YKGQ and Child Support Registrar (Child support second review)

YKGQ and Child Support Registrar (Child support second review) [2018] AATA 4048 (26 October 2018)
Division:GENERAL DIVISION
File Number: 2018/0828
Re:YKGQ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndLDFD
OTHER PARTY

DECISION
Tribunal:Member C Edwardes
Date:26 October 2018
Place:Perth

The Tribunal affirms the decision of the AAT1.
..............[sgd]..........................................................
Member C Edwardes
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 – court order – reasonable action for compliance – assessment of actual care – pattern of care and point in time – percentages of care – medical reports – special circumstances – later care changes – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) – s 49 – s 50 – s 51 – s 51(2) –
s 51(5) – s 51 (6) – s 54A(1) – s 54F(2)
CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Department of Social Security, Guide to Social Policy Law: Child Support Guide (Department of Social Security, Version 4.35, 20 September 2018) – Ch 2.2.4 – Ch 2.2.1
REASONS FOR DECISION
Member C Edwardes
26 October 2018
INTRODUCTION

YKGQ (the Applicant) seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (the AAT1) on 24 January 2018. The AAT1 found that it “is not satisfied that a care determination should be made for an interim period” and that LDFD (the Other Party) “has 100 per cent care of the child from 24 February 2017 with effect from 4 May 2017 being the date of notification” (T2, 16).
The Applicant applied on the 20 February 2018 to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the AAT1 (T1, 1-9).
The Applicant gave the following reasons for the current application for review (T1, 7-9):
I believe that the decision made by AAT is wrong and a different decision should be made. I have state (sic) in this letter the information that was provided by me to the Tribunal Member, which was not taken into account in the Review of Decisions letter dated 2 February 2018.
I also believe that the law has not been applied correctly.
Reasons why I am making this application
The decision does not make a mention of the following which were raised at the appeal on 24 January 2018:
1.An Independent Child Lawyer (ICL), [redacted], has been appointed.
See Attachments:
(A)Court Order dated 29 March 2017.
(B)Letter from ICL to both parties dated 21 April 2017.
2.A Special Expert Witness, [redacted], a Clinical, Counselling & Forensic Psychologist, has been on (sic) appointed.
See Attachment (C): Court Order dated 15 September 2017.
3.The appointments of (1) and (2) indicate that the Family Court of Western Australia has not accepted the report of the privately paid psychologist, [Psychologist A], appointed by the Mother. This psychologist has not been appointed by the Court, and I, the father was not aware of the mother taking our daughter, [the Child], was taken to the psychologist (sic). Why didn’t the Mother go through appropriate legal process as she was represented by a lawyer, [Lawyer O], at the time? Also, why didn’t the mother inform the father about [the Child]’s condition, as required by Court Order as the father has joint shared parental responsibility for [the Child].
See Court Order dated 4 April 2014 (paragraph 1) – provided previously.
4.In the Mother’s letter dated 10 July 2017 to the Child Support Agency to claim extra Child Support, the Mother stated that:
The child seems to have some sort of ‘occurrence’ and she was suicidal.
What was this significant ‘occurrence’? Why has this event not be identified by the privately funded psychologist [Psychologist A] and the Mother, in the 11 months when the Father has not had access to his daughter? This question remains unanswered by the Mother.
5.In Paragraph 9 of the report of the privately paid psychologist, [Psychologist A], dated 8 March 2017, she stated:
The father was defensive and wanted to engage myself in the current family court proceedings and I informed the father that I was not acting in an expert capacity …
To summarise:
•    [Psychologist A] is privately funded by the Mother.
•    [Psychologist A] has not been appointed by the Family Court of Western Australia as a Single Expert Witness.
•    [Psychologist A] has not met with the Father, despite his numerous attempts (proof provided previously).
•    It is proper procedure for the Father to remind [redacted] that she is acting outside the process of the current family court proceedings. How can [redacted] produce a report without meeting both parties? I, the Father, have even asked [Psychologist A] to contact my lawyer, [Lawyer A], which she didn’t. In my opinion, [Psychologist A] has acted unprofessionally.
