Confidential and Social Security Appeals Tribunal and Anor [2010] AATA 1 (4 January 2010)

Last Updated: 5 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4892

GENERAL ADMINISTRATIVE DIVISION		)
	Re		CONFIDENTIAL

Applicant

And

SOCIAL SECURITY APPEALS TRIBUNAL

Respondent

And

CONFIDENTIAL

Third party

DECISION

Tribunal

Deputy President P E Hack SC

Date 4 January 2010

Place Brisbane

Decision

The Tribunal affirms the decision under review.

..............................................
Deputy President

Publication of this decision is approved by the Administrative Appeals Tribunal pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988

CATCHWORDS

CHILD SUPPORT – parents of 16 year old child – existing court order awards 75% of care to applicant and 25% to third party – child lived solely with third party in disputed period – child refuses to live with applicant – no change to the court order - applicant has taken no steps to enforce the order – third party encouraged child to have dealings with the applicant – applicant has had no care in the relevant period despite the third party making the child available – decision affirmed.

Child Support (Assessment) Act 1989 (Cth) ss 52, 53

Stevenson & Hughes [1993] FamCA 14; (1993) 112 FLR 415; [1993] FLC 92-363; 16 Fam Lr 443

REASONS FOR DECISION

4 January 2010

Deputy President P E Hack SC

1. The applicant and the third party[1] are the parents of a 16 year old female child, born in May 1993. They are in dispute about the child support regime in relation to the child.
2. It is not necessary to consider the mechanisms of child support in their entirety. It will suffice for present purposes to notice that the concept of “percentage of care” is fundamental. Percentage of care is determined by considering the extent of care likely to be had during a 12 month period from a particular date[2]. It can be determined by reference to an agreement between the parents or by reference to a court order.
3. I observe, at the outset, that the Child Support Agency has played no role in the proceedings and thus it has been necessary for me, in order to determine the procedural history of the matter, to interpret the bundle of papers that was apparently sent by the Child Support Agency to the Social Security Appeals Tribunal. That has

not been an easy task.

4. So far as I am able to tell, up to the time in issue between the parties the percentage of care had been determined 75% to the applicant and 25% to the third party by reference to an order made by consent in the Federal Magistrates’ Court on 13 January 2005. In early September 2008 the child, who had to that time, resided with the applicant, chose to reside with the third party. The child was then aged 15 years. The third party notified the Agency of this alteration in care arrangements on 29 September 2008. That led to a decision being made on 7 October 2008 that the third party had 100% care of the child.
5. The applicant objected to this decision on 23 October 2008. That objection was allowed, and the percentage of care reverted to that determined by the court order, by an objection decision made on 22 December 2008.
6. It appears that in the meantime the third party made an application for the percentage of care to be determined in a way that reflected the actual care. It is not clear how or when that was done but it seems from the Agency’s file that it had been done at least by 5 December 2008. The decision-making processes to date have operated on the basis that that was the date of the application and I shall continue to do so.
7. In the circumstances of the present case it is necessary to consider the mechanisms for altering the percentage of care. Sections 52 and 53 of the Child Support (Assessment) Act 1989 (Cth) are relevant. Section 52 deals with the power of the Registrar to make an interim determination. It provides, so far as is presently material, as follows:

“(1) The Registrar may determine the percentage (if any) of care of a child that a parent or non-parent carer of the child is likely to have during the relevant care period if:

(a) there is an agreement, plan or order that allows such a percentage to be determined under section 49; and

(b) a parent or non-parent carer of the child does not agree that the care of the child that is actually taking place is in accordance with the percentage so determined; and

(c) in the circumstances of the case, the percentage so determined would result in an unjust and inequitable determination of the level of financial support to be provided by a parent for the child; and

(d) a parent or non-parent carer of the child has taken reasonable action:

(i) to seek to reach agreement; or

(ii) to seek a court order; or

(iii) to enforce a court order;

about the care of the child; and

(e) a parent or non-parent carer of the child applies for the determination.”

