McKeand and Meale (Child support)

[2022] AATA 4679

McKeand and Meale (Child support) [2022] AATA 4679 (17 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/SC024353

APPLICANT:  Ms McKeand

OTHER PARTIES:  Child Support Registrar

Mr Meale

TRIBUNAL:Member A Byers

DECISION DATE:  17 November 2022

DECISION:

The Tribunal sets aside the decision under review and substitutes the decision that there was a change of care on 16 January 2022 whereby Ms McKeand had 100% and Mr Meale had 0% of [Child 1]’s care.  The date of notification of this change for child support purposes is 15 February 2022.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – no interim period applied – existing percentage of care determinations revoked and new determinations made – 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. Ms McKeand and Mr Meale are the parents of [Child 1] (born September 2007) and [Child 2].  This matter only concerns [Child 1]’s care in the context of a parenting plan the parties signed on 1 February 2018 and said to take effect from this date.

2. The parenting plan for present purposes provides for the parties to have the equal care of [Child 1] and it is common ground the parenting plan was being followed prior to 16 January 2022.  Accordingly, the Child Support Agency’s (CSA) care assessment in place was that each party had 50% care.

3. It is also common ground that [Child 1] did not reside with Mr Meale from 16 January to 17 March 2022 inclusive.  Nevertheless, this is the period relevant to this review.  The parties arranged for [Child 1] to go into Mr Meale’s sole care after 17 March 2022 and there was a further change in May 2022 where equal care of [Child 1] resumed.  These changes do not form part of the present review.

4. On 15 February 2022 Ms McKeand is recorded as informing the CSA that [Child 1] had elected not to return to Mr Meale’s overnight care on 16 January 2022 (as would ordinarily have occurred under the parenting plan).  Ms McKeand indicated [Child 1]’s reasons related to his mental and physical health issues. 

5. As noted, Mr Meale agrees he has not had overnight care of [Child 1] from 16 January to 17 March 2022 inclusive.  During contact with the CSA on 25 February 2022, Mr Meale is recorded as indicating that, since receiving an email from Ms McKeand on 16 January 2022 that [Child 1] would not be returning to his care, he had been in contact with [Child 1]’s school, [Child 1]’s treating doctor and child protection services.

6. On 28 May 2022 the CSA made an interim care decision whereby each party was taken to have 50% of [Child 1]’s care pursuant to the parenting plan from 16 January to 17 March 2022 inclusive. 

7. According to CSA records, Ms McKeand objected to the interim care decision on 30 May 2022 and on 22 July 2022 an objections officer disallowed the objection.

8. Ms McKeand sought review by the Tribunal on 29 July 2022 and the matter was heard in Brisbane on 17 November 2022.  The parties appeared by conference telephone and both provided sworn evidence. 

9. Prior to the hearing the CSA provided the “Section 37(1) Statement and Documents” comprising folios 1 to 786 (marked Exhibit 1).   

CONSIDERATION

10. The division of care of an eligible child is regulated by Division 4 of Part 5 of the Child Support (Assessment) Act 1989.[1]  Section 49 applies where a parent has no pattern of care of a child and section 50 where there is a pattern of care.  Before determinations under section 49 or 50 can be made, the care percentage determinations in place must be revoked.  However, a revocation under section 54F can occur only if the CSA was to determine (under section 49 or 50) a different percentage of care for a specified care period and the person’s cost percentage would change as a result.

[1]All further legislative references are to this Act unless otherwise stated.

11.  Section 51 applies where a person with reduced (actual) care has taken reasonable action to ensure compliance with a care arrangement (e.g., a parenting plan).  Unless special circumstances in relation to the child are present, this provision requires a decision-maker to specify two care percentages.  The first, under subsection 51(3), is the care percentage that the person should have had under the parenting plan and the second, under subsection 51(4), is the actual care percentage.   Where there are special circumstances, subsection 51(5) requires only one care percentage to be specified (which will ordinarily be the actual care occurring).

12.  The effect of section 54C (for present purposes) is that, if new care percentage determinations are made under section 49 or 50 as to the actual care taking place, for child support purposes the care arrangement specified under a breached parenting plan stays in place during an interim period and the actual care occurring applies thereafter.

