Leftwich and Duff (Child support)

Leftwich and Duff (Child support) [2022] AATA 3511 (16 August 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC024051
APPLICANT:  Ms Leftwich
OTHER PARTIES:  Child Support Registrar
Mr Duff

TRIBUNAL:Member Y Webb
DECISION DATE: 16 August 2022
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

an interim care determination for a 14-week period will apply from 2 November 2021 to 7 February 2022 whereby the percentages of care for the child are 50% to Ms Leftwich and 50% to Mr Duff; and
thereafter, from 8 February 2022 actual care of 100% to Mr Duff and 0% to Ms Leftwich will apply.

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 – interim period applied - decision under review 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 DECISION

BACKGROUND

Ms Leftwich and Mr Duff are the separated parents of their daughter who is 14 years old (“the child”). This application for review is about the respective percentages of care that each parent has for the child.
The child support case commenced in 2013 and has been collectable by the Child Support Agency since that date.
On 15 February 2022 Mr Duff contacted the Child Support Agency and notified of a change in care for the child. He stated that he had had 100% care of the child since 6 October 2021. Prior to Mr Duff contacting the Child Support Agency the care of the child was 50% to each of the parents from 7 February 2017.
The Child Support Agency spoke with Ms Leftwich on 15 February 2022 and she advised that she had not had care of the child since 2 November 2021. She also stated that Mr Duff was withholding care and that solicitors were involved and that she did not believe that the child was voluntarily residing with Mr Duff.
On 17 February 2022 an officer of the Child Support Agency decided that Mr Duff had 100% care of the child and Ms Leftwich 0% care from 2 November 2021 (and notified on 15 February 2022).
On 15 March 2022 Ms Leftwich objected to that decision. She contended that Mr Duff was withholding care and that she was still providing financial support to the child. Ms Leftwich stated that she had taken action to seek legal assistance as a court order about the care of the child had been in place since September 2016.
Both parents provided additional documentation. On 17 May 2022 the Child Support Agency decided to allow Ms Leftwich’s objection and decided that:
·     an interim care period of four weeks should apply for the child to reflect Ms Leftwich as having 50% care and Mr Duff as having 50% care from 2 November 2021 to 29 November 2021;
·     from 30 November 2021 to 14 February 2022 the actual care for the child was 179 nights (50%) to Mr Duff and 0 nights (0%) to Ms Leftwich; and
·     from 15 February 2022 onwards, the actual care for the child was 365 nights (100%) to Mr Duff and 0 nights (0%) care to Ms Leftwich.
On 8 June 2022 Ms Leftwich applied to the Administrative Appeals Tribunal (“the Tribunal”) for an independent review of the objection officer’s decision.
A hearing was held by the Tribunal on 16 August 2022. Both parents gave sworn evidence.
The Tribunal had before it relevant documents provided to it by the Child Support Agency pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled (as a bundle) as Exhibit C1. A copy of all of the papers was provided to the parents prior to the hearing.

ISSUES

The issues for the Tribunal to determine are:
a)    What were the care arrangements in relation to the care of the child in the relevant care period?
b)    Should a new determination of a percentage of care for the child 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 child and, if so, for what period should it apply?
d)    Were there special circumstances where an interim period does not apply?

CONSIDERATION

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) Act 1988.
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.
The Assessment Act provides that the care percentage must be determined for a “care period” which is effectively defined 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 reflect the pattern of care that a person has had, or is likely to have, during the care period. The Tribunal is satisfied that a 12-month care period commencing from 2 November 2021 was appropriate in this case (noting that this will apply only until a further care determination is made).
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
The pattern of care can be established either according to a “care arrangement” or the actual care that is taking place.
Section 5 of the Assessment Act refers to the A New Tax System (Family Assistance) Act 1999 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 parenting order within the meaning of section 64B of the Family Law Act 1975”. The Tribunal is satisfied that the court orders of [September] 2016 satisfy the definition of a “care arrangement”. It is also satisfied that these court orders were the operative ones at the time of the change in care on 2 November 2021.
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.
In this case, Ms Leftwich and Mr Duff did not contend that nights were an unsuitable measure of the care of the child and the Tribunal finds that nights are an appropriate method of ascertaining the care in this case.
There is also no dispute and the Tribunal finds that until 2 November 2021 care of the child was occurring in accordance with the court orders of 50% care to each of the parents but that from 2 November 2021 the child has been in the 100% care of Mr Duff.
An existing care determination must be revoked if the Registrar is notified or otherwise becomes aware that the care that is actually taking place does not correspond with the existing percentage of care for the child and the responsible person’s cost percentage would change if a new determination were made: section 54F of the Assessment Act.
In the administrative formula, a parent’s notional contribution to the costs of the child by provision of care is called the cost percentage. Section 55C of the Assessment Act details how the percentage of care affects the cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

