MDXJ v Secretary, Services Australia - [2022] FCA 765 - FCA 2022 case summary — Zoe

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MDXJ v Secretary, Services Australia

[2022] FCA 765

Federal Court of Australia|2022-07-05|Before: Besanko J

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Source facts

Court

Federal Court of Australia

Decision date

2022-07-05

Before

Besanko J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

The name of the first respondent be amended to Secretary, Services Australia.
The appeal be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

Introduction 1 This is an appeal under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) from a decision of the Administrative Appeals Tribunal (the Tribunal). The appeal under this section is limited to an appeal on a question of law. 2 The applicant is known as MDXJ for the purposes of these proceedings and the first respondent is the Secretary, Department of Social Services (the Department). The name of the first respondent has been changed to Services Australia and I will make an order reflecting that fact. The second respondent to the appeal is known as SVPX for the purposes of these proceedings. SVPX is the former wife of the applicant. She has taken no part in the appeal. 3 There was an earlier appeal by the applicant in a different proceeding (SAD 63 of 2019) which I dismissed as incompetent: MDXJ v Secretary, Department of Social Services [2019] FCA 2163; (2019) 168 ALD 454. 4 In an interlocutory judgment in this appeal (SAD 131 of 2020) in which I rejected an application by the applicant for discovery by the first respondent of certain Departmental policies (MDXJ v Secretary, Department of Social Services [2020] FCA 1767), I described the relevant history of this matter before the Tribunal and this Court as follows: 4 On 19 February 2019, the Tribunal made the following directions in the review which was before it: 1. The request to issue summonses is refused. 2. The matter is to be listed for a further hearing at a date to be advised by the Registry for the parties to be heard on the issue of final orders and the decision in the reviews. (MDXJ and Secretary, Department of Social Services (Social services second review) [2019] AATA 177 (MDXJ (No 1)).) 5 The applicant purported to appeal against these directions. I decided that the Tribunal's reasons and directions were not a decision within s 44 of the AAT Act and held that the appeal was incompetent. I made an order that the appeal be dismissed on the basis that it was incompetent (MDXJ v Secretary, Department of Social Services [2019] FCA 2163; (2019) 168 ALD 454). 6 The review was considered again by the Tribunal and after that further consideration, the Tribunal made the following decision: The decision under review is set aside and substituted with a decision affirming the authorised review officer's decision. (MDXJ and Secretary, Department of Social Services (Social services second review) [2020] AATA 2520 (MDXJ (No 2)).) The applicant now appeals against this decision. The reasons in MDXJ (No 1) and in MDXJ (No 2) are both relevant to the merits of the appeal which is presently before the Court. 7 The applicant appears in person. His Amended Notice of appeal is a document of 40 pages and it consists of the following: (1) 46 matters described as questions of law; (2) 7 matters described as findings of fact that the Court is asked to make; and (3) 46 matters described as grounds relied on in the appeal. 8 The respondent submits that a relevant matter on this application is that a calculation of the applicant's entitlement under the FA Act, should the appeal be allowed and the applicant's submission as to his FTB entitlement during the relevant period be adopted by the Tribunal on the remitter, results in a benefit of $1,279.88. The applicant claimed in his oral submissions that the amount is up to $5,000. 5 In the course of her submissions, the first respondent referred to the first Tribunal decision as "TD1" and the second Tribunal decision as "TD2". It is convenient for me to adopt the same descriptions. 6 Although the appeal is against the decision in TD2, the reasoning in TD1 is also relevant. That is because in TD2, the Tribunal addressed the following issues: (1) whether the Tribunal member should disqualify himself; and (2) whether there was any substantive matter that remained which justified a further hearing in the reviews or whether the Tribunal should make final orders. The Tribunal member refused to disqualify himself and he decided that no further hearing was necessary. The decision was to set aside the decision under review and to substitute a decision affirming the Authorised Review Officer's (the ARO) decision made on 4 July 2017. The ARO's decision was to the effect that for the purposes of the A New Tax System (Family Assistance) Act 1999 (Cth) (the FA Act), the applicant have 0% care of Child A from 15 September 2016 and SVPX have 100% care.

[3]

