Worrell and Lester (Child support)

Worrell and Lester (Child support) [2024] AATA 1892 (18 April 2024)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2023/BC027097
APPLICANT:  Mr Worrell
OTHER PARTIES:  Child Support Registrar
Ms Lester

TRIBUNAL:Member A Ryding
DECISION DATE: 18 April 2024
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

a) For the period 28 August 2023 to 3 December 2023, an interim care period applies such that Mr Worrell had 42% care and Ms Lester had 58% care of [Child 1].
b) From 4 December 2023, Mr Worrell has 0% care and Ms Lester has 100% care of [Child 1].

CATCHWORDS

CHILD SUPPORT – percentage of care – interim care period – percentage of care – percentages be revoked – interim care period – previous care determination not being followed – reasonable action taken – special circumstances – 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

This is an application to the Social Services and Child Support Division of the Administrative Appeals Tribunal (the Tribunal) for review of a decision of Services Australia – Child Support (Child Support) regarding the percentage of care attributable to each of the parents in this matter.
The applicant, Mr Worrell, and one of the other parties to this application, Ms Lester, are the parents of one child, [Child 1] (born [in] April 2011).
On 3 April 2024, the Tribunal conducted a hearing in this matter by MS Teams audio. Mr Worrell and Ms Lester participated in the hearing. Child Support did not participate and instead relied upon its documents.
Before the Tribunal were hearing papers supplied by Child Support, numbered 1 to 216, documents provided by Mr Worrell, numbered A1 to A8, and documents provided by Ms Lester, numbered B1 to B35 (together, the hearing papers). Mr Worrell and Ms Lester provided evidence on affirmation at the hearing.
The Tribunal has had regard to all of the documents provided to it and the evidence provided by Mr Worrell and Ms Lester. Reference below is made only to the documents and evidence relevant to this decision.
Mr Worrell and Ms Lester have had a registered child support case in relation to [Child 1] since 1 May 2014.
[In] September 2017 the Family Court made orders providing for [Child 1] to live with Ms Lester, with Mr Worrell to have two nights care one week, and four nights care each alternate week (the Court Orders) (folio 37). There was provision for [Child 1] to spend up to four weeks each year with each parent during holidays.
From 29 November 2021, care was shared on a 50/50 basis, with each parent providing care on a “one week on, one week off” basis.
On 28 August 2023, Ms Lester notified Child Support of a change in care, and said that from 28 August 2023, care would recommence in accordance with the Court Orders, that is, 42% to Mr Worrell and 58% to Ms Lester (folio 34). Mr Worrell agreed with this (folio 58).
On 4 September 2023, Child Support made a determination to reflect the care of [Child 1] as 42% to Mr Worrell and 58% to Ms Lester, from 28 August 2023 (folio 56).
On 8 September 2023, Ms Lester objected to that determination on the basis that care in accordance with the Court Orders was supposed to recommence on 28 August 2023, however [Child 1] had been in her care 100% since 20 August 2023 (folio 107).
In a call with Child Support on 23 October 2023, Mr Worrell stated that Ms Lester had withheld care of [Child 1] from him since 28 August 2023 (folio 124).
On 26 October 2023, Child Support provided its objection decision (the Objection Decision) (folio 18), to reflect the care of [Child 1] as 0% to Mr Worrell and 100% to Ms Lester from 28 August 2023. Child Support considered whether an interim care determination could be made[1] but determined that it could not because the care arrangement (that is, the Court Orders) was not being followed at the time the care changed in August 2023.
[1] What this means is addressed below.
On 22 November 2023, Mr Worrell applied to the Tribunal for review of the Objection Decision. His grounds of appeal were as follows (verbatim):
The recommencement of the court ordered care of [Child 1] never eventuated due to Ms Lester refusing me access to [Child 1]; refer to below email:
From: Ms Lester <[redacted]>
Sent: Tuesday, August 29, 2023 8:01 pm
To: [Mr Worrell] <[redacted]>
Subject: [Child 1]
Hi,
Please be advised [Child 1] has expressed that he does not wish to return to your care this Thursday, therefore he will not be returning to your care until the matter is resolved.
I have sought legal advice and initiated mediation to hopefully resolve the issues going forward.
Regards,
Ms Lester
This refusal is against section 5 of the court orders.
5. That the child shall spend time and communicate with father at all reasonable times as may be agreed between the parties but failing agreement as follows:-
a) In week 1 – From the conclusion of school or 3pm on non school days on Wednesday until the commencement of school on Friday or 3pm on non school days;
b) In week 2 – From the conclusion of school or 3pm on non school days on Thursday until the commencement of school on Monday or 3pm on non school days;
I am continuing the mediation process with the Family Relationship Centre, to get resolution on the breach of these orders, with the outlook to re-commence time with my son.
Prior to the refusal of access, [Child 1] was in my care for 16 out of the first 20 days of August.
I am asking for the care objection to be put on hold whilst mediation and potential court hearings are finalised.

