DPQT and Child Support Registrar (Child support second review)
[2024] AATA 2603
•23 July 2024
DPQT and Child Support Registrar (Child support second review) [2024] AATA 2603 (23 July 2024)
Division:GENERAL DIVISION
File Number(s): 2022/9443
Re:DPQT
APPLICANT
AndChild Support Registrar
RESPONDENT
AndZXDS
OTHER PARTY
DECISION
Tribunal:Member P Ranson
Date:23 July 2024
Place:Brisbane
The decision under review is varied such that an interim care period of 26 weeks applies from 10 April 2022.
................................[SGD]...................................
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 (Cth).
Catchwords
CHILD SUPPORT – percentage of care determination – change in care – whether a child can self-select which parent to live with – whether care has been withheld - whether special circumstances apply – whether reasonable action was taken to enforce care orders - interim period applied – decision under review varied
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth),
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 (Cth)Cases
Child Support Registrar v CMU23 [2024] FCA 109
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Oldfather and Fountaine (Child support) 2023 AATA 3301 (14 September 2023)
Secondary Materials
Child Support Guide
REASONS FOR DECISION
Member P Ranson
23 July 2024
BACKGROUND
DPQT is the father and ZXDS is the mother of their son (Master R) who was born in 2008. They have other children together who are not a part of this case. The child support case for Master R began in 2013 and was confirmed in 2014 by consent orders from the court, which gave each parent equal shared care of him.
The father states that in March 2022, when Master R was 14 years of age, he self-selected to live with him. Master R would be 15 years of age within the next four months. In April 2022, both parents advised the Child Support Agency (Agency) of the change. However, both parents were of contradictory views as to Master R's living arrangements. The father stated that it was Master R's decision, whereas the mother stated that Master R had been taken against his will by the father. In any event, the Agency decided to do two things. First, they changed the care percentages from 51% to 100% for the father and from 49% to 0% for the mother. Second, they granted the mother an interim care period of 26 weeks from the changeover date in March 2022.
Interim care periods can be granted when care of a child changes, despite the child being made available and the parent with reduced care takes reasonable action to enforce the care orders which are in place. Where that occurs, that parent retains the benefit of the care percentages which applied before the change. The period can be up to 52 weeks in some circumstances. However, the granting of an interim care period has been affected by a recent court decision.
The father objected to the interim care period. He said there was no basis because in similar circumstances in the past when care of one of their children was withheld by the mother, no interim care period was granted. The objection was disallowed, so the father applied to the Social Security Division of this Tribunal for a review of the decision to grant the interim care period. The Tribunal upheld the interim care period, however, the start date was brought forward by three days. The father then appealed to the General Division of this Tribunal for a second review of that decision.
Since then, there have been two cases; one in this Tribunal (unrelated to the parents in this case) and another in the Federal Court (in relation to the decision of the Tribunal), which had an impact on this decision, and with the consent of the parties caused the delay in publishing these reasons. In 2024, the Federal Government amended the relevant Act. These cases and the legislative change are discussed later.
The issue in this case is not what the parents thought, that is, it is not about whether care was withheld by the father or whether reasonable action was taken by the mother to enforce the care orders. The only issue is whether the previous care was revoked under ss 54F, 54G or 54H of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act), because that will determine whether an interim care period is available to the mother.
For the following reasons, the decision under review is varied such that an interim care period of 26 weeks applies from 10 April 2022.
WHAT HAPPENED?
The Respondent’s Amended Statement of Facts, Issues & Contentions (SFIC) sets out the chain of events that led to this matter coming before the General Division of this Tribunal. This is set out in paragraphs [9] to [13] of this decision.
The existing care determination recorded the father had 51% care and the mother had 49% care of Master R for the period from 20 April 2015, that is, essentially equal shared care. Both parents contacted the Agency on 10 April 2022 and advised of a change in care. The mother said Master R had been taken against his will by the father. The father said Master R had self-placed with him and decided to live full-time in his care from 18 March 2022, when he went into his care as part of the normal week about care arrangement.
Master R was due to return to the care of his mother on 25 March 2022. That changeover date was amended due to a member of the mother’s household contracting COVID-19 who was not cleared of that until 30 March 2022, being close to the start of the Term 1 school holidays for 2022 (Saturday 2 April 2022 to Monday 18 April 2022).
