FEDERAL COURT OF AUSTRALIA

P v Child Support Registrar [2012] FCA 1398

THE COURT ORDERS THAT:

1.    The appeal is upheld.

2.    The matter is remitted to the Administrative Appeals Tribunal to be further determined according to law.

3.    The first respondent is to pay the costs properly incurred by the applicant bearing in mind his status as a self-represented litigant.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This judgment deals with an appeal brought under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). The appeal is on a question of law. The decision of the Administrative Appeals Tribunal (“the AAT”) with which this judgment is concerned was given on 28 June 2012. It affirmed in substance (although varying the date of effect) a decision given by the Social Security Appeals Tribunal (“the SSAT”) on 11 January 2012.

2    Because of restrictions arising under s 121 of the Family Law Act 1975 (Cth) and s 110X of the Child Support (Registration and Collection) Act 1988 (Cth), I propose to use pseudonyms in this judgment to identify the personal parties to the proceedings and their child with whom the arrangements in question are concerned.

3    The issues which were before the SSAT and the AAT arise from the operation of provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), in particular ss 50 and 54A. Those issues also require attention to a guide issued by the Child Support Agency called “The Guide”. As the AAT correctly appreciated in the decision which is at present under challenge, such guides are not binding, but they are generally applied unless there are compelling reasons not to do so. No such reasons have been suggested in the present case.

4    The issues which arise between the applicant and the second respondent which were the subject of initial decision by the first respondent, and subsequently by the SSAT and the AAT, relate to child support arrangements between the applicant and the second respondent with respect to their eldest child, C. Those issues are aspects of broader arrangements for the support of C and two other children which are governed by Orders made by consent in the Federal Magistrates Court of Australia on 6 June 2011 (“the orders”). The orders provide that the applicant and the second respondent are to “have equal shared parental responsibility” for each of the three children and provide:

That the parent with whom the children are living with at that time is to be responsible for the day to day decisions concerning the care, welfare and development of the children.

5    The orders contemplate that C will be a boarder at St Joseph’s College during ordinary school terms, but that otherwise he will spend his time with one or other of his parents in a way which divides that time equally. The evidence before the AAT was that those arrangements have been complied with. The orders provide that the applicant and/or the applicant’s mother, who was also joined as a party to the proceedings in which the orders were made:

…will be solely responsible for the payment of all and any school fees and expenses at St Joseph’s College Hunters Hill and that any such payments will not be claimed by the Husband as … non-agency child support payments.

6    There is nothing in the orders which allocates parental responsibility for C to one parent to the exclusion of the other while C is at St Joseph's College. To the contrary, the orders appear to contemplate that each parent will retain that degree of shared responsibility for C’s wellbeing which is consistent with the fact that he resides at St Joseph’s College on Monday to Friday nights inclusive during school terms. It does not appear to me that payment of the school fees as such alters that position.

7    At an earlier point in time, before the orders were made on 6 June 2011, it appears that the applicant was assessed by the first respondent as responsible for the care of C for 86 per cent of the time. It is not now clear what was the basis for that decision, but in light of the facts which are agreed between the parties, it is not important to explore that question further. It is agreed that C spends 201 nights at St Joseph's College. That represents approximately 55 per cent of the nights of the year where he is required to have accommodation. It is also agreed that the remaining 164 nights are divided equally between the applicant and the second respondent, so that between them C spends approximately 45 per cent of the nights of the year with one or other of them.

8    After the orders were made on 6 June 2011, a decision was made by the first respondent to reallocate the percentages of care between the applicant and the second respondent on the basis of 50 per cent/50 per cent. That decision generated the appeal to the SSAT which affirmed the decision in substance but altered the date of operation. As I have earlier said, the decision of the SSAT was later affirmed in substance by the AAT, but the date was reinstated to the original date to correspond with the date of effect of the orders.

9    The method of assessment of percentage care is mandated by s 50 of the Act. Section 50(2) and (3) provide as follows.

(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.

10    Section 54A of the Act provides by subsections (1) and (3):

(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.

