BYKM and Child Support Registrar (Child support second review)

[2022] AATA 70

BYKM and Child Support Registrar (Child support second review) [2022] AATA 70 (25 January 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
GENERAL DIVISION	)	No: 2021/4850

Re: BYKM

Applicant

And: Child Support Registrar

Respondent

And: RVZT

Other Party

DIRECTION

TRIBUNAL:  Senior Member D. J. Morris

DATE OF CORRIGENDUM:            24 February 2022

PLACE:           Melbourne

The Acting Registrar, pursuant to subsection 43AA(1) and 43AA(4) of the Administrative Appeals Tribunal Act 1975, is directed to alter the text of the decision and statement of reasons in this application as follows:

1. In the Decision: omit ‘65 per cent care by BYKM (‘the Mother’) and 35 per cent care by RVZT (‘the Father’)’ and substitute ‘66 per cent care by BYKM (‘the Mother’) and 34 per cent care by RVZT (‘the Father’)’.

2. In the Reasons for Decision:

(a)   at paragraph 31 omit ‘39 x 4 nights, rather than five nights per fortnight’ and substitute ’39 x 5 nights, rather than four nights per fortnight’.

(b)   at paragraph 51 omit ‘127’ and ‘128’ and substitute ‘125’ and ‘126’.

(c)   at paragraph 52 omit ’35.06’ and ‘35’ and substitute ‘34.25’ and ‘34’.

(d)   at paragraph 55, omit ‘65’ and ‘35’ and substitute ‘66’ and ‘34’.

(e)   at paragraph 56, omit ‘65’ and ‘35’ and substitute ‘66’ and ‘34’.

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Senior Member

Division:GENERAL DIVISION

File Number:          2021/4850

Re:BYKM

APPLICANT

AndChild Support Registrar

RESPONDENT

AndRVZT

OTHER PARTY

DECISION

Tribunal:Senior Member D. J. Morris

Date:25 January 2022

Place:Melbourne

The decision of the Social Services and Child Support Division of the Tribunal dated 21 June 2021 is set aside. In its place, the Tribunal substitutes a decision determining that the percentage of care for the three subject children of the parents in this matter from 24 February 2020 is 65 per cent care by BYKM (‘the Mother’) and 35 per cent care by RVZT (‘the Father’).

........................................................................

Senior Member D. J. Morris

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

Catchwords

CHILD SUPPORT – percentage of care of three children – where mother seeks review of decision of first-tier review of Tribunal – where first-tier decision set aside decision of objections officer of respondent – evidence of mother – evidence of father – where both mother and father contend first-tier decision affected by error – factual dispute about percentages of care by each parent in period that has passed – approach when assessing care for period already passed – assessment of actual care, not point in time care – quality of evidence – where father provided more care than in Court orders – decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 33A, 37, 43
Child Support (Assessment) Act 1989 (Cth), ss 49, 50, 54D, 77

Child Support (Registration and Collection) Act 1988 (Cth), ss 4, 96A

Cases

Drake and Minister for Immigration and Ethnic Affairs (No. 2); Re (1979) 2 ALD 634
F and LP, Re [2015] AATA 321 (unpublished)
P v Child Support Registrar [2013] FCA 1312

SHQY and Child Support Registrar, Re [2021] AATA 930

Secondary Materials

Department of Social Services – Child Support Guide, Version 4.60 – Released 4 January 2022

REASONS FOR DECISION

Senior Member D. J. Morris

25 January 2022

BACKGROUND

1. BYKM (‘the Mother’) has brought an application to the Tribunal to review a decision dated 21 June 2021 of the Social Services and Child Support Division of the Tribunal (‘the first-tier decision’). Her former husband, RVZT (‘the Father’), is the other party joined in proceedings. The Respondent is the Child Support Registrar (‘the Registrar’).

2. The Mother and Father are the parents of three minor children:

   (a)K, born in 2008 and now aged 13;

   (b)N, born in 2012 and now aged 9; and

   (c)M, born in 2017 and now aged 4. 

