QGGR and Child Support Registrar (Child support second review)

[2018] AATA 2875

QGGR and Child Support Registrar (Child support second review) [2018] AATA 2875 (14 August 2018)

Division:GENERAL DIVISION

File Number:           2017/1225

Re:QGGR

APPLICANT

AndChild Support Registrar

RESPONDENT

AndCQQT

JOINED PARTY

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:14 August 2018

Place:Sydney

The decision under review is affirmed.

...............[sgd].........................................................

Mrs J C Kelly, Senior Member

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 – percentages of care – whether interim period applies – revocation of determination of percentages of care – whether care arrangement applied – whether applicant took reasonable action to ensure compliance with care arrangement – decision affirmed

LEGISLATION

A New Tax System (Family Assistance) Act 1999 (Cth)

Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth)
Child Support Assessment Act 1989 (Cth) ss 49, 50, 51, 52, 54F, 54G, 54H, 55
Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth) s 64B

CASES

Commonwealth v Esber (1991) 29 FCR 324; 101 ALR 35

Re Costello and Secretary, Department of Transport (1979) 2 ALD 934

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

14 August 2018

WHAT THIS DECISION IS ABOUT

1. The Applicant is the father (the Father) of two children, A, born on 21 July 2000, and B, born on 19 September 2001. The mother of the children (the Mother) was a joined party.

2. This decision is about the percentages of care provided by the Father and Mother from mid-January 2016 which are used to assess the child support to be paid by each of them for the children.

3. The relevant legislation is the Child Support Assessment Act 1989 (Cth) (the Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act).

4. The Father disagrees with the decision made by the Social Services & Child Support Division of this Tribunal (AAT1) on 27 January 2017, which set aside an Objection decision dated 13 July 2016 and decided:

   ·No interim period applies; and

   ·The care percentages for both children are 0% for the Father and 100% for the Mother from 15 March 2016.

   CHILD SUPPORT HISTORY

5. An administrative assessment of child support (child support assessment) started on 19 December 2001, based on the Mother having sole care of the children. On 26 April 2002, the Child Support Registrar (the Registrar) accepted an application by the Mother for the child support liability to become enforceable (collectable) by the Registrar.

6. On 1 June 2009, the Father advised the Registrar that from 28 May 2009, he had 100% care of the children. He referred to a court order dated 25 May 2009.

7. On 27 June 2009, the Registrar recorded that the Mother advised that she agreed with the Father’s advice. On the same date, the Registrar made a determination under the Act then in force (Act Number 27 of 2009) of the “existing percentage of care”, that “from 28 May 2009, the Father has 100 per cent care of the children”.

8. No copy of the 2009 court orders was provided to the Registrar at that time. The Father provided a copy to the Registrar with his letter dated 19 April 2016.

9. The 2009 court orders gave sole parental responsibility for the children to the Father and ordered that the children live with him. It also set out time the children would spend with the Mother. The Objections Officer (who made the Objection decision) worked out that the effect of those orders was to give 80% care to the Father and 20% to the Mother.

10. In January 2016, the children did not return to their Father after spending time with their Mother during the school holidays.

11. On 15 March 2016, the Mother advised the Registrar that the Father never collected the children from her on 9 January 2016 and they have been in her 100% care since that date. She also advised that there “are no written care arrangements such as agreements, court orders or parenting plans”.

12. In a telephone conversation on 1 April 2016, the Father advised an officer of the Registrar that “the children have been removed from his care and the matter is now going to the family court”. He refused to answer questions about court proceedings.

13. On 14 April 2016 the Registrar made a decision (the care decision), “to accept the customer’s [the Mother’s] request for a new determination of care percentage”. The decision reversed the previous position, finding that the Mother had 100% of care and the Father 0% from 9 January 2016.

14. The care decision listed the following:

    Date of Event: 09/01/2016

    Date of Notification: 15/03/2016

    …

    The evidence

    Only parental statements were considered in making this decision. No further evidence was requested or provided.

    The reasons for the decision

    discussed with SSO Chris who advised we can accept this care as stated by [the Mother] as it is actual care and if [the Father] is awarded custody again we can reflect this

    …

    The decision will result in a new assessment period from 15/03/2016.

15. The care decision referred to s 50 of the Act.

16. The notification letter to both the Father and Mother stated that:

    The CSA can only give effect to this decision from 15 March 2016 … because we were not notified of the change within 28 days.

17. The care decision records that unsuccessful calls had been made to the Father on 31 March and 1 April 2016 and that the Father called on 1 April 2016 “and confirmed the children had been removed from his care but he refused to discuss anything further as it was before the Federal Courts”.

