Sinclair and Muir (Child support)

Sinclair and Muir (Child support) [2023] AATA 1795 (11 May 2023)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2022/BC025236
APPLICANT:  Ms Sinclair
OTHER PARTIES:  Child Support Registrar
Mr Muir

TRIBUNAL:Senior Member S De Bono
DECISION DATE: 11 May 2023
DECISION:

The decision of the objections officer is affirmed.

(This means the application for review is unsuccessful.)

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 affirmed

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

Ms Sinclair and Mr Muir are the parents of [the child]. There has been a registered child support assessment in place for [the child] from 24 May 2021 with Services Australia (Child Support) collecting from the date of registration. Ms Sinclair has been the parent liable to pay child support.
Court orders in place from 17 January 2022 stipulate that [the child] is to live with Mr Muir and spend time with Ms Sinclair as agreed with each parent, but failing agreement “every alternative Sunday from 9am to 11am commencing on 30 January 2022”. The existing care determination in place was recorded as 100% care to Mr Muir and 0% care to Ms Sinclair which applied from 17 January 2022[1] in accordance with the court ordered care of this date.
[1] B16-B17.
On 8 September 2022 Ms Sinclair lodged a change in care in respect of [the child] with Child Support and he had returned to her care 100% from 1 August 2022 and had remained in her care.
On 9 September 2022 Child Support made the decision that the care determination of 100% to Mr Muir remained in place.
On 27 September 2022 Ms Sinclair lodged an objection to this decision. On 13 November 2022 the objections officer made the decision that [the child] was in Ms Sinclair’s 100% care from 1 August 2022 but applied an interim care determination for the period 17 January 2022 to 15 January 2023 where the care remained 100% to Mr Muir and 0% to Ms Sinclair for the interim care period.
On 9 December 2022 Ms Sinclair applied to the Administrative Appeals Tribunal (the tribunal) for an independent review of this decision. On 11 May 2023 Ms Sinclair participated in a telephone hearing and gave evidence under affirmation. Mr Muir was unable to be contacted and did not participate in the hearing and he had given an indication to the tribunal at the time of his application that he would not be participating in the hearing.[2] The tribunal had before it a bundle of documents (98 pages – referred to as the hearing papers).[3] Additional information was provided by Ms Sinclair both prior to, and after the hearing (A1 – A17) and Mr Muir prior to the hearing (B1–B26). Relevant aspects of the material and evidence will be referred to in the tribunal’s consideration of the issues to be decided.

ISSUES

[2] B9.

[3] These are the bundle of papers provided by Child Support in accordance with subsection 37(1) of the Administrative Appeals Tribunal Act 1975.

The issues which arise in this case are:
· Whether the existing care determination of 100% care to Mr Muir and 0% care to Ms Sinclair should be revoked; and if so,
· What is the new care determination and what is the date of effect of the new care determination?

LAW AND CONSIDERATION

The law that applies in this case is the Child Support (Assessment) Act 1989 (the 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).
The 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?

The legal question for the tribunal to determine is whether the existing care determination of 100% care to Mr Muir for [the child] and 0% care to Ms Sinclair should be revoked.
Sections 49 and 50 of the 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 Act can be considered.
Section 49 of the 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 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 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.
Ms Sinclair said [the child] was living with his father in accordance with the court ordered care of 17 January 2022 but ran away to stay with her on 1 August 2022. She said [the child] returned to his father’s for a few days from 8 September 2022 after Mr Muir’s solicitors issued a letter to Ms Sinclair, but Ms Sinclair said [the child] returned to her 100% care on 11 September 2022 and has remained in her 100% care.
Ms Sinclair said that Mr Muir spoke with [the child] and asked him to return to his care, but she said [the child] refused to return to his care. Ms Sinclair said she overhead Mr Muir telling [the child] not to contact him again during a phone call around 11 October 2022. Ms Sinclair was of the view that reasonable action did not continue after this because Mr Muir had decided he no longer wanted care of [the child].
Mr Muir in his written submission to the tribunal writes:[4]
In the time [the child] was in my 100% are I encouraged him to have a relationship with his mother.
I allowed extra time above the court ordered 2 hours pf every second Sunday and additional times as he sought to repair their relationship. In conjunction with their joint counselling.
When [the child] returned to his mothers house, yes I packed him a bag and stated go and stay with your mother for a week to cool off as he had that morning, pulled a knife on me, threatened my partner and my step son that he was going to kill us in our sleep and various acts of violence. In no time was he assaulted, I did disarm him and pin him to the ground. Otherwise he said he was going to live in the bush.
Under no terms did I every agree that this was a permeant move, this was manipulated by Ms Sinclair driven by receipt of child support and all the benefits associated as is her way. She also manipulated [the child] into proving he was loyal to her by being rude and discontinuing contact with me. I have proof of all this, but this is not family law court.
Up until October 2022 I was still taking [the child] to see a clinical psychologist for this mental health, cranio sacral therapy natural care on a regular basis.
[4] B9.
Subsection 49(3) of the Act provides that the percentage of care to be determined under subsection 49(2) must be 0% unless section 51 of the Act applies. Section 51 of the Act is relevant in this matter and states:
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.
The tribunal is satisfied that [the child] remained in Ms Sinclair’s 100% care from 11 September 2022.

