BDPK and Child Support Registrar (Child support second review)
[2023] AATA 2999
•19 September 2023
BDPK and Child Support Registrar (Child support second review) [2023] AATA 2999 (19 September 2023)
Division:GENERAL DIVISION
File Number(s): 2022/8316
Re:BDPK
APPLICANT
AndChild Support Registrar
RESPONDENT
AndQFMJ
OTHER PARTY
DECISION
Tribunal:Senior Member J Rau SC
Date:19 September 2023
Place:Adelaide
The decision under review is set aside and substituted with a new decision in respect of Child B that:
1.The existing percentage care determination to BDPK is revoked from 26 January 2021 and replaced with a new percentage care determination of 35% applying from 27 January 2021; and
2.The existing percentage care determination to QFMJ is revoked from 12 January 2022 and replaced with a new percentage care determination of 65% applying from 13 January 2022.
.............................[Sgnd]...........................................
Senior Member J Rau SC
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – percentage of care – change in percentage of care – whether percentage of care changed – criteria to determine to what extent a parent has care of a child – decision under review is set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Cases
Polec v Staker [2011] FMCAfam 959
Secondary Materials
REASONS FOR DECISION
Senior Member J Rau SC
19 September 2023
INTRODUCTION
BACKGROUND
BDPK and QFMJ are the parents of two children, Child A born in July 2004 and Child B born in November 2006.
This application only concerns a decision regarding Child B.
Both parents have predominantly resided in the same regional town during the relevant period, as did Child B, prior to 27 January 2021.
The pre-existing percentage of care was 50/50 as between BDPK and QFMJ. This may or may not, have corresponded with their actual arrangements. This was an agreed position between them. It was not the subject of any Family Court Orders.
BDPK told the Tribunal that he did not agree to the pre-existing arrangement being changed. He indicated, that if he had realised that a change to the pre-existing percentage of care, would have resulted from the change in arrangements sought by QFMJ, he would not have acquiesced in the change as he did. That being noted, the Tribunal is concerned with what has occurred, rather than the reasons for, or the factors giving rise to, changed arrangements.
On 27 January 2021, Child B left the regional town where she and her parents lived and commenced boarding at a boarding school. This was arranged by QFMJ. She has been the supervising parent so far as the school is concerned. She told the Tribunal that she has been arranging for the payment of the fees, with the assistance of her family. She described this as spending her inheritance. Her mother is the emergency contact for the school.[1] She states:
“A verbal agreement was made when [BDPK] and I first separated. However, for the first two years of our separation I had [Child A] our eldest daughter 100% of the time as I still do to this day, In regard to [Child B], she was in my care 75% of the time for the first two years.
While [BDPK] and I were together it was always discussed that we would send out girls away to boarding school. So, when the opportunity arose after we separated, and both of the girls were accepted into [boarding school] it was an opportunity too good not to take up.
[BDPK] originally signed the paperwork for [Child A] in the beginning process of her boarding school acceptance. When the opportunity and acceptance from [boarding school] came before us for [Child B] to also attend the following year, I sent subject choices and so forth with [Child B] to [BDPK’s] house with the hope he would have some sort of input.
Both the girls were extremely excited to go and experience the opportunities of a lifetime and gain an education they would not be able to get back here in [redacted].
Regardless of all of the above the point of the fact is that I pay/support both of the girls solely with all of their schooling, living, sporting, doctor appointments, dental appointments, optician appointments, uniforms for school, social events/outings, transportation etc as they are both away in Adelaide at boarding school, 600kms from us. So, I do not believe I should be paying child support to [BDPK] when in fact he does not physically have [Child B] and I don’t receive any support what so ever for the girls from [BDPK].”[2]
[1] T-Documents, T10, p 47 and T26, p 77.
[2] Ibid, T29, p 82.
On 20 July 2023, QFMJ stated:
When [Child B] is not staying in the boarding house, she will generally be staying with me either at our home in [town] or if I have gone to Adelaide we will stay together in an Airbnb/Motel or with family members. This is arranged with [Child B] prior to her either coming home or me heading over to Adelaide.
