BKCZ and Child Support Registrar (Child support second review)
[2022] AATA 725
•8 April 2022
BKCZ and Child Support Registrar (Child support second review) [2022] AATA 725 (8 April 2022)
Division:GENERAL DIVISION
File Number(s):2021/2964
Re:BKCZ
APPLICANT
Child Support RegistrarAnd
RESPONDENT
AndHBVN
OTHER PARTY
Tribunal:Senior Member B. Pola
Date:8 April 2022
Place:Brisbane
DECISION
Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 13 April 2021.
...........................[SGD]...............................
Senior Member Belinda Pola
Names used in this published decision 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 (here in referred to as the “Collection Act”).
Catchwords –
CHILD SUPPORT – objection to care percentage change – special circumstances – reasonable action – interim care determination – point in time – actual care – Federal Court parenting orders – COVID-19 Lockdowns – COVID-19 border closures – decision affirmed
Legislation -
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Cases -
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
F v LP (Child Support) [2015] AATA 321
Shi v Migration Agent Review Authority [2008] HCA 31Secondary Materials -
Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021
REASONS FOR DECISION
Belinda Pola, Senior Member
8 April 2022BACKGROUND
1. The Applicant, BKCZ (or the “mother”), has brought an application to the Tribunal to review a decision dated 13 April 2021 of the Social Security and Child Support Division (here in referred to as the “SSCSD”) of the Administrative Appeals Tribunal (here in referred to as the “Tribunal”). The Respondent in this matter is the Child Support Registrar (here in referred to as the “CSR”). The Other Party, HBVN (or the “father”), in this matter is the other party joined in this application.
2. The mother and father are the parents of two minor children, aged 16 years and 14 years. The two children predominantly reside with their mother in Queensland, with the father of the two children residing in Western Australia.
3. The existing percentage of care determinations with respect to care provided by the mother and the father were determined in accordance with parenting orders of the Federal Circuit Court of Australia dated 8 April 2013 and amended on 17 December 2013 (here in referred to as the “parenting orders”)[1].
[1] Exhibit R2, page 2, paragraph 8; and Exhibit O1, pages 4 to 8.
4. The parenting orders provide for the father to have care of the two children for at least 10 days during Term 1, 2 and 3 school holidays, and for half the Christmas/New Year holidays on an alternate basis. Accordingly, the existing percentage of care determinations were recorded as 86% to the mother and 14% to the father from 20 January 2016.
5. On 22 March 2020, it was mutually agreed between the mother and the father that the two children would be unable to travel to Western Australia due to the impact of the Covid-19 pandemic and restrictions which were in place on state borders preventing interstate travel[2]. That same day, the mother sought to notify the Child Support Agency that there was a change in the pattern of care of their two children as agreed between the mother and the father, that[3]:
“… Due to covid 19 the kids will not be going to WA for school holidays, so care will change by 10 days at this stage, but could be more. Therefore his care is reduced by 10 days…”
[2] Exhibit R1, T6, page 49.
[3] Exhibit R1, T5, page 40.
6. On 29 April 2020, the father disputed the change in care arrangements on the basis that state borders were closed and he had no choice in the matter[4].
[4] Exhibit R1, T5, page 40.
7. On 29 April 2020, an authorised officer of the Registrar made a care percentage decision which revoked the existing percentage of care determination in respect of the two children with effect from 7 April 2020, and determined that the new percentage of care with respect to the two children would be 89% to the mother, and 11% to the father with effect from 8 April 2020 (being the date which the father was first supposed to have care of the children), with effect for a period of 12 months[5].
[5] Exhibit R1, T8, pages 51 to 54; T9, pages 55 to 58.
8. On 3 May 2020, the father lodged an objection against the original decision, the main basis of this objection related to the impact of the Covid-19 pandemic and state border related restrictions, providing evidence from the airline cancelling the children’s flights to Western Australia. It is noted that the father also stated that the percentage of care did not reflect that the children spent every second weekend at their grandparent’s house “for some time now”[6].
[6] Exhibit R1, T10, page 70.
9. On 21 November 2020, an authorised objections officer decided to disallow the objection[7].
[7] Exhibit R1, T15, pages 118 to 124.
10. On 7 December 2020 the father applied for first review with the SSCSD of the Tribunal for review of the objection decision[8].
[8] Exhibit R1, T16, pages 126 and 127; and T17, pages 128 to 134.
11. On 13 April 2021, the SSCSD of the Tribunal set aside the objection decision and in substitution determined that there had been no change in the care of the children from 8 April 2020, stating[9]:
“… The Tribunal is satisfied the evidence, on balance, is that the unforeseen pre-emptive Queensland/Western Australian border closure from 22 March 2020 to 30 April 2020, preventing the children travelling to Perth for [HBVN’s] Easter 2020 holiday care period was of a temporary/non-permanent nature, and that there were no similar border restrictions preventing the children travelling to Perth for [HBVN’s] care periods in the June/July and September school holidays…”
[9] Exhibit R1, T2, pages 7 to 11; at [26].