18. The Respondent submitted that the care decision was made on the following bases:

    ·Revoked the determination of the existing percentage of care under s 54F(1) of the Act, which took effect on the day before the Registrar was notified of the care actually taking place, under s 54F(2)(c), that is, 14 March 2016.

    ·Decided the Father had 0% care of the children from 9 January 2016, applying s 49(1)(b) of the Act, and the mother had 100% care, applying s 50(1)(b) of the Act, taking effect from 15 March 2016.

19. The Registrar sent a notice of the care decision to the Father and Mother on 16 April 2016. On the same day, the Registrar advised the Father that his ongoing child support payment for the period 7 April 2016 to 31 May 2017 was $2,105 per month.

20. The Father objected to the care decision. He wrote a letter dated 19 April 2016 in which he claimed A and B were to live with him and were his responsibility and accused the Mother of lying if she claimed that A and B “are to live with her” and “that she has responsibility for the children”. He objected to the varying of the child support payments on the Mother’s advice, referred to the enclosed “Orders of the Family Court of Australia” and requested an apology and that “the Child Support Payment schedules be readjusted immediately with a return to the original ‘care percentages’”.

21. The letter of 19 April 2016 was not treated as an objection. The Father lodged another document on 16 May 2016 which was treated as an objection. On 16 June 2016, he lodged another letter dated 3 June 2016, which stated that the earlier letter was an objection.

22. On 13 July 2016, an Objections Officer allowed the objection and decided to record care percentages of 80% to the Father and 20% to the Mother for an interim period from 9 January 2016 to 16 April 2016, applying the assessment from 15 March 2016, being the date of notification, and applying percentages of 0% for the Father and 100% for the Mother “from 17 April onwards”.

23. The Objection decision set out the scheme of the Act in detail. It decided that it was appropriate to make a determination under s 51 of the Act for an interim period of a percentage of care based on the court order rather than on actual care.

24. The Father applied to AAT1 for review of the Objection decision and then to this Tribunal for the review of the decision of AAT1.

25. The Father contended the decision of AAT1 should be set aside and the following findings made:

    ·There should be a 26 week interim period commencing on 15 March 2016.

    ·The care percentages for both children should be set at 80% for the Father and 20% for the Mother, commencing from 22 April 2016 when the Respondent received the Father’s letter dated 19 April 2016 and the 2009 court order. The 19 April 2016 letter was an objection, not his letter dated 12 May 2016.

    ·The removal of all penalties from Child Support Agency statements.

    ·The lodgement fee for the application the subject of this decision be refunded.

26. The Registrar argued that the decision should be affirmed. Specifically, the Registrar contended:

    ·No care arrangement applied to the children and therefore s 51 cannot apply;

    ·Consequently, the Registrar cannot determine two percentages of care, including an “interim” percentage that applies for 14 weeks or a maximum of 26 weeks; and

    ·If the Tribunal considers that a care arrangement applied in relation to the children, the Registrar “takes a neutral position” in relation to whether the Father took reasonable action in order to restore the court ordered care.

    CONSIDERATION

27. The Tribunal emphasises that it is reviewing the decision of AAT1, which is set out above, and not its reasoning. Following are the Tribunal’s reasoning and conclusion in this matter.

28. The Tribunal has applied the law as it was at the date of the original decision.[1]

    [1] Re Costello and Secretary, Department of Transport (1979) 2 ALD 934; Commonwealth v Esber (1991) 29 FCR 324; 101 ALR 35

29. The determination of percentage of care is made pursuant to sections 49 to 54E of the Act. Revocation of determination of percentage of care is made pursuant to sections 54F to 54J of the Act.

30. The determination of a new percentage of care necessarily requires that the pre-existing determination of percentage of care has been revoked.

31. It is necessary first to decide which provision applied to the revocation of the pre-existing determination of percentage of care, that is, the percentages of 100% to the Father and 0% to the Mother.

32. The care decision treated the Mother’s advice on 15 March 2016 as a “request for a new determination of care percentage” and dealt with it pursuant to s 50 of the Act. That decision did not indicate which provision was relied on to revoke the pre-existing determination. The Registrar submitted that the revocation was pursuant to 54F.

33. The Objection decision stated that the relevant revocation provision was s 54G of the Act.

34. AAT1 found that s 54G of the Act did not apply and that the relevant revocation provision was s 54F of the Act. The Tribunal agrees with that conclusion for the following reasons.

35. The scheme of the Act requires a decision-maker to consider first whether s 54G applies. Section 54F only applies if s 54G does not (s 54F(1)(e)). Section 54H applies if neither s 54G nor s 54F apply (s 54H(1)(e)).

