PBVS and Child Support Registrar (Child support second review)

PBVS and Child Support Registrar (Child support second review) [2022] AATA 74 (20 January 2022)
Division: GENERAL DIVISION
File Number(s): 2020/7984 & 2021/1651
Re:PBVS & NPPT
APPLICANT

AndChild Support Registrar
RESPONDENT

AndXPVK
OTHER PARTY

DECISION
Tribunal:Senior Member K Millar

Date: 20 January 2022
Place:Adelaide

The decision in relation to J is set aside and substituted with a decision that the existing percentage of care determination is revoked on 2 October 2018 and a new determination made on 3 October 2018 that the applicant has 0% care of J.
The decision in relation to O is set aside and substituted with a decision that a determination that the applicant has 50% care of O until 12 November 2018, and a determination that he has 0% care from 13 November 2018. The decision to decline to make a determination under s 95N(2) of the Child Support (Registration and Collection) Act 1988 is affirmed. This means the date of effect of the decision in relation to O is 26 October 2020.
.................[Sgnd].........................
Senior Member K Millar
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 – percentage of care – change in percentage of care – whether percentage of care changed – whether care arrangement is complied with – whether reasonable action taken to obtain care of the children – decision under review partly set aside
Legislation
Administrative Appeals Tribunal Act 1975
A New Tax System (Family Assistance) Act 1999
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Law Act 1975
Cases
Stevenson v Hughes [1993] FamCA 14
Francis & Sabin [2008] FMCAfam 1410
Secondary Materials
Organisations (Definition of Family Counsellor) Designation 1 July 2019 – 30 June 2024 (Updated 7 November 2019) (ag.gov.au)
REASONS FOR DECISION
Senior Member K Millar
20 January 2022
BACKGROUND

