HMXZ and Child Support Registrar (Child support second review)
[2021] AATA 520
•16 March 2021
HMXZ and Child Support Registrar (Child support second review) [2021] AATA 520 (16 March 2021)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos: 2019/8139
GENERAL DIVISION ) 2020/0581Re: HMXZ
Applicant
And: Child Support Registrar
RespondentAnd: NDQP
Other PartyDIRECTION
TRIBUNAL: Senior Member P J Clauson AM
DATE OF CORRIGENDUM: 23 March 2021
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to section 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application to remove the paragraph numbering assigned to paragraph [50] on page 17 of the text, and subsequently reduce each paragraph number by 1.
......................................[SGD].............................
Senior Member P J Clauson AMDivision:GENERAL DIVISION
File Number: 2019/8139
2020/0581
Re:HMXZ
APPLICANT
AndChild Support Registrar
RESPONDENT
AndNDQP
OTHER PARTY
DECISION
Tribunal:Senior Member P J Clauson AM
Date:16 March 2021
Place:Brisbane
The reviewable decisions dated 7 November 2019 and 21 January 2021 are affirmed.
...............................[SGD]...................................
Senior Member P J Clauson AM
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
SOCIAL SECURITY – Child Support and Family Assistance – Percentage of Care Determination – Consideration of correct Percentage of Care – existence of special circumstances – decision affirmed.
Legislation
Child Support (Assessment Act) 1989 (Cth)
Family Law Act 1975 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Re Drake v the Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473
Polec and Staker [2011] (SSAT Appeal) FMCAfam 959
P v Child Support Registrar (2014) 225 FCR 378
Secondary Materials
Guide to Social Security, Child Support Guide
REASONS FOR DECISION
Senior Member P J Clauson AM
16 March 2021
BACKGROUND
HMXZ (“the Applicant”) and NDQP (“the Other Party”) in these matters are the mother and father respectively of the three children relevant to this review: “Child N”, “Child J”, and “Child C”. The first application (numbered 2019/8139) concerns Children N and J and the second application (numbered 2020/0581) concerns Child C.
On 13 July 2016,[1] the Federal Circuit Court of Australia issued parenting orders which dictated inter alia, that both parents [the Applicant and Other Party] were to have equally shared care of the three children. Order 5 specified that in the absence of agreement between the parents, the children were to stay with each parent on alternating weeks from one Friday to the next.[2] Consequently, the Child Support Registrar (“CSR” or “the Respondent”) recorded equal care for each parent from a start date of 15 July 2016.[3]
[1] Exhibit 2, T Documents in matter 2020/0581 (“Exhibit 2”), T16 at page 131.
[2] Exhibit 1, T Documents in matter 2019/8139 (“Exhibit 1”), T4 at pages 23-24.
[3] Ibid, T24 at page 164.
The first review
On 2 February 2019, the Applicant contacted the Respondent and notified them that Children N and J were 100% in her care from 1 February 2019.[4] The Respondent updated the shared care percentages on 18 April 2019 to reflect that the Applicant had 100% care of Children N and J from 1 February 2019. On 7 May 2019, the Other Party objected to this determination,[5] which was in turn disallowed by the Respondent on 5 September 2019.[6]
[4] Ibid, T23 at page 122.
[5] Ibid, T17 at page 80.
[6] Ibid, T21 at page 115.
The Other Party sought further review of this objection decision in the Social Service and Child Support Division of this Tribunal (“AAT1”). On 7 November 2019, the AAT1 set aside the objection decision and substituted it with one that between the interim period of 1 February 2019 and 3 May 2019 the Applicant and Other Party were to be recorded as having equally shared care of Children N and J.[7] The Applicant has sought to appeal this decision through application to the General Division of the Tribunal, which was lodged on 4 December 2019. This is the reviewable decision with respect to matter 2019/8139 (“the First Review”).
[7] Ibid, T2 at page 11.
The second review
Meanwhile, the Applicant had previously contacted the Respondent on 23 October 2018 to inform them that she was caring for Child C 100% at that time and been doing so since 19 October 2018.[8] On 16 January 2019, the Respondent updated the Child Support Register to reflect this change finding that the Applicant had 100% of Child C from 19 October 2018.[9]
[8] Exhibit 2, T25 at page 219.