3. The Mother and Father divorced in September 2018.

4. In December 2019, an earlier administrative assessment of child support was ended at the Mother’s request. At the time it was ended, the care assessments were, in relation to K and N, 67 per cent care for the Mother and 33 per cent care for the Father. In relation to M, the care assessment was 73 per cent for the Mother and 27 per cent for the Father.

5. In February 2020, the Mother made a new application for an administrative assessment of child support. The Mother contended that the relevant care percentage for all three children from 18 September 2018 was 75 per cent for her, and 25 per cent for the Father. The Father, however, contended that the appropriate care percentages were 67 per cent for the Mother and 33 per cent for him.

6. On 23 March 2020, the Registrar accepted the new application for an administrative assessment to take effect on 24 February 2020. The Registrar set the care percentages for the two older children, K and N at 67 per cent for the Mother and 33 per cent for the Father.  In relation to the youngest child, M, the Registrar set the care at 73 per cent for the Mother and 27 per cent for the Father.

7. In September 2020, the Father told the Registrar that the children had been in his care for 144 nights per year since 18 September 2018. The Father subsequently lodged an objection to the care percentage used in the new administrative assessment.

8. On 2 March 2021, the objection was allowed but the 23 March 2020 administrative assessment was not changed. The objections officer said that the effect of the decision accorded with final parenting orders that were made with the consent of the parties in 2018.  This will be called ‘the objection decision’.

9. On 23 March 2021, the Father applied to the Tribunal for review of the objection decision.  On 21 June 2021, the Tribunal held a hearing and later that day the first-tier decision was made. The parties were advised of the first-tier decision on 29 June 2021. The Mother applied to the General Division of the Tribunal for a ‘second-tier review’ on 21 July 2021.  That application is the subject of this hearing.

   HEARING

10. The hearing was held on 15 November 2021 by telephone, as allowed by section 33A of the AdministrativeAppeals Tribunal Act 1975 (‘the AAT Act’) and owing to the current public health emergency. The Mother and the Father both gave evidence. The Registrar was represented by Mr Samuel Cummings of Sparke Helmore Lawyers. At the conclusion of the hearing, the Tribunal directed both the Mother and Father to provide further submissions in support of their contentions, after which the Tribunal would reserve its decision.

11. The Respondent lodged documents under section 37 of the AAT Act (‘TD’ documents), which were admitted as Exhibit R1.

12. The Father lodged submissions dated 20 October 2021 (Exhibit OP1).

13. The Respondent also lodged a Statement of Issues dated 17 August 2021 and a Statement of Facts, Issues and Contentions which was not dated but lodged on 5 October 2021.

14. The Mother provided further written submissions on 21 November 2021 and the Father on 28 November 2021. These written submissions were taken into account.

    THE LEGISLATIVE FRAMEWORK

15. The Child Support (Assessment) Act 1989 (‘the Assessment Act’) provides, at section 49:

    (1)       This section applies if:

    (d)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;

    …

    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

    (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.

16. Section 50 further provides:

    (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;

    …

    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

    (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.

17. Section 51 relates to an interim care percentage to be determined where action has been taken to ensure that a care arrangement in relation to a child is complied with. Neither the Mother nor the Father submitted that this section of Assessment Act is relevant here.

18. Therefore, reading sections 49 and 50 together, the task of the Tribunal (standing in the shoes of the Registrar) is to determine whether the Mother and the Father of the three subject children had a pattern of care during the ‘care period’. If no pattern of care is found, the Tribunal must determine the percentage of care to be zero per cent, as set out in section 49.

19. If a pattern of care is found for either or both of the parents, the Tribunal must determine a percentage of care for the parent that corresponds with the actual care of the child or children that has occurred, or is likely to occur, during the care period, as set out in section 50.

20. The objection decision made on 2 March 2021 is a “care percentage decision” in the terms of section 4 of the Child Support (Registration and Collection) Act 1988 (‘the Registration Act’). The first-tier decision to set aside the objection decision and substitute its own decision was therefore a decision made under section 43(1) of the AAT Act and reviewable because of section 96A(b) of the Registration Act.

