Randel and Randel (Child support)

[2023] AATA 2139

Randel and Randel (Child support) [2023] AATA 2139 (1 June 2023)

DIVISION:     Social Services & Child Support Division

REVIEW NUMBER:  2022/BC025109

APPLICANT:  Mr Randel

OTHER PARTIES:  Child Support Registrar

Ms Randel

TRIBUNAL:Senior Member S De Bono

DECISION DATE:  1 June 2023

DECISION:

The Tribunal sets aside the decision under review and, in substitution, varies the decision of the objections officer and determines the interim period ends on 18 November 2022.

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 – reasonable action taken – 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. Ms Randel and Mr Randel are the parents of [Child 1] and [Child 2]. This application for review concerns the care of [Child 1]. The care recorded for [Child 1] with Services Australia (Child Support) which applied from 12 November 2021 was based on court orders made [in] August 2021 that stated [Child 1] was in Ms Randel’s 62% care and Mr Randel’s 38% care. There has been a registered child support assessment in place from 1 June 2021. Mr Randel is the parent liable to pay child support.

2. On 9 September 2022 Ms Randel notified Child Support that there had been a change to the pattern of care for [Child 1] and she now had 100% care from 12 August 2022.

3. On 5 October 2022 Child Support made the decision that an interim period applied from 12 August 2022 and ended on 17 November 2022 where the care remained in accordance with the court ordered care of 62% to Ms Randel and 38% to Mr Randel, notwithstanding the actual care of [Child 1] from 12 August 2022, was that she was in Ms Randel’s 100% care. When the interim period ended [Child 1] was recorded as being in Ms Randel’s 100% care from 18 November 2022.

4. On 7 October 2022 Mr Randel lodged an objection to this decision. On 21 November 2022 an objections officer made the decision to disallow Mr Randel’s objection.

5. On 22 November 2022 Mr Randel applied to the Administrative Appeals Tribunal (the Tribunal) for an independent review of this decision. On 1 June 2023 Mr Randel and Ms Randel attended a telephone hearing and gave evidence under affirmation. The Tribunal had before it a bundle of documents (265 pages – referred to as the hearing papers) which had been sent to both parties prior to the hearing. Mr Randel also provided additional documents before the hearing (A1-A71) and Ms Randel also provided additional documents prior to the hearing (B1-B51). Relevant aspects of the material and evidence will be referred to in the Tribunal’s consideration of the issues to be decided.

ISSUES

1. The issues which arise in this case are:

   ·      Should the existing care determination be revoked?

   ·      Should an interim period apply?

   ·      Do special circumstances exist in which the interim period should not apply? If not,

   ·      When should the interim period end?

LAW AND CONSIDERATION

1. The law that applies in this case is the Child Support (Assessment) Act 1989 (the Assessment Act). Also relevant is the Child Support Guide (the Guide) which provides policy and guidelines for the application of the relevant legislation in order to promote consistency and transparency in decision-making. While the Tribunal is not bound by these guidelines it will follow them unless there is a cogent reason to do otherwise as found in Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[1]

   [1] [1979] AATA 179.

2. The Assessment Act sets out the statutory formula for the calculation of child support. The statutory formula takes into account each parent’s adjusted taxable income and the level of care they provide for the child. In particular, the percentage of care used in a child support assessment is used to determine the percentage of the cost of the child that each parent is meeting directly through the care they are providing for that child. A parent or non-parent carer’s percentage of care for a child is calculated based on the care they are likely to provide for the child in the relevant care period.

Issue 1 – Should the existing care determination be revoked?

1. Sections 49 and 50 of the Assessment Act provide that a new determination of percentage of care for a child must be made where an existing determination has been revoked. In this case the Tribunal must first be satisfied that there has been a change in the level of care provided by each parent for the child before a revocation under Subdivision C of Division 4 of Part 5 of the Assessment Act can be considered.

2. Section 49 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Section 50 of the Assessment Act applies, relevantly, if the parent “has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Both sections of the Assessment Act reflect the idea that Child Support makes a point-in-time care decision on the basis of what has happened up until the change in care is notified and what is likely to happen thereafter.

3. [In] August 2021 court orders stipulated that the parents have equal shared parental responsibility for [Child 1] and [Child 2]:

   That the children shall live with the Mother and Father at all times as agreed between the Mother and Father, and failing agreement as follows:

   5(a) From the date of these Orders during the school term as follows:

   (i)From the commencement of these Orders until 12 November 2021, with the Father for each alternate weekend from after school on Friday (or 3:00pm if a non-school day) until start of school Tuesday (or 9:00am if a non-school day).

   (ii)Commencing 12 November 2021 with the Father for each alternate weekend from after school Friday (or 3:00pm if a non-school day) until the start of school on Wednesday (or 9:00am if a non-school day), such time to be contingent on the Father providing to the Mother evidence of his accommodation in an at least three (3) bedroom property.

   (iii)With the Mother the remainder of the time.

   As well as shared care for the holidays as stipulated in the court orders.

