Langley and Langley (Child support)

[2023] AATA 1044

Langley and Langley (Child support) [2023] AATA 1044 (4 April 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/MC024978, 2022/MC024986, 2022/MC024987 & 2022/MC025012

APPLICANT:  Mr Langley

OTHER PARTIES:  Child Support Registrar

Ms Langley

TRIBUNAL:Member P Jensen

DATE OF DECISIONS:                   4 April 2023

DECISIONS:

The care decision to record Mr Langley as providing 22% care and Ms Langley as providing 78% care for the children from 11 June 2021 is affirmed. The decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 in respect of that care decision is affirmed, and therefore the care decision has effect from 15 August 2022.

The decision to make an interim care determination and record Mr Langley as providing 22% care and Ms Langley as providing 78% care for the children from 16 January 2022 is set aside and, in substitution, a decision is made to not record a change in care from 16 January 2022. The decision applies with effect from 16 January 2022.

The decision to record Mr Langley has providing 0% care for the children with effect from 9 February 2022 and Ms Langley as providing 100% care for the children with effect from 27 May 2022  is set aside and, in substitution, a decision is made to not record a change in care from 9 February 2022. The decision applies with effect from 9 February 2022.

The decision to make an interim care determination and record Mr Langley as providing 22% care and Ms Langley as providing 78% care for [Child 1] with effect from 20 March 2022 is set aside and, in substitution, Ms Langley is recorded as providing 0% care for [Child 1] with effect from 20 March 2022 and Mr Langley is recorded as providing 100% care for [Child 1] with effect from 27 May 2022.  

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 - decision under review affirmed

CHILD SUPPORT – date of effect of objection decision – whether there were special circumstances that prevented the objection being lodged in time – no special circumstances exist - decision under review affirmed

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no change to the pattern of care – decision under set aside and substituted

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 DECISIONS

1. Mr Langley and Ms Langley are the parents of [Child 1] and [Child 2]. A child support case was registered with the Child Support Agency (the CSA) from 22 May 2021. Mr Langley’s applications for review concern objections officers’ care decisions and related decisions. I heard the applications for review on 4 April 2023. Mr Langley and Ms Langley gave sworn evidence via MS Teams.

A change in the parents’ care for the children from 11 June 2021

1. Mr Langley was recorded as providing 50% care and Ms Langley was recorded as providing 50% care for both children with effect from 22 May 2021. Mr Langley was recorded as providing 0% care and Ms Langley was recorded as providing 100% care for both children with effect from 31 May 2021.

2. The parents signed an interim parenting plan on 10 June 2021 which commenced on 11 June 2021. The interim parenting plan provided that, broadly speaking, Mr Langley was to provide two nights of care every fortnight during school terms as well as care during one half of each school holiday period, and Ms Langley was to provide the balance of care. On 21 June 2021 the CSA decided to record Mr Langley as providing 15% care and Ms Langley as providing 85% care for the children with effect from 11 June 2021. Mr Langley objected to that decision. An objections officer made two decisions:

• a care decision whereby Mr Langley was recorded as providing 22% care and Ms Langley was recorded as providing 78% care from 11 June 2021; and

• a decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 (the Registration Act), which meant that the objections officer’s care decision only applied from the date on which Mr Langley belatedly objected to the original care decision, which the objections officer concluded was 15 August 2022.

1. Mr Langley promptly applied to the Tribunal for review of those two decisions. At the Tribunal hearing, both parents confirmed that a change in care occurred on 11 June 2021. There was no dispute that Mr Langley provided 22% care and Ms Langley provided 78% care for the children from 11 June 2021 pursuant to the interim parenting plan. Care decisions are made pursuant to the Child Support (Assessment) Act 1989 (the Assessment Act). The objections officer’s care decision to record Mr Langley as providing 22% care and Ms Langley as providing 78% care from 11 June 2021 was correct and will be affirmed: sections 50, 54B and 54F of the Assessment Act.