12. That is, the SSCSD of the Tribunal determined that there had been no change in the pattern of care of the children and refused to revoke the existing care percentage determinations.
13. On 4 May 2021, the mother (or the Applicant) applied for second review of this decision with the General Division of the Tribunal[10].
[10] Exhibit R1, T1, pages 1 to 6.
JURISDICTION
14. Division 4, section 96A of the Collection Act states that an application may be made to the Tribunal for second review of the following decisions:
96A Application for AAT second review
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a) a decision under section 92 to refuse an extension application;
(b) a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c) a decision under subsection 95N(2) to make, or not to make, a determination.
15. Section 4 of the Collection Act defines a “care percentage decision” to be:
care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):
(a)a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or
(b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.
16. The Tribunal is satisfied that the decision of the SSCSD of the Tribunal of 13 April 2021 made pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, with respect to its decision to refuse to revoke the existing percentage of care determination falls within the meaning of a care percentage decision and is therefore reviewable by the General Division of the Tribunal on second review, pursuant to section 96A(b) of the Collection Act.
RELEVANT LEGISLATIVE FRAMEWORK
17. Subdivision C of Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (here in referred to as the “Assessment Act”) outlines circumstances where an existing care determination must or may be revoked.
18. Section 49 of the Assessment Act provides the following with respect to the determination of percentage of care:
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.
19. Section 50 of the Assessment Act further provides:
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i) an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) both of the following apply:
(i) the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii) the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 applies in relation to the responsible person.
20. Section 51 of the Assessment Act relates to an interim care percentage to be determined where action has been taken to ensure that a care arrangement in relation to a child is complied with, it provides:
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances: see section 53.
2 percentages of care in relation to the responsible person
(2) Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4) The second percentage of care is to be:
(a) for a determination under section 49—0%; or
(b) for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
Single percentage of care in relation to the responsible person
(5) If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.
(6) The single percentage of care is to be:
(a) for a determination under section 49—0%; or
(b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
The Child Support Guide
21. The Child Support Guide (here in referred to as the “Guide”), is a document which provides further guidance to the Child Support Registrar and officers when making decisions about care percentages.
22. With respect to taking into account relevant ministerial policy documents, the Tribunal refers to His Honour Brennan J in the decision of Drake and Minister for Immigration and Ethnic Affairs (No 2)[11], where he stated the following practice in relation to the Tribunal applying Ministerial policy:
In my view, the Tribunal, being entitled to determine its own practice in respect of the part which Ministerial policy plays in the making of Tribunal decisions, should adopt the following practice:
When the Tribunal is reviewing the exercise of a discretionary power reposed in a Minister, and the Minister has adopted a general policy to guide him in the exercise of the power, the Tribunal will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. Where the policy would ordinarily be applied, an argument against the policy itself or against its application in the particular case will be considered, but cogent reasons will have to be shown against its application, especially if the policy is shown to have been exposed to Parliamentary scrutiny.
The general practice of the Tribunal will not preclude the Tribunal from making appropriate observations on Ministerial policy, and thus contributing the benefit of its experience to the growth or modification of general policy; but the practice is intended to leave to the Minister the political responsibility for broad policy, to permit the Tribunal to function as an adjudicative tribunal rather than as a political policy-maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
The general practice will require the Tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the Tribunal in making its own decision on review.
[Tribunal bold for emphasis]
[11] [1979] AATA 179; (1979) 2 ALD 634.
23. The Tribunal will take into account the established practices set out in the relevant sections of the Guide, as consistent application of the relevant policies is desirable unless cogent reasons exist not to.
24. Chapter 2.2.1 of the Guide provides that “care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A).” Further, chapter 2.2.1 of the Guide provides that:
The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.
25. The Guide at chapter 2.2.1 further states that:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.
26. To determine whether care exists the Child Support Registrar relies on Chapter 2.2.1 of the Guide which outlines the factors that might be considered in order to determine the extent of caring. They include:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o arrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
27. The Guide at chapter 2.2.2 provides the following guidance with respect to considering a change in the pattern of care:
Change in pattern of care
When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period. Not all changes will result in the calculation of a different care percentage.
…
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
CONSIDERATION
28. The application was heard in Brisbane on 22 March 2022, with the Applicant (or the mother, BKCZ), the Other Party (or the father, HBVN) and the Respondent (represented by Mr Christopher Bishop (Mills Oakley)) all appearing by telephone.
29. Both the mother and the father were self-represented, and the Tribunal considered oral submissions from both parties under affirmation. The Tribunal received submitted written evidence from all parties as outlined in the Exhibit Register (Annexure 1).
30. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the mother and father, and their geographic locations. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
31. The Tribunal notes that the Respondent adopted a neutral position in respect of whether the evidence and contentions of the Applicant or the Other Party should be preferred in this application[12].
[12] Exhibit R2, page 2, paragraph 6; page 15, paragraph 68.
32. The Tribunal notes the Respondent’s submissions with respect to the two lines of authority which have arisen regarding the scope of the jurisdiction when reviewing a care percentage decision with respect to the application of sections 49 and 50 of the Assessment Act. This relates to the percentage of care for the child on the basis of the pattern of care each parent, “has had or is likely to have”, in the relevant care period[13]. The Respondent acknowledged there are competing interpretations with respect to a temporal limitation in the legislation guiding care percentage decisions, that is[14]:
a)A point-in-time approach, where the phrase “has had, or is likely to have” incorporates a temporal element to the making of a care percentage decision such that the decision maker, whether at first instance or on review, is limited to considering: one, the pattern of care that the parents have had in the past care period up to the date of notification of the change, and two, the pattern of care that the parents are likely to have in the care period after the date of notification; and
b)A competing interpretation whereby there is no temporal limitation such that it is open to the decision maker to consider the pattern of care the parents have had or were likely to have in the care period; and accordingly given the passage of time, the Tribunal is in a position to determine the patten of care parents have actually had in the care period because of the passage of time which has passed (i.e. in effect the Tribunal can perform an audit of actual care each parent has had).
[13] Exhibit R2, page 4, paragraph 29.
[14] Exhibit R2, page 5, paragraphs 30 and 31.
33. In this matter, the Respondent has contended that it is open to the Tribunal to consider the pattern of care the parents actually had in the care period, given the care period is retrospective. In this regard the Tribunal notes there is undisputed evidence with respect to the children’s nights in care with the mother (whom resides in Queensland) and the father (whom resides in Western Australia), and this will be elaborated on in the later reasons of this decision.
34. The Tribunal observes the Respondent concluded in submissions that the adoption of a point-in-time approach was contrary to the legislative text, with respect to intention and its context within both the broader child support and family assistance regimes, and referred to authority in F v LP, where Senior Member CR Walsh stated[15]:
“… Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time…”
[15] [2015] AATA 321 at [57]; inter alia Shi v Migration Agent Review Authority [2008] HCA 31 [99]-[101] per Hayne
35. Whilst the Tribunal accepts that it is not limited to considering the circumstances as they existed as at the date of notification of the change in care of the relevant children, and that it may inform itself as it considers appropriate as to the actual care of the relevant children during the care period; for the reasons which follow, the Tribunal is of the view that the circumstances of this case justify a point-in-time approach with respect to the application of sections 49 and 50 of the Assessment Act.
36. The effect of sections 49(3) and sections 50(3) and (4) of the Assessment Act stipulates that the care percentage determined must correspond with actual care of the relevant children during the care period, unless section 51 of the Assessment Act applies.
37. As outlined in earlier reasons, section 51(1) of the Assessment Act provides for exceptions to the requirements in subsections 49(3) and 50(3) of the Assessment Act. Section 51(1) of the Assessment Act enables the Child Support Registrar to make an interim care determination in circumstances where a care arrangement with respect to the relevant children is not being complied with, and the person who has had reduced care of the relevant children has taken “reasonable action” to ensure the care arrangement is complied with (refer section 51(1)(d) of the Assessment Act).
38. The Assessment Act does not provide a definition of reasonable action; however, the Tribunal observes the Guide at 2.2.4, provides a non-exhaustive list of actions which could be considered “reasonable action”, it provides:
“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.
Note: Where the parent with reduced care has not taken reasonable action to have the care arrangement complied with, and their percentage of care has been determined according to the actual care they have of the child (i.e. an interim determination was not made), and the parent subsequently takes reasonable action for the care arrangement to be complied with, an interim period will not apply. This is because once a determination of actual care has been made, it cannot be revoked and replaced with a new care percentage unless there has been a change to the actual care of the child (CSA Act section 54F)…”
39. The Tribunal observes that if it is found that reasonable action has been taken to ensure care arrangements have been complied with pursuant to section 51(1)(a) to (d) of the Assessment Act; then if special circumstances exist in relation to the relevant children, a single care percentage (rather than two percentages of care, per sections 51(2) to (4) of the Assessment Act) can be determined based upon either the actual care which occurred for the relevant children, if the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in section 51(1)(d) of the Assessment Act were not to succeed.
40. The Assessment Act does not provide a definition of “special circumstances”; however, the Tribunal observes the Guide at 2.2.4, which provides:
“… 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…”
41. The Tribunal is satisfied upon review of the evidence before it that special circumstances are not established in the present application per the definition provided in the Guide at 2.2.4.