Background 7 The applicant and SVPX are the parents of two children. One child is relevant for the purposes of this appeal and that child is Child A. Prior to 15 September 2016, the applicant and SVPX shared the care of Child A. Since 15 September 2016, Child A has been in the sole care of SVPX. 8 The appeal concerns the construction and application of certain provisions of the FA Act and the entitlement of the applicant under that legislation to a family tax benefit (FTB) based on the extent of care for Child A. Prior to 15 September 2016, the allocation of the percentage of care under the FA Act of Child A between the parents was SVPX, 60% and the applicant, 40%. 9 The FA Act makes provision for an interim care period where an event occurs in relation to the relevant child without the adult's consent that prevents the child being in the adult's care and the adult takes reasonable steps to have the child again in the adult's care. The FA Act also gives the Secretary of the Department various discretions to decline to apply an interim care period or to extend an interim care period or to abridge it. 10 Section 23 of the FA Act addresses the effect of a child designated as an "FTB child" ceasing to be in a person's care without the consent of that person. It provides, relevantly: (1) This section applies if: (a) an individual is an FTB child of another individual (the adult) under subsection 22(2) or (3); and (aa) the circumstances surrounding legal responsibility for the care of the individual are those mentioned in paragraph 22(5)(a) or (b); and (b) an event occurs in relation to the child without the adult's consent that prevents the child being in the adult's care; and (c) the adult takes reasonable steps to have the child again in the adult's care. When the child remains an FTB child of the adult (2) Subject to subsection (4A), the child is an FTB child of the adult for that part of the qualifying period (see subsection (5)) for which: (a) the child would have been an FTB child of the adult under subsection 22(2) or (3) if the child had not ceased to be in the adult's care; and (b) the circumstances surrounding legal responsibility for the care of the child are those mentioned in paragraph 22(5)(a) or (b). (3) The reference, in paragraphs (1)(a) and (2)(a), to an FTB child of an individual or adult under subsection 22(2) or (3) includes a reference to: (a) a child who is an FTB child under subsection 22(2) or (3) in its application by virtue of subsection 22(7); and (b) a child who is an FTB child under subsection 22(2) or (3), but who is taken not to be an FTB child under section 25. Note: As a result of subsection (2) of this section, a child who is taken not to be an FTB child under section 25, but who is a regular care child, will remain a regular care child for the part of the qualifying period referred to in subsection (2) of this section. (4) Except as provided in subsection (2), the child cannot (in spite of section 22) be an FTB child of any individual during the qualifying period. When subsection (2) does not apply (4A) If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine that subsection (2) does not apply in relation to the child and the adult. Definition of parent and qualifying period (5) In this section: parent includes a relationship parent. qualifying period means the period beginning when the child ceases to be in the adult's care and ending at the earliest of the following times: (a) if the child again comes into the adult's care at a later time - that later time; (b) either: (i) after 14 weeks pass since the child ceased to be in the adult's care; or (ii) if the Secretary specifies, under subsection (5A), a day that is earlier than the last day in that 14-week period - the end of that earlier day; (c) if: (i) the adult is a parent of the child; and (ii) no family law order, registered parenting plan or parenting plan is in force in relation to the child; and (iii) the child comes into the care of the other parent at a later time; that later time. Shorter qualifying period (5A) If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may specify a day for the purposes of subparagraph (b)(ii) of the definition of qualifying period in subsection (5). … 11 For the purposes of s 23(5) of the FA Act, a family law order includes a parenting order within the meaning of s 64B of the Family Law Act 1975 (Cth) (the FL Act) and parenting plan has the meaning given by the FL Act (see s 3 of the FA Act). 12 Section 35C of the FA Act addresses the percentage of care to be determined by the Secretary if action is taken by an individual to ensure that a care arrangement in relation to a child is complied with. It provides as follows: (1) This section applies in relation to an individual (the adult) if: (a) a care arrangement applies in relation to a child; and (b) the Secretary is satisfied that the actual care of the child that the adult has had, or will have, during a care period does not comply with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil); and (c) an individual who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with. Note: This section does not apply in certain circumstances, see section 35F. 2 percentages of care in relation to the adult (2) Subject to subsection (5), the Secretary must determine, under section 35A or 35B, 2 percentages of care in relation to the adult. (3) The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the adult should have had, or is to have, under the care arrangement during the care period (which may be nil). (4) The second percentage of care is to be: (a) if section 35A applies in relation to the adult - 0%; or (b) if section 35B applies in relation to the adult - a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed. Single percentage of care in relation to the adult (5) If the Secretary is satisfied that special circumstances exist in relation to the child, the Secretary may determine, under section 35A or 35B, a single percentage of care in relation to the adult. (6) The single percentage of care is to be: (a) if section 35A applies in relation to the adult - 0%; or (b) if section 35B applies in relation to the adult - a percentage that corresponds with the actual care of the child that the Secretary is satisfied that the adult would have during the care period if the action referred to in paragraph (1)(c) were not to succeed. 13 The definition of care arrangement in s 3 of the FA Act is important in the appeal and is as follows: (a) a written agreement between the parents of the child, or between a parent of the child and another person who cares for the child, that relates to the care of the child; or (b) a parenting plan for the child; or (c) any of the following orders relating to the child: (i) a family violence order within the meaning of section 4 of the Family Law Act 1975; (ii) a parenting order within the meaning of section 64B of that Act; (iii) a State child order registered in accordance with section 70D of that Act; (iv) an overseas child order registered in accordance with section 70G of that Act. 14 Section 35D of the FA Act (since repealed) addressed the percentage of care if action is taken to make a new care arrangement in relation to a child. 15 The first decision in this matter was by a delegate and he decided that an interim care period applied and that the applicant had 40% care of Child A from 15 September 2016. As I have said, an ARO reversed that decision and decided that the applicant had 0% care of Child A from 15 September 2016. The Tribunal in its Social Services & Child Support Division (Tier 1) set aside that decision and decided that an interim care period applied and that the applicant had 40% care of Child A from 15 September 2016 to 17 November 2016. Child A was an FTB child of the applicant until 17 November 2016. 16 It is not in dispute that the Family Court of Australia made extensive parenting orders in relation to Child A binding the applicant and SVPX on 4 December 2013 and that those orders were amended on two occasions, once on 5 February 2014 and then by the Full Court of the Family Court on 30 April 2015 (the Family Court orders). It is not in dispute that Child A has not, in fact, been in the applicant's care since 15 September 2016. Finally, it is not in dispute that the applicant brought contravention proceedings in the Family Court against SVPX for refusing to give the applicant contact with Child A between 15 and 19 September 2016. Those proceedings were dismissed.