It seems the parents agreed Master R would stay with his father for the first week of the school holidays as per the care arrangements in place. That meant Master R should have gone back into the care of his mother on 10 April 2022.
Case notes were recorded by the Agency following calls to both parents on 4 May 2022.[1] The notes record that the father was asked whether he was withholding care of Master R and he did not respond. Instead, he stated that his son had self-placed himself into his care and as a 12-year-old (Master R was 14 years old at the time), he could choose where he resided, and a court would not interfere with that decision. The father was advised that this was incorrect. Nonetheless, he maintains that position. There is no evidence before the Tribunal to indicate the father made any attempt to advise the mother of the asserted self-placed care decision by Master R until his e-mail to her on 10 April 2022.
[1] Section 37 T-Documents, T21, pages 74 to 75 and Section 37 T-Documents, T22, pages 76 to 78.
On 25 May 2022, the Agency decided to revoke the pre-existing care determination for Master R with effect from 25 March 2022 and replaced it with two care percentage determinations, viz, actual care of Master R as 100% to the father from 23 September 2022, and an interim care period of 26 weeks until 22 September 2022, during which the care percentages remain as per the court orders, that is, equally shared care (49% to the mother and 51% to the father). The father objected to this decision, sighting previous decisions of the Agency in which the court ordered care determination was no longer being followed.[2]
[2] Section 37 T-Documents, T41, pages 129 to 131.
The objection by the father was disallowed because the mother had taken reasonable action to enforce the court ordered care arrangement. The father then appealed the objection decision to the Social Security Division of this Tribunal, which upheld the interim care period and changed the start date to 28 March 2022.[3] Dissatisfied with that outcome, the father appealed to the General Division for a second review.[4]
CONSIDERATION OF CLAIMS AND EVIDENCE
[3] Section 37 T-Documents, T2, pages 7 to 16.
[4] Section 37 T-Documents, T1, pages 1 to 6.
What does the father say?
In his application for review of the AAT1 decision, the father says:
‘I believe the AAT decision is wrong. Member [redacted] based his decision solely on his interpretation of whether the court orders were still in force, a decision I do not believe he was qualified to make. He also refused to acknowledge key information and past history which is critical in the decision making process. Constantly he asked if the Court Orders were being followed to which I answered no and was the basis of my original application. [The mother] asserted that they were despite the fact that another child [redacted] who is still part of the child support system is not 50% in my care.
Federal court orders are not a buffet which can be turned on and off by one parent at will. Child Support have also in every other instance not applied the court orders in the decision making process and have as a result set a precedent. All of this was ignored by Member [redacted] and I believe requires review. These decisions have had a significant financial impact to [Master R] and myself.’
(Typographical errors in original)
The father says Master R came into his care on 18 March 2022 (not disputed by the mother as that was a normal changeover day) and self-selected to stay full time in the care of the father.[5] Curiously, the father did not advise the mother of this change until 10 April 2022 when he sent her an e-mail to that effect.[6] As discussed below, there is no basis in law for a child to self-select which parent they will live with.
[5] Section 37 T-Documents, T13, page 65.
[6] Section 37 T-Documents, T14, page 66.
On 6 June 2022, the father wrote to the Agency saying as of that date, he had not had any correspondence from anyone about mediation.[7] This is contradictory to a certificate provided by Family Relationship Centre dated 15 June 2022 which showed his non-attendance at family dispute resolution on 1 June 2022.[8]
[7] Section 37 T-Documents, T43, page 133.
[8] Section 37 T-Documents, T46, pages 138 to 139.
What does the mother say?
The mother provided copies of various e-mail exchanges from 17 April 2022 to 16 July 2022, and a one-page submission dated 29 June 2023 which sets out her position in relation to the change of care.[9] Her submission pre-dates the decision in CMU23, and she strongly maintains she took and will continue to take all reasonable steps to restore her care of Master R.
[9] Other Party’s screenshots of emails.
