Skotts and Skotts (Child support)

[2022] AATA 4099

Skotts and Skotts (Child support) [2022] AATA 4099 (4 August 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBERS:  2022/BC023738

APPLICANT:  Mr Skotts

OTHER PARTIES:  Child Support Registrar

Ms Skotts   

TRIBUNAL:  Member D Tucker

DECISION DATE:  4 August 2022

DECISION:

The decision under review is set aside and in substitution the Tribunal decides that from 12 July 2020 Mr Skotts had 100% care of [Child 1] and Ms Skotts had 0%.

The Tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988.

The date of effect of the Tribunal’s decision is 22 April 2022.

(This means the application was partially successful.)

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 – decision under review set aside and substituted

CHILD SUPPORT – date of effect of the tribunal’s decision – late application for review – no special circumstances exist that prevented the application for review being lodged in time – tribunal declines to make a determination under subsection 95N(2)

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. A child support assessment for Mr Skotts’ and Ms Skotts’ three children [Child 2], [Child 1] and [Child 3] began on 30 September 2010. This objection refers only to the care of [Child 1], born [November] 2006.

2. The pre-existing care recorded for [Child 1] was 86% care to Ms Skotts and 14% care to Mr Skotts from 27 July 2014.

3. On 15 July 2019, after engaging in mediation, Mr Skotts and Ms Skotts formed a written and signed parenting agreement on 15 July 2019.

4. Both parents state that the parenting plan was followed, giving Ms Skotts six days per week (86%) care and Mr Skotts one day per week (14%) care.

5. In April 2020 Mr Skotts initiated court proceedings, seeking an order that would give him 50% care of all three children. Mr Skotts explained that he had always regarded the parenting agreement as an interim measure (as noted within it) while awaiting the outcome of court proceedings.

6. After several hearings, on 3 March 2021, the court ordered that [Child 1] could choose which parent she would live with.

7. On 5 August 2020 Mr Skotts notified Services Australia – Child Support (the CSA) of a change in care, as [Child 1] had stayed with him exclusively from 13 July 2020, except for 18 July 2020 and 25 July 2020 when she stayed with Ms Skotts.

8. Ms Skotts confirmed this change in care, but told the CSA that Mr Skotts was withholding care contrary to their parenting agreement.

9. On 17 October 2020 the CSA decided to apply an interim care determination. It reflected the following care percentages for [Child 1]:

   ·   86% and 14% to Ms Skotts and Mr Skotts respectively, from 12 July 2020

   ·   0% and 100% to Ms Skotts and Mr Skotts respectively, from 18 October 2020

10. On 22 October 2020 Mr Skotts objected to this decision, because:

    ·   He did not withhold [Child 1]; she refused to return to her mother’s care, and;

    ·   he was concerned that [Child 1] was not safe in her mother’s care.

11. On 15 April 2021 the CSA disallowed Mr Skotts’ objection. On 22 April 2022 Mr Skotts applied to this Tribunal for further review. On 4 August 2022 Mr Skotts and Ms Skotts both gave affirmed evidence via telephone hearing. The Tribunal also considered relevant documents and submissions provided by the CSA and both parties.

LEGISLATION AND ISSUES

1. The legislation relevant to this review is contained in the Child Support (Assessment) Act 1989 (the Act) and the Child Support (Registration and Collection) Act 1988 (the Registration Act).

2. The Tribunal also considered the Child Support Guide (the Guide) which contains government policy about the application of child support legislation.[1]

   [1] The Tribunal is not bound by such policy, but for the sake of consistency will apply it unless there is a cogent reason not to, in accordance with the rulings by the Federal Court: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

3. The outstanding questions for the Tribunal are:

   ·      Was there a change in care that warrants a new care percentage decision?

   ·      From what date should the new care percentages apply?

   ·      Should an interim order apply, and if so, for what period?

CONSIDERATION

Was there a change in care that warrants a new care percentage decision?

1. There is no dispute, and the Tribunal also finds, that there was a change in care from 12 July 2020, such that Mr Skotts had 100% care of [Child 1].

2. The Act requires that care percentages must be revoked if a person’s care percentage changes to the extent that it impacts their cost percentage.

3. Section 54G of the Act applies in a situation where a parent who was to have at least regular care of a child has had no care, or less than regular care, despite the other parent making the child available, and the other parent notifies the Registrar of the change in care within a reasonable period.

4. The Tribunal finds that section 54G must be applied in this instance, given the Tribunal’s finding (discussed below) that Mr Skotts did not withhold care of [Child 1], but rather [Child 1] was permitted to make up her own mind about where she would live, and chose to live with Mr Skotts.

5. Accordingly, the Tribunal finds that the existing care percentages must be revoked and that from 12 July 2020 the care percentages were 100% and 0% to Mr Skotts and Ms Skotts respectively.

From what date should the new care percentages apply?

1. There is no dispute, and the Tribunal so finds, that Mr Skotts notified the CSA of the change in care on 5 August 2020. As this is within 28 days of the date of the change in care, the new care percentages apply from the change in care, from 12 July 2020.

Should an interim care determination apply, and if so, for what period?

