Massey and Beaton (Child support)

[2022] AATA 4011

Massey and Beaton (Child support) [2022] AATA 4011 (10 October 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024307

APPLICANT:  Mr Massey

OTHER PARTIES:  Child Support Registrar

Ms Beaton

TRIBUNAL:Member E Kidston

DECISION DATE:  10 October 2022

DECISION:

The decision under review is set aside and substitutes a new decision that, in respect of [Child 1]:

·     The care percentage determination of 51% to Ms Beaton is revoked from 10 March 2022 and an interim care determination of 51% applies from 11 March 2022 to 7 April 2022.  A new care percentage determination of 0% applies to Ms Beaton with effect from 8 April 2022; and

·     The care percentage determination of 49% to Mr Massey is revoked from 10 March 2022 and an interim care determination of 49% applies from 11 March 2022 to 7 April 2022.  A new care percentage determination of 100% applies to Mr Massey with effect from 8 April 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked – 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

1. Mr Massey and Ms Beaton are the separated parents of [Child 1] (born 2008) and [Child 2] (born 2012).  

2. This review application is about the percentages of care for Mr Massey and Ms Beaton that apply in relation to the child support case registered with the Services Australia – Child Support Agency (CSA) for [Child 1].

3. On 11 March 2022, a change in care occurred where Mr Massey had sole care of [Child 1].

4. Prior to 11 March 2022, the percentages of care recorded by the CSA for [Child 1] were 51% to Ms Beaton and 49% to Mr Massey in accordance with a parenting plan signed on 4 August 2015 (Parenting Plan).

5. On 12 April 2022, the CSA made a decision to accept the change in care of [Child 1] as 100% to Mr Massey from 11 March 2022 and for an interim period to apply for 14 weeks from 11 March 2022 to 16 June 2022.  This had the practical effect of continuing the recorded care percentage for Ms Beaton as 51% and for Mr Massey as 49% to 16 June 2022.  After the interim period, that is, from 17 June 2022, the recorded percentage of care for [Child 1] changed to reflect the actual care as 100% to Mr Massey and 0% to Ms Beaton.

6. Mr Massey subsequently provided evidence to the CSA of an appointment with a mediator at [Agency 1] for 2.30pm on 13 April 2022.

7. Based on the information before it, the CSA made a decision on 13 April 2022 to apply a different interim care determination in which the interim period was, in effect, reduced to four weeks from 11 March 2022 to 7 April 2022. 

8. On 28 April 2022 Ms Beaton objected to the decision of 13 April 2022 on the basis that she met all the requirements for the interim care determination and believed it should apply until 16 June 2022.

9. On 21 July 2022, an objections officer of the CSA decided to partly allow the objection and the interim period changed to end on 10 May 2022.

10. Mr Massey disagreed with the objection decision and on 22 July 2022, he lodged an application with the Social Security and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision. 

11. The application was heard by the Tribunal on 10 October 2022. Mr Massey and Ms Beaton participated in the hearing by conference telephone and each gave evidence on affirmation. As is customary, the Child Support Registrar did not participate in the hearing and did not attend.

12. In considering the application, the Tribunal took into account the oral evidence of Mr Massey and Ms Beaton as well as the documentary material in evidence as provided by the CSA in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975 comprising of folios 1 to 193 (marked Exhibit 1) as well as the supplementary documents provided by the CSA in accordance with section 38AA of the Administrative Appeals Tribunal Act 1975 comprising of folios 1 to 10 (marked Exhibit 2).

CONSIDERATION

Change in care

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). This legislation sets out the rules for the Registrar, that is, the CSA, for making and revoking care percentage determinations which are then used as part of the child support formula to assess child support payment rates.

2. Before care percentage determinations can be made under the Act, the care percentage determinations in place (if one already exists) must first be revoked. In simple terms, existing care percentages generally apply until the CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact cost percentages.