I have purchased all of [Child B] School clothing, sports clothing, and work clothing all of these have included footwear. I also provide [Child B] with everyday clothing and footwear either when I am in Adelaide or Port Lincoln with her, or I have transferred money into her account or given her cash to purchase her own clothing at her leisure.
Generally, when [Child B] is at boarding school food is part of these fees they are provided with breakfast, lunch, and dinner as well as snacks, however I always do a shop with [Child B] before she goes back into the boarding house for snacks and general supplies, I also transfer money into her account for her to purchase food at her free will. I also have provided on many occasions Uber eats where she uses my account to do this. If [Child B] is to be staying with family or friends, I have provided them with shopping as well as premade home cooked meals and given money towards food bills.
I pay for all of [Child B] schooling and boarding fees including all school uniforms and extracurricular needs.
I pay for all of [Child B] Doctor appointments including any medications that she needs. I pay for all her Eye appointments including her glasses. I have paid for all her eye specialist appointments. I pay for all her taxi expenses whilst she is in Adelaide to get her to and from all these appointments also.
I speak regularly with the head of boarding as well as [Child B] teachers to check in on her wellbeing and see if they can support [Child B] in areas that she may need, not only for her schooling but also for her wellbeing. I also speak with [Child B] regularly to see how she is and if there is anything I can do to help or support her. I have arranged for [Child B] to speak with a psychologist and pay for all these appointments also. I have had Family also check in with [Child B] to make sure she is going ok.
I have provided [Child B] with many means of transportation either it being to and from Adelaide or in and around Adelaide with the following transportation: Flights, Car, Taxis, Family and Friends.
Majority of [Child B] extracurricular activities are organised through the Boarding house which I pay a fee of $150 per term. I have had to pay for and organise with [Child B] her formal tickets including her formal date, her formal dress, hair, makeup, spray tan, shoes, and nails. If there is something that [Child B] wishes to attend outside of school, I have given her money for this and paid for taxis to get her to and from.
I pay for all [Child B] mobile phone bills and the use of all subscriptions i.e., Netflix, Spotify, stan, binge, Disney etc.
b) I have arranged many lifts home to [town] from Boarding School and then back to Adelaide to Boarding School either via Family members, Friends or with a flight. I liaise with the school when [Child B] needs a medical appointment. I have arranged all of [Child B] formal appointments, hair, makeup, nails, tans etc.
I book all of [Child B] hair appointments, eye appointment etc
Arranged and paid for all of [Child B] driving lessons including taxis to and from.
c) I pay for flights to and from Adelaide, taxi fares to and from appointments in Adelaide.
I provide [Child B] with shopping i.e., sanitary items, snacks, and other personal needs.
Pay for and help arrange doctors’ appointments including medications, eye appointments including glassesd) I pay for [Child B] schooling and boarding, school uniforms, schoolbooks, medications, glasses, clothing, doctor and eye appointments, transport, food shopping and general supplies. I provide [Child B] with money so that she can use it to her discretion. I pay for the use of [Child B] to use uber eats. I pay for [Child B] mobile phone bill.
I have paid for all of [Child B] driving lessons. I give her money towards fuel.
e) [Child B] works in the school holidays at the (redacted) Hotel Motel as well as [employer], for her to make some extra spending money. I generally ask the workplaces if there is any work for [Child B] on her behalf prior to her coming home.
f) [Child B] works in the school holidays to earn some extra spending money. Other than this I top up [Child B] bank account when needed and supply her with any other needs e.g., food, clothing, appointments etc.
g) I would like to point out that we have Two daughters and that I support them both equally not just one.[3]
[3] Exhibit 12.1, Letter from Other Party to Senior Member J Rau SC re Other Party’s response to Direction.
In response to this, BDPK says:
“I would also like to point out that the other party’s claim that I do not have any contact from the school regarding [Child B] is yet another lie as I can provide evidence that the school does contact me regarding [Child B’s] education I also receive regular emails from the school notifying me of [Child B’s] lack of submission of assignments and attendance indicating that she is not happy and not likely to achieve anything from being there. I also find it extremely disturbing that another parent would not use the other living parent as the emergency contact for their child it proves to me there total disrespectful bulling behaviour to try to turn my children against me by having them think I don’t care about them and don’t want to be their emergency contact.”[4]
[4] Exhibit 7.
