Joyner and Child Support Registrar (Child support)

Joyner and Child Support Registrar (Child support) [2019] AATA 5509 (7 November 2019)

DIVISION:Social Services & Child Support Division
REVIEW NUMBER:  2019/BC017487
APPLICANT:  Mr Joyner
OTHER PARTIES:  Child Support Registrar
TRIBUNAL:Member J Thomson
DECISION DATE:  07 November 2019
DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that for the interim period 1 February 2019 to 3 May 2019, Mr Joyner and Mrs [A] are recorded as having 50% shared equal care of the children, [Child 2] and [Child 1].

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 to enforce court order – interim period applied – decision under review set aside and substituted

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been omitted 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

Mr Joyner and Mrs [A] are the parents of [Child 1], born 2008, and [Child 2], born 2007 (the children).
Mr Joyner seeks review of an objection decision made by the Department of Human Services – Child Support (the Department) on 7 September 2019. This decision disallowed his objection to a decision dated 18 April 2019 to record care percentages of 100% to Mrs [A] and 0% to Mr Joyner with respect to the children from 1 February 2019.
The Tribunal heard the matter on 7 November 2019. Mr Joyner attended the hearing via conference telephone and gave affirmed evidence. Mrs [A] elected not to be a party to the proceeding, and was not present at the hearing. The Tribunal had before it documentation provided by the Department, admitted into evidence and marked Exhibit 1. Mr Joyner had copies of these documents with him at the hearing.