Given the above, why has [Psychologist A]’s report has (sic) been given undue significance in the decision making by Child Support and AAT? The Family Court of Western Australia has appointed a Special Expert Witness to review the situation – see point (2). No decision has been made as yet. Why is Child Support already penalising the Father before a decision has been made? Is Child Support running an independent decision making process from the Family Court of Western Australia?
6.The Father has stated the following in this letter of objection both to Child Support and to the AAT, including stating at the AAT hearing on [redacted] 2018, that:
I am willing to consider the increase in payment to $1,457.33 from $976.42, on the condition that if the Court finds in my favour that [the Other Party] deliberately withheld my access to [the Child], I will expect for these extra payments to be reimbursed to me. Please confirm that you agree to this fair and equitable arrangement.
There has been absolutely no response from Child Support or the AAT with respect to the request above. Why is this so? It does (sic) seem fair and equitable.
7.Why wasn’t the Child Support representative present at the AAT hearing on [redacted] January 2018? I strongly believe that they should be present to defend their position. I should be given an opportunity to query their decision making process.
All the points (1), (2), (3), (4), (5), (6) and (7) were tabled at the appeal meeting on [redacted] January 2018. I fail to understand why these were not mentioned in the decision letter dated 2 February 2018, as these are critical points for consideration in the decision making.
I am requesting a transcript of the appeal meeting on [redacted] January 2018, so as to provide evidence at the next appeal that this information has not been taken into account in the decision making process. These omissions will be confirmed after the transcript is available.
I have difficulty in understanding why Child Support is making a decision before the Family Court of Western Australia has deliberated on all the evidence. Is Child Support running its own Court process?
Given the points stated above, I request for a Second Review in-person in Perth, Western Australia. I also request that all parties, including Child Support, should be present at this Second Review.
Thank you for considering my objection to the decision. I believe that I have a strong case for a second review.
The Applicant attended the hearing in person and the Other Party attended the hearing by phone on the 4 October 2018. The Respondent was represented by Ms Zinn from Mills Oakley.
The Respondent takes a neutral position in this matter, and provides a Statement of Facts, Issues and Contentions to assist the Tribunal to reach the correct and preferable decision and to set out the relevant law.
The Tribunal thanks all parties for the assistance they provided during the hearing.
BACKGROUND
The Applicant is separated from the Other Party and they have one child born in 2008 (the Child).
The child support arrangement since 2014 amounted to the Applicant having 39% care and the Other Party having 61% care of the Child (T33, 229).
The Department of Human Services – Child Support (the Department) was advised on 4 May 2017 by the Other Party that there had been a change in care arrangements from 24 February 2017 (T10, 90). The Applicant confirmed that the Other Party had 100% care (T10, 90).
The Applicant received the following advice from the Department on the 12 May 2017 (T12, 92):
Our records now show you have:
39% care of [the Child] from 2 April 2014 to 23 February 2017.
0% care of [the Child] from 24 February 2017.
The Applicant objected to these arrangements on 5 June 2017 (T15, 103). He attached his objection and a Minute of Consent Orders (Children) (T15, 104-107). He stated in his objection (T15, 104):
Dear Sir or Madam,
I refer to your letter dated 12 May 2017 on ‘A change to your percentage of care’, which essentially states that my percentage of care is now 0%, down from 39% previously. This proposes an increase my (sic) child support payment to $1,457.33 from $976.42.
Please note that my ex-wife has refused to grant me access to my daughter, [the Child], a clear violation of the Court Orders dated 4 April 2014. Note that these orders are still in effect and has not been retracted. Can your office please request proof from my ex-wife that my percentage of care has been changed to substantiate her claim – I know that there is no such document.
Please note that you are incorrect in assuming that I do not want to care for [the Child]. I love my daughter and look forward to spending time with her. I have lodged a recovery order with the Courts, as [the Other Party] is not following Court Orders with respect to [the Child]’s care.
I also wish to informed (sic) you that I don’t believe there should be any increase in payments to [the Other Party] for not following Court Orders, and that payments should not alter while [the Child]’s care is being heard in the Courts. My next Court date [redacted] July 2017.