BDPK told the Tribunal that he could not afford to contribute to the fees. He did however incur various costs of a general nature on her behalf, such as private health cover, and expenses during the times when he had care of his daughter. In a statement filed with the Tribunal on 13 June 2023,[5] he says:
“I have provided my daughter [Child B] with weekly funds for the duration of our separation and Centrelink has declared that this money does not count as contribution to her care as it was not paid directly to the Other Party. I have also provided [Child B] with extra funds whenever she has requested and taken her shopping for clothing on regular occasion, as well as providing her with her own means of transportation every School Holidays since she has obtained a driver’s licence. I paid for 100% of [Child B’s] Private Health and 100% of her orthodontics in this period as well.”
[5] Ibid.
In his statement filed on 28 July 2023 he states:
As [Child B] father I have provided her with continual open, honest communication and provided her with the security of being able to speak freely about what she wants to do and how she feels about situations without fear of upsetting my personal agenda.
I have provided [Child B] with a constant $50 weekly transfer to her bank account to help her with her personal expenses since I have separated from her mother. Whenever [Child B] has requested extra funds to maintain her living, I have provided it to her.
I have also maintained Private Health Cover with BUPA which includes extras for both of our daughters. Every time the Other Party takes our daughter to a medical appointment including to purchase new glasses from the Optometrist, the Other Party personally receives a Rebate directly from this insurance. This paid for the majority of the Expense incurred by the Other Party.
I paid for our Daughter [Child B] Orthodontic Expense when she required Braces, this was an expense which was mostly not covered by Private Health. Also a expense that I had dropped on me without notice or my consent to her getting braces.
When [Child B] turned 16 I paid for her to obtain a Motorbike licence and purchased a Kawasaki Motorbike for her to use for independent travel until she was old enough to be on her P’s and drive a car on her own. I have maintained registration and insurance for this vehicle.
Since [Child B] has turned 17, I supplied a vehicle which I purchased for her and paid for all associated costs for this vehicle, including filling it up with diesel or providing [Child B] with cash to do so whenever she is not away at School.
[Child B] has a passion for Dirt Circuit and I have purchased her a Car to drive in whenever she is able to come home for a Race Meet as well as all of the Safety apparel and licencing required for this event. I have taught her how to race and she has learned a lot of skills from this experience. I pay for her flights to come back to the Eyre Peninsula for these events as well as all of the maintenance and associated costs for this hobby.
Whenever I am with my daughters I take them Clothes shopping for anything they need, making sure they have all of the essentials to be comfortable living.
I have purchased work wear such as Steel Cap Boots and FXD work pants for [Child B].
I provide [Child B] with accommodation at every opportunity when we spend time together and often take her out for a meal or social outing such as Go Carting or the occasional holiday. In July 2021 I took both of our daughters to Fowlers Bay to see the Whales and last year I took [Child B] to a 4WD adventure park.
I have communicated with other parents regarding [Child B] having friends over to stay & paid for flights & all living expenses on stay overs of her school friends
I have found that my ability to have a fair distribution of care for my daughter has been constantly obstructed by the Other Party on numerous occasions. The short-term holiday work that the Other Party organises for [Child B] every Holidays ensures that she cannot have much access to me. The shifts are often very limited during this time, so the financial advantage for our daughter is minute. I have offered to provide her with better short-term options for farm work or Shearing related work that is more of interest to [Child B] as she loves to work with animals and would provide her with a much greater income source, but [Child B] has indicated that the Other Party has already made arrangements for her that are not allowed to be changed. This obstruction has also happened when [Child B] has been home where she has told me that she wasn’t allowed to see me because I didn’t pay for her trip home from school.
I had organised for [Child B] to visit a Vet clinic to get some information on a career path into Veterinary or Vet nursing which she has expressed an interest in, but it was met with negativity & obstruction from the other party not allowing her the time to do it. Once again highlighting the alienating of any decision making from me as a parent in [Child B] life by the other party & this has happened on many occasions.
I disagree with accuracy of her calendar as she has previously been proven inaccurate.