3. In this matter, there is no dispute that as at the date of the CSA’s determinations, a change in care occurred on 11 March 2022 and [Child 1] has been in Mr Massey’s sole care since that date, contrary to the Parenting Plan.  As the actual care of [Child 1] did not reflect the CSA’s recorded care, the Tribunal accepts that it was necessary for the CSA to revoke the existing care determination and apply new care percentages.

4. The CSA also determined that the requirements in subsection 51(1) of the Act were satisfied and an interim care determination applied in this matter.

Interim care determination

1. Under section 51, the framework for determining when the new care percentages apply is treated differently where the parent with reduced care has taken reasonable action to recover care of the child under a breached care arrangement (which includes a parenting plan). There are four requirements in subsection 51(1) that must be met before the provision may be enlivened and an interim care determination applied.

2. Where the four requirements under subsection 51(1) of the Act are satisfied then subsection 51(2) of the Act requires the CSA to make and apply two care decisions to the child support case. The first decision reflects the care that should have been provided pursuant to the Parenting Plan (subsection 51(3)) and that care percentage continues to apply for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (interim period). The second decision reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)). 

3. The issue for the Tribunal to determine in this matter is whether an interim care determination ought to apply to the child support case registered for [Child 1] and if so, the start date and end date of the interim period.

4. At the hearing Mr Massey submitted, in effect, that an interim care determination should not apply as [Child 1] left Ms Beaton’s care and came into his care of his own free will, there is no dispute that he had actual care of [Child 1] from 11 March 2022, he has incurred actual costs in caring for him from that date, and Ms Beaton is being opportunistic. Further, Mr Massey told the Tribunal that he was advised by CSA officers to appeal the objection decision. 

5. Mr Massey also raised at the hearing that he had been negotiating directly with Ms Beaton to fix their co-parenting issues for some time, as evidenced by the text messages (folios 62 to 67 of Exhibit 1).  Mr Massey submitted that the evidence supports his position that, from 11 March 2022 he had been taking reasonable action to negotiate care arrangements for [Child 1] with Ms Beaton. 

6. Ms Beaton’s oral evidence to the Tribunal was that she immediately took action to recover care of [Child 1] in accordance with the Parenting Plan; first with [Agency 1] and then with [Agency 2].  Ms Beaton said that she had initiated the mediation process with [Agency 1] and her view is that Mr Massey took reasonable action when he attended the first appointment at [Agency 1] on 13 April 2022. Ms Beaton told the Tribunal that she agrees with the interim care determination ultimately made by the CSA on 21 July 2022. 

7. At the hearing, the legislative provisions that address changes in care and where an interim period applies were canvassed.

8. From the evidence in Exhibit 1, the Tribunal is satisfied that the four requirements in subsection 51(1) of the Act are met, as follows:

   (a)  the CSA was required to make a new care decision following the change in care that occurred on 11 March 2022;

   (b)  the Parenting Plan applies in relation to [Child 1];

   (c)   the parents’ actual care of [Child 1] since 11 March 2022 has not complied with the Parenting Plan; and

   (d)  Ms Beaton took reasonable action to recover care of [Child 1] by initiating and pursuing a family dispute mediation process within a reasonable period from 11 March 2022.   

9. Therefore, an interim care determination may apply in this matter.  However, the Act also provides a discretion at subsection 51(5) to not apply an interim care determination because the decision-maker is satisfied that special circumstances exist in relation to the child.  In such cases, the percentage of care is immediately based on the actual care from the date change in care occurred.   

10. The term “special circumstances” is not defined in the Act.  The Child Support Guide at 2.2.4 particularises the kind of special circumstances that might result in this discretion being exercised and an interim period not apply.  Examples include where there is evidence of violence towards the child or other inappropriate behaviour including, but not limited to: exposing the child to family violence, directly involving the child in a criminal act, exposing the child to illicit substances, and neglecting the child’s basic needs such as medical care, food, shelter and hygiene. 

