BMGV and Child Support Registrar (Child support second review)

[2020] AATA 3449

BMGV and Child Support Registrar (Child support second review) [2020] AATA 3449 (8 September 2020)

Division:GENERAL DIVISION

File Number:          2019/3116

Re:BMGV

APPLICANT

AndChild Support Registrar

RESPONDENT

AndBDGX

OTHER PARTY

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:8 September 2020

Place:Perth

The AAT1 Decision is varied to adjust the end date for the interim period as follows:

(a)the first percentage of care corresponding to the Family Court order is 22% of the child’s care attributed to the Father and 78% of the child’s care attributed to the Mother from 12 July 2018 to 20 September 2018; and

(b)the second percentage of care corresponding to the actual care is 0% of the child’s care attributed to the Father and 100% of the child’s care attributed to the Mother from 21 September 2018 onwards.

........................[Sgd]................................................

Senior Member Dr M Evans-Bonner

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 (Cth).

CATCHWORDS

CHILD SUPPORT – percentage of care – whether interim period applies – family court order regarding care of child in force – child refusing to participate in contact with father – whether Tribunal should make two separate percentage of care decisions – whether father took reasonable action to ensure compliance with care arrangement – whether special circumstances – meaning of “a care arrangement applies” in s 51(1)(b) of the Child Support (Assessment) Act 1989 (Cth) – characterisation where statute conflicts with policy – whether mother took reasonable action to participate in family dispute resolution – whether shorter interim period should apply – Reviewable Decision varied

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth) – s 3

Acts Interpretation Act 1901 (Cth) – s 15AB

Child Support (Assessment) Act 1989 (Cth) – ss 5, 49, 49(2), 49(3), 50, 50(4), 51, 51(1), 51(1)(b), 51(1)(c), 51(1)(d), 51(2), 51(3), 51(4), 51(5), 53A, 54, 54C, 54C(2)(a)

Family Law Act 1975 (Cth) – ss 64B, 10F

CASES

QGGR and Child Support Registrar [2018] AATA 2875

SECONDARY MATERIALS

Explanatory Memoranda, Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth)

Guides to Social Policy: Child Support Guide – 2.2.4

Herzfeld, Perry and Prince, Thomas, Statutory Interpretation Principles (Thomson Reuters, 2014)

Macquarie Dictionary (online at 3 September 2020)

Shorter Oxford English Dictionary (6^th ed, 2007)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

8 September 2020

BACKGROUND

1. The Applicant (Mother) and the Other Party (Father) are the separated parents of a child (F) born in December 2005. They have three other children together who are not the subject of these proceedings.

2. A child support case for F was first registered with the Department of Human Services Child Support (the Department) on 3 August 2015 (T16/197), with the Mother being the receiving parent and the Father being the paying parent.

3. On 22 September 2017 Family Court orders were made setting out the contact that the Father was to have with the children (including F) each week, as well as on birthdays and school holidays (T5/117-119) (Family Court order).

4. On 7 May 2018 the Registrar decided that, in accordance with the Family Court order, from 14 February 2018, the Mother had 78% (283 nights) and the Father had 22% (82 nights) care of F (T15/172-174).

5. On 12 July 2018 the Mother notified the Department of a change in care for F, namely that she had 100% (365 nights) care of F from that date (T15/175).

6. Following this notification, on 4 December 2018 the Registrar decided to change the assessment of child support on the basis that the Mother had 100% care, and the Father had 0% care, of F from 12 July 2018 (T10/147-153) (the Original Decision).  

7. On 5 December 2018 the Father contacted the Department to object to the Original Decision of 4 December 2018 on the basis that the Mother was withholding access to F and that the Family Court order had not been followed (T15/193).

8. However, on 8 February 2019, the Department wrote to the Father to inform him that his objection was disallowed (T14/167) (the Objection Decision).

9. On 23 April 2019, the Social Services & Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal) set aside the Objection Decision (T2/68-75). This is the Reviewable Decision currently before the Tribunal.

10. The AAT1 found that the Father had taken reasonable action to ensure that the care arrangements in the Family Court order were complied with, but that the Mother had not (T2, paras [17] and [28]).

11. Consequently, the AAT1 found that it was appropriate to issue two percentages of care in accordance with s 51 of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act). The first corresponded to the Family Court order being 22% of F’s care to the Father and 78% of F’s care to the Mother from 12 July 2018 to 9 January 2019. The second corresponded to the actual care of F which was 0% to the Father and 100% to the Mother from 10 January 2019 onwards.

12. On 4 June 2019 the Mother filed an application seeking a review of the Reviewable Decision in the General Division of the Tribunal (AAT2) (T1/1-8).

    ISSUES

13. The issues requiring determination by the Tribunal were accurately stated in the Child Support Registrar’s (Registrar’s) Statement of Facts, Issues and Contentions (at paragraphs [4] through to [5]) dated 13 December 2019 as follows:

    4.The issue for consideration by the Tribunal is what percentages of care the Applicant and the Other Party each had of [F] from 12 July 2018, during such period that this Tribunal considers appropriate (care period).

    5.The Tribunal is also required to consider whether s 51 of the Assessment Act applies such that two percentages of care should be made, and if so:

    a.From which date should the first percentage apply;

    b.For what period of time should the first percentage apply;

    c.What percentages of care the Applicant and the OP [Other Party] should have had of [F] under the care arrangement during the care period; and

    d.What percentages of care the Applicant and the OP actually had of [F] during the care period.

    CONSIDERATION

    Percentages of care and whether s 51 applies

14. Sections 49 and 50 of the Assessment Act set out when a percentage of care determination must be made.

15. Section 49 applies if, having regard to all the circumstances, the responsible person for a child (defined by s 5 of the Assessment Act as “a parent or non-parent carer of the child”) has no pattern of care for the child:

    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.

    (Emphasis added.)

16. Section 50 applies if, having regard to all the circumstances, the Registrar is satisfied that the responsible person has a pattern of care:

    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.

    (Emphasis added.)

17. Subsections 49(3) and 50(4) of the Assessment Act broadly provide that s 51 may apply to affect the percentage of care during the care period. Section 51 seeks to ensure compliance with care arrangements, including court orders. Section 51(1) provides:

    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.

    (Underlining added.)

18. It is accepted by both parties that the Father had no pattern of care of F from 12 July 2018 (T2/69; transcript/36), and therefore the Registrar is required to make a new determination (thus satisfying s 51(1)(a) of the Assessment Act) that his care percentage for F must be 0% unless s 51 applies (ss 49(2) and (3) of the Assessment Act). Therefore, the question arises as to whether s 51 applies.

19. For section 51 to apply, there must also be a care arrangement in relation to the child

    
    

    (s 51(1)(b) of the Assessment Act). Section 5 of the Assessment Act provides that the phrase, “care arrangement” has the meaning given to it by section 3 of the A New Tax System (Family Assistance) Act 1999 (Cth) which is:

    care arrangement in relation to a child means:

    (a)a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or

    (b)a parenting plan for the child; or

    (c)any of the following orders relating to the child:

    (i)a family violence order within the meaning of section 4 of the Family Law Act 1975;

    (ii)a parenting order within the meaning of section 64B of that Act;

    (iii)a State child order registered in accordance with section 70D of that Act;

    (iv)an overseas child order registered in accordance with section 70G of that Act.

    (Underlining added.)

20. The Family Court order does not state the relevant section of the Family Law Act 1975 (Cth) (FLA) under which it was made. However, s 64B of the FLA defines a parenting order, in part, as follows:

    (1)A parenting order is:

    (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

    (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).

    However, a declaration or order under Subdivision E of Division 12 is not a parenting order.

    (2) A parenting order may deal with one or more of the following:

    (a)the person or persons with whom a child is to live;

    (b)the time a child is to spend with another person or other persons;

    (c)the allocation of parental responsibility for a child;

    (d)if 2 or more persons are to share parental responsibility for a child—the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

    (e)the communication a child is to have with another person or other persons;

    (f)maintenance of a child;

    (g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

    (i)     a child to whom the order relates; or

    (ii)    the parties to the proceedings in which the order is made;

    (h)the process to be used for resolving disputes about the terms or operation of the order;

    (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

21. The Tribunal agrees with the Registrar’s submission (Registrar’s Further Submissions dated 2 June 2020, para [6]) that the Family Court order would be a parenting order within the meaning of s 64B of the FLA. This is because, as provided for in s 64B, the Family Court order sets out the times and occasions that the children, including F, are to spend with the Father.

22. In the Registrar’s Further Submissions dated 2 June 2020, the Registrar submitted that, although the Family Court order was a “care arrangement”, it may not “apply” (see paras [9]-[15]) on the basis that s 51(1)(b) “contemplates prior compliance with a care arrangement as a precondition to an interim care determination being applied” (para [12]). In support, the Registrar cited the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth) which states:

    New section 51 is an exception rule that applies where there is a care arrangement in relation to the child and this care arrangement is no longer being complied with. Provided the person with reduced care has taken reasonable action to ensure the care arrangement is complied with, they will continue to have a care percentage based on the care arrangement rather than actual care, for an interim period. For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.

23. However, as a principle of statutory interpretation, the Explanatory Memorandum will only be relevant if there is any ambiguity in the interpretation of a statutory provision (Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act) s 15AB). Section 15AB of the Acts Interpretation Act provides that:

    Use of extrinsic material in the interpretation of an Act

    (1)Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

    (a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

    (b)         to determine the meaning of the provision when:

    (i)        the provision is ambiguous or obscure; or

    (ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

24. The following excerpt from Perry Herzfeld and Thomas Prince, Statutory Interpretation Principles (Thomson Reuters, 2014) (Herzfeld and Prince) at 220 explains the operation of 15AB of the Acts Interpretation Act:

    … [T]hese provisions have the consequence that, unless a provision is ambiguous or obscure (s 15AB(1)(b)(i)) or its ordinary meaning, taking into account its context in the Act and the purpose or object underlying the Act, leads to a result that is manifestly absurd or is unreasonable (s 15AB(1)(b)(ii)), extrinsic material may only be referred to pursuant to s 15AB to confirm that the meaning is in fact the ordinary meaning in the sense just mentioned (s 15AB(1)(a)). In short, absent ambiguity, obscurity, manifest absurdity or unreasonableness, extrinsic material cannot be relied upon pursuant to s 15AB to depart from a meaning determined without the extrinsic material.

25. Here, there does not appear to the Tribunal to be any ambiguity, nor does the ordinary meaning of the word “apply” lead to a manifestly absurd or unreasonable result. The ordinary meaning of the words can be ascertained without reference to the Explanatory Memorandum.

26. Herzfeld and Prince further observe that, “[i]t is permissible to have regard to ‘well known and authoritative’ dictionaries to determine the ordinary meaning of a word” (at 45, footnotes omitted) and that the Oxford English Dictionary and the Macquarie Dictionary are “commonly referred to in Australian cases”.

27. “Apply” is defined in the Macquarie Dictionary (online at 3 September 2020) (defs 5 and 8) as:

    to use (a word or statement) with reference to some person or thing as applicable or pertinent: to apply the testimony to the case.’ Or ‘–verb (i) 8.  to have a bearing or reference; be pertinent: the argument applies to the case.

28. The Shorter Oxford English Dictionary (6^th ed, 2007), includes the following definitions of “apply” (defs 6 and 8):

    Have a practical bearing; have relevance; refer; be operative.

    Give a specific reference to (a general, theoretical or figurative statement); use as relevant or suitable; bring to bear practically, put into practical operation.

29. In the Tribunal’s opinion, 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 fact that the Family Court order “applies” is also supported by the fact that the Father was able to make two contravention applications to the Family Court to enforce it. As noted above, both parties agreed at the hearing that it applied, but that it had never been complied with.

1. In support of their proposed construction of s 51(1)(b) of the Assessment Act (that is, that it only applies if there was prior compliance with a care arrangement), the Registrar also referenced the following excerpt from the Guides to Social Policy: Child Support Guide  (Child Support Guide) at 2.2.4 concerning s 51 and whether an interim period should apply:

   If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act. The first percentage is the amount of care the person should have of the child under the care arrangement. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors. The second percentage of care will apply after the interim period has ended.

   Generally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply.

   (Emphasis added.)

2. The Tribunal agrees with the above statement in the Child Support Guide that “there must be a care arrangement in place” for s 51(1) to apply. However, the ordinary meaning of the words “a care arrangement applies in relation to the child” in s 51(1)(b) does not support the conclusion stated in the Child Support Guide that the care arrangement “is being followed at the time the care changed”. Neither does the wording of the following subsection, s 51(1)(c) of the Assessment Act, which provides:

   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)…

   (Emphasis added.)

3. The ordinary meaning of the words in emphasis, “should have had, or is to have” would include circumstances where a care arrangement had never been followed.

4. The Tribunal is not obliged to follow a policy when it is inconsistent with the statute. The AAT1 (T2/73, para [19]) accurately summarised the law in this respect in the context of the Child Support Guide as follows:

   The tribunal is not bound by law to apply the Department’s policy as set out in the Guide and elsewhere, but provided the policy is consistent with the legislation, it must have regard to it and in the ordinary course, to follow it (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60) unless there is a cogent reason not to do so (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

5. In this case, the Tribunal finds that the policy is inconsistent with the statute and that it is not bound to follow it.

6. Further, 2.2.4 of the Child Support Guide is not absolute and allows for some discretion, as indicated by the word “[g]enerally”. That is, “[g]enerally, there must be a care arrangement in place that is being followed at the time the care changed…”. The Child Support Guide, at 2.2.4, further qualifies that discretion can be applied in a “range of circumstances” to make an interim determination when a care arrangement has not been followed:

   However, there may be some situations where an interim determination can be made when the care arrangement had not been followed. This includes where the disputed care change occurs before the other party had the opportunity to exercise the care provided for under the care arrangement (e.g. if one parent withholds care from the other parent from the day the care arrangement takes effect).

   An interim determination could also be made where there is no care arrangement at the time the care change occurs, but a subsequent care arrangement is made while either party still disputes the care that is occurring (e.g. if one parent withholds care from the other parent, and the other parent successfully obtains a parenting order that provides them with a level of care, despite not actually being able to exercise the level of care provided for under the parenting order).

   There are a range of circumstances where a child support assessment may continue to be based on a care arrangement during an interim period, such as situations where contact has been prevented by one party, or where a child has not been returned after a contact visit, or where the child chooses to live with the other carer.

   (Emphasis added.)

7. Additionally, a similar characterisation of s 51(1)(b) to that of this Tribunal (see paragraph [23] above) was made by the Tribunal in QGGR and Child Support Registrar [2018] AATA 2875 (QGGR). In QGGR, the construction of s 51(1)(b) submitted by the Registrar was rejected by Member Kelly who stated at [54]-[55]:

   The argument depends on the Tribunal reading into s 51(1)(b) words limiting the operation of the provision to cases where the pre-existing percentages of care are consistent with the “care arrangement”, which in this case is the extent of care set out in the 2009 court orders.

   The Tribunal does not accept that interpretation of the provision…

8. This Tribunal agrees with Member Kelly’s construction and her observation that the construction submitted by the Registrar requires the Tribunal to read words into the provision that are not there. Consequently, the Tribunal finds that a care arrangement applied because there was a Family Court order in force, despite it not ever being followed by the Mother and the Father. Hence s 51(1)(b) is satisfied.

9. As noted above, there was no dispute between the Mother and the Father that the Family Court order had never been complied with (transcript/20). The Tribunal finds that s 51(1)(c) is satisfied because the actual care of F did not comply with the extent of his care that the Mother (and indeed the Father), should have had. Specifically, under the Family Court order, the actual care of F was meant to be 78% to the Mother and 22% to the Father. However, from 12 July 2018, it was effectively 100% to the Mother and 0% to the Father because F was refusing to have contact visits with the Father.

10. Finally, s 51(1)(d) requires that the person who has “reduced care of a child” is taking “reasonable action to ensure that the care arrangement is complied with”. “Reduced care of a child” is defined in s 54 of the Assessment Act as follows:

    A person has reduced care of a child if:

    (a)a care arrangement applies in relation to the child; and

    (b)the person should have had, or is to have, an extent of care of the child under the care arrangement during a care period; and

    (c)the Registrar is satisfied that the actual care of the child that the person has had, or is likely to have, during the care period is less than that extent of care.

    Reasonable action to ensure that the Family Court order was complied with

11. Applying s 54, the Father had reduced care of F (under s 51(1)(d) of the Assessment Act) because he was meant to have 22% care under the Family Court order, but the actual care the Father had of F was 0%. Accordingly, the question is whether the Father took reasonable action to ensure that the Family Court order was complied with. Although the Mother gave evidence about the action she took to make the child attend contact visits with the Father, here it is the action taken by the Father that is relevant.

12. The relevant part of 2.2.4 of the Child Support Guide concerns “reasonable action” and 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.

13. A letter from the Father’s solicitors (T9/140-142) confirms that the Father filed two contravention applications in the Family Court concerning alleged breaches of the Family Court order including that the Mother did not make F available for contact. These contravention applications were filed on 30 November 2017 (see copy of this contravention order at T8/129) and 24 August 2018 (T9/141). The Father gave evidence at the AAT2 hearing that he withdrew the contravention applications “as an attempt to diffuse the situation” by not “elevating things to the court” (transcript/31). These actions are consistent with the examples of “reasonable action” given in the excerpt from 2.2.4 of the Child Support Guide in the preceding paragraph. Accordingly, the Tribunal finds that the Father took reasonable action to ensure that the care arrangement (being the Family Court order) was complied with.

14. The Tribunal therefore finds that s 51 applies and must (subject to s 51(5) of the Assessment Act) now determine two percentages of care, as provided for in ss 51(2) through to 51(4) of the Assessment Act, which provide:

    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.

    Special circumstances

15. However, s 51(5) of the Assessment Act provides that if there are special circumstances, the Registrar has the discretion to determine a single percentage of care that corresponds with the actual care of the child.

    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.

16. Hence, the Tribunal must consider whether special circumstances exist in relation to F, which would justify a single percentage of care being determined.

17. The Child Support Guide provides guidance regarding the Registrar’s discretion to determine whether there are special circumstances. The relevant part of 2.2.4 of the Child Support Guide 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.

    The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:

    ·     violence towards the child,

    ·     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.

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

    Suitable evidence may include (but is not limited to):

    ·     a police report detailing violent behaviour towards a child or the person with increased care,

    ·     an intervention order preventing contact with the child or person with increased care, or

    ·     statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.

18. In summary, the Child Support Guide outlines that the special circumstances discretion is only to be exercised in “unusual” cases, with the examples of special circumstances including the child being exposed to violence or other inappropriate behaviour leading to the change in care. However, in this case, the circumstances leading to the change in care were, if the Mother’s evidence is accepted, F’s refusal to attend contact with his Father, or if the Father’s evidence is accepted, the Mother not doing enough to facilitate contact.

19. More specifically, the Mother’s evidence was that she did everything she could to encourage F to attend contact visits with the Father. Her evidence was that she tried for six months to make the child comply with the Family Court order, including undertaking parenting classes and F attending counselling (transcript/22 and 30). The Mother stated that F refused to see the Father, and that when F did try to see the Father “he [F] would always come home upset or unhappy or saying that his father had said various things to him about me” (transcript/29). The Mother said she tried to make F attend visits with his Father by driving him to school and not funding his transport card so that he would have to remain at school and be picked up by the Father (transcript/29). The Mother further described the attempts she made to facilitate contact (transcript/30):

    During the time before and after July 2018 I actually occasionally took [F] to the train station because [F] made the decision that he wanted to see his father. I took him to his father’s doorstep a couple of times. There was no need for me to withhold [F] and at times I actually took him. We originally when he wasn’t going and this is before or really 2017 we originally actually punished him for not going. We took away his iPad, we wouldn’t let him on any electronics, we stopped him from going to see friends because we were aware that at 12 years old he was – you know, social life is everything and going to his father’s was not something he enjoyed but that it was actually more important that he went to his father’s.

    And on being accused of withholding him we let BDGX know that via the solicitors and the response was that we had no right to punish [F] for this, that we should be actively encouraging and that he didn’t want [F] to be punished anymore. And so we did stop that although we didn’t allow him to run riot during those weekends still. We did say to him, you know, you’re supposed to be at your dad’s. He always had the offer as well that if he did just decide that he wanted to go we would take him.

    He’s the same size as me and has been since long before his twelfth birthday. I’m only short. And he’s strong. I don’t know what else to do. I’ve repeatedly asked [F], sorry, asked BDGX what he wants me to do but I’ve never had a reply to that. And like I say I gave it six months of the orders not being followed before I said anything to the Child Support Agency…

20. The Mother further stated that (transcript/23):

    I think I’ve also given information with regards to what was being said to [F]. And I think it can be considered that what was being said to [F] was actually exposing him to family violence. The emotional derogatory comments about me, there’s a number of emails in there that it makes it clear that [F] was very unhappy going and that it was because of BDGX’s actions.

21. The Tribunal does not accept this submission. The Tribunal has reviewed the messages in the T-documents between F and his Father and there is no evidence of any derogatory comments or F being exposed to any family violence (T1/13-21).

22. The Father’s evidence was that the Mother actively tried to stop F from having contact with his Father. He stated that he would attend school on his allocated contact days to pick up F, but that F would not be there. He stated that (transcript/31):

    So I did everything I could and was practicably reasonable. I tried to pick him up every time and he just wasn’t made available. You know, hence the contravention application that I made but I was constantly trying to diffuse the situation by not elevating things to the court... So, you know, the contravention application was withdrawn as an attempt to diffuse the situation as opposed to it not having any validity. And I understand from the Child Support Agency today I’ll need to file another contravention application in regards to my daughter [name omitted]. I think we have a pattern of behaviour here of deliberate alienation.

1. The evidence before the Tribunal does not support the conclusion that the Mother actively tried to stop F from having contact with his Father. In a copy of one of the electronic messages before the Tribunal, the Father states to F, “you have chosen not to see me for such a long time” (A2). In another train of electronic messages between the Father and F, F stated, “I’m not coming tomorrow don’t pick me up” (T1/14) and “[h]ey dad I don’t really want to come this weekend. I might come next weekend” (T1/20). Another exchange indicates that F only wanted to come to the Father’s house for a few hours, and not for the whole weekend, and when the Father stated that he wanted to see F for the agreed time, F concluded the conversation by stating “[a]nd you wonder why I don’t want to go” (T1/37-40).

2. The Mother expressed the view that the Father could have done more to help facilitate contact, such as arriving five minutes early at school to collect F, speaking to school staff to ask them not to release F until the Father arrived, waiting on the footpath outside F’s school so F would have had to pass him, and telephoning F to say he was waiting for him (transcript/43; A4/2). Other electronic conversations between the Mother and the Father show the Mother’s assertions that the Father had failed to pick up F from school on several occasions, and the Father’s assertions that on several occasions he attended school to collect F who was not there and that he had phoned and texted F with no response (T1/29-36). On 16 November 2018 the Father stated, “I believe that he [F] again avoided being picked up” (T1/30).  

3. Despite both the Mother and Father’s assertions against each other, it appears to the Tribunal that both parents did their best to facilitate access with F, and there was probably little more that each of them could have done. The Tribunal found both parties to be credible witnesses and that both gave evidence honestly. The evidence, including the electronic communications, indicates that F did not want to attend contact with the Father, and that both parents had difficulty making him comply.

4. Nevertheless, the difficulties created by the lack of cooperation of the child and the fact that the Mother has made reasonable attempts to facilitate contact are not factors that may be categorised as “special circumstances”, which, as noted above, apply in “unusual” cases, such as where the child is exposed to violence or other inappropriate behaviour that leads to the change in care.

   Two percentages of care

5. The Tribunal therefore finds that s 51 of the Assessment Act applies, and that in accordance with s 51(2), it is appropriate to make two percentage of care determinations as follows:

   (a)the first percentage of care is the percentage of care that the Mother and the Father should have had during the care period under the Family Court order, which is 22% to the Father and 78% to the Mother (s 51(3) of the Assessment Act). This percentage of care applies to each day that occurs in the interim period (s 54C of the Assessment Act – discussed below); and

   (b)

   the second percentage of care is the actual care of F, which is determined under

   
   

   s 49 of the Assessment Act) to be 0% to the Father and 100% to the Mother.

   Interim period

6. The next consideration for the Tribunal is to determine when the interim period begins. Section 54C(2)(a) of the Assessment Act effectively provides that the interim period begins on the first day that the actual care of the child ceased to correspond with the care provided for under the care arrangement. Section 54C of the Assessment Act states:

   Days to which the percentage of care applies if 2 percentages of care apply under section 51 in relation to a responsible person

   (1)This section applies if:

   (a)a determination of a responsible person’s percentage of care for a child is made under section 49 or 50; and

   (b)2 percentages of care were determined for the purposes of subsection 51(2) in relation to the responsible person; and

   (c)the determination is not suspended under subsection 54FA(2) or 54HA(2).

   (2) Until the determination is revoked or suspended under Subdivision C of this Division:

   (a)the percentage of care referred to in subsection 51(3) applies to each day in a child support period that occurs in the interim period for the determination; and

   (b)the percentage of care referred to in subsection 51(4) applies to each day in a child support period that does not occur in the interim period for the determination.

7. As noted above, both parents agreed at the AAT2 hearing that the Family Court order was never completely complied with (transcript/35-36). The Mother’s evidence was that (transcript/35):

   [T]he court ordered that [F] should go, it was a staged re-entry from day visits and then one overnight and then two overnight. And so by I think it was the February he was supposed to be going for two nights every fortnight and half the school holidays but it just never happened. [F] tried to go and he just refused. He went a couple of times, he went at other times but no pattern was ever established.

8. Both the Mother and the Father agreed that F was 100% (or very near to 100%) in the care of the Mother from 12 July 2018, being the date that the Mother notified the Department of a change of care (transcript/36). Consequently, the Tribunal finds that the change of care day was 12 July 2018. 

9. Section 53A of the Assessment Act sets out the meaning of “interim period”. The length of this period depends on various factors, including whether the care arrangement is a court order. For court orders, items 1 and 2 of the Table in s 53A are relevant. Section 53A and the effect of items 1 and 2 of the Table were succinctly summarised by the Secretary in Exhibit R2 paragraphs [35]-[37] as follows (see also Child Support Guide at 2.2.4):

   35.For court orders, the maximum interim period that can apply is the later of:

   a.52 weeks starting from the day the care arrangement provided by the court takes effect; or

   b.26 weeks from the change of care day.

10. The Family Court order took effect on 22 September 2017, and so 52 weeks from that date was 20 September 2018. Alternately, 26 weeks from the change of care day of 12 July 2018, was 9 January 2019. Therefore, the later date was 9 January 2019.

11. However, in certain circumstances, a shorter interim period may apply (s 53A(1)(b) and items 1 and 2 of s 53A(1)(b)). These circumstances were summarised in paragraph [36] of Exhibit R2 (see also Child Support Guide at 2.2.4) as follows:

    36.A shorter interim period may apply if the change of care occurs after the first 26 weeks from the day the court order takes effect, and the person with increased care takes reasonable action to participate in family dispute resolution. The shorter interim period will end at the earlier of:

    a.14 weeks from the day the person with increased care started taking reasonable action to participate in family dispute resolution (but no earlier than 52 weeks starting from the day the court order took effect); or

    b.26 weeks from the change of care day.

12. Section 5 of the Assessment Act provides that “family dispute resolution” has the meaning given by s 10F of the FLA which provides:

    Family dispute resolution is a process (other than a judicial process):

    (a)in which a family dispute resolution practitioner:

    (i)     helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or

    (ii)    helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; and

    (b)in which the practitioner is independent of all of the parties involved in the process.

13. The Family Court order took effect on 22 September 2017, and 26 weeks from that date was 22 March 2018. The change of care occurred after this time on 12 July 2018. A letter from the Mother’s lawyers dated 19 March 2018 confirmed that she was willing to attempt alternative dispute resolution to try to resolve issues concerning the children (Exhibit A1). There is also a certificate showing that the Mother completed a “Mums and Dads Forever” parenting program on 23 May 2018. The Mother also arranged for F to attend counselling sessions with Anglicare Western Australia’s Family & Relationship Counselling Program on 12 occasions between 6 November 2017 to 14 May 2018 “in an attempt to get [F] to see his Father” (Exhibit A3).

14. The Tribunal finds that the letter from the Mother’s lawyers dated 19 March 2018 was reasonable action to participate in family dispute resolution. When item 2 of the Table in

    
    

    s 53A is applied, the earliest date is the date that is 52 weeks from the date the Family Court order took effect which was 20 September 2018. Therefore, the interim period will end at that date. This differs slightly from the AAT1 Decision which found that the interim period ended on 9 January 2019.

    DECISION

15. In conclusion, the Tribunal finds that the correct or preferable decision is that the AAT1 Decision should be varied to adjust the end date for the interim period as follows:

    (a)the first percentage of care corresponding to the Family Court order is 22% of the child’s care attributed to the Father and 78% of the child’s care attributed to the Mother from 12 July 2018 to 20 September 2018; and

    (b)the second percentage of care corresponding to the actual care is 0% of the child’s care attributed to the Father and 100% of the child’s care attributed to the Mother from 21 September 2018 onwards.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

..... [Sgd]...................................................................

Associate

Dated: 8 September 2020

Dates of hearing:	12 May 2020 and 19 May 2020
Applicant:	Self-represented
Representative for the Respondent:	Ms L Hinwood, Services Australia
Other Party:	Self-represented