NGWB and Child Support Registrar (Child support second review)

[2023] AATA 807

NGWB and Child Support Registrar (Child support second review) [2023] AATA 807 (19 April 2023)

Division:GENERAL DIVISION

File Number(s):      2021/9368

Re:NGWB

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKFLW

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:19 April 2023

Place:Brisbane

Pursuant to section 42(1)(b), the decision under review is varied such that an interim care period is to be applied from 19 February 2021 to 9 February 2022 with effect from 19 February 2021 for both parents and with the percentage of care of Z reflected as 78% to KFLW and 22% to NGWB.

....................[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.

Catchwords

CHILD SUPPORT – whether interim care period applies – where family court order regarding care of child in force – where parent refuses to help facilitate changeover – child refusing to participate in contact – whether reasonable action to ensure compliance with care arrangement was taken – commencement of an interim care period  – decision under review varied

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Cases

Polec & Staker & Anor [2011] FMCAfam 959

Secondary Materials

Queensland Government – Department of Education, 2021 School calendar – Queensland state schools. Located at: FOR DECISION

Member Ranson

19 April 2023

BACKGROUND

1. NGWB Mrs KFLW are the separated parents of Z born in 2008. At various times orders were made by the courts dealing with the time each parent was to spend with Z.

2. Orders were made on 11 February 2021, which provided for Z to spend time with NGWB for two days each fortnight from 19 February 2021. Changeover was to be on Friday at 5:00 pm at McDonald’s at Helensvale and if he failed to attend a changeover on any one occasion his time with Z would be suspended. NGWB says he never missed a changeover. KFLW says he did miss changeovers on 19 March 2021 and 2 April 2021 although the only date in dispute is 30 April 2021. She also says Z refused to go with NGWB.

3. NGWB filed a contravention application and was awarded a 52-week interim care period. KFLW objected to the 52-week interim care period made by the Registrar. An Authorised Review Officer (ARO) partially allowed her objection and found the period should end on 29 April 2021, a period of 11 weeks (instead of 52 weeks). KFLW says there should not be interim care period at all.

4. If NGWB was there for each changeover and KFLW was withholding Z from his care, he can apply for an interim care period of up to 52 weeks provided he took reasonable action to enforce the care orders.

5. In deciding this case the Tribunal need only address the following three questions.

   i.Did NGWB fail to attend a changeover?

   ii.Did KFLW withhold care of Z?

   iii.Did NGWB take reasonable action to enforce the care orders?

6. For the following reasons, the decision under review should be varied such that an interim care period of 52 weeks applies from 19 February 2021.

The 2021 care orders and changeover

1. On 11 February 2021, Justice Purdon-Sully of the then Federal Circuit Court of Australia made new care orders which amended earlier orders of 16 March 2020 (2021 Care Orders). KFLW disputes the 2021 Care Orders are new orders however the Registrar’s position is they are new orders, and the Tribunal has no reason to disagree with that decision. [1]

   [1] T52, page 278.

2. The 2020 care orders provided for Z to spend time with NGWB for the second half of all school holidays commencing at 5:00 pm on the Friday closest to the mid-way point of the holidays until 5:00 pm on the Friday immediately before the commencement of the schooling term. This was not amended in the 2021 care orders. Both the 2020 and 2021 care orders are silent about Z spending time with her father on her birthday, Father’s Day, or Christmas Day.

3. The 2021 care orders amended the 2020 care orders to say NGWB was to spend time with Z from 5:00 pm Friday to 5:00 pm Sunday, commencing Friday, 19 February 2021, and each alternative weekend thereafter and changeovers were to occur at the McDonald’s restaurant at Helensvale. There is no dispute the effect of the 2021 care orders is 78% care to KFLW and 22% care to NGWB.

4. The change of care from 100% to 78% for KFLW and 0% to 22% to NGWB commenced on 19 February 2021 being the date specified in the 2021 care orders.[2]

   [2] T 7, paragraph 1(a).

