Windle and Monyn (Child support)

[2021] AATA 690

Windle and Monyn (Child support) [2021] AATA 690 (20 January 2021)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC020179

APPLICANT:  Mr Windle

OTHER PARTIES:  Child Support Registrar

Ms Monyn

TRIBUNAL:Member S Letch

DECISION DATE:  20 January 2021

DECISION:

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with paragraphs 16 to 19 of these Reasons.

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 interim period should have been considered – decision under review set aside and sent back to the Child Support Registrar for reconsideration

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

1. Mr Windle and Ms Monyn are the parents of [Child 1] and [Child 2] (“the children”). This case concerns how the Child Support Agency (CSA) has recorded care for the children.

2. Care had been recorded as 70% to Ms Monyn and 30% to Mr Windle when, on 17 July 2020, Ms Monyn reported to the CSA that she had 100% care of [Child 1] from 25 April 2020 and 100% care of [Child 2] from 25 May 2020.

3. On 20 August 2020, the CSA decided to accept Ms Monyn’s advice and accepted she had 100% care of the children from the dates she advised. The CSA declined to consider giving Mr Windle the benefit of an interim period. Mr Windle objected to the decision on 21 August 2020.

4. On 29 October 2020, an objections officer disallowed Mr Windle’s objection. Mr Windle promptly applied for further review by the Tribunal.

5. Mr Windle and Ms Monyn participated in the Tribunal’s hearing by conference telephone.

6. During the hearing, both parties raised issues not directly relevant to the relatively narrow focus of the decision under review. The critical parts of the evidence reveal that there had been compliance, or substantial compliance, with Court Orders made in mid-2019; Mr Windle missed a “care event” over the Christmas 2019 school holidays. However, his care resumed at the start of the school year in January 2020. There was no dispute that Mr Windle had no care of [Child 1] and [Child 2] from April and May 2020 respectively.

7. The approach of the CSA was to refuse to consider whether Mr Windle could benefit from an interim period on the basis that the Court Orders were not being followed.

8. The Tribunal understands there to be some divergence of opinion about whether the CSA policy position – namely, that non-adherence to Court Orders and a suggestion such orders may have been abandoned by one or both parents – excludes consideration of an interim period.

9. In the interests of consistent decision making, the Tribunal will ordinarily apply policy guidelines where they are not inconsistent with the legislative regime: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.

10. The Tribunal sees no particular reason to depart from the general policy position here.

11. However, the CSA policy guidelines also permit a reasonable degree of flexibility by allowing “missed care events” before a conclusion is reached there has been a change to the pattern of care. It is not intended that these care determinations account for every single day, and a “broad brush” is applied. Here, it seems to the Tribunal that aside from a missed care event around the Christmas holidays of 2019, there has been compliance, or substantial compliance, of the Court Orders of 2019.

12. Given those conclusions, the Tribunal is not satisfied it could be suggested the Court Orders of 2019 had been abandoned by Mr Windle. Contrary to the CSA position, the Tribunal finds that Mr Windle is not excluded from accessing the interim period provisions in respect of the change of care which occurred in April and May 2020. There is a clear – and entirely sensible – policy intention to not encourage disobedience of Court Orders by giving a benefit in a child support assessment to a parent who unilaterally contravenes Court Orders (without justification in special circumstances, such as for the safety and welfare of a child).

13. The Child Support Guide, at 2.2.4, provides the following policy guidance about whether a person is taking “reasonable action” for the purposes of section 51 of the Child Support (Assessment) Act 1989:

    Taking reasonable action to ensure compliance with care arrangement

    The person with reduced care must take reasonable action to ensure compliance with the care arrangement throughout the interim period in order to have the child support assessment continue to be based on the care arrangement for the interim period. If the person with reduced care ceases taking reasonable action, the interim period will end on the day the reasonable action ceased. 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.

    This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of both parties and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

    ·     a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,

    ·     documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

    ·     documentation of police or court action.

14. As can be seen, the guidelines adopt a relatively broad and sensible approach to what constitutes reasonable action.

15. The evidence reveals continuous engagement by Mr Windle of legal representation and active participation in legal proceedings at all material times, culminating in new Court Orders (on application by Ms Monyn) by the Court in November 2020. This includes an application by Mr Windle filed on 28 April 2020 for an alleged contravention of the existing parenting orders in December 2019, in addition to regular communications by his legal representative.

16. In the Tribunal’s assessment, Mr Windle was essentially engaged with the highest form of action he could reasonably take. In practical terms, he was continuously engaged with attempting to enforce his rights under the 2019 Court Orders. The policy guidelines do not require that a person take every possible step or avenue available; rather, the action they take need only be reasonable. Consistent with the relatively broad policy guidelines, Mr Windle should properly be regarded as taking reasonable action at all material times.

17. Accordingly, consideration should be given to whether an interim period should apply. The CSA did not turn its mind to that question as it regarded Mr Windle “falling at the first hurdle” by alleged non-observance to the 2019 Court Orders; the Tribunal has formed a different view.

18. There are a number of considerations to be taken into account in determining the length of an interim period in respect of each child, including whether there are special circumstances which would warrant an interim period being excluded.

19. In the circumstances, the Tribunal considers the better approach is to provide the CSA the opportunity to fully consider the matters it did not turn its organisational mind to on what the Tribunal considers its erroneous conclusion that Mr Windle was barred from accessing the interim provisions. Whilst this will delay a conclusion in the matter, it will give both parties the opportunity to access further internal and external review rights in respect of what will be fresh determinations with fresh rights.

20. As the Tribunal has reached a different conclusion to the objections officer, the decision under review will be set aside.

DECISION

The decision under review is set aside and the matter is sent back to the Child Support Registrar for reconsideration in accordance with paragraphs 16 to 19 of these Reasons.