[The Other Party] has obtained a letter from a Psychologist, who has NOT been appointed by the Court, and WITHOUT discussion with me, especially when I have equal shared parental responsibility for [the Child]’s care.
[The Child] has since been assigned an Independent Child Lawyer and an Independent Expert Witness (another Psychologist) has been assigned to the case. All this is currently progressing in Court. My next Court date [redacted] July 2017.
I am willing to consider the increase in payment to $1,457.33 from $976.42, on the condition that if the Court finds in my favour that [the Other Party] deliberately withheld my access to [the Child], I will expect for these increase payments to be reimbursed to me. Please confirm that you agree to this fair and equitable arrangement.
I will continue to provide regular payments of $976.42 in June, till I hear from you with regards to the increase. I also look forward to receiving any Court documentation from [the Other Party] with regards her claim that there is a change in my care of [the Child].
Thank you for considering this. I do not wish to disadvantage my daughter, [the Child].
The Other Party was advised of the objection on the 15 June 2017 (T21, 115-16).
The Applicant provided further evidence on 27 June 2017 in order to support his objection (T24, 120-185). The evidence contained a recovery application, affidavits, photos and copies of messages. The Applicant stated “[a]s you can deduce, I have tried my level best at gaining access to my daughter, both visitation and phone access. But the mother has refused” (T24, 120).
In response to the objection, the Other Party filed her evidence on 10 July 2017 which included a clinical Psychologist Report from Psychologist A (T26, 192-198).
Having considered all the evidence, the Child Support Registrar’s delegate refused the objection of the Applicant on 10 August 2018 (the Objection Decision). The Objection Decision stated (T28, 204):
In the determination of interim care, we have the discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim perid will apply.
We will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed.
The psychologist report provided by [the Other Party] confirms that the continuation of the court ordered care would present a substantial risk to the [Child]’s well-being. We will therefore not be considering an interim care determination.
Both parents have confirmed [the Child]’s care as [the Other Party] having 100 per cent from 24 February 2017.
The objection is disallowed.
The Applicant sought a review of the Objection Decision to the AAT1 on 5 September 2017. On 24 January 2018, the AAT1 affirmed the decision of the Child Support Registrar’s delegate.
The AAT1 determined that (T2, 16):
…the Tribunal is not satisfied that a care determination should be made for an interim period … The Tribunal therefore finds that [the Other Party] has 100 per cent care of [the Child] from 24 February 2017 with effect from 4 May 2017 being the date of notification.
The Applicant sought a review of the AAT1 decision to the Tribunal on 20 February 2018 (T1, 1-9).
ISSUES
The Tribunal must decide:
(a)whether the care determination, in place for the Child, should be revoked and replaced with a new care determination; and
(b)if so, from what date the new care determination should take effect; and
(c)whether an interim care determination should be made and if so, from when.
LEGISLATION AND RELEVANT POLICY
The relevant legislation is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The provisions relating to the determination of the percentage of care of a child are contained in Part 5, Division 4 of the Assessment Act. Section 50 of the Assessment Act states:
(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)both of the following apply:
(i)     the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii)    the Registrar 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 applies in relation to the responsible person.
Section 54A(1) of the Assessment Act provides for how the actual care, and extent of care, is to be calculated:
(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, 53B or 54.
Section 51 of the Assessment Act states:
(1)This section 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 is taking reasonable action to ensure that the care arrangement is complied with.
…
(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.
The Tribunal notes the following excerpt from the Guide at 2.2.4 which refers to the policy position of the term “special circumstances”:
The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Section 51(6) of the Assessment Act states:
(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.
Chapter 2.2.1 of the Guide provides that “[c]are will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (CSA Act section 54A)”. Further, chapter 2.2.1 of the Guide provides that:
The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.

