Ticknor and Ticknor (Child support)

[2022] AATA 4990

Ticknor and Ticknor (Child support) [2022] AATA 4990 (7 November 2022)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2022/BC024330

APPLICANT:  Ms Ticknor

OTHER PARTIES:  Child Support Registrar

Mr Ticknor

TRIBUNAL:Member E Kidston

DECISION DATE:  07 November 2022

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care and existing determinations are to be revoked – whether interim period applies – special circumstances exist – no interim period to be 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

1. Ms Ticknor and Mr Ticknor are the separated parents of [Child 1] and [Child 2] (the children).  

2. This review application is about the percentages of care for Ms Ticknor and Mr Ticknor that apply in relation to the child support case registered with the Child Support Agency (CSA) for the children.

3. The percentages of care recorded by the CSA for the children were 72% to Ms Ticknor and 28% to Mr Ticknor, which followed the care arrangement set out in a Court order made [in] August 2020 (the Court Order).

4. On 23 December 2021, Mr Ticknor informed the CSA of a change in care concerning the children, such that he had sole care of them from 9 December 2021 due to safety concerns.

5. [In] January 2022 Mr Ticknor filed an initial application in the Federal Circuit and Family Court of Australia to set aside the Court Order (Family Court Proceedings).  As a party to the Family Court Proceedings, Ms Ticknor is legally represented and actively defending the matter.

6. It was common ground that the children had not resided with Ms Ticknor since 9 December 2021 and the Court Order was not followed from that date. 

7. On 15 March 2022 the CSA decided, in the circumstances of the matter, that the actual care percentage would be recorded from the date that care changed and, an interim period would not apply.  In effect this meant that the care percentages on the child support assessment for the children would be recorded as 100% care to Mr Ticknor and 0% care to Ms Ticknor with effect from 9 December 2021. 

8. On 26 April 2022, Ms Ticknor objected to the decision and on 17 June 2022, an objections officer of the CSA determined that an interim period would not apply in this matter and decided to disallow Ms Ticknor’s objection. 

9. On 26 July 2022, Ms Ticknor lodged an application with the Social Security & Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for an independent review of the objections officer’s decision.  As the objection decision was issued by post to Ms Ticknor, her appeal to the Tribunal is within time.

10. The application was heard by the Tribunal on 10 October 2022. Ms Ticknor attended the hearing by telephone conference. Mr Ticknor also attended the hearing by telephone conference. They each gave oral evidence to the Tribunal after stating an affirmation. As is customary, the Child Support Registrar or a delegate of the CSA did not attend the hearing.

11. The Tribunal deferred making a decision in this matter until 7 November 2022 to allow time to exchange additional material between the parties and for them to make any written submissions to the Tribunal. 

12. Following the hearing and prior to 7 November 2022, the Tribunal received written submissions from Ms Ticknor however, upon consideration, there was no further relevant factual information contained therein that needed to be exchanged between the parties, as such it did not form part of the additional evidence before the Tribunal for this review.

RELEVANT LEGISLATION

1. The legislation relevant to this review is found in the Child Support (Assessment) Act 1989 (the Act). This legislation sets out the rules for the Registrar, that is the CSA, for making and revoking care percentage determinations, which are then used as part of the child support formula to assess child support payment rates.

2. Before care percentage determinations can be made under the Act, the care percentage determinations in place (if one already exists) must first be revoked. The circumstances in which existing care percentage determinations may be revoked are restricted to those set out in Division 4, Subdivision C of the Act, and relevantly to the circumstances of this matter, as set out in section 54F.  In simple terms, existing care percentages generally apply until the CSA is notified of a change in care and a new care decision can be determined if there has been a relevant change in the pattern of care – including one that will impact the cost percentages.

3. The decision is made by the CSA with reference to a point in time, and usually corresponds with the actual care based on what has happened up until the change in care is notified and, what is the likely pattern of care thereafter. However, in limited circumstances where care is disputed, a person's percentage of care for child support purposes may be determined according to a written care agreement (such as a Court order) for an interim period, rather than being based on actual care.  Pursuant to section 51 of the Act, the parent with reduced care must take reasonable action to have the care arrangement complied with for the child support assessment to be based on the care arrangement specified in the Court order (for example) for the interim period.

4. In making its decision the CSA refers to the Child Support Guide, a departmental policy to assist decision-makers when deciding whether there has been a change in the pattern of care and disputed care arrangements. The Tribunal is not bound by such policy; however, where the policy is not inconsistent with the law, the Tribunal considers that it is a relevant factor that forms part of the Tribunal’s consideration.[1] Relevantly for this matter, the Child Support Guide at chapter 2.2.1 explains that there may be situations where conflicting information exists as to the care provided by the parents, and in that event, consideration will be given to the information provided and obtained and whether there is some common expectation about future care.

