PCXM and Child Support Registrar (Child support second review)
[2018] AATA 2663
•6 August 2018
PCXM and Child Support Registrar (Child support second review) [2018] AATA 2663 (6 August 2018)
Division:GENERAL DIVISION
File Number: 2016/5298
Re:PCXM
APPLICANT
AndChild Support Registrar
RESPONDENT
AndVTPB
OTHER PARTY
DECISION
Tribunal:Brigadier A G Warner
Date:6 August 2018
Place:Perth
The Tribunal affirms the decision under review.
......[sgd]..................................................................
Brigadier A G Warner
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 there was a change of care – interpretation of Court orders – whether Court orders not complied with – whether interim care determination applies – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act1989(Cth) – s 49 – s 50 – s 51
Child Support (Registration and Collection) Act 1988 (Cth)
SECONDARY MATERIALS
Child Support Guide, version 4.33, 2 July 2018 – Chapter 2.2.4
REASONS FOR DECISION
Brigadier A G Warner
6 August 2018
INTRODUCTION
The Applicant (PCXM) seeks review of the decision made by the Administrative Appeals Tribunal (Social Services & Child Support Division) (AAT1) on 26 August 2016 which affirmed the decision of an Objections Officer and found that the Other Party (VTPB) had 100% care of the child from 17 January 2016.
PCXM attended the hearing on 25 January 2018 and was supported by her sister. VTPB participated by telephone conference. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers.
The Child Support Registrar (the Respondent) takes a neutral position in this matter, and provides a Statement of Facts, Issues and Contentions (Respondent’s SFIC) to assist the Tribunal to reach the correct or preferable decision and to set out the relevant law (Exhibit 9).
FACTS
PCXM and VTPB are the separated parents of the child, born in 1999.
From 1 November 2011, PCXM had 100% care of the child and VTPB had 0% care of the child (T31/116).
On 27 October 2015, the Magistrates Court made orders under the Family Law Act1975 (Cth). Relevantly, the orders include the provisions that:
1.Until further order, [VTPB] spend time with the [child] born in 1999…:
(a)each alternate Saturday from 9:00am to 5:00pm for three further occasions from the date of this order;
then
(b)from 10.00am Saturday until 5:00pm Sunday each alternative weekend on four occasions;
then
(c)from after school Friday until 5:00pm Sunday each alternate weekend thereafter; and
(d)for one further night during the school holidays; and
(e)at any other times as may be agreed between the parties from time to time.
…
6.Insofar as these orders apply to [the child], these orders shall be subject to [the child’s] wishes. [“clause 6”]
7.All interim applications and responses be and are otherwise dismissed (T16/82-84).
On 19 January 2016, PCXM notified the Department of Human Services (the department) that there had been a change of care for the child from 17 January 2016 (T11/54).
On 25 February 2016, an officer of the department decided there was an interim care determination in place. The officer of the department decided that:
(a)PCXM had 87% care of the child from 17 January 2016 to 24 April 2016 (T19/90- 91);
(b)VTPB had 13% care of the child from 17 January 2016 to 24 April 2016 (T20/92– 93);
(c)PCXM had 0% care of the child from 25 April 2016 (T19/90-91); and
(d)VTPB had 100% care of the child from 25 April 2016 (T20/92-93).
On 28 April 2016, an Objections Officer of the department decided to allow an objection from VTPB (T31/113-121). The Objections Officer found no interim care determination applied and that, therefore VTPB had 100% care of the child from 17 January 2016 (T31/113).
On 26 August 2016, the AAT1 at first review affirmed the decision under review (T2/7-10).
In her application to this Tribunal, PCXM claimed that the AAT1 decision was wrong because:
AAT has said that the Orders relevant to [the child’s] care were complied with. [VTPB] says that Clause 6 of the Orders means she can live where she wants. I want to be able to put forward documents to show that Clause 6 was about [the child] not having to go to her dads if she had work or sport etc. Clause 6 was about [the child] not having to go to her dads. If Clause 6 is what the AAT is making the decision on I think I should get this chance.
I paid for the transcript from 27 October 2015 but this was just a short hearing to find out what orders had been made. The hearing on 24 September 2015 was when our case was heard. So I am ordering that transcript because that is the one that will have me raising what happens if [the child] has other things on. I do have a letter from my lawyer which says that the Children’s Lawyer […] “supported a gradual progression of time” (T1/4).
ISSUES
The Tribunal must decide whether there was a change of care in relation to the child on 17 January 2016, and whether an interim care determination applies. The interpretation of clause 6 of an order of the Magistrates Court of Western Australia dated 27 October 2015 (Exhibit 4) is of particular relevance.
RELEVANT LEGISLATION AND POLICY
The legislation relevant to this application is contained in the Child Support (Assessment) Act1989 (Cth) (the Act) and the Child Support (Registration and Collection) Act1988 (Cth). There is also policy relevant to this application contained in the Child Support Guide (the Guide). The legislative and policy framework is laid out in the Respondent’s SFIC (Exhibit 9, paras 14-25) and it is not necessary to repeat it all here.
