Sanders and Wakeford (Child support)

[2023] AATA 427

Sanders and Wakeford (Child support) [2023] AATA 427 (3 February 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/MC024522

APPLICANT:  Mr Sanders

OTHER PARTIES:  Child Support Registrar

Ms Wakeford

TRIBUNAL:Member J Prentice

DECISION DATE:  3 February 2023

DECISION:

The Tribunal decided to set aside the decision under review and to substitute its decision as follows:

1. The first percentage of care of [the child] for Mr Sanders is 100% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of [the child] for Mr Sanders is 0%, applying from 5 August 2022; and

2. The first percentage of care of [the child] for Ms Wakeford is 0% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of [the child] for Ms Wakeford is 100%, applying from 5 August 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. As relevant to this application, Mr Sanders and Ms Wakeford are parties to a child support case registered with the Child Support Agency (the CSA) from 1 October 2008 in relation to financial support to be provided for [the child] (born 2007). The application concerns a single decision of the CSA about the recorded care for [the child] utilised in calculation of the child support liability.

2. From 12 April 2014, the pre-existing percentages of care applying in the child support case for [the child] were 100% to Mr Sanders and 0% to Ms Wakeford.

3. On 13 March 2022, Ms Wakeford contacted the CSA and advised a change to the care arrangements for [the child] from 21 February 2022 stating that [the child] had been living with her since that date.

4. On 16 April 2022, the CSA made various decisions in relation to the care percentages recorded. The CSA papers include copies of two different letters sent to both Ms Wakeford and Mr Sanders on 16 April 2022. Each of the two letters suggest different decisions made by the CSA on that date.  One decision included an interim period commencing from 21 February 2022, reflecting the original Court Orders; and then a second interim determination from 23 March 2022 based on the Court Order of that date.  A different decision was also sent out to the parties which included an interim period commencing from 21 February 2022 and no new interim determination from 23 March 2022.  In any event, the CSA records show that on 6 June 2022, Ms Wakeford contacted the CSA and objected to the CSA’s decision with the details of the objection being noted as:

   The decision made on 16 April 2022 to apply an interim care determination for [the child] as 100% to (Mr Sanders) from 21 February 2022.

5. On 5 August 2022, a CSA objections officer noted that earlier decisions had been made on 16 April 2022 to apply an interim care determination for [the child] as 100% to Mr Sanders from 21 February 2022 to 21 August 2022. The objections officer allowed the objection and decided not to apply an interim period of care and for the actual care for [the child] of 0% to Mr Sanders and 100% to Ms Wakeford to apply in the assessment from 21 February 2022. In reaching this decision, the objections officer found that there were special circumstances, namely that there was a substantial risk to the physical, emotional or psychological well-being of [the child] if the written care arrangement between the parties continued to be followed, such that no interim period utilising the old care percentages, should apply. The CSA further determined that pursuant to section 87AA of the Child Support (Registration and Collection) Act 1988 there were special circumstances that prevented Ms Wakeford from objecting to the CSA’s 16 April 2022 decision within 28 days such that the changes to the care percentages applied from 21 February 2022.  The Tribunal notes that the section 87AA decision is not before it for review.

6. On 25 August 2022, Mr Sanders lodged an application with the Tribunal seeking an independent review of the CSA’s decision stating:

   I was not sent the following documentation the mother (Ms Wakeford) had provided Child Support.

   The information the mother has provided that is referred to in the Child Support "Objection decision reached" letter.

   I have evidence that the information below the mother has provided emails and letters have been redacted/fraudulent to mislead Child Supports decision.

   The following statement was in the Objection decision reached letter.

   On 18 July 2022, we received additional correspondence from Ms Wakeford as follow: - Letter from [a] Family Violence Response Centre dated 18 July 2022 stating on 6 July 2022 Ms Wakeford fled her home with [Child 2] and [the child], and since this date [the Centre] has provided the family with secure crisis accommodation and family violence crisis support. The letter states that Ms Wakeford has been subjected to physical abuse, emotional abuse, coercive control, threats to kill, sexual assault, stalking, financial abuse and strangulation. The letter states the children were also exposed to this violence.