11. In making its decision in this matter the Tribunal also considered the Child Support Guide, which contains government policy to assist its decision makers when deciding whether there has been a change in the pattern of care and disputed care arrangements. The Tribunal is not bound by such policy; however, where the policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration - Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

12. Having regard to the evidence in the Exhibits and the oral evidence given at the hearing, the Tribunal is of the view that there is no suggestion that special circumstances exist of the kind as outlined in the Child Support Guide at 2.2.4 and there is no basis to exercise the discretion in subsection 51(5) of the Act. As such, an interim care determination must apply, and the Tribunal so finds.

29.  Having determined that an interim care determination must apply in this matter, the Tribunal turned to consider the duration of the interim period and when it ends.

Interim period

30.  The length of the interim period depends on a number of factors, including whether or not the previous care arrangement was a parenting plan or court order, and whether the person with increased care also took reasonable action.

31.  Section 53A of the Act provides that for circumstances where written care agreements such as parenting plans are in place, the maximum interim period that can apply is 14 weeks from the change of care day.  However, a shorter interim period may apply if the change of care occurs after the first 38 weeks from the day the parenting plan takes effect. 

32.  As the change in care concerning [Child 1] occurred more than 6 years after the Parenting Plan commenced, the Tribunal is required to consider the application of a shorter interim period of four weeks from the date that that a person who has increased care (Mr Massey) started taking reasonable action to participate in family dispute resolution. 

33.  In evidence, Mr Massey attended an intake assessment with a mediator at [Agency 1] on 13 April 2022 and continued participating in the family dispute resolution process (folio 151 of Exhibit 1). However, Mr Massey’s position is that he took reasonable action before 13 April 2022 and put forward the argument that an appointment with [Agency 1] would have been booked and confirmed with him before that date.  Mr Massey stated the date he commenced reasonable action should be either: 11 March 2022 - supported by the text messages between him and Ms Beaton which he considers confirms he was negotiating a resolution to the change in care arrangement; or in the alternative, the date the appointment with [Agency 1] was made by Mr Massey, although no evidence was provided to the Tribunal of the [Agency 1] appointment being scheduled by Mr Massey or the date it was made.

34.  The term 'reasonable action' is not defined in the Act, however the explanatory memorandum to the Bill that introduced section 51 in Parliament referred to reasonable action as:

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. 

Further, the Child Support Guide at 2.2.4 states as follows:

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 Relationship Centre (FRC) 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 a court to have an order made or enforced,

·    attending a hearing at court to seek an order to be made or enforced, or

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

This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

·    a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,

·    documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

·    documentation of police or court action.”

35.  Mr Massey’s oral evidence was that the negotiations undertaken with Ms Beaton as evidenced from the text messages in Exhibit 1 at folios 62 to 67, show his attempts to negotiate care arrangements for [Child 1] and fix their co-parenting issues.  He told the Tribunal that he had been attempting to fix the issues surrounding care of the children with Ms Beaton for some time, and the chain of text messages in evidence were sent before, on and after 11 March 2022. Ms Beaton’s oral evidence in response was that the text messages in evidence are incomplete and not a genuine attempt by Mr Massey to ensure compliance with the Parenting Plan. 

1. The Tribunal agrees with Ms Beaton’s view, the text messages in evidence (at folios 62 to 67of Exhibit 1) are incomplete chains and, relevantly, the text messages does not establish that Mr Massey was negotiating to ensure compliance with the Parenting Plan. 

37.  Having regard to all of the evidence, the Tribunal prefers the evidence that confirms Mr Massey first attended and actively participated in a family dispute resolution process at [Agency 1] (folio 151 of Exhibit 1), and accepts it was initiated by Ms Beaton.  Accordingly, the Tribunal finds the date Mr Massey started taking reasonable action was 13 April 2022. The Tribunal is also satisfied that Mr Massey continued with the family dispute resolution process at Centrelink for at least 4 weeks from when he started.  Therefore, the Tribunal finds paragraph 53A(3)(a) is satisfied and it is correct that the shorter interim period of four weeks is applied.