PBVS and NPPT[1] (“Mr X”) and XPVK (“Ms Y”) are the parents of J, who is now 19 years of age, and O who is now 14. In accordance with Court orders made 25 November 2012 Mr X and Ms Y had 50% shared care of the children.
[1] PBVS and NPPT are the same Applicant, who will be referred to singularly throughout the decision as “Mr X”.
On 23 October 2018, Ms Y contacted the Child Support Agency informing them that the care of the children had changed, and she had 100% care of both children from 23 September 2018. Mr X disputed the care change and stated that Ms Y was withholding care of the children, and he had taken reasonable action to obtain care of the children.
An element of the formula used to decide how much child support a parent is required to pay is the percentage of care each parent has of each child. If the percentage of care a parent has changes, the legislation requires the existing percentage of care determination to be revoked and a new determination to be made. However, the legislation also allows for an “interim period” during which the amount of care is taken to remain the same if the person is taking reasonable action to ensure the care arrangement is complied with.
The parents agree that the percentage of care of the children has changed. The issues are the date the care changed, whether an interim period should apply, and the date from which a new care determination should apply.
As the decisions about the care of J and the care of O were made separately, and Mr X made a later application to review the decision of O, if Mr X is successful there is also an issue to be decided about the date of effect of any decision about the care of O.
HISTORY OF THE PROCEEDINGS
This matter has had an unfortunate history. The decision about the care of both children was first made on 26 March 2019 by a delegate of the Child Support Registrar who decided Ms Y had 100% care of J from 23 September 2018. The delegate found an interim care period applied to O from 23 September 2018 to 17 January 2019 with 50% care to each parent in that period. From 18 January 2019, O was recorded as being in the care of Ms Y 100% of the time.
Mr Y objected to these decisions. On internal review of the decision on 29 May 2019 a decision was made that only applied to the older child J. This decision disallowed Mr Y’s objection and J continued to be recorded as being in Ms Y’s care 100% of the time from 23 September 2018. The care of the younger child O was not considered in this decision.
Mr X applied to the Social Security and Child Support Division (SSCSD) of this Tribunal seeking a review of the decision about the percentage of care of both children. On reviewing the decision, the SSCSD found it only had jurisdiction to review the decision about J as the internal review had not addressed the care of O. On 10 October 2019, the SSCSD affirmed the decision to record J as being in Ms Y’s care 100% of the time from 24 September 2018.
An internal review decision was made in relation to O on 10 October 2019, the same day as the SSCSD decision in relation to J. The decision in relation to O was partly set aside, and a decision made that O was in the care of Ms Y 100% of the time from 23 September 2018. Mr X applied for a review of this decision to the SSCSD. The SSCSD set aside the decision and found Ms Y had 100% care of O from 3 October 2018. As the internal review decision was made on 10 October 2019, and Mr X did not apply to the SSCSD for a review until 26 October 2020, in accordance with s 95N of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act), the Tribunal found that the date of effect of the decision was the date on which the application was made.
Mr X is understandably aggrieved that the decision about the care of each child had been made separately. The applications to review the decision about the percentage of care of J and the percentage of care of O were combined in this matter, and the Tribunal has reviewed both decisions. With the consent of the parties, information provided in relation to the care of each child was admitted for the other child. This means the Tribunal had regard to all admissible documents in making a decision.
ADMISSIBILITY OF EVIDENCE
Included in the documents provided by the Registrar is a letter from Relationships Australia South Australia to Mr X and a copy of the same letter to the child J with a covering note. The Registrar raised the admissibility of these documents.
Section 10E of the Family Law Act 1975 (Family Law Act) states that:
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b)a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
…
Family counselling is defined in s 10B of the Family Law Act as a process in which a family counsellor helps one or more persons (including children) who are affected, or likely to be affected, by separation and divorce to deal with personal and interpersonal issues.
The term “family counsellor” has the meaning given by s 10C as including a person who is authorised to act on behalf of an organisation designated by the Minister. The Minister has published a list which specifies Relationships Australia South Australia Limited (T/a Relationships Australia South Australia) as an organisation that is a family counsellor.[2]
[2] Organisations (Definition of Family Counsellor) Designation 1 July 2019 – 30 June 2024 (Updated 7 November 2019) (ag.gov.au).
The Tribunal has the power to take evidence under s 40(3) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).
The Tribunal considers the letters from Relationships Australia South Australia are inadmissible to the extent that they are evidence of anything said or any admissions made in the company of the family counsellor.