21. In this case, the Tribunal is being asked to make an assessment as to which parent had care of the subject children during a period which has already passed. The Respondent submitted that the correct approach in such a case is to determine what care actually occurred during the relevant care period. The Respondent handed up a decision of Senior Member Walsh in Re: F and LP [2015] AATA 321 (unpublished) (‘F and LP’) where she said, at [54]:

    Care decisions are generally predictive in nature, given the period to which they apply at the time they are made.  However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31.  In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time.

22. I note that the approach in L and FP was recently followed by Member Reitano in Re: SHQY andChild Support Registrar [2021] AATA 930 (‘SHQY’), where he said, at [45]-[46]:

    I am required to be satisfied about each responsible person’s pattern of care during such period (known as the ‘care period’) as I consider appropriate. Both sections refer to that satisfaction as being informed by what is known from the past or what is likely in the future: the words are retrospective in referring to the care that the responsible person, ‘has had’, or prospectively in referring to the care that the responsible person, ‘is likely to have’. In short, I am entitled in forming any satisfaction to have regard to the facts as they have unfolded or, alternatively, having regard to what is likely to happen.

    Of course, what has happened in the past may in many cases cast light on what is likely to happen in the future. But where the facts are established and known from the past and are capable of forming the foundation for a rationally based decision, a more soundly based approach is to only have regard to those facts which are known in applying both sections. That accords in the view I take with sound administrative practice so far as it places reliance upon known facts in circumstances where they can be found. In this case it is also reliable because the pattern of care appears to have existed over very many years.

23. I consider that the approach in L and FP, the logic of which was expanded upon in SHQY, is the preferable path to take when considering actual care during a care period which has passed. This is because the Tribunal is able to examine evidence before it of who actually was caring for the subject child or children over a particular period of time, rather than what was the prospective arrangement for care.  A ‘snapshot’ of what parties might plan to occur in regard to care of children can later be found to have been affected by many factors, including changes to school terms, work commitments and medical commitments. Some of these factors may reasonably be said to be within the control of parents sharing care.  Some of the factors may reasonably said to be out of such control.

    THE POLICY

24. The Child Support Guide (‘the Guide’) is a publication which provides guidance to, and is used by, the Registrar and her officers in making decisions about care percentages.  Consistent with the established practice, the relevant contents of the Guide will be taken into account by the Tribunal. This is because consistency in the application of policy is desirable, unless there are cogent reasons not to do so in a particular case, for instance that the policy is inimical to the legislation or that applying it would have a result that is manifestly unjust or ridiculous. The observations Brennan J made, when President of this Tribunal, in Re: Drake and Minster for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634, underpin this established practice in the approach the Tribunal takes.

25. The concept of ‘care’ is not defined in either the Assessment Act or the Registration Act. The Federal Court has held that the level of care provided by a person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances (see Wigney J in P v Child Support Registrar [2013] FCA 1312, at [107]).

26. Paragraph 2.2.1 of the Guide provides guidance in determining whether care exists:

    Determining whether care exists

    An object of the [Assessment Act] is ‘that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings’ (section 4(2)(c)).  The [Assessment Act] does not define the term ‘ongoing daily care’, however the Registrar will take into account a number of factors in determining whether a person cares for a child.

    In most cases, it will be relatively clear whether and to what extent a person is caring for a child.  However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

    ·To what extent the person has control of the child, including having overall responsibility for the child and making;

    o   Major decisions relating to who the child spends time with and the child’s health, education, discipline, recreational and/or social activities, and

    o   Arrangements for others to meet the needs of the child (delegated care).

    ·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

    ·To what extent the person pays for the costs of meeting the needs of the child.

    ·To what extent the person otherwise provides financial support for the child.

    ·To what extent the child provides for his or her own needs or has those needs met from another source.

    ·To what extent the child is financially independent or financially supported from another source.

27. The Guide goes on to say:

    Percentage of care

    The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child…. Care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period (Assessment Act section 54A).

28. The Respondent pointed out that a “care period” does not have any fixed duration but that the Guide provides that “a care period is generally a 12-month period from the day on which the actual care of the child began or changed”, so in this case the care period determined by the objection officer commenced on 18 September 2018, which was when the Court made consent orders following the divorce of BYKM from RVZT.