   Comments to above statement: This is not true as [Child 2] resides in Melbourne now and has not communicated with Ms Wakeford since he left Canberra in OCT 2020. [Ms Wakeford] has provided a fraudulent letter to mislead. [Child 2] is willing to provide a Statement about this. In preparation for November we will be subpoena [the Centre] as the mother has used this to mislead different authorities including the Police.

   The mother has also moved from Sydney to Melbourne. [The child] was reported to be at my childrens school and attempted to collect them. I also go to collect the children too. attends the school in the next suburb and has been seen at the [Locations] where I [do an activity] at and the Plaza where I attend.

   - Email from [Ms A] stating there has been a new Risk of Significant Harm Report submitted by the NSW Police, noting that the police have substantiated that [the child] was sexually abused by a friend of the father (Mr Sanders) as well as excessive physical abuse perpetrated by her father, Mr Sanders. The email also states that the NSW police have issued Mr Sanders with an immediate family intervention order to protect [the child].

   Comments to the above: email communication with [Ms A] and her Manager [Ms B] confirms they did not send the above email.

   NSW Child protection have requested the information as Ms Wakeford has fraudulently changed the information from another email that [Ms A] has sent to include false accusations and statements using [Ms A’s] name, role government department etc. to advance and mislead the Police as they have placed a Provisional Intervention order against myself. Child Support have also been mislead to this outcome.

   I have provided an email from [Ms A] but it is different to the email that the mother has sent on the 18th of July.

   In the objection letter it states on the July 20th, Child Support called me and stated the above information. It was only referred to that an email from [Ms A] was sent but did not give details of what was stated. I had stated that [Child 2] has not seen the mother since OCT 2020 ,

   - Provisional order authorised by police stating you must not approach [the child] or contact her in anyway, unless the contact is as agreed in writing between you and the parent(s) and the person with parental responsibility for the children about contact with the children.

   Comments to the above statement: The mother has provided Police with misleading information which I have contested and we are resolving this matter as the police were unaware that I had Sole parental responsibility and all prehistoric investigations by DFFH (previously DHHS), NSW Child protection external investigations including family reports show that No violence/abuse/neglect has occurred. It also states in the family reports that the mother manipulates the children to do things. This matter will be di

   I have requested the documentation yesterday on the 23rd of August provided to Child Support via email.

   I also placed an Intervention order against Ms Wakeford here in Melbourne in March 2022…

   The mother has provided and letters/emails during our family court proceedings which I will include. This will be addressed in a 5 day trial in November.

   In the recent family court proceedings, The family report writer stated that [the child] did not disclose any abuse from me. [The child] wants to live with her mother.

   I do understand that from the August 5th,2022 that the child support assessment may change due to the change of Interim orders, but not from February 21st as it is based off the court ordered care. The mother was ordered to return [the child] and has mislead the court, authorities which will be tested in November at trial etc. and DFFH are currently investigating and conducting an Interstate child protection investigation on the mother and [the child].

1. The hearing of the application was held on 8 December 2022. Mr Sanders and Ms Wakeford both participated in the hearing by conference telephone and gave evidence on affirmation.

2. In considering the application, the Tribunal took into account the oral evidence of Mr Sanders and Ms Wakeford and the documentary material provided by the CSA to the Tribunal, the applicant and the second party (marked Exhibit 1, pages 1 to 214), documents provided by Mr Sanders (marked Exhibit A, pages A1 to A67) and documents provided by Ms Wakeford subsequent to the hearing (marked Exhibit B pages B1 to B42). Copies of all documents were exchanged with each party.

3. There are a number of background circumstances of understandable importance to both Mr Sanders and Ms Wakeford which were raised in evidence which are not relevant to the issues before the Tribunal. The Tribunal has confined the evidence addressed in these Reasons to only the evidence relevant to the issues before the Tribunal.