The Guide at chapter 2.2.1 further states that:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.
EVIDENCE
The Tribunal has before it the following evidence:
·Exhibit A1 – Email from Applicant received 21 September 2018 with attached Magistrates Court Order dated 9 August 2018 and the Minute of Interim Consent Orders.
·Exhibit A2 – Email from Applicant received 25 September 2018 with attached Minute of Interim Consent Orders handed up in Court on 9 August 2018.
·Exhibit A3 – Email from Applicant dated 26 September 2018 with attached Form 2 – Application in a Case & Affidavit to Family Court of WA.
·Exhibit A4 – Email from the Applicant dated 18 June 2018.
·Exhibit A5 – Email from the Applicant dated 28 September 2018.
·Exhibit A6 – Email from the Applicant dated 3 October 2018.
·Exhibit R1 – T documents (T1-33, pp1-229).
·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC), dated 17 August 2018.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The Applicant stated at the hearing:
·since the Special Expert Witness report, which both he and the Other Party have read, he has regained access to his daughter, on the basis of six weeks supervised access moving to unsupervised access;
·he confirmed the care arrangements as determined by the Child Support Registrar and the AAT1 have not been varied;
·he is taking further action in the Family Court; and
·he raised a number of issues (not relevant for the purpose of this application) relating to the unfairness in the system which allows the Other Party to withhold access to his daughter on the basis of information provided to authorities which trigger the provisions of “special circumstances”.
The Other Party made no comments during the hearing and did not want to make any further submissions.
Respondent’s Submissions
As previously stated, the Respondent takes a neutral position in this matter. The Respondent has provided an analysis of the contentions of the Applicant and the Other Party. That analysis is repeated below (R2, 9):
Analysis of Applicant and Other Party’s contentions
46.In order to assist the Tribunal, the Registrar makes the following observations in relation to the arguments and evidence submitted by the Applicant and the Other Party.
47.Neither the Applicant nor the Other Party dispute that from 24 February 2017, the Applicant had 0% care of the Child and the Other Party had 100% care.
48.For the purposes of establishing that the Applicant undertook ‘reasonable action’ to comply with the care arrangement, the Registrar understands that the Applicant is seeking to rely upon:
48.1.an application for a Recovery Application [T24, p 121-124];
48.2.an affidavit enclosing the following attachments:
48.2.1.a letter from the Family Relationship Centre to the Applicant (21 February 2017);
48.2.2.photographs (undated);
48.2.3.screenshots of text messages between the Applicant and the Other Party (various dates);
48.2.4.emails between the Applicant and the Other Party (various dates);
48.2.5.a report from [redacted] Medical Centre (21 February 2017);
48.2.6.screenshots of text messages between the Applicant and [Psychologist A] (2 March 2017);
48.2.7.a letter from [Lawyer A] to [Lawyer O] (2 March 2017); and
48.2.8.emails between [Lawyer A] and [Lawyer O] (2 March 2017) [T24, p125-176];
48.3.orders made in the Perth Magistrate’s Court [T24, p 177-178]; and
48.4.an undated Minute of Final Orders Sought at Trial [T24, p 179-185].
49.For the purposes of establishing ‘special circumstances’ in this matter, the Registrar understands that the Other Party is seeking to rely upon:
49.1.a psychologist report [T26, p 196-198]; and
49.2.a GP Mental Health Plan [T24, pp 161-165].
CONSIDERATION
Whether the care determination should be revoked and replaced and if so, from what date should the new care determination take effect?
The Tribunal notes the evidence given by the Applicant and the Other Party to the AAT1. Their evidence is as follows (T2, 12-14):
14.[The Applicant] told the Tribunal at hearing a court order was in place for the care of [the Child] which had not been discharged but [the Other Party] was refusing to grant access to his daughter. [The Applicant] said he had lodged a recovery order with the court and did not believe it was fair for his level of child support to increase while this matter was still being decided. He said withholding care of his daughter was in violation of the court order.
15.[The Applicant] said that [the Other Party] had stopped him from seeing [the Child] the day after his daughter had visited him on 23 February 2017. He said the court order was still in place and the Child Support Agency should wait until any new orders were issued which might change the percentage of care rather than reward [the Other Party] for removing his access to [the Child]. [The Applicant] said he felt the Child Support Agency was running its own court system.
16.[The Applicant] said he loved his daughter dearly and always looked forward to spending time with her. He said he had missed her [redacted] birthday, Father’s Day and school holidays and was very frustrated by the system which allowed this to happen. He said he had always paid his child support and was happy to continue paying but wanted the court to decide his level of care for [the Child].
…
19.[The Other Party] said [the Child] was going through a difficult time and was becoming increasingly upset about the ongoing dispute between the parents regarding how often she should stay with her father. [The Other Party] said [the Child] was becoming more withdrawn and didn’t want to stay with her father as often. [The Other Party] said she and [the Applicant] were trying to resolve the matter through mediation but it had not worked. When she would suggest that [the Child] needed to spend less time with her father, primarily out of concern for [the Child]’s wellbeing, [the Applicant] would accuse her of trying to obtain more child support.
20.[The Other Party] said after the mediation session on 21 February 2017 she had decided to take [the Child] to a general practitioner (GP) because she was worried about [the Child]’s health. She said [the Child] was always crying and she wanted [the Child] to see a psychologist and get help.