[9] Ibid, T25 at page 230.
The Other Party objected to this change on 23 January 2019 on the basis that whilst accepting the care had changed to reflect those percentages, it was not the result of agreement and that he and the Applicant were in negotiations to resolve the issue.[10] The Respondent upheld this objection on 20 March 2019 and determined that from 19 October 2018 to 25 January 2019 the parties would have equal shared care of Child C and from 26 January 2019 onward, care would return 100% to the Applicant.[11] The Applicant appealed this decision to the AAT1 where it was decided on 21 January 2020 that the upheld objection decision was affirmed.[12] The Applicant filed an application for review of that decision on 3 February 2020. This AAT1 decision constitutes the reviewable decision in matter 2020/0581 (“the Second Review”).
[10] Ibid.
[11] Ibid, T12 at page 79.
[12] Ibid, T2, at page 8.
ISSUES
The issues for the Tribunal to determine in these matters are:
(a)whether, with respect to the First Review, an interim care determination should be issued regarding Children N and J from 1 February 2019 finding that there was something other than 50% equal care of both children between the parents; and
(b)whether, with respect to the Second Review, an interim care determination should be issued regarding Child C from 19 October 2018 finding that there was something other than 50% equal care of the child between the parents.
A new care determination was issued commencing on 4 May 2019.
The Tribunal notes that this matter is subject to ongoing litigation in the Family Court and may be subject to change.
LEGISLATIVE FRAMEWORK
The legislation relevant to the consideration in this matter is:
(a)the Child Support (Assessment) Act 1989 (Cth) (“the Act”); and
(b)the related policy contained in the Child Support Guide (“the Guide”).
The role of the Respondent is to apply the provisions of the Act with the assistance of the Guide. The Tribunal is not bound by policy, but it must take it into account and follow it unless there are cogent reasons not to.[13]
[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake v The Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639 to 645.
This view of policy is considered appropriate; as stated by Senior Member McDermott (as he then was):
The Respondent had submitted that it is appropriate to have regard to Centrelink’s policy guideline. From the inception of this Tribunal there has been judicial guidance concerning the need for the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (“the Guide”). In my view, it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision making.[14]
[14] Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473, [11].
The Act in Division 4 of Part 5 provides the rules for determining a party’s percentage of care which, in turn, determines the amount of child support payments payable by one parent to the other.
The Respondent is the determining party under the Act who evaluates if a person has or does not have a pattern of care in relation to a child. It is up to the Respondent to determine the responsible person’s percentage of care for the child during the period of care.[15] Should no pattern of care exist; the person’s percentage of care is zero.[16]
[15] see section 49(2) and s50(2) of the Assessment Act.
[16] see section 49(3) of the Assessment Act.
Should a pattern of care exist in relation to the child, then subsection 50(3) of the Act states that the:
Percentage determined … 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.[17]
[17] Section 50(3) of the Assessment Act.
The Assessment Act, subsection 54A(1) provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
It is further noted that the Courts have held the concept of "care” to be broader than simply the accommodation provided on any particular night, and that percentage of care does not necessarily need to be determined by reference to a time based calculation.[18]
[18] Polec and Staker [2011] (SSAT Appeal) FMCAfam 959 at paragraph [56]; P v Child Support Registrar (2014) 225 FCR 378 at paragraph [47].
The Act sets out the circumstances as to whether an existing Care Determination is required to, or may be revoked in sections 54F, 54G and 54H.
The effects of each of these sections are:
·section 54F requires that the CSR must revoke an existing Care Determination if there is a change in the percentage of care that would result in a change to a person’s cost percentage in relation to a child;
·section 54G requires that if a parent was to have at least 14% care (53 nights per year), the CSR must revoke the existing Care Determination if the parent’s percentage of care falls below 14% despite the other parent’s making the child available to them; and
·section 54H provides a discretion to the CSR to revoke the existing Care Determination if there is a change in the percentage of care that does not result in a change to the cost percentage.
