BPLB and Child Support Registrar (Child support second review)

BPLB and Child Support Registrar (Child support second review) [2020] AATA 5103 (9 December 2020)
Division:GENERAL DIVISION
File Number: 2020/2576
Re:BPLB
APPLICANT

AndChild Support Registrar
RESPONDENT

And DDFZ
OTHER PARTY

DECISION
Tribunal: Mr S Evans, Member
Date:9 December 2020
Place:Sydney

The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Mr S Evans, Member
CATCHWORDS
CARE PERCENTAGE – where applicant disputes his care percentage of 38% – where parties agree that care takes place as per Federal Court Orders – where parties interpret the Court orders differently – five nights per fortnight – half of school holidays – 20 school term fortnights – 6 school holiday fortnights – where Tribunal finds applicant has 142 nights of care – decision under review affirmed.
LEGISLATION
Child Support (Assessment) Act 1989 (Cth)
REASONS FOR DECISION
Mr S Evans, Member
9 DECEMBER 2020
INTRODUCTION

The Applicant, BPLB, and the Other Party, DDFZ, are the separated parents of two children aged 9 and 7 years old. Following a Federal Circuit Court order on 1 August 2019, the Child Support Registrar (“the Registrar”) determined that the care percentages of the children should change as of 3 August 2019. The Applicant disagrees with the care percentages which were determined by the Registrar and subsequently affirmed by the Social Services and Child Support Division (“AAT1”) of the Administrative Appeals Tribunal (“the Tribunal”) on 23 April 2020. He now seeks review at the General Division of the Tribunal.
BACKGROUND
From 15 May 2018, a child support case was registered in respect of the children. From that date, the care percentages reflected that the Applicant (father) and Other Party (mother) each provided 50% care for the children.
On 1 August 2019, the Federal Circuit Court (“the Court”) made an order which included parenting arrangements for the two children. It read in part:
(2) That the children live with the mother.
(3) The children spend time with the father as follows:
a) on a fortnightly basis from the conclusion of school on Thursdays to the commencement of school the following Tuesday;
b) for one half of the school holidays as agreed, or, failing agreement within 28 days of the commencement of the school holiday period, the second half;
c) That the children spend time with the father on Father’s Day from 9AM to 6PM;
d) And otherwise as agreed between the parties.
A subsequent care percentage determination by the Registrar assigned 62% care of the children to the mother and 38% to the father from 3 August 2019. I will refer to this as the “existing care percentage determination”.
On 23 April 2020, the AAT1 affirmed a decision to disallow an objection by the Applicant to a change in care arrangements based on the decision of the Court.
The Applicant now seeks review of the decision of the AAT1 dated 23 April 2020.
RELEVANT LEGISLATION AND POLICY
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) sets out the rules for determining a person’s percentage of care for a child. It relevantly states:
49 Determination 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)       the Registrar:
(i)revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and
(ii)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 or 52 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)       the Registrar:
(i)revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii)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 or 52 applies in relation to the responsible person.
The essential difference between sections 49 and 50 is that section 49 applies in circumstances where the parents have had, or are likely to have had, no pattern of care during the care period. Where the Tribunal is satisfied that the parents have had, or are likely to have had a pattern of care, section 50 applies.
Pursuant to subsection 50(3) of the Act, the care percentage must correspond with the actual care a person has of the child during the care period.
Sections 54F, 54G and 54H of the Act state that a care determination must or can be revoked where there has been a change in care. Where a care determination is revoked, a new care determination of the percentage of care each parent has in respect of a child must be made.
When considering a pattern of care, I am to consider the pattern of care across the care period. Whilst the concept of care is not defined in the legislation, the courts have said that care has to be given its ordinary meaning.
ISSUES FOR DETERMINATION
The issues for the Tribunal to determine are:
(a)must or should the existing care percentage determination be revoked; and if so
(b)what are the Applicant and Other Party’s respective percentages of care for the children during the care period.
CONTENTIONS OF THE PARTIES
The existing care percentage determination
The AAT1 found that the Court’s orders provided that the children were to live with the Other Party and that the Applicant was to have care for five nights per fortnight and half of all school holidays. The AAT1 applied the general formula of 40 weeks of school term and 12 weeks of school holidays per year and calculated that the Other Party’s percentage of care under the orders was 61%; or 222 nights. Applying what it considered to be actual care however, the AAT1 calculated the care percentages to be 62% to the Other Party and 38% to the Applicant based on ‘the regular fortnightly care arrangement continuing in the same pattern from the previous school term’.
