BMJG and Child Support Registrar (Child support second review)

BMJG and Child Support Registrar (Child support second review) [2021] AATA 4171 (12 November 2021)
Division:GENERAL DIVISION
File Number(s): 2021/1260
Re:BMJG
APPLICANT

AndChild Support Registrar
RESPONDENT

AndTTYQ
OTHER PARTY

DECISION
Tribunal:Dr L Bygrave, Member
Date:12 November 2021
Place:Sydney

The decision under review is set aside and, in substitution, the Tribunal decides that:
·from 24 February 2020, BMJG had 100% care of ‘A’ and TTYQ had 0% care of ‘A’;
·an interim period of care applied from 24 February 2020 that, as per orders made in the Federal Circuit Court of Australia on 12 September 2019, BMJG had 33% care of ‘A’ and TTYQ had 67% care of ‘A’; and
·the interim period of care ended on 2 June 2020.

..................................[SGD]...................................
Dr L Bygrave, Member
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 – notice of change of percentage of care – whether new determination of care should be made – date of effect of any new determination – whether other parent took reasonable action to have court ordered care arrangements reinstated – whether special circumstances exist – decision set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) pt 5, ss 49, 51, 53A, 54F
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.
SECONDARY MATERIALS
Child Support Guide, Department of Social Services, Version 4.59 released 8 November 2021.
REASONS FOR DECISION
Dr L Bygrave, Member
12 November 2021

The applicant, BMJG, and the other party, TTYQ, are the separated parents of ‘A’ who is currently 15 years old.
This matter is about the respective percentages of care that BMJG and TTYQ have for ‘A’.
CHRONOLOGY
The following sets out the undisputed chronology related to this matter:
·On 12 September 2019, orders were made in the Federal Circuit Court of Australia that outlined care arrangements between BMJG and TTYQ for ‘A’ (the 2019 Court orders).[1] On the basis of these care arrangements, Services Australia (Child Support Agency) made a child support assessment that reflected BMJG had 33% care of ‘A’ and TTYQ had 67% care of ‘A’ (the existing care percentage determination).
[1] Exhibit T-T21.
·On 19 March 2020, BMJG notified the Child Support Agency of a change in care for ‘A’ and advised he had 100% care of ‘A’ from 24 February 2020.[2]
[2] Exhibit T-T16.
·On 30 March 2020, TTYQ told the Child Support Agency that she disputed there was a change in care for ‘A’ and advised that:
owritten care arrangements were in place as set out in the 2019 Court orders;
othese written care arrangements were ‘being contravened’; and
oas the person with the ‘reduced care’, she was taking ‘reasonable action to have the care arrangement enforced’ and this included the care of ‘A’ being listed for hearing in the Federal Circuit Court on 1 June 2020.[3]
[3] Exhibit T-T19, page 98.
·On 30 April 2020, TTYQ requested an interim care determination and provided supporting information.[4]
[4] Exhibit T-T23.
·On 23 May 2020, the Child Support Agency made a new determination of care percentage (the May care percentage determination). The Child Support Agency determined that it was appropriate to make two care percentage determinations on the basis that BMJG had 100% care of ‘A’ from 24 February 2020 and TTYQ had taken ‘reasonable action’ to ensure the existing care percentage determination was complied with:
othe first care percentage comprised an ‘interim period’ of 26 weeks commencing on 24 February 2020 and ending on 9 September 2020 and, consistent with the 2019 Court orders, recorded BMJG having 33% care of ‘A’ and TTYQ having 67% care of ‘A’; and
othe second care percentage stated the ‘actual care’ commenced on 10 September 2020 and recorded BMJG having 100% care of ‘A’.[5]
[5] Exhibit T-T31, page 215.
·On 1 June 2020, the Federal Circuit Court of Australia made orders that (amongst other matters) the 2019 Court orders ‘remain in force’, BMJG shall return ‘A’ to TTYQ by 7pm on 1 June 2020, and the matter would be listed for mention on 6 August 2020.[6] BMJG subsequently returned ‘A’ to the care of TTYQ in the early evening of 1 June 2020; however, later that evening, ‘A’ resumed living with BMJG.
[6] Exhibit T-T36, page 260.
·On 14 June 2020, BMJG lodged an objection to the May care percentage determination.
·On 6 August 2020, the Federal Circuit Court made orders that ‘A’ live with BMJG and spend time with TTYQ ‘as agreed between the parties’, and listed the matter for an undefended hearing on 17 November 2020 (the August 2020 Court orders).[7] TTYQ did not appear at this hearing.
[7] Exhibit T-T47, page 365.
·On 9 August 2020, BMJG notified the Child Support Agency in writing about the August 2020 Court orders and stated that ‘A’ had lived with him 100% since 24 February 2020 and this shall continue until at least 17 November 2020.[8]
[8] Exhibit T-T40.
·On 17 August 2020, TTYQ responded to the objection lodged by BMJG in relation to the May care percentage determination.[9]
·On 22 October 2020, the Child Support Agency made a new determination of care percentage based on the August 2020 Court orders that, from 6 August 2020, BMJG had 100% care of A and TTYQ had 0% care.[10] This decision had the effect of ending the May care percentage determination.
·On 17 November 2020, the Federal Circuit Court of Australia made orders on an undefended basis that ‘A’ shall live with BMJG, but spend time with TTYQ ‘by agreement between the parties and in particular taking into account [‘A’s] wishes’.[11]
·On 1 December 2020, an objections officer at the Child Support Agency decided to disallow the objection lodged by BMJG on 14 June 2020. The objections officer decided:
ofrom 24 February 2020, BMJG had 100% care of ‘A’ and TTYQ had 0% care of ‘A’;
oan interim period of care applied from 24 February 2020 that, as per the 2019 Court orders, BMJG had 33% care and TTYQ had 67% care of ‘A’;
othe interim period of care comprised 52 weeks, commencing on 12 September 2019 (the date of the 2019 Court orders) and ending on 9 September 2020.[12]
·BMJG made an application for review to the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal) and, on 25 February 2021, the AAT1 affirmed the decision under review made by the objections officer at the Child Support Agency on 1 December 2020.
[9] Exhibit T-T43.
[10] Exhibit T-T53.
[11] Exhibit T-T67, page 426.
[12] Exhibit T-T64.
On 3 March 2021, BMJG applied to the General Division of the Tribunal for review. The matter was heard on 18 October 2021 by videoconference. BMJG attended the hearing and gave oral evidence. By email dated 27 June 2021, TTYQ advised the Tribunal that she did ‘not wish to be an active participant in the proceedings’.[13] I am satisfied that TTYQ was notified about the hearing, but decided not to attend. I also note the documentary evidence of TTYQ is before the Tribunal and has been considered in determining this matter.
[13] Exhibit OP1.
ISSUES
The issues for determination by the Tribunal are:
·whether the existing care percentage determination should be revoked and, if so, what percentage of care should be determined for BMJG and TTYQ; and
·whether an ‘interim period’ exists and, if so, the length of the interim period.
CONSIDERATION
The legislation relevant to this matter is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth). Relevant government policy is also set out in the Child Support Guide (the Guide), which should be considered unless there are cogent reasons not to do so.[14]
[14] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634; [1979] AATA 179.
Part 5 of the Assessment Act provides for the administrative assessment of child support. Relevant to this matter, Division 4 of Part 5 of the Assessment Act sets out percentage of care for a child: subdivision B provides determination of percentage of care and subdivision C outlines provisions relevant to the revocation of an existing care percentage.
Issue 1: Should the existing care percentage determination be revoked and, if so, what percentage of care should be determined?
Based on the undisputed chronology of events set out in paragraph 3, I am satisfied that for the period from 12 September 2019 to 23 February 2020, BMJG had 33% care of ‘A’ and TTYQ had 67% care of ‘A’ as set out in the 2019 Court orders (the existing care percentage determination).
However, these circumstances changed on 24 February 2020.
The written and oral evidence of BMJG is that ‘A’ contacted him on 24 February 2020 and asked to be collected after school. When BMJG met ‘A’ after school, he was very upset and told BMJG about serious incidents that had happened to him while in the care of TTYQ. ‘A’ also told BMJG that he wanted to live with him, and he would run away and sleep in a public toilet if he had to live with TTYQ. BMJG said he was aware of contravening the 2019 Court orders but was very concerned about the serious allegations and incidents reported by ‘A’ and ‘A’ saying he would run away. BMJG said that, at the time, he did not expect ‘A’ would live with him on an ongoing basis but rather he sought to understand ‘A’’s concerns and have an open dialogue with TTYQ to decide the best way for ‘A’ to return to her home.
BMJG filed copies of his email communication with TTYQ in the period from 24 February 2020 to 5 May 2020.[15] The emails written by BMJG record the issues, wellbeing and care of ‘A’, and emails by TTYQ state that ‘A’ is ‘in her care’ as per the 2019 Court orders and requests BMJG return ‘A’ to her.
[15] Exhibit T-T27, pages 163-201.
BMJG filed an application with the Court for interim orders on 3 March 2020 and informed the Child Support Agency on 19 March 2020 that he had 100% care of ‘A’ from 24 February 2020. Following orders made by the Federal Circuit Court of Australia on 1 June 2020, ‘A’ returned to the home of TTYQ briefly in the evening on 1 June 2020 but later requested BMJG to collect him as he did not want to stay with TTYQ. ‘A’ has continued to live with BMJG since this time.
BMJG told the Tribunal that he communicated with TTYQ by email from 24 February 2020 and his last communication with TTYQ was on 1 June 2020. Communication between TTYQ and ‘A’ in the period from 24 February 2020 to 2 May 2020 comprised two text messages and TTYQ has not spoken to or communicated with ‘A’ since 6 June 2020.
The written evidence of TTYQ accords with BMJG’s evidence that ‘A’ has lived with BMJG since 24 February 2020. However, TTYQ has disputed whether there was a change in the care of ‘A’ because the written care arrangements for ‘A’ set out in the 2019 Court orders were being contravened by BMJG and she was taking ‘reasonable action’ to have these written care arrangements enforced. I consider this issue in relation to my determination about an interim period.
The meaning of ‘care’ and ‘percentage of care’ are explained in the Guide.
In relation to determining whether care exists, the Guide states:
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·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, child care, 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.[16]
[16] Child Support Guide, part 2.2.1, released 8 November 2021.
The evidence before the Tribunal shows that, since 24 February 2020, ‘A’ has not lived at or visited the home of TTYQ except for a very brief period on the evening on 1 June 2020. Further, since 24 February 2020, BMJG has provided care for ‘A’ in relation to having responsibility and making decisions about his education and medical care, and meeting his physical (clothing, food, education etc), emotional and financial needs.
‘Percentage of care’ is a ‘child support assessment formula’ that takes into account ‘the amount of time a parent or non-parent carer is responsible for providing care for the child’.[17] The Guide further states:
A person’s percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child’s care…[18]
[17] Child Support Guide, part 2.2.1, released 8 November 2021.
[18] Child Support Guide, part 2.2.1, released 8 November 2021.
The percentage of care for ‘A’ prior to 24 February 2020 was consistent with the 2019 Court orders. However, based on the evidence before the Tribunal, I am satisfied a change in the actual care of ‘A’ occurred on 24 February 2020 and subsequent to this date, BMJG had 100% care of ‘A’ and TTYQ had 0% care of ‘A’.
Section 54F of the Assessment Act relevantly stipulates that the existing care percentage determination must be revoked if ‘the care of the child that is actually taking place does not correspond’ with the existing percentage of care determination.
I therefore must, pursuant to section 54F of the Assessment Act, revoke the existing care percentage determination because I am satisfied there was a change to the care of ‘A’ on 24 February 2020. From 24 February 2020, I find BMJG had 100% care of ‘A’ and TTYQ had 0% care.
Issue 2: Does an ‘interim period’ exist and, if so, what is the length of the interim period?
Section 49 of the Assessment Act relevantly provides for the determination of percentage of care where a ‘responsible person’ (defined as either a parent or non-parent carer of a child)[19] has no pattern of care for a child. Subsections 49(2) and (3) of the Assessment Act state that the percentage of care must be 0% ‘unless section 51 applies in relation to the responsible person’.
[19] See subsection 5(1) of the Assessment Act.
Subsection 51(1) of the Assessment Act states:
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…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. [emphasis added]
As set out in paragraphs 19 and 21 above, I am satisfied that the actual care of ‘A’ changed from 24 February 2020. I now consider whether TTYQ, as the parent with reduced care of ‘A’, was taking reasonable action to ensure the care arrangement set out in the 2019 Court orders was complied with.
The Guide sets out that:
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.[20] [emphasis in original]
[20] Child Support Guide, part 2.2.4, released 8 November 2021.
Examples of ‘reasonable action’ listed in the Guide include:
·genuine negotiation with the other party to ensure compliance with the care arrangement;
·making and/or attending an appointment at a 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; and/or
·notifying the police the child has been taken without consent.[21]
[21] Child Support Guide, part 2.2.4, released 8 November 2021.
TTYQ provided written statements on 30 April 2020 and 17 August 2020 in which she set out the reasonable actions she had undertaken since 24 February 2020 to have BMJG comply with the 2019 Court orders. TTYQ stated that she had sought legal advice, tried to negotiate with BMJG by email, consulted with ‘A’’s school, notified the police, contacted a family relationship centre and attended Court on 1 June 2020.[22] I note that TTYQ provided a number of attachments to her statements including copies of emails she wrote to BMJG on 15 March 2020 and 15 April 2020; orders she sought in the Court in a document dated 18 May 2020; an email she sent to an associate at the Federal Circuit Court on 2 June 2020; and records of text messages, phone numbers and emails that she contended showed she sought legal advice and contacted a family relationship centre and the police.
[22] Exhibits T-T23, pages 137-139 and T-T42, pages 304-306.
I have read these documents in detail and make the following findings. I accept TTYQ emailed BMJG on multiple occasions from 24 February 2020, asking that ‘A’ be returned to her care as per the 2019 Court orders. I also accept that TTYQ attended the Federal Circuit Court on 1 June 2020 to seek the 2019 Court orders be enforced. However, I note legal proceedings were initiated by BMJG, not TTYQ, and the evidence shows TTYQ has not participated in any legal processes in relation to ‘A’ after she sent an email to an associate at the Court on 2 June 2020. In relation to records of text messages, phone numbers and emails filed by TTYQ, I place little weight on these records. These documents show TTYQ made a telephone appointment with legal aid in April 2020 (more than six weeks after ‘A’ commenced living with BMJG), a phone call to a police station on 30 June 2020 (more than four months after ‘A’ commenced living with BMJG), a phone call to a family relationship centre on 8 June 2020 (approximately three and a half months after ‘A’ left her home), and the emails have been significantly redacted. It is simply not clear from this evidence whether and/or how TTYQ sought legal advice, or contacted the police or a family relationship centre to take action in relation to her care of ‘A’. Notably, BMJG told the Tribunal that he has never been contacted by the police or any legal or government service and asked to return ‘A’ to the care of TTYQ.

Weighing all of the evidence, I am satisfied that TTYQ took reasonable action to ensure compliance with the care arrangement in the period from 24 February 2020 as she communicated with BMJG about ‘A’ and engaged with legal proceedings in the Federal Circuit Court. I am also satisfied that from 2 June 2020, TTYQ stopped communicating with BMJG and ceased her involvement with legal proceedings regarding the care of ‘A’. On the basis of this finding, I am satisfied TTYQ ceased taking reasonable action from 2 June 2020.
Subsections 51(3) and (4) of the Assessment Act require two percentages of care to be determined in relation to the responsible person if ‘special circumstances’ do not exist:
·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)’; and
·relevant to this matter, the second percentage of care is to be 0%.
The Guide advises that the discretion of special circumstances should only 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’.[23] Examples of ‘unreasonable or inappropriate behaviour’ by the parent include ‘violence towards the child’.[24] However, the Guide states that:
Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed… [A]llegations 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.[25]
[23] Child Support Guide, part 2.2.4, released 8 November 2021.
[24] Child Support Guide, part 2.2.4, released 8 November 2021.
[25] Child Support Guide, part 2.2.4, released 8 November 2021.
In his oral and written evidence to the Tribunal, BMJG said that ‘A’ told him on 24 February 2020 that he had experienced physical and emotional abuse when he lived with TTYQ and her partner. BMJG said he took ‘A’ to Headspace in early March 2020 and ‘A’ participated in counselling with Headspace via zoom from late March 2020. A letter dated 26 November 2020 from Headspace confirmed ‘A’ had attended ‘for support’.[26]
[26] Exhibit T-T60, page 408.
While I can accept the oral evidence of BMJG, I note there is no evidence before the Tribunal from an independent third party, such as a police or medical professional report or an intervention order, that details any violent behaviour, assault or abuse towards ‘A’. In these circumstances, I am unable to find special circumstances exist for the purpose of section 51 of the Assessment Act. This means that, in accordance with the provision of subsections 51(3) and (4) of the Assessment Act, I must determine two percentages of care.
I now consider the length of the interim period.
The meaning of ‘interim period’ is stipulated in subsection 53A(1) of the Assessment Act:
(1) An interim period for a determination under section 49…of a responsible person’s percentage of care for a child is (subject to subsection (4)) the period:
(a) beginning on:
(i) the responsible person’s change of care day, unless subsection (2) applies; or
(ii) if subsection (2) applies – the day specified in that subsection; and
(b) ending:
(i) as set out in the applicable item of the following table, unless subparagraph (ii), (iii) or (iv) applies; or
(ii) if the person referred to in paragraph 51(1)(d) who has reduced care of the child ceases to take reasonable action to ensure that the care arrangement is complied with – on the day the person so ceases; or…
The applicable item in the table (in subsection 53A(1)) notes that, for circumstances where the care arrangement for the child is a court order, special circumstances and the other items do not apply, the interim period is a ‘52 week period’.
In accordance with paragraph 53A(1)(a) of the Assessment Act, I am satisfied that the interim period commenced on 24 February 2020, the date of the change of ‘A’ care. I am also satisfied that the interim period ended on 2 June 2020, the date that TTYQ ceased taking reasonable action to ensure that the 2019 Court orders were complied with, pursuant to subparagraph 53A(1)(b)(ii).
DECISION
The decision under review is set aside and, in substitution, the Tribunal decides that:
·from 24 February 2020, BMJG had 100% care of ‘A’ and TTYQ had 0% care of ‘A’;
·an interim period of care applied from 24 February 2020 that, as per orders made in the Federal Circuit Court of Australia on 12 September 2019, BMJG had 33% care of ‘A’ and TTYQ had 67% care of ‘A’; and
·the interim period of care ended on 2 June 2020.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 12 November 2021

Date(s) of hearing: 18 October 2021

Applicant: In person

Solicitors for the Respondent: Mr Matt Gauci, Hunt & Hunt Lawyers

[2021] AATA 4171

12 November 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Jurisdiction

Statutory Construction

Procedural Fairness

Remedies

Appeal

Date(s) of hearing:	18 October 2021
Applicant:	In person
Solicitors for the Respondent:	Mr Matt Gauci, Hunt & Hunt Lawyers