36. In this case, s 54G(1)(c) requires that the pre-existing determination in relation to the Mother had been made under s 50 of the Act.

37. Under s 50, the Registrar considers the pattern of care that a responsible person for the child has had or is likely to have. As AAT1 found, a determination of a pattern of care must be greater than 0% because it must correspond with some pattern of care for a child.

38. Section 49 applies where a parent has no pattern of care for a child. In that case, the Registrar must determine the percentage of care as 0% pursuant to s 49(3) of the Act.

39. On 1 July 2010 the Act was amended.[2] The amendments included changing the method of calculating the percentage of care and taking determinations of existing percentages to have been revoked. The Registrar was taken to have made new determinations of care under sections 49 or 50 of the Act as amended, in percentages equal to the parents’ existing percentages of care.

    [2] Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Act 2010 (Cth) (Amending Act).

40. Therefore, following the amendment of the Act, pre-existing determinations of 0% of care for the Mother and 100% for the Father were determinations under s 49 and s 50 of the Act respectively.

41. Therefore, the determination of 0% for the Mother was made pursuant to s 49 and not s 50 of the Act, and s 54G does not apply.

42. Section 54F applies if:

    ·The existing care percentages do not correspond with the actual pattern of care the parents have or are likely to have;

    ·The cost percentages would change if the Registrar determined care percentages that correspond with the actual pattern of care; and

    ·Any interim care percentage determination has ended.

43. The existing care percentages of 100% for the Father and 0% for the Mother did not correspond with the actual pattern of care the parents had or were likely to have when the Mother notified the Registrar on 15 March 2016. The pattern of care had reversed. The Mother had 100% of the care and the Father 0%.

44. The “cost percentage” is worked out using the table in s 55C of the Act. There is nil cost percentage for percentage of care 0% to less than 14%. The cost percentage for more than 65% to 86% is 76%, and the cost percentage is 100% for percentage of care more than 86% to 100%. The cost percentages would change if the Registrar determined care percentages that corresponded with the actual pattern of care after January 2016. The Father’s cost percentage would change from 100% to nil.

45. No interim care percentage applied on 15 March 2016 when the Mother notified the change of care pattern.

46. All the criteria set out in s 54F were satisfied. The pre-existing care percentages were revoked pursuant to s 54F of the Act.

47. The Mother notified the change of pattern of care more than 28 days after it happened in January 2016. Therefore, the revocation date is 14 March 2016, the day before notification, pursuant to s 54F(2)(c) of the Act.

48. Subsection 49(3) and subsection 50(4) provide that s 51 may apply in relation to a parent, affecting the percentage of care during the care period.

49. The Tribunal must determine new care percentages under sections 49 and/or 50 but must first consider whether s 51 applies. Subsection 51(1) provides:

    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.

50. There is an order of the Family Court that is in force. The pre-existing determinations do not reflect the terms of those orders, as explained earlier in this decision. The Registrar argued that a “care arrangement” did not apply to the children as required by s 51(1)(b) of the Act.

51. “Care arrangement” is defined as having the same meaning as in the A New Tax System (Family Assistance) Act 1999 (Cth). Relevantly, that definition includes “a parenting order within the meaning of section 64B” of the Family Law Act 1975 (Cth).

52. Before the Tribunal, the Registrar accepted that the 2009 court orders were a care arrangement, as defined, but argued that it did not apply to the child support assessment and therefore s 51(1)(b) was not satisfied. The Registrar referred to an example in the Explanatory Memorandum to the Amending Act showing how s 51(1)(b) applied.

53. The Tribunal understood the argument to be:

    ·The pre-existing percentages of care did not reflect the percentages of care according to the 2009 court orders. The Tribunal accepts that is correct.

    ·Therefore a care arrangement did not apply to the child.

54. The argument depends on the Tribunal reading into s 51(1)(b) words limiting the operation of the provision to cases where the pre-existing percentages of care are consistent with the “care arrangement”, which in this case is the extent of care set out in the 2009 court orders.

55. The Tribunal does not accept that interpretation of the provision. It finds that a care arrangement applied to both A and B and s 51(1)(b) is satisfied.

56. On the evidence before it, the Tribunal finds that the parties were generally complying with the 2009 court orders until January 2016 but the terms of those orders were not conveyed accurately to the Registrar in 2009.

57. Did the Father take reasonable action to ensure that the care arrangement was complied with as required by s 51(1)(d)? The Tribunal is not satisfied on the evidence that he took reasonable action to ensure that the care arrangement was complied with for the following reasons.

