BKCZ and Child Support Registrar (Child support second review)

[2024] AATA 2359

BKCZ and Child Support Registrar (Child support second review) [2024] AATA 2359 (10 July 2024)

Division:GENERAL DIVISION

File Number(s):      2021/2964

Re:BKCZ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndHBVN

OTHER PARTY

DECISION

Tribunal:Senior Member B. Pola

Date:10 July 2024

Place:Brisbane

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 13 April 2021 is set aside pursuant to sub-section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), and in substitution it is determined:

(a)the existing percentage of care determination is revoked pursuant to section 54G(1) of the Child Support (Assessment) Act 1989 (Cth) with effect from 7 April 2020;

(b)a determination is made pursuant to sub-sections 50(1) and (2) of the Child Support (Assessment) Act 1989 (Cth) that from 7 April 2020 to 6 October 2020, the percentage of care is 14% to the Other Party, and 86% to the Applicant; and

(c)a determination is made pursuant to sub-sections 50(1) and (2) of the Child Support (Assessment) Act 1989 (Cth) that from 7 October 2020 to 6 April 2021, the percentage of care is 7% to the Other Party, and 93% to the Applicant.

..................................[SGD]......................................

Senior Member B. Pola

Catchwords

CHILD SUPPORT – remittal from Federal Court of Australia – review of Social Services and Child Support Division decision – where arrangements for care of children affected by COVID-19 pandemic – whether change of pattern of care took place – where actual care to be considered – where Other Party had taken reasonable steps to comply with existing arrangements – change of pattern of care occurred – decision set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Federal Court Rules 2011 (Cth)

Cases
Child Support Registrar v BKCZ [2023] FCA 1109
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Child Support Registrar v DQFY [2023] FCA 601 (7 June 2023)

Secondary Materials

Child Support Guide

Names used in this published decision 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 (Cth).

REASONS FOR DECISION

Senior Member B. Pola

10 July 2024

1. The matter before this Tribunal is the reconsideration of an application to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 13 April 2021, on remittal from the Federal Court of Australia pursuant to orders made by Justice Thomas on 18 September 2023.

   Background

2. The Applicant (or “BKCZ”, or “Mother”) and the Other Party (or “HBVN”, or “Father”) are the separated parents of two children born in 2006 and 2007 (herein referred to as “the children”). The Applicant in this matter resides in Queensland and the Other Party resides in Western Australia.

3. Parenting orders were issued by the Federal Circuit Court of Australia on 8 April 2013, and were amended on 17 December 2013 (herein referred to as the “Parenting Orders”). The Respondent (or the “Child Support Registrar”) was notified of these orders on  24 April 2013. The Parenting Orders provide for the Other Party to have care of the children for at least 10 days during the Term 1, 2 and 3 school holidays, and 21 days over the Christmas/New Year holidays, and at all other times the children are in the care of the Applicant[1].

   [1] Exhibit R3, page 7, paragraph 24 to 26, and 28-31, and Annexure A.

4. From 20 January 2016, the Respondent recorded the existing percentage of care determination as 86% to the Applicant and 14% to the Other Party.

5. On 22 March 2020, it was agreed between the Applicant and the Other Party by way of text messages exchanged between both parties, that the children would not be travelling to Western Australia due to border closures as a result of the COVID-19 pandemic and restrictions on interstate travel[2].

   [2] Exhibit TR1, T6, page 49.

6. On the same day, the Applicant informed the Child Support Agency of a change in the pattern of care of the children, stating, “… Due to covid 19 the kids will not be going to WA for school holidays, so care will change by 10 days at this stage, but could be more. Therefore his care is reduced by 10 days…”[3].

   [3] Exhibit TR1, T5, page 40.

7. On 29 April 2020, the Other Party disputed the change in care arrangements on the basis that state borders were closed and the flights he had purchased for his children had been cancelled, and he had no choice in the matter. The Other Party advised the Child Support Agency that, “… he was due to have the children from the 08/04/2020 and they were not due to go back until Monday 20/04/2020 as she was not able to get flights…”[4].

   [4] Exhibit TR1, T5, page 46.

8. On 29 April 2020, an Authorised Review Officer (herein referred to as an “ARO”) of the Respondent made a percentage of care decision (herein referred to as the “original decision”) that revoked the existing percentage of care determinations for both children with effect from 7 April 2020, and made a new percentage of care determination with effect from 8 April 2020, of 89% care to the Applicant and 11% to the Other Party. Whilst it was not explicitly stated in the new percentage of care determination, it appears that this determination was for a period of 12 months[5].

   [5] Exhibit TR1, T8, pages 51 to 54.

9. On 3 May 2020, the Other Party lodged an objection against the percentage of care determination made on 29 April 2020, which came into effect on 8 April 2020, and stated the following with respect to his reasons for objecting to the new care determination[6]:

   “… Due to Covid-19, Qantas cancelled flights, the tickets that were purchased in October 2019 for 8^th April 2020 holidays were cancelled by Qantas.

   The Mother’s care percentage does not reflect the correct time she has the children in her care as they spend every second week at their grandparents house and have done so for some time now..”

   [6] Exhibit TR1, T10, pages 68 to 71.

10. On 4 June 2020, the Applicant responded to the objection made by the Other Party, and provided the following written response[7]:

    “… Correct - That due to COVID 19 and border restrictions, Term 1 and potentially Term 2 holidays the children are unable to visit. This means an additional 20 Days they will be in my care. Due to my work, I sometimes have to travel, during that time they stay with my mother. I have travelled for work for this whole time (11 years), there has never been any previous objections. During these 11 years, I have paid one way fares for each term holidays - approx. $1600 four times a year ($6,400), so this is my annual cost without even adding in school fees, school uniform, school books, sports, etc…”  

    [7] Exhibit TR1, T14, page 107.

11. On 2 July 2020, the Other Party provided additional information to the Respondent regarding his objection to the percentage of care determination made on 29 April 2020, which came into effect on 8 April 2020, with the Respondent recording the following additional information[8]:

    “… [Redacted, Other Party or Father] advised he was to have them Second term and he had booked airline tickets for one way ticket as per CO, term 1 was cancelled by Qantas and term 2 sent all information to [redacted, Applicant or Mother] on Monday tickets and permission to travel and [redacted, Applicant or Mother] advised he could not have the children as she also had organised the camping trip with her family…”

    [sic]

    [8] Exhibit TR1, T14, page 109.

12. On 27 July 2020, the Respondent recorded the following with respect to a phone call with the Applicant, regarding the process of the objection decision[9]:

    “… [Redacted, Applicant or Mother] confirmed there is a court order for the care of the children, [Redacted, Applicant or Mother] lives in QLD, [Redacted, Other Party or Father] lives in WA. Due to COVID-19 with the border closures the children were unable to travel to [Redacted, Other Party or Father]. [Redacted, Other Party or Father] has missed term one and term two care and has missed 20 nights of care. [Redacted, Applicant or Mother] discussed that the children could not travel in term one. In term two they could have travelled to WA, however would have had to spend 14 days in quarantine which is more than the 10 nights [Redacted, Other Party or Father] would have ordinarily had. The plan is for [Redacted, Other Party or Father] to reccomence care in October 2020 provide this is possible, flights are booked. [Redacted, Applicant or Mother] advised she has given [Redacted, Other Party or Father] the option to have additional care to make up some of the missed time (3 or 4 nights extra), however she hasn't heard back yet. [Redacted, Applicant or Mother] advised that she and [Redacted, Other Party or Father] agreed via text message the children would not be travelling to him for term one and term two…”

    [sic]

    [9] Exhibit TR1, T14, pages 111 and 112.

