Treweek and nil to Mr Keysor from 2 November 2020. The delegate did so on the basis that while the Child Support Agency accepted that Mr Keysor was taking reasonable action to restore his care of [Child 1] in accordance with the court orders, it found that there were special circumstances which justified actual care being the determinant of the care of [Child 1].

10. On 18 February 2021 Mr Keysor objected to that decision. He provided a copy of the court orders dated 3 June 2020 and he stated that the court orders make mention to [Child 1]’s mental health and the requirement for Mr Keysor to be involved which he stated he was not, Mr Keysor also stated that the orders also outline the requirement of [Child 1] to be in his care.  Mr Keysor also provided the Reasons for Judgement and suggested that the order be read in conjunction with this document.

11. On 25 February 2021 the Child Support Agency notified Ms Treweek of Mr Keysor’s objection in writing.

12. On 26 February 2021 Mr Keysor provided the Child Support Agency with copies of emails dated 1 December 2020 between Mr Keysor and [Ms A], Family Law Solicitor, regarding [Child 1].

13. On 23 March 2021 Ms Treweek provided the Child Support Agency with a copy of a Provisional Order apprehended domestic violence order dated 8 March 2021 for Mr Keysor which states that he must not assault, threaten, stalk, harass, intimidate or intentionally or recklessly destroy or damage any property that belongs to or is in the possession of [Child 1].

14. On 24 April 2021, an objections officer disallowed Mr Keysor’s objection.

15. On 21 June 2021 Mr Keysor requested review by the Administrative Appeals Tribunal (the Tribunal).

16. Mr Keysor attended the hearing on 2 September 2021 by MS Teams and gave sworn evidence. Ms Treweek also attended the hearing by MS Teams and gave sworn evidence.

17. The Tribunal was also provided with relevant documentation by the Child Support Agency (marked Exhibit C1 for pages 1-290 and Exhibit C2 for pages 291-302).

18. The Tribunal considered all of the evidence available to the Tribunal in the context of the relevant legislation and on 3 September 2021 the Tribunal proceeded to determine the matter

ISSUES

1. The issues for the Tribunal to determine are:

   a)What were the care arrangements in relation to the care of [Child 1] in the relevant care period?

   b)Should a new determination of a percentage of care for [Child 1] be made? If so, what is the percentage of care and from when should it apply?

   c)Should an interim care determination be made in relation to the care of [Child 1] and, if so, for what period should it apply?

   d)Were there special circumstances where an interim period does not apply?

CONSIDERATION

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act1988.

2. Percentage of care determinations are made under section 49 and/or section 50 of the Assessment Act. Section 49 of the Assessment Act provides authority to make a determination in circumstances where a parent has no care of the child. Section 50 of the Assessment Act provides authority to make a determination of a percentage of care in situations where a person has a pattern of care. Where the Child Support Registrar is satisfied that a responsible person has had, or is likely to have, a pattern of care for the child during the relevant care period, the Registrar must determine that person’s percentage of care for the child during the care period.

3. The “care period” is effectively defined in the Assessment Act as “…such period…as the Registrar considers to be appropriate having regard to all of the circumstances”. Usually (but not necessarily) the care period will be a 12-month period starting from the date the care of the child changed and reflects the actual care that a person has, or is likely to have, during the care period.

4. The pattern of care can be established either according to a “care arrangement” (such as court orders) or the actual care that is taking place. Depending on whether a pattern has been established or not, the Tribunal can then proceed to determine the percentage of care applying the appropriate law (sections 49 and 50 of the Assessment Act).

5. Section 54A of the Assessment Act provides that the Registrar may assess the level of care on the number of nights that a parent has during a care period.

6. In this case, Mr Keysor and Ms Treweek did not contend that nights were an unsuitable measure of the care of [Child 1] and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.

7. For the purpose of determining whether a person “has had, or is likely to have, a pattern of care for the child”[1] the Tribunal takes into account evidence of the care the person has had, or the actual care, from the date of the asserted change in care and up to the time of the original determination by the Registrar and evidence of the pattern of care the person is, or was, likely to have at that point in time.

   [1] Paragraph 50(1)(a) of the Assessment Act

8. In this case, there were court orders in existence from 3 June 2020. The Assessment Act refers to a “care arrangement”. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975. Hence the Tribunal finds that the court order of 3 June 2020 is a “care arrangement” for the purposes of the Assessment Act and that it provides in brief summary that Mr Keysor will have care of the [Child 1] from 3 June 2020 for five nights a fortnight during school terms. In school holidays each parent will have care for half of the duration. The orders also contain provisions relating to care at Christmas and other special days such as birthdays, Father’s Day and Mother’s Day.

