RDQD and Child Support Registrar (Child support second review)

[2020] AATA 3123

RDQD and Child Support Registrar (Child support second review) [2020] AATA 3123 (24 August 2020)

Division:GENERAL DIVISION

File Number(s):      2018/6860

Re:RDQD

APPLICANT

AndChild Support Registrar

RESPONDENT

AndXVHS

OTHER PARTY

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:24 August 2020

Place:Sydney

The decision of the Social Services & Child Support Division of the Administrative Appeal Tribunal dated 5 November 2018 is stayed from the date of this decision.

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The Hon. John Pascoe AC CVO, Deputy President

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

PRACTICE AND PROCEDURE – STAY APPLICATION – application for stay of decision on care percentage determinations for child support – prospects of success – consequences of refusal – financial impacts – public interest – whether stay necessary to preserve the efficacy of the review proceedings – stay granted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) s 54F
Administrative Appeals Tribunal Act 1975 (Cth) s 41

CASES

Scott v Australian Securities & Investments Commission [2009] AATA 798

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

24 August 2020

INTRODUCTION

1. The applicant in this matter is the father (the applicant) and the other party to the proceedings is the mother (the other party) of two children born in May 2010 and February 2013.

2. This matter has a complex history in relation to care percentage determinations regarding the applicant’s and other party’s children. I have summarised this history below.

3. On 12 October 2017, a Child Support Assessment determined that the other party’s care percentage was 100% and the applicant had 0% of care of both children for the period 15 September 2017 to 5 October 2017.

4. On 12 October 2017, a Child Support Assessment was also issued determining that the other party’s care percentage was 85% and the applicant’s care percentage was 15% for the period 6 October 2017 to 14 December 2018.

5. The other party objected to this care percentage decision on 25 October 2017.

6. In a decision made on 24 January 2018, the respondent determined that the other party’s care percentage was 86% and the applicant’s care percentage was 14%.

7. On 1 May 2018, the other party made an application to amend the Child Support Assessment on the basis that the applicant did not have care of the children during the school holiday period. On 2 May 2018, the applicant responded to this application, noting that he believed that there was no change in care, but rather that the other party had denied him access to the children on two occasions.

8. On 12 May 2018, the respondent decided to revoke the existing percentage of care and a new percentage of care determination was made that the other party provided 90% of care and the applicant provided 10% of care of both children, effective from 1 May 2018. 

9. The applicant objected to the decision on 29 May 2018 because he said that the other party denied him access to the children on two occasions.

10. On 3 September 2018, the applicant’s objection was allowed, as an objections officer found it could not be satisfied that there had been a change to the existing care determination for the children from 1 May 2018, and therefore the mother’s care percentage remained at 86% and the father’s care percentage at 14%.

11. The other party sought review of that decision in the Social Services & Child Support Division of the Tribunal (AAT1).

12. AAT1 decided on 5 November 2018 to set aside the decision made on 3 September 2018 and in substitution decided that from 1 May 2018 the other party had 87% of the care of the children and the applicant had 13% of the care of the children.

13. The applicant applied for review of the decision made by AAT1, and on 12 February 2020 the Administrative Appeals Tribunal (General Division) (AAT2) decided that the decision of AAT1 was set aside and in substitution found that there was no change in the applicant’s care percentage from 1 May 2018.

14. On 11 June 2020, the Federal Court of Australia, by consent, ordered that the decision of AAT2 made on 12 February 2020 be set aside. The Federal Court found that the previous decision was affected by an error of law, particularly in misapplying the statutory test by failing to consider whether section 54F of the Child Support (Assessment) Act 1989 (Cth) applied to the facts before it.

15. On 30 June 2020, the applicant applied for a stay of the AAT1 decision until a decision was made by the Administrative Appeals Tribunal (the Tribunal) in the current proceedings. In his stay application to the Tribunal, the applicant said that “with the matter being remitted, [his] Child Support Assessment has been adjusted to now reflect a false debt of over $12,000 which child support are now pressuring [him] to make payment on”, which he said will place him at “significant financial disadvantage” whilst waiting for a final decision in the matter to be determined at hearing.

16. The respondent adopted a neutral position in neither consenting to, nor opposing, the stay order sought.

17. The other party opposed the stay on the basis that she was currently bearing all or most of the financial burden for the children and that she had been doing so for some considerable period.

18. It is noteworthy that there was considerable hostility demonstrated on the part of both parties towards each other and neither party seemed willing to either accept the views of the other nor to work towards a compromise.

