Garcia and Garcia (Child support)

[2020] AATA 4288

Garcia and Garcia (Child support) [2020] AATA 4288 (7 August 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/BC019099

APPLICANT:  Mr Garcia

OTHER PARTIES:  Child Support Registrar

Ms Garcia

TRIBUNAL:Member J Thomson

DECISION DATE:  7 August 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – court orders not complied with – reasonable action taken – interim period applied – no special circumstances exist to refuse to apply interim period – decision under review affirmed

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.

FOR DECISION

BACKGROUND

1. Mr Garcia and Ms Garcia are the parents of [Child 1], born 2014, and [Child 2], born 2007 (the children). From 20 April 2017, the care percentages being recorded by the Child Support Agency (the Agency) were 57% to Ms Garcia and 43% to Mr Garcia.

2. Mr Garcia seeks review of an objection decision made by the Agency on 30 April 2020. This decision disallowed his objection to a decision dated 17 December 2019 to apply an interim care period with respect to the children from 22 October 2019 to 20 April 2020 reflecting that Ms Garcia provides 57% care and Mr Garcia provides 43% care of the children, and that from 21 April 2020, Mr Garcia would be recorded in the assessment as having 100% care of the children.

3. The Tribunal heard the matter on 16 July 2020. Mr Garcia attended the hearing via conference telephone and gave affirmed evidence. Ms Garcia was a party to the proceeding but elected not to participate in the hearing. The Tribunal had before it documents provided by the Agency which were admitted into evidence and marked Exhibit 1. Mr Garcia also provided documents which were admitted into evidence and marked Exhibit A. Mr Garcia had copies of these documents with him at the hearing

4. The statutory provisions relevant to this review are found in the Child Support (Assessment) Act 1989 (the Act). Sections 49 and 50 of the Act provide for care decisions to be made. Section 49 applies, relevantly, if the parent “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”. Section 50 applies, relevantly, if the parent “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”. Both sections reflect the idea that the Agency makes point-in-time care decisions on the basis of what has happened up until the change in care is considered and what is likely to happen thereafter. Of course, what is likely to happen may not eventuate and when such a divergence occurs, a parent can notify the Agency and a new care determination can be made. However, the legislative test at first instance and on review remains the same: what had happened until the date of the notification and what was likely to happen thereafter?

5. Subsection 51(1) of the Act 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 compliant with.

   Subsection 51(2) of the Act provides that, subject to subsection (5), the Registrar must determine, under sections 49 or 50, two percentages of care in relation to the responsible person. Subsection (3) provides that 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 subsection (4) provides that the second percentage of care is to be, relevantly, 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, if the action referred to in paragraph (1)(d) were not to succeed.

6. Subsection (5) provides that if the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under sections 49 or 50, a single percentage of care in relation to the responsible person. Effectively, this subsection accords the Registrar a discretion as to whether an interim care period is to be applied, i.e. if the Registrar was satisfied special circumstances, such as the likely existence of a threat to the safety of the children, the Registrar, in the exercise of that discretion, may refuse to apply an interim care period in favour of the responsible parent, notwithstanding the responsible parent was taking reasonable action pursuant to paragraph 51(1)(d) referred to above.

7. Subsection 53A(1) of the Act defines an interim period for a determination under sections 49 or 50 of a responsible person’s percentage of care for a child as (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 tables appended to section; in this case, at the end of the 26 week interim care period, 22 October 2019 to 20 April 2020, 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.

ISSUES

1. The issue which arises in this case was whether, based on an investigative report prepared by the Department of Child Safety, Youth and Women (Child Safety), Ms Garcia posed a threat to the safety of the children, giving rise to special circumstances in which the Agency should have exercised its discretion under subsection 51(5) of the Act to refuse to apply an interim care period of 26 weeks from 22 October 2019 to 20 April 2020 in favour of Ms Garcia.

CONSIDERATION

1. In reaching its decision, the Tribunal has considered the affirmed evidence given by Mr Garcia at the hearing, and the documentation contained in Exhibits 1 and A.