…

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

11    To this point, the parties have argued their respective cases on the basis that decisions should be made as to who had the care of C on the nights he spent at St Joseph's College. It was agreed that C was in the care of the applicant or the second respondent on each of the 82 nights of the year that C spent with one or the other, and there is no basis to doubt or disturb that common position. It appears to have been assumed that it is also either necessary or appropriate for the 201 nights that C spends at St Joseph’s College to be attributed somehow to, or between, the applicant and/or the second respondent. That assumption, in my respectful view, is much less sound. I shall return to it after I have exposed in a little more detail the way in which the parties argued their position before the AAT and the view which the SSAT and the AAT took of their arguments.

12    The applicant’s position has been that he is entitled to be regarded as C’s carer during the whole of the period that C is at St Joseph's College because the applicant, or someone on his behalf, meets the whole of the costs of those arrangements. Various levels of opposition have been raised to this contention. One was that the applicant could not claim credit of this kind for expenses which were actually borne by his mother, even if he accepted a moral (or perhaps even legal) obligation to repay those expenses at some future time. That is a contention which does not appear to have influenced the outcome of the deliberations of either the SSAT or the AAT.

13    Another matter of opposition has been to suggest that even though C was boarded at St Joseph’s College in circumstances where the costs were borne by the applicant (or his mother), nevertheless each parent retained sufficient responsibility for decisions about C’s wellbeing and overall welfare that each was his carer for relevant purposes during the whole of that time. The assumption which underlies this approach does not depend upon the legal allocation of parental responsibility under the orders, although it takes that as a starting point. The assumption is that nothing in the arrangements for which the applicant or his mother bear the expense displaces the ultimate care and responsibility that each of the applicant and the second respondent continue to have as C's parents. Nobody has suggested that responsibility as a carer, in this sense, has in any way been accepted by St Joseph’s College.

14    There does not appear to this point to have been any particular attention given to whether it was necessary, in order to assign the percentages contemplated by s 50 of the Act, to actually nominate a particular carer for the period while C was at St Joseph’s College. Still less does any attention appear to have been given to whether it would be appropriate to assign a carer for particular nights, so that the applicant was the carer on some nights and the second respondent was the carer on other nights. The matter appears to have been approached by the SSAT and the AAT on the basis that the applicant and the second respondent were joint carers for the whole of the period in question and for each of the nights within that period.

15    If it is necessary to actually nominate a specific carer for the 201 nights in question, I do not understand how, for those by whom the matter has been so far addressed, it would be possible realistically to take any other approach if it was inappropriate (as the SSAT and the AAT clearly felt) to attribute care to the applicant for the whole period to the exclusion of the second respondent. The legal difficulty which arises is not with the realism of the assessment which has been made, but with the question whether it is possible to approach the matter that way as a matter of law. That is a subject to which I will return shortly.

16    The decision of the SSAT records the following at [35], and [39] to [41]:

35.    The Tribunal notes that Mr P and Ms M have Court Orders that state that they each care for C in alternate weeks. The Tribunal is satisfied that the Orders are being complied with. They anticipated that C would attend St Joseph’s. He was already a weekly boarder when the Orders were made. Ordinarily, this would mean that the parents’ care percentages for C are 50% each, a change from the 86% previously assessed for Mr P and 14% for Ms M. However, it is Mr P’s contention that his care percentage for C should be greater than 50% because he pays for all of C’s boarding school fees and associated costs.

…

39.    The Tribunal notes that the Courts Orders of 6 June 2011 show that C is in the care of each parent 50% of the school holidays and 50% of the time that he spends away from school. The Court Orders are silent as to which parent is considered to have actual care of C whilst he is at school.

40.    The Tribunal has found that both parents pick up C from school, spend money on him whilst he is in their care and provide support for his extra-curricular activities. Furthermore, both parents are listed as school contacts and are in regular contact with St Joseph’s College regarding C’s development, health and welfare.

41    In light of the parties’ shared parental responsibility for C, their contact with him and expenses met by each of them whilst he is in their care, as well as the fact that neither has actual care of him when he attends St Joseph’s College, the Tribunal finds that each parent should be regarded as having 50% of care for the nights that C stays at the College each year.

17    The decision of the AAT recorded the acceptance by the AAT that the consent orders have been complied with. The AAT recorded at [19]:

19    I am satisfied from the evidence that the terms of the Consent Orders have been complied with. I note the evidence of both parents that during school holidays the children spend one half of their time with each parent and that Master C spends the school week as a weekly boarder, and alternate weekends, including the weekend nights with each of his parents. Whilst the exact amounts of money spent on the child by each parent for incidental expenses such as outings whilst in the care of each on weekends and during holidays was not detailed, I am satisfied that each takes care of those expenses, including entertainment, while the child is in the care of that parent.