Where is the evidence of the other party’s communication regarding financial support? The other party has treated this like I have refused to do so when I was actually never contacted regarding helping out with raising our daughters financially. When ever my children have asked for financial support I have supplied money.
As I am casual employed, all the time I have taken off to be available to spend time with [Child B] is lost income, which over the last 2 ½ years would be conservatively in in excess of 10 weeks lost wages.
All of the above mentioned & extra costs of taxi fares Uber school clothing uniforms formal costs and the likes are all directly related to [Child B] going away to school which was a direct breach of our 50/50 care agreement which the other party has broken to which I did not agree to & it was done so without my consent & against my will.
Had I known child support was going to allow the other party to back date the care or the other parties intensions I would never have allowed [Child B] to go away to school & retain the agreed 50/50 care unfortunately I don’t get the luxury of turning back time & back dating my decision.
Lastly I find it very concerning the other party’s choice of words, as I had a conversation with a child support representative only a week or so before the first of our hearings regarding the current care percentage & questioned how the other party could possibly afford the schooling on her wages alone & suggested that she was receiving financial support to which he advised me that if she called it “Future Inheritance” there was nothing I could do about it & they were the exact words that the other party used which leads me to believe the other party has been advised on how to screw me over, as all these are recorded conversation’s I wish to them heard to make sure the other party has not been advised coached or even suggested on what to say regarding this matter & if that was the case I find that extremely discriminative behaviour by the child support agency.[6]
[6] Exhibit 13, Letter from Applicant to Senior Member J Rau.
As from 27 January 2021, the care arrangements changed such that Child B no longer spent 50% of her time with BDPK, or with QFMJ. The evidence suggests that she was mostly at school, as a boarder. As mentioned above, the evidence suggests that this has been substantially paid for not by QFMJ, but by her relatives. BDPK has not contributed to this cost. The school has organised additional tuition as required and various recreational activities.
As one would expect with a person of her age, Child B has also spent some of her non-school time with friends or extended family, some with her mother and some, mainly during school holidays, with her father.
In relation to these periods, QFMJ says:
“……
I would like to point out that both my daughters, [Child A] and [Child B], were staying with my sister due to their work commitments. They were working at the Redacted Grain Silos [employer] which is 148kms from redacted, too far to travel every day, so they stayed with my sister and her family who live in redacted which is only …km from redacted. During this time, I provided my sister with groceries, premade meals, and money. They also used my Car for this duration until [Child B] borrowed a car from her father.
……
I acknowledge that there would have been at most three nights [Child B] would have stayed at a friend’s house while she was home on school holidays in both 2021 and 2022 however, I have not addressed these on the calendars as I am unsure as to what days these would have been. At best [Child B] generally has her friends stay with us as we live in town and her friends all reside on a farm some 40km out of town.”
In relation to these periods, BDPK says:
“I would also like to point out that time spent with the Other Party’s family should not be considered to be in her Care as she has not supplied any evidence of having provided food or money to our children during this time. If Child Support does not recognise my financial contribution directly to our daughter or to other persons whilst our daughter is with them then while [Child B] was not with her it cannot be considered to be in her care.”[7]
[7] Ibid.
It is beyond doubt that the pre-existing arrangements were disturbed by Child B attending boarding school.
On 13 January 2022, QFMJ contacted the Child Support Registrar (“CSR”) to advise of the change that had occurred since 27 January 2021.[8] This notification was given more than 28 days after the change had actually occurred.
[8] Ibid, T5, p 40.
A CSR record dated 25 January 2022 records that BDPK maintained that shared care was continuing.[9] He has continued to pay for private health cover for Child B.[10]
[9] Ibid, T8, pp 44-45.
[10] Applicant’s Documents, p 2.
On 23 February 2022, the CSR wrote to BDPK seeking information from him regarding the change of care.[11]
[11] Ibid, T7, pp 42-43.
On 24 April 2022, the CSR decided to revoke the pre-existing percentage of care determinations. The details of the determination were set out in the following terms in a letter from the CSR to BDPK:
“We recently received information about your care percentage for [Child B]. We have used this information to update our records.
We were told on 13 January 2022 that the care of [Child B] changed on 27 January 2021.
