Oughtred and Oughtred (Child support)

Oughtred and Oughtred (Child support) [2021] AATA 2290 (13 May 2021)

DIVISION:Social Services & Child Support Division
REVIEW NUMBERS:  2021/BC020840 and 2021/BC020869
APPLICANT:  Miss Oughtred
OTHER PARTIES:  Child Support Registrar
Mr Oughtred

TRIBUNAL:Member A Byers
DECISION DATE: 13 May 2021
DECISION:

The Tribunal sets aside the decisions under review relating to original decisions made on 22 September 2020 and 12 October 2020 and substitutes the decision that, from 28 June 2020, Mr Oughtred has 0% and Miss Oughtred 100% of [Child 1’s] care for child support purposes.

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 by parent with reduced care – no reasonable action taken - 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

Mr Oughtred and Miss Oughtred are the parents of [Child 1] born November 2003. This matter concerns [Child 1’s] care following a Federal Circuit Court (FCC) order of [June] 2020.
The FCC order provided that [Child 1] was to live with each parent on a week about basis. It is common ground that [Child 1] has not resided with Mr Oughtred since 28 June 2020 and accordingly that the court order was not followed.
Prior to the court order, the care arrangement in place for child support purposes was (also) that each parent had 50% care. This resulted from a decision by Member Buxton of this Tribunal, dated 11 August 2020.
On 15 July 2020 Miss Oughtred is recorded as informing the Child Support Agency (CSA) that she had 70% of [Child 1’s] care from 4 June 2020 and 100% care from 28 June 2020. The CSA decided on 18 September 2020 that there was no change of care on 4 June 2020 for child support purposes.
On 22 September 2020 the CSA made an interim care decision whereby each party was taken to have 50% of [Child 1’s] care pursuant to the court order for a period of 52 weeks from 19 June 2020.
Miss Oughtred is recorded as stating on 11 October 2020 that she had 100% of [Child 1’s] care from 1 September 2020. On 12 October 2020 the CSA decided that the interim care decision was to remain in place.
A CSA file note of 15 October 2020 indicates Miss Oughtred objected to the interim care decision of 22 September 2020. However, following a query from CSA, Miss Oughtred is recorded as saying she was objecting to all care decisions from June 2020.
On 18 February 2021 an objections officer considered all three matters, although it seems the CSA’s decision of 18 September 2020 was mischaracterised as a decision that there was not a change of care on 1 July 2020 whereby Miss Oughtred had 90% and Mr Oughtred 10% of [Child 1’s] care. The objections officer purported to disallow Miss Oughtred’s objections, although the start date of the interim period in the CSA’s decision of 22 September 2020 was shifted to 28 June 2020.
Miss Oughtred sought review by the Tribunal on 19 February 2021 and the matter was heard on 6 May 2021. The parties appeared by conference telephone and both provided sworn evidence.

10. Miss Oughtred clarified at the hearing that she was not seeking a review of the CSA’s decision of 18 September 2020. Miss Oughtred’s review application concerns the CSA’s decision of 22 September 2020, as varied by the objections officer, that an interim period applies from 28 June 2020. This essentially renders the CSA’s decision of 15 October 2020 nugatory, as it simply adopted the decision of 22 September 2020.

11. Prior to the hearing the CSA provided the ‘Section 37(1) Statement and Documents’ comprising folios 1 to 365 (marked Exhibit 1). Miss Oughtred also supplied documentation totalling 38 pages which is admitted as Exhibit A.

12. At the hearing I asked both parties to submit documentation in their possession which might shed further light on the action Mr Oughtred took to enforce the court order of [June] 2020. Miss Oughtred supplied documentation which is not admitted as it is not what was requested. For the same reason I have excluded all but nine pages of the material Mr Oughtred supplied. The nine included pages are admitted as Exhibit B.

13. The parties were also provided an opportunity to make written submissions within three working days that directly related to the post-hearing material admitted. Miss Oughtred responded on 12 May 2021 and her submissions (with redactions for irrelevance) will be sent to each party with this decision. As no new issues emerged from these submissions, I am satisfied procedural fairness does not require hearing further from the parties.

CONSIDERATION

14. 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.

15. A revocation cannot be made under section 54F if section 54G applies. Section 54G applies where a parent who has at least regular care under a determination ceases to have at least that care despite the other parent making the child available and the other parent informs the CSA within a reasonable period of the change.[2]

[2] Care determinations can also be revoked under section 54H. However, this provision has no present relevance.

