Wornum and Pether (Child support)

[2023] AATA 3305

Wornum and Pether (Child support) [2023] AATA 3305 (29 August 2023)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2023/HC025844

APPLICANT:  Miss Wornum

OTHER PARTIES:  Child Support Registrar

Mr Pether

TRIBUNAL:Member M Baulch

DECISION DATE:  29 August 2023

DECISION:

The tribunal set aside the decision under review and, in substitution, decided that the percentages of care applying in the child support assessment are to record Miss Wornum as having 100% care of [Child 1], with effect from 1 November 2022, and Mr Pether as having 0% care of [Child 1], with effect from 17 August 2022.

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 an interim period should apply – special circumstances in relation to the child – decision under 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. The Child Support (Assessment) Act 1989 (the Act) provides for an administrative assessment of the child support payable by one separated parent to the other.  It uses a statutory formula which contains variables such as the parents’ adjusted taxable incomes, the ages and number of children and their percentages of care.

2. Miss Wornum and Mr Pether are the separated parents of [Child 1].  Since 3 January 2012, Mr Pether has been assessed as liable, by Services Australia – Child Support (Child Support), to pay child support to Miss Wornum.  Until recently, that assessment was based upon Miss Wornum having 69% care of [Child 1] and Mr Pether as having 31% care of [Child 1], reflecting a court order that had applied since 3 March 2022.

3. On 1 November 2022, Miss Wornum advised Child Support that there had been a change to the care arrangements for [Child 1] on 10 August 2022, such that she had 100% care of [Child 1] and Mr Pether had 0% care.

4. That information was considered by Child Support and it was decided, on 12 January 2023, that there would be new care percentage determinations made, such that:

   ·      Miss Wornum would be assessed as having 69% care of [Child 1] from 10 August 2022 to 1 March 2023, and then 100% care from 2 March 2023; and

   ·      Mr Pether would be assessed as having 31% care of [Child 1] from 10 August 2022 to 1 March 2023, and then 0% care from 2 March 2023

   (the decision under review).

5. Miss Wornum objected to that decision and, on 9 March 2023, that objection was disallowed.  Miss Wornum has now applied to this tribunal seeking an independent review of Child Support’s decision.

6. A hearing into the application for review was held by the tribunal on 14 August 2023.  Miss Wornum attended the hearing in person and Mr Pether participated in the hearing by telephone, and both gave evidence under affirmation during the hearing.  A representative of the Child Support Registrar (the Registrar) did not participate in the hearing. 

7. On 14 August 2023, the tribunal deferred determining the application for review to allow time for Mr Pether to receive and, if he wished, make comment in writing on additional material lodged with the tribunal by Miss Wornum.  The original deadline for Mr Pether to respond was close of business, 23 August 2023.  However, due to delays in the additional material being delivered to Mr Pether, the deadline for response was extended to close of business, 28 August 2023.

8. On 29 August 2023, having received no response from Mr Pether to the additional material lodged by Miss Wornum, the tribunal determined the application for review. The tribunal had before it relevant documents provided to it by Child Support pursuant to sections 37 and 38AA of the Administrative Appeals Tribunal Act 1975 (134 pages), copies of which both parties confirmed they had received prior to the tribunal hearing.  The tribunal also had regard to additional material lodged by Miss Wornum, labelled folios A1 to A11, copies of which were delivered to Mr Pether by Australia Post on 21 August 2023.

ISSUES

1. The statutory provisions relevant to this review application are found within the Act.

2. The issue which arises in this case is what should the care percentages be for [Child 1] in the child support assessment that applies to Miss Wornum and Mr Pether?

CONSIDERATION

1. Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that the parents will have in relation to their child during a care period. 

2. Since 15 July 2022, the percentages of care that had applied in the child support assessment had recorded Miss Wornum as having 69% care of [Child 1] and Mr Pether as having 31% care.  These care percentages reflected the care occurring under a court order that has applied since 3 March 2022.

3. It was undisputed that the court order had been followed until 10 August 2022, and from that date Mr Pether had no care of [Child 1].  However, the evidence was that the first date upon which Mr Pether did not have care, where he should have had care under the court order, was 17 August 2022.

4. I was therefore satisfied, and so found, that Miss Wornum had 100% care, and Mr Pether 0% care, from 17 August 2022.

5. Usually, the Registrar will determine a pattern of care based upon the extent of the actual care that each parent has of their child.  However, this may not apply if a care arrangement applies, and that care arrangement is not being complied with (see section 51 of the Act). 

