JTQL and Child Support Registrar (Child support second review)

[2020] AATA 192

JTQL and Child Support Registrar (Child support second review) [2020] AATA 192 (18 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/1046

Re:JTQL

APPLICANT

AndChild Support Registrar

RESPONDENT

AndPLJZ

OTHER PARTY

DECISION

Tribunal:Member P Ranson 

Date:18 February 2020  

Place:Brisbane

The decision under review is affirmed.

.............[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 – care arrangements – percentage of care – whether special   circumstances apply – what amounts to reasonable action – length of interim care period          – decision under review affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

SECONDARY MATERIALS

Guides to Social Policy Law: Child Support Guide, Department of Social Services, Version 4.45 released 2 January 2020

REASONS FOR DECISION

Member P Ranson

18 February 2020 

BACKGROUND

1. The Applicant (‘the Mother’) and the Other Party (‘the Father’) are the separated parents of a Son who was 15 years of age in the early part of 2018. The Mother and Father entered into a written parenting plan in January of the same year, which was adhered to by both parties.

2. The parenting plan provided for the Son to live with his Father and spend time with his Mother every other weekend and for half the school holidays plus special days such as birthdays and Mother’s Day. The Mother believes a verbal agreement was entered into with the Father whereby the parenting plan would be trialled for three months after which the Son would decide where he wished to live. The Father disagrees that any such verbal agreement was made.

3. On returning to school after the Easter holidays in 2018, the Son approached his Mother requesting to live with her full-time. It seems the Son took exception to his Father confiscating his mobile phone as punishment for lying about the work done on a school assignment. The Mother agreed to the Son’s request and also provided him with a new mobile phone and number. She instructed the Son to send a text message to his Father advising him of his new number and claims she sat with him and witnessed him do that. The Father claims he never received any such message and that the Mother withheld access to the Son from that time.

4. To protect his interests and reinstate the arrangements of the parenting plan, the Father approached the Federal Circuit Court of Australia (‘FCCA’) which required him to first seek family dispute resolution (‘FDR’). The Father made the necessary arrangements. Dispute resolution did not proceed because contact with the Mother was lost even though some phone calls were exchanged early in the process. In any event, the Father went to the FCCA with a certificate from the dispute resolution practitioner describing the above. He firstly obtained interim and then final orders which effectively reinstated the arrangements contemplated by the parenting plan.

5. The Child Support Registrar (‘the Respondent’) decided that the Father had 77% care of the Son from the commencement of the parenting plan until the change of care occurred after the Easter holidays, and nil thereafter. The Mother believed she had 100% care of the Son from the conclusion of the Easter school holidays that year and advised the Department accordingly who made a new care determination reflecting that change. The Father objected to the new care determination, which was partially allowed. Dissatisfied with the objection decision, the matter was taken to this Tribunal which set aside the decision of the Respondent and instead found a 14 week interim period applied after which the Mother had 100% care. Dissatisfied with that decision, the Mother applied to this Tribunal for a review of that decision.

   FACTS

6. The parties in this case are:

Applicant	JTQL (the Mother)
Respondent	Child Support Registrar (the Respondent)
Other Party	PLJZ (the Father)

1. The Respondent provided a Statement of Facts, Issues and Contentions (‘SFIC’) dated 5 September 2019, which sets out in detail the law relevant to this case with which the Tribunal concurs. As a copy of the SFIC was provided to the Applicant and the Other Party prior to the Hearing, that law will not be reproduced in this decision other than to confirm the relevant legislation is contained in:

   (a)Child Support (Assessment) Act 1989 (‘the Assessment Act’) as it was on 18 April 2018; and

   (b)The Child Support Guide (‘the Guide’), Chapter 2.2.

2. The Mother and the Father are the biological parents of a son born in 2002 (the Son).

3. On 24 January 2018, the Mother and the Father agreed to a Parenting Plan (the 2018 Parenting Plan) whereby the Son was to live with his father and attend a State High School nearby. The 2018 Parenting Plan superseded Consent Orders dated 13 November 2009. In the 2018 Parenting Plan, the parties agreed to equal shared parental responsibility for the long term care, welfare and development of the Son who would spend time with the Mother each alternate weekend from 7:00pm Friday to 5:00pm Sunday with variations to accommodate public holidays, pupil free days and special days such as birthdays and Mother’s Day. As a result, the Respondent recorded the care of the Son was split 77% to the Father and 23% to the Mother from 17 January 2018.[1]

   [1] Exhibit 1, T-documents, T14, page 131.