58. The 2009 court orders required the Father or his nominee to collect A and B from the Interrelate Contact Centre at Orange “or other agreed venue” at the conclusion of 2016 school holidays. He lives near Coffs Harbour. He sought to have A and B catch a train to Sydney on Saturday 30 January 2016 but the Mother did not agree. In her letter dated 28 January 2016, she stated that in accordance with the 2009 court order she had made the children available for collection at Orange Interrelate “for the majority of the business day” on Wednesday 27 January 2016.

59. The Father’s letter to the Mother dated 2 February 2016 acknowledges that the Christmas contact ended on 26 January 2016 “but (was) extended by my correspondence (as sought by [A] to facilitate addition (sic) contact with her Grandfather…) to 30^th January 2016”. There is no evidence from the Mother that she agreed to that extension.

60. The Mother’s letter of 28 January 2016 sets out her position:

    As I have not received a reply to my smses and previous correspondence [A] and [B] will accompany me and remain in my care until appropriate arrangements can be made for them to be collected by you or your nominee, as per the orders of May 2009.

61. The children have remained with their Mother ever since.

62. The Father provided a letter from Interrelate Contact Centre Orange dated 2 March 2015 which stated that they no longer provided services for “Changeover’s and Changeback’s” (sic).

63. In his affidavit sworn on 5 February 2016 in support of his “Application – Contravention” filed in the Federal Circuit Court of Australia in relation to the Mother not returning the children after the January school holidays, the Father referred to the fact that Interrelate no longer provide a changeover service. However, in his letter to the Mother dated 9 January 2016 he enclosed rail tickets for the children to travel from Orange to Strathfield Station where he would collect them and stated:

    The ticket provides for you to drop them either at InterRelate, Orange at 9.00 am so they can walk to the station to board the bus or alternately you can drop them at Orange Station as you prefer.

64. In the “Application – Contravention” form in the space headed “Statement of the alleged contravention” he wrote:

    The Mother did not deliver the children to InterRelate Orange, nor to the Orange Railway Station so that they could return to the care of their Father.

65. The Father continued to refer to InterRelate Orange and rely on it to found a contravention of the 2009 court order, despite the letter of 2 March 2015.

66. The Mother did not agree to the extension of the contact period or to the children travelling by train at the end of the January school holidays. Arguably, she complied with the 2009 court order in January 2016 and the Father did not.

1. The 2009 Court orders also provided for the Mother to have the children during specified weekends during school term as well as for parts of other school holidays and included arrangements for their collection and return. The Father has applied to the Family Court and Federal Circuit Court for alleged contraventions of those arrangements and has also applied for the return of the children.

2. No decision of either court on any of the Father’s applications was in evidence.

3. The Mother and Father have a history of not co-operating with each other over many years. They gave mostly conflicting evidence. The Father provided hundreds of pages of documents and argument to support his case. Where there was conflicting evidence and no objective reliable evidence, the Tribunal is unable to make findings of fact.

4. As it was arguable that the Mother complied with the 2009 court order in January 2016 and the change of care was a consequence of the Father’s breach of his obligation to collect them in Orange on 27 January 2016, the alleged contraventions by the Mother that followed may be seen in a very different light from how the Father sought to frame them. Without decisions of the Family Court or Federal Circuit Court on the initial January 2016 or subsequent alleged breaches of the 2009 court order, the Tribunal is not satisfied that the Father took reasonable action to ensure that the care arrangement was complied with. Subsection 51(1)(d) was not satisfied and s 51 does not apply in this case.

5. The Father also relied on s 52 of the Act. The Tribunal does not consider that any of the Father’s applications to the Federal Circuit Court or Family Court was to make another care arrangement in relation to A and B. His objective has been to have the care arrangement complied with. Therefore s 52(d)(ii) is not satisfied and s 52 does not apply in this case.

6. As the Father has not been successful in his application, the question of refunding the application fee does not arise. The removal of all penalties from Child Support Agency statements is not a matter under review in the Tribunal.

   DECISION

7. No interim period applies. The Father has had no pattern of care since January 2016. Therefore the new percentages of care are 0% for the Father pursuant to s 49 and 100% for the Mother pursuant to s 50 of the Act. The care percentages apply from 15 March 2016, the day after revocation day.

8. The decision under review is affirmed.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............[sgd].........................................................

Associate

Dated: 14 August 2018

Dates of hearing:	17 November 2017 & 9 January 2018
Applicant:	In person
Solicitors for the Respondent:	Ms J Eslick & Ms A Wong, Department of Human Services
Joined Party:	By telephone