Promphat and Child Support Registrar (Child support)

[2020] AATA 2134

Promphat and Child Support Registrar (Child support) [2020] AATA 2134 (6 May 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/PC018700

APPLICANT:  Mr Promphat

OTHER PARTIES:  Child Support Registrar

TRIBUNAL:Member M Martellotta

DECISION DATE:  06 May 2020

DECISION:

The Tribunal sets aside the decision under review and, in substitution, decides that:

a)The existing care percentage determinations are revoked with effect from 6 August 2019.

b)New care percentage determinations are made to reflect that [Ms A] has 100% care and Mr Promphat has 0% care with the date of effect of those determinations being 7 August 2019.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made – whether the repealed legislation should apply in relation to dates of revocation – repealed legislation applies - decision under review set aside and substituted

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.

REASONS FOR DECISION

BACKGROUND

1. Mr Promphat and [Ms A] are the parents of a child ([born] March 2008). The existing care percentage recorded by the Department of Human Services – Child Support (the Department) was that the child was in [Ms A]’s 85% care and Mr Promphat’s 15% care.  This care arrangement according to the Department was pursuant to Family Court orders made on 18 June 2013.

2. On 7 August 2019 [Ms A] advised the Department of the change in care, namely that since 18 April 2018 she had 100% care of the child. On 23 October 2019[1] the Department notified Mr Promphat and [Ms A] of their decision to change the care recorded to reflect that [Ms A] had 100% care and Mr Promphat had 0% as from 18 April 2018 effective in the assessment from 7 August 2019.

   [1] According to the Department records a decision was actually made on 23 August 2019 (p.50) after failing to contact Mr Promphat however no notice of decision was sent until Mr Promphat made inquiry on 23 October 2019 regarding the change in assessment (p.51).

3. Mr Promphat objected to the decision on 23 October 2019. Mr Promphat in his objection sought that an interim care determination be made.  On 19 March 2020 the Department decided to change the original decision and instead decided that no interim care determination could be made, as such [Ms A] had 100% care of the child and Mr Promphat had 0% care as from 25 January 2018, effective in the assessment from 7 August 2019 for [Ms A] and effective from 25 January 2018 for Mr Promphat.  This resulted in a ‘one off’ increase in the assessment to Mr Promphat of $8,222.55.

4. Mr Promphat lodged his application with the tribunal seeking independent review of the Department decision on 23 March 2020. The tribunal held a hearing on 6 May 2020. Mr Promphat attended by telephone conference and provided evidence under affirmation.  [Ms A] did not respond to an invitation to be joined as a party to the application.

5. The Department provided documents pertaining to their decision (201 pages). Mr Promphat also provided documents (A1–A125).

ISSUES

1. The statutory provisions relevant to this review are contained in the Child Support (Assessment) Act 1989 (the Act).

2. The main issues which arise in this case are:

• Should the existing care determination be revoked and if so from when?

• Should a new determination of care percentage be made and if so from what date?

Issue one – should the existing care determination be revoked and if so from when?

1. Sections 49 and 50 of the Act require the Department to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period.  The percentage of care so determined must be a percentage that corresponds with the actual care of the child.  Sections 51 and 52 deals with situations in which the care arrangement is not being complied with. 

2. Section 54A of the Act sets out that actual care of a child that a person has or is likely to have may be worked out on the number of nights.  A new percentage of care can be determined by the Child Support Agency whenever the care of a child has changed pursuant to sections 54F, 54G and 54H of the Act.

3. In this matter it is not in dispute that care had been taking place pursuant to Family Court orders made in 2013. Pursuant to those arrangements Mr Promphat was exercising 15% care and [Ms A] 85% care.  Mr Promphat says (and [Ms A] confirmed in communication with the Department) that Mr Promphat ceased to have care of the child as from 18 April 2018.

4. Mr Promphat submitted that an interim determination should apply in his case because [Ms A] had withheld the child from his care in accordance with an existing care arrangement and he had taken reasonable action to have that care arrangement resume. Mr Promphat provided the following evidence in support of his submissions:

   a)    Care had been taking place pursuant to the 2013 Family Court orders.  Due to his employment (fly-in fly-out (FIFO) overseas base) the arrangement was that he had regular telecommunication contact with the child combined with periods of actual care when he was in the country.

   b)    At the conclusion of his care of the child in December 2017 it was agreed that [Ms A] could take the child to [Country 1] to visit family. They returned to Australia on 25 January 2018.

   c)    It soon became apparent that the mother was preventing the child from speaking to Mr Promphat over the phone as per their usual arrangement.

   d)    Mr Promphat’s expectation was that he would have care of the child as per the usual arrangement in April 2018.  However, [Ms A] withheld the child from him.

   e)    Mr Promphat took legal advice and his solicitor wrote to [Ms A] requesting a resumption of care in accordance with the care arrangement. Mr Promphat also initiated a family dispute resolution process with Relationships Australia.

   f)     [Ms A] ignored all these attempts however she then initiated an application for a violence restraining order against Mr Promphat.  Mr Promphat said it took time to resolve that issue in his favour through the courts and throughout this period [Ms A] continued to withhold the child.

   g)    In December 2018 Mr Promphat filed an application in the Family Court seeking orders to enforce the existing care arrangement.  [Ms A] made allegations suggesting that Mr Promphat had maltreated the child and an independent child lawyer was appointed as well as a clinical and forensic psychologist.

   h)    In April 2019 Mr Promphat was able to initiate supervised visits at his cost as [Ms A] refused to agree to any overnights visits.

   i)   The psychologist’s report was submitted to the Family Court in October 2019 recommending that overnight care resume.

   j)   Ultimately the Family Court applications have been resolved with new care arrangements ordered by consent.