4. At the beginning of the second school term that year, around 17 April 2018, the Son requested he commence living full-time with his Mother. He did not have his mobile phone with him when she collected him from school. It transpires his mobile phone had been confiscated by his Father as a disciplinary measure for not being truthful about the work done on a school assignment. The Mother agreed the Son could live with her. The Father called the Mother to confirm she had the Son. She confirmed he had requested to live with her and the Father would have to go to court if he wanted the Son back. The Mother identified she has a highly acrimonious relationship with the Father.

5. On 17 May 2018 the Mother advised the Department of Human Services (‘the Department’) she had 100% care of the Son, whereby the Department decided to record the Mother as having that level of care from 18 April 2018.[2]

   [2] Exhibit 1, T-documents, T14, page 130.

6. On 23 May 2018 the Father objected to that decision. He agreed the care had changed to 100% to the Mother but the change in care was a breach of the 2018 Parenting Plan. On 28 June 2018 an objections officer partly disallowed the objection agreeing the Father had taken reasonable action to have the 2018 Parenting Plan complied with. This decision reinstated the care of 77% to the Father and 23% to the Mother from 17 January 2018 until 29 April 2018, then 100% to the Mother from 30 April 2018.[3]

   [3] Exhibit 1, T-documents, T2, page 4.

7. The matter was taken to this Tribunal by the Father. The Tribunal set aside the decision of the Respondent and instead found a 14 week interim period applied after which the Mother had 100% care (AAT1). Dissatisfied, the Mother applied to this Tribunal for a review of that decision.

8. After the Son was taken to live with the Mother, the Father contacted the FCCA who required him to arrange FDR before any action could be taken through the court system. The Father arranged FDR however contact with the Mother was lost during that process and FDR never occurred. Armed with a certificate confirming the failed resolution attempt, the Father made an application to the FCCA, which resulted in interim orders dated 24 September 2018 (the 2018 Interim Orders) and final orders dated 26 October 2018 (the 2018 Final Orders). The 2018 Final Orders effectively reinstated the arrangements agreed to in the 2018 Parenting Plan.

9. The Respondent identified the issues to be decided in this case as:

   (a)whether the Father had taken reasonable action (emphasis added) to ensure the January 2018 Parenting Plan was complied with and if so;

   (b)whether there were special circumstances (emphasis added) such that an interim period should not apply;

   (c)the appropriate care determinations: and

   (d)the date of effect of the care determinations.[4]

   [4] Exhibit 2, Respondent’s SFIC, page 1.

10. The Mother and the Father agreed with the above issues and as the terms ‘reasonable action’ and ‘special circumstances’ are highly operative in this Decision they are expanded on later.

11. The Hearing occurred on 4 November 2019 (the Hearing). The Mother attended in person, the Father attended by conference telephone and Mr Murphy for the Respondent attended in person. The Mother and Father gave affirmed evidence.

12. The following documents were admitted into evidence:

Exhibit 1	Section 37 T-Documents.
Exhibit 2	The Secretary’s Statement of Facts, Issues and Contentions dated 5 September 2019.
Exhibit 3	Affidavit of [redacted] dated 24 October 2019.
Exhibit 4	Affidavit of [redacted] dated 24 October 2019.

REASONABLE ACTION

1. The term ‘reasonable action’ is not defined in the Assessment Act however at chapter 2.2.4 the Guide provides examples of reasonable action as follows:

   (a)negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;

   (b)making and/or attending an appointment and a family relationships Centre (FRC) or other dissolute dispute resolution service with the aim of ensuring the care arrangement is adhered to;

   (c)seeking or obtaining legal advice regarding the making of a court order;

   (d)filing an application to a court to have an order made or enforced;

   (e)attending a Hearing at court to seek an order to be made or enforced; or

   (f)notifying the police the child had been taken without consent.