29. However, “care period” and “child support period” are different. Section 77 of the Assessment Act provides that the effect of an administrative assessment is that child support is payable for each day in the child support period. In this case, the child support period started on 24 February 2020, which is the date the Mother made her fresh application for an administrative assessment of child support.

    THE CONTENTIONS

30. The Tribunal told the parties that the question is what percentages of care apply for the three subject children in the child support assessment from 24 February 2020.

    The Mother

31. The Mother contended in her oral evidence that the Tribunal in its first-tier decision erred in its calculation, because it based its calculation of care by the Father for 39 x 4 nights, rather than five nights per fortnight.

32. After the hearing, a selection of text messages between the Mother and the Father was provided about arrangements to pick up and drop off the children. This selection included some examples where, by agreement between the parents, the children had stayed additional nights with the Father. For instance, on Friday 23 July 2021, by agreement the children stayed with their Father until the afternoon of Sunday 25 July 2021. On 5 August 2021, the Father advised the Mother of a state lockdown that was occurring (owing to the pandemic) and they agreed on that occasion he should have the children until 8 August 2021.

    The Father

33. The Father contended that he was to have the children for an extra two weeks to make up time previously missed, but he declined to have them owing to work commitments. The Father said that he had submitted documents of nights he had actual care of the subject children and that it has been “consistent for the last three years and has been increasing.”

34. The Father said that he agreed that the Member at first tier erred in calculating the number of days he had care of the children each fortnight, submitting that it is four days, not five days. However, he submitted that the Member also miscalculated the school term duration which he submitted should have been 36 weeks, not 39 weeks. 

1. The Father made submissions with his own calculations of nights the children had been in his care, submitting that in 2019 he had them for 130 nights and in 2020 he had them for 150 nights.

2. The Father submitted that the correct calculation for his percentage of care should be “38 per cent or increased to 41 per cent.”

   The Registrar

3. Mr Cummings, for the Registrar, emphasised that the Respondent did not take a position on whether or not the first-tier decision was correct, because it was a matter for the Tribunal to make a decision based on an assessment of the facts before it.  He did, however, suggest to the Tribunal that, on the face, it would appear that the Member at first tier made a calculation error in terms of the Father’s days of actual care of the subject children.

   CONSIDERATION

4. The Tribunal considers that the question to be determined is relatively confined. There was general agreement between the Mother and the Father about the pattern of care being consistent with the 2018 Court Order but there were disagreements about some of the care of the children over school holiday periods.

5. The Tribunal notes that the 2018 Court Order was by consent and was at TD pp 8-9. The Mother subsequently provided the cover page of another Court Order apparently made in 2020 but not the complete document, so the Tribunal has not given it any weight.

6. In summary, the Court in 2018 ordered that the three children would reside with their Mother.  The Court further ordered that the two older children, K and N would be in the care of their Father from after school on Wednesday until 9 am on Friday in the first week of a two-week cycle. K and N would be in the care of their Father from after school on Friday until 5 pm on Sunday in the second week of the two-week cycle.

7. The youngest child M was to have different arrangements until he attained the age of two.  He turned two in 2019. After attaining the age of two, M was to have the same care arrangements as the two older children.

8. In her application for this review, the Mother relevantly wrote:

   Our care percentage was calculated incorrectly based off [sic] information [the Father]  had “told” them, and not on the facts of our parenting order and the correct number of nights a fortnight he has them.  The calculation was based on [the Father] having our children 5 nights a fortnight when in fact he only has them 4 nights a fortnight.

9. This characterisation by the Mother may be a little unfair because she participated in the hearing at first tier as did the Father and had the opportunity, if she felt that the Father had incorrectly stated the nights that he had care of the children, or if she was concerned that the Member might have misunderstood, to speak up at the time.

10. In any event, I am satisfied, especially on the basis that the evidence at this hearing from both the Mother and the Father was that the 2018 Court Order was generally being followed, that there was an error in the calculation made at first tier (at paragraph 18 of that decision).

11. There were other contentions about some changes being made to school holidays, given that the two older children attend a Montessori school and the Mother said the Court had based the school holiday calculation on state school holidays in Victoria. On my assessment, these are not significant in terms of actual care. I also note that the Mother told the Member at first tier that the school K and N attended was to align its teaching terms with those of the state system in 2021. The Father said that he was unaware of that impending change. 

