Wagner and Wagner (Child support)

[2020] AATA 3672

Wagner and Wagner (Child support) [2020] AATA 3672 (14 July 2020)

DIVISION:Social Services & Child Support Division

REVIEW NUMBER:  2020/SC019132

APPLICANT:  Mr Wagner

OTHER PARTIES:  Child Support Registrar

Ms Wagner

TRIBUNAL:Member M Douglas

DECISION DATE:  14 July 2020

DECISION:

The decision under review is affirmed.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change to the likely pattern of care – existing percentage of care determinations revoked and new determinations made - court orders not complied with - reasonable action not taken - interim period does not apply - decision under review affirmed

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.

REASONS FOR DECISION

BACKGROUND

1. Mr Wagner has applied for a review of an objection decision a delegate of the Child Support Registrar made on 30 April 2020 relating to the care percentages used in the child support assessment for his and Ms Wagner’s children, [Child 1] and [Child 2].

2. The Child Support Registrar acts through staff employed by a government department known as Services Australia. It is convenient to refer to the Registrar in these reasons as Services Australia.

3. [In] November 2016 orders were made by Judge Dunkley in the Federal Circuit Court of Australia in proceedings between Mr and Ms Wagner relating to the children that included orders about where the children would live.  Basically, those orders provided for the children to live with Ms Wagner but to spend time with Mr Wagner on each alternate weekend during school terms, for half of each school holiday period and on specified other special occasions.  Mr Wagner and Ms Wagner’s care of the children reflected that stipulated in those orders until 21 June 2019.  Services Australia made care percentage determinations based on the care that Mr Wagner and Ms Wagner had of their children pursuant to those orders, such that Ms Wagner’s care percentage was 79% and Mr Wagner’s 21%. 

4. It is common ground that Mr Wagner has not had care of the children at all since 22 June 2019.  Ms Wagner informed Services Australia of that on 18 October 2019. 

5. On 6 December 2019 Services Australia:

   ·revoked its determination that Mr Wagner’s care percentage for the children was 21%, with that revocation taking effect on 21 June 2019, and determined a new care percentage for him for the children of 0% that took effect from 22 June 2019;

   ·revoked its determination that Ms Wagner’s care percentage for the children was 79%, with that revocation taking effect on 17 October 2019, and determined a new care percentage for Ms Wagner for the children of 100% that took effect from 18 October 2019.

6. On 9 December 2019 Mr Wagner objected to that decision.  On 30 April 2020 Services Australia disallowed his objection.

7. Thereupon Mr Wagner applied to the Tribunal for a review of the objection decision.

8. The Tribunal heard his application on 14 July 2020. Mr Wagner and Ms Wagner participated in the hearing by telephone. Mr Wagner gave sworn oral evidence and Ms Wagner gave affirmed oral evidence. No one from Services Australia appeared. Services Australia did however, in accordance with its obligation under subsection 37(1) of the Administrative Appeals Tribunal Act 1975, provide the Tribunal with all of its documents relevant to its objection decision, which are paginated 1-229.  Ms Wagner also provided documentary evidence which was marked B1-9.  A copy of all of those documents was provided to Mr Wagner and Ms Wagner prior to the hearing.

9. The Tribunal has had regard to the oral evidence of Mr Wagner and Ms Wagner and also to the documents identified in the preceding paragraph. 

ISSUES

1. There is no dispute that from 22 June 2019 both children have been residing with Ms Wagner all of the time and that she consequently has 100% care of them.  The issue in this case is whether or not for “an interim period” commencing on 22 June 2019 the care percentages used for the children ought to correspond with the extent of care that Mr Wagner and Ms Wagner would each have of the children if the consent orders made [in] November 2016 were being complied with.

CONSIDERATION

1. The Child Support (Assessment) Act 1989 (the Act) contains the relevant provisions stipulating how Services Australia is to determine the care percentages to be used for a child in the assessment of child support.  Generally, those provisions require Services Australia to determine care percentages based on the actual care that each parent has of their child.  However, if there are court orders in place that stipulate the periods during which children are to reside with their parents and those orders are not being complied with, then provided the parent who has reduced care of a child is taking reasonable action to ensure that the court orders are complied with and provided there are no special circumstances that exist in relation to the child, then for an interim period, which would in this case be 26 weeks from the date the court orders were not complied with, Services Australia, and the Tribunal in its place, is required to determine care percentages for the children that correspond with the extent of care that the parents are to have of the children in accordance with the court orders. 

2. Saying that in a less prolix way, if there are court orders that are not being complied with and if the parent with reduced care takes reasonable action to have the court orders complied with and there are no special circumstances relating to a child then for 26 weeks after the court orders cease to be complied with, the care percentages will remain as per the care required under the court orders.