RELEVANT LEGISLATION

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act). Unless otherwise noted, all subsequent legislative references in these Reasons are to the Act. The legislation provides the Registrar, that is, the CSA, with rules for assessing and changing care determinations which are then used as part of the child support formula to assess child support rates.

2. The Tribunal also had regard to the Child Support Guide (the Guide) where relevant. The Guide contains government guidelines and policy as to how the legislation is to be applied. The Tribunal acknowledges that, while it may be guided by policy, it is not bound to follow it: Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634. In the recent case of G v MIBP [2018] FCA 1229, the Federal Court observed that it is clear from earlier authorities, that in the absence of any statutory indication to the contrary, any lawful executive policy enacted to guide the exercise of a statutory power is a relevant factor for the Tribunal to take into account in performing its review task. A lawful approach allows the adoption of appropriate policy as a guide but not so as to control the making of the decision and the Tribunal adopts that approach.

3. Sections 49 and 50 require initial percentage of care determinations to be made upon initial registration of a child support case, and for new percentage of care determinations to be made when existing percentage of care determinations are revoked. Consideration is required as to whether there is a pattern of care or no pattern of care for a child during a care period.

4. A care period is defined in the Act as being such period as considered to be appropriate having regard to all the circumstances. The Guide provides that a care period is generally the 12-month period starting from the date the actual care of the child began or changed. The same care arrangements will then be assumed to continue to apply after the end of the care period unless the CSA is notified or becomes aware of a subsequent change in the pattern of care and the requirements of the legislation are satisfied for a new care decision to be made.

5. The term pattern of care is not defined in the legislation. Both sections 49 and 50 reflect the idea that point-in-time care decisions are made on the basis of what has happened and what is likely to happen thereafter. What is likely to happen may not eventuate and when that is the case, a parent can notify the CSA and a new care determination can be made from the date of a change. However, the legislative test at first instance and on review requires assessment of the actual or likely pattern of care for a care period based upon what had happened and what is likely to happen thereafter. There is a clear temporal element in reviewing care percentage decisions.

1. Section 54A provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that a child was, or is likely to be, in the care of a person.

2. Not every deviation from an existing pattern of care constitutes a new pattern of care; it is a question of degree in the particular circumstances of the case. Topic 2.2.1 of the Guide contains the following guidance in this regard:

   Minor departures from the normal pattern of care for the child, such as missing a weekend of care due to illness or work, will not usually constitute a change to the pattern of care, and will not result in a new care determination.

3. Parents are normally recorded as providing the care they are actually providing pursuant to section 49 or section 50 of the Act.

4. The legislation provides for revoking pre-existing percentage of care determinations in certain circumstances as set out in sections 54F, 54G and 54H. Sections 49 and 50 require new percentage of care determinations to be made when existing percentage of care determinations have been revoked.

5. However, in certain circumstances, pursuant to section 51 parents can be recorded as providing the care they should have been providing pursuant to a formal care arrangement such as a court order, parenting plan or written agreement, rather than the care they were actually providing, that is an interim care determination may apply.

ISSUES

1. The issues which arise in this case are whether the existing percentage of care determinations for [the child] are to be revoked and new percentage of care determinations are to be made, including whether interim percentage of care determinations apply and, if so, for what period.

CONSIDERATION

1. Both parties agreed at hearing that [the child] has not been in Mr Sanders’ care since 21 February 2022.

2. Having had regard to all of the evidence the Tribunal considers that the appropriate care period is 12 months from 21 February 2022. Further the Tribunal is satisfied based on the evidence that the actual care of [the child] from 21 February 2022 was 0 nights to Mr Sanders  and 365 nights to Ms Wakeford. This equates to 0% care to Mr Sanders and 100% care to Ms Wakeford.

1. Subsection 54F provides that an existing care percentage decision must be revoked if the Child Support Registrar is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded, that the change would alter the cost percentage used for a parent in the administrative assessment and section 54G does not apply.