2. As I explained during the hearing, section 87AA of the Registration Act relevantly provides that if a person is served with a notice of a care decision and they object to the care decision more than 28 days later, any change to the care decision will generally only apply from when the person belatedly objected. The exception to that general rule arises if there were special circumstances that prevented the person from lodging the objection within the 28-day period: subsection 87AA(2) of the Registration Act. There is no dispute that Mr Langley was served with a notice of the original care decision on 21 June 2021. It was sent to him electronically on 21 June 2021: page 109 of the hearing papers. There is no dispute that Mr Langley objected to the original care decision on 15 August 2022. However, Mr Langley stated that he lodged an earlier objection on 18 June 2021 when he provided the CSA with a copy of the interim parenting plan. I noted that the original care decision was not made until 21 June 2021. Mr Langley maintained that he objected on 18 June 2021. A person cannot object to a decision that has not been made. Mr Langley did not provide any reason as to why he did not object prior to 15 August 2022. I find that there were not special circumstances preventing him from objecting within the 28-day period. The objections officer’s decision to not make a determination pursuant to subsection 87AA(2) was correct and will be affirmed.

3. As an aside, if Mr Langley is recorded as providing at least 14% care and less than 35% care for a child, his cost percentage for the child is 24% and any change in his percentage of care within that range of percentages of care does not affect the rate of child support payable: section 55C of the Assessment Act and 2.4.5 of the Child Support Guide.

4. As a further aside, Mr Langley had difficulty understanding the various decisions that the CSA had made. That is understandable. The applications for review involve a complicated chronology of events. The relevant legislative provisions are complex. The decisions themselves involved dates of effect that sometimes differ from the dates on which the changes in care occurred.    

Possible changes in the parents’ care for the children on 16 January 2022, 9 February 2022 and 4 March 2022

1. Mr Langley provided full-time care for both children from 16 January 2022 to 8 February 2022 (24 nights). [In] February 2022 the Federal Circuit and Family Court (the Court) made interim orders whereby Ms Langley was to provide full-time care for both children from 9 February 2022 to 3 March 2022 (23 nights), and then the parents were to resume their previous pattern of care. Ms Langley provided the 23 nights of care and then the parents resumed their previous pattern of care.

2. The CSA concluded that changes of care occurred on 16 January 2022, 9 February 2022 and 4 March 2022, which led to the following:   

   ·   The CSA made an interim care determination whereby Mr Langley was recorded as providing 15% care and Ms Langley was recorded as providing 85% care for both children with effect from 16 January 2022. Mr Langley promptly objected to that decision. An objections officer varied the percentages of care to 22% care and 78% care respectively. Mr Langley promptly applied to the Tribunal for further review.

   ·   The CSA made a care decision to record Mr Langley as providing 0% care for the children with effect from 9 February 2022 and Ms Langley as providing 100% care for the children with effect from 27 May 2022 (because the change in care was belatedly reported on 27 May 2022). Mr Langley promptly objected to that decision. An objections officer disallowed the objection. Mr Langley promptly applied to the Tribunal for further review.

   ·   The CSA made a care decision to record Ms Langley as providing 78% care for the children with effect from 4 March 2022 and Mr Langley as providing 22% care for the children with effect from 27 May 2022. It appears that neither parent objected to that decision. In any event, neither parent applied to the Tribunal for review of an objections officer’s decision in respect of that decision.

3. Again, understandably, Mr Langley had difficulty understanding the various decisions that the CSA had made.

4. As I noted during the hearing, a threshold question arises as to whether there was a change in care. Not every temporary deviation from a pattern of care constitutes a new pattern of care. The Child Support Guide notes at 2.2.2 under the heading “One-off block of 100% care”:

   Where a parent or non-parent carer unexpectedly and temporarily provides 100% care of a child, the Registrar may recognise that the person has 100% care although they are not expected to continue to have that level of care. In these situations, the Registrar will determine the care over a short care period related to the unexpected circumstance (sections 49(1)(a) and 50(1)(a) [of the Assessment Act]). When care returns to the normal pattern, a party may notify the Registrar of the change in care, and the Registrar will consider whether to make a new care percentage determination.

   The period of unexpected care will generally need to be at least 4 weeks in length in order for the Registrar to make such a determination. However, shorter periods can be considered, especially where there is a possibility the period may be extended.

5. The Tribunal is not bound by departmental policy but will apply it unless there is a reason to not do so. Such an approach promotes consistency in decision-making.

