VGYL and Child Support Registrar (Child support second review)

[2017] AATA 1551

VGYL and Child Support Registrar (Child support second review) [2017] AATA 1551 (22 September 2017)

Division:GENERAL DIVISION

File Number:           2016/5730

Re:VGYL

APPLICANT

AndChild Support Registrar

RESPONDENT

AndBYQZ

OTHER PARTY

DECISION

Tribunal:Miss E A Shanahan, Member

Date:22 September 2017

Place:Melbourne

The Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1^st Tier), that between 23 March 2015 and 12 May 2015, VGYL had sole care of his daughters by virtue of Special Circumstances.

The reviewable decision of the AAT 1^st Tier in relation to the percentage of care is set aside and the Tribunal determines that from 13 May 2015 the percentage of care provided by VGYL is 37 per cent and the percentage of care provided by BYQZ is 63 per cent. 

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

Miss E A Shanahan, Member

CHILD SUPPORT – Family Court Orders – father actual care 100 per cent for a period of 50 days – mother being investigated for child assault – charges dropped – Special Circumstances found – Federal Circuit Court percentage care orders reinstated – decision in relation to percentage of care thereafter set aside

Legislation

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

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

Cases

Re Parent A and Child Support Registrar and Another (2013) 137 ALD 426
Polec v Staker [2011] FMCAFAM 959

P v Child Support Registrar [2014] FCAFC 98

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Miss E A Shanahan, Member

22 September 2017

1. On 26 October 2016 VGYL lodged an application for review by the General and Other Divisions of the Administrative Appeals Tribunal (AAT General Division). The reviewable decision in this case is that of the Social Security and Child Support Division of the Administrative Appeals Tribunal (AAT 1^st Tier) dated 13 January 2016.  The application to the AAT General Division related only to that part of the AAT 1^st Tier decision concerning the percentage of care between VGYL and BYQZ. VGYL accepted and agreed with the AAT 1^st Tier decision relating to the 50 day period in which he had been found, by virtue of special circumstances, to have provided 100 per cent of care for his two daughters. 

2. VGYL was informed by the Child Support Registrar (CSR) or their delegate that in order for the percentage of care to be changed to reflect the delegate’s decisions that from 7 October 2016 he had 36 per cent (and later 39 per cent) of the care of the children and BYQZ had 64 per cent (later 61 per cent), the determination of the AAT 1^st Tier must first be revoked.

3. At the hearing on 4 July 2017 VGYL was self-represented. Ms Belinda Lewis, Senior Government Lawyer of the Department of Human Services (the Department), appeared for the Registrar. Both parents gave evidence, BYQZ by telephone. The Respondent had filed documents in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 and both parents provided Statements of Facts, Issues and Contentions, as did the Respondent.

   BACKGROUND TO THE APPLICATION

4. VGYL and BYQZ are respectively the father and mother of two daughters, born in March 2010 and in July 2011 respectively. A child support system was first registered with the Department on 12 August 2014. A Parenting Plan dated 2 October 2014 was subsequently confirmed by Consent Orders made in the Federal Circuit Court of Australia (FCC) on 29 October 2014. As a result of the latter, the Child Support Division of the Department determined that VGYL had 32 per cent of the care of the daughters and BYQZ had 68 per cent of the care of the daughters. 

5. The Minutes of Consent Orders presented to the FCC on 29 October 2014 were seven pages long and had been altered. Several paragraphs had been crossed out and hand-written changes were made throughout the document. This appears to be the copy of the Orders provided to the CSR, although in the actual decision of the FCC, Judge Burchardt had directed that the Applicant file a clean, certified, electronic copy of the Minute in Word Format to.... his chambers. This so called clean copy was provided to the CSR and the Tribunal as an attachment to VGYL’s Statement of Facts, Issues and Contentions dated 25 April 2017.

6. On 20 March 2015, VGYL reported to police that BYQZ had assaulted their eldest daughter. The details of this assault are not relevant given the nature of the application. However, the report prompted an investigation by the police; who, on VGYL’s behalf, supported an Interim Intervention Order. After further investigation, the assault charges were dropped on 1 May 2015.  This was because the investigating officer, Leading Senior Constable Sam Island advised on 29 April 2015 that he had, with great reluctance, recommended withdrawal of the Intervention Order application. 