4. Mr Randel told the Tribunal that the care for [Child 1] was taking place in accordance with the court orders until Ms Randel withheld the care of [Child 1] on 12 August 2022.

5. Section 54G of the Assessment Act provides:

   Determination must be revoked if there is less than regular care etc.

   (1) If:

   (a) a responsible person (the first responsible person ) for a child was to have at least regular care of the child during a care period under a determination (the first care determination ) made under section 50; and

   (b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

   (c) a determination of the other responsible person's percentage of care for the child has been made under section 50; and

   (d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

   the Registrar must revoke both determinations.

   Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

6. It is not in dispute that Mr Randel ceased to have regular care of [Child 1] from 12 August 2022 and so generally the existing care percentage of 62% care to Ms Randel and 38% care of [Child 1] to Mr Randel should be revoked.

7. However, in certain circumstances section 51 of the Assessment Act requires a decision maker to make two sets of new care determinations. The first set reflects the pattern of care the parents were ordered to provide, in this case 62% to Ms Randel and 38% to Mr Randel. The second set of care determinations reflects the care that was actually occurring. The first set is referred to as the interim period while the second set is applied after the end of the interim period.

Issue 2 – Should an interim period apply?

1. Section 51 of the Assessment Act applies when a care arrangement in relation to a child is not being complied with. Section 51 of the Assessment Act provides:

   Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1) This section applies if:

   (a) the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and

   (b) a care arrangement applies in relation to the child; and

   (c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

   Note: This section does not apply in certain circumstances: see section 53.

2. In applying an interim period section 53A of the Assessment Act provides the meaning of interim period and states:

   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; or

   (ii) if subsection (2) applies--the day specified in that subsection; 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.

3. The table in section 53A of the Assessment Act describes conditions under which an interim period will end, including where the care arrangement is a court order and there are no special circumstances in relation to the child, then the interim period ends 52 weeks after the court orders first applied. Section 5 describes a ‘maximum interim period’ ending on the later date of the end of the 52 weeks from the date the court orders first applied, or the end of the period of 26 weeks starting on the change of care day.

4. A shorter interim period may apply if other circumstances are met, as specified in the table under section 53A:

   ·      If the interim period is likely to end before the end of the period of 52 weeks from the court orders start date, then the interim period will be a period of 26 weeks starting on the change of care day.

   ·      If the person with increased care begins continuously taking reasonable action to participate in family dispute resolution from the date of the care change, then the interim period will be a period of 14 weeks, if:

   othe 14-week period ends before the end of the 26-week period referred to above, and

   othe person takes the reasonable action throughout that 14-week period.[2]

   [2] Items 2(b)(i) and (ii) under section 53A of the Assessment Act.

5. Mr Randel submitted that the interim care determination should not end on 17 November 2022. He was of the view that an interim period of either 26 weeks or 52 weeks should apply where the care remained recorded as 38% to him and 62% to Ms Randel.

6. Mr Randel submitted that he continued to take reasonable action to have the court orders complied with. The Assessment Act does not define what reasonable action is but the Guide at 2.2.4 assists in clarifying what taking reasonable action might be and 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. 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.

   Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was not made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F).

7. Mr Randel said he made an application for contravention to the Federal Circuit Court [in] August 2022.[3] He has continued to take reasonable action to have the court orders complied with but he said it takes time to get the relevant court dates for the matters to be resolved. He submitted that Ms Randel has not been forthcoming in agreeing to, or participating in, family dispute resolution and according to him this avenue has broken down. Mr Randel said his lawyers have written to Ms Randel suggesting proposed mediation or a child inclusive mediation and Ms Randel has refused these suggestions. Mr Randel said he has been willing to pay for mediation.[4] Mr Randel said instead Ms Randel agreed to mediation which would not incur a cost and has a waiting list. Mr Randel said this means that the process of negotiating care for [Child 1] has been delayed by Ms Randel.

   [3] Page 16 of the hearing papers.

   [4] Pages A32–A34 of Mr Randel’s submissions.

8. On 9 August 2022 Ms Randel’s solicitors wrote to Mr Randel’s solicitors asking Mr Randel to comply in full with the court orders of [August] 2021 which stipulate that “the parents take both children to their activities this coming weekend and all times he has the children; [he] will comply with the court orders to ensure both children can contact their mother as they choose, and the mother can contact them; [he] will not use aggressive and abusive language towards the children”.[5] [In] October 2022 Ms Randel filed an affidavit in the Federal Circuit Court explaining the circumstances in which [Child 1] ceased to be in Mr Randel’s care.[6] Ms Randel disagreed that she was not agreeable to mediation and said that it was Mr Randel who was not agreeable to mediation.[7] Ms Randel said she completed an intake interview with the Family Relationship Centre for mediation, but it was determined “that it would be inappropriate to continue with family dispute resolution” while a court process was ongoing.[8]

   [5] Pages 101–102 of the hearing papers.

   [6] Pages 81–91 of the hearing papers.

   [7] A41.

   [8] A41.