Our records now show you have:
×0% care of [Child B] and [QFMJ] has 100% care of [Child B] from 27 Janaury 2021.
When we are told about a care change more than 28 days after it happened, we must use this information in the assessment in different ways. We use the decreased care percentage from the date that care changed and the increased care percentage from the date we were told. This means that your care percentage applied from 27 January 2021 and [QFMJ’s] care percentage applied from 13 January 2022.
If your care changes again, please tell us within 28 days so we can use the information from the date the care changed.
What this means for you
Your child support assessment has changed.
From 27 January 2021 to 17 February 2021 your ongoing child support amount is $244.50 per month.
From 18 February 2021 to 19 May 2021 your ongoing child support amount is $982.50 per month.
From 20 May 2021 to 30 June 2021 your ongoing child support amount is $244.50 per month.
From 1 July 2021 to 24 August 2021 your ongoing child support amount is $774.83 per month.
From 25 August 2021 to 31 August 2021 your ongoing child support amount is $197.00 per month.
From 1 September 2021 to 12 January 2022 your ongoing child support amount is $197.17 per month,
From 13 January 2022 to 30 June 2022 your ongoing child support amount is $179.17 per month.
From 1 July 2022 to 25 July 2022 your ongoing child support is $429.83 per month.From 26 July 2022 your ongoing child support amount is $340.42 per month.”[12][12] Ibid, T17, p 62.
In another letter of the same date BDPK was advised that he had consequently been overpaid $335.34.[13]
[13] Ibid, T15, p 58.
On 26 April 2022 BDPK sought an internal review of the primary decision. A CSR record of that date records BDPK’s objections as follows:
“……
[BDPK] advised that they have always been A verbal agreement that our care was 50/50.
[BDPK] explained that [QFMJ] had sent both children are way against his will which means [BDPK] has physically lost 50/50 times that he would have with [Child B].
The expense of boarding school well outweighs [QFMJ’s] income, [Child B] was with [BDPK] week on week off until [Child B] was sent away to boarding school.
[BDPK] has objected on the grounds he tries to have [Child B] as often as he can and keep the care as 50/50 when [Child B] is home on exit weekends and school holidays.
[Child B’s] first exit weekend was 18, 19 and 20 February 2022 overnight in [BDPK’s] care.
[Child B’s] next exit weeks was 11, 12, 13 March 2022 overnight and all day on 14 March 2020, [BDPK] went to Adelaide and picked [Child B] up and stayed in a hotel for this weekend.
[Child B] has been in [BDPK’s] care for school holidays 18 to 24 April 2020 overnight and all day on 25 April 2020 until returning [Child B] to [QFMJ’s] care.
[BDPK] tries to keep to the 50/50 care and explained that [QFMJ] has verbally agreed 50/50 and it has always was 50/50 from the day they separated.”[14]
[14] Ibid, T20, pp 68-69.
On 26 May 2022, the internal review confirmed the primary decision.[15]
[15] Ibid, T24, p 75 and T26, pp 77-79.
On 27 May 2022, BDPK lodged an application for review with the AAT.[16]
[16] Ibid, T28, p 81.
On 16 September 2022, the AAT set aside the primary decision and substituted a new decision (AAT 1 decision) that:
“…… in respect of [Child B]
1. the existing percentage of care determination of 50% to [BDPK] is revoked from 26 January 2021 and replaced with a new percentage of care determination of 10% applying from 27 January 2021; and
2. the existing percentage of care determination of 50% to [QFMJ] is revoked from 12 January 2022 and replaced with a new percentage of care determination of 90% applying from 13 January 2022.”[17]
[17] Ibid, T2, p 7.
On 11 October 2022, BDPK has now sought a review by the AAT of the AAT 1 decision.[18]
[18] Ibid, T2, p 7-15.
LEGISLATION
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) addresses the percentage of care, which is used to decide a person’s cost percentage. The person’s cost percentage in turn affects the assessment of the amount of child support a person is required to pay.
A person’s care may be worked out by the number of night that the child was, or is likely to be, in the care of the person during a care period.[19] A care period is a period of time the Registrar considers appropriate having had regard to all of the circumstances.[20]
[19] S 54A of the Act.
