Rodham and Orpen (Child support)

[2022] AATA 1713

Rodham and Orpen (Child support) [2022] AATA 1713 (8 March 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2021/BC022385

APPLICANT:  Miss Rodham

OTHER PARTIES:  Child Support Registrar

Mr Orpen

TRIBUNAL:Member M Douglas

DECISION DATE:  08 March 2022

DECISION:

The decision under review is affirmed.

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 taken – interim period applied – decision under review affirmed

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

1. This matter involves a review of an objection decision Services Australia – Child Support (hereafter Services Australia) made on 23 September 2021 regarding the care percentages used in the assessment of child support for Miss Rodham’s and Mr Orpen’s son, [Child 1]. 

2. On 19 April 2021 Mr Orpen contacted Services Australia and informed it that he had 100% care of [Child 1].  As at that time the care percentages used in the assessments of child support for [Child 1] were 74% for Miss Rodham and 26% for Mr Orpen. 

3. Following Mr Orpen’s contact with Services Australia on 19 April 2021, Services Australia contacted Miss Rodham.  She told Services Australia that Mr Orpen had not returned [Child 1] to her care her after the school holiday period.  She also told Services Australia that she was “going to court” on 13 May 2021 to have the care of [Child 1] returned to her.  She subsequently provided Services Australia with a copy of orders the Family Court of Australia made on 26 May 2018, that included orders relating to where [Child 1] was to reside, which reflected the existing percentages of care used in the assessment.  Miss Rodham also provided Services Australia with a copy of documents filed in the Federal Circuit Court of Australia in April 2021 that confirmed she was seeking the Court make orders requiring Mr Orpen to return [Child 1] to her care by no later than 4pm on 16 May 2021. 

4. Services Australia then contacted Mr Orpen who confirmed there would be a court hearing on 13 May 2021 but he was “expecting the result for him to have the care of [Child 1]”.[1]

   [1] Page 28 of the documents Services Australia provided the Tribunal in accordance with subsections 37(1) and 38AA(1) of the Administrative Appeals Tribunal Act 1975 (hearing papers)

5. On 14 May 2021 Services Australia sent letters to Miss Rodham and Mr Orpen in which it advised them that it had decided that the care percentages for [Child 1] would be 74% for Miss Rodham and 26% for Mr Orpen from 1 April 2021 to 29 September 2021 and then 0% for Miss Rodham and 100% for Mr Orpen from 30 September 2021.  Services Australia further informed Miss Rodham and Mr Orpen that it was using the “care percentage in your court order, until 29 September 2021 because it is not clear that Mr Orpen is taking reasonable action to make sure that care happens as set out in the court order.  After this date, the care percentages will be the actual care you have for [Child 1]”.[2]

   [2] Pages 43 and 45 hearing papers

6. On 30 July 2021 Mr Orpen objected to that decision.  On 23 September 2021 Services Australia disallowed his objection.  On 24 September 2021 Miss Rodham applied to the Tribunal for review of Services Australia’s objection decision.

7. For completeness, the Tribunal notes that on 16 September 2021 Miss Rodham advised Services Australia that [Child 1] had been returned to her care on 7 July 2021 and that she had 80% care of [Child 1] from that date and Mr Orpen had 20% care of [Child 1].  She also provided a copy of a court order requiring Mr Orpen to return [Child 1] to her care by no later than 4pm on 7 July 2021.  On 30 September 2021 Services Australia made a decision to record the care of [Child 1] as being 80% to Miss Rodham and 20% to Mr Orpen “from 30 September 2021”.[3]  Neither Mr Orpen nor Miss Rodham objected to that decision and hence the matter presently before the Tribunal does not concern that decision.

   [3] Pages 99-107 of the hearing papers.

8. On 8 March 2022 the Tribunal conducted an audio hearing of Miss Rodham’s application for review of Services Australia’s objection decision of 23 September 2021, using Microsoft Teams.  Miss Rodham participated in the hearing and gave affirmed oral evidence.  Mr Orpen was contacted on several occasions at the time scheduled for the hearing and also some minutes after the time scheduled for the hearing.  He could not be reached on his advised contact telephone number. 

9. Well in advance of the date scheduled for hearing, the Tribunal had notified Mr Orpen of the time and the date of the hearing and the method by which he would be joined to the hearing.  On the day preceding the hearing the Tribunal reminded Mr Orpen, by means of sending him an SMS message, of the time and the date for the hearing.  Bearing in mind that an objective of the Tribunal is to provide a method of review that is fair, just, equitable, informal and quick, and noting further that Mr Orpen had not contacted the Tribunal to advise it he would be unavailable at the time or date scheduled for the hearing or to seek an adjournment of the hearing, the Tribunal decided to proceed with the hearing notwithstanding that Mr Orpen was not available to be joined to it.

CONSIDERATION

1. Under section 54F of the Child Support (Assessment) Act 1989 (the Act) a care percentage for a child must be revoked if the care of the child that is actually taking place does not correspond with the parents’ respective percentages of care for the child and a change to the parents’ percentages of care, so as to reflect the parents’ actual care of their child, would result in a change in the parents’ cost percentages used in the assessment. If a care percentage for a child is revoked then a new care percentage must be determined under either section 49 or section 50 of the Act.