The Tribunal finds that in this case the responsible parents’ cost percentages would change as a result of the new determination and the pre-existing determinations of percentage of care should be revoked in accordance with section 54F of the Assessment Act. (It finds that section 54G of the Assessment Act does not apply because the Tribunal is not persuaded that Mr Duff was making the child available and also because the change in care was notified more than 28 days after the care change which is not considered within a reasonable time). Hence whereas previously Ms Leftwich and Mr Duff each had 50% care and a cost percentage of 50%, the new determination will result in a care percentage of 100% and a cost percentage of 100% to Mr Duff and a care percentage of 0% and a cost percentage of nil to Ms Leftwich.
Subsection 54F(3) of the Assessment Act specifies when the revocation of the existing determination takes effect. The date of effect depends on whether the Child Support Agency was notified of the care change within 28 days after it occurred. The Tribunal has found that the care change occurred on 2 November 2021. The Tribunal also found that Mr Duff notified the Child Support Agency of the change on 15 February 2022. As the Child Support Agency was notified more than 28 days after the change occurred, the revocation of the existing determination normally takes effect in accordance with paragraph 54F(3)(b) of the Assessment Act.
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.
Section 51 of the Assessment Act provides that a care determination may be made (called an “interim care 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”.
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.
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 Assessment Act.[2]
[2] See Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Ms Leftwich provided a copy of the court orders of [September] 2016 and it is not in dispute that the orders provide that, “unless otherwise agreed in writing, the child shall live with the mother and with the father in an equal time arrangement during all times save for the December/January holidays and on special occasions as provided herein in Orders 8(a) and 8(b)”.[3] Orders 8(a) and 8(b) provided that in the December/January school holidays Mr Duff would have care of the child for the first half of the holiday periods in years ending in odd numbers and for the second half of the holiday periods in years ending in even numbers and that otherwise in holiday periods the child would live with the mother. There were arrangements within the court orders for special occasions such as Father’s Day and Mother’s Day, etc.
[3] C1-pages 65-69
Ms Leftwich told the Tribunal that in relation to whether she was taking reasonable action to have her care restored in accordance with the court orders, she had never consented to a change to the court orders. She stated that she was taking all reasonable action to have her care of the child restored. She was adamant that Mr Duff was withholding care of the child from her. Ms Leftwich provided copies of text messages which she sent to Mr Duff. The first of these was on 2 November 2021 (when the child was due to return to Ms Leftwich’s care) when she asked Mr Duff “Can you let me know if you have (child’s name) please?” and this was followed by a further text stating: “I am concerned of (name) whereabouts as (name) was not at the school for me to pick her up as per court agreement this afternoon. I did search for her at school and couldn’t find her. I then called the school while I was searching for her and was told that she was picked up”. On 5 November 2021 Ms Leftwich sent a further text to Mr Duff stating: ”just wanting to know when (name) will be returning to me as per court orders? If you can kindly let me know asap that would be great”. On 11 November 2021 Ms Leftwich sent a further text to Mr Duff stating: “I will be calling this number in 10 minutes to talk with (name) as per court orders”. On 16 November 2021 Ms Leftwich sent a further text to Mr Duff stating: “Can you please advise if (name) will be returning to me today as per court orders please” and Ms Leftwich sent a further text to Mr Duff on 18 November 2021 stating that “just wanting to know when will (name) be returning to me as per court orders? If you can kindly let me know that would be great”.[4]
[4] C1-pages 76-77
Ms Leftwich also provided a copy of a letter from [Agency 1] written by a “family engagement practitioner” who confirmed that the organisation was supporting Ms Leftwich “to identify supports which will contribute to providing a safe environment for her children”.[5]
[5] C1-page 75
On 13 December 2021 Ms Leftwich emailed Mr Duff’s lawyer, [Lawyer A] requesting phone contact with the child and proposing dates for that to occur.
Ms Leftwich provided evidence that on 17 December 2021 she had engaged a lawyer for the purpose of obtaining a recovery order. She also provided a copy of a bank transaction which she stated showed that on 23 December 2021 she transferred an amount of $4,400 to her lawyer’s account.[6]
[6] C1-pages 85-86
On 5 January 2022 Ms Leftwich emailed Mr Duff’s lawyer seeking that the court orders recommence immediately and all of the lost time be made up. She also denied that she had perpetrated any violence or harmed the child in any way.
Ms Leftwich provided a copy of her letter to her lawyer dated 29 March 2022 in which she requested that her lawyer prepare documents in relation to a recovery order.
At the hearing Ms Leftwich stated that her lawyer is in the process of submitting documents to the court citing breach of the court orders of 2016 and seeking a recovery order.
The Tribunal finds that Ms Leftwich was taking reasonable action to have her care restored in accordance with the court orders.
The Assessment Act provides that where a party with reduced care is taking reasonable action to have the court orders enforced, two percentages of care should 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.
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 Mr Duff) – 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 Guide at item 2.2.4. 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);
…
Mr Duff told the Tribunal that the child was in his 100% care because of safety concerns. Mr Duff’s lawyer wrote to Ms Leftwich on 19 November 2021 and 8 February 2022 alleging that the child had been exposed to and subject to domestic violence while in Ms Leftwich’s care. The letters stated that the child was unwilling to return to the care of her mother and that Mr Duff allowed the child to remain in his care in the interests of the child’s safety and welfare.[7]
[7] C1-pages 57-58 and 61-62
However, no supporting evidence was provided to the Tribunal in relation to these allegations. There was no evidence provided of violence or inappropriate behaviour from Ms Leftwich to substantiate that the child’s physical, emotional or psychological wellbeing was at risk if the care arrangement had continued to be followed. In these circumstances the Tribunal concluded that special circumstances do not exist in this case that warrant the application of subsection 51(5) of the Assessment Act.
Therefore the Tribunal determined that an interim care decision should be made.
Subsection 53A(1) of the Assessment Act provides a table for working out the end date for the interim period. In a case where the change in care occurs more than 26 weeks after the date of the court order (which is the case here) the interim period applies for 26 weeks from the change of care date. Therefore, the start of the interim care period would be 2 November 2021 and the end of the interim period would be 2 May 2022, being 26 weeks from the change of care date. The duration of the interim period can be reduced to 14 weeks from the change of care date in circumstances where the parent with increased care is continuously taking reasonable action to participate in family dispute resolution throughout the 14-week period.
Mr Duff contended that he was taking reasonable action to resolve the care situation and included his willingness to participate in family dispute resolution. He told the Tribunal that he was always willing to participate in family dispute resolution and that he wanted the child to have contact with her mother. He stated that through his lawyer he had tried to negotiate a new agreed arrangement. In the letter of 19 November 2021 Mr Duff, through his lawyer, proposed entering into a new parenting plan which would “provide a framework within which you may both care for your daughter”. Ms Leftwich did not engage with that proposal but reiterated, in her email to Mr Duff’s lawyer of 5 January 2022, that she was seeking a restoration of care as in the court orders.