13. On 21 November 2020, a delegate of the Respondent decided to disallow the objection made by the Other Party on 3 May 2020 (herein referred to as the “objection decision”), and both the Applicant and the Other Party were informed.

14. On 8 December 2020, the Other Party lodged an application for first review with the Social Services and Child Support Division of the Administrative Appeals Tribunal (herein also referred to as “AAT1”) for review of the decision made by the delegate of the Respondent on 21 November 2020[10]. The AAT1 hearing was held on 18 March 2021, with the Other Party attending by telephone, and the Applicant electing not to participate.

    [10] Exhibit TR1, T16, pages 126 to 135.

15. On 13 April 2021, AAT1 set aside the objection decision and in substitution determined that there had been no change in the care of the children from 8 April 2020, with the following included in its reasons for this decision[11]:

    “… The Tribunal is satisfied the evidence, on balance, is that the unforeseen pre-emptive Queensland/Western Australian border closure from 22 March 2020 to 30 April 2020, preventing the children travelling to Perth for [Redacted, Other Party or Father]’s Easter 2020 holiday care period was of a temporary/non-permanent nature, and that there were no similar border restrictions preventing the children travelling to Perth for [Redacted, Other Party or Father]’s care periods in the June/July and September school holidays…”

    [11] Exhibit TR1, T2, page 11, paragraph 26.

16. On 4 May 2021, the Applicant lodged an application for second review of the AAT1 decision of 13 April 2021 with the General Division of the Administrative Appeals Tribunal[12].

    [12] Exhibit TR1, T1, pages 1 to 6.

17. On 8 April 2022, the Tribunal affirmed the decision of AAT1 dated 13 April 2021 (herein referred to as the “AAT2 decision”).

18. On 6 May 2022, the Registrar filed a Notice of Appeal in the Federal Court of Australia pursuant to section 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (herein referred to as the “AAT Act”).

19. On 18 September 2023, His Honour Justice Thomas made orders setting aside the AAT2 decision and remitted the matter to the Tribunal to be heard and decided again, with the hearing of any further evidence that may be considered relevant by the Administrative Appeals Tribunal[13].

    [13] Child Support Registrar v BKCZ [2023] FCA 1109.

    Redetermination on Remittal

20. His Honour Justice Thomas in the reasons of his decision determined[14]:

    “… In undertaking the review, the AAT determines the question by reference to the material before the AAT, and not limited to that material before the original decision-maker. This includes information which comes into existence, or events which occur, after the date on the original decision (up to the time of the hearing before the AAT)…”

    [14] Child Support Registrar v BKCZ [2023] FCA 1109 at [30].

21. With the above in mind, the Tribunal held a Directions Hearing with all parties via telephone on 1 December 2023, to invite submissions from the Applicant, Respondent and the Other Party, in relation to the redetermination of the application before the Tribunal. Following agreement from all parties at the Directions Hearing, the Tribunal issued directions on                11 December 2023, inviting each party to the matter to provide further submissions upon which they intended to rely, prior to the remittal hearing scheduled for 11 March 2024. 

22. Sub-section 44(6)(b) of the AAT Act provides:

    “… whether or not the Tribunal is reconstituted for the hearing – the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court…”

23. With reference to the above, the Tribunal has determined that it will make a fresh determination of the application before it on remittal from the Federal Court, and confirmed with all parties that the Tribunal would not be bound by any findings in the initial proceeding, but would have regard to the record of the hearing with respect to the AAT2 decision, including all evidence admitted into the Exhibit Register in that proceeding (subject to any submissions of the parties appearing before the Tribunal at the remittal hearing).

24. In conducting the redetermination, the Tribunal has had regard to the following[15]:

    [15] All Exhibits relevant to this decision can also be found in Annexure A of these reasons.

    (a)Evidence admitted into the Exhibit Register in the proceeding of the AAT2 decision, including:

    (i)documents submitted by the Respondent on 15 June 2021 pursuant to section 37 of the AAT Act (marked T1 to T20, and paginated as pages 1 to 175);

    (ii)a Statement of Facts, Issues and Contentions submitted by the Respondent on 25 November 2021;

    (iii)written submissions from the Applicant with attachments of various dates received on 13 August 2021;

    (iv)a calendar of care received from the Applicant on 14 March 2022;

    (v)written submissions from the Other Party with attachments of various dates received on 7 June 2021 and 3 September 2021;

    (vi)a statement in reply from the Other Party received on 13 January 2022; and

    (vii)a calendar of care received from the Other Party on 18 March 2022.

    (b)Oral evidence of all parties at the AAT2 hearing;

    (c)a Statement of Facts, Issues and Contentions submitted by the Respondent on 25 January 2024;

    (d)a Statement of Facts from the Applicant received on 8 February 2024;

    (e)a Statement of Facts, Issues and Contentions and further submissions from the Other Party received on 22 February 2024; and

    (f)written closing submissions of the Respondent received on 15 April 2024.

25. The remittal hearing was conducted on 11 March 2024, with all parties appearing by telephone (as permitted by sub-section 33A(1) of the AAT Act). The Applicant (or the Mother) was self-represented. The Respondent was represented by Mr David McLaren of Mills Oakley, the appearance of whom was confined to identifying the relevant facts in dispute and assisting the Tribunal in applying the appropriate legislative provisions. As such, the Respondent did not advance a position as to what findings the Tribunal should make. The Other Party was self-represented.

26. At the conclusion of the hearing the Tribunal posed a number of questions to the Respondent’s representative, who requested the opportunity to respond to those questions in writing in closing submissions to the Tribunal. The Tribunal accommodated this request and provided the Applicant and the Other Party with a commensurate opportunity to respond. Neither the Applicant nor the Other Party had filed any closing submissions in response.

    Legislative Framework

27. The legislation relevant to the redetermination of the matter before the Tribunal includes:

    (a)The Child Support (Assessment) Act 1989 (Cth) (herein referred to as the “Assessment Act”);

    (b)The Child Support (Registration and Collection) Act 1988 (Cth) (herein referred to as the “Collection Act”);

    (c)The AAT Act; and

    (d)The Child Support Guide (herein referred to as the “Guide”), which is a document which provides further guidance to the Child Support Registrar and officers when making decisions about care percentages. The Tribunal will consider the established practices set out in the relevant sections of the Guide when making its decision, as consistent application of relevant policies is desirable unless cogent reasons exist not to[16].

    [16] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [645].

28. Section 4 of the Collection Act defines a “care percentage decision” to be:

    “…care percentage decision means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):

    (a)a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or

    (b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision…”

29. The Tribunal must consider both sections 49 and 50 of the Assessment Act in considering the remitted matter with respect to each parent. The provisions of the Act are:

    “… 49Determination of percentage of care—responsible person has had etc. no pattern of care for a child

    (1) This section applies if:

    (a) either of the following applies:

    (i)      an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

    (ii)     a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

    and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

    (b) both of the following apply:

    (i)      the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);

    (ii)     the Registrar is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

    (2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.

