TZBP and Child Support Registrar (Child support second review) - [2020] AATA 19

TZBP and Child Support Registrar (Child support second review) [2020] AATA 19 (10 January 2020)
Division:GENERAL DIVISION
File Number: 2019/1193
Re:TZBP
APPLICANT

AndChild Support Registrar
RESPONDENT

AndJMRN
OTHER PARTY

DECISION
Tribunal:Brigadier A G Warner, Member

Date:10 January 2020
Place:Perth

The Other Party’s request that application 2019/1193 be dismissed pursuant to s 42B(1) of the Administrative Appeals Tribunal Act 1975 (Cth) is refused.
..........[sgd]..............................................................
Brigadier A G Warner, 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
PRACTICE AND PROCEDURE – Child Support Registrar – percentage of care – request by Other Party to dismiss Applicant’s application for review of decision of Administrative Appeals Tribunal, Social Services & Child Support Division – whether substantive application is vexatious – merits of substantive application – request for dismissal refused
LEGISLATION
Administrative Appeals Tribunal Act1975 (Cth) – s 42B
Child Support (Assessment) Act1989 (Cth) – ss 35, 49, 50, 54A(1), 54B(1)
Child Support (Registration and Collection) Act1988 (Cth) – s 87AA
CASES
Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198
Romanov-Hughes and Comcare [2001] AATA 1030
Theo v Registrar, Department of Family and Community Services [2006] FCA 279
SECONDARY MATERIALS
Guide to Social Policy Law, Child Support Guide – 2.2.1
REASONS FOR DECISION
Brigadier A G Warner
10 January 2020
INTRODUCTION

The Applicant (TZBP) seeks review of a decision of the Administrative Appeals Tribunal, Social Services & Child Support Division (AAT1) dated 17 January 2019, in relation to the percentage of care that she and the Other Party (JMRN) had of their two sons
(the children).
The AAT1 affirmed a 12 September 2018 decision of the Child Support Registrar (Registrar) which allowed JMRN’s objection to an earlier care percentage decision, finding that from 17 April 2018 TZBP had 83% care of the children and JMRN had 17% care, but with effect from 14 July 2018 (objection decision) (T17/173-195).
JMRN has applied for TZBP’s application to be dismissed on the basis that it is vexatious and not in the interests of the children.
TZBP and JMRN participated in the interlocutory hearing by telephone conference, were self-represented and gave evidence on affirmation.
Ms L Hinwood represented the Registrar and participated by telephone conference from Canberra. The Registrar takes a neutral position and does not hold a substantive interest in, nor contend for, any particular outcome in this proceeding. The Registrar provides submissions regarding JMRN’s dismissal application solely for the purposes of assisting the Tribunal to make the correct or preferable decision in relation to the application for dismissal (Exhibit R1).
BACKGROUND
TZBP and JMRN are the separated parents of the children.
A child support case was registered on 8 May 2018 and the following decisions were made on that date regarding the percentage of care of the children:
(a)The child support assessment commenced from 10 April 2018, with TZBP having 100% care of the children from that date until 16 April 2018 (T5/38-40).
(b)From 17 April 2018 there had been a change in care of the children, with TZBP having 87% care of the children and JMRN having 13% care (original decision) (T5/36).
On 18 June 2018, JMRN objected to the original decision (T6). On 12 September 2018, the Registrar allowed the objection, finding that from 17 April 2018 TZBP had 83% care of the children and JMRN had 17% care, but with effect from 14 July 2018 (objection decision) (T17).
On 10 October 2018, TZBP applied to the AAT1 for review of the objection decision (T21), and on 17 January 2019, the AAT1 affirmed the objection decision (T2).
On 5 March 2019, TZBP applied to this Tribunal for review of the AAT1 decision, providing in her application detailed reasons why she wanted to have the objection decision reviewed (T1/4-5).
On 7 May 2019, JMRN applied for the application to be dismissed on the grounds that it is ‘vexatious and not in the interests of our children who have a right to spend time with and know both of their parents’ (Exhibit OP1, p1).
ISSUE
The issue to be decided at this interlocutory stage is whether the application should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth)