2. Relevant also to this matter is section 51 of the Act which reads as follows:

   “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 percentages of care in relation to the responsible person

   (2) Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

   (3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).

   (4)  The second 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.

Single percentage of care in relation to the responsible person

(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.

(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.”

1. It is to be observed that absent there being special circumstances with respect to a child, the effect of section 51 of the Act is that Services Australia must determine for each parent two percentages of care relating to the care of their child in the circumstance where the care of the child does not accord with a care arrangement for the child and the parent with reduced care is taking reasonable action to enforce the care arrangement.  A care arrangement includes an arrangement relating to the care of a child that is stipulated by a court order. 

2. The first percentage of care that must be determined is one that reflects the care a parent would have under the care arrangement and the second percentage of care reflects the actual care that a parent is having of their child.  Pursuant to section 54C of the Act, the first percentage of care applies for what is known as an interim period, which is determined in accordance with section 53A of the Act. The second percentage of care applies upon the conclusion of that interim period.

3. The decision Services Australia made on 14 May 2021, which it affirmed on 23 September 2021 when it disallowed Mr Orpen’s objection to the decision, is a decision made in accordance with section 51(2) of the Act.  That is to say Services Australia considered that the requirements of subsection 51(1) were met and that consequently section 51 was engaged.  Services Australia was not satisfied that special circumstances existed in relation to [Child 1] that would warrant single percentages of care being determined for [Child 1] pursuant to subsection 51(5) that reflected [Child 1]’s actual care. Services Australia accordingly determined two percentages of care for [Child 1] for both Mr Orpen and Miss Rodham in accordance with subsections 51(3) and 51(4) of the Act.  It found that the interim period commenced, in accordance with section 53A of the Act, on 1 April 2021 and concluded on 29 September 2021.  It decided that the first percentage of care, determined in accordance with section 51(3) of the Act, applied for the interim period.

4. Miss Rodham’s evidence to the Tribunal was that Mr Orpen refused to return [Child 1] to her, following a period during which [Child 1] had stayed with Mr Orpen in accordance with the parenting orders that the Family Court had previously made.  She said that up to that time she and Mr Orpen had been abiding by the orders.  Miss Rodham stated that there was no reason why Mr Orpen could not have returned [Child 1] to her at the start of April when he was required to do so in accordance with the orders.  She applied almost immediately to the Federal Circuit Court for a recovery order to be made and she was successful in that and the court made an order that [Child 1] be returned to her care by no later than 4pm on 7 July 2021.  She stated that [Child 1] was returned to her care by that time.

5. Miss Rodham told the Tribunal that her main reason in applying for review of Services Australia’s objection decision is that she wanted to ensure that Mr Orpen was required by Services Australia to pay child support during the period he had care of [Child 1] between 1 April and 6 July 2021 contrary to the orders that the Family Court had previously made. 

6. The decision Services Australia made on 14 May 2021, which it affirmed by its objection decision made on 23 September 2021, had the effect that the care percentages used in the assessment throughout the relevant period reflected the care required of [Child 1] by the orders the Family Court made in 2018.  In other words, Mr Orpen has been assessed as liable to pay child support for [Child 1] during the period 1 April 2021 to 6 July 2021 based on where [Child 1] was required to be residing under the parenting orders, and not based upon Mr Orpen having had the actual care of [Child 1] for that period.  Simply put, the concern of Miss Rodham that prompted her to apply to the Tribunal for review, does not arise.

7. The evidence reveals that the criteria of subsection 51(1) were met in this case and so consequently section 51 was rightfully engaged by Services Australia.  Importantly, a care arrangement did exist with respect to [Child 1].  The actual care that Mr Orpen and Miss Rodham were having of [Child 1] after 1 April 2021 did not comply with what was required under that care arrangement, and Miss Rodham, who had reduced care of [Child 1], was taking reasonable action to ensure that the care arrangement was complied with. 

8. There were no special circumstances with respect to the child that would warrant a single percentage of care being determined for him for Miss Rodham and Mr Orpen and consequently Services Australia’s decision to determine the first percentages of care as 76% for Miss Rodham and 24% for Mr Orpen, which were to be applied for the interim period, and to determine a second percentage of care of 0% for Miss Rodham and 100% for Mr Orpen, to be applied upon the end of the interim period, was the correct and preferable decision to make.  Consequently, the Tribunal affirms that decision.

9. The Tribunal observes for the sake of clarity, that upon [Child 1] being returned to Miss Rodham’s care on 7 July 2021, and following Services Australia’s subsequent care decision on 30 September 2021, which decision is not the subject of review by the Tribunal, Services Australia’s determination of 14 May 2021 relating to the second percentages of care for [Child 1] never came into effect.  Also for the sake of ensuring no misunderstanding, at all relevant times, the assessments of child support that have been issued for [Child 1] have been based upon Miss Rodham having at least 74% care of [Child 1].

DECISION

The decision under review is affirmed.