Levins and Child Support Registrar (Child support)

[2018] AATA 3073

Levins and Child Support Registrar (Child support) [2018] AATA 3073 (10 July 2018)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2018/PC013561

APPLICANT:  Mr Levins

OTHER PARTY:  Child Support Registrar

TRIBUNAL:Deputy President J Walsh

DECISION DATE:  10 July 2018

CATCHWORDS
Child support – Percentage of care – Actual care not in dispute - No reasonable prospect of success – Application for review dismissed under paragraph 42B(1)(b)

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.

DISMISSAL OF APPLICATION FOR REVIEW:

1. In this matter, the applicant father seeks review of an objection decision dated 29 January 2018 disallowing his objection to a decision dated 27 October 2017 that the mother had 100% care of the parents’ children. By his objection dated 24 November 2017, the father submitted that the mother was a kidnapper (and not a “carer”) so that her application for child support should not have been accepted.  His essential contention was that, as a kidnapper (who had therefore committed acts of “family violence”), the mother should be regarded as having no entitlement to receive child support and any contrary decision was misconceived. He maintained the mother was not relevantly a “carer” who was “caring” for the children.   

2. I convened directions hearings on 23 March and 10 May 2018 in order to ensure that I properly understood the father’s case. After some discussion of his case at the first directions hearing, I formed the view that his AAT application might have such poor prospects of success that it may be appropriate to dismiss his application under paragraph 42B(1)(b) of the Administrative Appeals Tribunal Act 1975. Mindful that such a course ought not be lightly taken, I gave the father time to provide any written submission he wanted considered. Having carefully considered the father’s written submissions dated 20 April and 16 May 2018 and the other material before the Tribunal, I have decided to dismiss this application on the basis it has no reasonable prospect of success.  My reasons follow.

Background

1. It is useful to recount some of the relevant background in this case. The parents separated in August 2016. On 11 September 2017, the mother applied for a child support assessment. Her application was accepted. The father was then assessed as liable to pay child support at the annual rate of $6,522 from 11 September 2017. This assessment was based on the mother having 100% care of the children.

2. The father then objected on a number of bases. The objection decision, in terms, dealt only with the care percentage aspect. I explained to the father that the Tribunal could not consider the issues of the mother’s income, prior cash payments and health insurance premium payments made by the father, since these matters had not been the subject of any objection decision and were beyond the scope of the care percentage decision considered on objection. I suggested he might pursue these aspects separately with the CSA.

3. The essence of the father’s case before the Tribunal is that the mother is not a carer entitled to child support, for the reasons referred to above.

The child support legislation        

1. A core principle underpinning the child support legislative scheme is that the parents of children have the primary duty to maintain their children: subsection 3(1) of the Child Support (Assessment) Act 1989. The principal object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents: subsection 4(1). A particular object of the Assessment Act is that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings: paragraph 4(2)(c). Two of the principal objects of the Child Support (Registration and Collection) Act 1988 are to ensure children receive from their parents the financial support the parents are liable to provide and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis: paragraphs 3(1)(a) and (b).

The mother’s child support application   

1. Part 4 of the Assessment Act deals with applications for the administrative assessment of child support. Pursuant to section 25, a separated parent is entitled to apply. In this case, the mother was entitled to make the child support application she made. There seems to be no question that the children here were children in respect of whom her application could be made: see section 24 of the Assessment Act. Provided the Child Support Registrar (by his or her delegates in the CSA) was satisfied of the matters to be considered under sections 29 and 29A of the Assessment Act, the Registrar was required to accept her application: see section 30. Interestingly, there was no requirement in accepting the mother’s child support application for each parent’s level of care to be assessed.

2. The quantum of the child support liability under an administrative assessment is ordinarily determined under Part 5 of the Assessment Act. Formulas are used. The key variables in the formula assessment are the parents’ incomes and their percentages of care of their children. Percentages of care are worked out under subdivision B of Part 5 of the Assessment Act. In practical terms, only a person with a care percentage of 35% or more will be entitled to child support. A non-parent carer will not be an eligible carer unless it would be unreasonable for a parent or legal guardian to care for the child: see subsections 7B(2) and (3) of the Assessment Act. 

Assessing care

1. The term “care” in the context of caring for a child is not defined. It is usually taken to include concepts such as parental responsibility, decision-making (both practical day-to-day and longer term), provision of food, shelter, education, transport, medical care and the like. A person’s care percentage is to be assessed by reference to the actual or likely pattern of care for the child during a care period: sections 49 and 50 of the Assessment Act. Generally, nights of care will be the means of determining actual care: section 54A(1) of the Assessment Act.  Here, the father accepts he has no actual care of the children, albeit this is contrary to his wishes. In those circumstances, a percentage of care of 0% for him was required under section 49 of the Assessment Act.

10.  The father’s contention that the mother has kidnapped the children flows from an sms message the mother sent the father’s sister in February 2017:

On 17 February 2017, my wife sent my sister an sms message that began as follows:

“Sorry [name deleted] but for reasons I won’t bore you with [Mr Levins] has to agree to a proper mediation and parenting agreement before I will let him see the kids again. It is too confusing – they see him then don’t see him. I’ll get back to you about taking him. I’m not meaning to be awful, but he is putting me (and my doctors) through hell and I’m not prepared to have the kids in the middle of that too. If we can be like all other sensible people and reach an agreement then that would be great. “

The father contends that the effect of this communication is that the mother has “kidnapped the children and is holding them to ransom”. He asserts she was unlawfully preventing him from exercising his “parental responsibility” to see the children.

11.  In a letter to the CSA in December 2017, the mother details that the father has refused to mediate in relation to her application for sole custody of the children. She also states that, at the instigation of the Independent Children’s Lawyer, the father agreed to six supervised visits with the children in mid-2017, but he then drafted and signed a Minute of Consent Orders discharging the orders for contact. She says he has not sought to see the children since then.