As discussed above, her submission asserts she took all reasonable steps to restore care and is entitled to an interim care period, as granted by previous decision makers. She can only succeed if revocation of the care percentages arises under s 54G of the Assessment Act, otherwise it is not possible at law.
The mother’s submission dated 29 June 2023 sets out the actions she says she took to restore the equal care arrangement:
· Immediate contact with QPS and lodgement of notice that [Master R] had not been returned to my care and request for welfare check made
· Texts to [the father] (multiple) asking for [Master R] to be returned to my care as per pre-existing court order since 25th March 2022- not responded to (see attachments to email)
· Texts and emails to [the father] (multiple) asking for a 5 minute phone-call to [Master R] to ascertain his wishes – not granted[10]
· Sought assistance from Womens’ Legal Service as of 28th March 2022- tele-conferences (multiple) attended
· Contact with Family Relationships Australia from 30th March 2022 seeking amicable resolution services – [the father] did not attend[11]
· Seeking of affordable independent legal services (local) throughout April-July
· In-person school visits requesting to speak to [Master R] (April 2022 – ongoing) – Principal, [redacted] – contact number = [redacted]
· Seeking communication assistance from older siblings (April 2022 to ongoing) – [redacted] (21) and [redacted] (23)
[10] Section 37 T-Documents, T14, page 66 and Section 37 T-Documents, T61, page 165.
[11] Section 37 T-Documents, T24, page 84, Section 37 T-Documents, T46, pages 138 to 139 and Section 37 T-Documents, T47, pages 140 to 141.
THE LAW
As set out in the Respondent’s Amended SFIC, the relevant legislation and policy provisions applicable in this case are contained in the:[12]
(a)Child Support (Assessment) Act 1989 (Cth) (Assessment Act);
(b)Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act);
(c)Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act); and
(d)Child Support Guide (Guide).
[12] Respondent’s Amended Statement of Facts, Issues and Contentions, page 4, paragraphs 21 and 22.
Departmental Policy
The Tribunal is charged with determining the correct or preferable decision based on an independent assessment of the facts before it and is entitled to treat policy as a relevant factor in that determination. The Full Federal Court has found that where a policy exists to guide the decision maker in exercising its powers, the Tribunal may apply that policy in reviewing a decision where it "makes it clear that it has considered the propriety of the particular policy and expressly indicates the considerations which have led it to that conclusion”.[13]
[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, from 420.
To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the policy is consistent with the requirements as set out in the legislation.
Child Support (Assessment) Act 1989 (Cth)
The current version of this Act does not contain paragraph 53(1)(c), which was removed by amendments to the Assessment Act in 2024 following the decision in CMU23 discussed below. In the version that applied from 1 January 2022 to 30 June 2023, s 53 reads as follows:
Section 53: (Section 51 does not apply in certain circumstances)
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a)in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination—the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b)in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination—the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c)the Registrar has revoked the determination under section 54F or 54H.
(2) Section 51 also does not apply in relation to a responsible person in relation to whom a determination (a later determination) has been made under section 49 or 50 if:
(a)an earlier determination determined the responsible person’s percentage of care for a child under that section for the purposes of subsections 51(3) and (4); and
(b)the later determination is made after the end of the maximum interim period for the earlier determination; and
(c)the later determination relates to the same care arrangement as the earlier determination.
(Emphasis added)
The Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Bill 2024 (Cth) (the Bill) sought to remedy what the government described as ‘unintended consequences’ of amendments made in 2018. The Explanatory Memorandum says the Bill’s minor changes to section 53 of the Assessment Act, and to a parallel provision in the A New Tax System (Family Assistance) Act 1999 (Cth), will ensure that:
… interim period determinations are available as they are intended to, consistent with the longstanding policy in the Child Support and Family Assistance Schemes to encourage carers of a child to comply with a written care arrangement where one is in place.
Section 51 of the Assessment Act, which is unchanged by the 2024 amendments, deals with percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with. It says:
Section 51: (Interim care periods and special circumstances)
(1) This section applies if:
(a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b)a care arrangement applies in relation to the child; and
(c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Note: This section does not apply in certain circumstances: see section 53.
2 percentages of care in relation to the responsible person
(2) Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.
(3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).