ISSUES

The child support scheme is intended to assist separated parents to take responsibility for the financial support of their children. It recognises that parents have a primary duty to maintain their children.[2]
[2] Section 3 of the Assessment Act.
How child support is assessed by Child Support and provided by parents is governed by the Child Support (Assessment) Act 1989 (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act).
Part 5 of the Assessment Act sets out the way in which the annual rate of child support payable by a parent for a child for each day in a child support period is to be calculated. A critical element of that calculation is each parent’s “percentage of care” for the child, which falls to be determined under sections 49 to 54E of Subdivision B of Division 4 of Part 5 of the Assessment Act.
Determining the applicable percentage of care involves identifying the amount of time a parent is responsible for providing care for the child. This requires consideration of the percentage of care that the person is likely to have, or has had, of the child during the relevant care period. Each time the care provided by one or other parent changes, a new care period arises and Child Support must consider if there has been a change in the percentage of care and what the new percentage of care should be.
The issues for consideration in this application are:
·      Has there been a change in care? If so, should the existing percentages be revoked? If so,
·      From when (if at all)?
·      Should an interim care period apply?

CONSIDERATION

Issue 1: Has there been a change in care? If so, should the existing percentages be revoked?

A “care period”[3] is calculated from the day on which the actual care of a child changed and is stated in the Assessment Act to be “such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.
[3] Defined in subsection 5(1) of the Assessment Act to have the meaning given by paragraph 49(1)(a), subparagraph 49(1)(b)(ii), paragraph 50(1)(a) or subparagraph 50(1)(b)(ii).
The term “care” is not defined in the Assessment Act or the Registration and Collection Act. Subsection 54A(1) of the Assessment Act allows the Child Support Registrar to determine actual care by reference to the number of nights the Registrar is satisfied the child was, or is likely to be, in the care of the person during the care period.
The Tribunal finds that Mr Worrell and Ms Lester were sharing care by and large (that is, with some minor variations) on a 50/50 basis from 29 November 2021.
The evidence supports, and Mr Worrell and Ms Lester agree, that care changed on 28 August 2023, when [Child 1] became in the care of Ms Lester 100% and Mr Worrell 0%.
The Tribunal therefore finds that there was a change in care on 28 August 2023, and that from 28 August 2023, care was 0% to Mr Worrell and 100% to Ms Lester.
As there has been a change in care, the Tribunal must consider whether to revoke the existing care percentage determination.[4]
[4] Section 50 of the Assessment Act.
The Tribunal has considered most carefully the issue of revocation. Section 54G of the Assessment Act is the appropriate section under which to revoke if:
·There is an existing care determination under which the parent was to have at least regular care. The Tribunal finds that this limb is satisfied where it has found that the prior care determination gave Mr Worrell care 50% of the time.
·The parent now has no care or less than regular care. This limb is satisfied given the finding above that, from 28 August 2023, care was 100% with Ms Lester.
·Has the child been made available to that parent? This is discussed further below.
·Has the new care percentage been determined under section 50 of the Assessment Act? The Tribunal finds that this limb is satisfied.
·Was the notification of a care change from the other parent (here, Ms Lester) received within a reasonable time? Ms Lester notified of the care change on 28 August 2023, the date of the care change. The Tribunal finds that this limb is satisfied.
As regards whether Ms Lester made [Child 1] available to Mr Worrell, the position is impacted by the fact that [Child 1] was, at the relevant time, 13 years old. As discussed below, both parties gave evidence that [Child 1] expressed a wish not to see his father. It is difficult to conclude that Ms Lester withheld [Child 1] from Mr Worrell when the evidence supports that this was driven by [Child 1]. The Tribunal therefore finds that this element of section 54G is satisfied.
As the Tribunal has determined that section 54G applies, it must revoke the earlier care determination. Therefore the Tribunal revokes the prior care determination under section 54G of the Assessment Act.
The date of revocation of the prior care determination is 27 August 2023 and the new care determination takes effect from 28 August 2023.[5]
[5] As the evidence established a pattern of care in accordance with the previous care determination, paragraph 54G(2)(b) applies to set the date of revocation.