2. Section 55C contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. Section 54G provides that a care determination must be revoked if a parent was to have at least regular care pursuant to a pre-existing percentage of care determination and the other parent was to have more than 0% care, they have no care or less than regular care (subsection 5(2) defines regular care as being care between 14% and 35%) despite the other responsible person making care available and the change in care was notified within a reasonable period of time. Ms Wakeford was not to have more than 0% care pursuant to the pre-existing recorded percentages of care. Section 54G therefore does not apply.

2. Care of 100% to Ms Wakeford and 0% care to Mr Sanders from 21 February 2022 does not correspond with the pre-existing percentage of care determinations recorded by the CSA as at 21 February 2022 of 0% to Ms Wakeford and 100% to Mr Sanders.

3. A change in care to 0% to Mr Sanders and 100% to Ms Wakeford would change each parent’s cost percentage pursuant to the table in section 55C.

4. Unless an interim care determination applies under section 51 of the Act, the percentages of care applying will be based upon the extent of the actual care that a parent has, or is likely to have, of their child during a care period, with new care percentage determinations of 0% to Mr Sanders and 100% to Ms Wakeford from 21 February 2022 to be made based upon the Tribunal’s findings under section 49 and section 50 of the Act.

5. Under section 51, the framework for determining when percentage of care determinations apply may be treated differently where a care arrangement is in place, it is not being complied with and the parent with reduced care is taking reasonable action to ensure compliance. Essentially, the application of section 51 results in the care as specified under a breached care arrangement being recorded or continuing to be recorded for child support purposes during an “interim period” and the actual care occurring applying after the interim period ends.

6. A care arrangement in relation to a child means:

   (a)a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

   (b)a parenting plan for the child within the meaning of section 63C of the Family Law Act 1975; or

   (c)any of the following orders relating to the child:

   (i) a family violence order within the meaning of section 4 of the Family Law Act 1975;

   (ii) a parenting order within the meaning of section 64B of the Family Law Act;

   (iii) a State child order registered in accordance with section 70D of that Family Law Act;

   (iv) an overseas child order registered in accordance with section 70G of that Family Law Act.

1. Section 51 has potential application to the circumstances of this case. There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

2. The four requirements in subsection 51(1) are as follows:

   (a) Care percentage determinations are required to be made pursuant to section 49 or section 50;

   (b)    A formal care arrangement (court order or parenting agreement) applies in relation to the child;

   (c)    The parents’ actual care of the children that the parents have had or are likely to have during the care period does not comply with the extent of care they should have had or are to have under the care arrangement; and

   (d)    The person with reduced care is taking reasonable action to ensure that the care arrangement is complied with.

3. The Tribunal has found that subject to a consideration of section 51 of the Act, new percentage of care determinations are required to be made under sections 49 and 50.

1. Paragraph 51(1)(a) is therefore satisfied.

2. Regarding whether a formal care arrangement applies in relation to [the child], Exhibit 1 includes copies of a number of Court Orders made in relation to [the child]’s care. Relevant extracts of the Court Orders are set out in the Annexure to these Reasons.

3. It is not in dispute that prior to Ms Wakeford notifying a change in care from 21 February 2022 that care of [the child] was 100% to Mr Sanders and 0% to Ms Wakeford.

4. The most recent Court Order prior to 21 February 2022 was that of 28 July 2021.  The Tribunal is satisfied that the 17 August 2020 interim orders and the 28 July 2021 Court Orders should be read together and the Tribunal is satisfied that a care arrangement applied to the child at that time such that she lived with Mr Sanders who had full parental care and Ms Wakeford had one day of care per month.  Formal care arrangements therefore apply.

5. Reading the Court Orders dated 17 August 2020 and 28 July 2021 together, the Tribunal is satisfied that Mr Sanders was to have 100% care less one night of supervised care for Ms Wakeford. The Tribunal therefore finds that the Court Orders reflect that Mr Sanders has 100% care of [the child] and Ms Wakeford has 0% care.