[6]

Ground 3 21 On 7 August 2018, the Tribunal made directions for the hearing of a preliminary issue and the hearing in relation to that issue was held on 4 September 2018. 22 The preliminary issue was defined in a direction made by the Tribunal as follows: … [T]he issue of whether a 'care arrangement applies in relation to [the] child' for the purposes of paragraph 35C(1)(a) of the Family Assistance Act 1999 and the making of the interim care determination the subject of the review. 23 In TD1, the Tribunal decided that the Family Court orders, being parenting orders within ss 4 and 64B of the FL Act and a "care arrangement in relation to a child" within s 3 of the FA Act, did not apply at the relevant date (TD1 at [55]). Nor was there "a written agreement between the parents of the child … that relates to the care of the child" at the relevant date and therefore a "care arrangement in relation to a child" within the definition of that term in s 3 of the FA Act (TD1 at [66]). Those conclusions meant that a care arrangement did not apply in relation to Child A at the relevant date (TD1 at [67]) and "section 35C of the Family Assistance Act and its scheme of dual care percentage determinations for a period cannot be invoked" (TD1 at [68]). 24 The applicant's complaint in this ground of appeal is that he was denied procedural fairness in relation to the hearing of the preliminary issue and the decision in TD1 in that the scope of the hearing of the preliminary issue was never made clear to him and he was disadvantaged as a result. 25 There is no substance in this complaint. The preliminary issue as formulated belies any suggestion that it was limited to the Family Court orders and whether or not the informal parenting arrangement was a written agreement. Nor is there any substance in the applicant's contention that he approached the hearing believing there was no way a care arrangement could not so apply. That assertion is plainly contradicted by the terms of the preliminary issue and the fact that the Secretary had raised the issue in the Statement of Facts, Issues and Contentions filed by the Secretary before the hearing of the preliminary issue. Furthermore, the informal parenting arrangement was plainly relevant to an analysis of s 35C of the FA Act (TD1 at [56]-[66]). In addition, to the extent s 35D was raised by the applicant, it was dealt with in TD2. That section did not apply for the same reason the Tribunal held s 35C did not apply. This ground of appeal fails.

[7]

Ground 6 26 It is difficult to distil from Ground 6 of the ANOA and para 3 of the AWS, the precise nature of the applicant's complaints in relation to this ground of appeal. The essence of his complaint seems to be that he was misled as to the Tribunal's "intentions" with respect to the matters that would be dealt with as part of the preliminary issue, or at least it was not made clear to him what those matters were likely to be. 27 I have already stated my conclusions with respect to the applicant's complaints concerning the issue of "whether a 'care arrangement applies in relation to [the] child' for the purposes of paragraph 35C(1)(a) of the Family Assistance Act 1999". 28 The additional complaint made by the applicant in this ground relates to the Tribunal's approach to s 23 of the FA Act. 29 In TD1, the Tribunal dealt with the possible application of s 23, noting that the applicant had raised a question about the relationship between that section and s 35C at the conclusion of the hearing of the preliminary issue (TD1 at [71]). The applicant was given the opportunity to make submissions about the issue, both orally (Transcript of proceedings on 4 September 2018 (T)57) and in writing (T60). The Tribunal made a direction at the conclusion of the hearing of the preliminary issue that the applicant could make a written submission addressing the relationship between s 35C and s 23 (T59-61). 30 I do not accept that the applicant believed that he had secured a further hearing "via either of s23 or redetermination" as he asserts. Insofar as the applicant, by his references to the Tribunal's "disingenuous interpretations" in relation to s 23 and the Tribunal's "strategy", suggests bad faith, predetermination or some form of "holding back" by the Tribunal, I firmly reject these criticisms. There is no evidence in support of them. The applicant was given the opportunity to make submissions with respect to s 23 and the Tribunal dealt with the section thoroughly in TD1. Insofar as the applicant suggests that the Tribunal should have advised him how it was thinking about s 23, it is, as the first respondent pointed out, well established that the Tribunal is not required to provide a "running commentary" of the decision-maker's thought processes as the review progresses to a decision (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48]). This ground of appeal fails.