6. If Mr Langley had provided a one-off block of care for 24 nights from 16 January 2022 and then the parents had resumed their usual pattern of care from 9 February 2022, there would have been a strong argument for concluding that a change in care had not occurred because Mr Langley’s one-off block of care was not of sufficient duration. However, the parents did not resume their usual pattern of care from 9 February 2022. The Court ordered that Ms Langley provide a one-off block of care for 23 nights from 9 February 2022, after which the parents were to resume their usual pattern of care. Ms Langley’s one-off block of care brought the parents’ overall provision of care during the 47 nights from 16 January 2022 to 3 March 2022 closer to the overall number of nights of care that each parent would have provided during that period if they had maintained their usual pattern of care. In other words, Ms Langley’s one-off block of care reduced the overall temporary deviation from the usual pattern of care that had been caused by Mr Langley’s one-off block of care. Viewing those particular circumstances as a whole, I find that changes in care did not occur on 16 January 2022, 9 February 2022 or 4 March 2022. The decisions to record changes in care from 16 January 2022 and 9 February 2022 will be set aside and, in substitution, decisions will be made to not record changes in care from those dates.  

A change in the parents’ care for [Child 1] from 20 March 2022

1. There is no dispute that Mr Langley provided full-time care for [Child 1] from 20 March 2022. Mr Langley reported the change in care on 27 May 2022. Interim care determinations are made pursuant to section 51 of the Assessment Act. They allow the parents to be recorded as providing the percentages of care that would have been provided if the parents had complied with a formal care arrangement, such as a court order, rather than the percentages of care that were actually provided. The CSA made an interim care determination and recorded Mr Langley as providing 78% care and Ms Langley as providing 22% care for [Child 1] with effect from 20 March 2022. Mr Langley promptly objected to that decision. An objections officer disallowed the objection. Mr Langley promptly applied to the Tribunal for further review.

2. Section 51 applies if there was a change in care, there was a formal care arrangement in force, the parents’ provision of care was not in accordance with the formal care arrangement and the person with reduced care took reasonable action to ensure compliance with the formal care arrangement: subsection 51(1) of the Assessment Act. There is no dispute that those requirements were satisfied in this case. In particular, the formal care arrangement was the Court order dated [in] February 2022. Subsection 51(2) of the Assessment Act provides that, subject to subsection 51(5) of the Assessment Act, the decision-maker must determine two sets of care percentages. The first set is the care percentages that reflect the care prescribed by the formal care arrangement. They apply for the duration of the interim care determination. The second set is the care percentages that reflect the care that was actually provided. They apply after the expiration of the interim care determination.

3. Subsection 51(5) provides that if the decision-maker is satisfied that special circumstances existed in relation to the child, the decision-maker may determine a single set of care percentages. In the current case, if special circumstances existed in relation to [Child 1], the single set of care percentages would be Mr Langley’s actual 100% care and Ms Langley’s actual 0% care for [Child 1]. The Child Support Guide addresses “special circumstances” at 2.2.4. It commences as follows:

   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.

4. On 22 March 2022, [Doctor A], general practitioner, made notes in respect of [Child 1] (with minor typographical errors in the original):

   [[Child 1]] was trying get food from the panty at her mothers house
   mother was screaming into his left ear on [a day in March 2022]
   had pain in left ear soon after and felt a pain next day – was lasted for 4 days – ear pain settled now

   did not loose conscious

   His mother pushed him into the cupboard while he was trying to get the phone, and he hit the body against the handle of right lateral hip area on 20/03/2022
   …
   bruise of 5cmx2cm on the left ileac crest
   mild tender soft tissue underneath
   - clearing bruise

   Abdo soft, not tender

5. Mr Langley provided a photograph of [Child 1’s] bruise: page 218 of the hearing papers. In my opinion, it is an injury that would cause a parent to have significant concern about the welfare of the child.

6. On 23 March 2022, Ms Langley’s solicitors sent a letter to Mr Langley which commenced:

   We refer to the abovenamed matter and advise we are instructed that following an incident of acting out and disrespectful behaviour exhibited once again by [Child 1] towards our client on Sunday evening after he had spent the weekend with you, you collected [Child 1] from the [named] Police Station and instead of exercising your duty of compliance with the Orders of the Court or facilitating the return of [Child 1] to our client’s care and taking steps to co-parent and/or counsel [Child 1] that his behaviour was unacceptable including his subsequent running away from home late at night thus putting his safety at significant and unacceptable risk, you, without our clients [sic] consent and contrary to the terms of the current orders of the Court, proceeded to take [Child 1] to [Town 1] and have continued to withhold him since Sunday.

