RSRB and Child Support Registrar (Child support second review)

[2022] AATA 1915

RSRB and Child Support Registrar (Child support second review) [2022] AATA 1915 (24 June 2022)

Division:General Division

File Number(s):      2021/7062

Re:RSRB  

APPLICANT

AndChild Support Registrar

RESPONDENT

AndCJTR

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:24 June 2022

Place:Brisbane

The Tribunal affirms the decision under review. That means the interim care period due to end on 18 March 2021 ended on 2 December 2020.

….......[SGD].........

Member P Ranson

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 – objection to care percentage change – interim care determination – Federal Court Orders – care withheld – when does an interim care order end – what is a care order – is visitation different from care – decision affirmed

Legislation
A New Tax System (Family Assistance) Act 1999 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth)

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.61, released 7 February 2022

REASONS FOR DECISION

Member P Ranson

24 June 2022

INTRODUCTION

1. The Applicant (‘RSRB) is the mother of a son, born in 2008 and now aged 14. In 2020 when the cause of the dispute now before the Tribunal arose, he was 12. The Other Party (‘CJTR’) is the father of the son. The parents separated many years ago and have a toxic relationship which makes negotiation between them all but impossible.

2. In 2012 the Federal Magistrates Court of Australia made parenting orders by consent of the parties, for the care of the son whereby the mother had sole parental responsibility for him, and the son was to live with the mother 72% of the time and spend 18% of his time with the father. Those orders were suspended in 2015 and reinstated in 2018. Then in 2020 the Court ordered the son be returned to the mother and again reinstated the 72/18 care arrangement.

3. By June 2020, the situation had deteriorated again, and the father advised Centrelink the son was living with him 100% of the time. The mother agreed the son was 100% in the care of the father and said the father was in breach of the orders which required him to return the son to her care. She sought and was granted an interim care determination for the period 31 March 2020 to 18 March 2021.

4. The matter came before the court again in December 2020 which made orders to provide the mother time with the son for limited periods starting with three hours and increasing to eight hours each Saturday. This brought the interim care determination to an end because the orders amounted to a care determination. The mother objected on the basis the December 2020 orders were not a care determination, but rather created visitation rights in a situation where the father was withholding care of the son from her. She sought for the order to be distinguished from previous orders due to the circumstances that gave rise to the situation at that time.

5. The issue in this case is whether the court orders made in December 2020 amounted to a care determination and if so, do they end the interim care determination in place at the time. It is uncontroversial the son was in the sole care of the father at that time.

6. Unfortunately for the Mother, a parenting order, as defined under the Family Law Act 1975 (Cth) section 64B, includes an order which specifies the person a child is to live with or the time a child is to spend with another person. On that basis, the December 2020 orders are a care order and as such end the interim care determination in place from 31 March 2020. This may be an unintended consequence of the legislation however decision makers, including this Tribunal, have no discretion to change that.

7. For the following reasons, the decision under review must be affirmed.

   BACKGROUND

8. The parties in this case are:

Applicant	RSRB (the Mother)
Respondent	Child Support Registrar (the Registrar)
Other Party	CJTR (the Father)

1. The decision under review was made by the Social Services and Child Support Division (SSCSD) of this Tribunal on 3 September 2021 (AAT1).[1] That decision affirmed the decision of an objections officer of the Registrar and in so doing, ended the interim care determination in place from 1 March 2020 and due to end on 18 March 2021.

   [1] Exhibit 1, T Documents, T2.

2. The issues identified by the Registrar to be decided are as follows:

   (a)Whether the December 2020 Orders ended the interim period, and if so

   (b)Whether there was a change in the care of the child from the applicable percentage of care determinations.

3. Since the mother agrees the son was in the full-time care of the father from 1 April 2020, albeit in contravention of the care orders in place at the time, the Tribunal does not need to decide what the actual care percentages were. The sole issue is whether the orders of the Federal Circuit Court of Australia (FCCA), now the Federal Circuit and Family Court of Australia, made on 2 December 2020 are a care determination.

4. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 12. The following documents were admitted into evidence:

Number	Description
Exhibit 1	T Documents
Exhibit 2	Supplementary T Documents
Exhibit 3	Care percentage Table
Exhibit 4	Applicant’s submission including chronology table
Exhibit 5	Orders of the Federal Circuit Court of Australia dated 9 December 2021
Exhibit 6	Notice of Family Dispute Resolution Conference dated 22 December 2021.
Exhibit 7	Proposed Family Orders dated 4 February 2022.
Exhibit 8	Letter to Collier Family Law dated 7 February 2022.
Exhibit 9	Notice of Costs filed in FCCA by the Applicant dated 11 February 2022.
Exhibit 10	Notice of Costs filed in FCCA by the Other Party dated 11 February 2022.
Exhibit 11	Certificate of Dispute Resolution dated 14 February 2022.
Exhibit 12	Consent orders (signed, unsealed) dated 14 February 2022.

1. The Tribunal has considered all the material supplied to it and the oral evidence of the Mother and Father at the Hearing. Not all the evidence is referred to at length, or at all, in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

   THE LAW

2. The Registrar’s Statement of Facts, Issues, and Contentions dated 24 February 2022 (SFIC) sets out in detail the Respondent’s view of the law which is relevant to this case with which the Tribunal concurs and adds two other relevant acts. The relevant legislation is contained in:

   (a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act)

   (b)Child Support (Registration and Collection) Act 1988 (Cth) (the Registration Act)

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

   (d)Family Law Act 1975 (Cth) (the Family Law Act)

   (e)Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act)

3. As a copy of the SFIC and its attachments were provided to the Mother and Father, prior to the Hearing, the law will not be reproduced in detail in this decision other than where directly relevant.

4. The Registrar’s SFIC also refers to the Child Support Guide (the Guide).[2] The Tribunal notes where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision  … cogent reasons will have to be shown against its application”.[3] The Tribunal considers there are no pressing reasons to depart from the policy outlined in the Guide.

   [2]  See Guides to Social Policy Law, Child Support Guide, Version 4.61, released 7 February 2022

   [3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

5. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act or Regulations.

   What happened?

6. As the facts of this case are largely undisputed, and the sole issue is the correct application of the law concerning a care determination, the facts as set out in paragraphs 7 to 24 of the Respondent’s SFIC[4] are accepted by the Tribunal. The salient points are:

   (f)On 20 November 2012, court orders were made which granted the Mother 72% and the Father 18% of the care of the son.

   (g)The son ran away from the care of the Mother and went to the Father in March 2020. Exhibit 7 reveals the son self-placed with the Father in 2020 as a means of stopping litigation, and the harassment and interrogation of him by the Father.

   (h)On 22 June 2020, the Registrar awarded the Mother an interim care determination from 31 March 2020 to 18 March 2021. The Father’s objection to this determination was disallowed by the Registrar and this Tribunal differently constituted.

   (i)On 2 December 2020, the FCCA made care orders (see below), one of the effects of which was to terminate the interim care determination.

   [4] Exhibit 2.

7. The Mother provided a timeline of events in this case, which has been expanded by the Tribunal. The result is as follows:

30.10.2019	Father is granted leave of the Court to file a new “Application in a case” (this is an originating application, where the father was the Applicant)[5]
06.03.2020	Father filed the application (subsequently dismissed on 20 March 2020)[6]
13.03.2020	Mother alleges child ran away; Father alleges Mother was abusive.[7]
14.03.2020	Mother filed Reply to Father Application in a Case[8]
20.03.2020	Interim hearing held resulting in temporary order[9]
27.03.2020	Mother alleges father begins to withhold care again (agreed fact that care changed here – Mother alleges child left and father withheld care; Father alleges mother was abusive)
02.12.2020	Matter held for mention. Judge makes care order by consent allowing the mother to have access to child.[10]
09.12.2020	Father notifies the Registrar of care change. The Registrar change the care percentages to reflect the order. The same day the court also issued another order compelling the parents to participate in dispute resolution.[11]

[5] Exhibit 1, T20, page 181 paragraph 3.

[6] Ibid, T23, page 190 paragraph 7.

[7] Exhibit 4, Applicant’s Submissions.

[8] Ibid.

[9] Exhibit 1, T Documents, T23.

[10] Ibid T30.

[11] Ibid, T30, T34 pages 217-218; Exhibit 3.

What is the issue in this case?

1. As discussed above, on 2 December 2020, the FCCA made a care order by consent allowing the Mother to have access to child. The issue then is whether this order meets the definition of a care order under s 64B of Family Law Act. All previous decision makers found it was a care order. If so, it ends the interim care period granted to the Mother from 31 March 2020 and due to end on 18 March 2021.

