Smallman and Smallman (Child support)

[2023] AATA 1042

Smallman and Smallman (Child support) [2023] AATA 1042 (30 March 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024911

APPLICANT:  Ms Smallman

OTHER PARTIES:  Child Support Registrar

Mr Smallman

TRIBUNAL:Member M Martellotta

DECISION DATE:  30 March 2023

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – new care arrangement not complied with – whether an interim determination should apply - 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

1. Ms Smallman and Mr Smallman are the parents of a child[1] who is a child of an administrative assessment for child support. This review is about the level of care relating to that child.

   [1] Other children of the assessment were not involved in this matter.

2. Care of the child was originally recorded by Services Australia (the Agency) as 100% care to Ms Smallman and 0% care to Mr Smallman.[2]

   [2] The objection decision incorrectly states that Mr Smallman had 100% care.

3. On 3 March 2021 the parents agreed to consent orders which resulted in Ms Smallman having 86% care and Mr Smallman 14% care of the child.

4. On 5 August 2022 the Agency acting on Mr Smallman’s notification of a change in care decided to revoke the existing care determination and replace it with an interim care determination of 14% care to Mr Smallman and 86% care to Ms Smallman applicable from 3 March 2021 to 1 March 2022. Thereafter the care determination reverted to actual care of 100% to Ms Smallman and 0% to Mr Smallman.

5. Ms Smallman objected to the decision on 8 August 2022. On 14 October 2022 an Agency objections officer disallowed the objection. Ms Smallman lodged an application with the tribunal on 25 October 2022.

6. The tribunal conducted a hearing on 30 March 2023. Ms Smallman and Mr Smallman each participated by conference telephone and provided evidence under affirmation. The Agency provided 451 pages of documents.

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. Child support legislation is interpreted by the Agency with the aid of the Child Support Guide (the Guide). The tribunal is not bound by law to apply the policy as set out in the Guide but, provided the policy is consistent with the legislation, it is required to have regard to it and, in the ordinary course, follow it.[3]

   [3] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

3. The main issues which arise in this case are:

   ·      Should the existing care determination be revoked, and if so, from when?

   ·      Should a new determination of care percentage be made, and if so, from what date?

CONSIDERATION

Issue 1 – Should the existing care determination be revoked, and if so, from when?

1. Sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period. The percentage of care so determined must be a percentage that corresponds with the actual care of the child. Section 51 deals with situations in which the care arrangement is not being complied with.

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out from the number of nights the child spends in their care. A new percentage of care can be determined by the Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. Ms Smallman submits that notwithstanding the consent orders dated 3 March 2021 the actual care of the child has never changed. She says that there should not be any interim care determination and that the assessment should reflect the actual care which she says is 100%.

4. Mr Smallman submits that the application of an interim care determination is correct because care was not taking place in accordance with the court orders and he took reasonable enforcement action.

5. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change of care arrangement. The primary decision maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one. The tribunal’s task on review is the same.

6. The tribunal noted the following relevant evidence in the documents provided by the Agency:

   a)   Agency records showing the child as in Ms Smallman’s 100% care from the commencement of the assessment.

   b)   Copy of consent orders made in the Federal Circuit Court of Australia dated 3 March 2021. The orders provide:

   5. (the child) live with the mother.

   7. (the child) spend time with the father as agreed between the parties in writing but failing agreement as follows: -

   ·Commencing Tuesday 23 February 2021 and each Tuesday thereafter from 4.30pm until 7.45pm;

   ·Commencing Friday 26 February 2021 and each Friday up until 23 April 2021 from 4.30pm until 3.00pm Saturday; and

   ·Commencing Friday 23 April 2021 and each alternate Friday thereafter from 4.30pm until 3.00pm Sunday.

   c)   On 24 March 2021 Mr Smallman contacted the Agency to advise that new court orders had been finalised and he was now to have care of the child one night per week (or two nights per fortnight) from 23 April 2021. He further stated that he was yet to have care in accordance with the order. According to the Agency file notes Mr Smallman was advised by the Agency that they were unable to record a change in care event ‘until actual care change is occurring’.[4]

   [4] As previously noted the legislative scheme requires any new care percentage determination to be made following notification to the Agency of a change of care arrangement – the history of this case does not reflect this.

   d) Copy of section 60I Family Law Act 1975 certificate dated 22 October 2021 which states:

   Mr Smallman did not attend family dispute resolution with me and the other party to the proceedings, but that person’s failure to do so was due to the refusal, or the failure of the other party to the proceedings to attend.[5]

   [5] Page 108.

   e)   On 10 November 2021 Mr Smallman again contacted the Agency to discuss the change in care and was advised on this occasion that the Agency did not have a copy of the court orders and could not ‘lodge a forwarded dated care change and as he is not having the minimum of 1xnight per week of care he needs to call back when it is established’.[6] In that discussion Mr Smallman also raised the issue of non-compliance with the court orders by the other parent.