21.[The Other Party] said that after visiting her father on 23 February 2017, [the Child] had started crying, saying she didn’t want to live this life and didn’t want to go back to her father’s. She confirmed [the Child] had been staying with her 100 per cent of the time since then.
22.[The Applicant] said taking [the Child] to see a psychologist was done without discussing the matter with him despite the fact he had shared parental responsibility. He pointed out that [the Other Party] had done this while they were going through mediation and questioned her motive for doing so. He said [the Other Party] made the decision to withhold care before she had even received the report from the psychologist. He said an independent psychologist had since been appointed by the court and repeated his view that the Child Support Agency should wait until the matter had been decided in court before changing care. He felt [the Other Party]’s action was about trying to reduce the care he had for [the Child].
…
25.[The Other Party] said she was only acting out of concern for the health of her daughter.
26.[The Applicant] said there were no restraining orders or criminal convictions against him and even though he was paying 100 per cent of the child support he was still being denied access to [the Child].
27.[The Applicant] also raised a number of other matters which, while obviously important to him, were not relevant to the matter before the Tribunal.
The Tribunal notes the consent orders which outline shared responsibilities of the respective parents for the purposes of raising the Child (T15, 105-7). These shared responsibilities include: education, special occasions, telephone contact and handovers.
The Tribunal notes the consent orders which state (T15, 105-107):
Parental Responsibility
1.That the parents have equal shared parental responsibility for [the Child].
Education
2.That the parents do all things and sign all documents as may be required for [the Child] to be re-enrolled at [redacted] Primary School and to continue her education at [redacted] Primary School and ultimately, [redacted] Senior High School.
3.That each parent consult with the other parent regarding [the Child]’s education and keep the other parent informed of any meetings scheduled with the staff at [the Child]’s school.
School Term
4.That during the school term, [the Child] live with the mother and spend substantial and significant time with the father as follows:
4.1Week 1 – Father collect [the Child] from after school on Thursday and Father deliver [the Child] to school on Tuesday morning (5 nights); and
4.2Week 2 – Father collect [the Child] from after school on Thursday and return [the Child] to mother between 7.30pm and 8.00pm on the same day.
School Holidays
5.That [the Child] live with each parent for half of the school holidays.
Special Occasions
6.That [the Child] spend her birthday with one parent from the morning until 2.00pm and with the other parent from 2.00pm to the evening, with the sessions to alternate between the parents each year.
7.That if the father’s birthday or Fathers Day falls on a day when [the Child] is not otherwise in father’s care, the mother deliver [the Child] to the father the evening before father’s birthday or Fathers Day and the father return [the Child] to the mother by 7.00pm.
8.That if the mother’s birthday or Mothers Day falls on a day when [the child] is not otherwise in mother’s care, the father deliver [the Child] to the mother the evening before mother’s birthday or Mothers Day and the mother return [the Child] to the father by 7.00pm.
Right of First Refusal
9.That if one parent (Parent ‘A’) is unable to spend time with [the Child] as provided in the Orders above, the other parent (Parent ‘B’) be given the first right to care for [the Child] and Parent ‘B’ give consideration to alternative arrangements for Parent ‘A’ to spend time with [the Child].
Telephone Contact
10.That in relation to telephone contact:
10.1each parent facilitate [the Child] having telephone contact with the other parent between 6.00pm and 8.30pm each day when [the Child] is not otherwise in the other parent’s care; and
10.2each parent facilitate [the Child] having telephone contact and skype video contact with the other parent at any other times requested by [the Child].
Handovers
11.That the parents ensure that the Medicare card and [the health care] card will travel with [the Child] during the handovers except that if Medicare issues a card to each parent for [the Child], then only the HBF card (or any other private health card) needs to travel with [the Child] during the handovers.
The Tribunal notes, however, that it has been established that from 24 February 2017, the Applicant has 0% care of the Child and the Other Party has 100% care.
Both the Applicant and the Other Party confirmed that at the relevant time there was a court order in place regarding the Child’s care but that that it had not been adhered to.
The Tribunal understands the date of effect of a change of care depends upon when the Registrar is notified of the change. If the Registrar becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred: s 54F(2) of the Assessment Act. In this matter, 24 February 2017 is the date established and is not in dispute. Therefore, the Tribunal finds that there is a new care determination in place which commenced on 24 February 2017. From this change in care, the Applicant has 0% care and the Other Party has 100% care.
Should an interim care determination be made and if so, from when should the interim care determination be effective?
The Tribunal notes the rationale of the AAT1 in determining whether there should be an interim care determination (T2, 14-16):
31.Sections 49 and 50 of the Act require consideration of the actual, or likely, pattern of care that parents will have in relation to their children.
32.The Tribunal, in making a new percentage of care determination either under section 49 or section 50 of the Act, must decide if section 51 applies. For section 51 of the Act to apply, a parent who has reduced care because a care arrangement is not being complied with must have taken reasonable action to ensure that the care arrangement is complied with.