(AAT Act)
.
LEGISLATION, POLICY AND AUTHORITIES
Tribunal’s power to dismiss an application
The Tribunal has the power pursuant to s 42B of the AAT Act to dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)has no reasonable prospect of success; or
(c)is otherwise an abuse of the process of the Tribunal.
The principles concerning the superseded power to dismiss on the basis that the substantive application is vexatious were examined by Spender J in Theo v Registrar, Department of Family and Community Services [2006] FCA 279. At paragraph [29], His Honour stressed the critical need to ascertain whether an application was futile before contemplating the exercise of the power to dismiss. His Honour placed heavy reliance on the decision of French J (as he then was) in Duncan v Fayle [2004] FCA 723 where French J stated:
A decision dismissing an application as frivolous or vexatious under s42B(1) is a decision which finally disposes of the application. It has necessarily involved a consideration of the merits in the sense that it requires a finding that the application cannot succeed.
In the matter of Romanov-Hughes and Comcare [2001] AATA 1030, Senior Member Dwyer affirmed that the following principles should be applied when considering whether to dismiss an application on the basis that it is vexatious:
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1.Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2.They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3.They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
In the matter of Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198

Deputy President Jarvis set out at [33] principles that should be followed in determining

s 42B applications under the superseded version of the section. The Tribunal considers that these principles continue to provide guidance, and they relevantly include:
a)The word “frivolous” in combination with “vexatious” is a technical term, which means that there is no legal basis for the proceedings; it does not necessarily connote that an applicant has acted frivolously in bringing proceedings: Pitt v OneSteel Reinforcing Pty Ltd [2008] FCA 923 at [9].
b)The expression “vexatious” can include proceedings brought with the intention of annoying or embarrassing or harassing the other party, or for some collateral purpose other than having the court or tribunal adjudicate on the issues raised by the proceedings, or, irrespective of the motive of the litigant, if the proceedings are “so obviously untenable or manifestly groundless as to be utterly hopeless”; Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J, or if the proceedings have “no reasonable prospect at all of success”: Abrahams v Comcare [2006] FCA 1829; (2006) 93 ALD 147 at [24], per Madgwick J.
c)The power of the tribunal to dismiss proceedings under s 42B is a power that should be used cautiously. Unless the tribunal is satisfied that the application is frivolous or vexatious in the sense referred to in subparagraphs (a) and (b) above, an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130.
d)However, if proceedings have no reasonable prospect at all of success, they should be dismissed under s 42B, since it would be futile for the proceedings to continue, and inappropriate to use the time and resources of the tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing.
(Original emphasis.)
Substantive application
The legislative provisions relevant to the substantive application (child support percentage of care) are contained in the Child Support (Assessment) Act 1989 (Cth)
(Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act).
The Child Support Guide (Guide) provides further guidance to decision-makers and should be taken into account unless there are cogent reasons not to do so.
EVIDENCE
The Tribunal had before it the following evidence:
·The ‘T Documents’ (T1-T27, pp1-311);
·
Submissions and attachments (1-14) filed under cover of email dated

30 August 2019 (Exhibit A1);
·Further submissions and attachments (15-17), Qantas E ticket and Screenshot ‘Company’ filed under cover of email dated 30 Aug 2019 (Exhibit A2);
·Submissions filed under cover of email dated 23 August 2019 (Exhibit A3);
·Submissions filed under cover of email dated 22 August 2019 (Exhibit A4);
·
Application for dismissal filed under cover of email dated 7 May 2019

(Exhibit OP1);
·Affidavit of the Other Party dated 24 June 2019 (Exhibit OP2);
·Submission under cover email dated 17 September 2019 with attachment titled ‘Final Property Settlement’ (Exhibit OP3);
·Respondent’s Submission Regarding Dismissal Application dated 29 October 2019 (Exhibit R1);
·The oral evidence of the Applicant (TZBP); and
·The oral evidence of the Other Party (JMRN).
CONSIDERATION
The substantive application before the Tribunal is essentially a dispute between the parties (TZBP and JMRN) as to the percentage of care provided to the children during the relevant period, that being the period of 12 months from 17 April 2018.
In the decision under review dated 17 January 2019, the AAT1 calculated that JMRN was to have care of the children for 67 nights from 17 April 2018 (T2, para 25), and that therefore TZBP was to have 83 % care and JMRN 17 % care for the care period