18    The AAT indicated that there was no issue arising from the joint assumption of responsibility by the applicant and his mother for the payment of school fees that affected the AAT decision (at [22]). The crux of the AAT’s reasons for upholding the approach taken by the SSAT appears to me to be disclosed by the following passage at [30] of its decision:

30    …The evidence before me is that both parents are involved in decision making regarding Master C during the time that he spends at boarding school, and are consulted in that regard. Accordingly, notwithstanding the father and the paternal grandmother pay the fees, and the father sees Master C on weekends during rugby games because he coaches rugby for the school, I find that the care during the boarding school periods is shared between the parents.

19    Similarly, the AAT said at [38]:

38    I am satisfied that the nights Master C spends at boarding school can be considered to be shared between the parents although I am mindful the SSAT commented that the Consent Orders are silent as to which parent is considered to have care of Master C for the nights he spends at school.

20    I take from these passages, which are the ones which identify the reasoning process in relation to this central issue, that the AAT acted upon a view that each parent was entitled to equal credit with respect to the whole of the period spent at boarding school, each being entitled to be involved in decision-making arising during that period and each being consulted in that regard. I see no indication from these passages that the AAT took some different and essentially artificial approach to the attribution of responsibility between the parents on particular nights at particular times.

21    Before I deal with the consequences of those matters for the disposition of the present proceedings, I will briefly mention other matters which arose more directly in the applicant’s case. The matters to which I have so far drawn attention are not matters upon which the applicant relied specifically during his oral submissions. In the written submissions, which were filed in advance of the proceedings, the applicant at [32] of those submissions stated the essence of his position in this way:

The Applicant is providing the substantial financial support and has the financial burden for Master C for 283 days of the year. Outside of the boarding school, educational provision and support and the sporting and extra-curricular activities it is agreed that the Applicant and Second Respondent have shared care – however, this is only for 164 days of the year, for which the Applicant has half the care.

On this approach, the applicant claims, as he had done earlier, to be credited with the times that C spent with him and also the whole of the period C spent at St Joseph's.

22    When the proceedings commenced this morning, the applicant accepted that each parent was entitled to be consulted if questions about the wellbeing of C arose during the period he spent at St Joseph’s College. That appears to me to conform to, and confirm, the conclusions of the AAT in that respect. The applicant also confirmed that credit for the payment of the school fees, which were paid by him or on his behalf, was the paramount issue at the heart of his case.

23    Nevertheless, there were a number of other complaints made about the proceedings before the AAT and about its decision. Those complaints are procedural in nature. None of them would have resulted in the proceedings being decided in the applicant's favour.

24    One complaint was that the AAT had denied the applicant procedural fairness by admitting into evidence, with little notice to him, a statement by the second respondent. The statement, according to the applicant, made misleading assertions about the effect of the orders dated 6 June 2011. Those orders were before the AAT. The orders were explicitly referred to by the SSAT in the paragraphs which I set out earlier. There is no substance in the suggestion that there was any denial of procedural fairness to the applicant arising from the admission of the second respondent's statement insofar as it concerned the orders.

25    The statement also contained commentary regarding the expenses which the second respondent bore in relation to C. The submissions which were made by the applicant were that the statement by the second respondent, which was wrongly admitted, had poisoned the deliberations of the AAT and influenced its decision. Those accusations appear to me to have no foundation whatsoever. Moreover, they are essentially irrelevant to the issues upon which the applicant's case really depends. That case does not depend upon denying that the second respondent meets her share of expenses while C is in her care. It is true that the applicant had little notice of the terms of the second respondent's statement, but that does not take the matter very far. I have already referred to the applicant's acceptance that his case depends upon the arrangements at St Joseph’s. Those matters, in my view, were accurately and fairly addressed in the AAT decision.

26    Another complaint is that during the proceedings the first respondent's representative put before the AAT material by way of previous decisions (and perhaps arguments) of which the applicant had no prior notice. I do not think that any lack of notice to the applicant about these matters had any effect which could be fairly seen as prejudicial to his case. The matters that were referred to in argument before the AAT by the first respondent did little more than restate matters that were evident from The Guide in any event.