33.The term ‘reasonable action’ is not defined in the Act. The Explanatory Memorandum to the Bill for the Amending Act that introduced section 51, referring to reasonable action, states, ‘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’.
34.[The Applicant] told the Tribunal he had tried to contact [the Other Party] about the situation with [the Child] after access to his daughter was denied. The Tribunal notes in evidence from the Child Support Agency a series of text messages between [the Applicant] and [the Other Party] commencing on 23 February 2017 highlighting a number of attempts by [the Applicant] to have contact with [the Child].
35.[The Applicant] also filed a recovery order on 3 March 2017 and the Tribunal notes this matter has yet to be resolved in court.
36.The Tribunal finds that [the Applicant] took reasonable action to ensure the care arrangement under the orders dated 3 April 2014 was complied with.
37.As [the Applicant], the parent with reduced care, took reasonable action, subsection 51(2) of the Act requires that two percentages of care be determined. One being the care that should have occurred under the care arrangement and the other being the actual care taking place.
38.Subsection 51(5) of the Act provides that, if special circumstances exist in relation to the child, a single percentage of care, rather than two percentages of care, may be determined based upon the actual care taking place.
39.The term ‘special circumstances’ used in subsection 51(5) is not defined in the Act. The policy of the Child Support Agency on what the term means is set out in the Child Support Guide at 2.2.4. It states:
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. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person’s own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from a 14-week interim period, even if they are seeking the return of the child.
The Registrar will consider the individual circumstances that led to the change in care to determine whether the circumstances are a significant cause of the change in care, and whether there was a substantial risk to the physical, emotional or psychological well-being of the child if the care arrangement had continued to be followed. Examples of unreasonable or inappropriate behaviour of the parent include:
•       violence towards the child,
•       exposing the child to family violence (within the meaning of section 4AB of the FL Act),
•       violence towards the person with increased care,
•       directly involving the child in a criminal act,
•       exposing the child to alcohol, drugs or substance abuse,
•       substantially failing to comply with legal schooling requirements, and/or
•       neglecting the child’s basic needs, such as withholding essential medical care from the child or disregarding their daily needs for food, shelter, hygiene etc.
The decision should take into account any information provided by the parent with less care as well as information from the person who gained care. Decisions should be made on the basis of evidence that supports relevant findings of fact, particularly in situations where the facts are disputed. Acceptable evidence from an independent third party will vary depending on the circumstances of each case. Where a parent has been violent towards the child, the absence of a child welfare order would not prevent the discretion being exercised. However, allegations of abuse that are not supported by other evidence would not normally result in the discretion being exercised.
Suitable evidence may include (but is not limited to):
•       a police report detailing violent behaviour towards a child or the person with increased care,
•       an intervention order preventing contact with the child or person with increased care, or
•       statements from a medical or other relevant professional regarding assault or abuse of the child or person with increased care.
40.In determining an application for review, in the interests of consistency in decision making, the Tribunal would ordinarily apply such policy if it is not inconsistent with the Act.
41.[The Other Party] said she stopped [the Child] from seeing [the Applicant] out of worry for her daughter’s wellbeing. Two medical professionals have expressed concern for [the Child]’s mental health.
42.The Tribunal acknowledges the point made by [the Applicant] that neither [the General Practitioner] nor [Psychologist A] are independent as their services were paid for by [the Other Party]. The Tribunal nonetheless gives their evidence as medical professionals some weight and finds that special circumstances exist as there is currently a risk to the ongoing emotional and mental wellbeing of the child.
43.As such the Tribunal is not satisfied that a care determination should be made for an interim period.
The Tribunal notes the AAT1’s rationale in the determination of actual care (T2, 16):
44.[The Applicant] said he wanted to challenge why his care of [the Child] had been removed.
45.The Tribunal explained to [the Applicant] that, while understanding his frustration at being denied care of his daughter, it can only determine the matter relating to the level of care for [the Child] and has no jurisdiction over the enforcement of court orders.
46.As the Tribunal has found a care determination for an interim period should not be made, subsection 51(6) of the Act allows for a single percentage of care to be determined that corresponds with the actual care of the child. In this case the Tribunal finds that [the Other Party] has 100 per cent care of [the Child].
47.Section 54C of the Act determines the date of application of the percentage of care in this circumstance is the application day. Application day has the meaning given by subsection 54B(2) of the Act.
48.The Tribunal therefore finds that [the Other Party] has 100 per cent care of [the Child] from 24 February 2017 with effect from 4 May 2017 being the date of notification.