17 April 2018 to 28 April 2018 (T2, para 26). The AAT1 noted that ‘either parent can submit a further change of care should they believe this is warranted’ (T2, para 27).
To assist the Tribunal in reaching the correct or preferable decision in this interlocutory proceeding, the Registrar contends that it is relevant for the Tribunal to consider the merits of the substantive application and provides the following submissions regarding JMRN’s dismissal application:
Merits of the substantive application
25.As outlined above, in determining whether to exercise its discretion to dismiss this application it is relevant for the Tribunal to consider the merits of the substantive application.
…
Percentage of care decision
27.Part 5 of the Assessment Act provides for the administrative assessment of child support.
28.Section 35 sets out the basic formula (‘Formula 1’), which applies to the present case, being a case in which neither parent has another child support assessment and only the parents provide care for the children.
29.Step 4 in Formula 1 is to work out each parent’s percentage of care for the child/each child in accordance with Subdivision B of Division 4 of Part 5 of the Act.
Subdivision B of Division 4 of Part 5 of the Act
30.Percentage of care determinations may be made under sections 49 or 50 of the Act, depending on the pattern of care provided by a responsible person. Subsection 5(1) defines responsible person for a child to mean a parent or non-parent carer.
31.Relevantly to the decision under review, subsection 50(2) of the Assessment Act provides that the Registrar must determine the responsible person’s percentage of care for the child during the care period if, in accordance with subsection 50(1)(a):
an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
32.As for pattern of care, the Guide at 2.2.1 – Basics of care, states that ‘…the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination’.
33.Subsection 50(3) provides that any percentage determined under subsection 50(2) must be a percentage that corresponds with the ‘actual care’ of the child that the Registrar is satisfied that the responsible person had, or is likely to have, during the care period.
34.As for actual care, subsection 54A(1) provides that the actual care during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period. The Guide at 2.2.1 – Basics of care, advises that the Registrar will consider the following:
a.      To what extent the person has control of the child, including having overall responsibility for the child and making:
·     Major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
·     Arrangements for others to meet the needs of the child (delegated care)
b.      To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities
c.      To what extent the person pays for the costs of meeting the needs of the child
d.      To what extent the person otherwise provides financial support for the child
e.      To what extent the child provides for his or her own needs or has those needs met from another source
f.       To what extent the child is financially independent or financially supported from another source
35.As for care period, section 5 of the Act provides that a “care period” has meaning given by sections 49(1)(a), 49(1)(b)(ii), 50(1)(a) or 50(1)(b)(ii). Whilst these sections do not specify any fixed duration, the care period is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child.
36.The Guide at 2.2.1 – Basics of Care, advises that ‘A care period is generally a 12-month period from the day on which the actual care of a child began … The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.’
37.Whilst a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter period may be more appropriate. A care period of less than 12 months may be appropriate where the pattern of care would gradually change over a definable period of less than 12 months in a specific and measurable way.
38.Subsection 54B(1) relevantly provides that if a determination of a responsible person’s percentage of care is made under section 50, the percentage of care applies to each day from the application day unless a revocation of the determination takes effect.
39.The Registrar contends that the care period that is relevant to the decision under review is the period of 12 months from 17 April 2018. As this care period is now in the past, the Tribunal is required to determine the actual care that occurred during the relevant period.
40.As the OP did not lodge his objection to the original decision within 28 days, any new care percentage decision can only have effect from the date he lodged his objection (14 July 2018) unless the Tribunal is satisfied there were special circumstances that prevented him from lodging his objection within 28 days of receiving the original decision – s87AA of the Registration and Collection Act.
(Original emphasis.)
JMRN’s affidavit dated 24 June 2019, referring to vexatious litigation, states as follows:
8.The applicant has refused to mediate with me on either children or property matters and I have a 601 certificate issued by a Family Dispute Resolution Practitioner confirming that she would not commence the process. The current action by the applicant could also have been potentially resolved through mediation however the applicant is unable to do this.
9.The recent application by the applicant to the Federal Court Circuit [sic] resulted in costs being awarded to me on the basis that her application was “misconceived” and that she is “disgruntled” with the justice system. The reason for judgement state:
10.I think there is the likelihood of an interminable and costly and misdirected attempt at re-litigation of something that has been finalised. I am satisfied that that is in substance what the mother is trying to do. There must be an end to litigation, particularly in relation to children.
11.I urge the Administrative Appeals Tribunal to dismiss the application and to cease encouraging litigants to pursue appeals through this avenue that discourage parties from supporting children of separation from having a meaningful relationship with both their parents… There must be a more conciliatory approach by the system that does less damage to children. I hope beyond all measure that those actively involved in the system can work towards formulating such an approach to separation to end the process of constant litigation and support children to have a meaningful relationship with both parents.
(Exhibit OP2, p2-3)
Before the Tribunal, both parties demonstrated difficulty in focussing on the relevant care period, attempting to talk about their broader differences related to the children and events such as arrangements for the last school holidays. Relevantly, the Registrar reminded the parties that the entire care period is now in the past and that it was necessary to obtain a clear understanding from each party as to the number of nights of care they actually had in the care period, regardless of the AAT1 finding.
JMRN told the Tribunal that this case involved a kidnapping resulting in a legal battle to forge an ongoing relationship with the children, and that TZBP was attempting to deny him contact for financial gain. He said that he hoped to establish through the present proceedings a financial figure such that he and his family could have a relationship with the children. JMRN said that TZBP had made repeated but unsuccessful attempts to put him in prison. JMRN made clear in several emotionally charged statements, and genuinely in the Tribunal’s view, that he would do whatever was required to be able to spend time with the children.

