CGBF and Child Support Registrar (Child support second review)

CGBF and Child Support Registrar (Child support second review) [2019] AATA 5539 (20 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/2295
Re:CGBF
APPLICANT

AndChild Support Registrar
RESPONDENT

AndQVJW
OTHER PARTY

DECISION
Tribunal:Member I Fletcher
Date:20 December 2019
Place:Perth

The Reviewable Decision dated 27 March 2019 is affirmed.
.........................[sgd]...............................................
Member I Fletcher
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 (Cth).

CATCHWORDS
CHILD SUPPORT – Percentage of care provided to children by each parent – decision is affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) – sub-div C of div 4 pt 5
Child Support (Registration and Collection) Act 1988 (Cth) – s 87AA, s 87AA(1),
s 87AA(2)
CASES
Parent A and Child Support Registrar [2013] AATA 562
Polec & Staker [2011] FMCAfam 959
P v Child Support Registrar (2013) 138 ALD 563
P v Child Support Registrar [2014] FCAFC 98
Re Drake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide, Version 1.258, released 11 November 2019
REASONS FOR DECISION
Member I Fletcher
20 December 2019
DECISION UNDER REVIEW

The decision under review is the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1) (the Reviewable Decision) on 27 March 2019 which set aside the decision of an objections officer. The AAT1 found that from 12 February 2018, the Applicant (CGBF) had 32% care of his three sons (the children) and the mother of the children, the other party (QVJW) had 68% care, with effect for child support purposes from 28 May 2018.
Given the nature of the current proceeding, which is essentially a dispute between the parents as to the care provided to the children during the relevant period, the Registrar considered that his role should be confined to assisting the Tribunal in identifying and applying the relevant legislative provisions to the evidence. Accordingly, the Registrar did not advance a position as to the findings of fact the Tribunal is called upon to make.
MATERIALS BEFORE THE TRIBUNAL
At the Hearing, the Tribunal received the following documents into evidence:
·
a copy of the Respondent’s Statement of Facts Issues and Contentions, dated

30 October 2019 (Exhibit R1);
·a copy of the Hearing Certificate, dated 12 September 2019 (Exhibit R2);
·the “T Documents” (T1 – T23, pp 1 – 238) (Exhibit R3); and
·a copy of a statement by QVJW, dated 29 August 2019 (Exhibit OP1).
ISSUES
The issue for consideration by the Tribunal is what percentage of care CGBF and the QVJW each had of the children from 12 February 2018.
BACKGROUND
The application was heard by the Administrative Appeals Tribunal (the Tribunal) on