13.  An interim period relating to a parenting plan is defined in section 53A.  As far as is relevant, subsection 53A(1) provides:

53A  Meaning of interim period

(1)  An interim period for a determination under section 49 or 50 of a responsible person’s percentage of care for a child is (subject to subsection (4)) the period:

(a)  beginning on:

(i)  the responsible person’s change of care day, unless subsection (2) applies; … and

(b)  ending:

(i)  as set out in the applicable item of the following table, unless subparagraph (ii), (iii) or (iv) applies; or

(ii)  if the person referred to in paragraph 51(1)(d) who has reduced care of the child ceases to take reasonable action to ensure that the care arrangement is complied with—on the day the person so ceases; or

(iii)  if a care arrangement in relation to the child ceases to apply on a day—on that day; or

(iv)  if a care arrangement in relation to the child begins to apply on a day—on the day before that day.

14.  Item 5 in the table in subsection 53A(1) applies where a change of care occurs more than 48 weeks after the parenting plan takes effect and special circumstances in relation to the child are not present.  Where neither parent instigates family dispute resolution, the interim period is 14 weeks starting on the change of care day (providing the parent with reduced care continuously takes reasonable action). 

15.  In the present matter the change of care day (16 January 2022) occurred more than 48 weeks after the parenting plan took effect (1 February 2018).  An interim period (should it apply) commences on 16 January 2022 and continues until the change of care immediately after 17 March 2022.  From 18 March 2022 a care change took effect, whereby Ms McKeand had 0% and Mr Meale had 100% of [Child 1]’s care.

16.  If there are special circumstances in relation to [Child 1] at the start of the change of care, Ms McKeand will have 100% care of [Child 1] for child support purposes from 16 January 2022.  If special circumstances occurred later (but before 18 March 2022), the interim period would end on that date.

Special circumstances

17.  What amounts to special circumstances is not defined in the Act.  However, policy guidance is found in 2.2.4 of the Child Support Guide (the Guide).  Although the Guide focusses on the situation at the time of the change of care itself, I accept this policy also accurately reflects the matters to be considered where special circumstances occur subsequently.

18.  According to the Guide, special circumstances are those involving a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued.  Examples provided include violence towards the child, exposing the child to family violence, directly involving the child in a criminal act, exposing the child to substance abuse and neglecting the child’s basic needs.

19.  A memorandum of 4 April 2022 from general practitioner, [Dr A], indicates he started treating [Child 1] for anxiety and depression on 14 February 2022.  [Child 1] also suffers from lymphedema and appears at one point to have experienced a rash.  [Child 1]’s mental health issues appear related to his physical health issues. 

20.  Ms McKeand does not suggest [Child 1] was in any danger in Mr Meale’s care of the sort characterised in the Guide.  In fact, there is no evidence whatsoever of anything detrimental happening to [Child 1] after he entered Mr Meale’s sole care on 18 March 2022.  To the contrary, Mr Meale’s uncontested evidence is that [Child 1] responded well.

21.  Ms McKeand said [Child 1] did not want to return to Mr Mealecare on 16 January 2022 and I understand this was in her view due to his health issues.  As I understood Ms McKeand, she considers special circumstances existed at this point because Mr Meale would not have taken [Child 1]’s mental health issues seriously. 

22.  In short, in my view there is nothing before me to support Ms McKeand’s assertion that Mr Meale would have dismissed or trivialised [Child 1]’s mental health issues.  To the contrary, the material before me indicates that, once Mr Meale became aware of [Child 1]’s mental health issues after 14 February 2022, he acted as any concerned parent would. 

23.  I am therefore satisfied special circumstances in relation to [Child 1] were not present at any material time.

Did Mr Meale take reasonable action to ensure compliance with the parenting plan?

24.  What amounts to reasonable action to ensure compliance with a parenting plan (or other care arrangement) is also not defined in the Act.  The Guide provides at 2.2.4:

The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. ... 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 both parties and the child.

25.  Importantly, where the parents are the parties to a parenting plan, the action must be directed to ensuring that the other parent complies with the plan.  Thus, in addition to genuine attempts to negotiate with the other parent, the Guide signals that relevant actions would typically involve recognised bodies, legal representatives or authorities able to bring about, or institute formal proceedings for, compliance by the other parent with a parenting plan.  If a parent engages in action with a person, institution or authority that has no role or involvement in this regard, the action (whilst perhaps reasonable per se) is not reasonable for the purposes of sections 51 and 53A. 

26.  As indicated, it is not in dispute that a change of care occurred on 16 January 2022 whereby Ms McKeand had 100% and Mr Meale 0% of [Child 1]’s care.  This care pattern was in breach of the parties’ parenting plan.

27.  Accordingly, the care from 16 January 2022 for child support purposes is the actual care in place unless an interim period applies.  If an interim period applies, the equal shared care arrangement under the parenting plan applies (in this matter) until the earlier of 17 March 2022 and the date Mr Meale ceased taking reasonable action to ensure Ms McKeand’s compliance with the parenting plan.   