CONSIDERATION

In reaching its decision, the Tribunal has considered the affirmed evidence of Mr Joyner and the documents contained in Exhibit 1.
The law relevant to care percentage determinations is found in the Child Support (Assessment) Act 1989. Sections 49 and 50 of the Act provide for new 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 Department 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 Department 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?
Subsection 51(1) of the Act provides, relevantly, that 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 the period (which may be nil); and
(d)   a person who has reduced care of the child is taking responsible action to ensure that the care arrangement is complied with;
the Registrar must determine, under section 49 or 50, two percentages of care in relation to the responsible person. 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 the second percentage of care is to be, for a determination under section 49,- 0%, or, for a determination under section 50, a percentage that corresponds with the actual care of the child 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.
Subsection 51(5) of the Act provides that 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, which is to be, for a determination under section 49,– 0% or, 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.
On 2 February 2019, Mrs [A] notified the Department of a change in care with respect to the children which she said occurred on 1 February 2019 in circumstances which appear later in these reasons. Prior to her notification of that change in care, the care percentages being assessed by the Department were 50% equal shared care for each of the parents.
In this case, the Department considered granting Mr Joyner an interim care determination, having been satisfied that a care arrangement applied in relation to the children pursuant to the court orders made by the Federal Circuit Court [in] July 2016 (the Court Orders). The Court Orders, a copy of which was before the Tribunal as part of the Department’s papers, Exhibit 1, provided the foundation for the care percentages determined by the Department prior to Mrs [A]’s change in care notification with respect to the children on 2 February 2019. The Department was also satisfied Mr Joyner was taking reasonable action within a reasonable time to ensure that the care arrangements reflected in the Court Orders were being complied with. The Department also gave consideration to the existence of special circumstances, such as violence towards the children, disregard for well-being and daily needs et cetera, in which it would be entitled to exercise discretion not to grant an interim care determination, and after discussions with Mrs [A], who gave evidence of attempts at mediated resolution, following alleged breaches of the Court Orders, decided, in the circumstances, not to grant an interim care determination in favour of Mr Joyner, and instead, decided that Mrs [A] had 100% care of the children from 1 February 2019.
In the decision under review, the objections officer, in affirming the Department’s decision of 18 April 2019, although for different reasons, relied on evidence that Mr Joyner’s contravention application, initiated as part of his action to ensure the care arrangements set out in the Court Orders were complied with, had been rejected, due to his failure to participate in a family dispute resolution process, his claims that the Court Orders had been breached several times, and that the action he was taking related to another child (presumably the parents’ eldest child, [Child 3]), and decided not to apply an interim care determination in this instance.
As appears from the evidence given by Mr Joyner at the Tribunal hearing, set out in detail below, the reasoning of both the Department and the objections officer in reaching their respective decisions was flawed.
Mr Joyner’s unchallenged evidence at the Tribunal’s hearing was to the following effect.
[In] July 2016, the Federal Circuit Court of Australia made orders (the Court Orders) providing, relevantly, that the parents should have shared equal 50% care of [Child 3], [Child 2] and [Child 1]. The parents had complied with the Court Orders until 18 October 2018, when Mrs [A] withheld care of [Child 3] from Mr Joyner for his court ordered week about care of the child. However, Mr Joyner continued to have his court ordered care of the children, [Child 2] and [Child 1], which continued throughout the Christmas 2018 and January 2019 period in accordance with the Court Orders.
On 19 October 2018, Mr Joyner sent a text message to Mrs [A] protesting her refusal to make [Child 3] available for Mr Joyner’s court ordered care, and received a text message reply on 23 October 2018 from Mrs [A] advising him that [Organisation] would be contacting him regarding an appointment for mediation.
Mr Joyner consulted his solicitors at about the time he received Mrs [A]’s text message regarding the foreshadowed mediation appointment, and was advised that as there were Court Orders in place regarding the parents’ care arrangements with respect to all three children, mediation was not an appropriate course of action, that he was not required to engage in the proposed mediation process, and that the appropriate course he should follow was to initiate a contravention application in the Federal Circuit Court to enforce compliance with the Court Orders. In pursuance of that advice, Mr Joyner instructed his [solicitors] to send a letter on 20 December 2018 to Mrs [A], notifying her of Mr Joyner’s intention to enforce compliance with the Court Orders. This letter attracted a response from Mrs [A]’s [solicitors] on 30 January 2019, relevantly, advising of their intention to bring the matter before the Federal Circuit Court for further determination of the care arrangements, and that in the meantime, Mrs [A] would be withholding care of the children, including [Child 3]. This letter also enquired as to whether Mr Joyner’s solicitors held instructions to accept service of process.
As noted above, Mr Joyner continued to have his court ordered school holidays care of the children (with the exception of [Child 3]) throughout the Christmas 2018 holiday period until 5 January 2019, when he returned the children to Mrs [A] for her court-ordered care period during the remainder of the school holidays.
Mr Joyner was due to have his regular court ordered week about care for the first week of the 2019 school year. [Child 1] had been booked to go to after school care on 1 February 2019, and, in accordance with the court ordered care arrangements, Mr Joyner attended at the after school care facility to collect [Child 1], and was informed by the care attendant that [Child 1] had already been collected by Mrs [A]’s partner, Mr [A]. Mr Joyner subsequently discovered that [Child 2] and [Child 3] had also been collected from their after school care facilities by Mr [A].
Mr Joyner then contacted the local police station to request assistance to recover the children from Mrs [A] for his court ordered care, producing a copy of the Court Orders for their inspection, and in company with police officers, attended at Mrs [A]’s house late in the afternoon of 1 February 2019 to collect the children, whereupon he was informed by Mrs [A] that she was withholding care of the children and that she had initiated an application in the Federal Circuit Court for new parenting orders, including interim care orders for the care of the children, and that copies of that application and supporting material had been forwarded to Mr Joyner’s [solicitors].