EVIDENCE and SUBMISSIONS

[1] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

1. In considering the application, the Tribunal took into account the submissions as well as the documentary material in evidence as provided by the CSA in accordance with subsections 37(1) of the Administrative Appeals Tribunal Act 1975 (marked Exhibit 1), as well as the additional documents provided by Ms Ticknor (marked Exhibit A) and additional documents provided by Mr Ticknor (marked Exhibit B).

Ms Ticknor’s evidence

1. Ms Ticknor’s position in relation to the substantive issue of care is comprehensively set out in her written submissions in the Application for Review, set out (unedited) hereunder: 

   The children's father unilaterally removed the children from my care in breach of established court orders. While he claims that this action was protective, it has been disclosed in court documents that this action was planned in conjunction with his solicitor. An independent social worker has not established that the father's actions were not protective but instead caused great distress. The father's actions since separation have been consistent with the financial and systems abuse experienced in the relationship.

2. Ms Ticknor's evidence to the Tribunal, in effect, was that Mr Ticknor purposefully made tactical manoeuvres to withhold care of the children from her, draw out the current Family Court proceedings, and restrict any contact she has with the children.  She also spoke of personal matters but essentially argued that she disagrees with Mr Ticknor’s submissions that his actions to withhold care are protective, and considers his actions were planned and have caused great distress to her and the children.

3. Ms Ticknor told the Tribunal that the CSA attributed significant weight to a report from the Department of Children, Youth Justice and Multicultural Affairs dated [in] August 2021 (DoC Report),[2] which she states contains inaccurate and unsubstantiated statements.  Ms Ticknor said she disagrees with the DoC Report and disputes much of references made therein, particularly in relation to her health, on the basis that it was not corroborated by medical evidence.

   [2] Folio 98 of Exhibit 1

4. Ms Ticknor argued that she has been fighting to recover care of her children since they were unfairly withheld from her in December 2021 and that a Court ordered family psychology assessment (family report by [Ms A] dated [in] July 2022 – Exhibit A) has been attained which supports her point.  Ms Ticknor told the Tribunal that although the outcome of the DoC Report stated that it has assessed the children are at risk of suffering significant harm, it also stated that the children were not in need of protection.

5. Ms Ticknor’s submission to the Tribunal, properly put, challenged the CSA’s decision to exercise the discretion under subsection 51(5) of the Act and not grant an interim period. Thereby, requesting that the care percentages ought to be reflective of the Court Order as 72% to her and 28% to Mr Ticknor, for a certain period, despite the change in care on and from 9 December 2021.

Mr Ticknor’s evidence

1. Mr Ticknor’s position in relation to Ms Ticknor’s application to the Tribunal is detailed in his written submissions in Exhibit B and, in effect, he sought the Tribunal dismiss the application for review as he considers the CSA’s decision to not apply an interim care determination based on special circumstances of the matter is correct. 

2. Mr Ticknor submitted that his affidavits in Exhibit B provide extensive detail of the basis for his actions to withhold care and commence legal proceedings. In short, he told the Tribunal that the children have been in his care since 9 December 2021 due to the concerns he held for their safety and protection after he received the DoC Report. On his evidence, Mr Ticknor first received the DoC Report in early December 2021.

3. Mr Ticknor stated that the DoC Report prompted him to act and, he did so. He said he immediately withheld care of the children from Ms Ticknor, sought legal advice from his solicitor and commenced the Family Court Proceedings as early as practically possible in January 2022 (after the Christmas break) to set aside the Court Order as it was no longer in the children’s best interest. 

4. Mr Ticknor told the Tribunal that his actions from 9 December 2021 were reasonable and necessary to protect the health and safety of the children.

ISSUES

1. It is convenient for the Tribunal to immediately outline that the Tribunal is required to consider the relevant issues before it based on the facts and application of the law and it is not the role of the Tribunal to adjudicate on how the CSA has conducted itself in relation to information it has received and the weight it attributed to certain evidence in forming its decision.  Furthermore, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate (paragraph 33(1)(c) of the Administrative Appeals Tribunal Act 1975). As such, in a full merits review, submissions may be made to the Tribunal in relation to information and documents contained in the Exhibits without formality. However, in stating that, the Tribunal does not disregard the issues that can arise where a person tries to understand the process of how the law applies in child support matters when other legal proceedings are on foot and the possible difficulties with navigating through these different processes.