Both parties submit that they have been complying with the Court’s orders and that the actual care is in line with the orders. However, it appears that they each have varying interpretations of the orders. Further, the Applicant indicated that the orders may not have been complied with consistently by the Other Party.
The Applicant told the Tribunal that the Court’s orders changed the care percentages on 3 August 2019 and the Child Support Agency (“CSA”) subsequently determined a new care percentage of 38% to the Applicant and 62% to the Other party, based on the “actual care”. The Applicant questions how a determination based on “actual care” is applicable given that no care had taken place under the new order at the time care percentages were determined. The Applicant contends that if there was to be a determination on actual care, it would have to deem that it’s 50:50 because that is what actual care was for the 12-month period prior to the calculation of the existing care percentage determination.
In his application for review he writes:
The CSA disregarded evidence provided that clearly showed the care pattern as per the court orders being 5 nights per fortnight and 50% of school holidays.
…
I have care of my children significantly more than 142 nights. I have the children 5 nights per fortnight… plus 50% of school holidays …
Even with a rough calculation this is 165 days. This is before any additional nights of care.
During the hearing, both parties were asked to detail their understanding of the Court’s order in respect to the care arrangement to the Tribunal.
The Applicant ‘s interpretation of the Court’s orders regarding care during the school holiday period, he submits, should be as per the gazetted NSW Department of Education school holiday calendar.He has provided the relevant calendar which shows the following 2020 NSW term and vacation dates:
·Term 1: Tuesday 28 January to Thursday 9 April;
·Term 2: Monday 27 April to Friday 3 July;
·Term 3: Monday 20 July to Friday 25 September; and
·Term 4: Monday 12 October to Friday 18 December.
He submits that this shows that the school holidays do not incorporate the weekend prior, or the weekend after the school holidays. He therefore deems this to be part of his care time as per the pattern of care agreement set out in the Court’s orders.
During the hearing, the Applicant detailed an example of school holidays that start on the long weekend Monday 13 April. He says school finishes on Thursday afternoon prior to that weekend and that he should have care for the children Thursday, Friday, Saturday and Sunday night under the Court’s order. He contends it follows that the school holidays should be deemed to be Monday 13 April through until Friday 24 April; half of which would amount to six nights of care. His care would begin again on Friday night and he would have the children on Saturday, Sunday and Monday night and then return the children to the Other Party on Tuesday morning. He contends that this was not considered by the CSA in their decision.
The Other Party contends that care has taken place as per the Court’s orders. Specifically, she says that she has nine nights each fortnight and the Applicant has five nights each fortnight and half of school holidays. The Other Party said the children live with her and they spend time with the Applicant fortnightly on Thursday, Friday, Saturday, Sunday and Monday nights. They return to her care during school terms.
The children also spend half of the school holiday period with her. The Other Party disagrees with the Applicant’s interpretation of the Court’s order that school holidays are between Monday and Friday only and do not include the weekends either side of the school holidays. The Other Party maintains that the school holiday period begins when school concludes and ends when school resumes; namely if school finishes on a Thursday, then the school holiday period begins on the Thursday night. Likewise, when school resumes on Monday two weeks later, the school holiday period ends. She says if there are 14 nights of school holidays, she has care for seven nights and the Applicant also has care for seven nights.
She has provided a table which breaks down, month by month, the actual care. It records that she had 229 nights in the relevant care period and the Applicant had 135 nights; giving a respective care percentage of 62% and 38%; consistent with the CSA determination. The Other Party told the Tribunal that when determining the care percentages, she considers there to be 20 standard fortnights in any year; and six school holiday fortnights.
Similarly, the Applicant has also provided a care calendar, which shows the Applicant has calculated overnight care for Thursday, Friday, Saturday, Sunday, Monday and Tuesday nights on a fortnightly basis.
Both the Other Party and the Applicant have submitted references from third parties which confirm that they have been in compliance with the Court’s orders.