6. Paragraph 51(1)(b) is therefore satisfied.

7. The Tribunal has found that from 21 February 2022 the care of [the child] changed to 0% to Mr Sanders and 100% to Ms Wakeford. This does not comply with the extent of care of [the child] that Mr Sanders and Ms Wakeford should have had under the Court Order.

8. Paragraph 51(1)(c) is therefore satisfied.

9. As for whether Mr Sanders was taking reasonable action to ensure that the Court Order was complied with, the term reasonable action is not defined in the Act, but the evidence before the Tribunal is that Mr Sanders contended [the child]’s care was being withheld, and he notified police and state authorities and applied for an urgent recovery order on 10 March 2022 with a Court hearing date set for 16 March 2022.

10. The Tribunal is therefore satisfied that prior to 21 February 2022 care of [the child] was occurring pursuant to a Court Order and that from 21 February 2022 when the care changed, Mr Sanders was taking reasonable action to ensure that the care arrangement was complied with.

11. Paragraph 51(1)(d) is therefore satisfied.

12. The requirements of subsection 51(1) having all been satisfied, subsection 51(2) requires the CSA to make and apply two percentages of care to the child support case for each person. The first percentage of care reflects the care that should have been provided pursuant to the care arrangement (subsection 51(3)). Such a decision is called an interim care determination and it applies for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (the interim period). The second percentage of care reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)).

13. Essentially, the application of section 51 for child support assessment purposes results in the percentages of care reflecting the care arrangement as specified under a breached care arrangement staying in place during an interim period and percentages of care reflecting the actual care occurring applying afterwards.

14. However, the legislation provides a discretion pursuant to subsection 51(5) to only apply the second care percentage determination for each person if the decision-maker is satisfied that special circumstances exist in relation to the child or children. In such cases, the percentage of care determinations for each person are immediately based on the actual care and no interim period applies.

15. The term ‘special circumstances’ is not defined in the Act. The Guide at topic 2.2.4 particularises the kind of special circumstances that might result in this discretion being exercised and the types of supporting evidence that might be provided as follows:

Special circumstances where an interim period does not apply

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.

The Registrar 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 wellbeing of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:

o   violence towards the child,

o exposing the child to family violence (within the meaning of section 4AB of the FL Act),

o   violence towards the person with increased care,

o   directly involving the child in a criminal act,

o   exposing the child to alcohol, drugs or substance abuse,

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

o   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 decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

Suitable evidence may include (but is not limited to):

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

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

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

1. On objection, as already noted by the Tribunal, the objections officer found that there was a substantial risk to the physical, emotional or psychological wellbeing of [the child] if the written care arrangement between the parties continued to be followed, that is that there were special circumstances such that no interim period, utilising the old care percentages, applied.

2. The Tribunal notes that in paragraph (H) of the 23 March 2022 Court Order (Exhibit 1, page 82) it states: “The Independent Children’s Lawyer has spoken with Detective Senior Constable [C] (NSW Police) yesterday where he indicated that there was nothing disclosed to suggest the child would be at risk in the father’s care”.

3. Mr Sanders told the Tribunal at hearing that he is seeking to have the CSA’s original decision reinstated with him recorded as having 100% care of [the child] until August 2022. He said that he went to Court in March 2022 and Ms Wakeford was ordered to return the care of [the child] to him,[1] that did not happen and then the Court made another recovery order ordering that [the child] be returned to his care.[2] Mr Sanders told the Tribunal that since November 2022, the Court has ordered he and Ms Wakeford have shared responsibility for [the child].

   [1] A Court Order of 17 March 2022 (see pages 65 to 72 of Exhibit 1) provides, among other things, that Ms Wakeford facilitate the return of [the child] to Mr Sanders.

   [2] An Interim Court Order of 23 March 2022 at pages 79 to 86 provides for the 16 March 2022 recovery order to be stayed.