[8]

Ground 16 31 In this ground, the applicant contends that the Tribunal, having informed the parties that it was required to have regard to policy, failed to provide reasons when it ignored such policy in TD1. The point the applicant makes, as I understand it, is that although the Tribunal is not bound to apply Departmental policies, it is bound to give reasons where it does not do so. The applicant submits that the only reference to Departmental policies in TD1 is in [59] (DSS 1.1.C.05) and, by implication, in [52] and [53] (DSS 2.2.4). 32 In the ANOA, the applicant asserts that the following policies were relevant: (1) DSS 1.1.C.05 (use of Form FA012); (2) DSS 1.1.C.100 (Annual Care Periods and when Care Periods end); (3) DSS 2.1.1.20 and 2.1.1.60 (short term absences); (4) DSS 2.1.1.45 (Change in care arrangements); (5) DSS 2.1.1.50 (Variations to pattern of care); (6) DSS 2.1.1.70 (Redetermination); (7) DSS 2.2.2 (Pattern of care in dispute); (8) DSS 2.2.2 (Changes in pattern of care); (9) DSS 2.2.2 (Chronological order); and (10) DSS 2.2.4 (Care arrangement not being followed). 33 The answer to the applicant's submissions is that provided in MDXJ v Secretary, Department of Social Services [2020] FCA 1767, where I said (at [17]-[18]): 17 The part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case (Hneidi v Minister for Immigration and Citizenship [2010] FCAFC 20; (2010) 182 FCR 115 at [43]). Further, it is well-established that the Tribunal must make the correct or preferable decision in each case on the material before it and that the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function (Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642-643 per Brennan J). The important matter is compliance with the terms of the relevant statute itself (Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569). 18 In Elbehidi v Secretary, Department of Employment [2015] FCA 1229, White J considered an argument that the Tribunal, which was hearing a review under the Social Security Act 1991 (Cth), had erred in failing to take into account the Guide to Social Security Law published by the Department of Social Security. In the course of rejecting that argument, his Honour said at [38] and [44]: 38 However, the conclusion that the Tribunal will ordinarily have regard to a policy applied by the original decision maker is not the same as a conclusion that the Tribunal is bound to have regard to that policy so that a failure to do so will amount to an error of law in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. The applicant did not point to any feature of the SS Act indicating that a decision maker is bound to consider the Guide, and none has been identified. 44 The range of matters to which the Secretary may have regard, by virtue of s 595(1)(b), is diverse. That being so, it is probable that decision makers will mention those matters which they regard as pertinent in the particular circumstances of an applicant's case, and not every possible matter. That appears to be this case. I note again that the Tribunal was not bound to consider the passages in the Guide to which the applicant referred. This ground of appeal fails. (emphasis in original.) In short, the terms of a Departmental policy cannot prevail over the terms of the applicable legislation. 34 The applicant also submits in relation to this ground that the Family Court's practice in amending its orders is relevant to whether a parenting order was in place at the relevant date. It was submitted that that practice was to refer only to the amendments and not to "remake" its earlier orders. I am unable to see how this "practice" (assuming it was to be established) bears on the proper interpretation of the relevant legislation or the Tribunal's decision. This ground of appeal fails.

[20]

Ground 29 62 In this ground, the applicant contends that the Tribunal erred in failing to conclude that informal variations that are not parenting plans do not "effectively suspend" parenting orders for the purposes of a family care arrangement under the FA Act "as they cannot do so under the [FL Act]". 63 In support of this contention, the applicant referred to provisions in Division 13A of Part VII of the FL Act which address the powers of a court to make orders to enforce orders under the FL Act affecting children and, in particular, s 70NAE which defines the circumstances constituting reasonable excuse for contravening an order under the FL Act affecting children. As I understood the applicant's submission, it is that informal variations not constituting parenting plans might have an effect as a reasonable excuse for contravening an order under the FL Act affecting children, but could not operate to suspend parenting orders. The first respondent met this submission by referring to the decision of Berman J in Ongal & Materns (No 2) [2017] FamCA 144 (Ongal & Materns (No 2)). 64 The Tribunal described the contravention proceedings in the Family Court before Berman J as follows (TD1 at [40]-[42]): 40. On that question, it is necessary to refer to ex tempore reasons for Judgment of Justice Berman on a contravention application brought by MDXJ against SVPX. 41. In considering the contravention application, his Honour noted the allegation (the second count) that SVPX had refused to give Child A contact with his father for Thursday to Monday commencing 15 September 2016, and concluding 19 September 2016. MDXJ had argued this was a breach of order 3(b) of the orders dated 4 December 2013. SVPX pleaded not guilty. 42. His Honour recounted his understanding of the circumstances behind the allegation, in that an orthodontic appointment had been arranged for Child A, which MDXJ believed had been done deliberately to interfere with the time he was to have with Child A under the orders. However, before making findings about contentions of that nature, his Honour identified a more fundamental issue for the purposes of the contravention application arising out of evidence given by MDXJ and SVPX to the effect that prior to September of 2016, they had negotiated a private and informal agreement in respect of parenting arrangements. His Honour stated that he considered that by their informal agreement the parties had effectively suspended the relevant aspects of the order of 4 December 2013. (Footnote omitted.) 65 The Court dismissed the application brought by the applicant against SVPX and that decision was upheld on appeal (Ongal & Materns [2017] FamCAFC 207). 66 The essence of Berman J's reasons was that there had been no contravention of the parenting orders made on 4 December 2013 because the relevant aspects of those orders had been effectively suspended or made not operative by the parties by their informal agreement. This is contrary to the applicant's submission. 67 The Tribunal did not consider that it was bound by the findings and conclusions of the Family Court (Berman J) (TD1 at [54]). It expressed its conclusions as follows (TD1 at [55]): The evidence mentioned by Berman J as justifying the conclusion that the parties had "effectively suspended the relevant aspects of the 2013 orders", and that "it was the parties' understanding that what was in operation and what effected and regulated the arrangements between the parties and the children and the time that the children would spend with the parties was not [the relevant orders] but rather the informal but nonetheless appropriate agreement that the parties had reached" led the court to conclude that contravention proceedings could not be sustained. The same evidence leads me to conclude that the 2013 order that undoubtedly once did represent a care arrangement for family assistance purposes was not a care arrangement that applied in relation to Child A at the relevant time. (Footnote omitted.) 68 There is no error in this reasoning. This ground of appeal fails.