Mr Duff’s lawyer again wrote to Ms Leftwich by letter dated 8 February 2022. This letter proposed some interim parenting arrangements involving temporary supervised contact and further negotiations towards future agreed arrangements including participation in family dispute resolution.
Mr Duff told the Tribunal that at all times since the child came into his 100% care he has been willing to participate in family dispute resolution. However, he stated that he has been waiting for Ms Leftwich to respond to his lawyer’s letters about possible ways forward. The Tribunal accepts that Ms Leftwich has not engaged with the proposals from Mr Duff’s lawyers but has maintained her position that court orders have been breached and that she wishes the court orders to be restored.
For the purposes of the interim care determination the Tribunal is satisfied that Mr Duff has continuously taken reasonable action to participate in family dispute resolution.
Hence the Tribunal is satisfied that the interim period should be shortened to 14 weeks from 2 November 2021 to 7 February 2022. The percentage of care that applies during the interim care period is 50% care to Ms Leftwich and 50% care to Mr Duff (recorded administratively by the Child Support Agency as 51% care to Ms Leftwich and 49% care to Mr Duff) being the court-ordered care under the court orders dated [in] September 2016. From 8 February 2022 the percentage of care determinations reflect the actual care that occurred at the time the change of care was advised. The actual care at the time was 100% to Mr Duff and 0% to Ms Leftwich.
The Tribunal notes that the notification of a change in care was not made by Mr Duff until 15 February 2022. In circumstances where a change in care occurs but was notified more than 28 days after the change, normally the date of effect for the parent with the increased care is the date of notification and the date of effect for the parent with the decreased care is the change of care date (section 54B of the Assessment Act). However, where an interim period applies, the date of effect is governed by section 54C of the Assessment Act rather than section 54B. This means the determinations as to actual care apply from the day after the interim period ends (therefore from 8 February 2022).

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

an interim care determination for a 14-week period will apply from 2 November 2021 to 7 February 2022 whereby the percentages of care for the child are 50% to Ms Leftwich and 50% to Mr Duff; and
thereafter, from 8 February 2022 actual care of 100% to Mr Duff and 0% to Ms Leftwich will apply.

[2022] AATA 3511

16 August 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Remedies