Mr Joyner contacted his solicitors who sent a further letter to Mrs [A]’s solicitors on 8 February 2019 acknowledging they had instructions to accept service of process on behalf of Mr Joyner in relation to the care issues between the parents, and would respond upon receiving further instructions. Mr Joyner said he placed instructions with [his solicitors] to file a contravention application in the Federal Circuit Court for enforcement of the Court Orders with respect to all three children, [Child 3], [Child 2] and [Child 1].
The Tribunal had before it, as part of the Department’s documentation, Exhibit 1, a copy of a Notice of Risk application filed in the Federal Circuit Court on behalf of Mrs [A] on 8 February 2019, alleging there had been child abuse and that the children, [Child 3], [Child 2] and [Child 1], were at risk of serious harm by Mr Joyner. On 20 February 2019, Mr Joyner’s solicitors filed a notice of address for service in response to that proceeding, and shortly thereafter, filed Mr Joyner’s contravention application in the Federal Circuit Court.
The Tribunal had before it as part of Exhibit 1, a copy of a letter from Registrar [B] of the Federal Circuit Court of Australia dated 5 March 2019, addressed to Mr Joyner’s [solicitors], relevantly, advising that the contravention application they had filed on behalf of Mr Joyner had been rejected because the Registrar was not satisfied that a ground for exemption from filing a certificate pursuant to section 60–I of the Family Law Act 1975 (Cth) had been established, and that, as indicated in Mr Joyner’s supporting affidavit material, Mrs [A] had filed an application seeking to vary the current parenting orders approximately a month previously, the question of whether the current orders were presently appropriate was now before the court, and it would be an abuse of the court’s process to institute contravention proceedings while those prior proceedings are pending.
Mrs [A]’s application to the Federal Circuit Court proceeded to a hearing before Judge [C] [in] April 2019. Both parents were represented by their respective solicitors at that hearing. A copy of the orders made by Judge [C] on that date were provided to the Tribunal as part of the Department’s papers, Exhibit 1, recording, amongst other things, the dismissal of Mrs [A]’s application for interim parenting orders, and a summary application for the dismissal of an application filed on 8 February 2019, presumably the Notice of Risk application filed by Mrs [A]’s solicitors on 8 February 2019 referred to above. Judge [C] also ordered that the parents and the children attend upon a family consultant as directed by the manager, Child Dispute Services, for the purpose of preparing a report pursuant to subsection 62G(2) of the Family Law Act 1975, and otherwise adjourned the surviving relief sought in Mrs [A]’s application to 11 September 2019 for directions, leaving the Court Orders ([July] 2016) undisturbed.
Mr Joyner said that at the instigation of Judge [C], and in the presence of the parties and their solicitors, Mrs [A] agreed that Mr Joyner could have care of the children, including [Child 3] from 3 May 2019, in compliance with the provisions of the Court Orders of [July] 2016, and he collected all three children on 3 May 2019.
The Department’s file records before the Tribunal as part of Exhibit 1 record Mrs [A] contacting the Department on 2 February 2019 to notify a change in care with respect to the children, reporting the change in care occurring on 1 February 2019 and that, from that date, she had 100% care of the children. The Department’s file note records Mrs [A] advising the Department that there were written care arrangements in the form of court orders which Mrs [A] said were not being complied with as the children were at risk in Mr Joyner’s care.
A Department file note of 21 February 2019 records a Department officer contacting Mr Joyner regarding the change in care reported by Mrs [A] and being advised by Mr Joyner that his lawyer was in the process of making an application to the court for appropriate orders, consequent upon Mrs [A]’s contravention of the existing Court Orders according the parents 50% shared equal care of the children, and that he anticipated that application would be filed by Monday, 25 February 2019.
A further Department file note of 25 February 2019 records the Department contacting Mrs [A] and her confirming that a Notice of Risk application had been filed with the Court, that Mr Joyner had refused an offer of mediation, and that all three children were named in the Notice of Risk application, which included a police report and statement of incidents. She provided a copy of the Notice of Risk application to the Department which was before the Tribunal as part of Exhibit 1.
A Department file note of the same date records a Department officer contacting Mr Joyner and being advised, amongst other things, that he had instructed to solicitors to initiate court action for the retrieval of the children, and that Mrs [A] had previously made allegations regarding the children’s safety while in his care, which had been dismissed.
The Department’s file also reflects Mrs [A] providing additional information to the Department including copies of text messages between the parents relating to Mrs [A]’s withholding of Mr Joyner’s care for [Child 3] in October 2018, a family relationship letter and certificate pursuant to section 60-I of the Family Law Act 1975 (Cth) dated 12 December 2018, and a copy of the letter from Registrar [B] of the Federal Circuit Court of Australia dated 5 March 2019 rejecting Mr Joyner’s contravention application, referred to earlier in these reasons.
The Department’s file note of 18 April 2019 records an unsuccessful “pre-decision callout” to Mr Joyner in which a Department officer intended informing Mr Joyner of the evidence provided by Mrs [A]. No further attempt was made to contact Mr Joyner, 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 Mrs [A] 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 in 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 3], and specifically, Mr Joyner’s application seeking enforcement of the care in accordance with the Court Orders [July] 2016.
Following the orders made by Judge [C] in the Federal Circuit Court [in] April 2019, referred to above, Mr Joyner contacted the Department on 3 May 2019 to notify that, pursuant to the orders made by Judge [C] in the Federal Circuit Court [in] April 2019, and with the consent of Mrs [A], care of all three children had been restored to him from 3 May 2019, and that the care taking place was in compliance with the Court Orders [July] 2016 pending the adjourned hearing of the balance of Mrs [A]’s application in the Federal Circuit Court on 11 September 2019. The file note also records some discussion regarding Mr Joyner’s objection rights regarding the Department’s decision of [April] 2019 and his intention to lodge an objection to the Department’s decision of [April] 2019, which he duly did [later in] April 2019.
Mr Joyner sent an email to the Department on 8 May 2019, in which he reiterated his notification of the change in care with respect to all three children he reported on 3 May 2019. He also provided copies of the orders made by Judge [C] in the Federal Circuit Court [in] April 2019 and the Court Orders ([July] 2016), in compliance with which he asserted the parents had been having care since 3 May 2019, and would continue to do so, pending the outcome of Mrs [A]’s adjourned Federal Circuit application.

