Tanner and Tanner (Child support)

[2020] AATA 885

Tanner and Tanner (Child support) [2020] AATA 885 (11 February 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/AC017937

APPLICANT:  Mrs Tanner

OTHER PARTIES:  Child Support Registrar

Mr Tanner

TRIBUNAL:Member Y Webb

DECISION DATE:  11 February 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that the child is to be recorded as in the 51% care of Mrs Tanner and in the 49% care of Mr Tanner for a 14-week interim period from 11 May 2018 to 16 August 2018 (with a date of effect of 28 May 2018) and thereafter that the child is to be recorded as in the 100% care of Mrs Tanner and 0% care of Mr Tanner (until a new care determination was made).

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 – whether reasonable action taken by parent with reduced care – whether reasonable action taken by parent with increased care – interim period applied for 14 weeks – 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. This review is about the percentages of care of Mrs Tanner and Mr Tanner in relation to the care of their youngest child who is now 14 years old (the child).

2. Court orders in relation to the care of the child were made by the Federal Circuit Court of Australia [in] April 2018.  In brief summary, these orders provided that each parent would have week about care in school terms and each would have care for half of the school holidays.

3. On 28 May 2018 Mrs Tanner made an application for a child support assessment.

4. On 20 June 2018 the Department of Human Services (Child Support Agency) made a decision to accept the application for a child support assessment from 28 May 2018 on the basis that the child was in the 50% care of Mrs Tanner and 50% care of Mr Tanner (reflected on the assessment as 51% care to Mrs Tanner and 49% care to Mr Tanner).

5. On 28 September 2018 Mrs Tanner objected to that decision on the grounds that Mr Tanner was not having 50% care of the child. 

6. On 27 November 2018 an objections officer decided to partly allow Mrs Tanner’s objection and determined that an interim care decision should be made.  The objections officer decided that the court orders were not being followed from 11 May 2018 and that Mr Tanner was taking reasonable action to have care in accordance with the court orders of [April] 2018.

7. The objections officer applied an interim care period from 11 May 2018 to 25 April 2019. This meant that the care of the child would be reflected on the assessment as 50/50 to each of the parents from 11 May 2018 to 25 April 2019 and that thereafter, from 26 April 2019 the care of the child would be reflected as 100% to Mrs Tanner.

8. The objections officer also decided that although Mrs Tanner had objected to the original decision more than 28 days after being notified of it, there were special circumstances which prevented Mrs Tanner from objecting earlier. This was a decision made under subsection 87AA(2) of the Child Support (Registration and Collection) Act 1988. Neither parent has applied to the Administrative Appeals Tribunal (the Tribunal) to object to that decision.

9. On 29 November 2019 Mrs Tanner applied to the Tribunal for review of the care decision.  The Child Support Agency advised the Tribunal that it posted the objections officer’s decision to Mrs Tanner on 3 December 2019 despite the decision being made on 27 November 2018.

10. Mrs Tanner and Mr Tanner both attended the hearing by way of telephone conference on 11 February 2020 and both gave sworn evidence.

ISSUES

1. The issues for the Tribunal to determine are:

• the percentages of care of the child for Mrs Tanner and Mr Tanner;

• if there has been a change in the level of care, the date of the care change;

• does a “care arrangement” apply to the children; and if so,

• whether an interim determination should be made.

CONSIDERATION

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

2. There were significant amendments made to the Assessment Act applicable from 23 May 2018 and the Tribunal considered whether the new or the previous legislation applied in this matter. Mrs Tanner’s application for a child support assessment was made on 28 May 2018 and the transitional provisions state that the new legislation applies to change of care days that happen on or after 23 May 2018. “Change of care day” is defined in section 5 of the Assessment Act as:

   (a)   If a determination of the responsible person’s percentage of care for the child has been revoked under Subdivision C of Part 5 – the first day on which the care of the child that was actually taking place ceased to correspond with the responsible person’s percentage of care for the child under the determination; or

   (b)   If a determination of the responsible person’s percentage of care for the child has been suspended under Subdivision C of Division 4 of Part 5 – the first day on which the care of the child that was actually taking place ceased to correspond with the responsible person’s percentage of care for the child determined for the purposes of subsection 51(4) under the determination; or

   (c)   Otherwise – the first day on which the care of the child that was actually taking place did not correspond with the responsible person’s extent of care under a care arrangement that applies in relation to the child (which might be the first day the care arrangement begins to apply in relation to the child).

3. Paragraph (c) above is the applicable paragraph in this case. Section 5 of the Assessment Act refers to the “Family Assistance Act” for its definition of a “care arrangement” and section 3 of the A New Tax System (Family Assistance) Act 1999 provides that a “care arrangement” includes a court order such as a parenting order within the meaning of section 64B of the Family Law Act 1975. Hence the Tribunal finds that the court order of [April] 2018 is a “care arrangement” for the purposes of the Assessment Act. It is not in dispute that the care arrangement (court order) provided that each parent would have (approximately) 50% care of the child.