28 November 2019 (the Hearing).
CGBF and the QVJW are the separated parents of the children.
A child support case was registered on 12 February 2018.
On 16 March 2018 the Registrar decided that, from 12 February 2018, that QVJW had 86% care of the children and that CGBF had 14% care (T4).
On 4 October 2018 CGBF objected to the decision dated 16 March 2018 on the grounds that he had ‘about 70%’ care (T7).
In a decision dated 12 December 2018, an objections officer allowed the objection in part, finding that from 12 February 2018 QVJW had 52% care of the children and CGBF had 48% care (the Objection Decision) (T13).
On 18 January 2019 CGBF lodged an application for first review with the AAT1 (T18). QVJW stated that CGBF “has provided false and incorrect information”, that she “was not able to provide all of the relevant information in the timeframe given”, and that she “disagreed” with the decision to allow the objection to be backdated.
In a decision dated 27 March 2019, the AAT1 (T2):
(a)set aside the decision under review and decided that from 12 February 2018, the Applicant provided 32% care and the Other Party provided 68% care; and
(b)set aside “the date of effect decision under review” such that the amended care percentage decision has effect from 28 May 2018 (the date the AAT1 decided the objection had been received).
On 29 April 2019 CGBF applied to the AAT2 for review of the AAT1 decision (T1).
CGBF and QVJW attended the hearing on their own behalf.
The Respondent, Mr Gary Khoo participated by teleconference on behalf of the Department of Human Services (the Department).
LEGISLATION AND POLICY
The legislation relevant to this application is contained in the Child Support(Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).
Section 49 of the Assessment Act 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) 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.
(Original Emphasis.)
Section 50 of the Assessment Act states:
50Determination 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.
Section 54A of the Assessment Act states:
Working out actual care, and extent of care, of a child
(1)The 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.
(2)The 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.
(3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4)This section does not limit section 50, 51, 53B or 54.
(Original Emphasis.)
Section 54B(1A) of the Assessment Act states:
Days to which the percentage of care applies if section 51 did not apply etc. in relation to a responsible person
…
(1A)The percentage of care applies to each day in a child support period on and from the application day until the determination is revoked, or the earlier determination ceases to be suspended, under Subdivision C of this Division.
…
Section s 87AA of the Collection Act states:
Date of effect of objections relating to care percentage decisions that are allowed
(1) If:
(a) a person lodges, under section 80A, an objection to a care percentage decision; and
(b)the objection is lodged more than 28 days or, if the person is a resident of a reciprocating jurisdiction, 90 days after notice of the care percentage decision was served; and
(c)the Registrar decides (the review decision), under section 87, to allow the objection in a way that has the effect of varying the determination to which the care percentage decision relates, or substituting a new determination;
the date of effect of the review decision is the day on which the person lodged the objection.
(2) If the Registrar is satisfied that there are special circumstances that prevented the person from lodging the objection within the period referred to in paragraph (1)(b), the Registrar may determine that subsection (1) applies as if:
(a)in a case where the person is a resident of a reciprocating jurisdiction—the reference to 90 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate; or
(b)otherwise—the reference to 28 days in that paragraph were a reference to such longer period as the Registrar determines to be appropriate.
…
There is also policy relevant to this application contained in the Guides to Social Policy Law: Child Support Guide (the Guide). The Guide should be taken into account unless there are cogent reasons not to do so (see ReDrake v Minister for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634).
CONSIDERATION
What was the percentage of care that each parent had, or was likely to have, when the case started on 12 February 2018?
Sections 49 and 50 of the Assessment Act set out when a determination of percentage of care must be made. In determining a percentage of care under ss 49 or 50, the Registrar is to be satisfied that the person has no pattern of care (per s 49 of the Assessment Act) or a pattern of care (per s 50 of the Assessment Act) that the Registrar considers to be appropriate having regard to all the circumstances: ss 49(1)(a) and 50(1)(a).
Where a percentage of care determination has been made under s 50 of the Assessment Act in respect of a particular care period, a new percentage of care determination cannot be made unless the existing percentage determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act.
Where a care determination is revoked, a new care determination will need to be made, and this requires the Tribunal to determine the respective percentages of care that each parent has of the children. The Tribunal must determine a care percentage “that corresponds with the actual care of the child that the [Tribunal] is satisfied that the responsible person has had, or is likely to have, during the care period”: sub-ss 49(3) and 50(3) of the Assessment Act.
Section 50 of the Assessment Act applies where a parent has a pattern of care for a child. Section 50 essentially requires, that where the Registrar is satisfied that a person has a pattern of care during a care period for a child in relation to whom an assessment is to be made, the Registrar must determine the responsible person’s percentage of care for the child during the care period, based on the actual care of the child that the responsible person has had, or is likely to have, during the care period.
Pattern of care
To make a determination of percentage of care in accordance with s 50 of the Assessment Act, it is first necessary for the Tribunal to decide whether there is a ‘pattern of care’: sub-s 50(1).
The Tribunal considered the meaning of the term ‘pattern of care’ in Parent A and Child Support Registrar [2013] AATA 562 and Member Webb said at [33]:
The phrase ‘pattern of care’ is not given any special meaning for the purposes of the AssessmentAct. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for the children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that minor departures from the normal care of the child will not constitute a change to the pattern of care.
Percentage of care
The Tribunal must determine the percentage of care that CGBF and QVJW had of the children from 12 February 2018, and this must correspond to actual care.
Section 54A of the Assessment Act provides guidance on working out the actual care and extent of care of a child. Section 54A of the Assessment Act states:
54A Working out actual care, and extent of care, of a child
(1) The 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.
(2) The 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.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4) This section does not limit section 50, 51, 52 or 54.
(Original Emphasis.)
The Registrar contends that an approach based on section 54A is open to the Tribunal in the present case. However, for completeness, the Child Support Registrar notes that the courts have held that the concept of ‘care’ is broader than simply the provision of accommodation on any given night, and that the percentage of care does not necessarily need to be determined by reference to a time based calculation: see Polec & Staker [2011] FMCAfam 959, at [56]; Parent A and Child Support Registrar [2013] AATA 562, at [107]; and P v Child Support Registrar [2014] FCAFC 98, at [47].
Application of a determination to a care period
Section 54B of the Assessment Act effectively provides that, if a determination is made in relation to percentage of care, the determination will apply to each day in the care period, unless the determination is revoked.
A ‘care period’ does not have any fixed duration. The Guide provides at 2.2.1 that “a care period is generally a 12 month period from the day on which the actual care of a child changed.”
The Registrar contends that it is appropriate for the standard 12 month care period to apply in the present case. Accordingly, the care period that is relevant to the decision under review is the period of 12 months from 12 February 2018. As this care period is now in the past, the Tribunal is required to determine the actual care that occurred during the relevant period.
The Guide at 2.2.1 also provides the following guidance on determining whether care exists:
Determining whether care exists
An object of the CSA 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 CSA 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:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements 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.
Further, in Polec & Staker & Anor [2011] FMCAfam 959, the Federal Magistrate Hughes in the Federal Magistrate’s Court (now the Federal Circuit Court) at [56] stated (Polec):
in determining whether and to what extent a person has care of a child for the purpose of the Child Support (assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it necessary to consider the following:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?