2. A ‘care arrangement’ is defined in the Family Assistance Act in relation to a child means a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child or a parenting plan for the child or any of the following orders relating to the child:

   (j)a family violence order within the meaning of section 4 of the Family Law Act 1975 (Cth);

   (k)a parenting order within the meaning of section 64B of that Act;

   (l)a State child order registered in accordance with section 70D of that Act;

   (m)an overseas child order registered in accordance with section 70G of that Act.

3. If the order of 2 December 2020 is a parenting order within the meaning of section 64B of the Family Law Act then in it is a care arrangement, according to the above definition in the Family Assistance Act.

4. Section 64B of the Family Law Act sets out all the things that can be dealt with in a parenting order as defined by that section. Most of them don’t mention the word ‘care’ rather they talk about the person a child is to live with, the time a child is to spend with a parent or other persons and the allocation of parental responsibility for a child, among other things.

5. The critical part of the definition in section 64B for the purpose of this case is section 64B(2)(b) which refers to the time a child is to spend with another person or persons. Whether seen as making ‘care’ or ‘visitation’ orders, the December 2020 order does deal with the time the child is to spend with the Mother. On a plain reading of the legislation, it’s very difficult to argue it doesn’t meet the definition of a care arrangement.

6. The care orders dated 2 December 2020 of the FCCA state in paragraphs 1 and 2:

   1.That the child, [redacted] born [redacted] ('the child'), spend time with the Mother as follows:

   (a)   Commencing Saturday 5 December 2020, and each Saturday for a period of eight (8) weeks, three (3) hours each week from 10:00am until 1:00pm with changeover occurring at the [redacted] located on the foreshore.

   (b)   Commencing Saturday 30 January 2021, the child's time with the Mother increases to five (5) hours from 10:00am until 3:00pm with changeover occurring at the [redacted] located on the foreshore.

   (c)   Commencing Saturday 27 February 2021, the child's time with the Mother increases to eight (8) hours from 9:00am to 5:00pm each Saturday with changeover occurring at the [redacted] located on the foreshore.

   2.That notwithstanding the terms of these Orders, the child will have time with his Mother:

   (a)   For no less than three (3) hours on his birthday [redacted] if on a school day from after school until 7:00pm and if on a weekend from 9:00am to 12:00pm;

   (b)   On Christmas Day from 1:00pm to 5:00pm;

   (c)   On Mother’s day from 9:00am to 5:00pm.

7. The only interpretation of the above extract, which is open to the Tribunal, is it specifies the time the son is to spend with the Mother. The Mother argues it creates visitation rights for her necessary because the Father was withholding care. That may be so, however it still refers to the time a child is to spend with another person or persons.

8. Having determined the orders of 2 December 2020 are care orders, the question then is whether they caused the interim care determination in place at the time to end, which enlivens section 53A(1)(b) of the Assessment Act.

9. An interim period for a determination made under section 49 or 50 of the Assessment Act of a responsible person’s percentage of care for a child ends in certain circumstances. One such circumstance is on the day before the day a care arrangement, such as a court ordered care arrangement, in relation to the child begins to apply. That is what has happened in this case.

10. The Orders of the FCCA dated 2 December 2020 are a care determination. That means section 53A(1)(b) of the Assessment Act applies to end the interim care determination then in place.

    CONCLUSION

11. The outcome of this decision may seem unjust to the Mother and may not have been the policy intent to shorten an interim period in a situation like this. The Mother is arguing the new care arrangement is just a step in the process of restoring her care under the previous order, however the relevant law doesn’t accommodate that construction.

12. No amount of appeal to perceived policy objectives can make it permissible to give provisions a construction not reasonably open on the text when considered in its context. The terms of section 64B(2)(b) are clear and not open to the construction preferred by the Mother.

    DECISION

13. The Tribunal affirms the decision under review. That means the interim care period ended on 2 December 2020.

33.     
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

………………[SGD]…………………..
Associate
Dated: 24 June 2022

Date of Hearing:	18 May 2022; Final submission received 1 June 2022
Applicant:	By Microsoft Teams
Solicitor for the Respondent:	Mr Christopher Bishop
Other Party	By telephone