[20] Ss 49(b)(ii) and 50(b)(ii) of the Act.
Section 49 of the Act applies where one parent or carer has no care of a child. Under section 49 of the Act, if an application has been made for a parent to be assessed in respect of the cost of the child and there is no pattern of care, the care percentage must be 0%.
If a determination about a parent or carer’s percentage of care that was made under s 50 of the Act is revoked, and a parent has no pattern of care, section 49(3) of the Act requires that another percentage of care determination is made that the parent with no care has 0% care.
If the care of the child or children is shared, a similar process is required under s 50 of the Act. If a parent with no care or reduced care takes action to regain care of the child, an interim period where two care determinations may apply.
The circumstances in which the existing determination of the percentage of care can be revoked are set out in Subdivision C of Part 4 of the Act. A determination about a person’s percentage of care must be revoked if there is less than regular care (s 54G of the Act), where regular care is at least 14%.[21] A determination about a person’s percentage of care also must be revoked if is a change to the person’s cost percentage as a result of the change to the care (s 54F of the Act). Cost percentages are set out in s 55C of the Act.
[21] S 5 of the Act.
Cost percentages
Item Column 1
Percentage of care
Column 2
Cost percentage
1 0 to less than 14% Nil 2 14% to less than 35% 24% 3 35% to less than 48% 25% plus 2% for each percentage point over 35% 4 48% to 52% 50% 5 more than 52% to 65% 51% plus 2% for each percentage point over 53% 6 more than 65% to 86% 76% 7 more than 86% to 100% 100%
32.A determination about a percentage of care may be revoked in other circumstances (s 54H of the Act).
The “change of care day” where a determination about the person’s existing percentage of care is revoked is the first day on which the care of the child ceased to be the same as the existing determination.[22]
[22] Ibid.
If a determination about the percentage of care is revoked, a new determination must be made.[23]
[23] Ss 49 and 50 of the Act.
Section 54B of the Act sets out the day from which any new determination of the percentage of care applies, and section 54B(a) of the Act states where a determination is made under sections 49 or s 50 of that it applies on and from the application day, until revoked. “Application day” is defined in section 54B(2) of the Act. Where a previous care determination applied, this applies at the end of the day before the care changes.[24]
[24] Ss 54F(2)(b) and s54G(2)(b) of the Act.
CONSIDERATION
This matter is primarily a legal dispute between BDPK and QFMJ about the calculation of the correct percentage of care. Many of the relevant facts were not seriously in dispute. The appropriate treatment of time, not actually spent with either parent, is of particular significance.
Both BDPK and QFMJ gave oral evidence on two occasions by telephone. The first was on 30 May 2023 and the last of these occasions was on 3 August 2023. There were substantial materials tendered by the Respondent and the parties. These constitute the admitted exhibits, numbered 1 to 13. All of this evidence has been taken into consideration.
Having regard to the evidence, I assess the relevant period as 27 January 2021 to 26 January 2022, being a 12 month period corresponding with Child B’s commencement at boarding school.
Section 54A of the Act requires care to be worked out using the number of nights in a parent’s care. This is generally calculated over a 12 month period. However, this may not always reflect the care a parent has of a child, particularly where the child does not live with either parent.
In Polec v Staker,[25] where a child was living separately to both parents to pursue work experience and an apprenticeship, Federal Magistrate Hughes stated the following factors are relevant:
[25] [2011] FMCAFAM 959.
- To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra curricular activities?
- To what extent does the person make arrangements for others to meet the needs of the child?
- To what extent does the person pay for the costs of meeting the needs of the child?
- To what extent does the person otherwise provide financial support for the child?
- To what extent does the child provide for his or her own needs or have those needs met from another source?
- To what extent is the child financially independent or financially supported from another source?[26]
[26] Ibid at [56].
The Tribunal alerted the parties to Polec v Staker and directed that they both produce such evidence and submissions as they might consider relevant to the evaluative exercise set out therein. Both complied constructively with this direction.[27]
[27] See Exhibit 11: Bundle of Documents filed 11 May 2023; Exhibit 12: Bundle of Documents filed 20 July 2023; Exhibit 13: Applicant’s Additional Documents filed 28 July 2023.
