BSKT and Child Support Registrar (Child support second review)

[2020] AATA 392

BSKT and Child Support Registrar (Child support second review) [2020] AATA 392 (4 March 2020)

Division:GENERAL DIVISION

File Number:          2019/3044

Re:BSKT

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

WSSCAnd  

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:4 March 2020

Place:Brisbane

The decision under review is affirmed.

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Member P Ranson

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.

Catchwords

CHILD SUPPORT – Federal Circuit Court of Australia parenting Orders in place – parenting Orders dismissed by Family Court of Australia – dismissal of Orders ‘discharged’ by Full Court of the Family Court of Australia – existing care arrangements taken to be reinstated – interim care determination sought – no change in care arrangements – no new parenting Orders made – decision under review affirmed

Legislation

Child Support (Assessment) Act1989 (Cth)

Cases

Nash and Nash (Child support) [2019] AATA 1735 (22 May 2019)
Page and Chapman (Child support) [2019] AATA 2189 (29 May 2019)

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Member P Ranson

4 March 2020

BACKGROUND

1. The Mother and the Father are the estranged parents of their Daughter and Son. After a 16 year relationship they separated in 2012 and once the Federal Circuit Court of Australia (“FCCA”) sorted out the division of the family’s assets, they made Parenting Orders which essentially granted the parents equal care and responsibility for their two children.[1]

   [1] T Documents T4, pp 34 – 91.

2. Unfortunately the parents’ relationship deteriorated further over time and involved protracted litigation about the parenting of their children. In 2016 their Daughter made the decision to live full-time with the Father, she was 14 at the time. The Mother disagreed with that decision as she believes the Father had consistently and actively discouraged their children from having any contact with her. Further court appearances and litigation followed.

3. In February 2018 the Family Court of Australia (“FamCA”) made orders which dismissed a number of allegations made by the Mother against the Father, upheld others, and importantly, dismissed the Parenting Orders made in July 2014 in respect of their Daughter.[2] By then their Son, whose care is not the subject of this application, was over 18. The Mother appealed against those orders and in July 2018, the Full Court of the Family Court of Australia (“FamCAFC”) discharged certain parts of the orders made in February that year, most notably in terms of their Daughter being in the full-time care of the Father.[3]

   [2] T Documents T8, pp 108 – 114.

   [3] T Documents T13, pp144 – 146.

4. The Mother believes the orders made in July 2018 amount to fresh Parenting Orders in regard to the parenting arrangements. If that is so, and if she has taken reasonable action to enforce those orders, she may be entitled to an Interim Care Determination (ICD) in her favour. Alternatively, if the July 2018 orders simply reinstate the care arrangements of July 2014, an ICD is not available to the Mother.

   FACTS

5. The parties in this case are:

6.       Applicant	7.       BSKT (the Mother)
8.       Respondent	9.       Child Support Registrar (the Respondent)
10.     Other Party	11.     WSSC (the Father)

1. The Mother and the Father are the biological parents of a son now aged 20 (the Son) and a daughter now aged 18 (the Daughter). The Daughter was born on 7 August 2001.

2. The Mother and Father separated in 2012 and on 4 July 2014 the FCCA made orders (the 2014 FCCA Parenting Orders) whereby the Mother and the Father had equal shared care and responsibility for the Son and the Daughter, then aged 15 and 13 respectively.

3. The Respondent provided a Statement of Facts, Issues and Contentions dated 1 October 2019 (“SFIC”), which sets out in detail the law relevant to this case with which the Tribunal concurs.[4] As a copy of the SFIC was provided to the Mother and the Father prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   (a)Child Support (Assessment) Act1989 (Cth) (the Act); and

   (b)Child Support Guide (the Guide).

   [4] Respondent’s Statement of Facts, Issues and Contentions.

4. The Respondent identified the issues to be decided in this case as follows:

   (a)whether there was a change in care in relation to the Daughter; and, if so

   (b)what percentage of care should be reflected in the Child Support Register from the date the care changed; and

   (c)whether or not an interim care determination should be made from 31 July 2018.

5. Pursuant to subsections 49(3) and 50(3) of the Act, the care percentage must correspond with the actual care a person has of the child during the care period. Sections 51 and 52 of the Act outline exceptions to this requirement and enable the Registrar to make an ICD in circumstances where a care arrangement in relation to a child is not being complied with.

6. The Hearing occurred on 12 November 2019 (the Hearing). The Mother attended in person and the Father attended by telephone. Mr McQuinlan for the Respondent attended in person. The Mother and the Father gave evidence under affirmation.

7. The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents.
Exhibit 2	The Respondent’s Statement of Facts, Issues and Contentions dated 1 October 2019 as amended.
Exhibit 3	Submissions by the Mother of various dates
Exhibit 4	Statement of Issues prepared by the Respondent dated 27 June 2019

1. The Father did not have exhibits 3 and 4 available to him at the time of Hearing, however, he agreed to proceed without access to them.

2. The Mother and the Father have a strained relationship and this has played out over the years since their separation in the form of numerous court appearances and associated litigation.

3. On 24 March 2016 the Father advised the Department of Human Services (the Department) there had been a change in the care of the Daughter as of 18 March 2016, viz. he then had 100% care of the Daughter.[5] Acknowledging the court-ordered care arrangements in place at the time were equal shared care between the Mother and the Father, the Father advised the Department the Daughter had decided she no longer wished to live with the Mother. The Department continued to apply the parenting arrangements set out in the 2014 FCCA Parenting Orders for a period of 14 weeks from 21 March 2016. From 28 June 2016 the Father was recorded as having 100% care of the Daughter.

   [5] T Documents T48, p 273.

4. It is uncontroversial the Daughter commenced living permanently with the Father in 2016, viz. there was a change in actual care at that time, which has not altered since.

5. The Mother did not accept a change in care of the Daughter had occurred and made all manner of attempts to have the equal share care arrangements reinstated. On 14 February 2018 the FamCA made orders (the February 2018 FamCA Orders) dealing with various contraventions asserted by the Mother against the Father and in particular dealing with the parenting arrangements. Specifically, clauses 7, 8, 9 and 10 of the February 2018 FamCA Orders are as follows:

   (a)The final parenting Orders made on 4 July 2014 in respect of the child [redacted] born 7 August 2001 (‘the child’) are hereby dismissed. (emphasis added)

   (b)That the child [redacted] born 7 August 2001 (‘the child’) live with the father.

   (c)That the father have sole parental responsibility for the child.

   (d)That the child spend time with the mother in accordance with her wishes.

6. The Mother subsequently applied to the FamCAFC which, on 31 July 2018, made orders (the July 2018 FamCAFC Orders) which included, inter alia, that: ‘Paragraphs 7, 8, 9 and 10 of the orders made by Judge L. Turner on 14 February 2018 be discharged.’ (emphasis added)

7. The Department initially identified a change of care had occurred on 31 July 2018 and granted the Mother an ICD of 52 weeks from that date. The Father objected to that decision, which was overturned on review. On 4 January 2019 the Mother lodged an application for review of that review decision with the Social Security and Child Support Division of this Tribunal (AAT1). The AAT1 concluded there had been no change in care, hence there was no basis on which to revoke the existing care determination. Consequently, this meant there was no basis to consider the application for an ICD and so the application failed. The Mother has applied to the General Division of this Tribunal for a further review.

8. For the Mother to be successful, the July 2018 FamCAFC Orders must provide fresh care orders in respect of the Daughter. If this is so, the Mother can seek an ICD on the basis she took reasonable action to have those orders complied with.

9. Before any of the issues identified in this case can be dealt with, a determination must be made as to whether the July 2018 FamCAFC Orders amount to fresh Parenting Orders in respect of the Daughter or whether they merely reinstated the parenting arrangements as set out in the 2014 FCCA Parenting Orders.

10. There are two important words to be considered in reviewing these orders. They are ‘dismissed’ and ‘discharged’. Court Orders seeking to dismiss or discharge an existing Order often use the word ‘vacate’. The dictionary definitions of those words are[6]:

    [6] Macquarie dictionary.

Dismiss	discharge or remove, as from office or service.
Discharge	relieve of obligation, responsibility, etc.
Vacate	give up or relinquish.

1. As can be seen from the above definitions, the word discharge is used in the definition of the word dismiss and the three words are effectively interchangeable in this context.

2. Whether the July 2018 FamCAFC Orders dismissed, discharged or vacated the parenting arrangements set out in the February 2018 FamCA Orders is therefore not material to the determination of the issues in dispute. The July 2018 FamCAFC Orders remove clauses 7, 8, 9 and 10 from the February 2018 FamCA Orders meaning the latter are read as though those clauses were never there.

3. The July 2018 FamCAFC Orders are silent about the parenting arrangements. Instead, by removing clauses 7, 8, 9 and 10 of the February 2018 FamCA Orders, they effectively reinstate the parenting arrangements arising from the 2014 FCCA Parenting Orders, viz. equal shared care between the Mother and the Father. The Respondent contends, and the Tribunal agrees, that the 2014 FCCA Parenting Orders amount to a care arrangement for the purposes of sections 51 and 52 of the Act. That arrangement provides for the parties to have 50% care each.

   THE MOTHER’S EVIDENCE

4. The Mother agrees the Daughter went to live with the Father on 18 March 2016 after which he had 100% care of her. As discussed above, the Mother took reasonable steps at that time to ensure the care orders then in place were complied with, viz. the 2014 FCCA Orders, and as a result she received an ICD of 14 weeks.[7] The ICD applied the 50-50 care arrangement until 28 June 2016, after which the actual care applied, viz. 100% care to the Father. This is consistent with the actual care arrangements as they have existed since 18 March 2016. The Respondent contends, and the Tribunal agrees, there has not been any change in the actual care of the Daughter since 18 March 2016.

   [7] T Documents T48, p 273.

5. The Mother discussed in detail the February 2018 FamCA Orders and the July 2018 FamCAFC Orders and how, in her opinion, the latter created new care orders (emphasis added) from 31 July 2018. She quotes the Nash decision of this Tribunal[8] which sets out circumstances similar to those in this case and how an ICD was awarded. Her position however, is at odds with her evidence at the Hearing where she stated the February 2018 FamCA Orders were overturned by the July 2018 FamCAFC Orders, which put back in place the 2014 FCCA Orders i.e. they were not new orders.

   [8] Nash and Nash (Child support) [2019] AATA 1735 (22 May 2019).

6. The Mother also made reference to the Page and Chapman decision of this Tribunal[9] which sets out circumstances again similar to those in this case where care orders were in place from many years prior and the child in question was by then aged 17. The difficulty for the Mother with Page and Chapman is the change of care occurred for the first time in 2018, after which the Mother took reasonable action to have the care orders enforced. As a result, an ICD of 14 weeks was awarded. If any parallel can be drawn between Page and Chapman and this case it is the time when the change of care occurred was 2016 (in this case) when an ICD was awarded to the Mother and not 2018 (as in Page and Chapman).

   [9] Page and Chapman (Child support) [2019] AATA 2189 (29 May 2019).

7. The Mother went on to detail numerous examples where the Father failed to comply with the 50-50 care arrangements reverted to following the July 2018 FamCAFC Orders and how she was initially granted an ICD of 52 weeks from 31 July 2018. As we now know, the Father objected to that decision which was overturned on review and ratified at AAT1.

8. In her final submission to the Tribunal the Mother states: ‘On 14 February 2018 the trial judge made parenting orders without Hearing. On 31 July 2018 the Appeal Court discharged those orders and confirmed that the 2014 orders were revived.’[10]

   [10] Final submission provided by the Mother dated 26 November 2019, paragraph 4.

   THE FATHER’S EVIDENCE

9. The Father chose to offer little evidence in support of his position other than to say the Daughter made her own decision to leave the Mother’s care in 2016. The Mother lives seven houses apart from the Father, where the Daughter now lives, and so the Daughter could visit the Mother at any time if she chose to do so. The Father says he has not discouraged the Daughter from having contact with the Mother. The Mother disputes that. The Father agrees there have been occasions when he has called the police to remove the Mother from his property. The Mother agrees that such occasions have occurred which, in her view, are due to the actions of the Father rather than of her.

10. In the opinion of the Father, the Mother is seeking a child support outcome in applying to this Tribunal. The Mother and the Father agree on very little.

    DID A CHANGE OF CARE ARISE IN 2018?

11. As set out above, in order for the Mother to be successful in this matter it was necessary for her to prove new care orders came into existence as a result of the July 2018 FamCAFC Orders. Ultimately the Mother was unsuccessful in that endeavour because the July 2018 FamCAFC Orders are silent as to the care arrangements. At best, they reinstate the care arrangements as set out in the 2014 FCCA Parenting Orders. The conflicted evidence of the Mother at the Hearing ultimately concurs with that view. The Mother has already received an ICD of 14 weeks as a result of the actual change of care which occurred in 2016. As there have been no new care orders since 2014 and no change of actual care since 2016 there can be no new ICD.

    Decision

12. The decision under review is affirmed.

I certify that the preceding 40 (Forty) paragraphs are a true copy of the reasons for the decision herein of

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Dated: 4 March 2020

Date of hearing:

12 November 2019

Date final submissions received:

26 November 2019

Applicant:

In person

Other Party:

By telephone

Solicitor for the Respondent:

Mr Rick McQuinlan

Department of Human Services