Scott and Child Support Registrar (Child support)

[2018] AATA 957

Scott and Child Support Registrar (Child support) [2018] AATA 957 (19 February 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2017/AC012719

APPLICANT:  Ms Scott

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Kennedy

DECISION DATE:  19 February 2018

DECISION:

The decision under review is affirmed.

CATCHWORDS
Child Support – Care percentages – Care arrangement – Reasonable action for compliance – Interim determination applied - Whether interim period correctly determined – 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

1. Ms Scott and [Mr A] are the parents of [Child 1] and other children in respect of whom administrative assessments of child support are in place.  [Mr A] has not responded to the Tribunal’s invitation to be joined as a party to this review, and he is therefore not a party.

2. From 4 August 2016, child support in respect of [Child 1] was calculated on the basis that care was taking place in accordance with a scheme set out in Court orders.  The care determination in force from that date was that [Mr A] had care of [Child 1] for 33% of the time, and Ms Scott had care of [Child 1] 67% of the time.

3. On 28 November 2016, Ms Scott notified the Department of a change to the care arrangements for [Child 1].  She stated that she had care of [Child 1] 100% of the time from 8 October 2016.

4. [Mr A] essentially agreed that he had less care of [Child 1], but advised that he would take steps to restore the care arrangements to the scheme ordered by the Court.

5. In these circumstances, the Department made what is referred to as an ‘interim care determination’ reflecting the scheme set out in the Court orders and ignoring the reality of the care arrangements for [Child 1] for a limited period.  As explained later in these reasons, such determinations may only be made and applied if specified criteria are met, and then only for a limited time.

6. Ms Scott objected to that decision on 23 February 2017, but it appears that having spoken to Ms Scott at the hearing today and explained the nature and purpose of an interim care determination, her objection to this particular decision does not capture her true grievance.

7. On 26 September 2017, an objections officer reviewed the Department’s decision and concluded that the interim care determination was correctly made.  The objections officer found however that on 8 January 2017 care of [Child 1] resumed on a basis reflecting the scheme put in place by the Court, and ended the interim care determination from that date, being a date earlier than the maximum period for such determinations.  It is this aspect of the child support arrangements that appears to be the main basis of Ms Scott’s grievance, and it appears that the Department acknowledges that it made this aspect of its decision without affording procedural fairness to Ms Scott.  Ms Scott disputes that care returned to the scheme put in place by the Court on 8 January 2017.

ISSUES

1. In general terms, I have jurisdiction to review decisions made by objections officers, and do not have general jurisdiction to enquire into and review other decisions affecting child support assessments even where there is considerable overlap in the circumstances.

2. The decision before me in this regard is the decision of the objections officer of 26 September 2017 to revoke the existing care determination and replace it with the interim care determination.  I do not have jurisdiction to review care determinations subsequently made where they have not been the subject of an objections officer’s decision.

3. As for the interim care determination, the statutory provisions relevant to this review are in subdivisions B and C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Assessment Act). More specifically, the concept known as an ‘interim care determination’ is relevantly addressed at sections 51 and 54C of the Assessment Act.

4. The issue I must decide is whether the child support Registrar was correct to revoke the existing care determination affecting the assessment for [Child 1] and to replace it with the interim care determination.

CONSIDERATION

1. Section 54F of the Assessment Act requires that existing care determinations be revoked if the Registrar is notified or otherwise becomes aware that the care of a child that is actually taking place does not correspond with the person’s existing percentage of care for the child.

2. As a result of Ms Scott’s notification to the Department that she had 100% care of [Child 1], and [Mr A]’s acknowledgment at the time that this was substantially correct (although I note [Mr A] is attributed to have disputed whether he had no care of [Child 1]), I am satisfied that at the time of Ms Scott’s contact, care of [Child 1] was not taking place in accordance with the existing care determination of 67% / 33%.

3. Section 51 of the Assessment Act applies where I am required to determine a new percentage of care, but there is a care arrangement in place for a child and the amount of actual care that a person has does not comply with the extent of care they should have under the care arrangement, and the person is taking reasonable action to ensure that the care arrangement is complied with. It provides that if these criteria are met, I must then determine two percentages of care, being the percentage that the person should have under the care arrangement, and the other reflecting the care that is actually taking place. Section 54C then regulates when each determination is to apply to the assessment.

4. As for the criteria for an interim care determination in this case, I am satisfied that a care arrangement exists in the form of the orders of the Federal Circuit Court of 4 August 2016.  The orders themselves are not before me, but the existence of the orders and the scheme set out equating to 67% / 33% care was not disputed.

5. I am further satisfied that, as at 28 November 2016, care was not taking place in accordance with the scheme established by the orders.  This again was not a matter of dispute between the parents in their conversation with the Department, other than a limited reservation expressed by [Mr A], but not otherwise developed.  I find that at the time of Ms Scott’s contact with Department, she had 100% care of [Child 1].  It follows that I find that [Mr A] was not having the extent of care he was to have under the court orders at that time.

6. The remaining criteria for the making of interim care determinations is whether [Mr A] was taking reasonable action to ensure that care arrangements were being complied with.

7. The Tribunal papers contain a letter from [Mr A]’s solicitors to Ms Scott’s solicitors of 22 December 2016.  In that letter (which Ms Scott stated she had not seen until these proceedings, but had in fact received) [Mr A]’s solicitor raises the issue of [Child 1] not spending time with him in accordance with the orders.  The letter reminds the reader of the need for a party to not only facilitate children spending time with the other parent, but to actively encourage it.  The letter goes on to give notice that [Mr A] has instructed his solicitor to issue a contravention application to enforce the order if the care arrangements do not revert to those ordered during the summer holiday period or the 2017 school year.

8. Ms Scott’s position on this issue is that [Child 1] herself did not wish to spend time with [Mr A], and this had been happening for some time, even during other family law proceedings where [Mr A] had an opportunity to raise issues regarding care of [Child 1] but did not do so.  Furthermore, Ms Scott’s position is that [Child 1]’s care arrangements did not revert to those ordered by the Court in early 2017, but [Mr A] did not take the steps he had threatened to take.

9. In my assessment, an exchange of correspondence between solicitors referring back to the terms of a Court order, and accompanied by an indication of a willingness to issue contravention proceedings, demonstrates that a parent with reduced care of a child is taking reasonable action to ensure that the care arrangement was complied with. 

10. It is difficult to assess the consequences of [Mr A] not in fact taking the action foreshadowed in the solicitor’s correspondence in circumstances where [Mr A] told the Department that care did in fact revert to the scheme ordered by the Court, but I understand that Ms Scott disputes that to be the case. 

11. As to Ms Scott’s argument that [Mr A] did not take opportunities offered by other aspects of their family law dispute to agitate the care arrangements for [Child 1], I do not think this circumstance (assuming it to be accurate) deprives the conduct actually taken by [Mr A] of its characteristic of being reasonable action to ensure that the care arrangement was complied with.

12. I therefore find that the criteria for the making of an interim care determination are satisfied, and I will proceed to make the necessary findings to implement the interim care determination.

13. In this regard, as to a percentage of care that corresponds with the extent of care [Mr A] should have had under the care arrangement for [Child 1], I find that it is 33%: subsection 51(3) of the Assessment Act.

14. As to the percentage of care that corresponds with the actual care of [Child 1] that [Mr A] would be likely to have during the relevant period, it is 0%.

15. As to the application of those care determinations, section 54C of the Assessment Act provides that a percentage of care of 33% is to be applied for the interim period, being a period defined at subsection 54C(2) of the Assessment Act. That period starts on the ‘application day’, in this case 28 November 2016. The interim period ends on the day before the ‘reasonable action’ ends or a day specified by the Registrar which must be the last day in the 14 week period (absent special circumstances).

16. The other percentage of care (that is, 0%) is to apply after the interim period unless a revocation of the determination takes effect: section 54C(1)(d). It must be inferred from what actually happened in this case that the Registrar proceeded to revoke the determination and make a new determination – being a decision process that is separate and distinct from the decision I have jurisdiction to review, and a decision that Ms Scott ought to have been notified of and has objection rights in relation to.

17. In this case, [Mr A] told the objections officer that care had reverted to the Court ordered scheme on 8 January 2017.  Ms Scott disputes this.  It is sufficient however to conclude from [Mr A]’s representation to the objections officer in this regard that he ceased whatever action he was taking to enforce care per the Court order from that date.  7 January 2017 is therefore the end of the interim period.

18. I will therefore affirm the objections officer’s decision.

Other matters

1. As mentioned in these reasons, it appears that a review of the application of the interim care determination does not fully address Ms Scott’s grievances arising out of these circumstances.

2. I note that this issue appears to have been explored by Ms Scott and the Department in April and June of 2017.  It appears that on 28 April 2017, Ms Scott contacted the Department to express dissatisfaction with the care determination reverting back to the scheme put in place by the Court from 8 January 2017.  The records of this contact are not clear, but it appears that it was identified as a potential objection, but it was then decided by the Department that it was not an objection.

3. In June 2017, the Department referred back to those records when considering a further care change for [Child 1].  It was recognised that if Ms Scott wished to pursue 100% care for [Child 1] from that date, then she must lodge an objection (on the assumption that she had not already done so).  It would seem that the Department also views the care determination put in place from 8 January 2017 after the interim care determination as a new care determination.

4. If Ms Scott wishes to pursue her objection in this regard, the Department would need to either consider whether the communication of 28 April 2017 did in fact constitute an objection to a new care determination taking effect from 8 January 2017 that was not considered, or alternatively, consider an extension of time for Ms Scott to object to that decision.  It would be necessary to identify when and if Ms Scott was notified of that care decision.

5. These observations are provided to assist Ms Scott in bringing her grievance to the Department (at first instance) on a proper footing, and I make no comment as to the merits of Ms Scott’s contentions in relation to that issue.

DECISION

The decision under review is affirmed.