Penland and Lee (Child support)

Penland and Lee (Child support) [2022] AATA 2118 (12 May 2022)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/MC023356
APPLICANT:  Mr Penland
OTHER PARTIES:  Child Support Registrar
Ms Lee

TRIBUNAL:Member M Martellotta
DECISION DATE: 12 May 2022
DECISION:

The decision under review is set aside and substituted with a new decision that as no interim care determination is to apply, the existing care percentage of 100% to Ms Lee and 0% to Mr Penland is revoked from 17 December 2021. This means that the new care determination of 100% to Mr Penland and 0% to Ms Lee takes effect from 18 December 2021.

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 – no interim period to apply - special circumstances exist – 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 removed 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 Penland and Ms Lee are the parents of three children who are children of an administrative assessment for child support. This review concerns the level of care recorded by Services Australia (the Agency) for those children.
The parents have had an active child support assessment in place since 27 December 2016. The level of care previously recorded was that the children were in the mother’s 100% care as from 3 September 2018. This was in accordance with final Court orders made on 3 September 2018.
On 7 January 2022 the mother advised the Agency that the children were no longer in her care and were in the 100% care of their father as from 18 December 2021. The change in care was confirmed by the father.
On 7 January 2022 the Agency decided to record a change in care namely that the children were in the father’s 100% care as from 18 December 2021. Ms Lee lodged an objection to the decision on 20 January 2022 and on 11 February 2022 the Agency allowed the objection.
The new care decision made was that an interim care period was to be made so that the mother is assessed as having 100% care from 18 December 2021 to 18 June 2022.
Mr Penland lodged his application for review with the tribunal on 23 February 2022. On 12 May 2022 the tribunal conducted a telephone hearing. Both parents attended and gave evidence on affirmation.
The Agency provided a total of 239 pages of documents.

ISSUES

The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).
Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and in the ordinary course follow it.[1]
[1] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The main issues which arise in this case are:
· Should the existing care determination be revoked; and if so, from when? And

Should a new determination of care percentage be made; and if so, from what date?

Issue 1 – Should the existing care determination be revoked; and if so from when?

Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child. Section 51 deals with situations in which the care arrangement is not being complied with.
Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.
Both parents agree that since 18 December 2021 the children have not been in the mother’s care and have been in the father’s care. Mr Penland says that the decision to apply an interim care determination is the wrong decision. Ms Lee says she agrees with the objection decision.
The following facts are not in issue and the tribunal finds as follows:
a)    The children had been in the mother’s 100% care pursuant to court orders made in September 2018.
b)    On 18 December 2021 there was an incident between Ms Lee and the eldest daughter. Ms Lee left the premises and the children contacted their father and asked him to collect them.
c)    The children requested to stay with their father.
d)    The eldest child attended at a local police station and made a complaint against the mother. The Department of Child Services was contacted, and they spoke to Ms Lee and Mr Penland. Child Services advised that they would not be taking any action as they saw the matter as a parenting issue.
e)    An interim Family Violence Intervention Order was made on 29 December 2021 naming Ms Lee as the respondent and the eldest daughter as the protected person. That order directed Ms Lee to not commit family violence, intentionally damage property belonging to her daughter or get another person to do anything she is restrained from doing on her behalf.
f)     Following a hearing of the intervention order, on 31 March 2022 final orders in the same terms were made with effect until March 2023.
g)    Ms Lee lodged an application in the Family Court on 19 January 2022 for recovery orders. Following a hearing of that application and taking submissions from the parties and the children’s independent lawyer, the Family Court made interim consent orders dated 10 March 2022 that the children are to live with their father and that the children spend time with the mother (not overnight care).
h)    These orders are currently being followed by the parties.
Mr Penland told the tribunal that:
a)    When he received the call from his children on 18 December 2021 they were distressed and said that they no longer wanted to live with their mother due to a number of issues.
b)    At the time he was living in a share house, so he arranged for his children to stay with his brother (their uncle) and sister-in-law. He has since February 2022 moved into a three-bedroom property and lives there with the children.
c)    Following the incident he encouraged his daughters to return to live with their mother but they refused to return.
d)    He told the tribunal that he was unable to force his daughters to do something that they did not want to do and so he had no choice other than to rent a property so that they could stay with him.
e)    He wants his daughters to resume their relationship with their mother however at the moment this is not something that his daughters desire.
f)     He has been responsible for the children since they have come into his care on 18 December 2021 and this care arrangement has now been enforced by the court orders.
Ms Lee told the tribunal that:
a)    There have been some behavioural issues with her eldest daughter and following a confrontation on 18 December 2021 she decided to leave the house to let things cool down, she did not abandon the children.
b)    When she returned home, she found that they had left and she later received a call from the police and child services.
c)    Child services told her that the girls could return to her care.
d)    She asked Mr Penland to return the girls to her care but he did not do so and so she applied for recovery orders.
e)    She acknowledges that she and her daughters have relationship issues and she would eventually like for them to return to her care, but this will take some time to get to that position. She has been attending court ordered parenting courses.
The evidence of the parties is supported by documents provided by the Agency which includes:
a)    Copy of the interim violence order issued dated 29 December 2021.
b)    Copy of Ms Lee’s recovery application.
c)    Family Court consent orders dated 10 March 2022.
In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change of care arrangement. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.
The first issue concerns the revocation of the existing care determination that was in place. The tribunal first is required to consider whether the existing determination is to be revoked under section 54G of the Act. This provision applies where:
·     a parent was to have at least regular care of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;
·     the other parent must have had their existing percentage of care determined under section 50; and
·     the other parent must notify the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.
In this case the tribunal concluded that the existing care cannot be revoked under this section but that section 54F of the Act applies. This requires that:
·     the existing percentage of care has been determined under either section 49 or 50;
·     one of the conditions in paragraphs 54F(2)(a–c) apply;
·     the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the determination;
·     if a new percentage were to be determined under either section 49 or 50, it would change the person’s cost percentage; and
·     section 54G does not apply.
In this matter the tribunal is satisfied that the criteria in section 54F are met; this is because there was an existing care determination pursuant to section 50 of the Act; section 51 did not have application as there was not an interim period in place, the notification of change in care was that actual care was not corresponding with care as determined, the change in care would affect the relevant cost percentage[2] and section 54G does not apply.
[2] The change in care from 20% to 0% results in the cost percentage changing from 24% to nil.
Revocation takes effect pursuant to subsection 54F(3) of the Act which is determined by when the Agency was advised of the change in care. As notification of the change in care occurred within 28 days of the change in care event then the revocation date in this matter is the day before the change of care day.
The tribunal concludes that in this case revocation of the existing care determination is 17 December 2021.