2. The application before the Tribunal in this instance is limited to a consideration of whether, following Mr Ticknor’s notification to the CSA at the end of 2021, the care of the children from 9 December 2021 has continued to be in accordance with the existing percentages of care as recorded by the CSA or not, and whether the existing percentages of care should be revoked. If the percentages of care should be revoked, the Tribunal must then decide what new percentages of care are to be attributed to Ms Ticknor and Mr Ticknor, the dates of effect, and whether an interim period applies.

CONSIDERATION

1. In evidence, there is no dispute between the parties that a change in care occurred on 9 December 2021 and the children had been in Mr Ticknor’s sole care since that date, contrary to the Court Order.

2. As the care that was actually taking place for the children did not correspond with the existing care percentages recorded by the CSA, and the change in pattern of care to Mr Ticknor having sole care clearly changed the parents’ respective cost percentages, section 54F of the Act applies. It is therefore correct to revoke the existing care percentages.

3. Mr Ticknor notified the CSA of the change in care within 28 days of the change having occurred, therefore the date of effect of the revocation in this matter is the day before the care changed (subsection 54F(3)) – 8 December 2021.

4. Accordingly, the Tribunal finds the CSA was correct to revoke the existing care percentage determinations concerning the children from 8 December 2021.

5. It was then necessary for the CSA to determine and apply new care percentages to the parents. As noted above, the general rule is that a parent’s recorded care percentage will reflect their actual care. However, there are exceptions to that general rule, and the potentially relevant exception in this matter is pursuant to section 51 of the Act.

Interim period

1. Under section 51, the framework for determining when the new care percentages apply is treated differently where action is taken by the parent with reduced care to ensure that a care arrangement (which includes a Court order) in relation to a child is complied with.  There are four elements in subsection 51(1) that must be met before the provision may be enlivened.

2. From the evidence in Exhibit 1, the Tribunal is satisfied that the four requirements in subsection 51(1) are met, as follows:

   (a)  the CSA was required to make a new care decision following the change in care that occurred on 9 December 2021;

   (b)  a Court Order applies in relation to the children;

   (c)   the parents’ actual care of the children since 9 December 2021 has not complied with the Court Order; and

   (d)  Ms Ticknor, as the parent with reduced care, took reasonable action by seeking legal advice in regards to recovery of care pursuant to the Court Order and as evidenced in the correspondence between the parents respective legal representatives in Exhibit 1, Exhibit A and Exhibit B.

3. When the four parts in subsection 51(1) of the Act are satisfied, subsection 51(2) requires the CSA to make and apply two care decisions to the child support case. The first decision reflects the care that should have been provided pursuant to the Court Order (subsection 51(3)). Such a decision is called an interim care determination and it applies for a certain number of weeks, the duration of which depends on the circumstances and the conduct of the parties (interim period). The second decision reflects the care that was actually being provided, and it applies once the interim period ends (subsection 51(4)). 

4. Essentially, the application of section 51 for child support assessment purposes, results in the care arrangement as specified under a breached Court order stays in place during an interim period and the actual care occurring applies afterwards.  However, that being stated, the legislation also provides a discretion at subsection 51(5) of the Act to only apply one care percentage determination because the decision-maker is satisfied that special circumstances exist in relation to the children. In such cases, the percentage of care is immediately based on the actual care so that no interim period will apply. 

5. In this matter, the CSA officer at first instance and the CSA objections officer upon review determined that special circumstances existed and exercised the discretion under subsection 51(5), such that the care percentages were based immediately upon the actual care of the children despite Ms Ticknor having satisfied the four requirements in subsection 51(1) of the Act.

6. Accordingly upon this review, the Tribunal must now consider whether special circumstances exist in relation to the children and whether the application of subsection 51(5) is the correct or preferable decision in this case.

Special circumstances

1. The term “special circumstances” is not defined in the Act.  The Child Support Guide at 2.2.4 explains that the 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 or children. 

2. The Guide at 2.2.4 also particularises the kind of special circumstances that might result in this discretion being exercised and whether there was a substantial risk to the physical, emotional or psychological well-being of the child or children if the care arrangement had continued and, that a decision should be made on the basis of evidence that supports a relevant finding of fact. 

3. Ms Ticknor’s submissions to the Tribunal were that Mr Ticknor prevented the children returning to her care and breached the Court Order on and from 9 December 2021.  Ms Ticknor told the Tribunal that upon Mr Ticknor’s breach, she immediately sought legal advice to recover care of the children and disputes the statements made in the DoC Report.  In effect, that the interim period should apply as the Family Court Proceedings are ongoing and her further evidence that interim orders confirm that the Court Order remains in place.