On 9 May 2019, the Department responded to Mr Joyner’s change in care notification, and determined that from 3 May 2019, the parents would be recorded as having 50% shared equal care of all three children, [Child 3], [Child 2] and [Child 1]. The Department’s decision was recorded in a file note of 9 May 2019 included in the Department’s documents before the Tribunal as part of Exhibit 1.
The Tribunal finds that Mr Joyner, as the parent with reduced care, took reasonable action to ensure that the care arrangements reflected in the Court Orders were complied with, both with respect to Mrs [A]’s withholding of his care for [Child 3] on 10 October 2018, and again in February 2019 when Mrs [A] withheld care of [Child 2] and [Child 1], that the Department was made aware that both Mr Joyner and Mrs [A] had instituted court proceedings with respect to the care of the children, and that there was not sufficient evidence before the Department or the objections officer to justify their decisions not to grant Mr Joyner an interim care order.
An interim care period is determined according to the table set out in subsection 53A(1) of the Act. Item 2, column 3, paragraph (b) applies in this case, providing for the granting of an interim care period of 14 weeks, starting on the change of care day, 1 February 2019 and, under normal circumstances, ending on 9 May 2019. However, as Mrs [A]’s application for orders for interim care of the children, [Child 2] and [Child 1] was dismissed by Judge [C] of the Federal Circuit Court [in] April 2019, and, by agreement between the parents, Mr Joyner’s court ordered care was reinstated on 3 May 2019, the Tribunal is satisfied Mr Joyner ceased taking reasonable action to have the care arrangements for the children in accordance with the Court Orders complied with on 3 May 2019. Pursuant to subparagraph 53A(1)(b)(ii) of the Act, the interim care period will end on 3 May 2019.
The Tribunal finds that Mr Joyner was entitled to the benefit of an interim period determination under section 50 of the Act. The Tribunal therefore determines the first care percentage under subsection 51(3) of the Act of 50% will apply from the date the change in care occurred with respect to [Child 2] and [Child 1] on 1 February 2019 until 3 May 2019, the date on which the care of the children and [Child 3] in compliance with the Court Orders was restored to Mr Joyner, following Judge [C]’s dismissal of that part of Mrs [A]’s Federal Circuit Court application seeking interim care orders [in] April 2019.
As the parents agreed to comply with the care arrangements as set out in the Court Orders regarding the care arrangements for the children, [Child 3], [Child 2] and [Child 1] from 3 May 2019, and Mr Joyner ceased taking further action to ensure compliance with those Court Orders on that date, the second care percentage pursuant to paragraph 51(4)(b) of the Act applying from 4 May 2019 is determined as 100%.
The Tribunal notes that Mrs [A] notified the Department of a change in care for all three children on 9 May 2019, and that change in care has been reflected in the Department’s change in care decision made on 9 May 2019 with effect from 3 May 2019.

DECISION

[2019] AATA 5509

7 November 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies