Bernardi and Bernardi (Child support)

[2020] AATA 2168

Bernardi and Bernardi (Child support) [2020] AATA 2168 (4 June 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC018794

APPLICANT:  Mrs Bernardi

OTHER PARTIES:  Child Support Registrar

Mr Bernardi

TRIBUNAL:Member A Schiwy

DECISION DATE:  4 June 2020

DECISION:

The tribunal decided to set aside the decision under review and substitute its decision that:

• For an interim period from 25 July 2019 to 18 October 2019, the percentages of care are 42% to Mrs Bernardi and 58% to Mr Bernardi; and

• From 19 October 2019 until new percentage of care determinations are made, the percentages of care are 0% to Mrs Bernardi and 100% to Mr Bernardi.

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 - reasonable action taken by both parents - interim period applied - 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. Mrs Bernardi and Mr Bernardi are the separated parents of two children who are seven and eight years old.  This application for review is about the respective percentages of care that each parent has for the children.

2. On 17 September 2018 the Department of Human Services (Child Support) made a determination that Mrs Bernardi had 42% care of the children and Mr Bernardi had 58% care.

3. On 18 October 2018 the parents signed a written statement that states that they agree that the children will be in Mrs Bernardi’s care for three nights per week (Monday to Thursday) and Mr Bernardi has them in his care for four nights per week (Thursday to Monday).

4. On 29 July 2019 Mr Bernardi informed the Family Assistance Office that he had 100% care of the children since 19 July 2019.  Child Support was not notified of this until 22 November 2019 when Mr Bernardi contacted Child Support about a further change in care.

5. Mrs Bernardi informed Child Support that she had been taking steps to have the children returned to her care.

6. On 6 January 2020 Child Support determined that Mr Bernardi had 100% care of the children from 25 July 2019 (the date they were due to return to Mrs Bernardi’s care) and that no interim care period should apply as Mrs Bernardi did not provide any proof of the steps she had taken to have the children returned to her care (‘original decision’).  Child Support also determined that from 9 November 2018 Mr Bernardi had 79% care of the children and Mrs Bernardi had 21% care (based on Mrs Bernardi having the children back in her care for three nights per fortnight).

7. On 25 January 2020 Mrs Bernardi objected to the original decision on the basis that she had been trying to get the children back into her care and was still fighting to have 50/50 care.  On 26 March 2020 an objections officer disallowed Mrs Bernardi’s objection. 

8. On 6 April 2020, Mrs Bernardi applied to this tribunal for an independent review of the objections officer’s decision.

9. A hearing into the application for review was held by the tribunal on 4 June 2020 in Hobart.  Mrs Bernardi and Mr Bernardi participated in the hearing by conference telephone.  They both gave evidence under affirmation during the hearing.   

10. The tribunal had before it relevant documents provided to it by Child Support pursuant to subsection 37(1) of the Administrative Appeals Tribunal Act 1975, which were labelled folios 1 to 110.  Mrs Bernardi supplied further documentary evidence (A1–A4).  A copy of all of the papers was provided to the parents prior to the hearing. 

ISSUES

1. In this case, it is not in dispute that on 25 July 2019 (the date the children were to return to Mrs Bernardi’s care); Mrs Bernardi ceased to have care of the children.  The issue in this case is whether or not an interim care period should apply.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Act) contains a complex scheme governing the determination of percentages of care: Division 4 of Part 5 of the Act.  Essentially, if there is a pattern of care of the child by two (or more) persons, a percentage of care of the child is determined for each parent or caregiver.  That determination remains in force until it is revoked.  If the pattern changes sufficiently and the Registrar becomes aware of the change, the Registrar must revoke the previous determinations and make new ones.   

2. 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).

3. A care arrangement is a formal arrangement about the care of a child and includes a written agreement, court order or parenting plan.  In this case it is not disputed that the parents dated and signed a written agreement on 18 October 2018 allowing for Mrs Bernardi to have care of the children for three nights per week.  It is also not disputed that the care arrangement was being followed up until 25 July 2019.  As at the date of the change in care, the care arrangement had been in place for 40 weeks. 

4. 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 written agreement, is not being complied with and the parent with reduced care takes ‘reasonable action’ to have the written agreement complied with.   

5. 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:[1]

   ·       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; or

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

   The tribunal is not bound by policy as set out in the Guide.  However, in Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 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, the tribunal decided that the policy is unobjectionable and, in the interests of consistency in decision making under the Act, considered that this policy should be applied.

   [1] Department of Social Services, Guides to Social Policy Law, Child Support Guide, version 4.41 – can be found at >

   Mrs Bernardi stated the following at the hearing:

   ·On 25 July 2019 she went to pick the children up from school (as per the care arrangement) and found they were not there. 

   ·She went to Mr Bernardi’s parents’ house and was told she was not able to have the children. 

   ·She rang ‘000’ and said her children had been taken.  She was advised to wait outside the grandparents’ property and assistance was on its way.

   ·While she waited she rang Child Protection and was advised to contact Relationships Australia (RA) and Legal Aid.

   ·She rang RA and made an appointment to see them.

   ·She rang Child Services and was told no complaints had been made.

   ·She rang Legal Aid and was told she needed to go through the mediation process before they could assist.

   ·After a while she rang the local police station as no assistance had arrived and she was advised there had been a major incident tying up resources; she was advised to go home.  She was also advised that as there was no Court Order in place the police could not assist. 

   ·She made several attempts to contact Mr Bernardi but her number had been blocked.

   ·She went to the police station the next day and was told that they had not advised Mr Bernardi to keep the children and no charges had been filed.  She was advised that she had the right to have the children in her care but it would not be optimal to go to the school to take them as this could cause stress for the children.  She was advised to go to a lawyer.

   ·She kept attempting to ring Mr Bernardi but there was no response.

   ·She contacted several charities for legal assistance but was advised she needed a Certificate 60I before they could assist.

   ·She attended the appointment with RA (Mrs Bernardi could not remember when the appointment was) and she was advised of the steps in the process and the timeline.

   ·She attended an interview two weeks later and she was advised that Mr Bernardi was engaging in the process and that he would be attending an interview.

   ·On 3 October 2019 RA advised her, in writing, that is was unsuitable to attempt to engage in family dispute resolution and they provided her with her with a Certificate 60I (the letter and certificate are included in the evidence provided).

   ·She then contacted Legal Aid but her income was too high to enable her free legal representation. 

   ·She then started saving up for a solicitor but on 21 November 2019 her employment was terminated.  She contacted Legal Aid shortly after and they agreed to provide assistance.  Legal Aid contacted her in January 2020 about taking further action.

   ·In late November 2019 she received a video call from the children as they wanted to see her.  This led to her having the children back in her care three nights per fortnight.

   ·She is still taking action to have 50/50 care of the children.

6. Mrs Bernardi provided the letter and Certificate 60I from RA and heavily redacted letters from Legal Aid dated 17 December 2019 and 8 January 2020.  A further letter from Legal Aid, dated 27 March 2020 stated that they were attempting to arrange a family dispute resolution conference.

7. Mr Bernardi stated the following at the hearing:

   ·When he had the children in his care, immediately prior to 25 July 2019, his mother noticed a bruise on one of the children’s [bodies].  The child told him [they had been] hit by Mrs Bernardi’s partner (apparently with a wooden spoon).

   ·He rang DOCS and was advised to go to the police.

   ·He was advised by DOCS that it was his responsibility to keep the children safe and that the police would conduct an investigation.

   ·He went to the police and made a statement.  He was advised he needed to go to the police station where Child Services was located; they were very busy and he had to wait two weeks to see someone.

   ·He blocked Mrs Bernardi’s calls on advice from the police.

   ·It took the police eight weeks before they interviewed the child.  [The child] has learning difficulties and due to this and the passage of time, was not able to give clear evidence to the police.  The police informed Mr Bernardi that they had spoken to Mrs Bernardi’s partner and gave him a warning but no other action would be taken.

   ·He was contacted by RA and went in to see them.  After the interview he was informed that mediation would not be suitable.

   ·He has since been through mediations through Legal Aid and these failed.

   ·The children were initially too scared to return to their mother’s home but in November 2019 they told him they were missing their mother and he agreed for them to go back into her care three nights per fortnight.

   ·He is not eligible for Legal Aid and cannot afford a solicitor.

8. The tribunal was satisfied, after considering the evidence provided, that Mrs Bernardi has been taking reasonable action to have the children returned to her care since the date the change in care occurred.  She has followed the advice of the relevant Government authorities, attended the appointment and interview with RA and after receiving the Certificate has engaged legal representation.  She has also attempted to contact Mr Bernardi but her phone has been blocked.

9. Section 53A of the Act provides a table for working out the end date for the interim period.  Where the parent with reduced care has been taking reasonable action, the length of the interim care period, when a written agreement has been in place for 40 weeks, will be up to 18 October 2019 (52 weeks after the agreement was made) if Mr Bernardi has taken reasonable action to participate in family dispute resolution.  If he has not, the interim period is for 14 weeks (to 31 October 2019.  The tribunal was satisfied, after considering the evidence provided, that Mr Bernardi has taken reasonable action to participate.  Mrs Bernardi was informed by RA that he had attended an interview with them.

10. 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 (or written parenting agreement) and the other being the care actually taking place.  In this instance, the tribunal concluded that those percentages of care would be:

    ·      care according to the 2018 written agreement – 42% for Mrs Bernardi and 58% for Mr Bernardi; and

    ·      care that is actually occurring – 100% for Mr Bernardi and nil for Mrs Bernardi.

11. Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, 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 Act, but is described in the Guide, which states:

    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. 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 behavior of the parent include:

    ·     violence towards the child,

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

    ·     violence towards the person with increased care,

    ·     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.

12. Mr Bernardi has alleged that Mrs Bernardi’s partner physically assaulted one of the children, resulting in bruising to [the body].  Given that the police decided not to lay charges against the partner, and the fact that Mr Bernardi has allowed the children to return to Mrs Bernardi’s care, the tribunal decided that there was no substantial risk to the children and that there was no evidence in this case to exercise the discretion provided for in subsection 51(5) of the Act not to make an interim care determination.   

DECISION

The tribunal decided to set aside the decision under review and substitute its decision that:

• For an interim period from 25 July 2019 to 18 October 2019, the percentages of care are 42% to Mrs Bernardi and 58% to Mr Bernardi; and

• From 19 October 2019 until new percentage of care determinations are made, the percentages of care are 0% to Mrs Bernardi and 100% to Mr Bernardi.