JMRN initially told the Tribunal that the periods that he had care of the children were as provided in the AAT1 decision ‘at point 25’ (See T2/10), adding ‘I’m not deviating from that’ (Transcript, p19 at [5]). He then corrected that history and agreed with the account provided by TZBP and recorded in the paragraph below.
TZBP told the Tribunal that apart from the following periods when the children were in JMRN’s care, the children were in her care throughout the relevant period of care:

17 April 2018 to 28 April 2019; 8 June 2018 to 13 June 2018; 2 July 2018 to 14 July 2018; 23 September 2018 to 4 October 2018; 19 January 2019 to 2 February 2019; and

14 April 2019 to 28 April 2019.
TZBP further submitted that it was unfair that the period of care as determined by the AAT1 extended beyond 12 months to 28 April 2018 rather than ending on 16 April 2018. TZBP submitted that ‘the amount of nights that I counted for this particular case are below the regular care bracket’ (Transcript, p15 at [5]).
The Registrar advised as follows:
In the Child Support Guide it’s stated that a care period will generally be 12 months, but there are circumstances in which a longer or shorter period may be appropriate. The period of 12 months isn’t specified anywhere in the legislation, so it is ultimately I suppose if you consider it appropriate, to take into account those extra days in April, then there’s no reason why you couldn’t do that.
(Transcript, p26 at [5])
The Tribunal is of the view that any consideration of a change to the period of care as determined by the AAT1 should properly be addressed by the Tribunal in a hearing of the substantive application, should the Other Party’s dismissal application be refused in the present interlocutory proceedings.
CONCLUSION
The Tribunal concludes that JMRN’s dismissal application reflects his genuine concern for the best interests of the children and the understandable and natural desire that he and his family have appropriate access to the children.
However, having carefully considered the material before it and the circumstances of this matter, the Tribunal is not satisfied that TZBP’s substantive application is vexatious having regard to the guidance provided by the authorities at paragraphs 14 to 16 above. Further, the Tribunal does not consider that the substantive application could be assessed as manifestly groundless, obviously untenable or utterly hopeless. The Tribunal is therefore not satisfied that TZBP’s substantive application has no reasonable prospects of success.
DECISION
It follows from all the above that the Other Party’s application to dismiss the Applicant’s application 2019/1193 for review of the AAT1 decision dated 17 January 2019, related to the percentage of care of their children, is refused.

I certify that the preceding 33 (thirty-three) paragraphs are a true copy of the reasons for the decision herein of Brigadier A G Warner, Member

.....[sgd]...................................................................
Associate
Dated: 10 January 2020

Date of hearing: 12 November 2019

Applicant:
By phone

Representative for the Respondent:

Other Party:

Department of Human Services

By phone