7. On 25 May 2015 an officer of the Department decided that the original 32 per cent to VGYL and 68 per cent to BYQZ care assignments remained unchanged for the interim period between 23 March 2015 and 12 May 2015. VGYL contacted the CSR indicating that no consideration had been given to the 100 per cent care he had provided during the period subject to Special Circumstances. The CSR considered his complaint as a new application rather than an objection and on 16 July 2015, confirmed that the care remained at the 32 to 68 per cent ratio. 

8. On 11 August 2015 VGYL lodged a formal objection to the decision of 25 May 2015. A determination was made on 16 October 2015 that Special Circumstances did exist. As a result VGYL had 100 per cent care of both children from 23 March 2015 to 30 April 2015 but determined that from 1 May to 12 May 2015 the percentage of care had reverted to the 32 to 68 per cent ratio, the 68 per cent percentage of care being provided by BYQZ.

9. On 26 October 2016, VGYL lodged an application with the AAT General Division for a review of the AAT 1^st Tier decision made on 13 January 2016. The 1^st Tier review had been conducted on the basis of the application made by BYQZ in relation to the decision of the CSR. The CSR had determined that between 23 March 2015 and 12 May 2015 VGYL had 100 per cent care of his daughters due to Special Circumstances. In addition the decision-maker had determined that after 12 May 2015, the percentages of care for the two children reverted to those said to have been determined by the FCC at 32 per cent for VGYL and 68 per cent for BYQZ. VGYL’s application to the AAT General Division related only to the latter determination not to the substantive determination regarding the period 23 March until 12 May 2015, wherein he had sole care of the children as a result of special circumstances.

10. VGYL had contacted the Agency by telephone complaining that the percentage care calculated by them was incorrect. He advised that he had 137 nights per annum care, not 114 as had been estimated. The 137 nights amounted to 37.5 per cent of the total care. Despite this complaint the nights of care on which the percentage was based remained unchanged as of 18 November 2015. On 3 September 2016 a delegate of the CSR allowed VGYL’s objection and decided that VGYL had 36 per cent care and BYQZ had 64 per cent care of the two children in the care period commencing 2 October 2014. In this decision the delegate initially reported that the child care percentages were 42 per cent to VGYL and 58 per cent to BYQZ and this determination had been dated 29 July 2014. However, this had been changed on the advice of BYQZ, that the care arrangements had changed from 2 October 2014 and this new arrangement would stand until they returned to court in June 2015. 

11. The letter regarding the determination of 3 September 2016 also advised that the Agency could only give effect to a new care percentage determination after revocation of the existing one. The delegate also considered whether they could change the earlier determination under s 54G of the Child Support (Assessment) Act 1989 (the Act). VGYL had not lodged his objection within 28 days of the earlier decision of 17 November 2015; and as no cause could be found for his delay that would meet Special Circumstances, the decision (despite being in favour of VGYL) was found not to be effective. 

    EVIDENCE BEFORE THE TRIBUNAL

    VGYL

12. VGYL gave evidence that it was his belief that BYQZ had not provided the CSR with copies of the Court Orders as made by Judge Burchardt but had only provided the earlier agreed orders which were replete with alterations. He said that at all times they had followed the Court Order to the letter except for a short period in July 2015 when there was a misunderstanding as to dates. This was shortly after the period where he had sole care of the children for 50 days.

13. VGYL had successfully applied to the FCC because of a breach of the Court Order in September 2016; and as part of the new orders by the Court, he and BYQZ had been required to attend family therapy. He had attended but BYQZ had left after three sessions. VGYL continued to attend with the children until a few months ago.

14. BYQZ gave evidence by telephone. She confirmed that she suffered from a mental health disorder which had been diagnosed by a general practitioner and a psychologist as post-traumatic stress disorder (PTSD), the Category 1A stressor being required to found such a diagnosis being identified as the “marital problems”. BYQZ said that while she ran a cleaning business, she was not able to work as most of her time had been taken up with litigation. BYQZ agreed that VGYL had the children solely in his care between 22 March 2015 and 12 May 2015; and when asked by Ms Lewis what action she had taken to re-establish her care of the children, she answered she had got a solicitor. She agreed after some delay, that from 13 May 2015 onwards, she and VGYL had complied with the Court Orders. 

    DOCUMENTARY EVIDENCE

15. BYQZ provided a report from her psychologist and it appears that Dr Bell, clinical psychologist, is treating her for depression and anxiety. He has been treating her for five years and attributes her poor mental health to what he described as an invalidating and abusive marital relationship. He has quoted, at some length, a statement given by BYQZ to a court-appointed family counsellor; and it is within this quoted document that she claims that she has PTSD. This letter was written in BYQZ’s appeal for waiver of part or all of her accrued Centrelink debts. 

    RELEVANT LEGISLATION

16. Section 54A of the Act relates to the working out of actual care and extent of care of a child and provides:

    54A  Working out actual care, and extent of care, of a child

    (1)The actual care of a child that a person has had, or is likely to have, 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.

    (2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

    (3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.

    (4)This section does not limit section 50, 51, 52 or 54.

    Section 3 of the A New Tax System (Family Assistance) Act 1999 (the Family Assistance Act) defines care arrangement in relation to a child:

    3  Definitions

    (1)In this Act, unless the contrary intention appears:

    ...

    care arrangement in relation to a child means:

    (a)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

    (b)a parenting plan for the child; or

    (c)any of the following orders relating to the child:

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

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

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

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

17. In relation to the question of Special Circumstances the Act states:

    51  Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

    ...

    Single percentage of care in relation to the responsible person

    (5)If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

    (6)The single percentage of care is to be:

    (a)for a determination under section 49—0%; or

    (b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

    Part 2.2.4 of the Child Support Guide Instruction sets out when Special Circumstances should be applied.

    Special circumstances where an interim period does not apply

    The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply.

    This is relevant to the unchallenged part of this decision.

    Section 51(5) of the Act is relevant where there is actual care in Special Circumstances and states that:

    (5)If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

    However, s 54C(6) of the Act provides that the new percentage of care can only be applied if there has been a revocation under subdivision C of Division 4 of the Act.

18. New care provisions, once an existing care provision has been revoked, are to be made under s 49 or s 50 of the Act which state:

    49  Determination of percentage of care—responsible person has had etc. no pattern of care for a child

    (1)This section applies if:

    (a)either of the following applies:

    (i)     an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

    (ii)     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, no 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; or

    (b)the Registrar:

    (i)     revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and

    (ii)     is satisfied that the responsible person has had, or is likely to have, no 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.

    (2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.

    (3)The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 applies in relation to the responsible person.

    50Determination of percentage of care—responsible person has had etc. a pattern of care for a child

    (1)This section applies if:

    (a)either of the following applies:

    (i)     an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

    (ii)     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; or

    (b)the Registrar:

    (i)     revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and

    (ii)     is satisfied that the responsible person 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.

    (2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.

    (3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

    (4)Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.

19. Section 33 of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) is also attracted and states:

    33  Payee to notify Registrar of court order varying registered maintenance liability etc.

    (1)Where:

    (a)under this Act, the Assessment Act, the Family Law Act 1975 or the law of a State or Territory:

    (i)     an order is made by, or registered in, a court; or

    (ii)     a maintenance agreement is registered in, or approved by, a court; and

    (b)the order or agreement varies or otherwise affects a registered maintenance liability (other than a registered maintenance liability that is not enforceable under this Act because of an election made under section 38A or a decision of the Registrar under section 38B);

    the payee of the registered maintenance liability shall, within 14 days after the day on which the order is made by, or registered in, the court or the agreement is registered in, or approved by, the court, give notice to the Registrar, in the manner specified by the Registrar, in relation to the order or agreement.  ...

    a registrable maintenance liability is defined in s 4(1) and s 17(2) of the Registration and Collection Act which states:

    (2)Subject to section 19, a liability is a registrable maintenance liability if it arises under a child support assessment.

    SUBMISSIONS

20. VGYL spoke briefly to his Statement of Facts, Issues and Contentions, lodged with the Tribunal on 1 May 2017. This statement concerned only the percentage of care decision of 2 October 2014 and care decisions reflecting this thereafter. This was despite his complaints from 16 November 2015 that the care percentage was incorrectly calculated.  As a result of what he described as the incorrect calculations, VGYL submitted that he had overpaid child support since 2 October 2014 and had not been able to claim Tax Benefits A and B since 12 July 2014. He also nominated further periods when he did not receive Family Assistance payments, even though he had undisputed care of 42 per cent between 29 July 2014 and 2 October 2014, and an incorrectly calculated percentage care between 2 October 2014 and 10 October 2016. 