42. In circumstances where it is found that care arrangements have not been complied with pursuant to section 51(1)(a) to (d) of the Assessment Act and special circumstances do not exist as outlined in the above reasons, then sections 51(2) to (4) of the Assessment Act provides that the Registrar must determine under section 49 or 50 of the Assessment Act, two percentages of care in relation to the responsible person.
(i) section 51(3) of the Assessment Act provides that the first percentage of care is to be a percentage that corresponds with the extent of care of the relevant children that the responsible person should have had, or is to have under the care arrangement during the care period (which may be nil); and
(ii)section 51(4) of the Assessment Act provides that the second percentage of care is to be 0% for a determination under section 49 of the Assessment Act; and a percentage that corresponds with the actual care of the child that the Registrar is satisfied the responsible person would be likely to have during the care period if the action referred to in section 51(1)(d) of the Assessment Act were not to succeed (that is, the assumed percentage of care the responsible person would have likely had, in circumstances where their reasonable action would have succeeded).
43. In view of the above, the Tribunal will provide an overview of the timeline of evidence before it in respect of this application.
Timeline of evidence with respect to care of the relevant children
44. In the present matter there has been a breakdown in communication between the mother and father (a common occurrence in applications of this kind). However, despite this breakdown in communication, it was evident during the course of the hearing that there was general agreement from both the mother and the father with respect to a consistent pattern of care provided to the children, given the existence of parenting orders stipulating when care was to occur over school holiday periods[16]. The parenting orders stipulate the following minimum periods of care for the respective children with their father in Western Australia (with the children otherwise residing in Queensland with their mother)[17]:
(i)10 days during each school term holiday period to coincide with one full week of the Western Australian school holiday periods which coincide with a week of the Queensland school term holiday periods, being 10 days which conclude on the Sunday at the end of the Western Australian school holiday week; and
(ii)for the first half of the Christmas school holiday period in 2013 and the second half of the Christmas school holiday period in 2014, and each alternate year thereafter; and
(iii)in the event the father did not intend to avail himself of any school holiday period, that he provide the mother with 42 days’ notice in writing.
[16] Exhibit R2, page 2, paragraph 8; and Exhibit O1, pages 4 to 8; Transcript dated 22 March 2022, page 11,
lines 24 to 28; and page 29, lines 11 and 12.
[17] Exhibit O1, page 5.
45. Both the mother and father separately agreed that a similar continuing pattern of care regarding their children was to continue in 2021, as was originally planned in 2020 (and had occurred in the past, with respect to the evidence before the Tribunal)[18]. Additionally, there is evidence of past flight purchases and tickets issued in the relevant children’s names which is consistent with this agreed pattern of care in the period prior to the relevant care period under review[19].
[18] Transcript dated 22 March 2022, page 10, lines 16 to 40; and page 27, lines 34 to 46; and page 28 lines to 5;
Exhibit O1, pages 10 to 12.
[19] Exhibit R1, T13, pages 96 to 104.
46. The Tribunal is satisfied on the basis of the evidence before it and the evidence at the hearing from both the mother and father, that the parenting orders were being followed, prior to the onset of the COVID-19 pandemic and state related border restrictions which came into effect in March 2020.
47. At the hearing, both the mother and father agreed that the following pattern of care was planned for 2020 with respect to the relevant children spending time with their father in Western Australia:
(i)Term 1 holidays, 8 April 2020 to 18 April 2020 (10 nights) (referred to as the “April 2020 school holidays”);
(ii)Term 2 holidays, 1 July 2020 to 11 July 2020 (10 nights) (referred to as the “July 2020 school holidays”);
(iii)Term 3 holidays, 23 September 2020 to 3 October 2020 (10 nights) (referred to as the “September/October 2020 school holidays”); and
(iv)Term 4 holidays, 2 January 2020 to 25 January 2021 (23 nights) (referred to as the “Christmas 2020/2021 school holidays”).
April 2020 school holidays
48. As outlined in earlier reasons, on 22 March 2020, it was mutually agreed between the mother and the father that the two children would be unable to travel to Western Australia due to the impact of the COVID-19 pandemic, and restrictions which were in place on state borders preventing interstate travel. This evidence was not disputed by either party at the hearing, and both parties confirmed that the screen shot of the text messages between them was an accurate record[20]:
“HBVN: Not sure, has WA shut borders?
BKCZ: The premier has just announced that as of Tuesday W.A. Will be shutting the borders
HBVN: Ok, so we cancel flight?
BKCZ: Yep
HBVN: Ok…”
[20] Exhibit R1, T6, page 49.
49. That same day, the mother sought to notify the Child Support Agency of a change in the pattern of care of their two children as agreed between the mother and the father, that[21]:
“… Due to covid 19 the kids will not be going to WA for school holidays, so care will change by 10 days at this stage, but could be more. Therefore his care is reduced by 10 days…”
[21] Exhibit R1, T5, page 40.