Sections 49 and 50 of the Act provide for a new determination of percentage of care to be made where there is a change to the pattern of care. Section 50 of the Act provides for the new determination of the percentage of care to correspond with the actual care of the child.
Section 51 of the Act provides that if a care arrangement has not been followed and the person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with, then the department can determine the percentage of care that corresponds with the care the person would have had, and apply that percentage of care for a period of time. This is referred to as an interim care determination.
Interim care determination – legislation and policy
Section 51 of the Act provides for an interim care percentage to be determined where care arrangements in relation to the child have not been complied with. Section 51 of the Act relevantly states:
(1)This section applies if:
(a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b)a care arrangement applies in relation to the child; and
(c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
Chapter 2.2.4 of the Guide, last released on 2 July 2018 in version 4.33 and which the Tribunal notes is not substantially different to the previous version of the Guide which was referred to by the Respondent at the hearing and in its SFIC, provides that:
If a person is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. If an interim care determination is made, the Registrar will determine 2 percentages of care for each party under section 51 of the CSA Act. The first percentage is the amount of care the person should have of the child under the care arrangement. The second percentage is the amount of care the person actually has of the child. The first percentage of care will apply during the interim period, which means child support (and FTB, if relevant) will continue to be assessed in accordance with the care arrangement for the interim period. The length of the interim period will depend on a number of factors. The second percentage of care will apply after the interim period has ended.
Generally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply.
However, there may be some situations where an interim determination can be made when the care arrangement had not been followed. This includes where the disputed care change occurs before the other party had the opportunity to exercise the care provided for under the care arrangement (e.g. if one parent withholds care from the other parent from the day the care arrangement takes effect).
An interim determination could also be made where there is no care arrangement at the time the care change occurs, but a subsequent care arrangement is made while either party still disputes the care that is occurring (e.g. if one parent withholds care from the other parent, and the other parent successfully obtains a parenting order that provides them with a level of care, despite not actually being able to exercise the level of care provided for under the parenting order).
While not an exhaustive list, chapter 2.2.4 of the Guide provides that the following action could be taken to be reasonable action to ensure compliance with a care arrangement:
(a)negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;
(b)making and/or attending an appointment at a Family Relationship Centre or other 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 that the child has been taken without consent.
Chapter 2.2.4 of the Guide provides guidance on how to determine the length of the interim period.
EVIDENCE
The Tribunal had before it the following evidence:
·the “T Documents” (T1-T38, pp 1-184) (Exhibit 1);
·letter from the Applicant’s lawyers dated 25 August 2015 (Exhibit 2);
·letter from the Applicant’s lawyers dated 25 September 2015 (Exhibit 3);
·Perth Magistrates Court Transcript [2015] FCWAM 234 dated 27 October 2015 (Exhibit 4);
·letter from PCXM to the Tribunal dated 28 November enclosing Transcript of Proceedings of The Family Court of Western Australia on 24 September 2015 (Exhibit 5);
·email from PCXM to the Tribunal dated 20 January 2017 attaching “Report for AAT Hearing on 20 January 2017” (Exhibit 6);
·letter from PCXM to the Tribunal dated 22 April 2017 (Exhibit 7);
·record of child visits, filed on 24 April 2017 (Exhibit 8);
·Respondent’s SFIC dated 2 March 2017 (Exhibit 9);
·letter from the Applicant’s lawyers dated 21 January 2016 (Exhibit 10);
·the oral evidence of PCXM;
·the oral evidence of PCXM’s sister; and
·the oral evidence of VTPB.
RESPONDENT’S ANALYSIS
As stated at paragraph 3 above, the Respondent takes a neutral position in this matter, however provides observations in relation to the arguments of PCXM and VTPB. Those observations are repeated below:
27. It appears that neither the Applicant nor the Other Party dispute that there was change of care relating to the child on 17 January 2016 resulting in the revocation of the existing care determination. Further, it does not appear to be in dispute that the Other Party had 100% care under the new care arrangement. The primary issue of dispute appears to be whether an interim care determination applies in this case.
28. The Applicant has argued that an interim care determination should apply as she has been prevented from having care in accordance with the court orders dated 27 October 2015 and she has taken reasonable steps to have the child returned to her care, including filing an application to a court to have the order enforced.
29. In particular, the Applicant argues that clause 6 of the court orders dated 27 October 2015, as extracted above, have been misinterpreted by the objections officer and AAT first review. The Applicant contends that, correctly interpreted, clause 6 of the court orders affords the child a choice as to whether or not she wishes to spend time with the Other Party as set out in clause 1 of the court orders. That is, the Applicant contends that clause 6 was not intended to allow the child to spend more time with the Other Party. To evidence this contention, the Applicant has filed the transcript of proceedings of the Family Court of Western Australia on 24 September 2015.
