RKCM and Child Support Registrar (Child support second review)

[2016] AATA 967

RKCM and Child Support Registrar (Child support second review) [2016] AATA 967 (7 October 2016)

Division	GENERAL DIVISION
File Number	2015/1530
Re	RKCM
APPLICANT
And	Child Support Registrar
RESPONDENT
And	XBVZ
OTHER PARTY

DECISION

Tribunal	Senior Member N A Manetta
Date	7 October 2016
Date of written reasons	30 November 2016
Place	Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.

.......................[Sgd].................................................

Senior Member N A Manetta

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 - respective percentage of care – analysis of care shows 66:34 percentage split appropriate – one party arguing that percentage care should be higher because other party had disobeyed a court order regulating access – other party disputing that contention – court order ambiguous – appropriate for Tribunal on review to look to pattern of actual care – inappropriate to decide question of appropriate interpretation of court order.

LEGISLATION

Child Support (Registration and Collection) Act 1988

REASONS FOR DECISION

Senior Member N A Manetta

30 November 2016

1. After delivery of my oral decision, I received a request for written reasons which I now publish.

2. This is an application by RKCM seeking review of the decision of the Social Security Appeals Tribunal (SSAT).  The application concerns the appropriate percentage of care that RKCM believes he should be awarded in respect of his two children.  The Child Support Registrar is named as the formal respondent to the proceedings.  XBVZ is the mother of the two children and was joined as an interested party.  RKCM and XBVZ represented themselves; Mr Hay appeared for the Registrar.

   BACKGROUND FACTS

3. As a matter of background, I note that the SSAT had before it an application by XBVZ.  XBVZ had appealed to the SSAT against a decision of the Registrar that her percentage care of the two children was 65% while RKCM’s was 35%.  The decision, made by the objections officer on review, had overruled the initial decision that determined that XBVZ’s and RKCM’s care percentages were 66% and 34% respectively.  XBVZ appealed, as I have said, to the SSAT against the objection officer’s decision and the SSAT found in her favour and decided that the appropriate percentages of care were 66% and 34%.  RKCM has brought an application to this Tribunal seeking reinstatement of the objection officer’s ruling.  I shall not go into the background facts concerning the decision-making that has occurred but I note the details are set out in the SSAT’s decision.

   ISSUE BEFORE TRIBUNAL

4. Hearing the matter afresh on the evidence before me, I must decide, effectively, whether the care percentages are 65:35 as found by the objections officer or 66:34 as found initially by the officer within the child-support registrar’s office and subsequently by the SSAT.[1]  It can be immediately seen that the question is an exceedingly narrow one.  I was assured by RKCM, and I accept, that the distinction is not a trivial one from his perspective, and that there are material and significant consequences that flow to him financially from a change to the percentages of care.

   [1] Or whether a third percentage split is more appropriate.

   STATEMENT OF CONCLUSION

5. In my opinion, the decision reached by the SSAT is the preferable one on the evidence presented to me.  Accordingly, my decision will be to affirm the decision under review.  I do not agree, I note, with certain aspects of the SSAT’s reasoning and I shall point out where I disagree; but I agree with the result.

   PARTIES’ SUBMISSIONS  

6. The respective care percentages had been contentious between the parties for some time.  Before me, however, it became clear that there was a degree of agreement as to the actual – I emphasise the word actual – care that the parties had in each of the calendar years 2012, 2013, and 2014.  By “actual care”, I mean the days/nights when the children were staying with one or other parent.

7. These years were reviewed by the parties and the results of their review are as follows. In the calendar year 2012, there is only one night where the parties are in dispute as to where the children were staying; namely, the evening of 5 April. RKCM asserts that he had care of the children for 128 nights that calendar year including the night of 5 April. XBVZ asserts that RCKM had care of the children for 127 nights only excluding the night of 5 April. Even if I assume in RKCM’s favour that he is correct in his recollection, RKCM’s care percentage is 34.97%. I am required by section 54D of the Child Support (Registration and Collection) Act 1988 to round this down to 34%, not round it up to 35%. XBVZ’s care percentage is 65.03% which by section 54D I must round up to 66%. The parties agree that in 2013 RKCM had actual care of the children for 123 days or 33.69%. Once again, I am required to round this down to 33%. In 2014, the parties agree that RKCM had actual care of the children for 126 days or 34.52%. Again, this must be rounded down to 34%.