50. The Tribunal observes that flights purchased for the children to travel to see their father for the April 2020 school holidays were cancelled by the airline[22].
[22] Exhibit A1, Attachment 2.
51. Within the father’s submissions is a press release from the Western Australian Premier dated 22 March 2020, which confirms that border controls were put in place to manage the impact of the COVID-19 pandemic[23].
[23] Exhibit O1, page 15.
52. The father provided a press release from the Queensland Premer dated 24 March 2020, which detailed border controls as a result of the COVID-19 pandemic, but the Tribunal notes that with respect to quarantine arrangements, an exemption included “Court orders including family court”[24].
[24] Exhibit O1, page 17.
53. The Tribunal notes a news article provided by the mother dated 3 April 2020 stated that the Western Australian Premier was working on finalising travel exemptions for people seeking to enter Western Australia, and this included “Courts and judicial services”, and that such exemptions “would mirror many of the other essential travel exemptions already in place”[25].
[25] Exhibit A1, Attachment 4.
54. The Tribunal notes that the father gave evidence to the SSCSD of the Tribunal that on 20 April 2020, the ban on interstate travel between Queensland and Western Australia was relaxed to permit approved travellers holding permits, referred to as “G2G” exemption passes, to travel between the two states[26].
[26] Exhibit R1, T2, page 10, paragraph 18.
55. On 29 April 2020, the father disputed the change in care arrangements on the basis that state borders were closed and he had no choice in the matter[27].
[27] Exhibit R1, T5, page 40.
56. On 29 April 2020, the Child Support Agency accepted the change in pattern of care sought by the mother, and accordingly a new care percentage was recorded of 11% to the father and 89% to the mother.
57. On 3 May 2020, the father objected to the decision of the Child Support Agency.
July 2020 School holidays
58. On 18 May 2020 the mother emailed the father regarding the July 2020 school holidays, and stated[28]:
“… I understand that both borders (WA and QLD) will remain close until September, so hopefully they can travel by September school holidays – if you haven’t already booked flights, did you want them for an additional couple of days?” [sic]
[28] Exhibit A1, Attachment 6, page 1.
59. As mentioned in earlier reasons, as is common in matters such as the application before the Tribunal, there has been a breakdown in communication between the mother and the father.
60. On 29 June 2020, the father responded to the mother and attached copies of G2G passes and flight details for both children to travel to Western Australia for the July 2020 school holidays, stating in this correspondence[29]:
“… The kids will also have to be here for 14 days as per the self-quarantine requirements, This would no different to having them longer in the Sep/Oct Holidays as you have stated in a previous email…” [sic]
[29] Exhibit A1, Attachment 6, page 2.
61. The Tribunal notes the father’s actions in proceeding with the flight bookings and arranging with the G2G border passes for the children, is consistent with terms of the parenting orders, requiring the father to provide the mother with 42 days notice in writing, in circumstances where he did not intend to avail himself of any school holiday period.
62. The mother responded to the father’s email on 29 June 2020, referring to her email of 18 May 2020, offering additional days in the September 2020 school holidays, and stated that in the absence of not receiving a response at the time from the father to this email she had proceeded and made arrangements for their children’s July 2020 school holidays.
63. The mother also stated the following with respect to the Western Australian and Queensland border controls restrictions at the time[30]:
“… 29/6 you email me with flight details – this doesn’t comply with the 42 day notice period, however if you had responded to email dated 18/5 things may have been able to be arranged. Although, borders are still closed.
WA required to quarantine for 14 days as per your email – this requires that the entire family quarantine, however you have told the kids you will be in Perth and Kalgoorlie? That means that the entire household is not able to leave the house for shopping, work etc
Happy for you to book flights earlier for next term – maybe 3-4 days earlier than planned Wednesday 23rd September. Please confirm early August to ensure the required 42 days notice…”
[30] Exhibit A1, Attachment 6, page 3.
64. The father responded later that day in two emails dated 29 June 2020 stating that the mother was not in compliance with the parenting orders and disagreed with her position in relation to the Queensland border control restrictions at the time, the Tribunal refers[31]:
“… The court orders state that is to be no less than 10 nights, therefore extra days isn’t an issue. Also me having the kids for extra days in the past to fit in with your plans hasn’t been a problem, you have offered days in Sept/Oct holidays.
As for border restrictions, I don’t need to worry about the QLD border you will have to apply for a border pass when you book the return flights.
There are exemptions on compassionate grounds as shown Below…” [sic]
[31] Exhibit A1, Attachment 6, pages 5 and 6.
65. The Tribunal notes the father attached an extract from a Queensland Government website (partially produced in submissions from the mother), which refers to the Queensland Government giving exemptions for those living outside of Queensland seeking to re-enter Queensland who are complying with child custody arrangements[32].
[32] Exhibit A1, Attachment 6, page 6.
66. The mother did not send the children to Western Australia for the July 2020 school holidays, and under cross-examination by the Tribunal when asked to be taken to evidence of the flight cancellations for this planned travel, the mother stated that she was unable to find it as she “may not have booked” the travel in the first place[33].
[33] Transcript dated 22 March 2022, page 21, lines 7 to 21.
67. During the course of the hearing the Tribunal questioned the mother as to why the relevant children did not travel to Western Australia for the July 2020 school holiday period, and she stated[34]:
“… The basis were the quarantine requirements at borders being closed. An unaccompanied minors rule and hotel quarantine was still in place. So, it would have meant the kids were to quarantine 14 days in WA and then 14 days here in a hotel at a cost of about $7000 for that as well. So, it was prior to the change in the hotel quarantining rule.”
[34] Transcript dated 22 March 2022, page 12, lines 38 to 42.
68. With respect to the mother’s claims regarding the 14-day mandatory hotel quarantine for unaccompanied minors arriving into Queensland, the Tribunal drew the mother’s attention to her own submitted evidence, where it clearly stated that this restriction applied to “…Unaccompanied minors under the age of 18 years, who arrive in Queensland from overseas…”[35]. When this was put to the mother by the Tribunal at the hearing, she agreed that this particular piece of evidence was irrelevant[36].
[35] Exhibit A1, Attachment 1, page 1.
[36] Transcript dated 22 March 2022, page 13, lines 29 to 32.
69. The Tribunal also took the mother to earlier evidence as outlined in these reasons, with respect to exemptions applied to interstate arrivals into Queensland, for individuals complying with “Court orders including family court”[37]. The mother agreed that the children would be able to re-enter Queensland, but that they would have to quarantine on arrival[38].
[37] Exhibit O1, page 17.
[38] Transcript dated 22 March 2022, page 15, lines 36 to 42.
70. During the course of the hearing the Tribunal questioned the mother as to the actual quarantine arrangements at the time of the July 2020 school holidays, in circumstances where Western Australia had minimal cases, and that border restrictions at the time were based on declared “hotspots”. The Tribunal asked the mother whether she agreed that no definitive evidence had been put to the Tribunal by her, confirming her claims with respect to the cost of quarantine arrangements, should the children return to Queensland after spending time in Western Australian for the July 2020 school holidays. In response to this questioning, the mother agreed that there was no such evidence before the Tribunal[39].
[39] Transcript dated 22 March 2022, page 15, lines 44 and 45; page 16 lines 1 to 33.
71. At the hearing, the Tribunal drew the mother’s attention to a file note from the Child Support Agency with respect to the objection decision recorded on 27 July 2020, where the officer recorded the following with respect to a conversation with the mother[40]:
“… [BKCZ] discussed that the children could not travel in term one. In term two they could have travelled to WA, however would have had to spend 14 days quarantine which ismore than the 10 nights [HBVN] would have ordinarily had.
The plan is for [HBVN] to recommence care in October 2020 provides this is possible, flights are booked.
[BKCZ] advised she has given [HBVN] the option to have additional care to make up some of the missed time (3 or 4 nights extra), however she hasn’t heard back yet.
[BKCZ] advised that she and [HBVN] agreed via text message the children would not be travelling to him for term one and term two…” [sic]
[40] Exhibit R1, T14, page 112.
72. The Tribunal questioned the mother as to the accuracy of the file note with respect to conversation with the Child Support Agency at the time, and she agreed that it was an accurate description. Further, the mother agreed that the contemporaneous file note did not mention the cost of quarantine upon the children’s arrival into Queensland[41].
[41] Transcript dated 22 March 2022, page 16, lines 39 to 47; page 17, lines 1 to 11.
73. The Tribunal further question the mother as to the offer of additional nights in care refers to the following exchange[42]:
[42] Transcript dated 22 March 2022, page 17, lines 22 to 46; page 18, lines 1 to 16.
“SENIOR MEMBER: Okay. BKCZ, what's the difference between the children spending ten nights with their father or 14 nights in circumstances where you had conceded that you would have been willing to give them an additional three or four in order to make up for the previous lost time?
BKCZ: I usually do make up time at the bigger holidays at the end of the year because of school during the year doesn't have that ability.
SENIOR MEMBER: So, you would have brought forward or - I just want to understand your evidence there. So, when you say that you were happy for him to make up some additional time, the three or four nights, what is your evidence, that it couldn't have been in a July 2020 school holidays?
BKCZ: Yes, usually when we do make up time, it's in the Christmas if there's any make up time to have. Because there's not a lot of time in the middle of the school year because - it's ten days already and there's not a lot of time either side of that.
SENIOR MEMBER: But the school holiday period generally runs for two weeks; doesn't it?
BKCZ: Yes.
SENIOR MEMBER: So, it might have been possible; do you concede that some additional time could have been made up then?
BKCZ: Prior to the school holidays?
SENIOR MEMBER: During that period that they could have gone to Western Australia in July 2020?
BKCZ: (Indistinct words) because the travel itself is a day. It's usually overnight.
SENIOR MEMBER: Sure?
BKCZ: (Indistinct words) one or two, that's why I'm saying if it's three or four days, there's not enough room and that's why we do it at Christmas.
SENIOR MEMBER: Okay?
BKCZ: Where there's more flexibility.”
74. The Tribunal also notes the mother’s evidence with respect to the children’s G2G passes being revoked by the Western Australian Government in either the July 2020 or September 2020 school holidays, but that she was unsure of which holiday period they were revoked[43]. The mother did not substantiate this claim to the Tribunal, and the father disputed this claim of the mother stating that it occurred in the July 2021 school holidays[44].
[43] Transcript dated 22 March 2022, page 25, lines 24 to 34.
[44] Transcript dated 22 March 2022, page 29, lines 27 to 38.
September 2020 school holidays
75. In the lead up to the September 2020 school holidays, the mother emailed the father on 5 August 2020 stating that her understanding was that if the children were to go to WA for the September holidays, upon return they would be required to do 14 days home quarantine, the impact of which would mean that her household would have to quarantine. The mother sought to check with the father if he would be doing the same in WA with the children, and whether the children would be departing on 19 September 2020 as planned, otherwise she intended to make alternative arrangements in the holidays for the children[45].
[45] Exhibit A1, Attachment 7, page 1.
76. On 18 August 2020, the mother emailed the father copies of flight’s purchased for the return of their children from Western Australia to Queensland on 3 and 4 October 2020[46].
[46] Exhibit A1, Attachment 7, pages 2 to 4.
77. On 28 August 2020, the mother emailed the father stating that flights she had purchased for their children to return to Queensland had been cancelled and enquired if the father’s flights had been cancelled[47]. Following this, there were a series of emails on 3 September 2020, which the Tribunal summarises:
(i)the father replied to the mother stating that the flights he had booked for the children to come from Queensland to Western Australia were still valid, and that he was just awaiting approval for their exemption passes to cross the Western Australian border;
(ii)the mother responded to the father that same day and stated the children would not be able to travel to Western Australia for the September 2020 School holidays, as she was unable to book return flights, and suggested that the children “go a bit earlier” over the Christmas period;
(iii)the father responded on the same day that he had tried for different flights, but the children aren’t able to leave Western Australia until after 4 October 2020 anyway;
(iv)to which the mother responded that the father should be able to get a credit for the September 2020 school holiday flights and use this towards December 2020, and enquired as to what dates the father was thinking in December 2020.
[47] Exhibit A1, Attachment 7, pages 5 and 6.
78. Two days later on 5 September 2020 the father responded to the mother and stated that he had received confirmation of authorised travel for their children to travel to Western Australia for the September 2020 school holidays.
79. On 6 September the mother emailed the father stating that she was unable to get return flights for the children for the September 2020 school holidays so the children were not able to go, and stated that she offered the father additional time at Christmas to which he did not respond. The father responded on the same day stating that he had replied and enquired if the mother had tried for different flights, as the children were not able to return to Queensland until after Sunday 4 October 2020. The mother responded on the same day stating that she had tried, but there was only a flight available with a 23 hour layover in Sydney which could not happen.
80. During the course of the hearing the Tribunal questioned the mother as to the basis upon which the children did not travel to Western Australia to see their father, to which she stated that it was due to the border restrictions, hotel quarantine requirements and cancelled flights[48]. The Tribunal notes that the mother submitted evidence with respect to Jetstar cancelling the flights[49]. When the Tribunal questioned whether the mother made alternate arrangements for the children to travel to Western Australia, her evidence was that she was unable to substantiate her searches for alternate travel at the time[50].
[48] Transcript dated 22 March 2022, page 20, lines 4 to 20.
[49] Exhibit A1, Attachment 3, page 1.
[50] Transcript dated 22 March 2022, page 22, lines 10 to 26.
Christmas 2020/2021 school holidays
81. It was not disputed by either party that their children departed Queensland for Western Australian on 28 December 2020 to spend time with their father and returned to Queensland on 25 January 2021[51]. The Tribunal notes that the children spent an additional 7 nights, to the originally agreed 23 nights with their father, in order to make up for periods of care where they children did not visit the father in the July 2020 and September 2020 school holidays.
[51] Transcript dated 22 March 2022, page 25, lines 36 to 45; page 26, lines 1 to 17; and Exhibit O4, page 7.
Other claims by the father
82. With respect to the father’s claims regarding the care of their children spending nights in care at the home of their maternal grandparents every second week, no such claims were advanced during the course of the hearing (noting the father was provided with the opportunity to make opening submissions and to clarify any aspect of his evidence he gave to the Tribunal)[52]. With respect to this claim, the Tribunal makes no finding, given the lack of supporting evidence and the failure of the father to advance such claims at the hearing.
[52] Exhibit R1, T10, page 70.
Conclusion
83. As outlined by the Tribunal in earlier reasons, section 51(1) of the Assessment Act applies in circumstances where a person who has reduced care of a child has taken reasonable action to ensure that care arrangements in place are complied with (in the present application this is set out by the parenting orders, which have been accepted by both the mother and the father). The Tribunal has already determined that special circumstances do not apply to the facts of the application before it, therefore, the Tribunal must determine whether the father took reasonable action to enforce compliance with the parenting orders.
84. The Tribunal concurs with the findings of the SSCSD of the Tribunal at first review with respect to the April 2020 school holidays, that is, “… the unforeseen pre-emptive Queensland/Western Australian border closure from 22 March 2020 to 30 April 2020, preventing the children travelling to Perth for [HBVN’s] Easter 2020 holiday care period was of a temporary/non-permanent nature…”[53].
[53] Exhibit R1, T2, page 11, paragraph 26.
85. The Tribunal is of the view that with respect to the July 2020 and September 2020 school holiday periods, the father took reasonable action to comply with the parenting orders, noting he:
(i)was only required to provide the mother with 42 days’ notice in writing, in circumstances where he did not intend to avail himself of any school holiday period;
(ii)notified the mother in writing of the flight bookings at the time the children were expected to visit as per their agreed schedule for the 2020 calendar year;
(iii)complied with restrictions in place at the time which the Western Australian government had in force, and sought exemption passes for his children to cross the state border and quarantine at home with him (observing he had previously stated to the SSCSD of the Tribunal that he made plans for his family whom reside with him in Western Australia to live elsewhere during this period[54]); and
(iv)went out of his way to inform the mother of quarantine arrangements in Queensland, in correspondence with her when seeking to comply with the parenting orders.
[54] Exhibit R1, T2, page 10, paragraph 19.
86. The Tribunal is of the view the submissions and evidence of the mother did not substantiate her claims with respect to the cost of quarantine arrangements which she claims would have been incurred for the July 2020 and September 2020 school holidays.
87. It was evident that exemptions in Queensland were in place for individuals entering the state whom were complying with “Court orders including family court”[55]. Evidence submitted by the mother with respect to the cost of hotel quarantine upon her children’s return was in fact incorrect and was evidence which related to unaccompanied minors entering Queensland from overseas. The Tribunal is of the view the mother’s evidence did not substantiate her claims with respect to the extent and cost (if any) relating to quarantine arrangements upon her children’s return to Queensland. In the absence of this evidence, the Tribunal finds there were no similar border restrictions in place for the July 2020 and September 2020 school holidays, as were in place for the April 2020 school holidays.
[55] Exhibit O1, page 17.
88. In view of the above findings, the Tribunal concurs with the findings of the SSCSD of the Tribunal at first review, that is, no permanent change in the care pattern for the children occurred on 22 March 2020, and that the care percentages applied in the assessment should remain at 14% to HBVN, and 86% to BKCZ from 8 April 2020.
DECISION
89. Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division, dated 13 April 2021.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
……………[SGD]…………
Associate
Dated: 8 April 2022
Date of hearing: 22 March 2022
Applicant: BKCZ (self-represented)
Other Party: HBVN (self-represented)
Respondent: Represented by Mr Christopher Bishop (Mills Oakley)
‘Annexure 1 – Exhibit Register’
| Exhibit Number | Description of Exhibit | Party | Date of Document | Date of Receipt |
| R1 | Section 37 T Documents (pages 1 to 175) | R | 15 June 2021 | 15 June 2021 |
| R2 | Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 15) | R | 25 November 2021 | 25 November 2021 |
| R3 | Extracted case: F v LP (Child Support) [2015] AATA 321 (pages 1 to 20) | R | 14 May 2015 | 30 November 2021 |
| A1 | Applicant Written Statement (pages 1 to 3) Attachments 1 to 7 (pages 4 to 33) | A | Various dates | 13 August 2021 |
| A2 | Applicant Calendar of Care | A | Undated | 14 March 2022 |
| O1 | Other Party Written Statement (pages 1 to 3) Various Attachments (pages 4 to 43) | O | 1 July 2021 Various dates | 7 July 2021 |
| O2 | Other Party Supplementary Written Statement (pages 1 to 6) | O | Undated | 3 September 2021 |
| O3 | Other Party Statement in Reply (pages 1 to 2) | O | 13 January 2022 | 13 January 2022 |
| O4 | Other Party Calendar of Care | O | Undated | 18 March 2022 |
and Heydon JJ and [143] per Kiefel J (with whom Crennan J agreed).
2
1
0