    (3) The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person…”

    “… 50  Determination of percentage of care—responsible person has had etc. a pattern of care for a child

    (1) This section applies if:

    (a)either of the following applies:

    (i)     an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

    (ii)    a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

    and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

    (b)both of the following apply:

    (i)     the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);

    (ii)    the Registrar is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.

    (2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.

    (3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

    (4) Subsection (3) does not apply if section 51 applies in relation to the responsible person…”

1. In order to determine a percentage of care, this requires the Tribunal to decide:

   (a)the date upon which actual care of the child/ren began or changed (that is, the event date);

   (b)the appropriate care period; and

   (c)the pattern of care of both parents in the care period.

2. The Guide at part 2.2.1 provides the following guidance with respect to the date of event and care periods:

   “… Care period

   A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

   Care periods other than 12 months

   While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period.

   Care periods longer than 12 months

   A care period of more than 12 months might be appropriate where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months…”

3. The Guide at part 2.2.2 provides the following guidance with respect to considering a change in the pattern of care:

   “Change in pattern of care

   When considering a change in care, the Registrar will consider the reason for the request for a new care calculation. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event may be used to determine the commencement (i.e. date of effect) of the care period (2.2.1). The Registrar will need to determine the percentage of care that is likely to occur in the care period.

   …

   What constitutes a change to the pattern of care will depend upon the individual circumstances of the case…

   …

   Not all changes will result in the calculation of a different care percentage.”

4. Subdivision C of Division 4 of Part 5 of the Assessment Act provides for the circumstances where the existing care determination must be revoked and where the existing care determination may be revoked. Relevant to the remitted matter before the Tribunal are sections 54F, 54G and 54H of the Assessment Act, which each provide:

   “… Subdivision C—Revocation and suspension of determination of percentage of care

   54FDetermination must be revoked if there is a change to the responsible person’s cost percentage

   (1) The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

   (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

   (c) section 54G does not apply; and

   (d) subsection (2) applies in relation to the individual.

   Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

   (2) This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)all of the following apply:

   (i)     section 51 did apply in relation to the responsible person;

   (ii)     the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;

   (iii)   an interim period does not currently apply in relation to the earlier determination;

   (iv)   the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note: For when section 51 does not apply, see section 53.

   (3) The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)     the responsible person’s care of the child has increased - the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)    the responsible person’s care of the child has reduced - the day before the change of care day…”

   “… 54G Determination must be revoked if there is less than regular care etc.

   (1) If:

   (a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and

   (b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

   (c)a determination of the other responsible person’s percentage of care for the child has been made under section 50; and

   (d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

   the Registrar must revoke both determinations.

   Note: The Registrar must make new determinations under section 49 or  50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

   (2) The revocation of each determination takes effect:

   (a) if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or

   (b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.

   (3) To avoid doubt, a responsible person never establishes a pattern of care if:

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

   (b)the responsible person does not establish that pattern during that particular period…”

   “… 54H Registrar may revoke a determination of a responsible person’s percentage of care

   (1) The Registrar may revoke a determination of a responsible person’s  percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

   (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

   (b)the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and

   (c)sections 54F, 54FA and 54G do not apply; and

   (d)subsection (2) applies in relation to the individual.

   Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

   (2) This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c) all of the following apply:

   (i)     section 51 did apply in relation to the responsible person;

   (ii)    the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;

   (iii)   an interim period for the earlier determination does not currently apply;

   (iv)   the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note:    For when section 51 does not apply, see section 53.

   (3) The revocation of the determination takes effect at the end of:

   (a) if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b) if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)     the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter;     

   or

   (ii)    the responsible person’s care of the child has reduced—the day before the change of care day…”

   Issues to be determined on remittal

5. The issues for determination in the remittal before the Tribunal are:

   (a)whether there was a change in the pattern of care of the children such that:

   (i)the existing determinations of percentage care in respect of the children should be revoked; and if so,

   (ii)from what date; and if so

   (b)what the percentage of care under the new determinations ought to be, and for what care period; and

   (c)the date of effect of the new determinations.

   Principal issues of dispute

6. The principal issues of dispute were put to the Applicant and the Other Party at the remittal hearing. Both the Applicant and Other Party agreed that the following principal issues of dispute are relevant to the Tribunal’s determination of this matter: 

   (a)The Applicant is of the view that she had principal care of the children during the Term 1, 2 and 3 holidays in 2020 (30 nights in total). The Applicant does not dispute that the children spent 28 nights with the Other Party for the period of  28 December 2020 to 25 January 2021.

   (b)The Other Party is of the view that:

   (i)The reason their children did not travel to Western Australia for the Term 1 holidays in April 2020 was due to the airline cancelling flights which were purchased in October 2019, as a result of the COVID-19 pandemic.

   (ii)The Applicant contravened Court Orders with respect to the Term 2 (or July 2020 school holidays), and Term 3 (or September/October school holidays) by refusing and preventing the children from visiting him.

   With respect to these holidays, he took all reasonable and appropriate action.

   Agreed facts

7. The Tribunal refers to the following agreed facts which were confirmed with the Applicant and the Other Party at the remittal hearing, and which have been derived from consistent evidence of both the Applicant and the Other Party by the Tribunal. The agreed facts are:

   (a)Parenting orders were made by the Federal Circuit Court of Australia on 8 April 2013 and were amended on 17 December 2013.

   (b)The parenting orders were provided to the Child Support Registrar on 24 April 2013.

   (c)The parenting orders provided for the Other Party to have care of the children for at least 10 days during the Term 1, 2 and 3 school holidays, and 21 days over the Christmas/New Year holidays.

   (d)Parenting orders were being followed by both the Applicant and the Other Party, prior to the onset of the COVID-19 pandemic and state related border restrictions which came into effect in March 2020.

   (e)A similar continuing pattern of care regarding their children was to continue in 2021, in accordance with the parenting orders, prior to the onset of the COVID-19 pandemic.

   (f)On 22 March 2020, it was mutually agreed between the Applicant and the Other Party by way of text messages exchanged between both parties, that the children would not be travelling to Western Australia for the Term 1 holidays in April 2020 due to border closures as a result of the COVID-19 pandemic and restrictions on interstate travel[17].

   (g)The children of the Applicant and the Other Party did not travel to Western Australia to spend their Term 1 holidays in April 2020 (being the period of 8 April 2020 to              18 April 2020 (10 nights)) with the Other Party. They remained in the care of the Applicant.

   (h)The children of the Applicant and the Other Party did not travel to Western Australia to spend their Term 2 holidays in July 2020 (being the period of 1 July 2020 to                  11 July 2020 (10 nights)) with the Other Party. They remained in the care of the Applicant.

   (i)The children of the Applicant and the Other Party did not travel to Western Australia to spend their Term 3 holidays in September and October 2020 (being the period of 23 September 2020 to 3 October 2020 (10 nights)) with the Other Party. They remained in the care of the Applicant.

   (j)The children of the Applicant and the Other Party travelled to Western Australia to spend the time with the Other Party, for the period of 28 December 2020 to  25 January 2021 (spending 28 nights in the care of the Other Party).

   [17] Exhibit TR1, T6, page 49.

