Bacani and Child Support Registrar (Child support)

[2020] AATA 3674

Bacani and Child Support Registrar (Child support) [2020] AATA 3674 (11 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/MC018345

APPLICANT:  Mr Bacani

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Longo

DECISION DATE:  11 June 2020

DECISION:

The tribunal sets aside the decision under review and, in substitution, makes an interim care determination from 30 July 2019 to 28 October 2019 with Mr Bacani having 50% care of [Child A, Child B and Child C] and [Ms A] having 50% care of [Child A, Child B and Child C].

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – whether interim care determination should be made – care not occurring in compliance with care arrangement – reasonable action - no 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 removed 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.Mr Bacani and [Ms A] are the parents of [Child A, Child B and Child C]. Mr Bacani is the parent liable to pay child support.

2.From 19 March 2018 the Department of Human Services – Child Support (the Department) determined that [Ms A] had a percentage of care for [Child A, Child B and Child C] of 50% and that Mr Bacani had a percentage of care of 50% for [Child A, Child B and Child C].

3.On 4 September 2019 the Department applied the care determination of 100% for [Child A, Child B and Child C] from 30 July 2019 as determined by Centrelink.

4.On 17 September 2019 Mr Bacani lodged an objection to the decision of the Department. On 31 January 2020, an objections officer disallowed Mr Bacani’s objection.

5.On 5 February 2020 Mr Bacani lodged an application to the Administrative Appeals Tribunal (the tribunal) for an independent review of the decision. The hearing took place on 11 June 2020. Mr Bacani participated in the hearing by telephone and gave sworn evidence. [Ms A] did not respond to the request to be added as a party to the matter. In making its decision, the tribunal took into consideration the documents (numbered 1 to 225) provided by the Department which were also sent to Mr Bacani.

CONSIDERATION

6.The law that applies in this case is the Child Support (Assessment) Act 1989 (the Act).

Has there been a change in the care of [Child A, Child B and Child C]?

7.It is uncontroversial that the care of [Child A, Child B and Child C] altered from 30 July 2019 from the care percentages previously determined by the Department. [Ms A] was assessed from 19 March 2018 as having a care percentage for [Child A, Child B and Child C] of 50% and Mr Bacani had a percentage of care of 50% from this date. The care determination was based on the court orders made on 19 March 2018.

8.The tribunal is satisfied that the Department was notified on 4 September 2019 that a care change had occurred on 30 July 2019. Centrelink advised the Department that they had made a new determination of care of 100% care of [Child A, Child B and Child C] to [Ms A].

9.Mr Bacani stated that [Ms A] obtained an intervention order for her and the children on 30 July 2019. Based on the interim intervention order, [Ms A] did not allow the children to come into his care, notwithstanding the court orders from 19 March 2018 which gave him 50% of the care of the children. Mr Bacani stated that the intervention orders suspended the court orders from 19 March 2018 but he sought for the orders to be varied as soon as he was notified of the intervention orders. On 26 August 2019, the Magistrates’ Court varied the orders, removing the clause suspending the orders from 19 March 2018. He resumed the care of the children as per the orders on 26 August 2019 but the orders were again suspended on 2 September 2019. He once again applied for a variation of the intervention orders and the suspension of the court orders was removed again on 28 October 2019. Since 28 October 2019 he has had 50% care of the children in accordance with the court orders. Mr Bacani stated that he also obtained an order from the Federal Circuit Court on [a date in] October 2019 which made the intervention order invalid to the extent of any inconsistency with the existing parenting orders made on 19 March 2018. Mr Bacani stated that the interim intervention order remained in place and is due to be heard on 27 August 2020.

10.Mr Bacani stated that there was no basis on which to make the intervention order and he sought to continue to have access with the children.

Should the existing care determinations in relation to [Child A, Child B and Child C] be revoked?