(4) The second percentage of care is to be:
(a)for a determination under section 49—0%; or
(b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
Single percentage of care in relation to the responsible person
(5) If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.
(6) The single percentage of care is to be:
(a)for a determination under section 49—0%; or
(b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.
Sections 54F, 54H and 54G of the Assessment Act
These sections apply to the revocation of a care percentage determination. Section 54H can only apply if s 54F and s 54G do not apply. Section 54F can only apply if s 54G does not apply. Therefore, the order for consideration is non-alphabetic as s 54G must be considered first, then s 54F and then s 54H.
Section 54G
This section deals with situations where a person who is responsible for a child was to have at least regular care of the child, but instead they either had no care of the child or a pattern of care that is less than regular care of the child, despite another person who is responsible for the child making the child available. In that case, if a determination of the percentage of care for the child has been made and the other responsible person gives notice the pattern of care is less than regular care of the child, despite the child being made available within a reasonable period, the Registrar must revoke both determinations.
Section 54F
The Registrar must revoke a determination of a percentage of care for a child if they are notified, or otherwise becomes aware, that the actual care of the child does not correspond with the existing percentage of care and the Registrar is satisfied the cost percentage for the child would change if the Registrar were to determine another percentage of care for the child. As mentioned above, this section can only apply if s 54G does not.
Cost percentages
Cost percentages are relevant to any decision to change a care determination under s 54F of the Assessment Act. There are a series of bands of care percentages which correspond with bands of cost percentages. As discussed above, if a change in the care percentage causes a change in the cost percentage, the Registrar must revoke the existing care percentage determination. Those bands are:
Item Percentage of care Cost percentage 1 0% to less than 14% Nil 2 14% to less than 35% 24% 3 35% to less than 48% 25% plus 2% for each percentage point over 35% 4 48% to 52% 50% 5 more than 52% to 65% 51% plus 2% for each percentage point over 53% 6 more than 65% to 86% 76% 7 more than 86% to 100% 100% Section 54H
The Registrar may revoke a determination of a percentage of care for a child if notified, or otherwise becomes aware, that the actual care of the child does not correspond with the existing percentage of care and is satisfied that a fresh percentage of care would not be the same as the existing percentage of care. This section can only apply if ss 54F and 54G do not apply.
Oldfather and Fountaine (Child support) [2023] AATA 3301 (14 September 2023)
At paragraph [4] of this decision, the Senior Member identifies one of the issues as whether paragraph 53(1)(c) of the then Assessment Act prevents the operation of s 51 of that Act, which allows an interim care period to apply in certain circumstances. The Senior Member found paragraph 53(1)(c) does not prevent the possible application of s 51.
Child Support Registrar v CMU23 [2024] FCA 109
This decision arose out of Oldfather and Fountaine, which was appealed by the Agency to obtain a definitive interpretation of the interaction of the sections and paragraphs in the Assessment Act concerning interim care periods.
In CMU23, Logan J found that words cannot be read into legislation to alter the meaning of it, even if it is inspired by the wording of the Explanatory Memorandum accompanying the legislation. He concluded a plain reading of the wording of paragraph 53(1)(c) of the Assessment Act must apply. Therefore, if the care determination is revoked under either ss 54F or 54H then s 51 cannot apply, which means an interim care period is not available.
What does this mean for applicants seeking an interim care period?
For a care change occurring between 2018 (when s 53(1)(c) came into effect) and 28 March 2024 (when it was removed by the amending legislation) inclusive, the practical effect for the Tribunal of the Federal Court decision and the subsequent retroactive amendments is that if the original decision was to grant or refuse interim care, on review (objection or AAT) the decision would be made afresh applying the law as it was at the time of the care change (emphasis added).
Where the previous care was revoked under ss 54F or 54H of the Assessment Act, this results in interim care being refused in circumstances where s 53(1)(c) prevented it because decision makers are bound by the interpretation of s 53(1)(c) found by the court in CMU23. That means only where care is revoked under s 54G can an interim care period be granted.
Were the court orders in place?
In 2014, the then Federal Circuit Court of Australia made orders by consent for the care of the children of the parents. Relevantly, those orders were for equal shared care on a week about basis for Master R.[14] The care determination arising from those orders for Master R was 51% to the father and 49% to the mother.