Relevantly, section 54F states:
1The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)The Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and
(b)The Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and
(c)Section 54G does not apply; and
(d)Subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked Determination: see paragraph 49(1)(b) or 50(1)(b).
In these matters, parenting orders were in place until such a time as the Applicant notified the Respondent that the actual care occurring did not reflect those orders. The care percentages implementing those orders were then subsequently revoked and reinstated to some degree either by the Respondent themselves or the AAT1.
Further, the Act provides that the Tribunal may make interim care determinations which serve to stand in the place of a written care arrangement (in this case the Court Orders of 13 July 2016) which are not being complied with.
Section 51 of the Act establishes considerations in matters where a percentage of care determination is being made when action is taken to ensure that a care arrangement for the child/ren is being complied with.[19]
(a) subsection 1 sets out when the section can be applied;
(b)subsection 2, 3 and 4 establishes the need for 2 percentages of care (subject to subsection 5) as per section 49 and 50 of the Act;
(c)subsection 5 establishes the determination of a single percentage in special circumstances.
[19] Section 51(1)-(5) Assessment Act.
It is of note that the discretion to issue an interim care order is not available to the Tribunal if it is satisfied that special circumstances apply to the situation which favour an interim order not being granted.
Therefore, with respect to First and Second Reviews, the Tribunal must undertake the task of establishing:
(a)whether the existing care determination should be revoked and substituted with a new ongoing determination; and
(b)whether there should be an interim care determination issued for the periods established above.[20]
[20] Supra, [7].
EVIDENCE
The Applicant filed a series of documents in relation to both matters, these included:
(c)an Application for a Domestic Violence Protection Order dated 24 October 2018;
(d)an Initiating Application and notice of risk filed in the Federal Circuit Court on 8 February 2019 naming the mother as the Applicant and the father as the Respondent seeking a variation of the pre-existing care arrangements;
(e)an affidavit signed by the mother and dated 4 February 2019 with several attachments. The affidavit was filed in a different Federal Court matter which also identifies the mother as the Applicant.
The Other Party did not file any documentation.
It is noted that it is not the role of the Tribunal to determine whether there was any abuse in the relationship or the substance of those accusations insofar as they are not relevant to the issues previously identified. However, there are no active domestic violence orders in evidence or any evidence relating to criminal charges against a party to these proceedings.
Both parents attended the hearing in these matters on 23 September 2020 and gave oral evidence under affirmation.
In summary, the Applicant submitted the following:[21]
·that she was caring for the children pursuant to the care arrangements until 1 February when she withheld the Children until 3 May (being the date of the new care determination);
·that on that date she called the police but seemingly no further action was taken other than their presence;[22]
·that she filed applications with the Federal Circuit Court to seek new care arrangements on 8 February 2019;[23]
·that the Other Party filed a contravention order in response to her initiating application. This application was ultimately rejected as the questions raised therein would be addressed in the resolution of her application;
·that the Other Party did not make reasonable attempts to comply with the care arrangements as his contravention application was made as retaliation to her initiating application; and
·that there were special circumstances to refuse interim orders on the basis that the Children were at risk of physical and psychological harm if they were left with the Other Party.[24]
[21] Transcript of Proceedings, pages 8-15.
[22] Exhibit 2, T4 at page 22.
[23] Exhibit 5.
[24] Exhibit 6.
In Summary, the Other Party submitted the following:[25]
·that his contravention application was not invalid and was dismissed by a clerk of the court rather than a judge because an application for the matter was already in progress;[26]
·that he had attempted to use the police to enforce the care arrangements but had been informed that police did not have the power to do this as it was a federal (rather than state) law issue;
·that he has engaged and consistently acted upon the advice of his solicitor, who informed him that a contravention order was the correct route to take to enforce his rights with respect to the care arrangements;
·that the accusations alleging abuse of any description were unfounded and that “she’s saying that the children were getting – that there was abuse and there was physical harm, so she withheld [Child C], but she happy to let the other two children attend [the Other Party’s home]. Really?”