   Summary of Applicant’s evidence at remittal hearing

8. The Applicant gave oral evidence at the hearing in support of her position. The Applicant spoke about the uncertain situation during the COVID-19 pandemic[18]:

   BKCZ: … in general terms, 2020 was the year of COVID. I was very unsure of what's going on and where, and I did the best I could in a situation of not knowing what was going on and (indistinct words)… Just generally that I had care of (indistinct) for the year of 2020 due to COVID. I did (indistinct) the best interests of the children; travel quarantine reasons and a whole lot of other reasons, hard border closures in WA versus us in Queensland. There's no dispute that they were with me…”

   [18] Transcript, p 8, lines 1-5; and 21-30.

   Summary of Other Party’s evidence at remittal hearing

9. The Other Party gave oral evidence at the hearing in support of his position. The Other Party spoke about make-up time that he claims could have taken place with respect to the care of the children during the relevant time[19]:

   HBVN: … I think there's two arguments here; there's the point in time with the care, but there's also the argument from my side which was make-up time could have been made up – which could have been made up. So it’s over the 12 months is the period of time where it could have been made up over the next school holidays or the Christmas holidays. There was ample opportunity and it was never done…”

   [19] Transcript, p 8, lines 39-46; p 9, lines 1-6.

10. With respect to the Father’s original claims regarding the care of their children, specifically, spending nights in care at the home of their maternal grandparents every second week, no such claims were advanced during the course of the AAT2 hearing and the remittal hearing (noting the Father was provided with the opportunity to make opening submissions and to clarify any aspect of his evidence he has given to the Tribunal)[20]. With respect to this claim, the Tribunal makes no finding, given the lack of supporting evidence and the failure of the Father to advance such claims at the hearing of the AAT2 decision in addition to this remittal hearing.

    [20] Exhibit TR1, T10, page 70.

    Consideration

11. The Tribunal accepts that it is appropriate to address the issues raised by His Honour Justice Thomas on remittal of this matter, and that the Tribunal is bound by Justice Thomas’ orders, which reflect His Honour’s judicial consideration of the application before the Tribunal[21].

    [21] Rule 39.11(3) of the Federal Court Rules 2011 (Cth).

12. Further, the AAT Act requires the Tribunal to consider the redetermination of an application in accordance with the directions of the Court[22].

    [22] Section 44(5) of the Administrative Appeals Act 1975 (Cth).

    Was there a change in the pattern of care?

13. The Tribunal finds that there was a change to the pattern of care from 22 March 2020, when it was mutually agreed between the Applicant and the Other Party that the children would not travel to Western Australia for the Term 1 holiday in April 2020 (being 8 April 2020 to 18 April 2020 (10 nights)). This is discussed more fulsomely in the reasons which follow.

    Should the existing percentage of care determinations be revoked?

14. Subdivision C of Division 4 of Part 5 of the Assessment Act provides for circumstances where existing percentage of care determinations must or may be revoked. The operation of the statute is that section 54F of the Assessment Act applies if section 54G of the Assessment Act does not apply; and section 54H of the Assessment Act applies if sections 54F and 54G of the Assessment Act do not apply.

15. Consequently, the Tribunal must first consider whether section 54G of the Assessment Act has application.

16. Section 54G of the Assessment Act deals with the revocation of a determination made under section 50 of the Assessment Act where a parent has had a pattern of care “that is less than regular care of the child”. The phrase “regular care” is defined in sub-sections 5(1) and (2) of the Assessment Act as being “at least 14% but less than 35%”.

    Does section 54G of the Assessment Act apply?

17. The Tribunal is satisfied the existing care percentage determinations between the Applicant and the Other Party were made pursuant to section 50 of the Assessment Act. This is more fulsomely detailed by the Tribunal in the latter reasons of this decision. Having established this, the Tribunal can consider the remaining relevant provisions of sub-section 54G(1)(b) to (d) of the Assessment Act, that is whether the:

    (a)Other Party has had less than 14% care of the children;

    (b)Applicant has made the children available to the Other Party; and

    (c)Applicant notified the Registrar that the Other Party had less than regular care within a reasonable period.

18. The Tribunal is satisfied the Other Party did not have care of the children for the Term 1 holidays, being 8 April 2020 to 18 April 2020 (10 nights). In turn, the Other Party had less than 14% care of the children, and had actual care of 0% in this period.

19. The Tribunal must make a finding of fact as to whether the reduction in the Other Party’s care was not the result of the Applicant failing to make the children available to the Other Party, pursuant to sub-section 54G(1)(b) of the Assessment Act.

20. There is evidence before the Tribunal of an exchange of text messages between the Applicant and the Other Party on 22 March 2020 regarding the planned travel of their children from Queensland to Western Australia, given the impact of the COVID-19 pandemic at the time, to which the Tribunal refers[23]:

    “… Applicant:             Not sure, has WA shut borders?

    Other Party:    The premier has just announced that as part of Tuesday W.A. Will be shutting the borders.

    Applicant:                   Ok, so we cancel flight?

    Other Party:               Yep

    Applicant:                   Ok…”

    [23] Exhibit Tr1, T6, page 49.

21. The Tribunal is of the view that the exchange of text messages between the Applicant and the Other Party on 22 March 2020 indicates that it was mutually agreed between the Applicant and the Other Party that the children would not travel to be in the care of the Other Party for the Term 1 holidays, being the period of 8 April 2020 to 18 April 2020 (10 nights). The Tribunal is of the view that it was not as a result of the Applicant failing to make the children available to the Other Party.

1. The Tribunal is satisfied the Applicant notified the Respondent of a proposed change to the pattern of care of their children on the same day it was mutually agreed the children would not travel to be with the Other Party, and that this was done in a reasonable period of time (with the Applicant notifying the Respondent on the same day it had been mutually agreed the children would not travel for the Term 1 holidays, being the period of 8 April 2020 to 18 April 2020).

2. Given the Tribunal is satisfied that sub-section 54G(1)(a) to (d) of the Assessment Act are met, it is appropriate that both the Applicant and the Other Party’s existing percentage of care determinations are revoked pursuant to section 54G of the Assessment Act.

3. The Tribunal is required to determine the date of effect of the revocation of the Applicant and Other Party’s determinations in accordance with sub-section 54G(2) of the Assessment Act.

4. Sub-section 54G(2) of the Assessment Act provides that in circumstances where the Other Party established a pattern of care in accordance with the first care determination but later ceased the established pattern of care, the revocation of the determination takes effect “at the end of the day before the day on which the person ceased the previously established pattern of care”.

5. The Tribunal has found that the Other Party ceased to have a pattern of care in accordance with his existing percentage of care determination. The Tribunal therefore finds that the Other Party ceased to have care from 7 April 2020, being the end of the day before the day on which the Other Party ceased to have the previously established pattern of care (with the Other Party originally due to have care of the children from 8 April 2020, pursuant to sub-section 54G(2)(b) of the Assessment Act).

6. For completeness, the Tribunal is of the view that sub-section 54G(3) of the Assessment Act does not apply to the factual circumstances of this matter.

   Determination of the percentage of care

7. It is appropriate that the Tribunal makes a decision in accordance with Justice Thomas’ orders and addresses identified errors of law which were raised in his judicial consideration of this matter.