4. Ms Wakeford told the Tribunal that Mr Sanders was breaching the orders as he was not allowing her to have access to [the child] during the school holidays and on one weekend a month as ordered. Ms Wakeford told the Tribunal that there had been ongoing Court proceedings in relation to care since 2015 and she took legal action through legal representatives in relation to this withheld access but she was not successful so in desperation she took action to arrange for [the child] to leave the care of Mr Sanders in Melbourne to fly to her in Sydney. Ms Wakeford said that she had messages from [the child] saying she was going to run away if she could not come and live with her, that [the child] had threatened self-harm and the Courts would not do anything about it. Ms Wakeford said that she did not attempt mediation because previous attempts at mediation had failed. When queried by the Tribunal, Ms Wakeford said that when [the child] came to Sydney she sent Mr Sanders a text message and also emailed her lawyers and the child lawyers and told them what had occurred. Ms Wakeford said that she purchased new clothes for [the child], and a new phone, that [the child] was admitted into hospital with mental health issues because she tried to overdose on 20 or 21 March because she did not want to return to Mr Sanders’s care. Ms Wakeford said there was a stay order in April 2022 so that [the child] did not have to return to Mr Sanders. When [the child] reached out to Mr Sanders he told her that he didn’t want anything to do with her again and he would not let her contact her siblings. The Judge then made it clear that if Mr Sanders wanted to see [the child], they needed to start therapy.

5. Ms Wakeford said that an interim care period should not apply because from February 2022 she not only had to pay school fees, school uniform costs, but also had to buy new clothes for [the child] and everything else as Mr Sanders would not return any of her belongings. She said that she had to continue to pay child support even though [the child] was in her care.

6. Mr Sanders referred the Tribunal to paragraph (M) of the 23 March 2022 Court Order (Exhibit 1, page 83) where it is stated that Ms Wakeford failed to provide evidence about [the child]’s health and wellbeing. The Senior Judicial Registrar also noted in paragraph (O) their concern “that the mother is embroiling the child directly in the proceedings and has potentially directly led to the child being in a precarious mental health position”.

7. Mr Sanders referred the Tribunal to the objections officer’s statement that Ms Wakeford had provided an:

   Email from [Ms A] stating there has been a new Risk of Significant Harm Report submitted by the NSW Police, noting that the police have substantiated that [the child] was sexually abused by a friend of the father (Mr Sanders) as well as excessive physical abuse perpetrated by her father, Mr Sanders. The email also states that the NSW police have issued Mr Sanders with an immediate family intervention order to protect [the child].

8. Mr Sanders submitted (Exhibit A, page 60) that only one email had been sent from [Ms A] and provided a copy of that email dated 15 June 2022 (Exhibit 1, page A61) which included as follows:

   Good afternoon Ms Wakeford

   As discussed I can confirm the following information.

   The NSW Department of Communities and Justice, Joint Child Protection Response Program (JCPRP) has been involved with [the child] as a result of receiving a Risk of Significant Harm report in relation to sexual abuse (not perpetrated by yourself or Mr Sanders).

   JCPRP has been involved since 18 March 2022, which involved speaking to [the child] at your home address on 31 March 2022.

   During this assessment [the child] raised concerns of physical abuse: excessive discipline perpetrated by her father, Mr Sanders.

   The assessment for [the child] has been complete. The issues of sexual abuse and physical abuse were not substantiated.

9. The Tribunal observes that subsequent Court Orders, of 5 August 2022 (Exhibit 1, pages 158 to 165) and 15 November 2022 (Final Order) (Exhibit B, pages 5 to 10), provide that [the child] is to live with Ms Wakeford.

10. Having had regard to all the evidence, the Tribunal considers that Mr Sanders did take all possible reasonable actions to have [the child] restored to his care.  He immediately contacted [the child]’s school; made calls to those who may have knowledge of her whereabouts; and “went looking for her”.  Mr Sanders sent a text message to Ms Wakeford, but did not immediately receive a response.  Some hours later, when Mr Sanders was made aware that [the child] had flown to Sydney and was with Ms Wakeford he contacted the police, the ICL (independent children’s lawyer) – asking them to “try and sort it out” – and also his own lawyers to initiate a recovery order.  Mr Sanders told the Tribunal that [the child]’s actions were quite unexpected and she had not previously said that she wanted to live with her mother.  Mr Sanders told the Tribunal that he did not initiate mediation as it had failed in the past.