Issue 2: Should an interim care period apply?

Whilst a person’s care percentage is generally determined according to the actual care that they have of the child, section 51 of the Assessment Act allows Child Support to determine an “interim period” of care in certain limited circumstances, that is, where the actual care does not accord with the care that person should have under a “care arrangement” and the parent denied access to their child is making reasonable efforts to comply with the care arrangement. In that interim period, the percentage of care each parent is taken to be providing is determined by reference to the care arrangement they are supposed to be following, rather than the actual care.
The law regarding when an interim period can be determined has changed significantly very recently as a result of a decision of the Federal Court (Child Support Registrar v CMU23 [2024] FCA 109 (the Court decision)) and legislation that was brought in as a result of that decision by the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024, which began operation on 28 March 2024 (the new Act).
The new Act was brought in to address a problem that had arisen with finding an interim period where an earlier percentage of care determination had been revoked under sections 54F or 54H of the Assessment Act. The existence of that problem was confirmed by the Court decision. In brief, the Court decision held that the wording of paragraph 53(1)(c) of the Assessment Act meant that, where an existing care determination had been revoked, an interim period was not available. That remains the law in respect of care determinations that were revoked under those sections prior to 29 March 2024 (with certain limited exceptions not relevant for this matter).
In the present case, Child Support did not make a determination that there was an interim period on the grounds that it did not consider that the previous care determination (of 50/50 care under the Court Orders) was being followed. It did not address the issue of revocation, including the appropriate section under which to revoke.
As the Tribunal has found that the earlier care determination should be revoked under section 54G, it is open to the Tribunal to consider whether an interim period should apply.[6]
[6] The Tribunal notes that section 2.2.4 of the Child Support Guide states that “An interim period cannot be made in relation to a responsible person if a previous care determination made by the Registrar (or the Secretary for the purpose of FTB) in relation to the person has been revoked and the change in care occurred prior to 29 March 2024”. However, the wording of section paragraph 53(1)(c) of the Assessment Act as in force immediately before the new Act and the Court decision clearly refer only to revocation under sections 54F and 54H. The Tribunal considers therefore that it is entitled to proceed on the basis that an interim period is available where revocation is under section 54G.
In order for Child Support to find that there is an interim period under section 51 of the Assessment Act:
·      There must be a care arrangement that applies in relation to the child.
·      The actual care of the child that the parent in question has had or is likely to have during the care period does not correspond with the care they are supposed to have under the care arrangement.
·      That parent is taking reasonable action to ensure the care arrangement is complied with.
Care arrangements can include court orders, written agreements or parenting plans.[7] In the present case, the care arrangement would be the Court Orders.
[7] As defined in section 3 of the A New Tax System (Family Assistance) Act 1999.
The Court Orders provide for the care to be 42% to Mr Worrell and 58% to Ms Lester and the Tribunal has found that, since 28 August 2023, care has been 0% to Mr Worrell and 100% to Ms Lester. Therefore, the actual care of [Child 1] since 28 August 2023 does not correspond with the care under the Court Orders.
The care arrangement must be one that “applies” to the child, which Child Support appears to consider means applying in the present tense. The parties must be complying with the care arrangement in the period immediately before the change of care in order for there to be a finding by Child Support that the care arrangement “applies”.