8. The Tribunal accepts the judicial consideration of His Honour Justice Thomas with respect to the application of sections 49 and 50 of the Assessment Act (transposed in earlier reasons), that[24]:

   “… Without doubt, the most reliable information which will assist in undertaking the task outlined in ss 49 and 50 is information which is based upon actuals, rather than what might be likely. As Mason J said in Peko-Wallsend at 45(also referred to at [33] above):

   It would be a strange result indeed to hold that the [decision-maker] is entitled to ignore material of which [the decision-maker] has actual or constructive knowledge and which may have a direct bearing on the justice of making the [decision], and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading.

   The sections themselves point to a consideration of “actual care”. For example, s 50(3) requires that the percentage of care determined “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” (italics added).

   The section points to the objective of determining the “actual care”. Those words used are directory in nature in that the subsection requires that the percentage “must” be a percentage that corresponds with the actual care. The section goes on to allow the decision-maker flexibility to cater for different times during the care period that a decision is being made by referring to the Registrar being satisfied by reference to what the responsible person “has had, or is likely to have”. The most effective way of determining the “actual” care is to consider what has happened if that information is available…”

   [Tribunal bolding for emphasis]

   [24] Child Support Registrar v BKCZ [2023] FCA 1109 at [70] to [72].

9. Sections 49 and 50 of the Assessment Act as transposed by the Tribunal in earlier reasons determine a person’s percentage of care. Section 49 of the Assessment Act applies where the responsible person has no pattern of care for a child and section 50 of the Assessment Act applies where the responsible person has a pattern of care.

10. In earlier reasons the Tribunal found that the care arrangements by both parties with respect to their children were carried out in accordance with Parenting Orders prior to the mutual agreement between the Applicant and the Other Party on 22 March 2020, that the children would not undertake planned travel for the April 2020 school holidays.

11. The Tribunal has also found that it was both the intention of the Applicant and the Other Party that a similar continuing pattern of care with respect to their children was to continue in 2021, in accordance with the parenting orders, prior to the onset of the COVID-19 pandemic.

12. The Tribunal is satisfied that the Applicant and Other Party have been carers for the children, with Parenting Orders in place, and that prior to a change in care, these Parenting Orders were being followed by the parents such that each has a regular pattern of care; it follows that section 49 of the Assessment Act does not apply, and section 50 of the Assessment Act applies in the present matter.

13. The phrase “care period” is defined in sub-section 5(1) of the Assessment Act to include the definitions in sub-sections 50(1)(a) and 50(1)(b)(ii) of the Assessment Act. The Tribunal must consider the applicable care period that is appropriate having regard to all the circumstances.

14. In considering this, the Respondent has submitted[25]:

    “… In order to make new percentage of care determinations, the Tribunal must first determine the relevant care period to be applied. A care period is not fixed in duration but is the period that the Registrar, or the Tribunal standing in her shoes, “considers to be appropriate having regard to all the circumstances”.

    The Guide provides at part 2.2.1, that “a care period is generally a 12 month period from the date on which the actual care of the child changed” but acknowledges that there may be circumstances that make it appropriate for the care period to be longer or shorter.

    A subsequent care decision was made on 26 July 2021 that there was no change in care from 1 July 2021. The Registrar submits that it would not be open to the Tribunal to apply a care period that extends past 26 July 2021 being the day prior to the care period the subject of the subsequent care percentage decision. This is because the Tribunal is now aware that a subsequent care percentage decision has been made covering the period from 26 July 2021 onwards, which does not form part of this review and in relation to which separate review rights exist…”

    [25] Exhibit R2, page 10, paragraph 49-51.

15. In the recent decision of Child Support Registrar v DQFY[26] (herein referred to as “DQFY”), their Honour Farrell J expressed the following views with respect to the length of a care period:

    “… Section 50 of the Act provides that if the tribunal revokes a determination and is satisfied that a party has had, or is likely to have, a pattern of care of a child, the tribunal must determine the care during the care period. ‘Actual care’ may be worked out based on the number of nights the child was or will be in the care of the person (subsection 54A(1) of the Act).

    The tribunal is required to consider what the actual care [the father] and [the mother] have had or are likely to have of [the children] during the care period. The care period is such a period as the Child Support Registrar considers to be appropriate having regard to all the circumstances (section 50 of the Act). The Department’s policy in this regard, as set out in Chapter 2.2.1 of the Child Support Guide, is that a care period is generally a 12-month period from the day on which the actual care for a child changed. This policy is not binding on the tribunal…”

    [26] [2023] FCA 601 (7 June 2023) at [85].

16. In submissions to the Tribunal the Respondent has stated the following with respect to the application of DQFY and the present matter[27]:

    “… In a recent decision in the Federal Court, Child Support Registrar v DQFY [2023] FCA 601, it was found that if the evidence supports it, a bifurcation of the replacement care percentage determination could occur.

    The Registrar considers that applying this Judgment it is open to a decision-maker to determine multiple care changes in a single decision where the evidence before the decision-maker supports such a finding. If the Tribunal chooses to take that approach in this case, then the Registrar considers that the Tribunal will be required to evaluate the evidence before it to determine when the first of the care percentages within the care determination began and ended, and when the second care percentages began. Alternatively, the Tribunal could choose to make a single care determination, that would remain in place until 25 July 2021, being the day before the first day of the new care period to which the subsequent care percentage decision made on 26 November 2021 applies…”

    [27] Exhibit R2, pages 11 and 12, paragraphs 59 and 60.

17. Having regard to the above reasons and the circumstances of this matter, the Tribunal is of the view that the appropriate care period should be a period of 12 months, with effect from 7 April 2020, being the end of the day before the day on which the Other Party ceased to have the previously established pattern of care (i.e. for the period of 7 April 2020 to 6 April 2021).

    Percentage of care

18. The Tribunal must determine the responsible person’s percentage of care for the children during the care period, in accordance with sub-section 50(2) of the Assessment Act.

19. Sub-section 50(3) of the Assessment Act provides that the percentage determined in accordance with sub-section 50(2) of the Assessment Act, requires the percentage of care to be a percentage that corresponds with the actual care of the child, that the Tribunal can be satisfied that the Other Party has had, or is likely to have, during the care period.

20. Sub-section 50(4) of the Assessment Act provides that sub-section 50(3) does not apply in circumstances where section 51 of the Assessment Act has application.

21. Sub-section 50(3) of the Assessment Act provides that the percentage of care must be a percentage that corresponds with the actual care of the child, whilst sub-section 51(1) of the Assessment Act provides exceptions to this requirement by allowing what is called an  interim care determination in circumstances where a care arrangement in relation to a child is not being complied with and a person who has reduced care of the child is taking reasonable action to ensure the care arrangement is complied with.

22. Therefore, the Tribunal must consider whether section 51 of the Assessment Act has application. With respect to the application of sub-section 51(1) of the Assessment Act to the present matter, the Tribunal finds:

    (a)a new determination is required pursuant to section 50 of the Assessment Act to determine a new percentage of care during a care period; and

    (b)a care arrangement was in place in respect of the children, being 86% to the Applicant, and 14% to the Other Party which had effect from 20 January 2016[28];

    (c)that the actual care of the children the Other Party has had, or is likely to have during the care period, did not comply with the extent of care of the children that the Other Party should have had, or is to have in accordance with the care arrangements; and

    (d)the Other Party had reduced care of the children, and in the Tribunal’s view, took reasonable action to ensure that the care arrangement was being complied with.

    [28] Exhibit R2, page 2, paragraph 8.