[21]

Ground 28 69 In this ground, the applicant contends that the Tribunal erred in not finding that the Family Court orders were in force on 15 September 2016. He submitted that there is no mechanism in the FL Act which provides that an unregistered parenting plan or unwritten agreement can operate in a way which suspends the parenting orders and no explanation by the Tribunal of how the parenting orders were not "in force" in relation to Child A as regards s 23 of the FA Act on 15 September 2016. The applicant submitted that "chaos would reign" if unwritten agreements or parenting plans or the actions of parents can result in the discharge, suspension or variation of parenting orders. 70 The applicant's submission must be rejected. The correct question relates to the proper construction of the relevant provisions of the FA Act. The primary consideration is the text of that Act and, in particular, ss 23 and 35C and the definitions of relevant terms and phrases used in those sections. 71 In relation to this submission, the key finding made by the Tribunal was that the parties had agreed not to follow an aspect of a court order (TD1 at [52]) and not to follow the relevant part of the Family Court orders at the relevant time (TD1 at [53]) and that although the Family Court orders undoubtedly once did represent a care arrangement for family assistance purposes, they were not a care arrangement that applied (or applies) in relation to Child A at the relevant time (s 35C(1) of the FA Act) (TD1 at [55]). Nor did the Tribunal err in concluding, in light of its finding as to the parties' agreement, that the Family Court orders were not "in force" in relation to Child A for the purposes of s 23(5) of the FA Act (TD1 at [80]). 72 Contrary to the applicant's submission, the Tribunal's construction of the sections does not lead to chaotic results because the orders do not apply or are not in force where, based on evidence, the administrative decision-maker concludes that the parties have put in place a different arrangement by agreement. This ground of appeal fails.

[23]

Ground 31 74 In this ground, the applicant contends (as I understand it) that the Tribunal erred in holding that: (1) a care arrangement in the form of parenting orders (i.e., the Family Court orders) did not apply in relation to Child A at the relevant time for the purposes of s 35C(1)(a); (2) no family law order was in force in relation to Child A for the purposes of s 23(5)(c)(ii). The basis of the applicant's submission is that it is not correct to say that the Family Court orders did not apply or were not in force in relation to Child A in circumstances in which the informal parenting arrangement affected only the orders in paras 3(a) and (b) of the Family Court orders and did not affect the orders in paras 1, 2, 3(c)-(g) inclusive and 4-11 inclusive. In other words, if any orders were effectively suspended, those orders were only the orders in paras 3(a) and (b) and it is only the orders in those paragraphs which are rendered unenforceable and varied. To reach a broader conclusion with respect to all of the orders was said by the applicant to be manifestly unreasonable. The applicant submitted that insofar as the Tribunal relied on the decision of the Family Court (Berman J), it erred because the Court only mentioned paras 3(a) and (b) in its reasons. 75 The applicant submitted that the error identified above is clear from [39], [53], [55] and [80] of the Tribunal's reasons in TD1. 76 With respect to [39], the Tribunal, in the context of its consideration of s 35C, notes that although the orders made by the Family Court on 4 December 2013 were not changed, the question was whether the care arrangement represented by the court order "applied" at the relevant time. 77 With respect to [53], the Tribunal said that it was clear that the parties had agreed not to follow "the relevant part of the 2013 orders at the relevant time" and therefore, in the Tribunal's opinion, it could not be said that the court orders "applied" in relation to Child A at the relevant time. 78 With respect to [55], the Tribunal noted that the evidence that led it to its conclusions that the Family Court orders were not a care arrangement that applied in relation to Child A at the relevant time was the same evidence that led the Family Court (Berman J) to its conclusions. 79 With respect to [80], the Tribunal addresses s 23(5)(c) of the FA Act and by reference to the same findings and evidence, reaches the conclusion that the Family Court orders were not "in force" in relation to Child A at the relevant date. 80 I do not consider that there is any error in the Tribunal's reasoning. The orders in paras 3(a) and (b) of the Family Court orders lie at the heart of the orders as to the time the applicant was to spend with Child A. The parties agreed that those orders would not govern their relationship with Child A, although they may involve a transfer of the same hours and were designed to reduce the number of handovers and transitions. The parties' agreement justified a conclusion that the Family Court orders did not apply in relation to Child A or were not in force in relation to Child A at the relevant date. This ground of appeal fails.