12. The Member at first tier was satisfied that the two older children were at school for 38 weeks in a year and had 14 weeks school holidays. She was further satisfied that the Father had a pattern of one week less care during school holidays, meaning that the Father had the children full-time for six weeks of the school holidays, or 42 days. On the quality of the evidence before me, I see no reason to disturb that calculation.

13. The Father provided a list of dates which he said he had the children overnight in 2019 and 2020, but these are assertions without any independent proof. However, on the strength of the text message exchanges between the parents that were provided after the hearing, there is evidence before me that satisfies me that, by agreement between the parents, the children have been in the actual care of the Father on more days than the 2018 Court Order set, at least in 2020 and 2021.  The quality of the evidence is not robust, but it does all point in that direction.

14. The Guide relevantly states:

    In many circumstances, the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.

15. After careful consideration of the evidence before me, in particular the text message exchanges provided by the Mother (between her and the Father) in her post-hearing submission dated 21 October 2021, I am satisfied that there has been a departure from the 2018 Court Order which is more than the ‘minor departure’ contemplated in the Guide in this extract and contributes to my conclusion that there has been a slight change in the pattern of care. 

16. Overall, I consider that a fair assessment of additional days would be to determine that the three children were in the actual care of the Father for an additional seven days, annually, in the period since 24 February 2020. That is not a perfect calculation but I consider it is a reasonable reflection of the arrangements worked out between the parents. It would seem to me from the flavour of most of the text messages provided, that the parents were both endeavouring not to be rigid on occasions where the children wanted to stay in the care of the Father for an additional night, or where the Mother had agreed to retain care of the children when the Father had to attend to other personal matters, such as his surgery in early 2020.

    Actual care percentage in subject period - finding

17. With this amendment, I find that the preferable decision is that the actual care of the Father for all three children was 127 nights in one year of a cycle and 128 nights in the second year of a cycle.

18. Translating this finding into percentages, I adopt the higher figure in terms of assessing the annual overall percentage as 35.06 per cent of care to the Father. Section 54D of the Assessment Act provides that where a percentage of care is less than 50 per cent, it should be rounded down. Therefore, I find that the Father’s annual percentage of care of the three children in the period is 35 per cent.

19. If an established change has become an accepted pattern in the actual care percentages between the parents, that should be the subject of a fresh application to the Registrar for a new determination. My task here is, on the best evidence I can gather, to make an assessment of what I believe has been the actual care of the subject children since

    
    

    24 February 2020. 

20. Sight should not be lost that the purpose of the legislative scheme for Child Support is to reflect, imperfectly as it may be, the financial costs that each parent incurs in terms of caring for their children. This case was not one where there was a tussle about who was providing what in terms of the needs of the three children. The issue was about the number of nights the three had actually spent with each parent. The legislative scheme is not, and should not be, about disputes between adults focussed on ‘one off’ changes in pick up and drop off arrangements, which naturally occur from time to time in order to accommodate unexpected events in the daily lives of parents. An example in this particular case is the lockdown caused by public health orders. What section 50 of the Assessment Act is concerned with in setting a percentage of care, is a pattern of care.

21. The consequence of the Tribunal’s findings is that the actual care for all three children in the period from 24 February 2020 is as follows: they were in the care of their Mother for 65 per cent of the time, and in the care of their Father for 35 per cent of the time. The decision under review will therefore be set aside and a new decision substituted.

    DECISION

22. The decision of the Social Services and Child Support Division of the Tribunal dated 21 June 2021 is set aside. In its place, the Tribunal substitutes a decision that the percentage of care for the three subject children of the parents in this matter from 24 February 2020 is: 65 per cent care by the Mother, and 35 per cent care by the Father.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

..................[sgd]......................................................

Associate

Dated: 25 January 2022

Date of hearing:	15 November 2021
Applicant:	Self-Represented
Solicitor for the Respondent:	Mr Samuel Cummings
Solicitors for the Respondent:	Sparke Helmore Lawyers
Other Party:	Self-Represented