The Tribunal does not consider these are inadmissible to show Mr X and the child J attended family counselling with Relationships Australia.
Mr X sought to have before the Tribunal text messages between himself and Ms Y’s husband. The Tribunal did not consider these relate to the issues before it and did not have further regard to these messages.
EVIDENCE
The Tribunal has before it documents provided by the Registrar and information from the parties. Included among these are various text messages between the parties and between Mr X and the children.
These texts messages are extracts and are not a complete record. Ms Y said that before the hearing she went through the children’s phones and took copies of other parts of conversations. She decided not to tender these copies.
While the text messages assist in establishing what occurred at particular dates, the Tribunal is aware these messages can be taken out of context when the whole conversation is not provided. It has taken this into account when assessing the information before it. Messages provided were not in date order. The day of the week, date and month are included, however the year of the message is not. The Tribunal is not willing to rely on text messages being on a particular date unless the day of the week and date align with the calendar of that year. It is not prepared to find that messages were sent on a particular date where no date appears on the message.
Both parties have involved the children in this dispute. It is apparent Ms Y had the younger child O read through text exchanges, which she admits were toxic, between herself and Mr X. Ms Y states that Mr X has sent a copy of part of the documents provided by the Registrar to one of the children. Both have involved the children in discussions about the dispute between the parents. Neither course of action paints the parties in a good light and is not in the best interests of the children.
LEGISLATION
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (the Act) addresses the percentage of care, which is used to decide a person’s cost percentage.
There are a number of pathways to address a percentage of care determination. The parents agree that that the circumstances in this case are that Mr X had care of the children, and then from a disputed date Mr X had no overnight care of the children. The previous care of the children occurred under a Court order that provided that each parent was to have 50% care. This level of care is at least regular care.[3]
[3] Section 5(2) of the Act defines regular care as at least 14% but less than 35% during a care period.
Under s 54G of the Act if:
·Mr X was to have at least regular care of the children, and
·He has had no care of the children during a care period under a determination made under s 50 despite Ms Y making the children available to him;
·A determination of Ms Y’s percentage of care has been made under s 50;
·Ms Y notifies the Registrar that Mr X has had no care of the children in a period that is reasonable in the circumstances;
then the care determination must be revoked at the end of the day before the care changed.
Under s 49 of the Act, if the determination is revoked under s 54G and Mr X has no care of the children, the Registrar must determine that the new percentage of care for the care period is 0% unless reasonable action is taken in accordance with s 51 to ensure a care arrangement is complied with.
Section 51 of the Act, which addresses an interim period, applies if:
·the Registrar is required to decide a person’s percentage of care,
·a care arrangement[4] applies in relation to the child(ren),
·the Registrar is satisfied that the care that is occurring is less than the care the person would have under the care arrangement and
·the person who has reduced care is taking reasonable action to ensure that the care arrangement is complied with.
[4] Under s 5 of the Act, the term “care arrangement” has the same meaning as in A New Tax System (Family Assistance) Act 1999. The definition of care arrangement in s 3 of that Act includes a parenting order within the meaning of s 64B of the Family Law Act 1975. An order of this nature was made by the Court on 25 November 2012.
If s 51 applies, the Registrar must determine two percentages of care (s 51(2)). The first percentage of care is the percentage of care the person was to have under the care arrangement (s 51(3)) and the second is 0% where s 49 applies (s 51(4)).
A single percentage of care may apply if there are special circumstances in relation to a child (s 51(5) of the Act). Where s 49 applies, this is 0% (s 51(6) of the Act).
The length of the interim period is governed by s 53A of the Act. An interim period starts on the change of care day and ends in accordance with s 53A(1)(b):
·Either at the end of 26 weeks or the end of 14 weeks from the date Ms Y has been continuously taking reasonable action to participate in family dispute resolution if this ends before the end of the 26-week period and she takes reasonable action throughout the 14-week period (s 53A Table Item 2); or
·When Mr X stops taking reasonable action to ensure the care arrangement is complied with; or
·The day before either the care arrangements ceases or the day on which a new care arrangement commences.
Ms Y will have taken reasonable action to participate in family dispute resolution for the purpose of s 53A Table Item 2, if she initiates and participates in family dispute resolution or participates family dispute resolution initiated by Mr X. The term “family dispute resolution” is defined in s 5 of the Act as the same as the meaning in s 10F of the Family Law Act.