·that he was not drug or alcohol dependent and that he had test reports corroborating this, however no such reports are before the Tribunal; and
·that whilst the Applicant did arrange and request him to attend mediation, he did not attend on his solicitor’s advice who noted that it would not result in the care arrangements being restored.
[25] Transcript of Proceedings, pages 16-l9
[26] Supra [22]
Toward the end of the hearing in these matters, the parties’ palpable contempt for one another redirected discussions toward irrelevant matters which will be addressed at a hearing in the Federal Circuit Court in March 2021 to resolve the Applicant’s application to have the care arrangements varied.
CONSIDERATION
The Tribunal, in relation to the matter 2019/8139 lodged by HMXZ concerning the Children J born 2008 and N born 2007 respectively, has taken into account the affirmed evidence at the hearing of both the Applicant and the Other Party. It has also had before it the documentary evidence contained in the section 37 tribunal documents and the contents of the exhibits numbered one to nine as entered into the Record of Proceedings. The Tribunal notes further the application of those materials in the matter of the Child C; also the subject of an Application for Review 2020/0581 by the Applicant herein.
Both reviews before this Tribunal have been brought by the mother of the children in relation to decisions of the Tribunal in its AAT1 jurisdictional context.
There was a Care Arrangement for all three children put in place by the Federal Circuit Court on 13 July 2016 (the Court Orders).[27] The Orders outlined a percentage of care for each of the parties up until the change of care being notified by the Applicant herein to the Child Support Registrar (2 February 2019) in relation to the Children J and N only.
[27] Exhibit 1, T4, pages 22 to 29.
There were similar circumstances attaching to the way in which care changed in relation to the Child C.
The Applicant in the case of Child C caused care to change from a 50/50 arrangement to a 100% arrangement to her by withholding the child from the father on 19 October 2018. The Applicant relied upon an Application for a Protection Order filed on 24 October 2018 as some degree of proof that Child C was under threat from the Other Party.[28] It is to be noted by the Tribunal that allegations of abuse were made, however, no court orders were made as a consequence of the Application. The Applicant advised the Tribunal that no Orders were made because the Application was made by the mother and not Child C on their own behalf.
[28] Exhibit 4.
Following the withholding of care by the mother from the Other Party of the Child C, the father continued to have care of the Children N and J through the Christmas period of 2018 and January 2019 in compliance with the Court Orders of July 2016.
The Other Party returned the Children N and J to the Applicant following the conclusion of his school holiday care period on 5 January 2019. The Other Party was due to have his Court ordered care for the first week of the school year in 2019. The Other Party arrived at the school to collect the child J from after-school care on 1 February 2019 and was following the Court Orders in so doing. He was advised by the after-school care Supervisor that J had been collected by the Applicant’s partner. It transpired further that the Applicant’s partner had also collected the Children C and N from their after-school care facility.
The Applicant notified the CSR on 2 February 2019 of a change in care with respect to the children which she said occurred on 1 February 2019. Before her notification that care had changed, the care percentages being assessed by the Department were 50% equal shared care for each parent.
Following this event, the Other Party sought the assistance of the Queensland Police Service to help him recover the children for his care allowed by the Court Order.
The police were shown a copy of the Orders and together with the Other Party attended the residence of the Applicant who refused to surrender the children to the Other Party’s care. The Applicant told them that she would withhold the children from his care as she was seeking new Orders for care and was seeking interim Care Orders as well for the children and that she had filed an application for that in the Federal Court. She advised that her Solicitors had forwarded copies of the application and supporting material to the Other Party’s Solicitors Bilic Law Pty Ltd. The Other Party told the Tribunal that the Applicant’s Solicitors had sent these documents in error to the Applicant and that his Lawyers had not received them until 6 or 7 February 2019.
The Other Party had advised his Solicitor the evening of 1 February of the conversation with the Applicant that day. His Solicitor’s, upon receipt of her Application, began his Application for breach of the Orders of 2016 without delay and within a reasonable time.
The Tribunal has before it the Initiating Application of the Applicant,[29] the Notice of Risk of Child Abuse,[30] the Other Party’s Notice of Address for Service,[31] the Affidavit of the Applicant in these proceedings[32] and the Transaction Receipt for the Application fees.[33]
[29] Exhibit 5.