9. Ms Randel said she complied with the court orders of 17 November 2022 (which were not before the Tribunal) to participate in mediation, but she said this was not deemed to be appropriate. Ms Randel said [Child 1] has not wanted to stay with Mr Randel and in her view there are special circumstances which should be taken into account in which an interim period should not apply.[9]

   [9] A45.

Issue 3 – Do special circumstances exist in which an interim period should not apply?

1. Subsection 51(5) of the Assessment Act provides:

   (5) If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

2. Subsection 51(6) of the Assessment Act provides:

   (6) The single percentage of care is to be:

   (a) for a determination under section 49--0%; or

   (b) for a determination under section 50--a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

3. What constitutes special circumstances is not defined in the Assessment Act. But the Guide at 2.2.4 assists in forming a view about whether special circumstances exists where an interim period should not apply. The Guide provides the following:

   The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. 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 for 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.

4. Ms Randel said there had been an intervention order (DV25) taken out by the police but this was in April 2022 which was before the period in which [Child 1] did not return to Mr Randel’s care and is not relevant to the period under review. She also said that the wishes and concerns of [Child 1] should be taken into account. Which includes consideration of the incident at [Child 1’s] [sport 1] club outlined in the incident report from the [named sport 1] club, the support letters from the incident at the [sport 1] club as well as the Child Impact Report dated 17 February 2023 and the impact Ms Randel said this has had on [Child 1].[10]

   [10] Pages 97–98 and 212–214 of the hearing papers and B14.

5. Mr Randel said special circumstances should not exist because he still has the court ordered care of [Child 2] and this is indicative of the view that he is not a risk to either of the children.

6. In considering whether an interim period should apply the Tribunal had regard to the Guide and found that the Guide was not inconsistent with the Assessment Act. The Guide provides that the Registrar (and in this case the Tribunal on review):

   … 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)

   ·violence towards the person with increased care

   ·directly involving the child in a criminal act

   ·exposing the child to alcohol, drugs or substance abuse

   ·substantially failing to comply with legal schooling requirements, and/or

   ·neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

   The Guide further provides that suitable evidence may include (but is not limited to):

   ·a police report detailing violent behaviour towards a child or the person with increased care

   ·an intervention order preventing contact with the child or person with increased care, or

   ·statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

1. The Tribunal is satisfied that special circumstances do not exist in which an interim period should not apply. This finding does not diminish the impact of the events at the [sport 1] club experienced by [Child 1], as assessed by [Official A] in the Child Impact Report. But there was no evidence before the Tribunal that could reasonably be relied upon to determine that an interim period should not apply.

Issue 4 – When should the interim period end?

1. The Tribunal has accepted that Ms Randel was not complying with the court ordered care, dated [in] August 2021, and that an interim period should apply where the care remained recorded as 62% to Ms Randel and 38% to Mr Randel. The Tribunal went on to consider when the interim period should end.

2. In this case Child Support applied the interim period from 12 August 2022 and ended it on 17 November 2022. Mr Randel was of the view that the interim period should be longer than this because Ms Randel was not compliant with mediation and she continued to withhold the care of [Child 1].

3. Item 2 in the table under section 53A of the Assessment Act provides that the interim period ends at the end of a period of 26 weeks commencing on the change of care day, in this case the change of care day was 12 August 2022. However, if the person who has increased care of the child began continually taking reasonable action to participate in family dispute resolution during the 26-week period, then paragraph (b) of item 2 in the table under section 53A states an interim period of 14 weeks applies and starts on the day the person began taking the reasonable action. If that 14-week period ends before the end of the 26-week period referred in paragraph (a) of item 2 and the person takes reasonable action continuously throughout that 14-week period, then the interim period ends at the end of the 14 weeks.

4. In relation to when the interim period should end the Tribunal had regard to section 53A in the Assessment Act and is satisfied that Ms Randel, who had increased care of [Child 1], began continuously taking reasonable action to participate in family dispute resolution throughout the 14-week period from 12 August 2022, as evidenced by letters from her solicitors and her application [in] October 2022 to the Federal Circuit Court, and this included trying to arrange family mediation.[11]

   [11] From Page 149 of the hearing papers.

5. The Tribunal is satisfied that the interim period should end on 18 November 2022 which is 14 weeks after the change of care day on 12 August 2022. This is a one day variation on the decision of the objections officer.

6. Mr Randel thought the interim period should end 52 weeks after the change of care day. However, under the legislation an interim period of 52 weeks applies from the commencement of the court orders in accordance with item 1 of the table under section 53A of the Assessment Act. If this was applied, then the 52-week interim period would commence [in] August 2021 (the date the court orders applied) and would end on 16 August 2022.

7. The maximum interim period that would apply in this case would be 26 weeks. However, the Tribunal has determined that 14 weeks is the appropriate interim period given Ms Randel continued to take reasonable action throughout the 14-week period to engage in family mediation.

DECISION

The Tribunal sets aside the decision under review and, in substitution, varies the decision of the objections officer and determines the interim period ends on 18 November 2022.