[14] Section 37 T-Documents, T5, pages 41 to 51.
The father asserts the orders were not in place because of breaches over the years he says occurred with the care of their other children, that is, the court orders had been abandoned by the actions of the mother. That may be so, however, this decision is only concerned with the care of Master R, and the evidence before the Tribunal indicates those orders were being followed in respect of him up to sometime in March or April 2022.
Accordingly, the Tribunal finds the equal shared care orders made by consent in 2014 were in place at the relevant time for this decision.
Can a child self-select which parent they will live with?
The father maintains Master R self-selected to live with him and is legally entitled to do so from the age of 12. The Tribunal knows of no laws mandating that a child can choose which parent they live with from any age. There are also no known provisions in the child support legislation which refer to the age of the child as a factor to be considered.
In making a parenting order under the Family Law Act 1975 (Cth) in relation to a child, a court is required to regard the best interests of the child as the paramount consideration (s 60CA). There are several factors the court must consider when determining what is in the child’s best interest, as set out in s 60CC. Those considerations include any views expressed by the child,[15] the developmental, psychological, emotional and cultural needs of the child,[16] and anything else that is relevant to the particular circumstances of the child.[17]
[15] Family Law Act 1975 (Cth) s 60CC(2)(b).
[16] Family Law Act 1975 (Cth) s 60CC(2)(c).
[17] Family Law Act 1975 (Cth) s 60CC(2)(f).
The effect is that in many cases when the court is making an order about who a child should live with, the court may give weight to the views of an older child, which will depend on the circumstances of the individual and other relevant factors.
The father included in his evidence a copy of an e-mail dated 30 August 2019 from the mother to him in which she states: ‘I would be happy for [redacted – Master R] to choose whom he lives with when he starts Year 8’.[18] By making that statement, the mother was at the time accepting of Master R making his own decision regarding which parent he would live with from Year 8, and she provided no evidence that she had retracted from that position.
[18] Section 37 T-Documents, T8, page 58.
As a minor, Master R cannot give evidence in this case. The Tribunal must then rely on the evidence of the father and the mother, and the father says Master R self-selected to live with him. The father makes no assertion he withheld care of Master R from the mother. When he was asked by the Agency whether he was withholding care, he responded only with his assertion that Master R self-selected to live with him.
However, the mother asserts the father did withhold care because Master R was not returned to her care at the required time. She says she lost contact with Master R, but it is possible this may have been his choice to avoid escalating the conflict between his parents. Only Master R knows the answer to that question, and this decision does not turn on that answer.
Section 54G of the Assessment Act uses the words: ‘making the child available’ in the context of the parent with reduced care (here, the mother) having no pattern of care because the parent with increased care (here, the father) readying the child for changeover. The Tribunal considers this to mean the parent with increased care not withholding care, rather than presenting the child for changeover and the child refusing to go into the care of the other parent.
There is some assistance in determining whether the child is made available in the Guide at 2.2.3 which says:
The Registrar will consider that care is not taking place despite the genuine attempts of both parties to facilitate care if a teenage child is refusing to have the planned care. In most cases, the Registrar would only be satisfied that it is the child's action that is preventing the care from occurring when the child is 15 years or older (although in some circumstances younger children will be considered).
In these circumstances, the Registrar will generally consider that the parent or non-parent carer is making the child available, and a below regular care determination can be made.
Elsewhere in the Guide at 2.2.3, it speaks of the parent with increased care 'taking the child to the agreed exchange location', which did not happen in this case. However, the Tribunal accepts the policy set out above because in practical terms, it is unreasonable to expect a parent to demand a near 15-year-old teenager to attend changeover if they have already self-selected to stay where they are.
Special circumstances which prevent an interim care period
Interim care periods cannot be granted if special circumstances dictate otherwise.[19] The Guide at 2.2.4 provides useful commentary on what constitutes special circumstances. It says:
[19] Section 51(5) of the Assessment Act.
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 or the person with increased care
·exposing the child to family violence (within the meaning of section 4AB of the FL Act)
·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 Tribunal accepts policy in this case because there is no evidence before the Tribunal to indicate special circumstances exist.
When did the care change?