8. Section 53 is in these terms:

“(1) The Registrar may determine the percentage (if any) of care of a child that a parent or non-parent carer is likely to have during a care period if:

(a) a parent (the first parent) was to have at least regular care of the child during the relevant care period under an oral agreement, parenting plan or court order; and

(b) the first parent has no care, or has a pattern of care that is less than regular care, of the child despite the other parent or a non-parent carer making the child available to the first parent; and

(c) the other parent or a non-parent carer of the child applies for the determination.

Note: If the Registrar refuses to make a determination under this section, the Registrar must give the applicant a notice under section 54.

(2) The determination must specify, in accordance with subsections (4) and (5), the first day in the child support period to which the determination is to apply.

(3) The determination applies to the day specified, and later days in the child support period.

(4) If the Registrar is satisfied that the other parent or the non-parent carer who applied for the determination failed, within a reasonable period, to notify the Registrar that the first parent had no care, or less than regular care, of the child during the relevant care period, the day specified must be the day on which the determination is made.

(5) Otherwise, the day specified must be:

(a) if the first parent never established a pattern of care in accordance with the oral agreement, parenting plan or court order—the day on which the plan or court order was entered into or made; or

(b) if the first parent established a pattern of care in accordance with the oral agreement, parenting plan or court order, but later ceased the established pattern of care—the day on which the parent ceased the previously established pattern.
(6) To avoid doubt, a parent never establishes a pattern of care if:

(a) the parent could not have established the pattern of care until a particular period that occurs later in the child support period; and

(b) the parent does not establish that pattern during that particular period.

(7) The Registrar may revoke or vary a determination made under this section.

(8) If the Registrar could make a determination under section 52 and this section in respect of the percentage of care for a child, the Registrar must make a determination under this section and not section 52.”