In the 2013 Federal Court decision of P v Child Support Registrar (2013) 138 ALD 563 Wigney J made the following comment at [107] in respect of Polec:
In my opinion, however, [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.
The Tribunal will be required to reach findings of fact on the percentage of care in the present case on the basis of the evidence before it.
Percentage of care from 12 February 2018
Both parties agree that QVJW moved out of the family home with the children on 10 February 2018, and that they had made a verbal agreement about care from that date. However they disagree as to the substance of that agreement (AAT1 decision: T2/5).
CGBF has provided the following evidence in support of his position:
(a)email dated 5 October 2018 enclosing evidence in support of objection (T7);
(b)email dated 14 October 2018 enclosing Change of Assessment (T8); and
(c)submission to this Tribunal, by email dated 2 August 2019.
QVJW has provided the following evidence in support of her position:
(a)emails dated 7 December 2018 enclosing evidence in response to objection (T12);
(b)application for First Review dated 18 January 2019, with attachments (T18); and
(c) email submission to this Tribunal, dated 29 August 2019.
The Child Support Agency made file notes of conversations with both parties which are contained at T22.
CGBF prepared a care diary from 12 February 2018 (T7). QVJW made a statutory declaration dated 6 March 2019. QVJW wrote that from 10 February 2018 a diary of the dates and times was kept when QVJW and CGBF had care of the children. Both QVJW and CGBF dispute the accuracy of the days each had care of the children. However, for the months of February and March 2018, there was a general acceptance that this provided a pattern of care from 12 February 2018 that was likely to continue. There was strong disagreement between the parties as to the accuracy of the record of care beyond the months of February and March 2018.
QVJW said it had been agreed that CGBF would care for the children every second weekend, namely two nights out of fourteen. CGBF’s position was that they agreed from the point of separation that they would each provide care on a week about basis.
CGBF changed work arrangements and worked shifts after the couple separated. This was done to be able to care for the children on alternate weeks.
QVJW agreed that CGBF assisted by picking up the children from school and looking after them into the evening. There were also extra nights over and above every second weekend when he cared for them. This is reflected in CGBF’s care diary (T7).
During the period 12 to 25 February 2018, CGBF cared for the children for four days and QVJW had them for eight days. Likewise, a similar pattern of care occurred during the period from 4 March to 18 March 2018. This was with the exception of

9 March 2018 when one of the children was in QVJW’s care.
During the twenty eight day period, it was observed that there were nine occasions when CGBF collected the children from school and dropped them off at QVJW’s home in the evening, most being after 8pm. The Tribunal has concluded that the father provided the equivalent of nine nights out of twenty eight which is 32%.
The period from 19 to 25 March was abnormal in that the children were involved in a national sporting event. QVJW took time off work to be with the children, as did CGBF. CGBF’s care diary (T7) shows the children stayed with QVJW for three nights and CGBF for four nights.
The Tribunal acknowledges other evidence provided by both parties, such as a written character references in support of CGBF and a letter from a school principal. However, none of this evidence deals with the key issue which is under review, namely what would be the percentage of care the Applicant and the Other Party each have of the children from 12 February 2018.
The Tribunal finds based on the relevant evidence provided, that QWJW provided 68% care and CGBF 32%.
Date of effect
Section 87AA(1) of the Collection Act states that where an objection is not lodged within 28 days of a care percentage decision, and the objection is allowed in a way that has the effect of varying the care percentage decision or substituting a new care percentage determination, the objection decision will have effect from the date the objection was lodged.
However in accordance with s 87AA(2) of the Collection Act, the Registrar may determine that the period of 28 days be extended to such longer period as the Registrar determines appropriate if the Registrar is satisfied that special circumstances prevented the objection being lodged within the stipulated timeframe. In other words, the Registrar may determine that the objection decision has effect as if the objection were lodged within 28 days if satisfied that special circumstances prevented the objection being lodged in time.
In the present case, the objections officer found that there were special circumstances that prevented CGBF from lodging an objection earlier. In accordance with

s 87AA(2) of the Collection Act, the objections officer therefore determined that the objection decision had effect from 12 February 2018 (T13/81).
The AAT1 disagreed, finding that there were no special circumstances that prevented the CGBF from lodging an objection earlier. The AAT1 was satisfied, however, that CGBF lodged his objection on 28 May 2018, and decided that the new care percentage should have effect from that date in accordance with s87AA(1) of the Collection Act.
This Tribunal does not consider there are special circumstances that prevented CGBF from lodging an objection within 28 days for the purposes of s 87AA(2) of the Collection Act. The Tribunal accepts that CGBF lodged an objection on 28 May 2018 and that the new care percentage is effective from that date in accordance with s 87AA(1) of the Collection Act.
DECISION
The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 27 March 2019 is affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member I Fletcher

.............................[sgd]...........................................
Associate
Dated: 20 December 2019

Date(s) of hearing: 28 November 2019

Applicant: In person

Counsel for the Respondent: Gary Khoo – by telephone

Solicitors for the Respondent: Department of Human Services

Other Party: In person

[2019] AATA 5539

20 December 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	28 November 2019
Applicant:	In person
Counsel for the Respondent:	Gary Khoo – by telephone
Solicitors for the Respondent:	Department of Human Services
Other Party:	In person