4. The evidence of the parents indicates that care ceased occurring in accordance with the court orders on 11 May 2018 and the Tribunal so finds.  Hence, the Tribunal also finds that the previous legislation (as it was prior to 23 May 2018) applies in this matter.

Mrs Tanner’s contentions

1. Mrs Tanner agreed that from 11 May 2018 care of the child was not occurring in compliance with the court orders.  She stated that was not because she was withholding the child from Mr Tanner.  She stated that she tried everything to persuade the child to go to Mr Tanner for the ordered care but he just would not go.

2. Mrs Tanner stated that because of the child’s insistence on not going to his father’s as the orders required Mr Tanner was not having 50% care of the child during the period commencing from 11 May 2018. 

3. In the affidavit lodged with the court on 13 July 2018 Mrs Tanner deposed that the child had been living with her since May 2018.

4. On 28 September 2018 Mrs Tanner told the Child Support Agency that since May 2018 she had had 100% care of the child other than some occasional nights.  She stated that the child did stay with his father from 17-20 September 2018 and also for one week in the July 2018 holidays but there was no regular pattern of the child staying with his father at all prior to April 2019. 

5. Mrs Tanner stated that she agrees that the care arrangements changed from April 2019 and that from that time until the present the child has been in the care of Mr Tanner for two nights every second weekend and for a little less than half of the school holidays.

Mr Tanner’s contentions

1. Mr Tanner stated that he agreed that the care was not occurring in accordance with the court orders of [April] 2018. 

2. Mr Tanner told the Tribunal that he had some care of the child in the period between June 2018 and December 2018.  He does not agree that Mrs Tanner had 100% care of the child in that period.

3. Mr Tanner stated that he acknowledged that the child was not on occasions willing to go into his care but he also did not believe that Mrs Tanner always assisted compliance with the court orders.

4. Mr Tanner stated that he took action to try to ensure compliance with the court orders.  He tried to negotiate with Mrs Tanner by text message.  He contacted his lawyer who wrote to Mrs Tanner’s lawyer on [June] 2018 about the terms of the court order and the fact that the orders were not being followed.  The letter warned that Mr Tanner had given instructions to file a contravention application seeking enforcement of the orders in the event that the child was not made available to spend time with Mr Tanner.

5. On 6 September 2018 Mr Tanner lodged an affidavit with the Federal Circuit Court of Australia in relation to his contravention application in which he deposed that since the orders of [April] 2018 were made he had had very minimal care of the child due to the mother not complying with the ordered parenting arrangements for the child.

6. Mr Tanner’s lawyer confirmed in his letter of [April] 2019 to the family therapist that the child had continued to primarily reside with his mother but that following an informal conference [in] March 2019 new care arrangements had been agreed upon operative from April 2019. 

Tribunal’s consideration

1. The Tribunal considered all of the available evidence and it has no hesitation in finding that from 11 May 2018 the court orders were being breached in that the child was not in the 50/50 care of each of the parents.  Rather, the Tribunal is satisfied that there was no pattern of care for the child by Mr Tanner from 11 May 2018 until April 2019 when new care arrangements were made.  From 11 May 2018 the Tribunal is satisfied that although Mr Tanner had occasional nights of care, the pattern of care was that the child was in the 100% care of Mrs Tanner.

2. From 11 May 2018 the Tribunal is also satisfied that Mr Tanner took reasonable action to restore compliance with the court orders of [April] 2018.  He sent and responded to multiple text messages with Mrs Tanner seeking care of the child.  He instructed his lawyer to send a letter to Mrs Tanner’s lawyer dated [June] 2018.  His lawyer expressed Mr Tanner’s grievance that the orders were being breached and that he continued to hold the expectation that care would occur in compliance with the court orders.  He also foreshadowed that a contravention application would be filed with the court if the court-ordered care did not take place.

3. The evidence also shows that Mr Tanner lodged a contravention application in September 2018.  Within the Child Support papers is a copy of his affidavit filed on 6 September 2018.  This details the alleged breaches of the court orders of [April] 2018 and the efforts which Mr Tanner made to try to ensure compliance with those orders.  The Tribunal is satisfied that Mr Tanner took reasonable action to have care of the child in accordance with the court orders.

4. The Tribunal finds that from 11 May 2018 Mr Tanner had “reduced care of a child” as defined in section 54 of the Assessment Act which states:

   54  When a person has reduced care of a child

   A person has reduced care of a child if:

   (a)a care arrangement applies in relation to the child; and

   (b)the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

   (c)the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.

5. Paragraph 51(1)(d) of the Assessment Act applies to both Mrs Tanner and Mr Tanner in this situation. This states:

   51 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 has taken reasonable action to ensure that the care arrangement is complied with.

   Note:This section does not apply in certain circumstances: see section 53.

   (2)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.

   (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.

   (6)The single 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.