11. After considering the available evidence, the Tribunal is unable to conclude that special circumstances exist and is not satisfied that the discretion in subsection 51(5) should be exercised such that an interim care determination in this matter does not apply.

12. Having determined that an interim period must apply in this matter, the Tribunal considered the duration of the interim period.

13. Pursuant to paragraph 53A(1)(a) an interim period will usually begin on the change of care day unless an earlier interim period is required to also be taken into account.

1. Pursuant to paragraph 53A(1)(b), the end date and therefore the length of the interim period depends on a number of factors, including whether or not the previous care arrangement was a court order, whether and when the person with increased care took reasonable action to participate in family dispute resolution, whether a care arrangement ceases to apply on a day and whether a (new) care arrangement begins to apply.

2. Family dispute resolution is relevantly defined by section 10F of the Family Law Act 1975 to mean:

   Family dispute resolution is a process (other than a judicial process):

   (a)   in which a family dispute resolution practitioner:

   (i) helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or

   (ii)helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; and

   (b)   in which the practitioner is independent of all of the parties involved in the process.

3. The Guide states at topic 2.2.4 that:

   Taking reasonable action to participate in family dispute resolution

   The person with increased care must take continuous reasonable action to participate in family dispute resolution in order for a shorter interim period to apply, and to avoid a later interim period applying.

4. On the evidence there has been a long-standing history of Court proceedings between the parents in relation to care. At hearing Ms Wakeford told the Tribunal that she had not sought mediation in relation to care issues in relation to the change in care the subject of this application because of previous failed mediation attempts. The Tribunal acknowledges her position however is not satisfied that Ms Wakeford took continuous reasonable action to participate in family dispute resolution.

5. The Tribunal has found that the change in care occurred on 21 February 2022 and that care occurring prior to that time was pursuant to care arrangements dated 17 August 2020 and 28 July 2021 together.

6. The interim care period therefore begins on 21 February 2022. The maximum interim period would be 26 weeks starting on the change of care day in accordance with section 53A item 2.  However there are circumstances where the interim period may end earlier under paragraph 53A(1)(b).

7. The Tribunal observes that further Court Orders were made on 16 March 2022 and 23 March 2022 that [the child] live with Mr Sanders. As these Orders continue the same care arrangement of [the child] for Mr Sanders as the Order of 17 August 2020, the Tribunal considers that the 17 August 2020 care arrangement remains in force in relation to the care of [the child] Mr Sanders should have been having.

8. Further to subparagraph 53A(1)(b)(iv) with respect to the Court Orders of 16 March 2022 and 23 March 2022 the Tribunal does not consider that they constitute a care arrangement in relation to the child begins to apply on a day.

9. As to the end date of the interim period, pursuant to subparagraph 53A(1)(b)(iv) of the Act, the Tribunal finds a further Court Order of 5 August 2022 then provided for [the child] to live with Ms Wakeford, the interim period ends on the day before the day the new care arrangement in relation to a child begins to apply, that is 4 August 2022.

1. Subsection 51(2) then requires the application of two percentages of care to the child support case for each person. The first percentage of care reflects the care that should have been provided pursuant to the care arrangement (subsection 51(3)) and the second percentage of care reflects the care that was actually being provided which applies once the interim period ends (subsection 51(4)). The first percentage of care of [the child] for Mr Sanders is 100% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of the child for Mr Sanders is 0% applying from 5 August 2022.

2. The first percentage of care of [the child] for Ms Wakeford is 0% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of [the child] for Ms Wakeford is 100% applying from 5 August 2022.

3. The Tribunal’s decision is therefore different to that of the objections officer and the decision under review will be set aside.

DECISION

The Tribunal decided to set aside the decision under review and to substitute its decision as follows:

1. The first percentage of care of [the child] for Mr Sanders is 100% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of [the child] for Mr Sanders is 0%, applying from 5 August 2022; and

2. The first percentage of care of [the child] for Ms Wakeford is 0% applying from 21 February 2022 until 4 August 2022 and the second percentage of care of [the child] for Ms Wakeford is 100%, applying from 5 August 2022.

ANNEXURE

17 AUGUST 2020 INTERIM ORDERS (Exhibit 1, pages 45 to 55)

BY CONSENT, THE COURT ORDERS THAT:

3.    [The child] live with the Father and he have sole parental responsibility for her.

…

5.    [The child] spend time with the Mother as follows:

(a)during Victorian school terms on the weekends following the third and sixth weeks of term from 10.00am Saturday to 5.00pm Sunday, with such time to take place in Melbourne;

(b)in each of the first and third Victorian school holidays, and the second term holidays if the Father does not have time off work during those holidays, from 10.00am on the first Saturday after school concludes until 5.00pm on the middle Saturday or the holidays, with such time to take place in either Canberra, the place whether the Mother resides or Melbourne;

(c)during the Victorian long summer holidays for a period not exceeding 14 nights in either Canberra, the place where the Mother resides or Melbourne:

(i)in even numbered years from 10.00am on the first Sunday in January until 5.00pm 15 days later; and

(ii)in odd number years from on the first Sunday of the holidays until 5.00pm 15 days later; and

(d)at such further and other times as may be agreed in writing (email/SMS) between the parents.

BY CONSENT, THE COURT FURTHER ORDERS THAT:

6.    For all time occurring in Melbourne the Mother give the Father no less than 76 hours’ notice in writing (email/SMS) prior to each occasion of time of:-

(a)her intention to spend time on that occasion; and

(b)if the Mother does not reside in Melbourne, confirmation from the hotel/motel of the accommodation the Mother has booked.

7.    For all time occurring outside of Melbourne the Mother give the Father no less than 76 hours’ notice in writing (email/ SMS) prior to each occasion of time:-

(a)her intention to spend time on that occasion;

(b)the duration of the time;

(c)the address at which the children and the Mother will be staying; and

(d)the travel arrangements of the children.

8.    If the Mother fails to provide notification pursuant to orders 6 and 7 the forthcoming occasion of time shall be suspended.

28 JULY 2021 FINAL ORDERS (Exhibit 1, pages 58 to 63)

2.    Paragraphs 2 and 4 of the interim orders dated 17 August 2020 (the interim orders) be discharged.

…

4.    Paragraph 5 to 8 of the interim orders be suspended.

5.    [The child] spend time with the Mother from 10.00am Saturday, 28 August 2021 to 5.00pm Sunday 29 August 2021, with such time to:

(a)take place in Melbourne;

(b)be supervised by the maternal uncle [Mr D] (maternal uncle);

(c)occur only following the filing of an appropriate undertaking sworn by the maternal uncle and approved by the Independent Children’s Lawyer, as to supervision; and

(d)as is otherwise agreed in writing between the parties.

16 MARCH 2022 FINAL ORDER (Exhibit 1, pages 64 to 72)

THE COURT ORDERS, UNTIL FUTHER ORDER, THAT:

1. Order 5 of the Interim Orders dated 17 August 2020 remain in full force and effect.

2. By 4.00pm on 17 March 2022, the Mother shall facilitate the return of [the child] to Tullamarine Airport, Melbourne.

   …

3. The Mother be restrained by injunction from permitting the child to return to her care or that of her family or friends (including any friends of the maternal family).

23 MARCH 2022 INTERIM ORDER (Exhibit 1, pages 79 to 86)

1. The recovery order made on 16 March 2022 be stayed.

2. The Orders that [the child] live with the Father, that the Father have sole parental responsibility for the Order 5 of the Interim Orders dated 17 August 2020 remain in full force and effect. 

5 AUGUST 2022 INTERIM ORDER (Exhibit 1, pages 158 to 165)

1. [The child] live with the mother.

2. The child spend time and communicate with the father in accordance with the child’s wishes.