38.  Paragraph 53A(3)(b) of the Act further specifies that the shorter interim period starts on the date the care changed (in this case, 11 March 2022) if the parent with increased care takes reasonable action within a reasonable period from that date. What is considered “a reasonable period” depends on the circumstances of each matter.

39.  Mr Massey told the Tribunal that he acted and participated in the family dispute resolution process promptly and the first available appointment for him to attend with the mediator at [Agency 1] was 13 April 2022.  The Tribunal accepts Mr Massey’s oral evidence in this regard and does not consider there was any delay in his actions to participate in mediation initiated by Ms Beaton.  As the Tribunal has found Mr Massey’s reasonable action commenced about a month after the change in the care occurred, in the circumstances where Ms Beaton initiated the family dispute resolution process, the Tribunal considers Mr Massey’s reasonable action was done within a reasonable period of the change in care event, and so finds. 

40.  Therefore, pursuant to paragraph 53A(3)(b) the shorter interim period of four weeks starts from the change in care date of 11 March 2022 and ends on 7 April 2022.  This will have the effect of the new percentages of care for [Child 1] of 100% to Mr Massey and 0% to Ms Beaton taking effect from 8 April 2022.

1. The Tribunal acknowledges Mr Massey’s submission that given there is no dispute that [Child 1] was in his care from 11 March 2022, he disagrees with care not being recorded to him as 100% from that date. However, for the reasons canvassed above, despite Mr Massey having 100% care from 11 March 2022, the law requires that an interim care determination apply resulting in the pre-existing care percentages continuing for the interim period.

42.  This matter highlights the complexity in navigating through the legislative framework in relation to how care is to be recorded for child support purposes, and the Tribunal does not disregard the possible difficulties that can arise where a person tries to understand how the law operates in whether an interim care determination applies and the duration of an interim period.  However, in stating that, as discussed at hearing, the Tribunal is required to consider the issues before it based on the facts and apply the law. 

43.  Accordingly, the Tribunal finds the interim period starts on 11 March 2022 and ends on the date that is four weeks from 11 March 2022 pursuant to paragraph 53A(3)(b) of the Act, as Mr Massey took reasonable action on 13 April 2022 and the Tribunal considers this was done within a reasonable period, in the circumstances of the matter.  

44.  It follows that as the decision of this Tribunal is different to that of the objections officer’s decision therefore, the decision under review will be set aside.

Other matters

1. The Tribunal considers it appropriate to address that the child support legislative scheme deals with any subsequent change to the likely pattern of care by requiring further notification to be made to the CSA of such changes.  The CSA is then tasked with making further decisions, with review rights as appropriate attached to each further or subsequent decision. 

2. The Tribunal notes that the CSA has recorded that Ms Beaton notified a change in care concerning [Child 1] in July 2022 and a decision regarding that notification has been made by the CSA as evidenced in Exhibit 2.  As the CSA has made a new decision regarding a subsequent notification, it is open to the parties to exercise their review rights to that decision. However, as discussed at the hearing, that subsequent decision is not in review in this matter before the Tribunal.

DECISION

The decision under review is set aside and substitutes a new decision that, in respect of [Child 1]:

·     The care percentage determination of 51% to Ms Beaton is revoked from 10 March 2022 and an interim care determination of 51% applies from 11 March 2022 to 7 April 2022.  A new care percentage determination of 0% applies to Ms Beaton with effect from 8 April 2022; and

·     The care percentage determination of 49% to Mr Massey is revoked from 10 March 2022 and an interim care determination of 49% applies from 11 March 2022 to 7 April 2022.  A new care percentage determination of 100% applies to Mr Massey with effect from 8 April 2022.