16. Section 51 applies where a person with reduced (actual) care has taken reasonable action to ensure compliance with a care arrangement (e.g., a court order). This provision requires a decision-maker to make two care percentage determinations. The first, under subsection 51(3), is the care percentage that the person should have had under the court order and the second, under subsection (4), is the actual care percentage.

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

18. An interim period relating to a court order is defined in section 53A. As far as is relevant, the interim period commences on the day the care (under the court order) changed and continues for a maximum of 52 weeks from when the order took effect. An interim period can be shortened if there are special circumstances concerning the child and will stop if (amongst other things) the parent with reduced care ceases taking reasonable action under section 51.

19. What amounts to special circumstances and reasonable action is not defined in the Act. However, policy guidance is found 2.2.4 of the Child Support Guide (the Guide) and I accept this policy accurately reflects the matters to be considered.

20. According to the Guide, special circumstances are those which caused the change in care and which would involve 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.

21. There is no suggestion in the present matter that special circumstances of the kind outlined above are relevant and I find accordingly. As to what amounts to taking reasonable action to ensure compliance with a court order, the Guide provides:

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.

22. Apart from attempts to negotiate with the other parent, these actions have in common the involvement of a recognised body, legal representative or authority able to bring about, or institute formal proceedings for, compliance with a court order. If a parent engages in action with a person, institution or authority that has no role or involvement in this regard, the action is not reasonable for the purposes of section 51.

Was there a change of care?

23. As indicated, it is not in dispute that a change of care occurred on 28 June 2020 whereby Miss Oughtred had 100% and Mr Oughtred 0% of [Child 1’s] care. Prior to this date, the arrangement was (as decided by Member Buxton) that the parties had equal shared care.[3]

[3] Member Buxton’s decision entails that the prior court order of [August] 2018 was not being followed. This order was said to give Miss Oughtred 35% and Mr Oughtred 65% care.

24. Thus, the care from 28 June 2020 for child support purposes is the actual care in place unless an interim period applies. If an interim period applies, the equal share care arrangement under the FCC order applies for a maximum of 52 weeks from 19 June 2020.[4] Whether an interim period applies depends on whether Mr Oughtred was taking reasonable action to ensure compliance with the court order.

[4] As it turned out the FCC made a new care order [in] December 2020 whereby the parents consented to a care arrangement based on which parent [Child 1] chose to live with. Thus, the interim period being considered here could not extend beyond this date.

Did Mr Oughtred take reasonable action to ensure compliance with the court order of [June] 2020?

25. The parties’ relationship and capacity to resolve matters between themselves had significantly deteriorated long before the order of [June] 2020. In this context I accept it would have been pointless for Mr Oughtred to attempt serious negotiations with Miss Oughtred regarding compliance with the order. Miss Oughtred’s view (as expressed at the hearing) is that [Child 1] did not want to live with Mr Oughtred. Mr Oughtred’s view is that [Child 1] had no problem residing with him but did not do so due to (what he sees as) Miss Oughtred’s manipulative behaviour.

26. Mr Oughtred also did not, as an alternative, make an appointment with or attend a dispute resolution service in relation to the court order. Nor did Mr Oughtred seek relevant legal advice. As requested, Mr Oughtred supplied an email of 9 November 2020 from his former legal representative, [named]. However, this concerned a forthcoming court appearance and not the court order.

27. Mr Oughtred also did not lodge a contravention order with the FCC. I note that Mr Oughtred did file an affidavit with the FCC on 10 July 2020. However, this was directed at an alleged failure by Miss Oughtred to comply with the earlier FCC order of [August] 2018 and was filed before the FCC released the order of [June] 2020 (on 30 July 2020). In any event, the affidavit did not comply with the requirements for a recovery application and was evidently not treated as such by the court.[5]

[5] As to the requirements, see align="left">28. In the court proceedings relating to the order of [June] 2020 (and in prior proceedings), [Child 1] was represented by a court-appointed independent children’s lawyer (ICL), [Lawyer A]. The FCC sets out the role of an ICL as follows:

What is the role of an ICL?