The Respondent’s Amended SFIC at paragraph [47] identifies four potential dates when the care of Master R could have occurred. The Tribunal has identified another potential date and collectively they are:
(i)18 March 2022, when Master R went into the care of his father as part of the normal week about care arrangement;
(ii)25 March 2022, when Master R was due to return to the care of his mother as part of the normal week about care arrangement;
(iii)28 March 2022, being the agreed end of a one-off change to the normal care arrangement to accommodate a person in the mother’s household contracting COVID-19;
(iv)30 March 2022, when all members of the mother’s household were clear of COVID-19 and the father’s conditions for Master R returning to her care were met; and
(v)10 April 2022, when Master R was due to return to the care of his mother being the start of the second week of the term 1 school holidays in 2022.
Remembering Term 1 school holidays in 2022 were from Saturday, 2 April 2022 to Monday, 18 April 2022 and the father was due to have the first week from Saturday, 2 April 2022 to Saturday, 9 April 2022, the next scheduled changeover from the father to the mother was Sunday, 10 April 2022. Changeover did not happen that day, which was also the first time the father notified the mother Master R was staying with him and would not be returning to her care.
CONCLUSION
Whilst there is no basis in law which permits a child to self-select which parent they will live with, the Tribunal finds that the father made him available for care by the mother by not withholding care of him from her because Master R, who was approaching age 15 at the relevant time, chose to leave the care of his mother and live full-time with his father and she had agreed in 2019 he could decide where he lives once he was in Year 8.
The Tribunal finds the change of care day was 10 April 2022 because:
(i)changeover on 18 March 2022 was part of the normal week about care;
(ii)the extension firstly to 25 March 2022 and then to 30 March 2022 was a minor one-off change to the pattern of care due to illness and was agreed upon between the parents;
(iii)the suggestion by the mother to delay changeover a second time, which was due on 30 March 2022, given its proximity to the first day of the school holidays, is another minor one-off change in the pattern of care again agreed between the parents; and
(iv)10 April 2022 was the first time the care arrangements were breached.
The Tribunal finds revocation under s 54G applies in this case because the mother was to have equal shared care which ended when Master R chose to live with his father and not return to her care even though the father made him available by not withholding care.
Further, the Tribunal finds the change of care day was 10 April 2022, as reported by the parents that day and that:
(a)the father’s existing determination of percentage of care is revoked under s 54F of the Assessment Act, and a new determination of percentage of care for the father must be made under s 50(1)(b) of the Assessment Act because he had a pattern of care after the change of care date, that is, 100% care; and
(b)the mother’s existing determination of percentage of care is also revoked under s 54F of the Assessment Act, and a new determination of percentage of care for the mother must be made under s 49(1)(b) of the Assessment Act because she had no pattern of care after the change of care date, that is, 0%.
That being the case and following the determination in CMU23, s 53(1)(c) applies to afford the mother an interim care period of 26 weeks because:
(i)the previous care determination for both parents was made under s 50 as they both had regular care of Master R;
(ii)the mother took reasonable action to enforce the care orders; and
(iii)the father made Master R available to her albeit Master R chose not to return to her care.
The Tribunal finds, as have previous decision makers in this matter, the mother took reasonable action to restore the equal care arrangement because she contacted the Police, sought legal advice and importantly, arranged family dispute resolution with the Family Relationship Centre, which the father failed to attend.[20]
[20] Section 37 T-Documents, T46, pages 138 to 139.
The Tribunal finds there are no special circumstances which prevented an interim care period being granted because there is no evidence of violence or other inappropriate behaviour by the mother which led to the change in care. Both parents assert coercion of the children generally and of Master R by the other parent without any substantive evidence of that beyond various e-mail exchanges, which in the Tribunal’s experience of these matters, is not unusual and not enough to enliven s 51(5).
DECISION
The decision under review is varied such that an interim care period of 26 weeks applies from 10 April 2022.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson
...................................[SGD].....................................
Associate
Dated: 23 July 2024
Date of hearing: 24 November 2023 Date final submissions received: 12 April 2024 Applicant: In person Solicitor for the Respondent: Mr A Taverniti
Sparke Helmore
Other Party: In person
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