30. The Other Party has not filed any additional evidence or submissions in relation to this matter. However, it is possible that the Other Party would maintain that no interim care determination should apply since there was no breach of the court orders. In particular, it is likely that the Other Party would contend that clause 6 of the court orders dated 27 October 2015 allows the child to choose to spend more or less time with the Other Party.
31. The Registrar notes that the court orders dated 27 October 2015 do not appear to be ambiguous. As such, it does not appear that extrinsic material, such as the transcript of the proceedings are required to interpret the meaning of clause 6. Given this, it would appear that the preferable interpretation of clause 6 of the court orders is that the child is afforded the choice as to whether she wishes to spend more or less time with the Other Party (Exhibit 9, paras 27-31).
CONSIDERATION
Subsequent to the objection lodged by VTPB, the Objections Officer determined the care level for the child as 100% care to VTPB and 0% to PCXM from 17 January 2016 (T31/121). The AAT1 decision of 26 August 2016 records: “The parents agreed that [the child] went to live with [VTPB] on 17 January 2016, that she is still living with him, and that he has provided 100% care of her care from that date. The tribunal finds accordingly” (T2/9, para 15). This finding was not disputed in the present proceedings.
PCXM contends that an interim care determination applies in this case as she has been prevented from having care of the child as provided for by the court orders dated 27 October 2015 (T16/82-84, see paragraph 6 above), and because she has taken steps to have the child returned to her care.
PCXM contends that the Objections Officer and the AAT1 have misinterpreted clause 6 – “Insofar as these orders apply to the child, these orders shall be subject to the child’s wishes”. PCXM contends that clause 6 gave the child the option of not spending time with her father if she did not want to do so, but did not give the child the option to spend more time with him than the periods detailed in the orders (T16/82-84, see paragraph 6 above). PCXM relies on the transcript of proceedings of the Family Court of Western Australia on 24 September 2015 (Exhibit 5). As shown at paragraph 11 above, PCXM stated in her application that this transcript “…is the one that will have me raising what happens if [the child] has other things on” (T1/4).
The Tribunal does not consider it necessary or appropriate to go behind the 27 October 2015 court orders, however as PCXM has filed the transcript of the preceding Court proceedings on 24 September 2015 (Exhibit 5) and relies on it, the Tribunal has reviewed it. PCXM’s evidence and submissions on her behalf in the present proceedings reflect the content of the transcript. This material, together with the relevant evidence recorded in the AAT1 decision (T2/7-10), shows PCXM to be solicitous for the interests and well-being of the child. The transcript also shows that the Court had regard to the age, maturity, intelligence, interests and social circumstances of the child. Having careful regard to the relevant evidence, the Tribunal agrees with the Respondent’s analysis at paragraph 21 above (Exhibit 9, para 31).
This review is of course de novo, however the Tribunal’s conclusion regarding the application of clause 6 (see paragraph 25 above) to the child’s care is consistent with the AAT1 finding that: “…clause 6 means that [the child] could choose to spend more time or less time with [VTPB] as she wished, and in either case the orders were being complied with” (T2/10, para19).
The Tribunal is satisfied that PCXM has taken reasonable steps to have the child returned to her care (T2/10 at paragraph 20).
Other than his brief oral evidence, VTPB filed no further evidence for the present proceedings. VTPB’s evidence was consistent with that recorded in the AAT1 decision as follows: “[VTPB] said that it was [the child’s] choice to live with him. He said that she packed as much of her belongings as she could into his car and they went to his house. He contended that as it was [the child’s] wish to live with him, because of clause 6 of the orders, there was no non-compliance with the orders” (T2/9, para 17). VTPB told this Tribunal that the child had made her own decision and had not been pressured to reside with him after he moved to Perth.
VTPB told the Tribunal that had he been in breach of the 27 October 2015 court orders with respect to the care of the child, he would have expected the Court to take action. Relevantly, PCXM’s sister confirmed that the Court has not determined that VTPB has breached the orders. There is no evidence to the contrary before the Tribunal.
CONCLUSION
The Tribunal is satisfied that PCXM has taken reasonable action to have the child returned to her care. The Tribunal is further satisfied that the Court orders pertaining to the child have been complied with. The Tribunal therefore concludes that there was a change in the child’s care on 17 January 2016 such that VTPB provided 100% of her care from that date, and as there was no non-compliance with the relevant Court orders, the interim care determination provision in s 51 of the Act does not apply.
DECISION
For the reasons given above, the Tribunal affirms the decision under review.
I certify that the preceding 31 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner
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Associate
Dated: 6 August 2018
Date of hearing: 25 January 2018 Applicant: In person Advocate for the Applicant: [Relative] Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore Lawyers Other Party: By telephone: self-represented
Key Legal Topics
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Family Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Breach
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Statutory Construction
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Remedies
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Jurisdiction
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