28.  The present matter involves a young person of 14 years (at the relevant time) who it seems elected not to live with his father.  It appears both parties accept this is the case, although they differ as to the reasons. 

29.  As noted, Ms McKeand’s evidence is that [Child 1] had health issues and did not want to return to Mr Meale’s care for this reason.  On the other hand, Mr Meale believes [Child 1]’s motives involved discipline relating to his gaming device and school attendance which Ms McKeand does not impose.     

30.  Ms McKeand said she was not at any point withholding [Child 1] from Mr Meale’s care but, mindful of [Child 1]’s mental health issues, she did not force him to see Mr Meale.  On its face, Ms McKeand’s email response to Mr Meale on 20 January 2022 bears this out.  Replying to several requests from Mr Meale about [Child 1] returning to his care, Ms McKeand indicated that, if he wanted both boys in his care, he could “arrange to pick them up”.  Although Mr Meale suggested Ms McKeand was exercising “coercive control” over [Child 1], the evidence in any event from both parties suggests the reluctance to return to Mr Meale’s care was [Child 1]’s choice.   

31.  Mr Meale listed several avenues he pursued after [Child 1] did not return to his care.  This included contact with the area’s director of education, consulting a solicitor, contacting child protection services and emailing or texting Ms McKeand.  

32.  Whilst it is plainly true that Mr Meale was in regular contact with [Child 1]’s school regarding genuine concerns over his minimal attendance whilst in Ms McKeand’s care, the school is obviously not an authority which could in any way bring about compliance with the parties’ parenting plan.  

33.  On the other hand, consulting a solicitor with a view to taking some form of formal action regarding non-compliance with the parenting plan is plainly reasonable action.  However, Mr Meale said he consulted a solicitor on the separate issues of his rights regarding [Child 1]’s health issues and the possibility of instigating a court order for [Child 1]’s care.  As these concerns were not directed at taking measures to enforce the parenting plan, they do not constitute reasonable action for the purpose of section 51.

34.  Mr Meale indicated he contacted child protection services in early February 2022 with concerns about [Child 1]’s well-being, social isolation and reduced school attendance.  Child protection services apparently took details and gave Mr Meale a reference number but took no further action.  Whilst Mr Meale doubtless contacted this agency as a concerned parent, looked at objectively I do not think his concerns were of a type that would involve the agency in formal action to enforce the parenting plan.  In this regard, there was no suggestion [Child 1] was in any sort of danger in Ms McKeand’s care and, even if he was in danger, any action taken by the agency would have been to override the parenting plan, not enforce it.

35.  The parties have provided copies of numerous texts and emails passing between them in the period being considered.  Much of this traffic involves concerns issues over [Child 1]’s health (including whether Mr Meale was being appropriately informed) and [Child 1]’s reduced sporting activity.  Since it was accepted that it was [Child 1]’s election not to return to Mr Meale’s care, it would have occurred to him that emailing or texting Ms McKeand with enquiries about when [Child 1] was to return to his care were pointless. 

36.  As the Guide indicates, contact with the other parent should involve negotiations in a genuine attempt to ensure compliance with a parenting plan.  My view is that, in the present circumstances, Mr Meale’s emails and texts to Ms McKeand cannot be construed as negotiations of this sort, as genuine attempts to ensure compliance by the other parent presuppose they have instigated the non-compliance and can reinstate compliance. 

37.  Ultimately, therefore, I do not consider Mr Meale took any action to enforce compliance with the parties’ parenting plan that satisfies the requirements of section 51.  I am satisfied accordingly that Mr Meale did not take reasonable action to enforce their parenting plan and therefore that section 51 does not apply.  It follows there is no interim period in this case. 

Date of effect for child support purposes

38.  Accordingly, the actual care occurring from 16 January 2022 applies whereby Ms McKeand had 100% and Mr Meale 0% of [Child 1]’s care.  For formal purposes, the relevant care period is from 16 January to 17 March 2022.    

39.  Revocations under section 54F of the care decisions previously in place are therefore required to give effect to these care percentage decisions.  As Ms McKeand did not notify the CSA of the care change within 28 days, the date of effect of the revocations of the care percentage decisions in place is set by paragraph 54F(3)(b).  In Ms McKeand’s case, the revocation takes effect on 14 February 2022 (the day before she notified) and in Mr Meale’s case it takes effect on 15 January 2022 (the day before the change). 

DECISION

The Tribunal sets aside the decision under review and substitutes the decision that there was a change of care on 16 January 2022 whereby Ms McKeand had 100% and Mr Meale had 0% of [Child 1]’s care.  The date of notification of this change for child support purposes is 15 February 2022.