11.Subsection 54F(1) of the Act sets out certain circumstances in which a determination of a percentage of care must be revoked. Specifically, it states that an existing determination must be revoked if the Registrar is notified that the care taking place does not correspond with the responsible person’s existing care of the child.

12.In this case, the tribunal has determined that a care determination was made under section 50 of the Act from 19 March 2018 with [Ms A] having a care percentage for [Child A, Child B and Child C] of 50% and Mr Bacani having a percentage of care of 50%. Therefore, paragraph 54F(1)(a) of the Act is satisfied.

13.Section 51 of the Act says that a care determination may be made (known as an ‘interim determination’) if court orders (or a parenting plan) specifying care arrangements are not complied with and the parent with reduced care is taking ‘reasonable action’ to have the court order complied with.

14.The Registrar was notified on 4 September 2019 that the care of [Child A, Child B and Child C] which was actually taking place for Mr Bacani and [Ms A] had changed from 30 July 2019. There is no dispute that the care arrangements as determined by the Department on 19 March 2018 were not occurring from 30 July 2019. Mr Bacani stated to the Department that he had 0% care of [Child A, Child B and Child C] from this date. Mr Bacani stated that he had been prevented from having the care of the children and that he made application to the Magistrates’ Court once he was aware of the intervention order to have the order varied to allow him to have access to the children. The tribunal notes that an application for a variation of the intervention order was made on 5 August 2019.

15.The tribunal was satisfied that Mr Bacani was taking ‘reasonable action’ to ensure the court order was complied with in regard to the care of [Child A, Child B and Child C] that should have occurred. The tribunal has decided that Mr Bacani’s applications for variation of the intervention orders can be considered reasonable action within the meaning of section 51 of the Act.

16.As the care arrangements for [Child A, Child B and Child C] changed on 30 July 2019, an interim care determination would ordinarily apply in relation to the person who had reduced care of the child in circumstances where care is not occurring in accordance with a court order and the person is taking reasonable action to ensure the court orders are complied with by the other person. However, if the Registrar determines that special circumstances exist in relation to the child, a single percentage of care can be determined.

17.The Child Support Guide sets out the policy in relation to how care determinations should apply in a variety of circumstances. It states at 2.2.4, that an interim period may not apply if there are special circumstances as follows:

The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. 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.

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.

18.The tribunal is not bound by policy. However, in Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, the Full 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, the tribunal accepts that the policy is consistent with the objects of the Act and assists in making determinations under the legislation. Therefore, the tribunal will apply the same considerations as contained within the Child Support Guide.

19.In this instance, the Department made a determination that the interim care determination should not apply because they determined that there were special circumstances in this case. It would seem that the basis for this decision was made solely on the basis of the interim intervention order being made. The tribunal notes that there is no direct evidence which corroborates what was stated in the intervention order. Mr Bacani made application for the order to be varied and this occurred on 26 August 2019 and again on 28 October 2019. The tribunal has determined that in the circumstances, there is insufficient evidence to find that special circumstances exist which would make it appropriate not to make an interim care determination in this matter. Accordingly, the tribunal has determined that an interim care determination should be made from 30 July 2019 to 28 October 2019 with Mr Bacani having 50% care of [Child A, Child B and Child C] and [Ms A] having 50% care of [Child A, Child B and Child C].

20.The tribunal notes that the care of children, according to Mr Bacani’s evidence, has been in accordance with the court orders made on 19 March 2018 since 28 October 2019, notwithstanding the interim intervention order still being in place. The tribunal further notes that no further care determinations have been made by the Department even though the court orders have been followed for the care of the children since 28 October 2019. The tribunal is unable to make a further determination other than for the period of the interim care determination.

DECISION

The tribunal sets aside the decision under review and, in substitution, makes an interim care determination from 30 July 2019 to 28 October 2019 with Mr Bacani having 50% care of [Child A, Child B and Child C] and [Ms A] having 50% care of [Child A, Child B and Child C].