ICL’s are obliged to consider the views of the child, but ultimately provide their own, independent perspective about what arrangements or decisions are in the child’s best interests.
Their main roles include:
·   arranging for necessary evidence, including expert evidence, to be obtained and put before the court
·   facilitating the participation of the child in the proceedings in a manner which reflects the age and maturity of the child and the nature of the case
·   acting as an honest broker between the child and the parents and facilitating settlement negotiations where appropriate.

29. Mr Oughtred emailed [Lawyer A] on 14 July 2020 to say that Miss Oughtred had not returned [Child 1] to him for the second half of the school holidays (as required by the court order of [August] 2018). [Lawyer A] responded on the same day advising the courts cannot put consequences in place for alleged breaches of orders without a contravention (or contempt) application. Mr Oughtred’s response indicated he was not impressed with this advice.

30. On 1 August 2020 (following the release of the order of [June] 2020) [Lawyer A] emailed the parties enquiring whether the terms of the order were being followed. Mr Oughtred’s response was one of frustration regarding the perceived inability of both the court and the ICL to have Miss Oughtred comply with the order. Miss Oughtred said she responded to the ICL, although I am satisfied this is incorrect. In this regard, Miss Oughtred is evidently unable to provide a copy of her response and [Lawyer A] has indicated none was received.

31. In any event, I do not consider anything hinges on [Lawyer A’s] role for present purposes. [Lawyer A’s] role is to act on [Child 1’s] behalf and, as she indicated to Mr Oughtred, her role was not to assist him to oblige compliance with the court order. That required the lodgment of a contravention (or contempt) application. I am satisfied that, as the ICL role is essentially to represent a child involved in court proceedings, Mr Oughtred’s minimal contact with [Lawyer A] does not amount to reasonable action in the terms of section 51.

32. The order of [June] 2020 was an interim order with Howard J setting down a final hearing for [November] 2020. Mr Oughtred’s position is essentially that there was no point initiating recovery proceedings because (in his experience) by the time the court got around to considering the matter, the final hearing would already be over. Ultimately, therefore, Mr Oughtred took no action to enforce compliance with the order.

33. Section 51 requires a parent with reduced care to take action. That is, the parent must take positive, directed steps. In Mr Oughtred’s case, I am satisfied that waiting for a further court care intervention due some four months after the order of [June] 2020 was released cannot amount to action, let alone reasonable action.

34. I am satisfied accordingly that Mr Oughtred did not take reasonable action to enforce the court order of [June] 2020 and therefore that section 51 does not apply. It follows there is no interim period in this case.

What is the date of effect of the change of care for child support purposes?

35. As indicated, implementation of new care percentage determinations requires the revocation of care percentage determinations already in place under sections 49 and/or 50. In the present matter, revocations of both parent’s care are to be made in accordance with section 54F unless section 54G applies.

36. As noted, section 54G applies where one parent’s care is reduced to less than regular (14%) care despite the other parent making the child available and the other parent informs the CSA of the change within a reasonable period. The date of effect of the revocations in this instance is the day immediately before the change of care day.

37. As far as is presently relevant, section 54F applies where sections 51 and 54G do not apply and the change of care notified by a parent would result in the cost percentages for the child changing. The date of effect of the revocations under section 54F is also the day immediately before the change of care day if the CSA is notified within 28 days of the change.

38. As Miss Oughtred advised the CSA on 15 July 2020 of the change of care on 28 June 2020, the date of effect of revocations of the care percentage determinations then in place would be 27 June 2020 irrespective of whether section 54F or 54G apply. In the present matter I find that section 54G applies. Although Mr Oughtred might dispute that Miss Oughtred made [Child 1] available to him, as indicated it would be a pyrrhic exercise to consider this in detail as the same result would obtain under section 54F.

Conclusion

39. The care percentage determinations in place as at 28 June 2020 are revoked under section 49 in Mr Oughtred’s case and section 50 in Miss Oughtred’s case and the care determinations made that Mr Oughtred has 0% and Miss Oughtred 100% of [Child 1’s] care from 28 June 2020. The objections officer’s decision addressing the CSA’s original decisions of 22 September 2020 and 12 October 2020 will therefore be set aside.

DECISION

Key Legal Topics

Areas of Law

Family Law
Administrative Law

Legal Concepts

Appeal
Jurisdiction
Procedural Fairness
Statutory Construction
Remedies

[2021] AATA 2290

13 May 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies