WCFT and Child Support Registrar (Child support second review)

[2019] AATA 4085

WCFT and Child Support Registrar (Child support second review) [2019] AATA 4085 (4 October 2019)

Division:GENERAL DIVISION

File Number:2019/0113           

Re:WCFT  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

CLFZAnd  

OTHER PARTY

DECISION

Tribunal:Member D Mitchell (Presiding)

Member P Ranson

Date:4 October 2019

Place:Brisbane

The Tribunal affirms the decision under review.

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

Member D Mitchell

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 – care determination – reasonable action for compliance – interim determination – where no special circumstances – decision under review affirmed

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

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

Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 (Cth)

CASES

Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

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

REASONS FOR DECISION

Member D Mitchell

Member P Ranson

4 October 2019

INTRODUCTION

1. The Applicant, WCFT (the Father), and the Other Party, CLFZ (the Mother), are the separated parents of two daughters. The issue before the Tribunal relates only to their eldest daughter, born in August 2001 (the Child).

2. From 1 July 2008, the Father is recorded as having 35% care of the Child and the Mother having 65% care.[1] This was consistent with a Court Order made in February 2009 which provides that the Father has care of the Child for 4 nights every fortnight, half the school holidays and on other special occasions as set out in the Orders.[2]

   [1]    Exhibit 1, T Documents, T27, page 133, CUBA screen captures.

   [2]    Exhibit 1, T Documents, T5, pages 44-51, Federal Magistrates Court Order.

3. Until 23 September 2017, when the Mother advised the Department of Human Services (the Department) that she had 100% care of the Child from 7 September 2017, the care percentages had remained the same.[3]

   [3]    Exhibit 1, T Documents, T29, page 159, Child support file notes – Other Party.

4. On 8 December 2017, the Department made a decision that recorded the Mother as having 100% care of the Child from 7 September 2017.[4]

   [4]    Exhibit 1, T Documents, T11, page 64, Letter from Department – change of percentage of care.

5. The Father objected to this decision on 15 January 2018 on the basis that he agreed that the care had changed to 100% to the Mother, but the change in care was a breach of the 2009 Court Order.[5]

   [5]    Exhibit 1, T Documents, T16, pages 77-94, Objection to a Child Support Decision.

6. On 22 June 2018, an Objection Officer with the Department made a decision to disallow the objection.[6]

   [6]    Exhibit 1, T Documents, T19, pages 99-103, Letter from Department – objection decision.

7. The Father sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the Objection Officer on 27 November 2018.[7]

   [7]    Exhibit 1, T Documents, T2, pages 7-12, Decision of the Social Security and Child Support Division.

8. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 6 January 2019.[8]

   [8]    Exhibit 1, T Documents, T1, pages 1-6, Application for Review.

9. On 31 July 2019, a Hearing was held for this application. At the Hearing, the Father and the Mother were self-represented and gave evidence in-person under oath. The oral evidence was consistent with the written material and the Tribunal considers that both the Father and the Mother were open and honest in response to questions asked by the Tribunal, each other, and the Respondent.

10. The Respondent submitted that they see their role in this matter as being to record the evidence and to set out the relevant law and policy to assist the Tribunal to make the correct or preferable decision about whether an interim care decision should be made.[9]

    [9]    Exhibit 2, Registrar’s Statement of Facts & Contentions, page 2, paragraph 16.

    ISSUES

11. The parties agreed that there is no dispute that the Father had 35% care of the Child up to 7 September 2017 from which time the Mother had 100% care of the Child. As such, the Tribunal is satisfied that a change in care in relation to the Child occurred on 7 September 2017 resulting in the Mother having 100% care from that date.

12. The issue for the Tribunal to consider is whether an interim care determination should be made for the period from 7 September 2017 and if so for what period.

13. It is noted that the Father’s submissions made reference to other issues in relation to the conduct of the matter to date and sought additional orders. However it was discussed at Hearing that these issues are not within the jurisdiction of the Tribunal in this matter and the Father agreed.

    THE LAW

14. The relevant legislation is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).

15. In making a new care determination under sections 49 or 50 of the Assessment Act consideration must be had to whether section 51 applies. Section 51 relates to the appropriate percentage of care if action is taken to ensure that a care arrangement in relation to a child is complied with.

16. For an interim care determination to be made, in the current circumstances the requirements of section 51 of the Assessment Act must be met.

17. Section 51(1) of the Assessment Act provides that section 51 applies if:

    (a)the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and

    (b)a care arrangement applies in relation to the child; and

    (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

    (d)a person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.

18. Section 51(5) of the Administration Act provides that even if the requirements of section 51(1) are satisfied a determination can be made that an interim determination should not apply if there are special circumstances which exist in relation to the child.

19. Section 53 of the Administration Act provides that section 51 does not apply if the application for a change in care is made more than 14 weeks after the date of the change in care.

20. While the Tribunal is not bound by policy, to aid consistency, it will usually be taken into account and followed unless there are cogent reasons not to do.[10] In the current matter the Tribunal notes that the terms ‘reasonable action’ and ‘special circumstances’ are not defined in the Administration Act. As such Chapter 2.2.4 of the Social Security Guide offers assistance and relevantly provides:

    [10]   Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.

    When can an interim determination be made?

    If a parent is being prevented from having the child in their care in accordance with the care arrangement without their consent, and they take reasonable steps to have the care arrangement (or a different care arrangement) complied with, there may be an interim period where care is determined by the care arrangement rather than actual care. There must be a care arrangement in place and being followed at the time the care changed in order for an interim care determination to be considered. If an interim care determination is made, child support will continue to be assessed in accordance with the care arrangement for a period of up to 14 weeks, or 26 weeks in special circumstances.

    There are a range of circumstances where a child support assessment may continue to be based on a care arrangement during an interim period, such as situations where contact has been prevented by one party, or where a child has not been returned after a contact visit, or where the child chooses to live with the other carer.

    Takin g reasonable action to ensure compliance with care arrangement

    The parent must take reasonable action to ensure compliance with the care arrangement in order to have the child support assessment continue to be based on the care arrangement for the interim period. Reasonable action could include:

    ·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 (FRC) 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.

    This list is not exhaustive and other forms of action may be considered reasonable, according to the circumstances of the parents and the child. The Registrar may seek evidence that reasonable action has been taken. Evidence may include:

    ·a written account of the steps the parent has taken to negotiate with the other parent, verified by an independent third party such as a legal representative,

    ·documentation from an FRC or dispute resolution service setting out the details of an upcoming appointment and the action sought, or

    ·documentation of police or court action.

21. It is noted that the Tribunal said that it is appropriate to have regard to the Department’s policy in contested cases of shared care in Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473:

    “... The respondent has submitted that it is appropriate to have regard to Centrelink's policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 ("the Guide"). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision-making.”

    EVIDENCE

22. All of the evidence before the Tribunal has been taken into account including the submissions made by the Father and the Mother. It is clear that the Father and Mother, as is not uncommon in these kinds of matters, have a fractured relationship. Both parents undeniably love the Child and do not want to see harm done to her. Although the parties in this matter have been unidentified there is little doubt that the Child will read these reasons for decision and as such the Tribunal sees no benefit to the parties or the Child to provide a detailed reproduction of the Father or Mother’s submissions in this decision. The Tribunal will instead take a holistic high level approach.

23. The Father provided a number of different written submissions throughout the review process, all of which consistently outlined that he believed he had taken reasonable action to ensure that the care arrangement was complied with. It was clear that the Father takes issue with the Department’s review process and conduct. However, these are not matters before the Tribunal.

24. The Father at Hearing told the Tribunal that he had taken reasonable action to ensure that the care arrangements were complied with by stating that:

    ·He tried to engage with the Child via email on a number of occasions.

    ·Prior to the change in care he had taken her to a psychologist however the Mother refused to engage. He was not allowed to interact with the Child’s psychologist despite attempting to.

    ·He had sought legal advice and was told that he had limited prospects given the age of the Child and that her views were clear. The Father provided a receipt for this advice following the hearing.

    ·He had sought advice from the police and the Federal Magistrates Court and they sent him to get independent legal advice as they could not assist with a recovery order. The Father provided details of his call to the police following the hearing.

    ·He had always been an active father in his daughter’s life.

25. The Father outlined in his written submissions that he also did not instigate legal proceedings to have the court order complied with as he was conscious of the Child’s study and wellbeing. The Father provided full reasons in his written submissions as to why he felt he had met the reasonable action requirement which were consistent with those reasons provided at hearing.[11]

    [11]   Exhibit 3 – Applicant’s Submission, including attachments dated 9 May 2019 and Exhibit 5 – Applicant’s reply to Other Party’s Submission.

26. When asked whether the Father had contacted or negotiated with the Mother in relation to the matter, he advised that he did not do so as he believed the prospects of her assistance was low.

27. The Mother provided written submissions which included copies of text messages and emails.[12] The emails indicated to the Tribunal that in the past the parents had been civil and working together in relation to the Child. When asked about this, the Father said that was not the norm, and that the Mother embellishes things and undermines him.

    [12]   Exhibit 4 – Other Party’s Submission, including attachments dated 18 May 2019.

28. The Father gave evidence that he agreed that special circumstances do not exist and he is requesting that an interim care period be made for 14 weeks.

29. The Mother relied on her written submissions which included text messages encouraging the Child to engage with the Father and to follow his rules. The Mother told the Tribunal that she had sought legal advice and was told that given the Child’s age there was nothing she could do other than encourage her to see the Father. The Mother told the Tribunal that she has tried to and continues to keep the Father up to date with important things that were happening in the Child’s life and has been open to communication with him. Both of the parents have distinctly differing views on their interactions with each other.

30. Both the Father and Mother provided details in relation to the Child which made it clear that it was her decision to no longer spend time with the Father and that she is a child with a strong independent mind. It was agreed that the Father and the Child are both stubborn and this has in part led to the relationship breakdown.

    CONSIDERATION

31. The question before the Tribunal is whether the Father took reasonable action to have the care arrangement complied with. It is noted that the Explanatory Memorandum to the Child Support and Family Assistance Legislation Amendment (Budget and Other Measures) Bill 2010 that inserted section 51, as it presently is, provided:

    New section 51 is an exception rule that applies where there is a care arrangement in relation to the child and this care arrangement is no longer being complied with. Provided the person with reduced care has taken reasonable action to ensure the care arrangement is complied with, they will continue to have a care percentage based on the care arrangement rather than actual care, for an interim period. For example, a parent may be negotiating with the other parent to have the care arrangement complied with, or seeking advice and assistance from a family relationship centre, or taking action through other dispute resolution processes.

32. In the matter of Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1, Deputy President Hack stated:

    “As it seems to me the issue of whether a child has been made available is not one capable of determination by reference to any overarching principles. It will invariably be a question of fact to be determined by reference to the particular circumstances.”

33. Based on the evidence before the Tribunal and in particular that provided by the Father and Mother at Hearing, the Tribunal finds that while the Father clearly cares for his daughter, his actions do not satisfy the requirements of section 51(1) of the Administration Act.

34. The Tribunal finds that the Father did not take all reasonable steps to ensure that the care arrangement was complied with as, although he had honourable reasons for not instigating court proceedings or making more vigorous contact with the Child in the period after September 2017, he also did not seek to negotiate with or seek the assistance of the Mother. In this matter, given the Child’s age and strong will, it is not a matter that the Mother did not make the Child available to the Father, but rather the Child exercised her own mind in no longer seeing the Father.

35. As the Tribunal has found that the requirements of section 51(1) of the Administration Act have not been met it does not need to consider the interim care period or whether special circumstances exist.

    CONCLUSION

36. The Tribunal finds that:

    (a)A change occurred in relation to the care of the Child from 7 September 2018 which resulted in the Mother providing 100% care from that date.

    (b)An interim care determination should not be made.

37. Accordingly, the decision under review is affirmed.

I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell and Member P Ranson

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

Associate

Dated: 4 October 2019

Dates of hearing:	31 July 2019
Applicant:	In person
Advocate for the Respondent:	Donna Smith
Solicitors for the Respondent:	Department of Human Services
Other party:	In person