During the hearing, the Applicant claimed that the Other Party had not complied with the Court’s orders by withholding the children from school, whereby he was unable to pick them up on a day they were to be in his care. It was explained by the Other Party that, on the occasion in question, she and the Applicant could not agree on the order of the holiday care arrangements and that consequently she reverted to the Court’s orders which state that if there is no agreement, she has care of the children for the first half of the school holidays.
CONSIDERATION
There is agreement between both parties that prior to 3 August 2019 the care of the children was split equally. After this time the Other Party maintains that the care percentage is 62:38, whilst the Applicant submits that his share is greater than 38%, though he cannot be exactly certain what it should be.
The actual care provided has been documented by both parties and the disagreement between them appears to originate in part from how the nights in care are calculated and what constitutes “school holidays”.
In the Applicant’s submitted calculation of care days, he consistently includes the Tuesday at the end of his fortnightly care period as being “a night” in which he has the children. This is incorrect and he conceded as much at the hearing. This additional night would add 20 nights of care to his calculation to which he is not entitled.
There is disagreement about what constitutes the dates of school holidays, despite both parties using the same dates. The Other Party quotes the start and finish dates of the school holidays, whilst the Applicant submits the start and finish dates of the school terms. This is further confused by the addition of weekends prior by the Applicant.
The Applicant says that the decision as to future pattern of care should take into account gazetted school holidays as per the Department of Education calendar, which he has submitted. He contends that the gazetted holidays show that the school holidays do not incorporate the weekend prior to the school holidays or the weekend after the school holidays; and are therefore deemed to be part of his time as per the pattern of care agreement.
Most clearly, the Applicant set out his contention of how his care adds up to 172 nights per year in a submission dated 27 July 2020, in which he writes that he should be allocated ‘26 fortnights’ at 5 nights and an additional 6 fortnights for school holidays. Clearly this would exceed the 26 fortnights in a year and indicates double counting on his part.
Sensibly, the existing care percentage determination is based on 40 weeks of school terms and 12 weeks of holidays. This is consistent with the Other Party’s construction because it takes into account the full week for each of those weeks in question.
The question of how a care percentage could be determined by taking into account the “actual care” when no care had been provided under the order was explained in the decision under review where it is written that it was based on the regular fortnightly care arrangement continuing in the same pattern from the previous school term. Whilst this is a clear explanation for the decision maker’s rationale, even if it were not, the outcome of the determination is supported by the actual percentage of care which subsequently took place during the care period.
Finally, in relation to the specific suggestion that the Court’s orders were not complied with at the start of the April school holiday period, in the absence of any further information from the Applicant, the Tribunal accepts the Other Party’s explanation that she was reverting to the default position of the Court’s orders whereby she has care of the children for the first half of school holidays. The Applicant did not directly challenge her assertion that he had care of the children for the second half of the school holidays on that occasion.
CONCLUSION
The Tribunal is satisfied that the Court’s orders are being interpreted correctly under the existing care percentage determination. The Tribunal is also satisfied that the application of the general formula that there are 40 weeks of school term and 12 weeks of school holidays to the Court’s order is appropriate. Consequently, 20 times each year the children live with the Applicant for 5 nights, equal to 100 days per year.
The remaining 12 weeks of school holidays are divided evenly, providing an additional 42 days to the Applicant. This leaves the Applicant with a total 142 days of care, or 38%, and the remaining care provided by the Other Party. This is consistent with what was submitted by the Other Party to the CSA in August 2019.
Having regard to the evidence of the parties referred to above, the Tribunal finds that the actual care was consistent with the care determination that was in place from 3 August 2019. That being the case, the existing percentage of care determination should not be revoked.
DECISION
For the reasons stated above, the decision of the AAT1 dated 23 April 2020 is affirmed.

I certify that the preceding 39 (thirty- nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

........[sgd].............................................
Associate
Dated: 9 December 2020

Date of hearing: 13 October 2020

Date final submissions received: 7 November 2020

Applicant: Self-represented

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

Other Party: Self-represented

[2020] AATA 5103

9 December 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	13 October 2020
Date final submissions received:	7 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers
Other Party:	Self-represented