Parental responsibility

12.  The father claims he is being denied his parental responsibility to see the children. In Goode v Goode [2006] FamCA 1346, Bryant CJ, Finn and Boland JJ considered provisions of the Family Law Act 1975 relating to parental responsibility. The Court observed:

29. Parental responsibility is defined in s 61B and its effect is explained in s 61C and s 61D. Section 61B provides that parental responsibility for a child means all the duties, powers and responsibilities and authority which by law, parents have in relation to children.

30. Section 61C provides that each parent has parental responsibility for a child who is not 18 years, despite any changes in the nature of the relationship of the child’s parents and in particular it is not affected, for example, by the parties becoming separated or by either or both of them marrying or remarrying. The section provides that it has effect, by operation of law, subject to any order of a court.

…

33. In B v B: Family Law Reform Act 1995, the Full Court comprising Nicholson CJ, Fogarty and Lindenmayer JJ considered at [9.23] and following what the definition of parental responsibility pursuant to s 61B meant. They said at [9.24] and following:

This definition provides little guidance, relying as it does on the common law and relevant statues to give it content. It would appear to at least cover guardianship and custody under the previous Part VII and may be wider. The Attorney-General submitted that it was probably wider than that and covered “all of the underlying and continuing common law and statutory law that affects the relationship of parents and their children”.

It omits any reference to rights. Whilst this omission is understandable, given the philosophy of the amendments, it is doubtful whether that achieves any practical effect other than to make it clear that there are no possessory rights to children, insofar as this could be said to have been the case prior to the amendments.

13.  At [37], the Court also observed:

37. Thus, where no contrary order has been made, parents may exercise this responsibility independently or jointly. This would be so whether the parties were married, living together, never lived together or separated as long as there was no contrary order in force. 

14.  Whilst the father here would no doubt prefer to have care of the children, his parental responsibility does not give him any right to such care in this respect.

Consideration

15.  Although there is obviously some divergence as to the parents’ perspectives concerning the relevant background circumstances, it is sufficient for present purposes to observe there is no dispute that the father has had no contact with the children since the time of the mother’s child support application in September 2017.

16.  The essence of the father’s position is that the mother’s allegedly criminal conduct in preventing him from having care of his children ought not be “rewarded” via the child support system. On this basis, he denies the mother has care of the children, despite the fact they live with her and she is responsible in a practical sense for their daily welfare and development.

17.  In my view, there is nothing implicit or otherwise in the child support legislation which requires the Child Support Registrar to inquire into the sorts of claims the father makes here before deciding to accept the mother’s child support application and assessing relevant care percentages to determine the father’s child support liability. The clear tenor of the Assessment Act, the relevant determination being based on actual care by the parents, is inconsistent with the father’s contentions.  

18.  I consider the background circumstances here are, unfortunately, within the normal range of parental disputes following a contentious separation. It would be surprising indeed, given the objects of the legislation to ensure parents are primarily responsible for meeting their children’s costs, that the father could avoid his child support responsibility on the basis claimed. His contention that permitting the mother’s child support application and assessing him as liable to pay child support “rewards” her alleged misconduct in some way misunderstands the assumption underpinning the child support legislative scheme - that the relevant monetary transfer is intended to benefit the children.  

19.  The father contends that the child support legislation is intended to be beneficial to children and so ought not be construed in such a way as to authorise or require the Child Support Registrar to provide financial support to a parent who engages in criminal misconduct. Of course, the role of CSA is essentially as a conduit for the transfer of funds (according to the assessed child support liability) between the parents. Given the objects of the legislation, I do not consider the father’s position to be tenable in the circumstances.

20.  It might also be noted that, were the mother’s conduct to be considered unlawful in some way, that would not prevent a care percentage decision favourable to her. Provisions such as section 51 of the Assessment Act contemplate situations of a parent having actual care of children contrary to court orders. In that context, provided the parent who is deprived of care under the orders takes reasonable steps to enforce their rights, their care percentage under the orders can be preserved, but generally only for a period of up to 14 weeks. Thereafter, despite the parent with care being in breach of the court orders, care (and therefore the consequent child support liability) is to be assessed based on actual care.

21.  In this case, there are no court orders. The actual or likely pattern of care of the children at the time of the mother’s child support application in September 2017 was 100% to her. In my view, the decision by the CSA that the mother had a care percentage of 100% was plainly right in this case. No other outcome was open.

Conclusion

22.  Amendments to the AAT Act made by the Tribunals Amalgamation Act 2015 broadened the scope of the Tribunal’s dismissal powers. Section 42B(1) relevantly provides:

(1) The Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

(a) is frivolous, vexatious, misconceived or lacking in substance; or

(b) has no reasonable prospect of success; or

(c) is otherwise an abuse of the process of the Tribunal.

The Revised Explanatory Memorandum to the Tribunals Amalgamation Bill 2014 explained that these powers “would provide the Tribunal with greater power to dismiss unmeritorious matters early where appropriate.”

23.  The Tribunal’s statutory objective is, inter alia, to provide a mechanism of review that is fair, just, economical, informal and quick: see section 2A of the AAT Act. It is trite that the power to dismiss an application on the basis it has no reasonable prospect of success ought be sparingly invoked. In this case, after careful consideration, I have come to the view that the father’s application has no substantive merit.

24. In the circumstances, and guided by the Tribunal’s statutory objective under section 2A of the AAT Act, I have decided that it is appropriate to exercise the power available under paragraph 42B(1)(b). Permitting proceedings that simply cannot succeed to continue would be inconsistent with notions of justice, fairness, economy and proportionality that the Tribunal must take into account. Accordingly, I dismiss this application.