21. VGYL submitted that BYQZ, with whom the responsibility to notify the Court Orders rested, had not done so and he believed that the CSR had not received a copy of the Court Orders until they were provided by him in 2017. 

22. VGYL had made calculations in relation to the percentage of care which he contended, based on the Court Orders, should have been 37 per cent in his favour and 63 per cent in BYQZ’s favour. This was on the basis that he had 134 nights of care per annum as provided by the FCC Orders of 29 October 2014.  In his submissions, he contended that the initial care determination in relation to the children had been based on BYQZ’s verbal advice to the CSR on 4 November 2014; and that no actual care determination was calculated by the CSR or the AAT 1^st Tier until after his objection was received on 14 July 2016. 

    Ms Lewis

1. Ms Lewis has addressed the decision of the AAT 1^st Tier with respect to the actual care based aspect and Special Circumstances found to be present between 23 March 2015 and 12 May 2015. As VGYL has not applied for a review of this decision, these submissions are noted but are not detailed herein.

2. In relation to the percentage of care calculation, Ms Lewis submitted that while the Orders made on 29 October 2014 by the FCC set a parental responsibility and care for the children, it is not an order that affects a registered maintenance liability within the meaning of s 33 of the Registration and Collection Act. Ms Lewis contended that Court Orders assist the Registrar in making a decision but do not set the percentage of care for the purposes of the administrative assessment.

3. Ms Lewis also contended that the decision made on 12 November 2014 to set the care at 32 per cent for VGYL and 68 per cent for BYQZ was informed not only by the making of Consent Orders, but also on the basis that both parties agreed that the Consent Orders were being complied with and that they reflected actual care. As it was contended that s 33 of the Registration and Collection Act did not apply to this matter, s 37 and s 37A of the Registration and Collection Act were not attracted.

4. Ms Lewis made no contentions as to what was the correct and preferable decision in the matter.  Ms Lewis did, however, refer to various authorities, in particular, Re Parent A and Child Support Registrar and Another (2013) 137 ALD 426, in which the concept of a pattern of care was considered and that  the Tribunal should allow some flexibility depending on the facts and circumstances of each case.  Similarly, in P v Child Support Registrar [2014] FCAFC 98 and Polec v Staker [2011] FMCAFAM 959 the Court had addressed the concept of care and determined that it is broader than simply the provision of accommodation on any given night and that the percentage of care does not necessarily have to be determined by a reference to a time based calculation.

   TRIBUNAL’S DELIBERATIONS AND DECISION

5. Based on the evidence the Tribunal accepts that a pattern of care as required by s 50(1) of the Act was agreed to by the parties on 4 October 2014, reduced to a Draft Consent Order presented to the FCC on 29 October 2014, and adopted by the Court subject to a clean and clearer Minute being filed with the Court within seven days.

6. The provisions of this Consent Order were complex and detailed.  The order provided that the first three out of every four weekends were spent with the father VGYL, he taking the children from 5.30pm on a Friday to 7.45am on a Monday morning, except when the Monday was a public holiday, at which time the change-over was to occur at 7.45am on the Tuesday. The Court also made Orders that each parent had half of the school holidays, with 2015 and the odd numbered years thereafter to be with one parent for the initial period of the holidays; and the even years with the other parent.  Christmases were also to rotate, as was Boxing Day. Special provision was made for the Catholic celebration of Easter for VGYL and the Greek Orthodox Easter for BYQZ, where these events did not fall on the same weekend.  Provision was also made with respect to the children’s birthdays, Father’s Day and Mother’s Day. The children were otherwise to reside with their mother.

7. The initial percentages of care assigned by the CSR were 32 per cent for VGYL and 68 per cent for BYQZ. 

8. The events leading to VGYL having total care of the children for 50 days has been documented earlier in this decision. The CSR decided that Special Circumstances existed during this period. This decision was affirmed by the AAT 1^st Tier, and is not the subject of VGYL’s application to the AAT General Division. 