If two percentages of care are determined under s 51 of the Act, and the determinations are not suspended under 54FA(2) or 54HA(2) of the Act, then the first percentage of care applies to each day in the child support period that occurs in the interim period, and the second percentage of care applies to each day that does not occur in the interim period (s 54C).
In summary as ss 54FA and 54HA do not apply in this case, this means that if there is an interim period, the original care determination that the children are in the 50% care of Mr X applies until the end of the interim period, when the actual care of 0% applies.
ISSUES
In issue in this matter is, for each child:
·Whether the care determination for either or both children should be revoked, and if so from what date?
·Does an interim care period apply, and if so for how long?
·What are the new care determinations?
In practical terms, the matters to be resolved are:
·     Was there a change to the care?
·     When did this happen?
·     Did Ms Y make the children available?
·     Were there special circumstances in relation to the children?
·     What action did Mr X take?
·     Was this ‘reasonable action’ to ensure that the care arrangement is complied with?
·     Did Ms Y participate in family dispute resolution?
·     What is the date of effect of the decision?
The answers to these questions will resolve whether the existing percentage of care should or must be revoked, and if so whether the existing percentage of care should apply for an interim period. It will also resolve whether a successful outcome for Mr X has any practical benefit to him.
Was there a change to the care of the children?
The existing percentage of care determination was that Mr X has 49% care and Ms Y has 51% care in accordance with orders of the Court. This is how the Registrar records 50% care.
The parties agree that there was a change in care for the children after a dispute at Mr X’s house. J called his mother to ask her to collect them, and Mr X says the children told him they were going for a walk. Ms Y collected the children from near Mr X’s house.
It is common ground that Mr X has not had any overnight care of either child since this time, and there has been a change to the care of both children where he now has 0% care.
When did this happen?
When notifying the Child Support Agency of the change of care on 23 October 2018, Ms Y said the change of care occurred on 23 September 2018.
Mr X says the change in care occurred on 3 October 2018.
The parties agreed that the change occurred in the school holidays. Both children went to Mr X on a Monday, and the change occurred on a Wednesday. Mr X states it was in the first week of the school holidays.
The 2018 calendar shows that 3 October fell on a Wednesday, and that 23 September is a Sunday. A calendar of school holidays in 2018 shows that school holidays were Saturday 29 September to Sunday 14 October. Wednesday 3 October is the in first week of the school holidays.
Mr X said the change of care date of 3 October 2018 is supported by a text from him to the child J stating “that’s a long walk”. The Tribunal could not locate this text, however, there are texts between J and Ms Y dated 3 October stating J had told his father they were going for a walk and Ms Y replying that she was on her way. This supports a change in the care on 3 October 2018.
A statutory declaration from Mr X’s sister states that she received a text from Ms Y on 3 October 2018 saying the boys had fallen out with Mr X and had asked her to pick them up that afternoon.
Ms Y states she cannot remember when the care changed. She had previously provided a calendar of care on which she said she highlighted days the children were with her. This includes from 23 September 2018.
Ms Y provided a text in support of her sole care of the children that appears to be from her mother, which states she has had care of the children from early October. Another text Ms Y provided in support of her sole care of the children also states she had the care of the children from early October.
The Tribunal finds that apart from the calendar provided by Ms Y, the information before it supports the change of care day being 3 October 2018, and the Tribunal finds the care of the children changed on 3 October 2018.
Did Ms Y make the children available?
If there has been a care determination made and the actual care is no longer the same as the care determination, the Tribunal must first consider if the existing care determination should be revoked under s 54G. Section 54G(1) sets out the requirements for s 54G to apply. Of these requirements, sub-ss 54G(1)(a),(c) and (d) are met. Section 54G(1)(b) requires that the person has no care of the child, or less than regular care despite the other person making the children available.
Mr X contends Ms Y did not make the children available. He states the children were withheld from school and then Ms Y was present when he tried to take the care of O in accordance with the Court orders.
Mr X cites caselaw in support of the contention that the parent with increased care cannot rely on the child not wanting to go. However, the cases[5] he cites are actions for contravention of order of the Court under the Family Law Act 1975. The test for contravention in s 70NAC of that Act is different. It applies if a person is bound by an order and intentionally fails to comply with the order or makes no reasonable attempt to comply with the order. Mr X submits that Ms Y would be subject to multiple contravention orders, but did not apply for contravention orders. He said on seeking legal advice he was told he would be unlikely to be successful in obtaining orders due to the age of his oldest child and the unlikelihood of a Court being willing to separate siblings.
[5] Stevenson v Hughes [1993] FamCA 14, and Francis & Sabin [2008] FMCAfam 1410.