3. What constitutes reasonable action is not defined in the Act.  Services Australia has published guides providing examples of what constitutes reasonable action: Child Support Guide Part 2.2.4.  The Tribunal, standing in the place of Services Australia, should generally apply these guides unless they are unlawful or their application produces an unjust result in the circumstance of a particular case: re Drake & Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634 and P v Child Support Registrar [2012] FCA 1398 at [3]. The examples of reasonable action listed at part 2.2.4 are:

   ·negotiating with the other party in a genuine attempt to ensure compliance with the care arrangement;

   ·making and/or attending an appointment at a Family Relationship Centre or other dispute resolution service with the aim of ensuring the care arrangement is adhered to;

   ·seeking or obtaining legal advice regarding the making of a court order;

   ·filing an application to a court to have an order made or enforced;

   ·attending a hearing at court to seek an order to be made or enforced; or

   ·notifying the police that the child has been taken without consent.

4. Mr Wagner’s evidence to the Tribunal was to the effect that his children are important to him and he wants to see them and that it is Ms Wagner who is preventing the children from seeing him. 

5. Ms Wagner’s evidence was to the effect that it is the children’s wish not to see Mr Wagner because they consider Mr Wagner to be controlling and because he gets frustrated. She said she will not go against the wishes of the children.

6. Mr Wagner, when contacted by Services Australia on 21 October 2019 to discuss what Ms Wagner had advised it on 19 October 2019 regarding the care of the children, told Services Australia that he had “sought legal advice and was advised to start mediation proceedings” regarding his not being able to have care of the children in accordance with the court orders. He subsequently provided Services Australia with a copy of an online application form he had made at 7.06pm on 21 October 2019 to a facility that provided “family mediation”.  The form did not identify the name of the service provider who would conduct the proposed mediation nor the qualifications of the service provider to provide that service.  

7. It was Mr Wagner’s sworn evidence at the hearing of his application for review that notwithstanding what he told Services Australia on 21 October 2019 about contacting his lawyer, he did not consult a lawyer regarding what he could do to enforce the court orders or what he could otherwise do to have contact with his children.  He also told the Tribunal that he did not call the court to make any enquiry about what he could do.  He said that he made the online application for mediation only after Services Australia had called him on 21 October 2019 and at their suggestion.  He said prior to that time “it didn’t cross my mind” to seek assistance of a mediation service provider.  He said that after Services Australia called him he looked online for mediation service providers.  He was not able to identify during the hearing the name of the organisation to which he applied online for mediation services.  He said once he lodged the online application, he did not hear back further and he did not “follow through” with his application for mediation.

8. Ms Wagner’s evidence was that she did not receive a copy of that online application.

9. In the papers Services Australia provided to the Tribunal there is a series of emails that Ms Wagner and Mr Wagner sent each other between 16 July 2019 and 19 July 2019, that commenced with Ms Wagner telling Mr Wagner that his relationship with the girls had become increasingly strained and that [Child 1] did not want to communicate further with him.  Mr Wagner’s response was to the effect that he did not believe that to be the case and that he was going to seek legal advice.  As mentioned, it was his sworn evidence to the Tribunal that he did not pursue that.  He indicated in his email responses to Ms Wagner that he would be picking up the children from school “as per normal”.  Ms Wagner told him that he was not to pick up the girls from school because “[Child 1] does not want to see you” and that that “is her choice”.  Mr Wagner responded by requesting that if it is the girls’ choice that “I want to hear it from them”.  He also said that he would “go to the police to enforce” the court orders.  He did not do that.

10. Mr Wagner’s evidence to the Tribunal was that following that series of emails he and Ms Wagner exchanged, he sent further emails to Ms Wagner on 13 August 2019, 21 September 2019 and 20 October 2019 in which he sought, in substance, that Ms Wagner advise him regarding what was going on with the girls and when he would be able to see them. 

11. Ms Wagner did not dispute that Mr Wagner sent her those emails. 

12. Based on the evidence the Tribunal has before it, the Tribunal considers that Mr Wagner’s action in making an online application to an unidentified provider of mediation services that was not received by Ms Wagner and that Mr Wagner did not pursue following his lodging the online application, does not amount to taking reasonable action to ensure that the court orders were complied with.

13. The Tribunal also considers that the several emails that Mr Wagner sent to Ms Wagner in which he variously told her that he would be picking up the girls and seeking Ms Wagner’s advice about when he could see the girls, does not amount to his negotiating with Ms Wagner in a genuine attempt to ensure compliance with the consent orders. 

14. The Tribunal also has regard to the fact that Mr Wagner did not seek any legal advice with respect to having the court orders enforced nor did he make any enquiry with the court to that end.  He did not notify the police. 

15. The Tribunal accepts Mr Wagner’s evidence that it is Mr Wagner’s strong desire that he spend time with his children, but the Tribunal is not satisfied that Mr Wagner’s emails to Ms Wagner and his application to an unidentified mediation service provider seeking mediation with Ms Wagner about that, that he did not pursue, amounts to his taking reasonable action to have the orders complied with.

16. Given that, the Tribunal considers Services Australia was right not to determine care percentages for an interim period in accordance with the extent of care Mr Wagner and Ms Wagner were to have of their children pursuant to the court orders.  In short, the Tribunal considers the objection decision of Services Australia was correct and the Tribunal affirms it.

DECISION

The decision under review is affirmed.