7. The letter does not acknowledge that [Child 1] was injured while in Ms Langley’s care, it does not explain how that injury occurred and it does not state what steps Ms Langley would take to endeavour to ensure that [Child 1] did not suffer any further injuries if he was placed in her care. [Child 1] was 13 years old at that time. During the hearing I referred Ms Langley to the doctor’s notes and the photo of [Child 1’s] bruise and invited her to comment on that evidence. She declined to do so.

8. On 23 March 2022, Mr Langley sent a letter to Ms Langley’s solicitors which included the following:

   It appears that you are not accurately informed as to the circumstances of violence issues occurring while the children are in your client’s care, and that this is in fact the reason why [Child 1] is now in my care in [Town 1].

   This change of care arrangement was not instigated by me, but rather was facilitated by Victoria Police following violence incidents in your client’s home against [Child 1], and after [Child 1] reported your client locking him out of the house near midnight at [time] pm Sunday night, March 20, 2022.

   [Child 1] was outside on the street with his teddy and pillow when Police attended and interviewed him. Based on what [Child 1] reported to them they developed substantive concerns about his safety and asked him about what options were available as to where to take him. […]

   Police requested [Child 1] to phone me in their presence, told me they are taking him to the station and asked me to make the drive in the early hours of the morning to collect him into my care.

9. At the hearing, Ms Langley said [Child 1] ran away from home and she phoned the police to report the matter. She said she had been unable to search for [Child 1] herself because [Child 2] was asleep in the house. It was not immediately apparent to me why allowing one child to continue sleeping would be more important that finding another child who, on Ms Langley’s account of events, had run away from home and was still missing at around midday. However, I did not consider it necessary to question Ms Langley further.

10. I accept that Mr Langley received a call from police at [time] pm on 20 March 2022, asking him to collect [Child 1] from the police station. He was told that [Child 1] had been on the street when he was located by police. [Child 1] had suffered an injury while in Ms Langley’s care. In subsequent correspondence from Ms Langley’s solicitor, that injury was not acknowledged, no explanation was given as to how [Child 1] had suffered the injury and no assurances were given as to what steps Ms Langley would take to endeavour to ensure that [Child 1] did not suffer any further injuries. I am satisfied that there were special circumstances in respect of [Child 1] for the purpose of subsection 51(5) of the Assessment Act. Mr Langley’s percentage of care is 100% and Ms Langley’s percentage of care is 0%: subsections 51(5) and (6). The existing care determinations are revoked pursuant to section 54F of the Assessment Act. Ms Langley’s care reduced and her previous care determination is revoked from the day before the change in care occurred: subparagraph 54F(3)(b)(ii). Mr Langley’s care increased and his previous care determination is revoked from the day before the change in care was belatedly reported: subparagraph 54F(3)(b)(i). The new care determinations have effect from the days following the respective revocations: sections 49, 50 and 54B of the Assessment Act. For those reasons, Ms Langley will be recorded as providing 0% care for [Child 1] with effect from 20 March 2022 and Mr Langley will be recorded as providing 100% care for [Child 1] with effect from 27 May 2022.

DECISIONS

The care decision to record Mr Langley as providing 22% care and Ms Langley as providing 78% care for the children from 11 June 2021 is affirmed. The decision to not make a determination pursuant to subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988 in respect of that care decision is affirmed, and therefore the care decision has effect from 15 August 2022.

The decision to make an interim care determination and record Mr Langley as providing 22% care and Ms Langley as providing 78% care for the children from 16 January 2022 is set aside and, in substitution, a decision is made to not record a change in care from 16 January 2022. The decision applies with effect from 16 January 2022.

The decision to record Mr Langley has providing 0% care for the children with effect from 9 February 2022 and Ms Langley as providing 100% care for the children with effect from 27 May 2022  is set aside and, in substitution, a decision is made to not record a change in care from 9 February 2022. The decision applies with effect from 9 February 2022.

The decision to make an interim care determination and record Mr Langley as providing 22% care and Ms Langley as providing 78% care for [Child 1] with effect from 20 March 2022 is set aside and, in substitution, Ms Langley is recorded as providing 0% care for [Child 1] with effect from 20 March 2022 and Mr Langley is recorded as providing 100% care for [Child 1] with effect from 27 May 2022.