[25]

Ground 30 82 In this ground, the applicant advances two contentions which focused on whether the parties were following the Family Court orders. The first contention is that the Tribunal reasoned that the parties were not following the Family Court orders and therefore, the orders did not apply in relation to Child A. The applicant submitted that this was an error because the legislation did not equate following the Family Court orders and the orders applying in relation to Child A. The second contention is, as I understand it, put in the alternative and it is that if following the Family Court orders is relevant, it is relevant as a concept of following the extent of care. Even if the times and other arrangements differ, where the extent of care remains the same, the Family Court orders are being followed. 83 Both of these contentions must be rejected. 84 With respect to the first contention, it is not apparent that the Tribunal placed particular emphasis on whether the Family Court orders were being followed in the sense advanced by the applicant. The paragraph in the Tribunal's reasons to which the applicant referred, [55], does not contain the word, "following". It is true that the concept of following the Family Court orders is referred to in other paragraphs in the Tribunal's reasons in TD1, including (most notably) [52] and [53]. To the extent the Tribunal considered the matter from the perspective of whether the parties were following the Family Court orders, it was not simply whether they were being followed as a matter of fact, but in a context of a finding that the parties agreed that the orders would not be followed and that a different and informal arrangement as to the care of Child A would be implemented. 85 With respect to the second contention, the applicant's interpretation is not one within the terms of s 35C(1)(a). As the first respondent submitted, the applicant's interpretation would mean that the Family Court orders were being followed, "even where care is not taking place in accordance with the care arrangement, the parties agree that care will not take place in accordance with the care arrangement, and the parties also agree that care should take place in accordance with a different agreement that provides for different living arrangements for the child than those that are provided for in the extant care arrangement". 86 The applicant made reference to a number of Departmental policies in the course of his submissions as to the proper construction of sections in the FA Act. It is sufficient for me to repeat the observations I have made in relation to Ground 16 (see [31]-[34]). This ground of appeal fails.

[26]

Ground 23 87 In this ground, the applicant contends that the Tribunal erred in not following the decision of the Family Court (Berman J) insofar as the Court found, so it was said, that there was a written agreement between the parents. By contrast, the Tribunal found that the parties' informal agreement was not a written agreement. The unstated premise or implication of the argument is that the Tribunal was bound to adopt the finding made by the Family Court (Berman J). In this regard, the applicant referred to the doctrines of res judicata and estoppel. He also sought to gain support from the fact that on his appeal from the orders of the Family Court (Berman J), the Full Court of the Family Court rejected his application to adduce further evidence as to the nature of the informal agreement (Ongal & Materns [2017] FamCAFC 207 at [31]). For similar reasons, the Tribunal should have held that it was bound by the Family Court's finding. 88 This contention must be rejected. Before dealing with two points which I consider lead to that conclusion, I make the following observations. It does not seem to me that there is any basis in the text or structure of the FA Act, or the A New Tax System (Family Assistance) (Administration) Act 1999 (Cth) to impute to the Parliament, a legislative intention that the Tribunal on review be bound by findings of fact made by the Family Court in contravention proceedings. Section 43(1) of the AAT Act provides that for the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and, in this connection, it has been said that the Tribunal is "bound to arrive at its own finding of fact" (Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123 at 127 per Davies J (with whom Spender J agreed)), in the sense of being required to reach the correct or preferable decision (Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589 per Bowen CJ and Deane J). Another observation I make is that to the extent the applicant relied on the doctrines of res judicata and issue estoppel, the difficulty with that is that the parties to the contravention proceedings are different to the parties to the proceedings before the Tribunal, as is the issue to be determined. Finally, it seems that at one point in the proceedings before the Tribunal, the first respondent's representative accepted that the decision of the Family Court (Berman J) was to be regarded as "reasonably strong prima facie evidence of a written agreement". That characterisation cannot bind the Tribunal. I do not think it is correct to describe a Family Court decision as "prima facie evidence" of a "fact" in the decision. I do not need to pursue this because, even assuming at best for the applicant that the Tribunal was bound to consider the Family Court decision, it is clear enough that it did so (see TD1 at [53]-[55] and [65]-[66]). 89 The first point to note is it is not absolutely clear that the Family Court (Berman J) found that the informal agreement to which the Court referred was a written agreement. It seems that Berman J accepted what the parties told him, that is to say, that there was a document which neither party produced and which recorded the agreement (Ongal & Materns (No 2) at [29]). By contrast, the Tribunal, on the evidence before it, did not accept that there was a written agreement between the parents of Child A relating to his care in existence at the relevant time (TD1 at [66]). 90 The second point is that the Tribunal held that whether a care arrangement applied in relation to Child A at the relevant time was a question of mixed law and fact for the Tribunal to decide on the review (TD1 at [54]). I do not consider that the Tribunal erred in taking that approach. 91 The applicant went so far as to suggest that the Family Court (Berman J) found that the agreement was a parenting plan within s 63C of the FL Act and therefore within para (b) of the definition of care arrangement in s 3 of the FA Act. I can find nothing in the reasons to indicate that the Court reached that conclusion. Even if that is wrong, the Tribunal was not bound to adopt the finding of the Family Court. This ground of appeal fails.