6. A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.[1]  I was satisfied that the court order dated 3 March 2022 constitutes a care arrangement in respect of [Child 1] and it had been complied with until 17 August 2022.  I therefore considered if section 51 of the Act should be applied in this case.

   [1] See section 5 of the Act and section 3 of the A New Tax System (Family Assistance) Act 1999

7. Section 51 of the Act says that a care determination may be made (known as an “interim determination”) if a care arrangement, such as a court order, is not being complied with and the parent with reduced care takes “reasonable action” to have the court order complied with.  What constitutes reasonable action is not defined in the Act, but government policy in this regard is set out in the Child Support Guide (the Guide), which states, at 2.2.4, that reasonable action could include:[2]

   ·      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 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.

   ·      Notifying the police that the child has been taken without consent.

   I am not bound by policy as set out in the Guide.  However, in Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39, the Federal Court held that a tribunal should take into account relevant government policy which is not inconsistent with the provisions or objects of the legislation. In this instance, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [2] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.73 – can be found at >

   Mr Pether’s evidence was that shortly after becoming aware that Miss Wornum was withholding [Child 1] from his care he contacted his lawyer.  Miss Wornum had applied to the courts to have new orders made relating to [Child 1’s] care, and Mr Pether stated he sought an interim order seeking care to resume while Miss Wornum’s request for new orders was considered.  Ultimately, Mr Pether’s request for interim orders was withdrawn, but he continues to be engaged in court action initiated by Miss Wornum resisting her request to have the orders changed.

8. Having considered the evidence, I was satisfied that Mr Pether took reasonable action to have the court order dated 3 March 2022 complied with.

9. As a consequence, subsection 51(2) of the Act requires that two percentages of care be determined – one being the care that should have occurred under the care arrangement (the court order) and the other being the care actually taking place.  In this instance, I concluded that those percentages of care would be:

   ·      Care according to the court order – 69% for Miss Wornum and 31% for Mr Pether (pursuant to subsection 51(3) of the Act); and

   ·      Care that was actually occurring – 100% for Miss Wornum and 0% for Mr Pether (pursuant to subsection 51(4) of the Act).

10. Subsection 51(5) of the Act provides that, if special circumstances exist, a single percentage of care – rather than two percentages of care – may be determined based upon the actual care taking place.  The meaning of special circumstances is not defined in the legislation, but is described in the Guide, which states:

    …. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This 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.

    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. Examples of unreasonable or inappropriate behaviour of the parent include:

    ·violence towards the child or the person with increased care

    ·exposing the child to family violence (within the meaning of section 4AB of the FL Act)

    ·directly involving the child in a criminal act

    ·exposing the child to alcohol, drugs or substance abuse

    ·substantially failing to comply with legal schooling requirements, and/or

    ·neglecting the child’s basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.

    The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.

    Once again, I accepted the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

11. Miss Wornum stated that she had withheld [Child 1] from Mr Pether’s care following [Child 1] making a disclosure that they had been sexually abused by Mr Pether.  Miss Wornum stated that following [Child 1’s] disclosure, she contacted the police, child safety services, the Sexual Assault Support Service and her lawyer.  She also arranged for [Child 1] to engage with a psychologist.  Miss Wornum’s evidence was that the psychologist advised her that if she permitted [Child 1] to be in Mr Pether’s care, the psychologist would make a child safety report against Miss Wornum.  It was not disputed that the police, after investigating the matter, took no actions in relation to [Child 1’s] disclosures.

12. Miss Wornum’s evidence was that [Child 1’s] psychologist has suggested that [Child 1] suffers from complex post-traumatic stress disorder.  The validity of this diagnosis is contested by Mr Pether and the court has ordered that a psychiatrist be consulted, however difficulties in accessing a psychiatrist has meant this process has been delayed and it has been determined that [Child 1] should be assessed by an independent clinical psychologist instead.  Miss Wornum’s evidence was that [Child 1] does not wish to be in Mr Pether’s care and, if care were to resume, she was concerned that [Child 1] would be at risk of suicide or self-harm.

13. Mr Pether emphatically denied that the events disclosed by [Child 1] had occurred.  In relation to the Section 67ZA Notification – Notice of Risk Response prepared by Children, Youth and Families services, which referenced [Child 1’s] exposure to past incidences of family violence and emotional abuse, in addition to the recent allegations of sexual abuse, Mr Pether stated that allegations are just allegations, and nothing has been proven.  Mr Pether did not accept that there were well-founded concerns for [Child 1’s] welfare when in his care.

14. I had regard to a Child Impact Report, dated [in] June 2023, completed by Court Child Expert, [Ms A], in which she noted at [30] and [31] that:

    30.The information gathered in this assessment suggests that [Child 1’s] (sic) believes she has been sexually abused by Mr Pether.  While the substance of this allegation is disputed, there was nothing presented by Ms Wornum or [Child 1] in this assessment that specifically cast doubt on or contraindicated the reported abuse.  Regardless of whether the factual circumstances are found to be substantiated or not, this issue has had, and will continue to have, a significant impact on [Child 1’s] well-being and her feelings of safety in her relationship with Mr Pether into the future.  [Child 1] would benefit from a highly cautious and considered approach to future decision making about her time and relationship with her father given the seriousness of this issue and the level of vulnerability she has presented with in the context of this assessment.

    31.In the event that it is determined that [Child 1’s] time with Mr Pether resume, there would need to be significant and substantial psychological support for all and safe guards such as supervision and injunctive/restraining orders in relation how Mr Pether can behave towards [Child 1]. … However, it is possible that if a resumption of time is attempted against her expressed wishes, and/or in a manner that she does not identify as being safe and supported, [Child 1’s] mental health could deteriorate and she may engage in unsafe, self-harming behaviours, as she has referenced in the context of this assessment. [my emphasis]

15. It was my view that [Ms A’s] report suggests that there are significant grounds for concerns about [Child 1’s] wellbeing had they continued to spend time in Mr Pether’s care.  I was therefore satisfied that, irrespective of whether the events disclosed by [Child 1] occurred or not, had Mr Pether’s care of [Child 1] continued in accordance with the court order, there would have been a substantial risk to [Child 1’s] physical, emotional and psychological wellbeing. 

16. I consequently found that special circumstances are present such that the discretion provided for in subsection 51(5) of the Act not to make an interim care determination should be exercised in this case. 

17. Therefore, an interim determination pursuant to section 51 of the Act will not be made, and the care percentages are to be determined on the actual care taking place.

18. Subsection 54F of the Act provides that an existing care percentage determination must be revoked if Child Support is notified, or becomes aware, that the actual care that is taking place does not correspond with the existing percentages of care recorded and that change would alter the cost percentage used for the parent in the administrative assessment. 

19. Section 55C of the Act contains a table that is used to work out a person’s cost percentage:

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

I was satisfied that the pattern of care that applied from 17 August 2022 would result in a change to the cost percentages used for [Child 1] in the child support assessment.  Therefore, the existing care determinations that have applied since 15 July 2022 must be revoked.

1. Subsection 54F(3) of the Act prescribes when a care percentage revocation takes effect.  If Child Support is advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.  However, if notification occurs more than 28 days after the change in care arrangements occurs, the revocation of the care determinations takes effect for each parent as follows:

   ·      If the parent’s care of the child has increased – the day before the Registrar is notified, or otherwise becomes aware, of the change in care; or

   ·      If the parent’s care of the child has reduced – the day before the change of care occurred.

2. The care occurring for [Child 1] changed on 17 August 2022 and Miss Wornum advised Child Support of this on 1 November 2022, which is more than 28 days later.  As Miss Wornum had increased care, her care percentage determination is revoked from the day before the day Child Support was notified of the change in care; that is, from 31 October 2022.  As Mr Pether had reduced care, his care percentage determination is revoked from the day before the care changed; that is, from 16 August 2022. 

3. As I have revoked the existing care percentage determinations that apply in respect of [Child 1], I must make new care percentage determinations that reflect the pattern of care from 17 August 2022.  Accordingly, I found that:

   ·      Pursuant to section 50 of the Act, Miss Wornum’s percentage of care for [Child 1] is 100%.

   ·      Pursuant to section 49 of the Act, Mr Pether’s percentage of care for [Child 1] is 0%.

   According to section 54B of the Act, the new care determinations apply from the day after the previous care determinations were revoked.  That will be from 1 November 2022 for Miss Wornum and 17 August 2022 for Mr Pether.

4. My decision is different to that made by Child Support on 12 January 2023.  Therefore, and for these reasons, I decided to set aside the decision under review and substitute my own decision.

DECISION

The tribunal set aside the decision under review and, in substitution, decided that the percentages of care applying in the child support assessment are to record Miss Wornum as having 100% care of [Child 1], with effect from 1 November 2022, and Mr Pether as having 0% care of [Child 1], with effect from 17 August 2022.