9. A determination was made on 24 March 2009 that for the period from 13 December 2008[3] to 30 September 2009 the applicant had 0% of care of the child and that the third party had 100%. As I interpret the material on the file the decision-maker considered the operation of both s 52 and s 53 of the Child Support (Assessment) Act, concluded that the criteria for both were made out and then made the determination under s 53 of the Act because of the terms of s 53(8) of the Act[4].
10. The applicant objected to the determination on 23 April 2009 as she was entitled to pursuant to s 80(1), Item 11, of the Child Support (Registration & Collection) Act 1988 (Cth). On 30 June 2009 her objection was allowed and the percentage of care was restored to that set by the court order i.e. 75/25. I observe that that decision-maker appears to have taken the view that a “below regular care determination” i.e. one made under s 53 of the Child Support (Assessment) Act “would only be considered where a parent who had at least regular care of a child was choosing not to exercise that level of care with the child”[5].
11. The third party then made application to the Social Security Appeals Tribunal pursuant to s 89(1), Item 2, of the Child Support (Registration & Collection) Act. That Tribunal, on 15 September 2009, set aside the objection decision and determined that from 5 December 2008, the third party had a 100% of care for the child and that the applicant in the present proceedings had 0%. The applicant now seeks a review of that decision in this Tribunal.
12. It is not in issue that throughout the period in issue the child was residing with the third party because that was the preference of the child. The argument for the applicant, which was accepted at the objection stage, is that the percentage of care was determined by a consent court order which remains in force, that the child had been removed from her care without her consent and that the third party had not made the child available to the applicant. It was argued that I should infer the refusal to make the child available from the absence of evidence by the third party as to the steps taken to make the child available.
13. The issue posed is whether the determination of the Registrar made on 24 March 2009 was the correct decision. That requires consideration of whether the matters specified in paragraphs (a) to (c) of s 53(1) or paragraphs (a) to (e) of s 52(1) are made out. Given the terms of s 53(8) it is necessary to first consider s 53.
14. So far as paragraphs (a) and (c) are concerned the applicant, the “first parent” in the language of the statute, was to have at least regular care of the child during the relevant care period under the court order of 13 January 2005 and the third party, the “other parent”, applied for the determination. So much is accepted by the applicant. The issue is whether the applicant had no care of the child despite the third party making the child available to her.
15. The statute gives no explicit guidance about the meaning to be attributed to the expression “making the child available”. In the Social Security Appeals Tribunal reference was made to cases in the Family Court that stand as authority for the proposition that an access order made in that jurisdiction imposes an obligation “which goes beyond mere passive non-interference and ... imposes upon the person who is obliged to give access a positive obligation to encourage that access”[6]. For my part I remain unconvinced that such considerations arise when considering whether one parent has made a child available to the other parent in circumstances such as the present.
16. The child in this case has expressed a preference for residing with the third party rather than the applicant despite the presence of an order that the child is to reside with the applicant. The applicant has attempted to contact the child but the child will not take her telephone calls and will not speak to her. The child was aged 15 years at the time of first leaving the custody of the applicant and residing continuously with the third party and is now aged 16 years.
17. The applicant, as I understood her evidence, has taken no steps to enforce the terms of the court order by application to the court. This seems to be because of advice, similar to advice given to the third party, that the court would not enforce an order against the expressed wishes of a child of this age. There is no suggestion in the material that the third party has taken any steps to discourage the child from having dealings with the applicant and the findings of the Social Security Appeals Tribunal that he encouraged the child to do so were not challenged.
18. The conclusion that the third party has made the child available is inescapable on the evidence. In circumstances where a child of this age has articulated the preferences that have been expressed I find it impossible to see what else the third party might have done. It is unfortunate that the child is apparently antagonistic towards the applicant. Hopefully, the child will develop a more mature attitude in time. But on the facts it seems to me to be plain that the applicant has had no care in the relevant period despite the third party making the child available.
19. 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, But where, as is the case here, there has been no attempt by the applicant to “avail” herself of the care of the child it would seem difficult to see how it could be concluded that the child had not been made available. The applicant did not suggest that she had ever sought to avail herself of the opportunity of care for the child when the child was not made available. There were no circumstances where the applicant sought to contact the child that were refused or rebuffed by the third party. That conduct was that of the child, not of the third party.
20. It follows that I consider that the decision, originally made on 24 March 2009, was the correct one. The applicant’s objection ought not to have been allowed. Thus the Social Security Appeals Tribunal was correct to set aside the objection. Its decision ought be affirmed. In my view, that decision-maker put a gloss on the legislation by imposing a requirement, not found in the statute, that an application under s 53 of the Child Support (Assessment) Act could not be made except where the non-custodial parent was choosing not to exercise the determined level of care. But even if there had been such a requirement I would have regarded it as having been satisfied.
21. I should mention that the applicant is aggrieved that the third party has taken no steps to vary the court order. That issue has no relevance where the enquiry is as to the correctness of a decision made under s 53 of the Child Support (Assessment) Act. It is understandable that the percentage of care is ordinarily determined by reference to the agreement of the parties or a determination of the court. But ss 52 and 53 of the Child Support (Assessment) Act allow changes to be made to a determination to reflect the reality of a situation where there is significant discordance between an existing determination and the reality of the situation.
    

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: .....................................................................................

Associate

Date of Hearing 18 December 2009

Date of Decision 4 January 2010

Applicant Self represented

Respondent Self represented

---

[1] I will use the descriptions that the parties have in the present proceedings throughout these reasons.
[2] See s 48, Child Support (Assessment) Act 1989 (Cth)
[3] This date is taken from the assessment dated 2 July 2009. In other places in the material the date 5 December 2008 is used as the starting date for the new percentage of care arrangements.
[4] The decision-making process appears to be evidenced by the document at pages 163 to 166 of Exhibit 1.
[5] Exhibit 1, page 5.
[6] See Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; [1993] FLC 92-363; 16 Fam Lr 443