    LEGISLATIVE FRAMEWORK

19. The matters to be considered by the Tribunal in determining whether or not to exercise its discretion to grant a stay under subsection 41(2) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) are well settled and were clearly enunciated by the then President of the Tribunal in Scott v Australian Securities & Investments Commission [2009] AATA 798. These matters include:

    (a)the prospects of success;

    (b)the consequences to the applicant of a refusal of the stay;

    (c)the public interest;

    (d)the consequences for the respondent in carrying out its functions depending upon whether a stay was granted or not;

    (e)whether the application for review would be rendered nugatory if a stay were not granted; and

    (f)other matters that are relevant.

20. In considering whether to exercise my discretion, I have had regard to these matters as I have set out below.

    Prospects of success

21. On the material available at the interlocutory hearing, it is not possible to come to a final view as to the applicant’s prospects of success. The child support legislation is quite complex, and it is important to consider the evidence carefully and in the context of the legislative framework. Findings as to credibility may be important at the hearing in reaching a final decision on the patterns of care in relation to the children in the absence of objective evidence.

22. Whilst AAT1’s decision was overturned for a higher care percentage determination in favour of the applicant in the AAT2 decision dated 12 February 2020, it has subsequently been remitted back to the Tribunal because the decision was affected by an error of law. The Tribunal will need to consider the matter de novo at the hearing and in accordance with the relevant legislative framework.

23. In this interim period, however, there does seem to be benefit in not requiring the applicant to make payments that would cause him financial hardship if there is a possibility that the decision could be reversed within a short period of time, although this is by no means certain.

24. I note that the Child Support Registrar has adopted a neutral position in relation to this application.

25. On balance, I find that the applicant has at least some prospect of success, given the history of the matter which has been litigated since 2017. I note the Child Support Registrar offered no views on this issue, which clearly turns on the facts of the case to be heard.

    The consequences to the applicant of a refusal of the stay

26. In written and oral submissions at the interlocutory hearing, the applicant said that he would face “severe financial hardship” if he had to pay the outstanding debt. The applicant said that he believed the Child Support Registrar’s debt owing was “incorrect” in line with the previous decision of AAT2.

27. Whilst I note that this decision has been overturned by the Federal Court and will be considered again at the hearing, there seems to be little benefit in the applicant incurring financial hardship before a new decision has been made on the correct and preferable determination of care percentages.

    The public interest

28. It is clearly in the public interest for parents to take appropriate shared responsibility for the support of their children. The statutory regime for child support is designed to facilitate, regulate and enforce payments for the care and maintenance of children. Again, it is clearly in the public interest for the child support regime to function effectively, for assessments of child support to reflect the reality of the care provided by each parent and for parents to meet their obligations.

    Consequences for the respondent

29. There is no particular consequence for the respondent if the stay is granted, other than a possible delay in debt collection. It is relevant here that the respondent did not raise any potential consequences of the stay application being granted at the interlocutory hearing or in their written submission to the Tribunal.

    Consequences for the other party

30. The other party claimed that she would experience financial hardship caused by what she said was the applicant’s failure to pay the requisite child support.

31. Any financial hardship caused to the other party may in part be mitigated by an early hearing of the matter to determine the correct and preferable care percentages of both parties in accordance with law. Any payments that may be owed to the other party as a result of this decision will then be adjusted to cover the period of delay. I note that the other party when asked by the Tribunal did not push for an early hearing as requested by the applicant. The other party said that her preference is for the hearing to take place during the spring school holidays, which are only approximately five weeks away.

    Would the application for review be rendered nugatory?

32. I do not consider that the application for review would be rendered nugatory if the stay were granted, as the only consequence of the stay may be a delay in the making of appropriate child support payments, which will be adjusted in any event to cover the period of delay.

33. The consequences for the other party can be mitigated by an early hearing. Again, in this regard I note that the applicant wanted the matter heard as soon as possible, but the other party requested a delay of some five weeks in order for the matter to be heard during the school holidays, because of the potential adverse effects on third parties due to her position as an educator. The parties were asked to come back to the Tribunal with dates to list the matter for the earliest possible hearing.

    DECISION

34. I am of the opinion that the correct and preferable decision is to exercise my discretion to grant a stay of the AAT1 decision dated 5 November 2018, effective from the date of this decision.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

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Associate

Dated: 24 August 2020

Date of hearing:	14 August 2020
Applicant:	In person (by telephone)
Solicitors for the Respondent:	Ms K Evans, Sparke Helmore Lawyers
Other party:	In person (by telephone)