5. These orders provide for two changeover times, viz, Friday at 5:00 pm into the care of NGWB and Sunday at 5:00 pm into the care of KFLW. As changeover to NGWB never occurred the changeover on Sunday when Z was to be returned to the care of KFLW is not relevant. KFLW said changeover usually occurred in the carpark of the restaurant where Z was to transfer from one car to the other however the orders do not specify where at the restaurant changeover is to occur, so the Tribunal accepts anywhere at McDonald’s at Helensvale counts for the purpose of changeover.

6. Relevantly, these orders further provided if NGWB failed to attend a changeover, on any one occasion, his time with Z was suspended pending trial. The Tribunal considers changeover to mean NGWB was to be present for the transition from KFLW to him and vice versa.

Issue 1: Did NGWB miss any changeovers?

1. There are six changeover dates from 19 February 2021 to 30 April 2021 where Z was to transfer to the care of NGWB. They are 19 February 2021, 5 March 2021, 19 March 2021, 2 April 2021, 9 April 2021, and 30 April 2021. Easter that year was from Friday 2 April 2021 to Monday 5 April 2021. According to the Queensland state schools calendar, term one holidays that year were from Tuesday 6 April 2021 to Sunday 18 April 2021.[3]

   [3]

2. That means Friday 2 April 2021 (Good Friday) was a normal fortnightly changeover date, the previous being 19 March 2021, and Friday 9 April 2021 was the Friday closest to the mid-way point of those holidays when Z was to be in the care of NGWB for the second half of those holidays. Regular fortnightly changeovers were due to resume on Friday 30 April 2021.

3. KFLW agrees NGWB was at changeover on 19 February 2021 and 5 March 2021 so those dates are not in contention. It seems NGWB may have been confused about some of the correct changeover dates as he claims in an e-mail exchange with KFLW the next changeover date is 16 March 2021, which KFLW clarifies as 19 March 2021 in her response.[4]

   [4] T19, page

19 March 2021

1. NGWB says he was at changeover on 19 March 2021 as he was waiting in the restaurant with his sister Y. He produced a tax invoice from McDonald’s time stamped 19 March 2021 at 16:41.[5] He said he waited there instead of in his car because on the two previous changeovers Z had refused to come to him instead sitting in KFLW’s car with the doors and windows locked. He says KFLW failed to encourage Z to go with him, so Y was there to help facilitate the changeover.

   [5] T19, page 182.

2. KFLW says NGWB was not at the changeover, albeit she said she didn’t see him there, and agrees Y was there as she and Z spent some time together at an alternate restaurant nearby. In her updated statement as part of her grounds for objecting to the interim care period granted by the department KFLW provides a detailed account of the events that day and concludes;

   “To my knowledge, and that of [Z] and [Mr Tyler], [NGWB] was not present at this changeover”.[6]

   Mr Tyler is a refence to KFLW’s partner who also provided a statement about the events of that day and says:

   “I did not see Z’s father while in the store, nor did he approach us whilst in the carpark to complete the changeover”.[7]

   He confirmed this in his signed statement dated 7 July 2021.[8]

   [6] T41, page 236.

   [7] T55, page 283.

   [8] T56, page 292.

3. Based on the above, the Tribunal finds NGWB was at changeover on 19 March 2021 as both parents agree Y was there, KFLW concludes her statement by saying ‘to my knowledge’ and just because X didn’t see NGWB in the restaurant, or its carpark, doesn’t mean he wasn’t there. It just means he didn’t see him. NGWB has explained why he was there with his sister to act as an intermediary hoping Z would spend some time with him.

2 April 2021

1. On 2 April 2021, NGWB says he walked to the restaurant that day as he lives nearby. He said he walked around the carpark from 4:48 pm to 5:02 pm and failing to see KFLW with Z he left. KFLW again says NGWB was not at the changeover, albeit she said again she didn’t see him there.