1. Section 51 of the Act provides that an interim care determination may be made if:

   ·   there is a change in care contrary to a parenting agreement that was adhered to prior to the change in care and

   ·   the parent with reduced care takes “reasonable action” to restore compliance with the parenting agreement.

2. An interim determination prevents the imposition of an increased cost percentage on the person with reduced care. The rationale is that it is unfair to immediately increase a parent’s cost percentage because of the other parent’s non-compliance, if the person with reduced care is taking reasonable action to restore the care arrangements.

3. The phrase “reasonable action” is not defined in legislation. However, the Explanatory Memorandum to the Bill for the amending Act that introduced section 51 refers to reasonable action:

   For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.

4. The Tribunal also considered the interpretation of “reasonable action” provided by the Commonwealth government’s online policy guide, the Guide.[2]

   [2] While the Tribunal is not bound by this policy, in accordance with rulings of the Federal Court, for the sake of administrative consistency it will apply it unless there is a cogent reason not to [Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634].

5. At section 2.2.4, the Guide lists examples of “reasonable action” as:

   ·   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.

Reasonable action

1. It is not disputed, and the Tribunal also finds, that prior to the change in care from 12 July 2020 there was a parenting agreement in place that had been adhered to.

2. The outstanding question is whether the parent with reduced care, Ms Skotts, took reasonable action to restore compliance with the parenting agreement.

1. Ms Skotts told the Tribunal that when [Child 1] went to live with Mr Skotts on 12 July 2020, she decided against pressuring [Child 1] to return to her care. She explained that as a 13-year-old it was appropriate that she be allowed to decide with which parent she would stay. Accordingly, when [Child 1] said that she wanted to stay with her father, Ms Skotts allowed it.

2. Ms Skotts also anticipated if she pressured [Child 1] to return to in her care, it would be ineffective and only serve to damage their relationship. She preferred to simply make it clear to [Child 1] that she was welcome to return at any time. The Tribunal notes that [Child 1] did return to Ms Skotts’s care on 20 February 2020.

3. Ms Skotts also told the Tribunal that she reminded Mr Skotts of their parenting agreement in the hope that he would comply with it. In response to the Tribunal’s exploration, Ms Skotts denied that she was asking or expecting Mr Skotts to direct or otherwise pressure [Child 1] to return to her care. Given this, it is not clear to the Tribunal what form of compliance she was hoping for on Mr Skotts’s part.

4. Mr Skotts told the Tribunal that, given the passage of time, he could not recall whether Ms Skotts reminded him of their parenting agreement. He was aware of it in any case. He took a similar view to Ms Skotts – that as a 13-year-old [Child 1] should be allowed to decide which parent she would stay with.

5. Both parties told the Tribunal that they did not engage in any mediation following the change in care.

6. The objections officer found that Ms Skotts had taken reasonable action, because she had obtained legal representation for a court appearance on 26 June 2020. The Tribunal finds otherwise. The hearing in question was related to proceedings initiated by Mr Skotts in April 2020, prior to the change in care, and were undertaken for the purpose of making new care orders rather than enforcing the parenting agreement of 15 July 2019.

7. Based on the evidence outlined above, the Tribunal finds that Ms Skotts did not take “reasonable action” to restore compliance with the parenting agreement following the change of care on 12 July 2020, in the sense that this phrase is used in section 51 of the Act.

8. This is not to suggest that Ms Skotts was not taking reasonable action when she allowed [Child 1] to decide to stay with her father. The Tribunal also acknowledges that she would have preferred [Child 1] to remain in her care.

9. Based on these findings, the Tribunal is satisfied that the conditions for making an interim care determination were not met.

1. The Tribunal notes the subsequent care decisions made by the CSA:

   ·   On 7 January 2021 the CSA decided that for the period 20 December 2020 to 5 February 2021, the care of [Child 1] was 100% to Ms Skotts.

   ·   On 20 February 2021 the CSA decided that from 5 February 2021, the care of [Child 1] was 100% to Mr Skotts.

Date of effect

1. Subsection 95N(1) of the Registration Act provides that if a person applies to the Tribunal for review of a CSA decision more than 28 days after being notified of it, the Tribunal’s decision upon review will take effect from the day the person applied for review, rather than the date of the CSA decision in question.

2. Mr Skotts lodged his application with the Tribunal on 22 April 2022, more than 28 days after he was notified of the CSA’s objection decision of 15 April 2021.

3. There is no evidence before the Tribunal of any special circumstances that would warrant an extension of this 28-day time limit under subsection 95N(2) of the Registration Act.

4. Therefore, the Tribunal’s decision takes effect from 22 April 2022.

5. The tribunal notes that from 20 December 2020 a new care determination was in effect that reflected the care of [Child 1] as 100% care to Ms Skotts.

DECISION

The decision under review is set aside and in substitution the Tribunal decides that from 12 July 2020 Mr Skotts had 100% care of [Child 1] and Ms Skotts had 0%.

The Tribunal refuses to make a determination under section 95N of the Child Support (Registration and Collection) Act 1988.

The date of effect of the Tribunal’s decision is 22 April 2022.

(This means the application was partially successful.)