   SPECIAL CIRCUMSTANCES

2. Similarly, the term ‘special circumstances’ is also not defined in the Act. Departmental policy on the term is set out in the Guide at chapter 2.2.4, which provides the following examples:

   (a)violence towards the child;

   (b)exposing the child to family violence;

   (c)violence towards the person with increased care;

   (d)directly involving the child in a criminal act;

   (e)exposing the child to alcohol drugs or substance abuse;

   (f)substantially failing to comply with legal schooling requirements; and/or

   (g)neglecting the child’s basic needs such as withholding essential medical care from the child or disregarding the daily needs for food shelter and hygiene.

   THE MOTHER’S EVIDENCE

3. As mentioned above, the Mother is adamant a meeting was held at her residence during which the Mother, her partner, the Father and his partner were present. At that meeting she says a verbal agreement was reached whereby the 2018 Parenting Plan would be trialled for three months after which the Son would decide who he wanted to live with.

4. Term 2 for Queensland state schools commenced Tuesday, 17 April 2018. The Mother’s evidence is the Son contacted her to say he wanted to live with her. The Mother then called the police who she says advised her she was within her rights to collect her Son and take him to live with her. She collected him from school on the afternoon of 17 April 2018, albeit there is some uncertainty in her mind as to whether it was that day or the next. On 19 April 2018 the Mother made an appointment at another high school near to her to enrol the Son who started the following Monday, 23 April 2018. He remained at this school until the end of October 2018 although, again, she was unsure of the exact date.

5. When the Mother collected the Son he did not have his mobile phone. He advised his Father had confiscated his phone as a disciplinary measure and this was later confirmed by the Father in his evidence. The Mother provided the Son with a replacement mobile phone which had a different number. The Mother instructed the Son to send a text message to his Father advising him of his new mobile number and her evidence is she sat with her Son while he sent that message. The Father disputes he ever received this message.

6. The Tribunal requested the Mother obtain a record from the mobile service provider as evidence that the message was sent. The Mother advised the Tribunal on 26 November 2019 the telephone company’s records only go back 60 days so they cannot print text messages dated prior.

7. In accordance with the 2018 Final Orders, the Son attended the high school near his Father’s residence every day. The Mother collected him from school on Friday afternoon and the Father collected him from his Mother’s residence on Sunday afternoon. Under these new Orders, the Mother’s first weekend commenced Friday, 26 October 2018 and on Sunday, 28 October 2018 she returned the Son to the Father’s care.

8. As mentioned above, the Father instigated FDR through Strathpine Family Relationship Centre. The Mother acknowledged she received a telephone call from the centre advising her FDR was being arranged and she would be advised of the details in due course. The Mother also acknowledged she called the centre to follow-up and request the date of the proposed event. However she was unable to obtain the date as it had not been set down at that time. After that she said she received no further communication from the Strathpine Family Relationship Centre. The Mother advised she had split with her then partner at the time, relocated elsewhere and was temporarily not receiving her mail. The Mother confirmed her mobile number was unchanged.

9. The Mother put forward evidence the Father made no attempt to contact the Son after she collected him from school on or about 18 April 2018. She makes the point notwithstanding whether the text message from the Son’s new phone went through, the Father had the Mother’s mobile number. If he wanted to make contact with the Son he could have called her and she would have handed the phone to the Son. She says this did not occur, which the Father did not dispute. The Mother did say she arranged for the Son to visit the Father three or four times in the period subsequent to 18 April 2018, including his sister’s birthday in July. Her point being it was not correct to say she had completely withheld the Son from contact with the Father.

10. The Mother did state she received a series of abusive telephone calls and text messages from the Father as a result of the decision of the Son to live with her from 18 April 2018, which the Father also did not dispute.

11. The Tribunal requested the Mother contact Strathpine Family Relationship Centre to seek evidence where they had attempted to call her and write to her with details of the proposed FDR. On 26 November 2019, the Mother wrote to the Tribunal to advise she had called the Strathpine Family Relationship Centre and was advised they had closed the case and can no longer provide the required proof because it had been so long.

12. In any event, FDR, which was proposed for 7 June 2018, did not proceed because Strathpine Family Relationship Centre was unable to contact the Mother to provide details of the time and place. The certificate they provided to the Father records the Mother as either refusing or failing to attend the proceedings both of which the Mother denies.

    THE FATHER’S EVIDENCE

13. The Father confirmed there was no dispute regarding the change of care from 18 April 2018, that is, the Mother had 100% care of the Son from that date. In the father’s view the legislation had not been properly applied by the original decision maker.

14. The Father is adamant no trial period was agreed with the Mother in January 2018 or any other time in respect of the 2018 Parenting Plan. He is also adamant he was never advised of the Son’s new mobile number notwithstanding the evidence of the Mother she had witnessed the Son send a text message to the Father advising him accordingly.

15. As a disciplinary measure the Father had confiscated the Son’s phone when he discovered the Son had not been truthful to him about work done on a school assignment.

16. As mentioned above, the Father confirmed he called the Mother to check she had collected the Son and stated the Mother indicated he would have to go to court if you wanted to get the Son back.

17. Importantly, the Father initiated two significant actions in an effort to have the 2018 Parenting Plan reinstated. The Father contacted the FCCA to request a Hearing to recover the Son and was advised he would have to arrange FDR before the court would hear the matter. FDR was then initiated through Strathpine Family Relationship Centre. As discussed above, the Mother failed to attend the event scheduled for 7 June 2018, which she says occurred because she did not receive any written or verbal advice about the arrangements.

18. On 9 July 2018, the family dispute resolution practitioner issued a certificate under section 60I of the Family Law Act 1975 (Cth).[5] The certificate states:

    ‘[redacted] did not attend family dispute resolution with me and the other party or parties to the proceedings, but that person’s failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend.’

    [5] Exhibit 1, T-documents, T35, page 199

19. The Father then applied to the FCCA and using the FDR certificate was granted the 2018 Interim Orders followed by the 2018 Final Orders. Those orders have been followed ever since.

20. The Father stated the Son is happy living with him and regularly attends school. His grades have improved in all but one subject which, in consultation with the student counsellor, the Son will drop in favour of a subject which will give him credit towards a trade certificate in auto electrics. Otherwise, the Father says the Son’s behaviour has improved and he is emotionally more confident and stable. The Mother disputes there has been any improvement in the Son’s school grades and the Son rarely does his homework.

    Did the Father take reasonable action?

21. Set out above in paragraph 19 is a non-exhaustive list of examples of reasonable action that can be taken to have previously agreed parenting arrangements reinstated. Not all or any of those examples are necessary to establish reasonable action was taken. The Father did contact the Mother in a bid to negotiate a resolution albeit the Mother says the phone calls and text messages to her from the Father were abusive. The Father did initially apply to the FCCA in regard to the contravention of the 2018 Parenting Plan and was directed to arrange FDR which he did. Dispute Resolution did not occur because contact with the Mother was lost at the relevant time.

22. Relying on the section 60I Certificate, the FCCA ultimately issued new orders, the 2018 Final Orders, which effectively reinstated the arrangements set out in the 2018 Parenting Plan.

23. The Tribunal is satisfied the Father took reasonable action to recover the Son and reinstate the arrangements as set out in the 2018 Parenting Plan.

    Are there any special circumstances?

24. Where a parent with reduced care takes reasonable action to reinstate the arrangements which applied prior to the change, an interim care period will apply unless there are special circumstances which negate that. Examples of special circumstances are set out in paragraph 20 above and largely involve acts of violence and other egregious behaviour. There is no evidence before the Tribunal any such acts or behaviour exists in this case by either the Father or the Mother.

25. The Tribunal is satisfied there are no special circumstances which prevent the application of an interim care period.

26. Interim care periods are for a 14 week timeframe unless there are special circumstances in which case a 26 week timeframe can apply.[6] As discussed above, the Tribunal is satisfied there are no special circumstances in regard to this matter. Fourteen weeks from 18 April 2018 ends on 25 July 2018. The interim care period ends on 25 July 2018 in accordance with AAT1.

    [6] Child Support (Assessment) Act 1989 (Cth) s 53A.

    DECISION

1. The decision in AAT1 is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

.............[SGD]........................

Associate

Dated: 18 February 2020

Date of hearing:

4 November 2019

Applicant:

In person, self-represented

Solicitor for the Respondent:

Mr Chris Murphy

Department of Human Services

Other Party:

By telephone, self-represented