9. Ms Treweek contended that from 2 November 2020 the court order was not being followed.  She asserted that the reason that [Child 1] stopped being in Mr Keysor’s care was because [Child 1] was admitted to [Hospital 1] as he was suicidal and the psychiatrist recommended that [Child 1] remain in Ms Treweek’s care and not have contact with Mr Keysor.

10. Mr Keysor stated that the last time that [Child 1] was in his care was 1 November 2020 until he returned to his care on 18 May 2021 for a period of time. Mr Keysor stated that Ms Treweek  was withholding care and refusing to allow his care to be restored in accordance with the court orders. 

11. Under the scheme for determining percentages of care, existing care determinations continue in effect until they are revoked. Relevant to this matter section 54F of the Assessment Act provides for revocation of a determination of a percentage of care if (among other requirements):

    ·     the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the person’s existing percentage of care; and

    ·     the Registrar is satisfied that the person’s cost percentage for the child would change if the Registrar were to determine another percentage to be the person’s percentage of care for the child; and

    · provisions relating to the making of an interim care determination do not apply (sections 51 and 53A of the Assessment Act).

12. The initial issue which the Tribunal needs to determine is whether the pattern of care changed for [Child 1] on and from 2 November 2020 and whether the actual care that was occurring did not correspond with the existing care determination.

13. The Tribunal is satisfied that from 2 November 2020 the care of [Child 1] that was taking place was not the same as the pre-existing percentages of care (or the care as provided in the court order of 3 June 2020).

14. The Tribunal therefore finds that from 2 November 2020 the care of  [Child 1] was 100% to Ms Treweek and 0% to Mr Keysor.

15. The Tribunal finds that pursuant to section 54F of the Assessment Act, the existing percentage of care determination for the parents should potentially be revoked. The Tribunal finds that the notification of the change of care was made by Ms Treweek on 18 December 2020 which was more than 28 days after the change of care day on 2 November 2020. In the case of Ms Treweek, her care increased and according to subparagraph 54F(3)(b)(i) her existing care percentage of 67% would be revoked from 17 December 2020 and a new percentage of 100% determined from 18 December 2020. Mr Keysor’s care decreased and according to subparagraph 54F(3)(b)(ii) his existing care of 33% would be revoked from 1 November 2020 and a new percentage of 0% determined from 2 November 2020.

16. However, before revoking the existing care percentages and making new percentage of care determinations under sections 49 and 50 of the Assessment Act , the Tribunal must consider whether an interim period should apply pursuant to section 51 of the Assessment Act.

17. Section 51 of the Assessment Act provides that a care determination may be made (called an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care is taking “reasonable action” to have the court order complied with. “Reasonable action” is not defined in the legislation. The Explanatory Memorandum to the Bill for the amending Act that introduced section 51, referring to “reasonable action” states: “...for example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.”

18. In addition, government policy is reflected in the Child Support Guide (the Guide) which states  at 2.2.4 that 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 relationships centre 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 the court to seek an order to be made or enforced; or

    ·     notifying the police that the child has been taken without consent.

19. In determining an application for review and in the interests of consistency of decision making, the Tribunal would ordinarily apply such policy providing it was not inconsistent with the Act.[2]

    [2] See Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39

20. Mr Keysor contended that he was taking reasonable action to have his care restored.  He advised that he sent a number of messages to Ms Treweek in relation to him having [Child 1] in his care.  Mr Keysor stated that Ms Treweek threatened him with police involvement so he chose not to pick [Child 1] up because he did not want a forceful situation to occur. Mr Keysor explained that Ms Treweek applied to the Family Court in relation to the change in [Child 1]’s care before he had an opportunity to. The Tribunal accepts that he took these actions and that he was taking reasonable action to restore his care of [Child 1].

21. Mr Keysor contends that the Tribunal should make an interim care determination as detailed in section 51 of the Assessment Act. The Act provides that where a party with reduced care is taking reasonable action to have the court orders enforced, the Assessment Act provides that two percentages of care be determined: one reflecting the court orders and one reflecting the actual care and then provides for the different percentages to apply in respect of different periods depending on the circumstances and conduct of the parties

22. However, subsection 51(5) of the Assessment Act provides that if “special circumstances” exist in relation to a child, a single percentage of care (which in this case would be 100% in respect of Ms Treweek) – rather than two percentages of care – may be determined based upon the actual care taking place. The meaning of “special circumstances” is not defined in the legislation but is described in the Child Support Agency’s policy at item 2.2.4 of the Child Support Guide. It states:

    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 fir 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);

    …

23. The Child Support Agency exercised this discretion both in the original decision of 16 February 2021 and the objections officer’s decision of 24 April 2021.  It did so, on the basis that Ms Treweek had withheld [Child 1] from Mr Keysor’s care due to safety concerns.  The Child Support Agency relied upon the undated letter from [Child 1]’s psychologist [Mr B] from [health service provider] that Ms Treweek provided  which advised that he had concerns for the psychological and emotional wellbeing of [Child 1] and his recommendation is that [Child 1] not be in contact with his father until he requests the contact.  The Child Support Agency also relied upon the [Hospital 1] records for [Child 1] that Ms Treweek had provided stating that it is advised by the mental health team that [Child 1] does not go to his father due to a medical crisis which entails him becoming suicidal if he is to go and reside there for a week.  The Child Support Agency also relied upon the Provisional Order Apprehended domestic violence order for Mr Keysor with [Child 1] listed as the person in need of protection.  The Child Support Agency concluded that based on the recommendation of independent medical practitioners from the hospital mental health team and that of [Mr B] as well as the apprehended domestic violence order it was satisfied there were special circumstances and the actual overnight care being provided for [Child 1] should be applied to the assessment rather than the court ordered care.

24. Ms Treweek stated that [Child 1] was actively suicidal, she took him to hospital and the Head of Psychiatry advised that [Child 1] was to have no contact with Mr Keysor.  She stated that Mr Keysor had given authority to [Child 1] to have treatment and he was invited to attend therapy however he has not attended the sessions.  Ms Treweek stated that Mr Keysor has not responded to her text messages, he had not initiated court proceedings and he has declined mediation. Ms Treweek stated that she has not stopped Mr Keysor from having [Child 1] in his care.  She stated that there are court orders in place, she has applied to be the court and they are waiting for a court date to be set.

25. Mr Keysor stated to the Tribunal that the apprehended domestic violence order was subsequently withdrawn and the care arrangements outlined in the court order need to be looked at.  He stated that he attended [Hospital 1] however he had to wait outside appointments. Mr Keysor stated that [Child 1]’s psychologist [Mr B] did not allow Mr Keysor to be involved with [Child 1]’s treatment.

26. The Tribunal accepts that Mr Keysor considers it unjust and unfair that the court order did not prevail and that his care was recorded as 0% from 2 November 2020.  However, from 2 November 2020 the Tribunal is satisfied that special circumstances existed because as outlined on page 58 of the document titled “Medical Records of [Child 1] November 2020” [Child 1]’s medical crisis resulted in Mr Keysor having no care as the Psychiatry Progress Note on 11 November 2020 states: Recommendation was given yesterday by HH CNC ([named]) in conjunction with the on-call psychiatrist ([named]) that [Child 1] does not go to father due to this medical crisis which entails him becoming suicidal if he is to go and reside there, and that continued support from current psychiatrist is the best least restriction of care”.  The discharge summary for [Child 1] from [Hospital 1] on page 60 of the document titled “Medical Records of [Child 1] November 2020” states “It would be best for [Child 1] to be safe at home with mother and utilise suggested medications”. The Tribunal relied upon the undated letter from [Child 1]’s psychologist [Mr B] from [health service provider] which stated that [Mr B] had concerns for the psychological and emotional wellbeing of [Child 1] and his recommendation is that [Child 1] not be in contact with his father until he requests the contact. The Tribunal also relied upon  the Provisional Order apprehended domestic violence order dated 8 March 2021 as being relevant to the assessment of the risk (at the time) to the child’s physical, emotional or psychological well-being. Taking all of these factors into account the Tribunal finds that it was correct to determine care on the basis of actual care: that is 100% care to Ms Treweek and 0% care to Mr Keysor from 2 November 2020 with a date of effect for Ms Treweek of 18 December 2020 and a date of effect for Mr Keysor of 2 November 2020.

1. Having arrived at the same decision as that of the Child Support Agency the Tribunal affirms the decision under review.

DECISION

The decision under review is affirmed.