1. The Tribunal is satisfied that subsection 51(1) above applies to Mr Tanner in that:

• a parenting order applies to the child; and

• the actual care of the child does not comply with the extent of the care detailed in the parenting order; and

• Mr Tanner (being the person with reduced care of the child) has taken reasonable action to ensure that the parenting order is complied with.

1. Subsections (2), (3) and (4) of section 51 require that two percentages of care be determined in relation to Mr Tanner and Mrs Tanner.

2. The first determination under subsection 51(3) relates to the percentage of care that corresponds with the extent of care under the parenting order.  The Tribunal finds that, in this case, this is 51% care to Mrs Tanner and 49% care to Mr Tanner.

3. The second determination under subsection 51(4) relates to the percentage of care that the parents would be likely to have if the action taken by Mr Tanner to regain care of the child were not to succeed. 

4. The extent of care under the care arrangement and the actual care may be worked out based on the number of nights of care (section 54A of the Assessment Act). The Tribunal is satisfied that in this case the number of nights of care appropriately reflects the extent of care under the care arrangement and the actual care of the child.

5. Under subsection 51(4) the Tribunal finds that Mr Tanner would have care of the child for nil nights (0%) and Mrs Tanner would have care of the child for 365 nights (100%).  The Tribunal is satisfied that this is the actual care that was likely to occur if the action to ensure compliance with the care arrangement (parenting orders) were not to succeed.

6. Section 54C of the Assessment Act sets out how the first and second percentages of care apply. The first percentage of care applies for an interim period (paragraph 54C(1)(c)). An “interim period” is defined in subsection 54C(2) and states as follows:

   (2) The interim period for the determination:

   (a)      starts on the application day for the determination; and

   (b)      ends at the end of the earliest of the following days:

   (i)       the day specified by the Registrar;

   (ii)if section 51 applied in relation to the responsible person – the day before the day on which the action referred to in paragraph 51(1) ends;

   (iii)if section 52 applied in relation to the responsible person – the day before the day on which the action referred to in subparagraph 52(1)(d)(ii) ends;

   (iv)if a care arrangement in relation to the child begins to apply on a day after the application day for the determination – the day before the day on which the care arrangement begins to apply

7. The percentage that corresponds to the extent of care determined under section 51 will apply for an interim period no longer than 14 weeks starting from the day that the care changed for the responsible person. If special circumstances exist, the interim period for which the extent of care applies, may be extended to a maximum of 26 weeks. In this case the Tribunal finds that the interim period started on 11 May 2018 (being the day that the care changed) and ended 14 weeks later on 16 August 2018 being the end of the interim period and the day prior to a care determination of the actual care of 100% to Mrs Tanner and nil to Mr Tanner.

8. In special circumstances the interim period may be extended to up to 26 weeks.  However, there must be some unusual or out of the ordinary reason why the interim period should be extended.  The Child Support Guide provides that special circumstances may arise, for example, where a parent has travelled overseas with a child without the consent of the other parent resulting in protracted delays in court action.  The Tribunal is satisfied that there are no extreme or unusual factors of a kind sufficient to extend the interim period due to special circumstances.

9. The Tribunal is also mindful that subsection 51(5) provides that if special circumstances exist in relation to the child, the Registrar may determine a single percentage of care based on actual care (rather than two percentages of care).  The Act does not define “special circumstances” but the Child Support Guide advises that special circumstances must refer to circumstances that are out of the ordinary.  The Guide states:

   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.  In some cases…the parent’s own or unusual or unreasonable behaviour may also constitute special circumstances.  Special circumstances will generally be found to exist if there is evidence that the person taking reasonable action has:

   ·Assaulted or abused the child

   ·Directly involved the chid in a criminal act

   ·Withheld essential medical care from the child

   ·Substantially failed to comply with legal schooling requirements.

10. The Tribunal is satisfied that there are no special circumstances in relation to the child of the extreme nature described above which would appropriately invoke subsection 51(5) in this case.

11. The Tribunal therefore concludes that an interim care determination applies to the initial child support assessment based on a court-ordered care arrangement for the child from 11 May 2018 until 16 August 2018 (with a date of effect of 28 May 2018) of 51% care to Mrs Tanner and 49% to Mr Tanner and that thereafter – from 17 August 2018 – the care of the child was 100% to Mrs Tanner and 0% to Mr Tanner (until a new care change was notified and determined).

1. The Tribunal is satisfied that it is not necessary to consider section 95N of the Registration and Collection Act because although Mrs Tanner applied to the Tribunal almost a year after the objections officer made their decision on 27 November 2018, the Child Support Agency confirmed that Mrs Tanner was not provided with the objections officer’s decision until 3 December 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that the child is to be recorded as in the 51% care of Mrs Tanner and in the 49% care of Mr Tanner for a 14-week interim period from 11 May 2018 to 16 August 2018 (with a date of effect of 28 May 2018) and thereafter that the child is to be recorded as in the 100% care of Mrs Tanner and 0% care of Mr Tanner (until a new care determination was made).