[27]

Ground 24 92 This ground follows on from the previous ground. The applicant contends that the Tribunal should have found that there was a written agreement regulating the provision of care for Child A at the relevant date. 93 As I have said, the applicant referred to the Family Court's finding. He also referred to the finding of the Tribunal (Tier 1) that there was a written agreement about the care of the children being followed by the parents (see the summary in TD1 at [13]). As I have said, the answer to this is that the Tribunal was entitled, and indeed required, to reach its own conclusions on the basis of the evidence before it. 94 The applicant referred to a number of email and text message exchanges between himself and SVPX. The Tribunal dealt with these messages in the following way (TD1 at [61]-[66]): 61. MDXJ relies on a series of email and text message exchanges from which he submits a written agreement may be discovered. 62. MDXJ refers to proposing amendments to the orders in May of 2016. Corresponding text messages referred to by MDXJ in his submissions (messages marked as 3A, 3C and 4B) do not demonstrate written agreement to any proposals. 63. On 1 June 2016, MDXJ sent an email with an attachment proposing changes to the care provided for in the court orders. Text messages referred to by MDXJ (4C, 4D) disclose discussion of an agreement, but do not constitute a final written agreement of any particular terms. 64. On 16 June 2016, MDXJ sent an email containing a document entitled 'interim order amendment'. The document purports to be accepted in the event that SVPX sent an email response back. SVPX however responded with a modified draft on 17 June 2016. This modification was not acceptable to MDXJ, who responded on 21 June 2016. SVPX responded on 26 July 2016 offering to revert to the original order but seeking confirmation from MDXJ to that effect. No further email correspondence was exchanged. I am not satisfied that the email exchanges constitute a written agreement. 65. It appears that what MDXJ had referred to as a 'three month trial' proceeded notwithstanding the absence of any clear written agreement as to its terms. I understand this to be the informal agreement referred to by Justice Berman. 66. My analysis of the documentary evidence and contentions of MDXJ fail to reveal the existence of a written agreement regulating the provision of care for Child A at the relevant time. I am not satisfied that a written agreement between the parents of Child A relating to his care existed at the relevant time. 95 I do not consider that there is an error of law in this reasoning. This ground of appeal fails.

[29]

Grounds 32-35 inclusive 100 In these grounds, the applicant challenges the Tribunal's conclusion that the change of care day was 15 September 2016. 101 These grounds must be rejected. In order to deal with these grounds, it is necessary to refer to the Tribunal's reasons in some detail. 102 The starting point is that the question posed by s 35C(1) of whether a care arrangement applies in relation to a child requires a date to be identified at which that question is to be answered. 103 The scheme of Subdivision D of Part 3, Division 1 of the FA Act is that the question should be answered on the change of care day. 104 The concept of "change of care day for an individual who cares for a child" is defined in s 3 of the FA Act as follows: change of care day for an individual who cares for a child means: (a) if a determination of the individual's percentage of care for the child has been revoked under Subdivision E of Division 1 of Part 3 - the first day on which the care of the child that was actually taking place ceased to correspond with the individual's percentage of care for the child under the determination; or (b) otherwise - the first day on which the care of the child that was actually taking place ceased to correspond with the individual's extent of care under a care arrangement that applies in relation to the child. 105 The scheme of Subdivision D of Part 3, Division 1 is a scheme wherein care determinations remain in force unless and until they are revoked. That can be seen, for example, from s 35A(2) which provides for an obligation on the Secretary to determine a percentage of care upon, together with other matters, the revocation or suspension of a determination of a percentage of care. The issue of whether a new percentage of care determination should be made under s 35C only arises upon the revocation of an existing care determination. 106 Subdivision E of Part 3, Division 1 provides relevantly for the revocation of a determination of an individual's percentage of care being, in one case, a mandatory revocation, s 35P, and in the other, a discretionary revocation, s 35Q. 107 As the Tribunal said (TD1 at [33]): Relevantly, an existing care determination must or may be revoked where the Secretary or Child Support Registrar is notified or otherwise becomes aware that the care of the child that is actually taking place does not correspond with the individual's existing percentage of care for the child. If a new care determination were to be made under applicable provisions (excluding section 35C for this purpose), then: (a) the shared care percentage would change, or the percentage of care would not be in the same 'range' (which is then defined); or (b) the percentage would not be the same as the existing percentage. 108 In both cases, the FA Act specifically provides that the revocation take effect, relevantly, the day before the change of care day for the individual (ss 35P(3) and s 35Q(3)). The definition of change of care day is set out above. 109 The Tribunal said that the question of whether s 35C applies only arises upon the revocation of the existing care determination which is effective as of the day before the change of care day. 110 In this case, the change of care day is 15 September 2016, being the day on which, under previous circumstances regulating care arrangements for Child A, he was scheduled to enter the applicant's care, but did not do so. 111 As the Tribunal noted on more than one occasion in its reasons, it is not disputed that Child A had not been in the applicant's care since 15 September 2016 (TD1 at [10], [36]). 112 As the first respondent submitted, it is unsurprising that the Tribunal found that from 15 September 2016, the applicant's care of Child A ceased to correspond with the 40% figure under the existing percentage of care for the child. There is no error in the Tribunal's reasoning. These grounds of appeal fail.