[30] Exhibit 6.
[31] Exhibit 7.
[32] Exhibit 8.
[33] Exhibit 9.
The Applicant’s material contained allegations of risk to the children made by her in both the Notice of Risk document and her Affidavit in support of the Application. It is these allegations of risk that the Applicant relies upon to prove that special circumstances existed to support her claim to have 100% care in the relevant period.
On 30 April 2019, the Applicant’s Application for Interim Parenting Orders was dismissed by Judge Jarrett of the Federal Circuit Court, the Other Party’s Application for Summary Dismissal of the Applicant’s application was dismissed and it was ordered that the children C, N and J attend a Family Consultant for the purposes of having a report prepared pursuant to subsection 62G(2) of the Family Law Act 1975 (Cth), focusing on the wishes of the children, their level of understanding, their maturity and other matters relating to their welfare or best interests.[34]
[34] See section 62(G)(2) Family Law Act 1975 (Cth)
The Other Party, by agreement with the Applicant, had his Court ordered care reinstated from 3 May 2019.
The Tribunal, in considering if the Other Party took reasonable action to ensure that the Court Orders were complied with, has had consideration of the actions of the Other Party since care had been withheld by the Applicant beginning with the situation involving the Child C.
The Tribunal considers that the Other Party’s actions set out below indicate a persistent and dedicated approach indicating reasonable action to have the care arrangements set forth in the Federal Circuit Court Orders of 13 July 2016 complied with:
(a)On 19 October 2018 the Other Party sent a text to the Applicant protesting her withholding of the Child C from his care on the preceding day, 18 October 2019;[35]
[35] Exhibit 2, T8 at page 62.
(b)Upon receiving a text message and reply from the Applicant on 23 October 2019 advising him that Relationships Australia would be contacting him regarding an appointment for mediation, the Other Party reiterated his desire to have his care of the child C, stated that the Applicant was in breach of the Court Orders, and that he would be coming to collect the child;
(c)Further, he reiterated to the Applicant his solicitor’s advices regarding mediation that, as there were Parenting Orders extant, mediation was an inappropriate course of action.
(d)The Other Party decided to accept the advice of his legal advisors that enforcement action for compliance with the Orders by way of a Contravention Application was the proper course;
(e)The Other Party instructed his Solicitors to act accordingly and his Lawyers, Bilic Lawyers on 20 December 2018, sent a letter to the Applicant by way of notification. A response from the Applicant’s Lawyers on 30 January 2019 reiterated their client’s intention to continue withholding the children (all three) pending the outcome of an application on behalf of the Applicant for a further arrangement for care and asking if they held their client’s instructions to accept service;
(f)The Other Party remained committed to the Court Orders and took his entitled care of the Children N and J over the 2018 Christmas holiday period until he returned them to the Applicant on 5 January 2019 for her Court ordered care over the school holidays;
(g)The Other Party sought Queensland Police assistance to recover Court ordered care when the Applicant withheld the children from 1 February 2019. He also acted swiftly after being advised by the Applicant that she was initiating proceedings in the Federal Circuit Court for new Parenting Orders, Interim Care Orders for the children, and had sent copies of all the material to Bilic Lawyers. In late February 2019 the Other Party’s Solicitors, upon receiving his instructions, filed a Contravention Application in the Federal Circuit Court. It was through no fault of the Other Party that his Contravention Application was rejected by the Registrar on that Officer’s view of the law appertaining to the situation where the Applicant’s application was on foot seeking new Orders, even though the Orders of 13 July 2016 were still livid;
(h)The Orders, as previously noted, remained on foot following the Federal Court hearing on 30 April 2019 and the matter of the surviving relief sought by the Applicant was adjourned to 11 September 2019 for Directions. The Applicant told this Tribunal the matter was set down for hearing in March 2021. The Other Party’s care arrangements resumed when, on 3 May 2020, he collected all three children for his ordered care period;
(i)The Tribunal has also taken into account the following material on the departmental history relating to the timeline of contacts with the parties in considering this review:
(i)A departmental File Note dated 2 February 2019 which records the Applicant’s notification of a change in care regarding the children and that such care change took place on 1 February 2019, thus giving the Applicant 100% care of the children. The Applicant also advised that there were Court Orders which related to the care arrangements but which were not being complied with because of the risk to the children posed by the Other Party;[36]
[36] Exhibit 1, T23 at page 122.