4. Mr Ticknor’s submissions were that the interim period should not apply as the children stayed in his care for their own safety and protection. He said that he acted on the DoC Report and commenced the Family Court Proceedings to set aside the Court Order and for a new custody arrangement to be put in place.   Until a new Court order is in place, he considers his actions are reasonable and necessary to protect his children and, the children would remain in his care until the Family Court Proceedings were determined. 

5. Further submissions were made by both parties of the processes undertaken since January 2022 in the Family Court Proceedings, which as at the date of the hearing before this Tribunal, is still on foot. From the evidence, the matter has been before the Court on three occasions ([in] February 2022, [April] 2022 and [July] 2022) and, on each of those occasions, interim orders were made requiring further evidence and/or assessments. The Tribunal also noted that the interim order made [in] July 2022 adjourned the hearing to 8 November 2022.

6. In relation to Ms Ticknor’s submission that Mr Ticknor’s actions are calculating and tactical with the protraction of the Family Court Proceedings, the Tribunal acknowledges that legal proceedings associated with parenting matters, albeit interim proceedings, can be protracted as they often require the provision of relevant material or procuring independent reports, which takes time. Having regard to the Court documents in evidence, it provides a chronology of events and list of the documents required to be filed in relation to the Family Court Proceedings.  Relevantly, the most recent interim order required an independent psychiatric report of Ms Ticknor, this implies that her mental health and wellbeing is relevant to the issues being determined by the Court, namely custody of the children. Based on the available evidence, the Tribunal considers the requirement for the Court to seek further independent medical evidence is relevant and unlikely a tactic to prolong proceedings. Accordingly, the Tribunal places little weight on this aspect of Ms Ticknor's contentions regarding the legal processes.

1. The Tribunal now turns to Ms Ticknor’s submissions in relation to the CSA’s reliance on the DoC Report.  As noted above, the Child Support Guide suggests that allegations of harm to, or safety of children must be supported by independent evidence to result in the discretion provided for in subsection 51(5) being exercised. In this matter, the Family Court is yet to undertake an objective analysis of the evidence, which includes the DoC Report, to assess risk of psychological, emotional or physical harm for the children, as well as a determination on either parent’s capabilities as a parent or attitude to the responsibilities of parenthood, it is not the role of this Tribunal or the CSA to make determinations on that issue but rather, the Tribunal is required to consider whether the DoC Report is independent evidence of the allegations Mr Ticknor asserted formed the basis to depart from the formal care arrangement under the Court Order. In other matters before the Tribunal, departmental child safety reports or police reports that note a child’s risk of harm or safety, even if disputed by the other parent, stands as acceptable independent third party evidence.  Therefore the Tribunal considers the DoC Report, despite its veracity being contested by Ms Ticknor, is an independent departmental report on its assessment of information it received concerning the children’s welfare at a point in time.

2. As there are current legal proceedings, without judicial determination or other resolution in relation to that matter, the Tribunal considers the preferred approach is to adopt the policy of the CSA in the context of protecting children from risk of harm and, agrees with the decision to accept the DoC Report as independent evidence that supports allegations of concern regarding the risk of harm to and safety of the children at the point in time when Mr Ticknor withheld care of the children from Ms Ticknor and commenced legal proceedings. 

3. Further, the Tribunal had particular regard to the Interim Orders and that, on an interim basis, care of the children was recorded to Mr Ticknor. Further, the interim orders made by consent [in] July 2022 states that the children spend time with Ms Ticknor from 9am to 4pm each Sunday. The Tribunal infers from this that Mr Ticknor has and continues to have sole care until further determination is made by the Court. The Tribunal considers this weighty evidence of an aligned position for the immediate care of the children at the time care changed, and going forward, whilst legal proceedings ensued.

4. In conclusion, having considered all of the evidence, the Tribunal is satisfied that there are special circumstances that relate to the children directly such that the discretion pursuant to subsection 51(5) of the Act should be exercised and an interim care period should not apply in this matter.  Further, the evidence supports there was common ground between the parties that Mr Ticknor would have interim care of the children, which in the Tribunal’s view, supports the CSA’s application of actual care percentages as the correct or preferrable decision.

5. Given the Tribunal’s conclusion that special circumstances exist and no interim care period will apply, the Tribunal concludes that the CSA’s decision that the percentage of care be recorded on the actual care of the children as 100% to Mr Ticknor and 0% to Ms Ticknor from 9 December 2021, is correct and will be affirmed.

Other matters

1. Submissions were made by Ms Ticknor during and after the hearing regarding a number of other background issues which are not relevant to the issues before the Tribunal and therefore are not mentioned in these Reasons. By not noting those issues, the Tribunal does not diminish the importance of other matters in any way, merely that the Tribunal is limited to considering the relevant issues concerning the decision under review.

DECISION

The decision under review is affirmed.