   [6] Page 36.

   f)    On 4 February 2022 Mr Smallman had a further discussion with the Agency stating that care of the child was not happening in accordance with the court orders. On that occasion he was advised to lodge an objection with an explanation for the delay in advising of the change in care.[7]

   [7] This advice is difficult to understand given that no original change in care decision had been made.

   g)   Written details of objection to care decision lodged by Mr Smallman and received by the Agency on 8 February 2022 setting out details of non-compliance with the court orders:

   Grounds:

   1. (child) has only stayed overnight once as per the order, being 5 November 2021.

   2. I have made multiple attempts with Ms Smallman to restore care arrangements as per the order.

   3. Certificate 60i issued on 22 October 2021, (see attached) on the basis of Ms Smallman declining to attend formal mediation to discuss (childs) care arrangements/other matters.

   4. I have requested Ms Smallman to provide information in relation to what action has been taken in respect to Order 29…however I have not received any information from Ms Smallman in respect to what action has been taken if at all any action has been undertaken.

   5. I have consulted with [Lawyers] in respect to these care arrangements.[8]

   [8] Page 109.

   h)   On 19 April 2022 Mr Smallman contacted the Agency to inquire as to the progress of his objection. He was advised:

   Discussed objection lodged in regards to care for (child) and where this objection was up to, could not see objection lodged, but could find the corro uploaded on 08/02/2022. warm transfer to care objections to advise corro uploaded but not actioned.[9]

   i)    On 19 April 2022 the Agency recorded a change in care advice from Mr Smallman. He was advised by the Agency that this advice was not an objection but advice of change in care as no original decision had been made.[10]

   j)    On 28 June 2022 Mr Smallman made contact regarding the change in care and advised that he had only had overnight care on one night (5 November 2021)[11] as the mother had withheld care.

   k)   On 8 July 2022 the Agency contacted Mr Smallman to discuss the change in care for the child. On that occasion he was advised that the Agency would use the contact of 10 November 2021 as the date of notification.[12]

   l)    On 8 July 2022 the Agency contacted Ms Smallman. She advised that she was not withholding care but that the child was refusing. Ms Smallman otherwise confirmed that the court orders were not being followed. Ms Smallman confirmed that Mr Smallman did initiate mediation but that the service advised that as previous mediation attempts were unsuccessful they would issue a certificate.

   m)    On 8 July 2022 the Agency wrote to Mr Smallman and Ms Smallman about the change in care advice and of the possibility of an interim care determination being made.

   n)   On 10 July 2022 Mr Smallman provided extracts of communications between himself and Ms Smallman regarding the disputed care. These text messages from March 2021 to May 2022 show Mr Smallman repeatedly raising the issue of the child not staying overnight with him as per the court orders and seeking Ms Smallman’s co-operation.

   o)   On 12 July 2022 Mr Smallman advised that he had lodged an Enforcement Order application seeking enforcement of the consent orders.

   p)   On 5 August 2022 the Agency makes the original care decision to accept the change in care recording the notification as 24 March 2021 and the date of change in care as 3 March 2021. The care decision records an interim care determination based on Mr Smallman having 14% care for a period of 52 weeks from 3 March 2021 to 1 March 2022 and 100% care to Ms Smallman from 2 March 2022.

   q)   On 16 November 2022 a summary of evidence regarding the care arrangements was received, in which Ms Smallman specifies the occasions she has attended the agreed drop-off point but the child has refused to go with her father.

   [9] Page 129.

   [10] Page 130.

   [11] The Agency notes incorrectly record the date as 2022.

   [12] Page 150.

7. At hearing the parties’ oral evidence was consistent with the Agency record. Ms Smallman confirmed that the consent orders have never been followed. She stated however this was not due to her actions but due to the child refusing to go with her father for overnight care apart from one occasion. Ms Smallman’s evidence is that she would drive to the agreed change-over point but the child would not go with her father.

8. Mr Smallman told the tribunal that he has been very frustrated. He agreed that whilst Ms Smallman did bring the child to the drop-off point, she did not actively encourage or support their daughter to go with him for overnight care.

9. The tribunal notes that whilst the court orders made on 3 March 2021 refer to the overnight care commencing in February 2021 Mr Smallman advised the Agency on 24 March 2021 that the change in care was to start from the date of the orders.

10. In this case the tribunal is satisfied of the following facts and finds that:

    a)   There was an original care determination in place whereby Ms Smallman had 100% care and Mr Smallman had 0% care of the child.

    b)   On 3 March 2021 the parents entered into consent orders whereby Ms Smallman would have 86% care and Mr Smallman would have 14% care.

    c)   On 24 March 2021 Mr Smallman advised the Agency of the change in care pursuant to the consent orders.