The evidence, taken as a whole, demonstrates that both parents have continued to offer parental and financial support to the extent of their respective means and in response the calls made upon each of them, from time to time, by Child B. They have for example, variously assisted with transport to and from her casual employment. Her significant absence in boarding school of course, adds a further level complexity, to these rather spontaneous, ongoing arrangements.
This is not a case where an arithmetic calculation, based simply upon nights spent with each parent, is adequate to capture the true substance of the pattern of care.
In this instance, the evidence suggests that during the relevant period, Child B spent fewer nights with BDPK than with QFMJ. Most of her time, however, was spent with others, or at boarding school.
The substantial costs of her being a boarder were met by neither BDPK nor QFMJ. QFMJ has however, facilitated Child B’s schooling and has assumed primary responsibility for liaison with the school. She has provided the bulk of ongoing support with medical appointments and personal shopping.
BDPK has also provided financial and other parental support as required. He has provided pocket money and private medical insurance. He has spent over $6000 on orthodontic treatment for Child B. He has provided her with a vehicle.
I find that on all of the evidence, having regard to the considerations set out in Polec v Staker the majority of Child B’s care is provided by QFMJ. BDPK has however, also made a significant, but not equal contribution.
The Tribunal finds that the pattern of care for Child B during the care period was 35% to BDPK and 65% to QFMJ.
Care of 35% to BDPK and 65% to QFMJ does not correspond with the pre-existing percentage of care as at the date of QFMJ’s notification on 13 January 2022.
The existing percentages of care do not reflect the actual care as from 26 January 2021 and are revoked under s 54F of the Act.
The Tribunal determines that the percentage of care for BDPK is 35% and for QFMJ is 65% during the care period.
The change in care was notified by QFMJ on 13 January 2022. This is more than 28 days after the date on which the Tribunal has found that the change occurred, being 27 January 2021.
The revocation of the pre-existing percentage of care for QFMJ takes effect from the day before notification, namely 12 January 2022.
The revocation of the pre-existing percentage of care for BDPK takes effect from the day before the change of care, namely 26 January 2021.
If a care determination is revoked, a new percentage of care must be determined.[28]
[28] S 50(2) of the Act.
DECISION
The decision under review is set aside and substituted with a new decision in respect of Child B that:
1.The existing percentage care determination to BDPK is revoked from 26 January 2021 and replaced with a new percentage care determination of 35% applying from 27 January 2021; and
2.The existing percentage care determination to QFMJ is revoked from 12 January 2022 and replaced with a new percentage care determination of 65% applying from 13 January 2022.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for the decision of Senior Member J Rau SC
...............[Sgnd]....................
Associate
Dated: 19.09.2023
Representative for the Applicant: Self-represented
Representative for the Respondent: Ms Ada Wong
Mills Oakley Lawyers
Representative for the Other Party: Self-represented
Annexure A – List of Exhibits
| Exhibit no. | Lodged by | Document |
| 1 | Respondent | Statement of Facts, Issues and Contentions dated 24 April 2023 |
| 2 | Respondent | T-Documents dated 5 December 2022 |
| 3 | Applicant | Bundle of documents dated 7 March 2023 |
| 4 | Other Party | Letter of Reply to Applicant’s application (undated) filed 31 March 2023 |
| 5 | Other Party | Bundle of documents dated 11 May 2023 |
| 6 | Other Party | Post hearing submissions filed 6 June 2023 |
| 7 | Applicant | Post hearing submissions (and attachments) filed 13 June 2023 |
| 8 | Other Party | Response to Applicant’s submissions dated 13 June 2023, filed 16 June 2023 |
| 9 | Applicant | Applicant’s further submissions filed 19 June 2023 |
| 10 | Respondent | Post hearing submissions filed 28 June 2023 |
| 11 | Other Party | Bundle of Documents filed 20 July 2023 |
| 12 | Applicant | Bundle of Documents filed 20 July 2023 |
| 13 | Applicant | Applicant’s Additional Documents filed 28 July 2023 |
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Statutory Construction
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Procedural Fairness
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