Mr X states the children were withheld from school when he was due to take the care of the children, and on another occasion Ms Y was at the school when he arrived. He provided a text from Ms Y threatening to call the police if he tried to take the care of O in accordance with the Court orders and asking him not to kidnap O. Ms Y demands that Mr X contact her before care can resume.
Before 3 October 2018, Mr X said the care arrangement was that he collected the children on Monday after school for his week of care.
The first care event after 3 October was due on 15 October 2018. Mr X says the children were kept home by Ms Y and he could not collect them from school.
In emails to O’s school dated 8 and 11 November 2018,[6] Mr X states that O was withheld from school on the preceding Monday on the day Mr X was expecting to collect him. The Tribunal finds the preceding Monday was 29 October 2018, which is consistent with Mr X’s account in the email that he had ignored breaches of the order for a couple of weeks. There is no reference to 15 October 2018, and the Tribunal finds Mr X did not attempt to take the care of the children on 15 October 2018.
[6] 2021/1651, T23, pp 155 – 156.
The next time he was due to have the care of the children was Monday 29 October 2018. In his email to the school dated 8 November 2018,[7] Mr X refers to a discussion with O’s teacher about him being withheld from school. His later email of 11 November 2018 states the previous fortnight Ms Y had kept O home from school so he could not collect O.[8] Ms Y says the children were distressed, and she may have allowed them to stay at home.
[7] 2021/1651, T23, p 156.
[8] 2021/1651, T23, p 155.
The Tribunal finds the occasion O was not at school for Mr O to collect him was 29 October 2018.
The next time Mr X was due to take the care of the children was 21 November 2018.
Mr X provided a copy of an email to his employer dated 11 November 2018[9] asking for the following day (Monday 12 November 2018) off work to try and collect O from school. He emailed the school to arrange to collect O early. In the reply, O’s teacher said that will be arranged. Mr X says that when he arrived early to collect O, Ms Y was already at the school.
[9] 2021/1651, T30, pp168-169.
O did not go with Mr X. Ms Y says this is because O said he did not want to go, and that she had contacted the school and the police because O was distressed. She said the police said they would only attend if O was distressed and did not want to go. Ms Y says that the teacher told O that Mr X was there and asked if he wanted to go with him, and O said no. Mr X left and she stayed at school to take O home. She said Mr Y did not attempt to collect J from his school.
In his later email to the principal, Mr X expresses his concern that Ms Y was at the school when he arrived, and he thought she had been given sufficient notice to convince O not to come with him or even speak to him.[10]
[10] Ibid.
The Tribunal finds that care did not occur on 12 November 2018 because O did not want to attend. Given Mr X acknowledges O did not want to come with him or speak to him, the Tribunal finds that the school staff spoke to O and not Ms Y. It further finds O told the school staff that he did not want to go with Mr X.
In an email to the school dated 4 December 2018 addressed to the Acting Principal of O’s school, Mr X states Ms Y has told him the school will notify her and the police will be called if he arrives to collect O.[11]
[11] 2021/1651, T30, p 171.
There is no record of Mr X attempting to take the care of O or J in accordance with the previous pattern of care since 12 November 2018.
On being asked if she had made the children available, Ms Y said that since the children left Mr X’s care she has tried to get the children to contact Mr X, and arranged for them to see a counsellor. She states she encouraged them to see him at Christmas, but he said it was too expensive, and she tried to get them to see him on his birthday, but he did not arrive. She said she constantly texted Mr X to ask him to have contact with the children. She said she arranged for the children to see the counsellor Ms P who organised for them to have dinner with Mr X near her house so they could leave if they felt uncomfortable.
The documents provided to the Registrar contain copies of texts from Ms Y to Mr X stating he should call the boys. On Friday 26 October 2018, Ms Y asks if he wants to take the boys home on Monday, and says she wants them to go with him and can help him. This appears supportive of Mr X’s contact with the children.
This can be contrasted with later texts dated 11 November 2018 stating “please don’t try to kidnap O” and “The police will be called if you try to take [O] tomorrow … I’ve spoken to the school and they will call me and then the police … [O] does not want to come to you without [J]. Just organise a time to catch up and don’t stress out [O].”
Ms Y was asked why she told Mr X that if he wanted to see the children, he would have to go through her given there are orders in place. She said this was a desperate threat to try and get him to talk to the children. She said she “had all the answers” about why they did not want to go with Mr X due to the disputes about gaming and the screaming. She said the children were so troubled, and it would have been easy for him to talk to her, and she got frustrated. She said she would not have purposefully withheld them but may have threatened to do so to try and get him to come to her house. Ms Y said she didn’t think the children were speaking to him, and the relationship between her and Mr X was so toxic, she sought her own counselling because he would not speak to her. She said he stonewalled her for four years. She said she found it frustrating and threatened him. Ms Y said she was not asked by the children to facilitate contact such as taking them to Mr X and she would not have refused if they had requested this.
There are text exchanges that show she supports Mr X having contact with the children, such as on Christmas Day 2018,[12] and on his birthday on 5 January 2019.[13] Further texts from Ms Y to Mr X dated 27 January 2019 and 30 January 2019 ask if he wants to have the children that weekend.[14] She says Mr X did not turn up when he had arranged to see the children.
[12] 2020/7984 T99, p 335.
[13] 2020/7984 T99, p 336.
[14] 2020/7984, T99, pp 337 – 338.
Mr X did not dispute this occurred on his birthday on 5 January 2019, however said this was after J did not respond to his messages asking him to confirm the arrangements. He said the offer for him to see them on Christmas was illusory as Ms Y took the children to her mother which was a considerable distance away.