(ii)A departmental File Note dated 21 February 2019 records that a departmental representative contacted the Other Party regarding the reported change of care advised by the Applicant. During this exchange, the Other Party told the Officer that his Lawyers were making an application to the Court to bring contravention proceedings against the Applicant for enforcement of the existing Court Orders which allowed care of 50/50 for the Children J and N to both parents. The note also records the Other Party as stating that he anticipated filing to take place on 25 February 2019;[37]
[37] Exhibit 1, T23 at page 125.
(iii)The Applicant is noted as saying in a File Note dated 25 February 2019 that she had filed a Notice of Risk with the Court and that the Other Party had refused to participate in a mediation and that the three children were all mentioned in the report as at risk. She gave a copy of this application to the Department with a Police Incident Report and a Statement of Incident;[38]
[38] Exhibit 1, T23 at page 126; Note: The Notice of Risk is before the Tribunal, however the attachments alluded to above are not.
(iv)The Other Party was contacted on 25 February 2019 by the Department. He advised in a File Note of that date[39] that he had commenced contravention proceedings and had seen his Lawyer as recently as 22 February 2019 for this purpose. He also told that Officer that the Applicant had made allegations of a similar nature on past occasions, none of which had been validated. The Other Party said he had not seen the children since January but could not understand why the Applicant was happy enough to have the children go to him for three weeks at Christmas time and then refuse him ordered care because prior to this he had the children week on, week off, which began July 2016;
[39] Exhibit 1, T23 at page 127.
(v)A File Note dated 16 April 2019 records a “callout” to the Applicant in which the Applicant again stated that she had a 100% care of the Children N and J as they were fearful to return to the care of the Other Party. She further asserted in an Affidavit provided that the children were subject to ongoing physical abuse from the Other Party and often neglected due to his alcohol and gambling issues. The last seven paragraphs of that note start with indicating that the Officer was speaking to someone of the same name as the Child C. The Tribunal considers this not to be so, but considers it to be indicative of the quality of the notes being recorded;[40]
(vi)The Tribunal has before it another departmental File Note dated 18 April 2019[41] stating that a callout had been made to the Other Party to advise him that the Department had received evidence that the Care Order was not being followed prior to the change of care occurring and that an actual care decision would be made unless he could provide contrary evidence. This note records that the Officer calling the Other Party was not able to raise him on the telephone. It is also noted that no further attempt at contact was made regarding the Other Party;
(vii)A further File Note[42] is recorded at 11.30am (one hour later than the previous note referred to at (vii) above) in which it is stated that the change in care was received by the Integrated Care/Solutions Gateway Team and processed in the Child Support system. It also records that the decision was made to “accept the carer’s request for a new determination of care percentage …”. It further records that in relation to the child J, the percentage of care to the Applicant is to be 100% and likewise in relation to the Child N. The Tribunal has perused this decision and agrees with the observations of the AAT1 Member Thompson at paragraph 29 of his Decision where he states as follows:
50. “No further attempt was made to contact [NDQP], and on 18 April 2019, the Department proceeded to make a Care Determination, based on advice from its internal Integrated Care/Solutions Gateway Team, recording [HMXZ] as having 100% care of the children from 1 February 2019, citing as the basis for this decision a variety of considerations ranging from special circumstances relating to examples of unreasonable and unusual behaviour of a parent included in the advice from the Department’s internal Integrated Care/Solutions Gateway Team, to an observation that an Order for an Interim Care Decision to be considered, there must be a Care Plan in place that was being followed prior to the care change occurring. Nowhere in the reasoning for the decision reflected in the file note is there any reference made to the fact that both parents had initiated proceedings in the Federal Circuit Court for Orders in relation to the care of the children, including [Child C] and specifically, [NDQP] Application seeking enforcement of the care in accordance with the Court Orders of 13 July 2016.”