The Tribunal, having considered all the evidence before it, will now consider whether there should be an interim care determination.
The Tribunal notes that the Applicant has taken reasonable action for the purpose of ensuring the original court order care arrangement of 3 April 2014 is complied with. This includes messages (SMS), emails, recovery application, telephone calls and correspondence from his lawyers.
The Tribunal is now obliged under section 51(2) of the Assessment Act to assess two percentages of care in relation to the responsible person. However, if the Tribunal is satisfied that special circumstances exist in relation to the child, the Tribunal may determine a single percentage of care: s 51(5) of the Assessment Act. In considering whether there are special circumstances, the Tribunal notes the concerns expressed by the Other Party referring to the well-being of the child. These concerns are supported by Psychologist A, who although is not a court appointed medical professional, is a clinical psychologist. The Tribunal notes excerpts of the report of Psychologist A that there were significant concerns for the well-being of the child. For example, Psychologist A stated (T26, 196-7):
5I have interviewed [the Child] alone on 4 occasions. During the first 3 sessions [the Child] was teary, very anxious and was expressing a strong desire that she did not want to go to her father’s house. She provided several reasons for this. Of note she reported that she was ‘scared’ to go and several things made her feel uncomfortable at her father’s home which she has elaborated on in subsequent sessions. [The Child] has also reported to me and to [the General Practitioner] that her father speaks badly about her mother and this increases [the Child]’s anxiety.
…
12[The Child] has expressed suicidal thoughts which need to be taken seriously.
Whilst acknowledging that there may be some issue that the professional medical advice of Psychologist A is not independent, the advice is from a qualified medical practitioner, in this case a clinical psychologist. The Tribunal must consider this and attach appropriate weight to the report (T26, 196-8). On that basis, the Tribunal finds “special circumstances” do exist in the form of the expert opinion provided by Psychologist A pursuant to section 51(5) of the Assessment Act. The report by Psychologist A is compelling in terms of providing an insight into the issues that might be impacting the Child.
The Tribunal therefore concurs with the AAT1 and does not support an interim care determination being made.
The Tribunal will now turn its mind to the issue of actual care. As the Tribunal is satisfied that “special circumstances” do exist, the Tribunal may determine a single percentage of care in relation to the responsible person pursuant to section 51(5) of the Assessment Act. The Tribunal is satisfied on the evidence before it that the Other Party has 100% care of the Child. There is no contrary evidence to suggest there was any variation to the child care arrangements determined by the Child Support Registrar and the AAT1. Both parties agree that these are the current care arrangements. The Tribunal is therefore satisfied that this care arrangement is from 24 February 2017, effective from 4 May 2017, the date upon which the Registrar was notified.
DECISION
The Tribunal affirms the decision of the AAT1.

I certify that the preceding 48 (forty -eight) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

................[sgd]........................................................
Administrative Assistant Legal
Dated: 26 October 2018

Date of hearing: 4 October 2018

Applicant: In person

Representative for the Respondent: Ms A Zinn

Solicitors for the Respondent: Mills Oakley Lawyers

Other Party: By telephone

[2018] AATA 4048

26 October 2018

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	4 October 2018
Applicant:	In person
Representative for the Respondent:	Ms A Zinn
Solicitors for the Respondent:	Mills Oakley Lawyers
Other Party:	By telephone