Issue 2 – Should a new determination of care percentage be made; and if so, from what date?

Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period.
In this matter the issue arises of whether an interim care determination is to be made. Section 51 of the Act provides for situations where a person with reduced care is taking reasonable action to ensure that the care arrangement is complied with. Reasonable action is not defined in the legislation and explanatory memorandum of the provisions notes: ‘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’.[3]
[3] Op cit.
In this case Ms Lee was the parent with reduced care. It is apparent from text messages between the parties that she at various times requested that the children return to her care. It is also apparent from Mr Penland’s response that the children were telling him that they did not want to return to their mother. The evidence presented to the tribunal shows that Ms Lee sought legal advice and filed proceedings in the Family Court and that she took this action in February 2022 when it became apparent that the children were not returning to her care. The tribunal is satisfied that Ms Lee took reasonable action to ensure that the original care arrangements were complied with.
Where it is determined that reasonable action has been taken then two percentages of care are to be determined, however, the legislation does provide the decision maker with the discretion to determine that a single percentage of care should apply despite a parent taking reasonable action if satisfied that special circumstances exist in relation to the child.
Subsection 51(5) of the Act provides a discretion to not apply an interim period and to instead base the determination upon actual care that is occurring. According to the Guide such circumstances can include matters that relate to the child directly or to another individual. The tribunal is not limited to consideration of examples provided in the Guide.[4]
[4] 2.2.4 of the Guide.
In this matter, the tribunal formed the view that the cause or reason for the original care arrangements ceasing arose from an incident that took place on 18 December 2021 between the mother and the eldest child. This subsequently resulted in a violence intervention order being issued naming the eldest child as the protected person and the mother as the respondent. Whilst the terms of the order did not prevent the children returning to the care of the mother, the tribunal is satisfied on the evidence that in this case the reason for the children not returning to the mother’s care was not due to Mr Penland’s refusal but rather it was because the children did not want to return.
The children’s position appears to have been confirmed in the subsequent Family Court proceedings at which they were independently represented. Those proceedings have resulted in interim orders that the children live with their father and that the mother have at this point limited contact and undertake parenting sessions.
It is apparent that both parents care for and love their children and want what is best for them. Ms Lee in her evidence spoke about the pain of the separation but her recognition that she and the children need time to rebuild their relationship. Mr Penland also provided cogent evidence that he at no point sought to influence or prevent the children from returning to their mother, but it was their refusal which resulted in them not returning.
The tribunal concluded that on the particular facts of this matter there are special circumstances which warrant the non-application of an interim period and on that basis decided that the assessment should reflect the care percentage based on the actual care that occurred.
The tribunal has concluded that an interim care determination is not to be applied. The tribunal concluded that the new care determination is to be based on actual care pursuant to sections 49 and 50 of the Act. In this case the uncontested evidence is that from 18 December 2021 Mr Penland had 100% care and Ms Lee had 0% care.
Where (as in this case) an existing care determination has been revoked, a new determination of care where a person has had or is likely to have no pattern of care is provided for under paragraph 49(1)(b) of the Act. In this case Ms Lee has had nil nights of care since 18 December 2021. Where a person will have a pattern of care the new care determination is made pursuant to paragraph 50(1)(b) of the Act; as noted Mr Penland has since 18 December 2021 had 100% care.

35. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations. In this case the existing care percentage of 100% to Ms Lee and 0% to Mr Penland is revoked from 17 December 2021. This means that the new care determination of 100% to Mr Penland and 0% to Ms Lee takes effect from 18 December 2021.
DECISION

[2022] AATA 2118

12 May 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Judicial Review

Procedural Fairness