BMXB and Child Support Registrar (Child support second review)

[2022] AATA 375

BMXB and Child Support Registrar (Child support second review) [2022] AATA 375 (4 March 2022)

Division:GENERAL DIVISION

File Number:          2021/4051

Re:BMXB

APPLICANT

AndChild Support Registrar

RESPONDENT

AndTMZS

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:04 March 2022

Place:Brisbane

The Tribunal sets aside the decision of AAT1 dated 31 May 2021 and in substitution finds the care of the sons from 5 April 2019 was 35% to the Father and 65% to the Mother.

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

Member P Ranson

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 – objection to care percentage change – Federal Court parenting orders two-year care period – actual care of the children – decision set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guides to Social Policy Law, Child Support Guide, Version 4.57, released 1 July 2021

REASONS FOR DECISION

Member P Ranson

04 March 2022

BACKGROUND

1. BMXB the Applicant (The Father) and TMZS the Other Party (The Mother) are the separated parents of two sons aged 7 and 5 (the sons). The care of the sons has been shared between their parents since separation being 79% to the Mother and 21% to the Father.

2. Court orders in November 2017 changed the care of the sons to 72% to the Mother and 28% to the Father. In June 2018 the father notified Child Support of that change. In May 2020, the Father again notified a change of care being 65% to the Mother and 35% to the Father based on him having 129 nights of care of the sons each year. The Mother disputed that notification saying by her calculations it should be 71% to her and 29% to the Father. The Father and the Mother agreed care was being provided in accordance with the November 2017 care orders. They disagree as to the calculation.

3. Various care decisions were made including from April 2019 which set the Mother at 67% and the Father at 33% care of the sons. The Father was dissatisfied with that decision and applied to the Social Security & Child Support Division (SSCSD) of this Tribunal for a review of it. They affirmed the decision. Still dissatisfied, the Father applied to the General Division of this Tribunal for a further review.

4. At its heart, this case is all about the correct calculation of care arising from the November 2017 care orders, which provided equal shared parental responsibility for the sons who are to live with the Mother and spend time with the Father all of which is spelt out in the orders. Once the elder son commenced school in January 2019 the sons spend half the school holidays with the Father including all of Easter every other year with the usual provisions for Christmas and birthdays and the like. By that provision, the care must be calculated over a two-year period.

   PROCEDURAL HISTORY

5. The parties in this case are:

Applicant	BMXB (‘Applicant’; ‘Father’)
Respondent	The Child Support Registrar (the Registrar)[1]
Other Party	TMZS (‘Other Party’; ‘Mother’)

[1] Part of Services Australia formerly the Department of Social Services.

1. The decision under review is the decision made on 31 May 2021 by the SSCSD of the Administrative Appeals Tribunal (AAT1), which affirmed the decision made by an objections officer of the Child Support Registrar (the Registrar) on 19 February 2021, which found the Other Party had 67% care and the Applicant had 33% of the sons from 5 April 2019.[2]

   [2] At the Hearing Mr Murphy advised the Tribunal the content of paragraph 1 of the SFIC was not accurate.

2. Care orders were issued on 20 November 2017 by the then Federal Circuit Court of Australia (FCCA), now the Federal Circuit and Family Court of Australia (the Care Orders). The parents have abided by the Care Orders since they were issued.

3. The hearing for this current application was held on 24 January 2022 (the Hearing). The Father and the Mother attended the hearing and gave affirmed evidence. Mr Christopher Murphy (Mr Murphy) also attended the Hearing representing the Registrar.

4. All parties attended the Hearing by video or audio link facilitated by the Tribunal utilising Microsoft Teams. The Hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the Applicant. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments.

5. The Registrar identified various issues to be decided in this case however it became clear during the Hearing the real issue is the correct calculation of the care as between the Father and the Mother from January 2019 when the elder son commenced school and more specifically from the start of the term 1 school holidays that year.

6. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 10. The following documents were then admitted into evidence:

Number	Description
Exhibit 1	T Documents
Exhibit 2	Respondent’s Statement of Facts, Issues and Contentions
Exhibit 3	Applicant submissions dated 6 October 2021
Exhibit 4	Applicant submissions undated and lodged 6 October 2021
Exhibit 5	Applicant calendar of care for 2020
Exhibit 6	Applicant calendar of care for 2021
Exhibit 7	Other Party submissions undated and lodged 1 November 2021
Exhibit 8	Other Party calendar of care 2019
Exhibit 9	Other Party calendar of care 2020
Exhibit 10	Other Party calendar of care 2021

1. The Tribunal has considered all the material supplied to it and the oral evidence provided by the Father and the Mother at the Hearing. Not all the evidence is referred to at length in this decision record. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision record.