9. However, this Tribunal finds that that decision was correctly made and that VGYL had actual care at 100 per cent from 23 March 2015 to 13 May 2015. On 12 May 2015 Judge Burchardt of the FCC endorsed Consent Orders that the children return to BYQZ at 7.45am on 13 May 2015; that both parties attend family therapy and share the cost equally; that BYQZ was thereby restrained from physically punishing or chastising the children, and that she at all times advise VGYL of her correct address and any change of address. Otherwise the weekend care time of the Orders of 29 October 2014 would recommence on 22 May 2015.

10. Thereafter, the CSR maintained the 32 per cent and 68 per cent care ratio in favour of BYQZ.  This was despite VGYL lodging what he described as a complaint but interpreted by the CSR as being a new application. VGYL contacted the Registrar on 16 November 2015 advising the CSR that on his, (VGYL’s) calculations, he had the children in his care for 137 nights per annum not the 114 nights per annum the CSR had calculated. 

11. VGYL’s official objection lodged on 11 August 2015 led to reconsideration by the CSR who on 16 October 2015 determined that during the 50 days period referred to above, special circumstances existed and as a result VGYL had 100 per cent care of the children in the period 23 March 2015 to 12 May 2015. However, it was determined that thereafter the percentage of care reverted to that which pre-existed this event. 

12. When this decision was affirmed by the AAT 1^st Tier, BYQZ lodged an appeal. There is no reasoning evident in the AAT 1^st Tier decision that suggests the Tribunal turned its mind to the question of the percentage of care or to any estimation of the percentage of care. It appears to have accepted the ratio in force since October 2014.

13. As previously stated, VGYL lodged a further objection on 14 July 2016. On 2 December 2016 the CSR’s delegate determined that VGYL’s percentage of care was 36 per cent and that BYQZ’s 64 per cent, these being the appropriate figures applicable since 2 October 2014. However, as VGYL had not notified the agency within the 28 days required by s 54F(2) of the Act, and no Special Circumstances were identified to explain the delay, the objection despite being allowed could not come into effect until such time as the decision of the AAT 1^st Tier affirming the 32/68 per cent ratio was revoked. 

14. This Tribunal has undertaken the exercise of estimating the percentage of care in the year 2016, that being the year in which the decision in dispute was made. The Tribunal did not take into account the parents’ birthdays as they have not been verified, nor did it take into account the Greek Orthodox and Catholic Easter holidays, although the evidence available to the Tribunal, in form of diary entries, suggests they were on the same dates in 2016. Based on the Tribunal’s calculations, VGYL provided care on 136 nights. This compares favourably with his estimate of 137 nights. In arriving at this estimate of 136 nights of care in 2016, the Tribunal has followed the Orders of the FCC. The Tribunal thus believes that this is more likely than not to have been the percentage of care; which converts to 37 per cent on VGYL’s figures and 36 per cent on the Tribunal’s estimate.

15. Noting the restrictions placed on changes in percentage of care by various sections of the Act, and the requirement for notice to be given within a specific time in terms of challenging any decision, the Tribunal determines that between 23 March 2015 and 13 May 2015 VGYL had, as a result of Special Circumstances, 100 per cent care of the children. On the balance of probabilities, VGYL’s percentage of care from 2 October 2014 was greater than 32 per cent. This Tribunal determines that the level of care from 2 October 2014 should be 37 per cent. However, this new percentage cannot come into force until the decision of the AAT 1^st Tier regarding the percentage of care is revoked and a new percentage of care is determined in accordance with s 50 of the Act.

16. The Tribunal sets aside the decision of the AAT 1^st Tier dated 13 January 2016 with respect to the percentage of care. The Tribunal determines that the percentages of care now calculated, that is 37 per cent to VGYL and 63 per cent to BYQZ, should have been in effect as of 4 October 2014. However, in accordance with the Act, those percentages cannot come into effect until the handing down of this decision. 

I certify that the preceding 38 (thirty‑nine) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

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

Associate

Dated: 22 September 2017

Date of hearing:	4 July 2017
Applicant:	In person
Solicitor for the Respondent:	Belinda Lewis, Department of Human Services
Other Party:	By telephone