11. The first issue concerns the revocation of the existing care determination that was in place. The tribunal first is required to consider whether the existing determination is to be revoked under section 54G of the Act. This provision applies where:

    ·      a parent was to have at least regular care of the child based on the existing care determination under section 50, but they have had no actual care or less than regular care of the child, despite the other parent making the child available;

    ·      the other parent must have had their existing percentage of care determined under section 50; and

    ·      the other parent must notify the Registrar or the Secretary within a reasonable time that the parent with the reduced care has no care or less than regular care.

12. The tribunal was satisfied that the existing care cannot be revoked under this provision as this was not a case in which there was a determination under section 50. The tribunal next considered if the existing determination is to be revoked under section 54F of the Act.[13] This requires that:

    ·      the existing percentage of care has been determined under either section 49 or 50;

    ·      one of the conditions in paragraphs 54F(2)(a)–(c) applies;

    ·      the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person’s percentage of care for the child under the determination;

    ·      if a new percentage were to be determined under either section 49 or 50, it would change the person’s cost percentage; and

    ·      section 54G does not apply.

    [13] The tribunal is satisfied that in this matter, legislative amendments introduced on 1 July 2018 apply.

13. In this matter, the tribunal is satisfied that the criteria in section 54F are met; this is because there was an existing care determination pursuant to section 49 of the Act; section 51 did not have application as there was not an interim period in place, the notification of change in care was that actual care was not corresponding with care as determined, the change in care would affect the relevant cost percentage and section 54G does not apply.

14. In this case, notification of the change in care occurred within 28 days of the change in care event; this means that the existing care of 100% to Ms Smallman and of 0% to Mr Smallman is revoked on the day before the change in care, namely 2 March 2021.[14]

Issue 2 – Should a new determination of care percentage be made, and if so, from what date?

[14] Subsection 54F(3) of the Act.

1. As noted, sections 49 and 50 of the Act require the Agency to determine a person’s percentage of care where a person has had or is likely to have a pattern of care for a child for the care period. However, in this matter, Ms Smallman submits that an interim care determination should apply.

2. Section 51 of the Act provides for situations where a person with reduced care is taking reasonable action to ensure that the care arrangement is complied with. Reasonable action is not defined in the legislation and the explanatory memorandum of the provisions notes: ‘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.’[15]

   [15] Explanatory Memorandum to the Bill for the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010.

3. The legislation requires a person to be currently taking reasonable action to ensure that the care arrangement is being complied with. The Guide[16] provides the following policy guidance on this issue:

   [16] At 2.2.4.

   Reasonable action to have care in accordance with an agreement, plan, or order

   The parent must take reasonable action to ensure compliance with the care arrangement in order to have the child support assessment continue to be based on the care arrangement for the interim period. Reasonable action could include:

   ·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.

4. Ms Smallman and Mr Smallman were consistent in their accounts. They agreed that there was frequent communication between them about the child not staying with Mr Smallman in accordance with the orders and that these communications were initiated by Mr Smallman. They also confirmed that Mr Smallman approached dispute resolution services in October 2021 about the matter. The tribunal is also satisfied that Mr Smallman initiated an application for enforcement.

5. The tribunal is satisfied and finds that Mr Smallman initiated communication with Ms Smallman in attempts to resolve the non-compliance with the court orders and this was a genuine attempt on his part to resolve the issue. The tribunal also finds that Mr Smallman approached a dispute resolution service and subsequently initiated enforcement proceedings. The tribunal is satisfied that this is a case in which Mr Smallman has taken reasonable action.

6. Where it is determined that reasonable action has been taken then two percentages of care are to be determined, however, the legislation does provide the decision maker with the discretion to determine that a single percentage of care should apply despite a parent taking reasonable action if satisfied that special circumstances exist in relation to the child.

7. Subsection 51(5) of the Act provides a discretion to not apply an interim period and to instead base the determination on actual care that is occurring. According to the Guide[17] such circumstances can include matters that relate to the child directly or to another individual. In this matter, the tribunal, having had the opportunity of considering the evidence, concluded that it was not satisfied that this is a case in which special circumstances exist.

   [17] 2.2.4 of the Guide.

8. The tribunal is satisfied that there are no special circumstances to warrant a single percentage of care having application. This means that the new care determination is to be made pursuant to section 51 of the Act which allows for two determinations of care, one based on the care pursuant to the care arrangements and the other based on the actual care.

9. The length of the interim care period in this matter is prescribed in legislation (section 53A of the Act). The start day of the interim period is usually the change of care day – the day after the revocation day. In this case, 3 March 2021.

10. The end day of the interim period is usually governed by the table in section 53A. In this case the tribunal is satisfied that the conditions in item 1 on the table to that section has application which means that the interim period ends at the end of that 52-week period.[18]

    [18] See also The Guide at 2.2.4

DECISION

The decision under review is affirmed.