Ms P, a registered psychologist, gave evidence of the sessions she had with the children on 15 November 2018, 28 November 2018, 5 December 2018, 13 December 2018, and 9 January 2019. She said she recalled the detail of the session as it was unusual that a parent was trying to encourage contact between the children and the other parents. She states Ms Y supported contact between Mr X and the children.
The Tribunal finds that Ms Y made efforts for Mr X to have contact with the children but made this conditional on him first contacting her which is not what is required by the orders. She did not encourage resuming overnight care and was encouraging limited contact such as dinner. There are texts that state he could see the children if she was present, and other texts threatening to call the police if he attempted to resume care of the children.
However, this matter relates to teenagers, not small children. The view of the children on where they want to be and their ability to choose must be considered. J and O were able to make arrangements directly with Mr X when they chose, and this is shown by copies of text messages provided by Mr X. Texts between O and Mr X indicate he did not want to stay with Mr X unless J was present. The Tribunal accepts that O was asked by his teachers if he wanted to go with Mr X and he said he did not. Both children had access to phones to message Mr X and communicated with him by text and phone.
While the conduct of Ms Y was not ideal, the Tribunal finds Ms Y made the children available and they were able to make arrangements with Mr X themselves.
This means that s 54G applies, and the care determination must be revoked the day before the change in care. This is 2 October 2018.
Are there special circumstances in relation to the children?
Section 51(5) of the Act allows a single determination of the percentage of care if special circumstances exist in relation to the children.
The term “special circumstances” is not defined in the Act. The Child Support Guide sets out a series of examples such as:
·     violence towards the child;
· exposing the child to family violence (within the meaning of section 4AB of the Family Law Act);
·     violence towards the person with increased care;
·     directly involving the child in a criminal act;
·     exposing the child to alcohol, drugs or substance abuse;
·     substantially failing to comply with legal schooling requirements; and/or
·     neglecting the child's basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.
As pointed out by the Registrar, disputation as a result of the separation of a person’s parents could not be seen as special circumstances. In the view of the Tribunal, nor could the ordinary development of the children over time.
In this case O has a diagnosis of autism, however the Tribunal does not consider this means that there are special circumstances in this case. The Tribunal finds there are no special circumstances that would allow single percentage of care to apply if an interim period otherwise applies.
What action did Mr X take to ensure that the care arrangement is complied with?
Mr X states he was conversing with the children by text and attempted to have contact with the children. He says he contacted the Legal Services Commission and made appointments with Relationships Australia.
Mr X states he contacted Legal Services Commission in early November regarding a contravention order. There is no record of this contact.
A text message provided by Mr X shows Relationships Australia tried to contact him on 12 November 2018, and on 29 November 2018 Relationships Australia sent a text confirming appointments of 21 January 2019, 4 February 2019 and 21 February 2019. A letter from Relationships Australia shows he attended counselling sessions with the child J on 21 January 2019, 4 February 2019 and 21 February 2019.[15]
[15] Exhibit A11.
Ms Y provided a letter dated 13 November 2018,[16] which had a handwritten annotation stating it was emailed to Mr X but was blocked. This states that his conduct including his verbal abuse, lack of interest in why the children do not want to see him and ignoring their wishes, including arriving at O’s school trying to take him into his care, has upset and frightened O and caused distress to J. Ms Y proposes that they put time with the children on hold until further notice so “we can look at how to repair the relationship between you and them”. It states she is willing to do whatever she can to support that process.
[16] 2021/1651, T29, p 166.
A letter from the Adelaide Legal Outreach Service stated Mr X attended for an appointment on 3 April 2019. He provided a letter from the Legal Services Commission dated 19 November 2020 stating that M X was given telephone advice on 9 April 2019, 4 July 2019 and 19 November 2020.[17]
[17] Exhibit A8.
Mr X tried to make special arrangements to pick O up from school on 29 October 2018, however contact did not occur.
Action in relation to child J
Ms Y states Mr X did not contact J for 6 weeks after J left his care. There is a text from J to Mr X stating that it took 6 weeks for Mr X to contact them.[18]
[18] Exhibit A1.
Mr X provided text messages between himself and J dated 4 November 2018, with Mr X asking if he could call J.[19] There is a message asking if they can catch up on 27 or 28 November 2018.[20]
[19] 2020/7984. T98, p 319
[20] 202/7984, T98, p 320.
The Tribunal finds that after J left his care on 3 October 2018, Mr X did not have contact with J for approximately 4 weeks.
Mr X engaged with Relationships Australia to obtain counselling for himself and J. The content of those sessions as evidence of anything said or admissions made are not admissible in this matter.
Mr X states information on mediation was provided to Ms Y. In support of this contention, he included an email from him to the family counsellor at Relationships Australia[21] stating he was expecting to receive information on mediation in the post, and enquiring whether information on mediation has been sent to Ms Y. The email states that if it has not been sent, could it please be sent with a copy to him. Ms Y states she did not receive any information on mediation.
[21] 2020/7984, T58, p 231
What Mr X did not do was to have a discussion with Ms Y about seeing the children. He told the previous Tribunal contact with her is detrimental to his mental health.[22]
Action in relation to child O
[22] 2020/7984, T2, p 19
Text messages between Mr X and O that have a date that can be matched against a 2018 calendar, showing that on 26 October 2018 Mr X sent a message to O asking if he could call him. O replied that he is only happy to talk by text.