(viii)Following the Federal Circuit Court hearing on 30 April 2019, a File Note of the Department dated 3 May 2019[43] records that the Other Party contacted the Department to notify them that following the Orders made by Judge Jarrett, he now had care of all three children restored to him from 3 May 2019 with the consent of the Applicant and that care was now taking place in compliance with the Court Orders of 13 July 2016 subject to the outcome of the adjourned hearing of the balance of the Applicant’s application on 11 September 2019;
(ix)On 9 May 2019, there is a departmental File Note noting that the Other Party phoned in and advised that the levels of actual care that were currently taking place for all three of the children were on the basis of 50% to the Applicant and 50% to the Other Party , that the ongoing pattern of care reflected 50/50 care for all three children, as did the pattern for school holidays.[44] The Applicant also provided copies of the Orders made on 30 April 2019 and the Orders which were also made on 13 July 2016 and asserted that the parents had been having care since 3 May 2019 and would continue pending the resolution of the adjourned Federal Circuit Court Application. A departmental File Note dated 9 May 2019 confirmed the decision to accept the Other Party’s request for a new determination of care percentage and noted the change in care between the Applicant and the Other Party as being 50/50 and noted the details therein;[45]
(x)It is the Tribunal’s view, after considering the evidence provided both in the documentation and in the Tribunal hearing, that the Other Party has, throughout the relevant period where care was withheld from him by the Applicant, attempted persistently to make every attempt to ensure compliance with the Court Orders regarding the care arrangements for the children. His actions were relevant to all three of the children notwithstanding the difference in the dates of withholding between the Child C and the Children N and J, respectively 10 October 2018 and in February 2019. The Other Party kept informing the Department of his responses to the information provided to them by the Applicant throughout. He sought the advice of his legal advisors promptly and appropriately followed that advice as necessary. The Department was clearly aware of both parties Court proceedings regarding the care arrangements in relation to all three children. The Tribunal therefore finds that the Other Party acted reasonably in every respect to ensure that the care arrangements settled by the Court Order in July 2016 were complied with. This Tribunal agrees with the AAT1 finding that there was not sufficient evidence before the Department or the Officer handling objections to justify their decision to deny the Other Party the granting of an Interim Care Order.
[40] Exhibit 1, T23, page 130.
[41] Exhibit 1, T23, page 132.
[42] Exhibit 1, T23, pages 135 to 137.
[43] Exhibit 1, T23 at page 143.
[44] Exhibit 1, T23, page 147.
[45] Exhibit 1, T23, pages 150 and 151.
The interim care period is determined by applying the table contained in the Act at subsection 53A(1) of the Act and in this case the Item 2 of column 3, paragraph (b) is the applicable calculation which grants and interim care period of fourteen (14) weeks beginning at the start of the change of care, the date of which would be 1 February 2019 and ending on 9 May 2019. The circumstances of this case, however, are adjusted as a result of the Applicant’s Application for Interim Care Orders for the Children N and J being dismissed by Judge Jarrett in the Federal Court on 30 April 2019, and the reinstatement by the parties agreement, of Court-ordered care to the Other Party on 3 May 2019, reinforces the Tribunal’s view that the Other Party’s reasonable attempts to have compliance with the Court Orders of 13 July 2016 ceased on that date. Therefore, the Tribunal agrees with the AAT1’s decision that the application of the terms of sub-paragraph 53A(1)(b)(ii) of the Act means that the interim care period ended on 3 May 2019.
Having determined that the Other Party was entitled to an interim period determination in his favour pursuant to section 50 of the Act, the Tribunal agrees that by operation of subsection 51(3) of the Act, a 50% care percentage will apply from the date of the change in care occurring with the Children N and J, namely, 1 February 2019 and ending on 3 May 2019, being the date upon which the care of these children and the Child C was restored to the Other Party in compliance with the Court Orders, following the decision of Judge Jarrett and his Order of 30 April 2019 dismissing the Applicant’s Application for Interim Care Orders.
The Tribunal finds that following the parties agreement to comply with the Court Orders regarding care arrangements for all the children from 3 May 2019 and the Other Party’s cessation from taking reasonable action to enforce compliance with the existing Court Orders at that date, the second care percentage determined under paragraph 51(4)(b) of the Act to apply from 4 May 2019 to be determined at 100%.
The Tribunal has also had before it the departmental File Notes dated 9 May 2019 referring to advices from both parties confirming the change in care for all three children and that the change in care as notified was to be effective from 3 May 2019.[46]
[46] Exhibit 1, T23, pages 147 to 151.
Although upon dismissal of the Applicant’s Application for Interim Care Orders on 30 April 2019, the care arrangement for all three children was resolved by agreement of the parties to revert to those arrangements set out in the Court Orders, the Tribunal has to consider the appropriate application of the Act to a situation of the Child C, that being somewhat different from a timing perspective to that of the Children N and J.
The findings of fact by the Tribunal relate to the children in all, however, in the case of the Child C, they differ insofar as the change of care for that child to the Applicant commenced on 19 October 2018. The Other Party, as above at (xi) has been found to have taken reasonable action to have his care of C restored to him. Consequently, section 51 of the Act applies, and an interim care determination should apply in favour of the Other Party.
In such circumstances, an interim care period is determined according to the table outlined in subsection 53A(1) of the Act.
Item 2(b) of the table of subsection 53A(1) is the appropriate Item in this case as the Applicant began to take reasonable action to resolve the family care dispute immediately following the change in care by attempting to engage the Other Party in a dispute resolution process. Given this fact, the interim period of care applicable in this case would be fourteen (14) weeks. This means that in this matter, the interim care period commenced on the day that care changed, that being 19 October 2018 and ending on 25 January 2019.
Thus, from 19 October 2018 until 24 January 2019, the Applicant and the Other Party had care of C on a 50/50 percentage basis each. Care from 25 January 2019 would be zero percentage to the Other Party and 100% to the Applicant. Thus, the Tribunal finds the second decision under review is correct and is affirmed.
Finally, the consideration of “special circumstances” has been made by this Tribunal in constructing its decision in this matter. The Applicant put forward her claims of child abuse towards the Child C by the Other party and relied upon an Application for a Protection Order for the Child C as proof of the fact.[47] There was no order made pursuant to this application as the Applicant’s evidence was that the application had to be made by the aggrieved party personally.
[47] See Exhibit 4.
The Applicant also filed a Notice of Risk in her Federal Court proceedings[48] in which she alleged a range of issues affecting the Other Party’s fitness to have care of the children which ranged from alcohol and drug and gambling habits, physical abuse of the Child C of varying types from disciplinary action to roughhouse games. The Applicant alleged psychological abuse of the children by way of his “badmouthing the Applicant”. Suffice to say that in his evidence, the Other Party denied all these allegations, stating that he had undergone drug and alcohol tests showing that he was not suffering from such dependency.
[48] Exhibit 6.
It is fair to say that the evidence in this regard was, in fact, no more than allegations by one party and rebuttals thereof by the other. The Tribunal is further strengthened in its view of this aspect of the matters by the decision in the Federal Court of Australia by His Honour Judge Jarrett on 30 April 2019 wherein His Honour affirmed without alteration the care arrangements enshrined in that Court’s Orders dated 13 July 2016.
The Tribunal considers that there are therefore no “special circumstances” as enunciated by subsection 51(5) of the Act in relation to any of the children which would not warrant an interim care period applying in favour of the Other Party to this application. The Tribunal therefore agrees that in relation to the second review as it applies to the Child C, 2020/0581, that the requirements for an interim determination are satisfied, and mutatis mutandis, also in the matter of the first review herein, 2019/8139 as it applies to the Children J and N.
DECISION
The decision in the first matter 2019/8139 is affirmed.
The decision in the second matter 2020/0581 is affirmed.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM
.................................[SGD]...................................
Associate
Dated: 16 March 2021
Date of hearing: 23 September 2020 Date final submissions received: 14 September 2020 Applicant: By telephone Solicitors for the Respondent: Ms D Smith, Services Australia Other Party: By telephone
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