2. Q is KFLW’s mother. In her statement dated 12 June 2021 she says of this changeover:

   “[KFLW], [Z] and I went to McDonald’s in my car and parked where we could see inside McDonald’s. … We did not see [NGWB] there. If, as he later communicated to [KFLW], he actually was there he did not come out to the car nor make any contact.”[9]

   [9] T42, page 239.

3. Parking where they could see inside does not suggest an accurate assessment could be made of whether NGWB was there. KFLW provided photos said to have been taken that afternoon which confirms the Tribunal’s assessment it would not have been possible to discern with accuracy an individual in the restaurant from that view.[10] NGWB said he walked to McDonald’s that day, walked around the carpark, and didn’t see them. In his evidence he said he was looking for KFLW’s car whereas Q has clarified they arrived in her car.

   [10] Documents uploaded by KFLW on 28 March 2022.

4. At some level it seems implausible NGWB did not notice KFLW, Q, and Z in a car in the carpark even though he was not looking for Q’s car. It is also implausible they didn’t see him walking around the carpark unless the times they were there didn’t coincide with the times he was there. Perhaps not enough effort to effect changeover was made by the adults there that day and this decision does not turn on that possibility.

5. On balance the Tribunal finds NGWB was at changeover on 2 April 2021 because a different car was used, the occupants did not go inside the restaurant rather relied on visual inspection from the carpark and the possibility they missed each other.

9 April 2021

1. The changeover due on 9 April 2021 was a repeat of the events of 2 April 2021 according to both NGWB and KFLW, that is, NGWB says he was at there, and KFLW says he wasn’t albeit again she says she didn’t see him there. Not seeing him doesn’t mean he wasn’t there. KFLW agrees this was a changeover date for the second half of the school holidays as she says so in her e-mail to NGWB dated 8 April 2021.[11]

   [11] T19, page 183.

2. KFLW also says in an e-mail exchange on 8 April 2021 that Z will not be at changeover on 9 April and comments about some health issues for her.[12] That contradicts her evidence at the hearing she and Z were at changeover and NGWB was not.

   [12] T37, page 226.

3. For similar reasons to the finding for 2 April 2021, the Tribunal finds NGWB was at changeover on 9 April 2021.

30 April 2021

1. According to a diary entry made by NGWB he drove to the restaurant and arrived at 4:50 pm.[13] He says he did not buy anything as he did not go inside the restaurant although he says he did look inside. Instead, he sat in his car for a while then walked around the carpark and not seeing KFLW or Z, he left at 5:18 pm. He noted the carpark was approximately 30% full at the time.

   [13] T44, page 257.

2. KFLW recalls she attended a funeral in Brisbane that afternoon. She said a friend and Q collected Z and went to the restaurant and not seeing NGWB they left. Mr Gilmour who states he is a friend of Q provided a signed statement dated 7 July 2021 in which he says:

   “I was present with a friend, [Q], outside McDonald’s at North Helensville from 4:30 pm to 5:08 pm on Friday 30 April 2021. [Q] parked her car where we could see inside the café. [NGWB] was not visible inside or outside McDonalds at any stage during this time. [Q] went into the café at 5:00 pm to check that [NGWB] was not there. She said she did not see him.”[14]

   [14] T57, page 296.

3. For similar reasons to the finding for 2 April 2021 and 9 April 2021, the Tribunal finds NGWB was at changeover on 30 April 2021. Changeover means NGWB was to be present at McDonald’s Helensvale for the transition. Just because they did not see him there doesn’t mean he wasn’t there.

Changeover after 30 April 2021

1. After 30 April 2021 and based on the Queensland state school calendar for 2021, the Tribunal considers the dates for changeover of care to NGWB to 31 December 2021 were as follows:

Month
May	14th	28th
June[15]	11th	25th
July	2nd	23rd
August	6th	20th
September	3rd	17th	24th
October	15th	29th
November	12th	26th
December	10th	31st

[15] 16 June 2021 was Z’s birthday.