Issue 2 – Should an interim care determination apply?

Subsection 49(3) of the Act provides that the percentage of care to be determined under subsection 49(2) must be 0% unless section 51 of the Act applies. Subsection 51(1) of the Act is relevant in this matter and states:
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.
If an interim care determination applies subsection 51(2) provides:
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
Unless subsection 51(5) applies:
(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.
The objections officer determined an interim period should apply in which the care of 100% of [the child] for Ms Sinclair applied for a period of 52 weeks from 17 January 2022 until 15 January 2023. This meant that the care remained as 100% to Mr Muir for the interim period. When from 16 January 2023 when the interim period ends the care would revert back to 100% to Ms Sinclair.
The tribunal considered whether an interim period should apply and if so, the duration of the interim period.
Ms Sinclair submitted that special circumstances existed in relation to [the child], where an interim period should not apply.
Ms Sinclair said that there was a history of family violence perpetrated by Mr Muir and a DVO (Protection Order) had been issued on 29 January 2020 for 5 years. Ms Sinclair submitted that as the DVO was in place at the time of the court ordered care of 17 January 2022. Ms Sinclair said this was evidence of special circumstances which supported her view that an interim period should not apply because the DVO constituted special circumstances.
The Guide at 2.2.4 which deals with policy about disputed care arrangements advises 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.
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 well-being of the child if the care arrangement had continued to be followed.
The material evidence before the tribunal shows that [the child] has had periods when he has wanted to live with his father and times when he has wanted to live with his mother. Leading up to the court orders of 17 January 2022 evidence before the tribunal indicates that [the child] was feeling unsafe at this mother’s house and that “[The child] has suffered emotional harm due to the on-going conflict between his parents and ongoing family law court matters which he has become involved in”.[5] There was also a report before the tribunal which stated [the child] had become aggressive towards his mother at that time and wanted to see his father.[6]
[5] B10.
[6] B12.
Ms Sinclair had written to [Mr A], Mr Muir’s solicitor stating that [the child] had disclosed to her that he had “witnessed acts of domestic violence between Mr Muir and [Ms B] [Mr Muir’s partner at that time] while in the care of Mr Muir and that there were several occasions where [the child] was physically harmed by Mr Muir”.[7] There was no other evidence before the tribunal which supported this view and no formal police reports of the alleged assault by Mr Muir towards [the child] has been provided by Ms Sinclair.
[7] A13.
It is evident to the tribunal that there has been significant conflict between Ms Sinclair and Mr Muir, and this seems to have created a level of difficulty for [the child]. Given the high level of conflict that seems to have existed between the parents and the impact this seems to have had on [the child]’s decisions about where he lives and his emotional regulation as described by [Mr C] in the letter of 11 May 2021,[8] as well as supporting evidence from [D], Child Safety Officer from the Department of Children, Youth Justice and Multicultural Affairs.[9] It is the tribunal’s view that the evidence contained in the material before it as well as written and oral submissions from Ms Sinclair and the written submission from Mr Muir leads the tribunal to be satisfied on balance that special circumstances do not exist such that an interim period should not apply This is because the tribunal is satisfied that there existed on-going conflict between Ms Sinclair and Mr Muir in relation to the care of [the child]. The tribunal is also satisfied that the court order of 17 January 2022 seems to reflect [the child]’s wishes at that time to spend more time with his father as he was feeling unsafe at his mother’s house.
[8] B11–B14.
[9] B10.
The tribunal is satisfied that an interim period should apply as there are existing court orders in place and the tribunal is satisfied Mr Muir was taking reasonable action to have the court orders complied with.
Subsection 53A(1) of the Act provides the 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.
The interim period applies from 17 January 2022 and ends in accordance with item 1 to section 53A which at the end of the 52-week period is 15 January 2023, when the actual care of [the child] will be recorded as 100% to Ms Sinclair from 16 January 2022.
The final parenting order made on 17 January 2023 stipulates “That the child is to live with the Mother and spend time with the Father in accordance with the child’s views and wishes”.[10] This court order is after the interim care period and does not assist the tribunal in its decision for this matter.
[10] B22.

DECISION

The decision of the objections officer is affirmed.

(This means the application for review is unsuccessful.)

[2023] AATA 1795

11 May 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Statutory Construction

Procedural Fairness