23. With respect to point (c) above, the Tribunal has considered the actual care which occurred with respect to the children which the Other Party had during the care period. In the present matter, the Applicant and the Other Party live at opposite sides of the country, and there is no dispute as to the physical location of the children in terms of where they spent each night. Both the Applicant and the Other Party have tendered evidence to the Tribunal regarding the actual care of the children which took place from 7 April 2020, that is:

    (a)The children remained in the care of the Applicant for the Term 1 holidays in April 2020 (being the period of 8 April 2020 to 18 April 2020 (10 nights));

    (b)The children remained in the care of the Applicant for the Term 2 holidays in July 2020 (being the period of 1 July 2020 to 11 July 2020 (10 nights));

    (c)The children remained in the care of the Applicant for the Term 3 holidays in September and October 2020 (being the period of 23 September 2020 to 3 October 2020 (10 nights)); and

    (d)The children were in the care of the Other Party for a slightly longer period compared to the usual pattern of care in the Parenting Orders from 28 December 2020 to 25 January 2021 (spending an additional 7 nights in the care of the Other Party, instead of the originally agreed 23 nights).

24. Therefore, the Applicant had an additional 30 nights of actual care of the children, and the Other Party had an additional 7 nights of actual care of the children. The Tribunal has found actual care of the children resulted in a change in care from 7 April 2020 such that the Applicant had 93% care of the children and the Other Party had 7% care of the children.

25. With respect to the final point in (d) of paragraph 72 above, the Tribunal is satisfied the Other Party who had reduced care of the children, and had taken reasonable action at the time to ensure that the care arrangements were being complied with[29]. The Tribunal makes this finding, with reference to the Other Party’s actions in complying with the Parenting Orders and purchasing flights for the children. It was circumstances outside the control of the Other Party such as the actions of the airline at the time which cancelled the children’s flights, and the impact of the COVID-19 pandemic and the disruption this had on families with the closure of State borders at the time, which meant the children were not able to travel to be with the Other Party for the Term 1 holidays, being the period of 8 April 2020 to 18 April 2020.

    [29] The Tribunal also referred to the Guide at 2.2.4 Interim care provisions & disputed care arrangements | Child Support Guide (dss.gov.au) for further guidance on reasonable action; and section 54 of the Assessment Act.

26. With respect to considering the reasonable action of the Other Party, the Tribunal asked the Respondent whether in their view this consideration with respect to the application of sub-section 51(1)(d) of the Assessment Act was confined to the events which triggered the change in care at the commencement of the care period; or whether such reasonable action was taken by the Other Party was to be considered throughout the care period. The Respondent in closing submissions stated[30]:

    “…  The Registrar’s position is that the language used in section 51(1)(d), and elsewhere in section 51, does not restrict the ‘reasonable action’ to occurring at the time the care changes. That is, section 51(1)(d) uses the language ‘is taking reasonable action’, which does not import a temporal limitation to action that is taken at a particular point, in particular to action at the commencement of the care period…”

    [30] Exhibit R3, page 4, paragraph 13.

27. The Tribunal concurs, and therefore has considered the actions of the Other Party with respect to the Term 2 and Term 3 holidays in 2020, and whether in the Tribunal’s view, the Other Party took reasonable action in accordance with sub-section 51(1)(d) of the Assessment Act. In considering this, the Tribunal has had regard to Part 2.2.4 of the Guide which provides a non-exhaustive list of examples which constitute reasonable action[31].

    [31] Refer 2.2.4 Interim care provisions & disputed care arrangements | Child Support Guide (dss.gov.au)

    Did the Other Party take reasonable action for the July 2020 holidays?

28. With respect to the Term 2 holidays (being 1 July 2020 to 11 July 2020), the Tribunal notes the documented correspondence which occurred between the Applicant and the Other Party. On 18 May 2020 the Applicant emailed the Other Party regarding the July 2020 school holidays, and stated[32]:

    “… I understand that both borders (WA and QLD) will remain close until September, so hopefully they can travel by September school holidays – if you haven’t already booked flights, did you want them for an additional couple of days?” [sic]

    [32] Exhibit A1, Attachment 6, page 1.

29. There was no response from the Other Party to this email from the Applicant. On  29 June 2020, the Other Party responded to the Applicant and attached copies of requisite state border passes and flight details for both children to travel to Western Australia for the July 2020 holidays, stating in this correspondence[33]:

    “… The kids will also have to be here for 14 days as per the self-quarantine requirements, This would no different to having them longer in the Sep/Oct Holidays as you have stated in a previous email…” [sic]

    [33] Exhibit A1, Attachment 6, page 2.

30. On the same day the Applicant responded to the Other Party’s email of 29 June 2020, and referred to her earlier email of 18 May 2020, offering the Other Party additional days in the September 2020 holidays, and stated that in the absence of not receiving a response at the time from the Father to this email, she had proceeded and made arrangements for their children’s July 2020 holidays[34].

    [34] Exhibit A1, Attachment 6, page 3.

31. Records before the Tribunal confirm the Other Party responded to the Applicant on  29 June 2020 stating that in his view, the Applicant was not in compliance with the Parenting Orders and disagreed with her position in relation to the Queensland border control restrictions at the time. The Tribunal refers to the Other Party’s correspondence below[35]:

    “… The court orders state that is to be no less than 10 nights, therefore extra days isn’t an issue. Also me having the kids for extra days in the past to fit in with your plans hasn’t been a problem, you have offered days in Sept/Oct holidays.

    As for border restrictions, I don’t need to worry about the QLD border you will have to apply for a border pass when you book the return flights.

    There are exemptions on compassionate grounds as shown Below…” [sic]

    [35] Exhibit A1, Attachment 6, pages 5 and 6.

32. The Tribunal notes the Other Party attached an extract from a Queensland Government website (partially produced in submissions from the Applicant), which refers to the Queensland Government giving exemptions for those living outside of Queensland seeking to re-enter Queensland who are complying with child care arrangements[36]. Ultimately, the children did not travel to Western Australia for the July 2020 holidays.

    [36] Exhibit A1, Attachment 6, page 6.

33. The Tribunal is of the view the Other Party’s actions of booking flights and arranging the requisite state border passes, were consistent with his obligations to comply with the Parenting Orders for the July 2020 holidays. Further, the Tribunal is of the view the Other Party attempted to genuinely negotiate with the Applicant to ensure compliance with the care arrangements. The Tribunal notes the Parenting Orders require the Other Party to notify the Applicant in writing 42 days prior, in circumstances where the Other Party did not intend to avail himself on any school holiday period. In the Tribunal’s view, the Other Party took reasonable action to comply with the care arrangements which were in place at the time for the July 2020 holidays.

    Did the Other Party take reasonable action for the September 2020 holidays?

34. Prior to the September 2020 holidays, the Applicant emailed the Other Party on  5 August 2020 stating that her understanding was that if the children were to go to Western Australia for the September 2020 holidays, upon return they would be required to do 14 days home quarantine, the impact of which would mean that her household would have to quarantine. The Applicant sought to check with the Other Party if he would be doing the same in Western Australia with the children, and whether the children would be departing on 19 September 2020 as planned, otherwise she intended to make alternative arrangements in the holidays for the children[37].

    [37] Exhibit A1, Attachment 7, page 1.

1. On 18 August 2020, the Applicant emailed the Other Party copies of flights purchased for the return of their children from Western Australia to Queensland on 3 and 4 October 2020[38].

   [38] Exhibit A1, Attachment 7, pages 2 to 4.

2. On 28 August 2020, the Applicant emailed the Other Party stating that flights she had purchased for their children to return to Queensland had been cancelled and enquired if the Father’s flights had been cancelled[39]. Following this, there was a series of emails on  2 and 3 September 2020, which the Tribunal summarises thus:[40]

   (a)On the evening of 2 September 2020, the Other Party replied to the Applicant stating that the flights he had booked for the children to come from Queensland to Western Australia were still valid, and that he was just awaiting approval for their exemption passes to cross the Western Australian border;

   (b)the Applicant responded on 3 September 2020 and stated the children would not be able to travel to Western Australia for the September 2020 holidays, as she was unable to book return flights, and suggested that the children “go a bit earlier” over the Christmas period;

   (c)the Other Party responded on the same day that he had tried for different flights, but the children “aren’t able to leave [Western Australia] until after [4 October 2020] anyway”; and

   (d)to which the Applicant responded that the Other Party should be able to get a credit for the September 2020 holiday flights and use this towards December 2020 holidays, and enquired as to what dates the Other Party was thinking for the December 2020 holidays.

   [39] Exhibit A1, Attachment 7, pages 5 and 6.

   [40] Exhibit A1, Attachment 7.

3. Two days later on 5 September 2020, the Other Party responded to the Applicant and stated that he had received confirmation that requisite state border passes had been approved and the children were authorised travel to Western Australia for the September 2020 holidays[41].

   [41] Exhibit OP1, pages 31 to 42.

4. On 5 September 2020 the Applicant emailed the Other Party stating that she was unable to get return flights for the children for the September 2020 holidays, so the children were not able to go, and stated that she offered the Other Party additional time at Christmas to which he did not respond. The Other Party responded on 6 September 2020 stating that he had replied and enquired if the Applicant had tried for different flights, as the children were not able to return to Queensland until Sunday 4 October 2020. The Applicant responded on the same day stating that she had tried, but there was only a flight available with a 23-hour layover in Sydney, which the Applicant said “can’t happen”. Ultimately, the children did not travel to Western Australia for the September 2020 holidays.

5. Again, the Tribunal is of the view that the Other Party’s actions of booking flights and arranging the requisite state border passes, were consistent with his obligations to comply with the Parenting Orders for the September 2020 holidays. Further, the Tribunal is of the view the Other Party attempted to genuinely negotiate with the Applicant in an attempt to ensure compliance with the care arrangements. In the Tribunal’s view, the Other Party took reasonable action to comply with the care arrangements which were in place at the time for the September 2020 holidays.

   Did the Other Party take reasonable action for the December 2020 holidays?

6. As it transpired for the December 2020 holidays, the children of the Applicant and the Other Party travelled to Western Australia and spent additional time with the Other Party, for the period of 28 December 2020 to 25 January 2021 (spending 28 nights in the care of the Other Party). Therefore, it is not necessary for the Tribunal to make a finding whether the Other Party took reasonable action to comply with the care arrangements which were in place at the time for the December 2020 holidays.

7. In summary, the Tribunal has considered the actions of the Other Party with respect to the relevant care arrangements which were in place for the holiday periods detailed in the above reasons, and the Tribunal has found the Other Party did take reasonable action in accordance with sub-section 51(1)(d) of the Assessment Act throughout the relevant care period.

8. Therefore, the Tribunal is satisfied that sub-section 51(1) of the Assessment Act has application, and consequently sub-section 50(3) of the Assessment Act does not apply, pursuant to sub-section 50(4) of the Assessment Act.

   Two percentages of care in relation to the responsible person

9. Sub-section 51(2) of the Assessment Act requires the Tribunal to determine two percentages of care in relation to the responsible person. However, if special circumstances exist in relation to the children, then the Tribunal may determine a single percentage of care in relation to the Other Party (pursuant to sub-section 51(5) of the Assessment Act).

10. The Tribunal refers to the Guide, which provides context for the application of special circumstances, pursuant to sub-section 51(5) of the Assessment Act, transposed for ease of reference[42]:

    “… Special circumstances where an interim period does not apply

    The Registrar has discretion to decide that in special circumstances, the percentage of care be immediately based on the actual care and no interim period will apply. Special circumstances may include circumstances that relate to the child directly as well as circumstances that relate to another individual, such as the person with increased care, to the extent that those circumstances also relate to the child. This discretion is only to be exercised in unusual cases, for example, where there is evidence of violence or other inappropriate behaviour by the person who has reduced care which led to the change in care. This recognises that if a person's own unreasonable or inappropriate actions are a significant cause for the care arrangement not being complied with, the person should not benefit from an interim period, even if they are seeking the return of the child...”

    [42] 2.2.4 Interim care provisions & disputed care arrangements | Child Support Guide (dss.gov.au)

11. The Tribunal is satisfied that the factual circumstances of this application do not amount to special circumstances for the purposes of sub-section 51(5) of the Assessment Act.

12. Therefore, the Tribunal will determine two percentages of care for the Applicant and the Other Party pursuant to sub-sections 50(2) and 51(2) of the Assessment Act. The first percentage of care is the percentage of care the person was to have under the care arrangement (per sub-section 51(3) of the Assessment Act); and the second percentage of care is a percentage that corresponds with actual care of the children that the Tribunal is satisfied the Other Party would be likely to have during the care period if the action referred to in sub-section 51(1)(d) of the Assessment Act was not to succeed (per sub-section 51(4) of the Assessment Act).

    First percentage of care

13. Sub-section 51(3) of the Assessment Act provides that the first percentage of care is to be a percentage that corresponds with the extent of care of the children the Other Party should have had or is to have under the care arrangement during the care period (which may be nil). The phrase “should have had”, in the Tribunal’s mind, refers to the care arrangements the Other Party was expected to have in accordance with the Parenting Orders. The Tribunal is satisfied that had the circumstances of the COVID-19 pandemic not arisen, then in this case the relevant percentage of care for the Other Party would have been the existing percentage of care in line with Parenting Orders which were being followed, with 14% to the Other Party, and 86% to the Applicant.

    Second percentage of care

14. In accordance with sub-section 51(4) of the Assessment Act, the second percentage of care for a determination pursuant to sub-section 50(2) of the Assessment Act, is a percentage that corresponds with the actual care of the children that the Other Party would be likely to have during the care period if the action of the Other Party were not to succeed.

15. Section 54A of the Assessment Act provides guidance on how to work out actual care and extent of care of a child. It provides:

    “… 54A Working out actual care, and extent of care, of a child

    1The 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.

    2The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

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

    4This section does not limit section 50, 51, 53B or 54…”

16. In the present matter, the Applicant and the Other Party live at opposite sides of the country, and there is no dispute as to the physical location of the children in terms of where they spent each night. Both the Applicant and the Other Party have tendered consistent evidence to the Tribunal regarding where the actual care of the children took place.

17. In accordance with sub-section 51(4) of the Assessment Act, with respect to a second percentage of care for a determination pursuant to sub-section 50(2) of the Assessment Act; the Tribunal finds the actual care of the children resulted in a change in care that the Applicant had 93% care of the children and the Other Party had 7% care of the children (as was found by the Tribunal in earlier reasons).

    Interim period - Determine applicable interim period (section 53A of the Assessment Act) - (interim care determination)

18. The length of an interim care determination is set out in section 53A of the Assessment Act. The length of this period is determined by various factors, including whether care arrangements are in place by a court order.

19. The Guide provides that[43]:

    “… An interim determination cannot be made if the application for a child support assessment is made after the end of the maximum interim period for the care percentage determination (see paragraph 53(1)(a) CSA Act)…

    … For court orders, the maximum interim period that can apply is the later of:

    52 weeks from the day the care arrangement provided by the court order takes effect, or

    26 weeks from the change of care day.”

    [43] 2.2.4 Interim care provisions & disputed care arrangements | Child Support Guide (dss.gov.au)

20. In the present matter, the Respondent was first notified on 24 April 2013 by the Other Party with respect to the Parenting Orders (which were in place as a result of Court Orders made by the Federal Circuit Court of Australia on 8 April 2013, and amended on  17 December 2013). The Parenting Orders had effect from 20 January 2016[44].

    [44] Exhibit R2, page 2, paragraph 8; and Exhibit R3, page 7, paragraphs 24 to 26.

21. Given that the change in care arrangements occurred from 7 April 2020 (as determined in earlier reasons), the maximum interim period the Tribunal can apply is 26 weeks from the change of care day; beginning on 7 April 2020 and ending on 6 October 2020, in accordance with sub-section 53A(1)(a)(i) and the sub-section 53A(1) Table, namely, Item 2, Column 3(a) of the Assessment Act.

22. Further, in arriving at this position, the Tribunal is satisfied that with respect to sub-section 53A(1) Table, Item 2(b) that special circumstances do not exist in the present matter on reflection of the factual circumstances.

23. Therefore, the Tribunal determines the Other Party was entitled to an interim period determination in his favour pursuant to section 50 of the Assessment Act, beginning on          7 April 2020, and ending 26 weeks later, on 6 October 2020 (pursuant to sub-section 53A(1), Item 2, column 3(a) of the Assessment Act).

    Beginning of later interim periods

24. For completeness, sub-section 53A(2) of the Assessment Act provides for circumstances where a person has been taking reasonable action to comply with care arrangements (pursuant to sub-sections 51(1)(d) and 53A(2)(b) of the Assessment Act); and if it is found the person who has increased care of the children ceases to take reasonable action to participate in family dispute resolution before the end of the maximum interim period; then a further interim period for the determination begins on the day the second carer ceases to take such reasonable action (pursuant to sub-section 53A(2)(c) of the Assessment Act).

25. Family dispute resolution is defined in section 5 of the Assessment Act, as having the meaning given by section 10F of the Family Law Act 1975 (Cth), which provides:

    “… FAMILY LAW ACT 1975 - SECT 10F

    Definition of family dispute resolution

    Family dispute resolution is a process (other than a judicial process):

    (a)in which a family dispute resolution practitioner:

    (i)     helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or

    (ii)    helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; and

    (b) in which the practitioner is independent of all of the parties involved in the process…”

26. The Tribunal is satisfied in the present matter that the factual circumstances of the case are such that sub-section 53A(2) of the Assessment Act has no application, as there is no evidence of a family dispute resolution process having taken place in this matter. It also follows that sub-section 53A(3) of the Assessment Act has no application for the same reasons.

    Determine dates of application of the new care determinations (s 54C of the Assessment Act)

27. As the Tribunal has determined two percentages of care in accordance with sub-section 51(2) of the Assessment Act in relation to the Other Party, by virtue of sub-section 54C(1)(b) of the Assessment Act, the Tribunal must apply sub-section 54C(2) of the Assessment Act, which attributes the days to which the percentage of care applies. Relevantly, sub-section 54C(2) of the Assessment Act provides:

    “… (2) Until the determination is revoked or suspended under Subdivision C of this Division:

    (a)the percentage of care referred to in subsection 51(3) applies to each day in a child support period that occurs in the interim period for the determination;  

    and

    (b)the percentage of care referred to in subsection 51(4) applies to each day in a child support period that does not occur in the interim period for the determination…”

28. In applying sub-section 54C(2) of the Assessment Act, the Tribunal finds:

    (a)For the period of 7 April 2020 to 6 October 2020, the percentage of care is 14% to the Other Party, and 86% to the Applicant.

    (b)For the period of 7 October 2020 to 6 April 2021, the percentage of care is 7% to the Other Party, and 93% to the Applicant.

    Reviewable Decision

29. The decision under review is the decision of the SSCSD of the Administrative Appeals Tribunal dated 13 April 2021, which set aside the decision of the objections officer dated   21 November 2020, and in substitution determined that there had been no change in care from 8 April 2020, and that the care percentages applied in the assessment from that date were 14% to the Other Party and 86% to the Applicant. That is, no change to the pattern of care of the children had occurred, and the existing care percentage determination was not revoked.

    DECISION

30. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 13 April 2021 is set aside pursuant to sub-section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975 (Cth), and in substitution it is determined:

    (a)the existing percentage of care determination is revoked pursuant to section 54G(1) of Child Support (Assessment) Act 1989 (Cth) with effect from 7 April 2020;

    (b)a determination is made pursuant to sub-sections 50(1) and (2) of the Child Support (Assessment) Act 1989 (Cth) that from 7 April 2020 to 6 October 2020, the percentage of care is 14% to the Other Party, and 86% to the Applicant; and

    (c)a determination is made pursuant to sub-sections 50(1) and (2) of the Child Support (Assessment) Act 1989 (Cth) that from 7 October 2020 to 6 April 2021, the percentage of care is 7% to the Other Party, and 93% to the Applicant.

31. I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    …………[SGD]…………………

    Associate

    10 July 2024

    Date of Hearing:  11 March 2024

    Applicant:  BKCZ             

    Respondent Representative:         Mr David McLaren of Mills Oakley

    Other Party:  HBVN

    Annexure A

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT		DATE RECEIVED
R1.	Statement of Facts, Issues and Contentions (15 pages)	R	25/11/2021
R2.	Statement of Facts, Issues and Contentions (12 pages)		25/01/2024
R3.	Written closing submissions (8 pages and Annexures of 10 pages)		15/04/2024
A1.	Statement per direction (incl. Attachments 1-7) (40 pages)	A	-		13/08/2021
A2.	Schedule of Care and covering email (11 pages)		-		14/03/2022
A3.	Statement of Facts (1 page)		02/02/2024		08/02/2024
OP1.	Written Submission (3 pages) and various attachments (pages 4 – 43)	OP	01/07/2021		07/07/2021
OP2.	Supplementary Statement (6 pages)		-		03/09/2021
OP3.	Statement in Reply (2 pages)		13/01/2022
OP4.	Schedule of Care and covering email (19 pages)		-	18/03/2022
OP5.	Statement of Facts, Issues and Contentions (13 pages)		22/02/2024
OP6.	Further Evidentiary Material (Attachment A to Attachment Q) (38 pages)		-		22/02/2024
TR1.	Section 37 T-Documents (T1-T20; 177 pages)	-	-		15/06/2021
Tr2.	Redacted Decision of Administrative Appeals Tribunal, [2015] AATA 321 (20 pages)	-	-		-
Tr3.	Federal Court of Australia remittal documents (30 pages)	-	-		-