1. The changeover dates for the start of the second half of the 2021 term holidays are 9 April 2021, 2 July 2021, 24 September 2021 and 31 December 2021. NGWB seems confused about this because in his statement dated 2 July 2021, he said his time with Z includes the first week of the school holidays, which is not what the 2020 orders specify.[16] Similar confusion arises for the Term 2 school holidays that year when NGWB says there was a scheduled changeover on 9 July 2021, whereas theoretically that was a changeover to KFLW being the end of his week of school holidays not a fortnightly changeover.[17]

   [16] T51, page 276.

   [17] T62, page 309.

2. NGWB provided copies of receipts and e-mails evidencing his attendance at McDonald’s Helensvale for May 14 and 28. There is also an e-mail dated 28 May from KFLW to NGWB saying she and Z would not be there.[18]

   [18] T44, pages 258 to 262.

3. The e-mail evidence for 11 June makes it clear KFLW and Z would not be attending changeover as per the court orders. It seems KFLW had by then decided the orders had been breached and changeover had been suspended. KFLW confirms she stopped attending changeover after what she says were three non-attendances, being 19 March 2021, 2 and 9 April 2021.[19]

   [19] Affidavit of KFLW dated 29 August 2021 paragraph 10.

4. NGWB provided a receipt evidencing he was there for the 11 June changeover. He also provided an e-mail dated 16 June showing he was there presumably for Z’s birthday, which as we know the court orders are silent about him spending time with her special days. NGWB provided evidence he was at changeover on 25 June 2021.[20]

   [20] T62, page 306.

5. There is evidence of NGWB’s attendance at changeover beyond 25 June 2021. By then KFLW had decided the orders had been breached and she and Z would no longer attend changeover.[21] The Tribunal sees no point investigating changeover dates any further.

   [21] T62, page 309.

6. Having regard to the above, the Tribunal further finds NGWB did not breach the 2021 Care Orders by failing to attend a changeover.

Issue 2: Did KFLW withhold care of Z?

1. The decision as to who provides care to Z was taken out of the hands of the parents by the 2021 Care Orders. Those orders stipulate at paragraph 1(a) NGWB shall spend time with Z from 5:00 pm Friday to 5:00 pm Sunday commencing 19 February 2021 and each alternative weekend thereafter. As previously mentioned, the 2021 orders only amend paragraphs 1 and 2 of the 2020 orders which means paragraph 3 regarding Z being in NGWB’s care for the second half of each school holidays stands.

2. The 2020 orders specify Z’s older sister shall spend time with her father as per her decision or volition to do so. The 2021 orders make no similar provision in respect of Z and do not make it optional for her to spend time with her father.[22] The notes accompanying the orders make the parents legal obligations clear. They say:

   You must do everything a parenting order says. In doing so you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.

   [22] Subsequent care orders dated 6 June 2022 provide for Z to spend time with her father at her own discretion, which is not relevant to this decision.

3. KFLW says Z refused to go with her father. Z was 12 at the time. If the court had wanted care with her father to be optional at her discretion the orders would have said so, as they did for her older sister in the 2020 orders. It was not her decision nor that of her parents’ who was to care for her. The court had decided that in their place, and the obligation was on both parents equally to implement those orders.

4. In his affidavit dated 4 March 2021, NGWB sets out in Part D his reasoning for his claim care of Z was being withheld.[23] He says KFLW refused to unlock the car preventing him from talking to Z other than through the car window which had been wound down about 2 centimetres. He claims Z said to him: ‘I’m not going with you, and you can’t make me because mum said so.’ He further states KFLW said to him Z does not have to go with him, and she will not be encouraging her to do so. That exchange was said to be on 19 February 2021 and the affidavit goes into further detail reinforcing his assertions.

   [23] T13.