2. Mr Garcia notified the agency of a change in care with respect to the children on 22 October 2019. He acknowledged in his evidence that the parents’ care percentages with respect to the children as set out above, were determined pursuant to court orders made in the Federal Circuit Court of Australia [in] April 2017 (the Court Orders), and that the care pattern reflected in those orders had been taking place up until the change in care he notified on 22 October 2019, when the children refused to return to Ms Garcia’s care, in accordance with terms of the Court Orders because of issues he said they were having with Ms Garcia, which ultimately gave rise to the detailed investigation by Child Safety referred to above.

3. Mr Garcia also acknowledged in his evidence to the Tribunal that he did not dispute that Ms Garcia had taken reasonable action, in accordance with the provisions of paragraph 51(1)(d) of the Act to enforce the Court Orders according her the 56% care of the children, although he did submit that the course of action initiated by her solicitors in the form of a contravention application order was not the appropriate course of action she should have taken in the circumstances. In that respect, the Tribunal finds that the course of action commenced by Ms Garcia and her solicitors was taken in a compliantly timely manner, was directed towards enforcement of the Court Orders on her behalf, and satisfied the requirements of paragraph 51(1)(d) of the Act set out above.

4. Mr Garcia’s case at hearing centred on his submissions that the Child Safety investigative report contained the hard evidence that Ms Garcia posed a threat to the safety of the children, which constituted the special circumstances in which the Agency should have refused to grant the interim care period from 22 October 2019 to 20 April 2020, in the proper exercised of its discretion pursuant to subsection 51(5) of the Act.

5. Mr Garcia provided copies of extracts from Child Safety’s file records obtained by his solicitors [named], who gained access to these records via subpoena as part of the Family Court contravention proceedings in which they represented Mr Garcia.

6. The Tribunal has carefully considered these extracts, which record, relevantly, Child Safety’s investigative process with Ms Garcia and the children, including interviews with Ms Garcia and the children between 31 October 2019and 20 November 2019, concluding, relevantly, with the notation at page A47 of Mr Garcia’s documents, Exhibit A:

   20. 11. 2019 – reported to father on discussion with mother had no worries around her and said as orders in place, Child Safety cannot enforce nor advise to contravene, and should not be involved as there are willing and able parents and should go through Family Law Court if children are wishing to change who they reside with.

7. Also before the Tribunal at page 53 of the documents provided by the Agency, Exhibit 1, was an email from [Ms A], the Child Safety officer conducting the investigation into the issues between the children and Ms Garcia, addressed to Ms Garcia dated 25 November 2019 which relevantly records that the child, [Child 1] was doing well at school, that the child, [Child 2] was doing well at his dad’s and was desirous of having contact with Ms Garcia. The email concluded that, after further discussion with her team leader, Child Safety had no further immediate worries, would not provide ongoing intervention at that time, and that [Ms A] would provide an Investigation Assessment Outcome letter to both parents, confirming Child Safety’s conclusion that it would not be taking any ongoing intervention action at that time

8. At page 55 of the Agency’s documents, Exhibit 1, is a copy of Child Safety’s letter dated 28 November 2019 addressed to Ms Garcia, the relevant paragraph of which this records:

   This letter is to advise you an assessment of these worries (articulated earlier in the letter) has been completed for your family and the outcome is unsubstantiated – child not in need of protection. This means that I do not believe that [Child 1] and [Child 2] have suffered significant emotional and physical harm.

9. Considering the evidence on balance, the Tribunal is not satisfied that the evidence before it suggests that special circumstances existed in which the Agency should have exercised its discretion under subsection 51(5) of the Act to refuse to apply an interim care period from 22 October 2019 to 20 April 2020 in favour of Ms Garcia, and finds that the Agency was entitled to grant an interim care order for that period in all the circumstances of this case.

10. Mr Garcia acknowledged at the hearing that Ms Garcia did not seek to exercise her right under the interim care determination made by the Agency to have care of the children during the interim care period 22 October 2019 to 20 April 2020, and that during that period, the children remained in his care. He also acknowledged that Ms Garcia was actively pursuing her enforcement rights with respect to the Court Orders, until her solicitors filed and served a notice of discontinuance of her Family Court contravention proceedings on 21 May 2020, after the interim care determination had ended on 20 April 2020. Copies of correspondence from Ms Garcia’s solicitors, [named] addressed to Mr Garcia’s solicitors and the enclosed Notice of Discontinuance were before the Tribunal at pages A50 and A51 of Exhibit A.

11. As the Tribunal has reached the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.

DECISION

The decision under review is affirmed.