5. Mr Promphat told the tribunal that he advised the Department in February 2018 that the mother was not allowing him to speak to the child.  He said however that the change in care actually occurred on 18 April 2018 (as advised by the mother)  because this was the date he was meant to have overnight care of the child and it was from that date that the mother refused to allow him any care until ultimately the matter came back before the Family Court.

6. In relation to care change, the legislative scheme requires any new care percentage determination to be made following notification to the Department of a change of care arrangement.  The primary decision-maker is required to assess the actual or likely pattern of care, by reference to an appropriate care period, to determine whether to revoke the existing care determination and make a new one.  The tribunal’s task on review is the same.

7. Mr Promphat submits that this is a case in which an interim care determination should apply.  As noted this arises where there is a care arrangement in place and one of the parents is not complying with that arrangement. In this matter the tribunal finds that the parents were exercising care in accordance with Family Court orders and as such there was a relevant care arrangement in place.

8. In this matter Mr Promphat’s clear evidence (consistent with the advice provided by [Ms A]) was that the change in care occurred on 18 April 2018 as this was the date he expected to have the child made available to him for the purposes of overnight care. The tribunal is satisfied that this is the relevant date on which there was a change in care. The tribunal is also satisfied and finds that the Department was not advised of this change in care until contacted by [Ms A] on 7 August 2019.

9. The first issue concerns the revocation of the existing care determination that was in place. In this matter the tribunal was satisfied that section 54G[2] of the Act does not apply because on the evidence it is not in contention that [Ms A] did not make the child available to Mr Promphat from 18 April 2018. Further in this matter [Ms A] did not notify the Department of the change in care within a reasonable time.

   [2] Subsection 54G(1) of the Act refers to situations where a parent was to have at least regular care but there is no actual care despite the other parent making the child available. The other parent is required to notify the Registrar  within a reasonable time

10. Legislative amendments enacted in 2018 introduced some relevant changes.[3] In this matter a threshold question for the tribunal is whether the legislative provisions as amended have application or whether the pre-existing provisions apply.

    [3] The Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (the 2018 Act) introduced changes to subsection 54F(3) of the Child Support (Assessment) Act 1989 (the Assessment Act). The changes affect the dates from which previous child support care determinations are revoked. This can be referenced as the “23 May amendment and the 1 July amendment”

11. The first set of legislative changes took effect from 23 May 2018 and applied only to changes of care that occurred on or after that particular date.  In this matter the tribunal has found that the relevant change in care occurred on 18 April 2018 and as such these particular legislative changes do not apply.

12. Another set of legislative amendments were made which had effect from 1 July 2018.  Those changes apply where notification of a change in care occurs more than 28 days from the date the change in care occurs. Application of the amendments are stated to apply where a change in care has happened:

    ·On or after 1 July 2018 (which is not the case in this matter) and

    ·in relation to changes in care that occur before 1 July 2018 where notification of change in care occurs more than 26 weeks after 1 July 2018 (namely after 30 December 2018).[4]

    [4] By Item 183 of Schedule 1 to the 2018 Act

13. The 23 May amendments repealed section 54F of the Act and substituted it with a new section 54F as it applies to the revocation of an existing care determination. The subsequent 1 July amendments in turn repealed subsection 54F(3) which had been substituted in the 23 May amendments.

14. The result of these amendments in the tribunal’s view creates an issue in cases such as this, where a change in care occurred prior to 23 May 2018 (in this case 18 April 2018) and notification has occurred more than 26 weeks after 1 July 2018 (in this case 7 August 2019). A plain reading of the provisions results in an issue because the May amendments do not apply to the care change, but the July amendments apply.  The conflict arises because:

• Prior to the May and July amendments subsection 54F(2) dealt with the dates of effect of the previous determinations;

• Subsection 54F(3) as introduced in the July amendment also deals with the date of effect but in a different and conflicting way to the original subsection 54F(2);

• Paragraph 54F(3)(a) refers to “paragraph 1(a)” which can only have meaning if it is read in conjunction with the version of subsection 54F(1) that was introduced by the 23  May amendment which in this matter has no application.

1. In this case it appears that in the objection decision, the Department have applied the amended provisions which came into effect on 1 July 2018.[5] The tribunal’s view however results in a different conclusion namely that as the amendments to subsection 54F(3) of the Act (as introduced by the 23 May 2018 amendments) have no application in this matter, then it follows that the 1 July 2018 also cannot apply. Following this approach would mean that the relevant legislation to apply in this case are those which applied before the 23 May 2018 amendments.