2. The Registrar’s Statement of Facts, Issues and Contentions dated 26 November 2021 (the SFIC) sets out in detail the law which is relevant to this case with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to the Father and the Mother prior to the hearing, that law will not be reproduced in detail in this decision other than to confirm the relevant legislation is contained in the:

   (a)Child Support (Assessment) Act 1989 (Cth) (the Assessment Act)

   (b)Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act)

   (c)Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).

3. The SFIC also refers to the Child Support Guide (the Guide). The Tribunal notes that, where a general policy exists to guide the decision maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision … cogent reasons will have to be shown against its application”.[3] The Tribunal considers that there are no pressing reasons to depart from the policy outlined in the Guide.

   [3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 645 (Brennan J).

   THE FACTS AND EVIDENCE

4. The care decisions which precede this decision are as follows:

% Mother	% Father	From	To	Date of Notification	Notifier	Evidence filed
79%	21%	16-12-2016	19-11-2017	16-01-2017	Mother	T51 page 193
72%	28%	20-11-2017	04-04-2018	04-06-2018	Father	T26 page 77 T38 page 108
65%	35%	05-04-2019	08-04-2019 (Mother) 12-05-2020 (Father)	13-05-2018	Father	T8 page 37 T24 page 69
65%	35%	05-04-2019 (Mother) 13-05-2020 (Father)	05-04-2021	13-05-2020	Father	T29 page 103 T43 page 158

1. Based on the above, this case relates to the period from 5 April 2019 being the start of the Easter school holidays in 2019, when the Father began having the whole of the Easter school holidays on a year about basis and ends on 1 April 2021 being the end of school term 1 that year. The care period for this decision is then 5 April 2019 to 1 April 2021 (the Care Period), which was confirmed by Mr Murphy at the Hearing.

2. The objections officer partly allowed the objection by the Mother and found the care percentages from 5 April 2019 were 67% to the Mother and 33% to the Father.

   Calendars of care

3. The Father provided calendars of care for 2020 and 2021.[4] The Mother provided calendars of care for 2019, 2020 and 2021.[5] The Tribunal has analysed these calendars of care and ascertained they show substantial agreement as to when the sons were in the care of each parent during those years. The days in dispute were discussed at the Hearing and the discrepancies were mostly eliminated.

   [4] Exhibits 5 and 6.

   [5] Exhibits 8, 9 and 10.

4. The Tribunal advised the Mother its analysis of her calendars of care revealed the Father’s care since 5 April 2019 amounted to 35.2% care by him. When that was revealed to her, she agreed that would be the correct care percentage for him as she stated in the following exchange at the Hearing:[6]

   MEMBER: Thank you [a reference to a comment by Mr Murphy]. All right. Well, that's the arithmetic as I see it from your calendars, TMZS. 256 nights over 728 days comes to 35.2 to BMXB.

   TMZS: Yes.

   MEMBER: So, unless you wish to challenge that, and by all means do if you wish, that's sort of saying to me that his calculation's right.

   TMZS: Yes, well - no, just - yes, that would - that would be right. I haven't done those calculations, but that would be right.

   [6] Transcript of Proceedings dated 9 February 2022, page 18, lines 8 – 17.

5. The Mother continued at that point to comment about who pays for what in terms of the education needs of the sons, which is not relevant to this decision.

   Submissions by the Father and the Mother

6. Apart from the calendars of care referred to above, both parents provided submissions, which are included as exhibits 3, 4 and 7. The submissions support their assertions about the correct interpretation of the Care Orders as they apply from 5 April 2019. Given the agreement of the Mother to the analysis by the Tribunal, further consideration of them is not warranted.

   SUMMARY OF FINDINGS

7. It is clear to the Tribunal a change of care did occur on 5 April 2019 as specified by the Court Orders so a care decision must be made. From then on, the care changed to include the Father and the Mother each having the whole of the Easter school holidays on a year about basis.

8. The Father asserts and the Mother agreed at the Hearing the care percentage from 5 April 2019 was 65% to her and 35% to the Father based on the Tribunal’s analysis of the Mother’s calendar of care.

   CONCLUSION

9. As such, the Tribunal sets aside the decision of AAT1 dated 31 May 2021 and in substitution finds the care of the sons from 5 April 2019 was 35% to the Father and 65% to the Mother.

25.     I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

…………………[SGD]………………………..
Associate
Dated: 04 March 2022

Date of Hearing: 

24 January 2022, Post-Hearing material filed 28 February 2022

Applicant:

Other Party:

By Microsoft Teams

By Microsoft Teams

Solicitor for the Respondent:

Mr Chris Murphy