5. KFLW does not deny the assertions made by NGWB in his affidavit. An annexure to that submission is an e-mail exchange between the parents that afternoon in which she says:

   “We are leaving. Z has made it clear she is refusing to go with you. I was able to get her in the car to come here. I cannot make her get out of the car. I am not sure how we approach this. We need to find a way to move forward with Z’s best interests in heart.”[24]

   The last sentence suggests she is open to finding a way forward. The question is what she does about that.

   [24] T13, page 150.

6. KFLW was asked at the hearing what positive action including reasonable steps she took to ensure the 2021 order was put into effect. She said the exchange was very tense on 19 February 2021 and she did all she could [to make the changeover happen] and directed the Tribunal to the unofficial transcript of the exchange.[25] The Tribunal has read that transcript and found little if anything by way of positive action let alone reasonable steps taken by KFLW to ensure the orders were put into effect. It is not sufficient for her to bring Z to the changeover. She must also say and do things to make the changeover happen. Locking the doors and windows is not a positive step especially since this was the first changeover since the 2021 Care Orders were made.

   [25] T7.

7. The transcript includes an unpleasant exchange between the parents where it appears NGWB used foul language against KFLW in front of Z. That is also not positive action on his part to ensure the 2021 Care Orders were put into effect. However, the remainder of the exchange is between Z and her father with him pleading for her to come with him and making various concessions to encourage her to do so, all to no avail. To the extent the transcript is an accurate record of the exchange and apart from the unnecessary vulgar language used by NGWB at the outset, he clearly does positively encourage Z to go with him, something KFLW doesn’t do.

8. The Tribunal sees no utility is going through the exchange on 5 March 2021 in detail because the evidence of NGWB is that exchange was largely a repeat of the changeover on 19 February 2021.

9. KFLW says she encouraged Z to discuss with her father the issues she says she has with him. The e-mail exchanges between the parents support that assertion and no doubt NGWB would have welcomed that discussion with Z however uncomfortable it may have been for him. Z was 12 at the time, which is not to say she was incapable of knowing her own mind however her mother, being her primary carer, was best placed to present a balanced assessment of the situation to her so that she was encouraged to spend time with her father as the court orders directed. There is no evidence she did that.

1. The Tribunal finds KFLW withheld care of Z from her father as required by the 2021 orders because any efforts she made to encourage Z to spend time with her father were insufficient in the circumstances.

Issue 3: Did NGWB take reasonable action to enforce the care orders?

1. If a person, NGWB in this case, who has reduced care of a child has taken reasonable action to ensure the care arrangement is complied with, an interim care determination can be made.[26] The maximum interim period is the later of the end of the period of 52 weeks starting on the day the court order first takes effect or the end of the period of 26 weeks starting on the change of care day. In each case that is 19 February 2021 because the change of care was to commence that day and KFLW withheld care that day, so care of Z reverted to 100% to her and 0% to NGWB.

   [26] S 51(1) of the Child Support (Assessment) Act 1989.

2. The Registrar discusses the term reasonable action at paragraph 77 of the SFIC, which says:

   “‘The term “reasonable action” is not defined in the Assessment Act,[27] however the Guide provides the following examples of reasonable action at Chapter 2.2.4:[28]

   ·        negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement,

   ·        making and/or attending an appointment at a Family Relationship Centre (FRC) or other dispute resolution service with the aim of ensuring the care arrangement is adhered to,

   ·        seeking or obtaining legal advice regarding the making of a court order,

   ·        filing an application to a court to have an order made or enforced,

   ·        attending a hearing at court to seek an order to be made or enforced, or

   ·        notifying the police that the child has been taken without consent.”

   [27] The Child Support Assessment Act 1989

   [28] The Child Support Guide.

3. NGWB filed a contravention application with the then Federal Circuit Court of Australia on 10 March 2021.[29] In it he provides a copy of the 2021 Care Orders and sets out in detail the chain of events as he recalls them on 19 February 2021, which has been discussed above. NGWB later withdrew the application he says to facilitate court proceedings whereas KFLW says this is proof the application was fallacious. Nonetheless the application was lodged on 10 March 2021.

   [29] T8.

4. Prior to and after that date there were numerous e-mail and text message exchanges between the parents endeavouring and failing to resolve the changeover issue.

5. The Tribunal finds NGWB took reasonable action to enforce the 2021 Care Orders because of the contravention application he lodged on 10 March 2021 and the reasons for it later being withdrawn as not relevant to this decision, and the e-mail and text message exchanges between the parents from February to July 2021.

Pattern of care

1. The Registrar says in paragraph 47 of the SFIC the start date of the pattern of care in this case is 11 February 2021, being the date of the 2021 care orders. The Tribunal disagrees and finds the start date of the pattern of care is 19 February 2021 because paragraph 1(a) of the orders uses the words ‘commencing on 19 February 2021’. That pattern of care is 78% to the mother and 22% to the father as per those orders and begins and ends that day.

2. Polec & Staker & Anor[30] deals with the situation where care cannot be readily determined by overnight care. It has no application in this case because the actual care of Z can be so determined by the number of nights she was in the care of each of her parents, that is, she had no care at all, overnight or otherwise, with her father and only overnight care provided by her mother.

   [30] [2011] FMCAfam 959 at [56].

3. It is therefore uncontroversial the actual care from 19 February 2021, being the start of the care orders and the first changeover date, remained as 100% to KFLW and 0% to NGWB.[31] Policy suggests a care period is 12 months unless there are reasons to do otherwise.[32] The Tribunal sees no reason to diverge from policy and finds the care period is from 19 February 2021, being the commencement date of the care orders, to 18 February 2022, being 12 months after the care changed.

   [31] Section 50(2)-(3) of the Child Support (Assessment) Act 1989 (“Assessment Act”).

   [32] Section 50 of the Assessment Act.

4. That being the case, the care period to be assessed is 19 February 2021 to 18 February 2022.

Interim care period

1. Based on the findings above, the final issue to be decided in this case is whether an interim care period should apply. The 2021 Care Orders clearly establish NGWB was to have 22% care of Z from 19 February 2021 and that remained as 0% care that day when KFLW first withheld care.

2. For NGWB, the maximum interim period available begins on the day the care changed, 19 February 2021, and ends on the later of 52 weeks from the date of the applicable court orders, or 26 weeks from the day the care changed.[33] Those date are 9 February 2022 and 20 August 2021 respectively.

   [33] Section 50 of the Assessment Act.

3. The Tribunal has already found NGWB took reasonable action to ensure the care arrangement was complied with and no evidence has been provided to suggest special circumstances exist that weigh in favour of an interim care determination not being made.

4. For the parent with reduced care, that is, NGWB, the interim care period begins on the date the change of care was notified to the Registrar if more than 28 days from the date of change. For the parent with increased care, that is, KFLW, the interim care period begins on the date the care changed. That date is 19 February 2021 in both cases because on 25 February 2021, NGWB notified the Registrar of the change to 78% to KFLW and 22% to NGWB by lodging a copy of the 2021 care orders and on 10 March 2021 he lodged the contravention application notifying the actual care was 100% to KFLW and 0% to NGWB, both of which are within 28 days of the relevant change of care.

5. The Tribunal finds an interim care period of 52 weeks should apply from 19 February 2019 with effect from that date for both parents.

DECISION

1. The decision under review is varied such that an interim care period is to be applied from 19 February 2021 to 9 February 2022 with effect from 19 February 2021 for both parents and with the percentage of care of Z reflected as 78% to KFLW and 22% to NGWB.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson.

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

Associate

Dated: 19 March 2023

Date of hearing:

16 January 2023

Solicitor for the Respondent:

Respondent:

Ms Jasmine Forsyth

Child Support Registrar