   [5] Specifically the further amendments made on 1 July 2018. Changes were made to section 54F of the Act - the amendments apply so as to curtail a parent benefiting from late notification of a relevant change in care

2. In further support of this approach, the tribunal also notes that the Department’s approach in this matter (by applying the 1 July amendment provisions) has resulted in the Department raising a retrospective ‘one off’ increase in Mr Promphat’s liability under the assessment.   In Maxwell v Murphy [1957] HCA 7, Dixon J set out the approach of the courts:

   The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined with reference to the past events.

3. The tribunal has concluded that the relevant legislative provisions to apply are those that were in place prior to 23 May 2018 and applies the pre-amendment provisions in addressing the question of what is the relevant date of effect for the revocation of the existing determination of care. 

4. Section 54F of the Act (as it was prior to the 2018 amendments) provided for the mandatory revocation of a care determination. It provided that an existing care determination must be revoked where[6]:

   ·the existing percentage of care has been determined under either section 49 or 50;

   ·if an exception to the use of actual care in section 51 or 52 applied, the interim period has ended;

   ·the Registrar or the Secretary is notified or becomes aware that the actual care does not correspond with the person's percentage of care for the child under the determination;

   ·if a new percentage were to be determined under either section 49 or 50, it would change the person's cost percentage; and

   ·section 54G does not apply. 

   [6] Subsection 54F(1) of the Act

5. In this matter the tribunal is satisfied that the relevant requirements for mandatory revocation have been met this is because:

   a)    There was an existing care determination of 85% and 15% pursuant to section 50 of the Act.

   b)    That existing determination was not subject to either sections 51 or 52 of the Act.  There was no interim period in place.

   c)    The advice by [Ms A] as notified on 7 August 2019 was that care did not correspond with the existing care determination.

   d)    The change in care in this matter affects the child care cost percentage. In this case the change in care for Mr Promphat of 15% to 0% affects the relevant cost percentage.[7]

   e)    Section 54G does not apply.

   [7] Section 55C of the Act the cost percentage changes from 24% to nil

6. For these reasons the existing care determinations that were in place must be revoked pursuant to section 54F of the Act.  The relevant date of revocation is determined by subsection 54F(2) of the Act. This is dependent upon when the Department was advised of the change in care.  In this matter the tribunal has found that the change in care occurred on 18 April 2018 but notification of this change did not happen until 7 August 2019.  As this is a period more than 28 days after the change in care occurred then subparagraph 54F(2)(c) of the Act applies namely the revocations take effect for both [Ms A] and Mr Promphat on the day before [Ms A] advised the Department of the change, namely 6 August 2019.

Issue two – Should a new determination of care percentage be made and if so from what date?

1. As noted, sections 49 and 50 of the Act require the Department to determine a person’s percentage of care where a person has had, or is likely to have a pattern of care for a child for the care period.  In this matter the evidence shows that the actual care that occurred for the care period 18 April 2018 to 17 April 2019  was that Mr Promphat had 0% care and [Ms A] had 100% care.  This occurred because [Ms A] was withholding care.  As noted Mr Promphat submitted that for this reason an interim care period should apply. Sections 51 and 52 deal with situations in which a care arrangement is not being complied with. 

2. In this matter the tribunal was satisfied and has found that a relevant care arrangement was in place pursuant to the 2013 Family Court orders. Section 51 deals with situations where the care arrangement is not being complied with and a parent is taking action to enforce that care arrangement. In this matter there was evidence which the tribunal accepts that Mr Promphat was taking action to enforce the care arrangement, he sought legal advice, had his lawyers write to [Ms A], he initiated mediation and ultimately brought Family Court proceedings.

3. The issue that arises however is that in this case section 51 does not have application and so an interim care determination cannot be made.  This is because  subparagraph 53(2)(c) of the Act says that if the day on which revocation  takes place under section 54F(2)(c) of the Act is more than 14 weeks after the change in care for the responsible person took place (or a maximum of 26 weeks if special circumstances exist), then sections 51 and 52 do not apply.  Here the day on which revocation takes place is 6 August 2019 which is more than 14 (or 26 weeks)[8] after the date of change in care (18 April 2018).  As such an interim care determination cannot be made.

   [8] 26 weeks from date of change is 17 October 2018.

4. This leaves the question then of what is the date of effect of any new care determination. In this case the tribunal has concluded that during the relevant care period Mr Promphat would have 0% care and [Ms A] 100% care. The relevant provision is section 54B of the Act.   It provides that the the percentage of care applies to each day in a child support period on and from the “application day”. 

5. Subparagraph 54B(2)(c)(ii) of the Act says that the application day for the new determinations of percentage of care is the day after the revocation of the existing determinations.  In this matter, the tribunal has revoked the existing percentage of care determinations with effect from 6 August 2019 so this means that the new determination will  apply from 7 August 2019.

DECISION

The Tribunal sets aside the decision under review and, in substitution, decides that:

a)The existing care percentage determinations are revoked with effect from 6 August 2019.

b)New care percentage determinations are made to reflect that [Ms A] has 100% care and Mr Promphat has 0% care with the date of effect of those determinations being 7 August 2019.