On 28 October 2018 Mr X contacted O and reminded him to go to OOSHC as usual. Any response from O is not included. There is a further series of texts between 4 – 9 November 2018 from Mr X asking if he can call O and asking for a response to his messages.
The Tribunal finds O left Mr X’s care on 3 October 2018. The Tribunal finds there was no action to care on 15 October 2018. O did not attend school on 29 October 2018, and care did not occur. On 12 November 2018 Mr X attempted to collect O from school however O did not want to go with him.
In the same week Mr X contacted Relationships Australia. The counselling sessions were attended by Mr X and J, and there is no mention of O attending. Documented contact with legal services commences on 3 April 2019.
The Tribunal finds Mr X‘s actions in relation to O were to send texts to encourage O to come into his care. He did not seek legal advice until 3 April 2019.
Was this reasonable action?
The legislation asks whether reasonable action taken has been taken to ensure the care arrangement is complied with. It does not require all possible action to have been taken.
In this case, relevant factors to be taken into consideration about whether the action taken was reasonable are the ages of the children, the circumstances in which the care ceased, the relationship between the parent and the child, the views of the children and the special needs of O. The Tribunal has considered each child individually in looking at whether reasonable action was taken in relation to each child.
Reasonable action for J
The older child J was nearly 17 at the time. The views of a child of this age carry significant weight, and a child of this age can be expected to stay where they want to be.
Mr X did not contact Ms Y about the care arrangements as he states contact with her is detrimental to his mental health.
Mr X was in contact with J from 4 November 2018, approximately 4 weeks after J left his care. The question is whether it was reasonable to wait for this period before taking any action to contact him. This was important to J as shown by his text to Mr X which refers to a lack of contact for 6 weeks. While this is more likely to be 4 weeks, this was significant to J. The delay in contacting J is not reasonable.
Mr X attempted to communicate J by text and then arranged and attended counselling session with J with a focus on rebuilding their relationship. The counselling was with Relationships Australia, which is the recognised organisation for providing counselling in relation to family disputes.
Ms Y states Mr X did not attempt to collect J from school on three occasions. This encompasses the care events due to take place on 15 and 29 October and 1 November 2018. If this had occurred, as suggested by Mr X, the Tribunal considers there would have been text messages reflecting this arrangement provided by Mr X. It is not satisfied he attempted to collect J on these dates.
With a teenager, it may be reasonable to wait for a short period where there have been disagreements to allow each person to cool down. It does not extend to not attempting to contact the child for 4 weeks. It was approximately 6 weeks before Mr X attempted to arrange family dispute resolution. J notes the delay in Mr X contacting him in his reply to the messages on 5 November 2018, J states “Hey dad it took 6 weeks for you to contact us …”.[23]
[23] Exhibit A1.
In the circumstances of this case where the children left his care after a dispute and with no discussion with Mr X, and where the delay in contacting him has been of concern to J, the Tribunal does not consider contacting him 4 weeks after he left his care as taking reasonable action.
Mr X then commenced taking reasonable action when he then arranged for counselling sessions to repair his relationship with J. As a child of J’s age will generally determine where he will spend his time, an attempt to resolve issues that prevent this from occurring is reasonable.
There is no provision in the legislation for circumstances where the person with reduced care does not take reasonable action to ensure a care arrangement is complied with, and then commences taking reasonable action. This is because once a determination of actual care has been made, it cannot be revoked and replaced unless there is a change to the actual care.
The Tribunal finds Mr X has not taken reasonable action to ensure the care arrangement with J was complied with.
Reasonable action for O
Mr X attempted to take the care of O on 29 October and 12 November. O did not want to go with him. O turned 14 the day after he left Mr X’s care. Mr X contacted O to encourage him to attend care, and made arrangements with the school to collect O. The Tribunal finds this was reasonable action to ensure the care arrangement is complied with.
While Mr X is to be commended for attempting to contact O and to see him with J for dinner, given the age of O the action that is required by this provision is action to ensure the care arrangement is complied with. In this case this is 50% care. Mr X’s last attempt to ensure the care arrangement is complied with occurred on 12 November 2018, and he has taken reasonable action to ensure the care arrangement was complied with up to this date.
Did Ms Y participate in family dispute resolution?
The term “family dispute resolution” is defined in s 5 of the Act as the same as the meaning in s 10F of the Family Law Act. In the Family Law Act, family dispute resolution is a process other than a judicial process in which a family dispute resolution practitioner helps people affected or likely to be affected by separation or divorce to resolve some or all of their disputes with each other or helps people who may apply for a parenting order to resolve some or all of their disputes with each other relating to the care of children and in which the practitioner is independent of all the parties. The term family dispute practitioner is defined in s 10G of the Family Law Act as outlined above.
Ms Y took the children to Ms P, who reportedly also saw Ms Y. Ms P is not a family dispute resolution practitioner within the meaning of the Family Law Act. Ms Y did not participate in the sessions with Relationships Australia and has not participated in family dispute resolution as defined by the Act.
CONCLUSION
From 3 October 2018, Ms Y has had 100% care of both J and O. As she has made the children available, the care determination must be revoked from the day before the care changed. This means the existing care determination for both children is revoked from 2 October 2018.

Mr X did not take reasonable action to ensure the care arrangement was complied with in relation to J. This means that the existing care determination is revoked on 2 October 2018 and under s 49 of the Act a new care determination is made from 3 October 2018 that Mr X has 0% care of J.
Mr X took reasonable action to ensure the care arrangement was complied with for O until 12 November 2018. This then requires two percentages of care to be determined. In this case the first percentage of care is 50% and the second percentage of care is 0%.
Under s 59C a determination that Mr X has 50% care of O applies until 12 November 2018 under s 53A(1)(b)(ii), and a determination that he has 0% care applies from 13 November 2018.
What is the date of effect of the decision?
Under s 95P of the Registration and Collection Act, if Mr X applied for AAT first review more than 28 days after he was given notice of the decision, any decision made at AAT first review has effect on and from the date the application for AAT first review was made.
This time can be extended under 95N(2) of the Registration and Collection Act if the AAT is satisfied that there are special circumstances that prevented the application for AAT first review being made within the 28-day period.
The application for review of the decision regarding O was made more than 28 days after the decision, with the date he lodged his application on closer to one year from the date of the decision.
At SSCSD review, the Tribunal declined to make a determination that there were special circumstances that prevented the application for review being made within 28 days. This is a decision that can be reviewed at AAT second review under s 96A(c) of the Registration and Collection Act.
Mr X said at the time he was having difficulty with his mental health, and his father was ill with deteriorating dementia. He thought the 28-day limit could not be extended, so did not lodge his application until approximately a year after the decision was made.
Due to the unfortunate history of these matters, and the separation of the decision in relation to O and J, the decision in relation J by SSCSD was made on the same date as the objection decision for O. This was not raised by Mr X as a factor in the delay but would make matters confusing.
However, at the time Mr X also managed to respond to a change of assessment resulting from him ending his employment. This involved contact with the Child Support Agency and collating and submitting material to the Child Support Agency. The Tribunal infers he was capable of attending to matters and reading and responding to material provided by the Child Support Agency.
Mr X said he realised he could lodge an application on discussing the decision made in regard to J with the Child Support Agency.
The Tribunal is not satisfied there are special circumstances that prevented him lodging an application. As a result, the date of effect of the decision in relation to O is the date Mr X lodged his application with SSCSD, being 26 October 2020, and the decision of the SSCSD declining to make a determination under s 95N(2) of the Registration and Collection Act is affirmed.
DECISION
The decision in relation to J is set aside and substituted with a decision that the existing percentage of care determination is revoked on 2 October 2018 and a new determination made on 3 October 2018 that Mr X has 0% care of J.
The decision in relation to O is set aside and substituted with a decision that a determination that Mr X has 50% care of O until 12 November 2018, and a determination that he has 0% care from 13 November 2018. The decision to decline to make a determination under s 95N(2) of the Child Support (Registration and Collection) Act 1988 is affirmed. This means the date of effect of the decision in relation to O is 26 October 2020.

1. I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

..............[Sgnd].................
Associate

Dated: 20 January 2022

Representative for the Applicant:
Self-represented

Representative for the Respondent:
Mr Sam Cummings

Sparke Helmore Lawyers

Other Party: Self-represented

[2022] AATA 74

20 January 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Statutory Construction

Procedural Fairness

Remedies