As noted above, in considering Ms Lester’ objection, Child Support declined to consider whether an interim period should apply, because the care arrangements recorded in the Court Orders were not being followed immediately preceding the care change on 28 August 2023 (in that the parents were sharing care on a 50/50 basis). Therefore, Child Support determined there was not a care arrangement that “applies” to the child.
The Tribunal does not agree that “applies” requires the care arrangement to be followed in the period immediately prior to the change in care under consideration. That would, for example, eliminate the possibility of an interim period in the scenario where a court order is made and, immediately upon its making, one parent refuses to comply with the order.
The Tribunal notes the decision of BMGV and Child Support Registrar (Child support second review) [2020] AATA 3449, where the Tribunal found that (at [29]):
the ordinary meaning of s 51(1)(b) of the Assessment Act is that a care arrangement is applicable, or in other words, in operation. Here, there was an operative Family Court order concerning F. That is, the Family Court order was in force and therefore, it is accurate to say that it is a care arrangement that applies in relation to F.
The Tribunal considers the interpretation of “applies” adopted in BMGV is the preferable one. It further notes that, in the present case, the Court Orders stated (in clause 5) that [Child 1] was to spend time and communicate with Mr Worrell at all reasonable times as may be agreed between the parties but, failing agreement, on the formula set out in the Court orders, which resulted in a care percentage of 42% to Mr Worrell and 58% to Ms Lester.
Mr Worrell and Ms Lester each gave evidence that, in the period prior to August 2023, they had been sharing care on a week on, week off basis (i.e. 50/50) by agreement, which is consistent with clause 5 of the Court Orders. It was only once that agreement fell away that they reverted to the formula provided as an alternative to care by agreement in clause 5 of the Court Orders.
The parties’ agreement to revert to that formula is set out in text messages exchanged by Mr Worrell and Ms Lester on 22 August 2023 (folios B21 and B22).
However, both parties gave evidence that [Child 1] did not wish to return to care with his father and stepmother. Therefore, from 28 August 2023, [Child 1] remained 100% in the care of Ms Lester. The actual care of [Child 1] therefore did not correspond with the care provided for in the Court Orders, in that it was less than the default formula in clause 5 and was not in accordance with an agreement as an alternative to that formula under clause 5. The next issue one would consider in determining whether there was an interim period in this matter is whether Mr Worrell took reasonable action to ensure that the care arrangement was complied with.
What constitutes “reasonable action” is a matter of fact to be determined in each case. However, the Child Support Guide gives (in 2.2.4) the following non-exhaustive examples of reasonable action:
·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.
·Notifying the police that the child has been taken without consent.
Mr Worrell gave evidence that there was a mediation process over a four-month period which ended with the mediator writing to the parties on 23 January 2024 stating that the matter was not suitable for family dispute resolution (folio A8). The process began immediately after [Child 1] refused to be in his father’s care and was initiated by Ms Lester. Mr Worrell took the next available intake session with the mediator in September 2023 and the final session with the mediator took place in December 2023, following which the mediator concluded mediation was not appropriate. All of the sessions took place between the relevant parent and the mediator alone, and there were no joint sessions.
Mr Worrell told the Tribunal that he had not taken the matter back to court because he could not afford to go back to court and pay child support. He was asked whether he had applied for legal aid or sought pro bono assistance and told the Tribunal that he did not qualify for legal aid. The Tribunal notes that Mr Worrell’s adjusted taxable income for the 2022 to 2023 financial year was $240,712 and that he is currently paying child support at a rate of $1,866.58 a month (folio 135). He does however still retain the lawyers who acted for him most recently in September 2023. Mr Worrell told the Tribunal that it is his intention to bring the matter to court, but Mr Worrell expressed the concern that, given the current court orders are not being adhered to, he was unsure what new orders would achieve.

Ms Lester did not dispute the majority of Mr Worrell’s evidence about the mediation process. However, her recollection was that the mediation did not go any further as Mr Worrell refused to attend child focused therapy which had been intended to focus on the relationship between [Child 1] and his father, noting that it was [Child 1] refusing to return to his father’s care, not Ms Lester withholding that care.
Mr Worrell told the Tribunal that he had not attended that therapy as, on his understanding of the therapy, there was no confirmation that [Child 1] would undertake it independently. Mr Worrell did not believe that [Child 1] would speak without being coached and would not be given the opportunity to speak openly. In response, Ms Lester said that she did not want to be part of the therapy, and it was something to take place between the father and son.
Noting that the reason the care arrangement is not being complied with is [Child 1’s] apparent refusal to return to the care of his father, the Tribunal asked Mr Worrell what else he was doing to repair the apparent break in the relationship. Mr Worrell said that his parents initiated contact between them (although when that occurred is unclear) and that he and [Child 1] had been in text contact since Christmas. The Tribunal also notes that [Child 1] has, this year, started therapy on his own.
Determining whether the steps that Mr Worrell has taken since 28 August 2023 to repair the relationship with his son so that care in accordance with the care arrangement could commence were reasonable is a difficult issue. The matter is made more complex by the fact that [Child 1], who is 13 years old, is able to express in which parent’s care he wishes to be. Mr Worrell could have faced the risk of damaging irreparably the relationship had he forced [Child 1] to be in his care.
Taking all the evidence before the Tribunal, the Tribunal finds that Mr Worrell took reasonable action to ensure compliance with the Court Orders. The Tribunal finds that Ms Lester also took reasonable action to ensure compliance with the Court Orders, as she initiated mediation, and therefore the interim period ended on 3 December 2023.[8]
[8] Fourteen weeks after the change in care day, in accordance with section 53A of the Assessment Act.
The Tribunal therefore finds that the various elements of section 51 of the Assessment Act are satisfied and that an interim period applied from 28 August 2023 to 3 December 2023. Therefore, the Tribunal finds pursuant to section 51 of the Assessment Act:
· Between 28 August 2023 and 3 December 2023, Mr Worrell should have had 42% and Ms Lester 58% care of [Child 1]. This percentage of care applies during the interim period.
· Between 28 August 2023 and 3 December 2023, Mr Worrell actually had 0% and Ms Lester 100% care of [Child 1]. This percentage of care applies after the interim period ends, that is, from 4 December 2023.
Subsection 51(5) of the Assessment Act provides for a single percentage of care (meaning that there is no interim period) if the Child Support Registrar is satisfied that “special circumstances” exist in relation to the child. This is a discretionary consideration, and “special circumstances” is not defined in the Assessment Act. The Child Support Guide[9] gives guidance on considerations that may be taken into account, and states (in section 2.2.4):
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.
[9] Noting that the Child Support Guide is persuasive only and has no legislative effect.
There is nothing in the evidence before the Tribunal to suggest that special circumstances exist in this case and therefore the Tribunal finds that it is not appropriate to exercise its discretion under subsection 50(5) to find a single percentage of care.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

a) For the period 28 August 2023 to 3 December 2023, an interim care period applies such that Mr Worrell had 42% care and Ms Lester had 58% care of [Child 1].
b) From 4 December 2023, Mr Worrell has 0% care and Ms Lester has 100% care of [Child 1].

[2024] AATA 1892

18 April 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Judicial Review

Remedies

Procedural Fairness