James and Child Support Registrar (Child support)

[2019] AATA 2183

James and Child Support Registrar (Child support) [2019] AATA 2183 (5 June 2019)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2019/MC015756

APPLICANT:  Mr James

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member J Thomson

DECISION DATE:  5 June 2019

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – care withheld – further Parenting Orders made and complied with – supervised daily care only – 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.

REASONS FOR DECISION

BACKGROUND

1. Mr James and [Ms A] are the parents of [Child 1], born 2008.

2. Mr James seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 21 December 2018. This decision disallowed his objection to an earlier decision of the Department dated 27 September 2018 to reflect the court ordered care that Mr James provides 0% and [Ms A] provides 100% care of [Child 1] from 5 September 2018.

3. The Tribunal heard the matter on 4 April 2019. Mr James attended the hearing via conference telephone and gave affirmed evidence. [Ms A] did not elect to be a party to the proceeding and did not attend the hearing. The Tribunal had before it documents provided by the Department and Mr James. Mr James had copies of these papers with him at the time of hearing. The department’s documents were admitted into evidence and marked Exhibit 1. Mr James’ documents were admitted into evidence and marked Exhibit A.

4. At the conclusion of the hearing, Mr James was directed to provide a copy of orders made in the Federal Circuit Court of Australia, [City 1] dated 13 February 2019, a copy of earlier interim orders made by that court in July 2018, and a copy of a family dispute resolution certificate. In partial compliance with these directions, Mr James has provided a copy of the orders made by the Federal Circuit Court of Australia on 13 February 2019. This document has been added to the documents provided by Mr James as part of Exhibit A.

CONSIDERATION

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

2. Mr James’ evidence at hearing was the parents had been abiding by the terms of court orders made in the Federal Circuit Court of Australia [in a city] on 5 December 2016, pursuant to which he said he was accorded, relevantly, care of  [Child 1] for the first week of the 2018 June/July school holidays. A copy of those court orders was before the Tribunal at pages 16 to 22 of Exhibit 1(the December 2016 Court Orders).

3. Mr James’ evidence was that he was refused his court ordered care of [Child 1] pursuant to the December 2016 Court orders when he went to collect [Child 1] from her school at the commencement of the June/July 2018 school holidays on or about 29 June 2018.

4. He gave evidence that he placed instructions with his solicitors that day to initiate contravention application number [number deleted] in the Federal circuit Court of Australia [City 1] for the enforcement of his court ordered care of [Child 1], copies of that initiating application and supporting affidavit material filed by Mr James’ solicitors on 9 July 2018 were before the Tribunal at pages 48 to 59 of Exhibit 1.

5. Mr James gave evidence that [Ms A] brought forward her prearranged travel plans, (to which Mr James had previously agreed), and departed Australia with [Child 1] on 8 July 2018, before Mr James’ solicitors initiated the proceedings in the Federal Circuit Court of Australia [City 1] referred to in the preceding paragraph, but he said his solicitors were able to effect service of his application on her via email. According to the Department file note at page 41 of Exhibit 1, [Ms A] and [Child 1] were overseas from 8 July to 29 July 2018.

6. That application came before the Federal Circuit Court at [City 1] on 11 July 2018. [Ms A] did not attend that hearing nor was she represented. However, orders were made adjourning the matter to 23 August 2018, directing [Ms A] to file a response, a notice of risk and any affidavit material upon which she intended relying at hearing by 16 August 2018, and, until further order, restraining both parents by injunction from taking or sending or attempting to take or send [Child 1] from the Commonwealth of Australia. A copy of the Court’s order was before the Tribunal at pages A4 to A6 of Exhibit A (the July 2018 Court Orders.)

7. Mr James gave evidence that his solicitors effected service of the July 2018 Court Orders on [Ms A] via an email address previously filed with the Federal Circuit Court.

8. On 10 August 2018, [Ms A] notified the Department of a change in care for [Child 1] on 29 June 2018 (see page 27 of Exhibit 1).

9. On 2 September 2018, Mr James sent an email via the Department’s webmaster system, amongst other things, informing the Department of his action to enforce his court ordered care, and enclosing copies of the December 2016 Court Orders, and the July 2018 Court Orders  referred to above (see pages 14 to 25 of Exhibit 1).

10. On 5 September 2018, the Federal Circuit Court, at [City 1] made further orders, amongst other things, adjourning the matter to the Court’s duty list on 13 February 2019 for further directions, and relevantly, making Interim Parenting Orders that the applicant father, Mr James, have supervised care of [Child 1] each Saturday and Sunday  from 10 am to 4 pm, commencing on Saturday, 15 September 2018 until Sunday, 7 October 2018, and from 12 October 2018 and each alternate weekend for a period of six  visits each Saturday and Sunday from 10 am to 4 pm. A copy of these court orders was before the Tribunal at pages 37 to 40 of Exhibit 1 (the Interim Parenting Orders 5 September 2018).

11. Mr James was represented by counsel, and [Ms A] appeared in person when the orders of 5 September 2018 were made.

12. The Department’s file notes of 11 September 2018 at pages 26 to 32 record telephone conversations between Department officer [name deleted] and Mr James and [Ms A] in the course of which, the Department sought clarification of the care arrangements regarding [Child 1], culminating in the Department becoming aware of a change in care on 29 June 2018, presumably when Mr James was refused care when he went to collect [Child 1] from her school at the commencement of his court ordered care period over the June/July 2018 school holidays, and the terms of the Interim Parenting Order made by the Federal Circuit Court on 5 September 2018.

13. On 11 September 2018, [Ms A] sent an email to the Department enclosing a copy of the Interim Parenting Orders of 5 September 2018 (see pages 33 to 40 of Exhibit 1).

14. The Department’s file notes of 19 September 2018 at pages 41 to 46 of Exhibit 1 record further telephone conversations between Department officer [name deleted] and [Ms A] and Mr James regarding the care issues relating to [Child 1] consequent upon the notifications made by [Ms A] as to the various care changes for [Child 1] since the December 2016 Court Orders, during the course of which the Department is made aware of the care arrangements pursuant to the December 2016 Court Orders, which both parties confirm were being followed  up until 29 June 2018, the change in care which occurred on 29 June 2018 when [Ms A] withheld care of [Child 1] from Mr James, and the Interim Parenting Orders 5 September 2018.

15. On 27 September 2018, the Department made two care percentage determinations:

    1.    from 29 June 2018 to 4 September 2018, Mr James be recorded as having 0% care, and [Ms A] be recorded as having 100% care of [Child 1], with effect from 10 August 2018; and

    2.    from 5 September 2018 onward, Mr James be recorded as having 0% care, and [Ms A] be recorded as having 100% care of [Child 1], with effect from 5 September 2018.

16. In his instructions to the Department on 18 February 2019, Mr James confirmed that the decision he was appealing to the Tribunal was the objection officer’s decision of 21 December 2018 regarding the determination of the care percentages for [Child 1] from 5 September 2018.

17. As the Federal Circuit Court’s decision of 5 September 2018 has determined Mr James’ care, effective from 5 September 2018, as supervised interim day care only between the hours of 10 am to 4 pm on the specific dates set out in those orders, the Tribunal finds he has no overnight care, nor is it appropriate to calculate his care in terms of hours of care, his care percentage should therefore be recorded as 0%.

18. 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.