[33]

Ground 39 120 In this ground, the applicant contends that the Tribunal misdirected itself by using future information not reasonably or properly available in its revocations. The applicant contends that in revoking the care determination on 15 September 2016, it could not be known what other contact orders would be denied, let alone if the same contact order would continue to be denied until each happened and a pattern was identified. Furthermore, the future results of Family Court proceedings could not be known and that might include order revisions and catch-up contact being granted. The applicant contends that in revoking the care determination from 15 September 2016, "a complete forward picture has been used to subvert the tests in s35P/Q/A/B". Again, the applicant made reference to two statements in Departmental policy DSS 2.2.2. 121 This ground must be rejected. There is nothing in the FA Act which limits the Tribunal to evidence that was in existence as at 15 September 2016 when determining the issues in the review. 122 In Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286, Hayne and Heydon JJ said (at [101]): Nothing in the provisions of the Migration Act fixed a particular time as the point at which a migration agent's fitness to provide immigration assistance was to be assessed. Unlike some legislation providing for pension entitlements, in which the critical statutory question is whether a criterion was met or not met at a particular date, such as the date of cancellation of entitlements, the provisions of s 303 of the Migration Act contained no temporal element. It follows that when the tribunal reviews a decision made under s 303, the question which the tribunal must consider (is the Tribunal satisfied that the person concerned is not a fit and proper person to give immigration assistance?) is a question which invites attention to the state of affairs as they exist at the time the tribunal makes its decision. MARA's argument to the contrary should have been rejected in the courts below. (Footnote omitted; see also at [142]-[143] per Kiefel J (as her Honour then was).) 123 As the first respondent submits, the benefit of the Tribunal looking at what care actually occurred is that the FTB is then allocated to the parent that was actually caring for the child at the time. This ground of appeal fails.

[43]

Ground 46 145 In this ground, the applicant contends that the Tribunal erred in assessing scenario B and C under s 35C and that s 35D and s 35F had not been properly considered. The applicant contends that s 35C is only applicable to the events in scenario A when the orders are the "current FCA" for 15-19 September 2016 because he took reasonable steps to defend them in the Family Court. Section 35C is not applicable to scenario B/C because the informal parenting arrangement "was not, and cannot be, defended". The applicant contends that cancellation of the informal parenting arrangement is C1: Tab 37: p 31, line 28-p 33, line 3, and s 35C was not referred to in the course of the preliminary hearing or is not referred to in TD1. The applicant claims that he reverted to the parenting orders, paras 3(a) and (b) on 19 September 2016 and it was these that were defended as per s 35D. The significance of s 35D was raised multiple times in the proceeding by the applicant and before TD2. The applicant submits that the findings relating to s 35D in TD2 rely on the prior finding for s 35C(1)(a) as to how a care arrangement applies. However, the language in s 35D(1)(a) is different and clearly refers to the current care arrangement and not one after revocation. The applicant further submits that these comments about s 35D do not deal with the issue, that the prior decision was incorrectly made under s 35C and not s 35D. The applicant further contends that s 35F is not mentioned in the transcript or the decisions of the Tribunal, but "is a necessary in claims for past periods". 146 The Tribunal addressed the arguments the applicant wished to raise about s 35D of the FA Act in TD2 (at [28]-[29]). The Tribunal said that its concern in relation to those arguments was that it had made clear findings as to the relevant time when it was to decide whether a "care arrangement" applied in relation to Child A (TD1 at [37], i.e., 15 September 2016) and clear findings that a care arrangement did not apply at that time. The Tribunal said that looking at the text of the now repealed s 35D of the FA Act, entertaining any argument from the applicant as to the applicability of that provision would require the Tribunal to disturb each of those findings because a criterion for satisfying s 35D was that "a care arrangement applies in relation to the child". The Tribunal said that given its findings in TD1 that the Family Court orders did not apply in relation to Child A as at 15 September 2016 and that the Tribunal was not satisfied that a written agreement between the parents of Child A relating to his care existed on 15 September 2016 (TD1 at [55] and [66]), the applicant's argument that s 35D of the FA Act provided an alternative pathway to the discretion in s 35L would be rejected. The first respondent's submission that there is no meaningful difference between s 35C(1)(a) and s 35D(1)(a) is correct. The reference to a "current care arrangement" in s 35D(1)(a) is necessary to distinguish it from the concept introduced later in s 35D of a "new care arrangement". Section 35D(1)(a) could not be met by the applicant because the family law orders were no longer a care arrangement that applied in relation to the child and the informal agreement was never a care arrangement that applied in relation to the child. This ground of appeal fails.