27    A further complaint was that the AAT had failed to give adequate reasons for its conclusion that care of C during the period at St Joseph's should be attributed equally to the two parents. I have already referred to the passages in which, in my view, those reasons are sufficiently disclosed.

28    I return to the question of the error of law which I am satisfied arises in the present case. The error arises from what I see as the failure by the AAT to observe the strictures in s 54A(3) of the Act.

29    As I understand the reasoning and effect of the AAT’s decision, both the applicant and the second respondent were given credit for the time that C spent in the physical custody of St Joseph's College in equal measure. I see no way of construing the reasons of the AAT or the outcome as one in which time, days or nights was attributed to one parent or the other. Such an approach would, in my view, be essentially inconsistent with the finding that each parent retained their parental rights and privileges in relation to C's wellbeing during the whole of the period, and on each of the days and nights within it. Neither the applicant nor the second respondent could claim a right to consultation by St Joseph’s College to the exclusion of the other in any particular circumstance or on any particular occasion.

30    However, approaching the matter as the AAT did does not appear to me to accord with s 54A(3). As it appears to me, in the circumstances of the present case, that provision requires that either specific periods (or the whole period) at St Joseph's College be attributed to one parent or the other as carer or to neither of them as actual carers for those nights.

31    The second respondent makes no claim that she would be entitled to be regarded as a sole carer in that period. The applicant does make such a claim. It is not clear to me that it is necessary under the Act to actually assign the period, or days within it, to one parent or the other. The first respondent accepted in submissions that it is not the invariable practice of the AAT to do so. Whatever approach is taken, the same period may not be attributed to both parents at the same time, even in equal measure. The AAT made an error of law in regarding both parents as carers in equal measure for the same period, and on the nights in that period.

32    The next question which arises is whether the matter needs to be remitted to the AAT for further attention or whether it would be appropriate for the Court to substitute some decision of its own. Although the Court may normally not deal with merits or factual matters, there are limited circumstances in which findings of fact may be made (see s 44(7) of the AAT Act). Both the first respondent and the applicant asked me to make an order dealing finally with the matter, although the orders they sought were to opposite effect.

33    The Guide to which I referred earlier sets out a number of factors which might generally be taken into account in determining an appropriate percentage of care. Generally speaking, the percentage of care is to be based upon actual care and is generally worked out on the basis of the number of nights that a child is in the care of the person concerned. If it is not possible to determine a percentage of care based upon actual care (or perhaps to the extent to which it is not possible to do so) it may be accepted by a decision-maker that parents share the care of a child equally. That may be a possible approach in the present case to the period spent at St Josephs College, although it is not one, as it appears to me, which has so far been taken in those terms.

34    Alternatively, in an example approach given by The Guide, credit may be given to a person “who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well is [sic] who is meeting the child’s costs, rather than just the accommodation arrangements themselves”. That example is given in connection with a suggestion that “a person can provide care for a child who is at a boarding school, in hospital or in separate accommodation”. An approach like that may support the applicant’s position. It is certainly one upon which he relies.

35    I do not think that this matter can be resolved until a judgment is made by a fact finder/decision-maker about whether there should be an attempt to make a specific assignment to a particular parent in relation to the period at St Joseph’s College. I do not believe that the position is conclusive in favour of one side of that argument or the other. Further assessment of the issue will be a matter for the AAT.

36    A final issue concerns the question of costs. The applicant is self-represented, but says that he has incurred costs by way of disbursements in bringing the present proceedings. It appears to me that under r 40.01 of the Federal Court Rules, and with the aid of the definition of “costs as between party and party” in the Dictionary to the Federal Court Rules, there may be some scope for the applicant to make a legitimate claim for recovery of some of his disbursements, although professional costs, if any have been incurred, may be more problematic for him. Those are matters for discussion, agreement or, if necessary, assessment if the applicant wishes to pursue the matter. Notwithstanding that the proceedings concern issues having their origins in a dispute about child support matters, they come to this Court from the AAT in circumstances where appeals from decisions of the AAT frequently attract costs orders going one way or the other. I can see no reason in principle why a costs order, so far as it may be effective in this case, should not follow the result.

37    I make the following orders:

(1)    The appeal is upheld;

(2)    The matter is remitted to the Administrative Appeals Tribunal to be further determined according to law;

(3)    The first respondent is to pay the costs properly incurred by the applicant, bearing in mind his status as a self-represented litigant.

Associate:

Dated:    7 December 2012