8. I reiterate that these represent the percentages based upon the parties’ physical custody and care of the children during each of these calendar years.  In none of these three years did RKCM’s care reach 35%.  I have analysed the care arrangements over the two years preceding the effective date of the SSAT’s decision of 3 October 2014 and the care arrangements in the 2014 year as well to see if there has been any point at which RKCM’s care has exceeded 34%. As I have said, there is no year where that is the case.  In the circumstances, I do not see any basis for altering the SSAT’s decision based on the actual pattern of care of the parties in respect of their two children.

   Submission based on interpretation of Court Order

9. RKCM submitted that the pattern of actual care did not match up with the court-ordered care.  That is, in his view, XBVZ wrongly withheld care of the children from him on a number of nights in each of these calendar years.  RKCM’s submits that the nights when he was wrongly deprived of access should be counted towards his percentage.  XBVZ disputed that she had wrongly withheld the children on the nights in question.

10. I immediately say that I think both parties were honest in their respective beliefs.  The confusion has arisen because of certain court orders made in 2010 by the Federal Magistrates Court.  The orders are set out at T33,p 141-146 of the T documents.

11. Under clause 3(a) of these orders, RKCM was to have the children stay with him from the conclusion of school on each alternate Thursday until the commencement of school the following Monday.  By clause 6 of the orders, however, the ordinary weekend arrangements for the father were to be suspended during school holidays and were to resume on the first Thursday of each school term.  This clause was effective from the commencement of the school holiday period in December 2010.

12. RKCM maintains that on a proper construction of the orders as a whole, clause 6 does not mean that he should miss out on Thursday’s care before school holidays when it was “his Thursday”, so to speak, in accordance with paragraph 3(a).  XBVZ maintains clause 3(a) was suspended by virtue of clause 6 and the suspension includes the Thursday night before school holidays.

    SSAT’S APPROACH TO COURT ORDER

13. The SSAT decided that XBVZ’s interpretation was correct.  With respect, I think it was wrong for the SSAT to make that ruling.  It seems to me that the Child Support Registrar, the SSAT, and this Tribunal should not proceed to decide the correct interpretation of ambiguous orders.  This is not a case where the order is absolutely plain and where one party is clearly in the wrong.  I think both parties’ views are arguable on the face of matters.  I note in this regard I have only the order before me and nothing else to consider.

14. In these circumstances, the Registrar, the SSAT, and the AAT should refrain from concluding one or other party is right in his or her interpretation of the orders.  This is not, I reiterate, a case where it is absolutely plain one party has kept the children wrongly against the other party’s wishes.  In the circumstances of this case, where there is an ambiguity in the orders, the Registrar should be concerned solely to identify the actual pattern of care, leaving any dissatisfied party to seek to have the order clarified by the Court which made it.  To that extent, I disagree with the SSAT’s approach. I note that RKCM has not brought proceedings in the Federal Magistrates Court seeking clarification of the orders.  He has written, through his solicitor, to XBVZ about the matter but has not taken matters further.

15. Once the conclusion is reached that there is an ambiguity in the orders and that both interested parties bona fide believe they have an entitlement by law to care of the children on disputed nights, it is sufficient to look to the actual care provided by the parties as decisive of the question of the appropriate care percentage to allocate.  An administrator is not well equipped to interpret court orders.  The administrator will not have access to information on the court file, the submission of parties, or transcript, any of which may shed light on the meaning of the orders.  Review tribunals are similarly hampered.

16. There is a reference in the SSAT’s decision to another ambiguity in the orders at paragraph [30]. This was not the basis of submissions to me from the parties but I would note that what I have already said applies here as well.

    FORMAL ORDER

17. In my opinion, it is appropriate, and decisive, in the circumstances of this case to examine the pattern of actual care.  In none of the three years from 2012 to 2014 (inclusive) did RKCM’s care reach 35%.  In all the circumstances, it is appropriate to affirm the decision under review, which decided RKCM’s care was 34% with effect from 3 October 2014.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta

......................[Sgd]..................................................

Administrative Assistant

Dated 30 November 2016

Date(s) of hearing	22 January, 10 March, 6 April and 7 October 2016
Applicant	In person
Advocate for the Respondent	Mr A Hay
Solicitors for the Respondent	Dept of Human Services
Joined Party	In person