CGJK and Child Support Registrar (Child support second review)
[2024] AATA 2725
•5 August 2024
CGJK and Child Support Registrar (Child support second review) [2024] AATA 2725 (5 August 2024)
Division:GENERAL DIVISION
File Number(s): 2023/5646
2023/5647
Re:CGJK
APPLICANT
AndChild Support Registrar
RESPONDENT
AndLTQV
OTHER PARTY
DECISION
Tribunal:Ms A E Burke AO, Member
Date:5 August 2024
Place:Melbourne
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions under review and makes decisions in substitution that:
·7 February 2022 until 6 May 2022 that CGJK had 14% care of child A whilst LTQV had 86%.
·12 December 2021 until 19 March 2022 that CGJK had 100% care for child S and LTQV had 0%.
·19 March 2022 until 5 May 2022 that CGJK had 60% care for child S and LTQV had 40%.
...................................[sgd].....................................
Ms A E Burke AO, Member
Names used in all child support 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 sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – review of care percentage determinations – whether there has been a change in the pattern of care – whether existing determination of care should be revoked – actual care – extent of care – inconsistent evidence – conflicting evidence – when actual care changed – whether special circumstances existed that prevented Father lodging objection – decisions under review set aside and new decisions substituted for child S and child A
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)Cases
HMXZ and Child Support Registrar (Child Support Second Review) [2021] AATA 520
Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562Polec & Staker & Anor (2011) 253 FLR 339
Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Laws, version 4.69, 6 February 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
5 August 2024
The Applicant, CGJK, is seeking a second-tier review by the General Division of the Administrative Appeals Tribunal (AAT2) of two decisions by the Social Security and Child Support Division of this Tribunal (AAT1) of 11 July 2023. The AAT1 affirmed both decisions under review.
The application was heard on 8-9 July 2024 by telephone. CGJK and LTQV (the Other Party) were both self-represented. Ms Kathryn Lieschke, Seconded Lawyer at Services Australia, appeared for the Respondent, the Child Support Registrar (CSR). The Tribunal held the one hearing to determine the two separate matters under review.
BACKGROUD
The Applicant, CGJK, and the Other Party, LTQV are the separated parents of four children born in 2000, 2002, 2005 and 2009 respectively. The matter before the Tribunal is in respect of the two youngest children, who the Tribunal will refer to as child A and child S. Matter 2023/5646 relates to the care of A and matter 2023/5647 relates to the care of S.
On 8 April 2015, CGJK and LTQV by consent entered into final parenting orders for the children, which provided that the children live with the father (LTQV) and listed the time periods the children would spend with the mother (CGJK). The CSR recorded these consent orders as 79% care to LTQV and 21% care to CGJK.
Child A
A Court ordered reported dated 13 January 2022 relating to the care, welfare and development of A and S was provided by a Court child expert/family consultant. In respect of A, the report noted that both CGJK and LTQV agreed that the current parenting arrangement for A was working well and recommended that A continue living with LTQV and spend time with CGJK as frequently as was possible.
On 29 March 2022, CSR determined:
We are writing to advise you that we recently received new information about the care arrangements for [A].
What this means for you
We have decided that the new information does not require a change in your child support assessment at this time.
The Complex care office notes of 29 March 2022 recorded:
[LTQV] advised he had 93% care from 16/07/2021 and [CGJK] disagreed, advising that she had missed one event. As the parents have made conflicting verbal statements evidence was requested from both parents. [LTQV] has not supplied evidence to substantiate there was an increase in his care.
[CGJK] has stated that it would be reasonable to reduce [LTQV’s] level of care by 36% as the child now stays at her boyfriend’s parents’ place 2-3 nights per week.
A number of factors to determine if care exists, while overnight care is one factor we also consider who is responsible for major decisions relating to [A’s] health and education as well as who is meeting [A’s] needs by providing financial support, accommodation, clothing, food, supervision and transport etc.
I am not satisfied from the evidence that the parents are each not providing the current care recorded or that [A’s] ongoing care is being met by a third party. Therefore, at this time I am not satisfied there has been a change to either parents care and am making a decision to reject this care change.
The effects of the decision
As a result of rejecting the customer’s claim for a new care percentage decision, the customer roles and assessment amount will not change.
References and approvals Legislative and policy references:
- At this time the CSP cannot be satisfied there has been any variation to the current care determination in place so I am unable to revoke the current care determination under Sections 54F, 54G or 54H of the Child Support (Assessment) Act 1989 which also results in the CSP not being able to make any new determination of actual care under Sections 49-50 of the Child Support (Assessment) Act 1989.
On 21 June 2022, LTQV objected to CSR’s determination of percentage care for A; as he believed:
I am writing to advise a change of care with [A]. I foreshadowed this change in January & February but did not have supporting evidence to support the change of care till now. Please refer to the most recent Child Impact Report prepared by the Federal Family Court Child Expert … I am able to share this report as CSA is a federal government agency and the law allows this. Specifically I would refer you to Section 5. Of the child impact report that addresses [A’s] care and wishes. [A] specifically states she wants the “current arrangements to remain...” and she specifically describes these arrangements as “one weekend per month...” The Child Impact Report is prepared by an independent officer of the court to document the children’s wishes. In this instance, [A] is specifically describing what had been to case since November 2021. [A] and [S] where scheduled to spend 2 weekends with their mother that month being 12-13th and 26-27th, however [A] only attended the first weekend due to work commitments. I would suggest The 26th November 2021 would be the date care changed. Since then, [A] has continued to spend 2 nights per month with her mother. She is free to see her mother anytime and I have encouraged her to keep the order, but she has employment now and the current plan is her wish and in her interest. The order is no longer being followed in respect to [A] and I would like the care split to reflect this please.
On 21 June 2021, LTQV notified the CSR of a change in care arrangement for A which had occurred on 26 November 2021. On 11 August 2022, the CSR record notes the reason for decision:
Date of Event: 26/11/2021
Date of Notification: 21/06/2022
Care decision for [LTQV] : 335 nights per year (92%).
Care decision for [CGJK] : 30 nights per year (8%).
Care recorded for [LTQV] prior to decision: 287 nights per year (79%).
Care recorded for [CGJK] prior to decision: 78 nights per year (21%).
…
Discussions with the notifying carer:
- [LTQV] advised care change for [A] advising she is spending 2 night a month with her mother and this is supported by recent Child Impact Report prepared by the Federal Family Court Child Expert…
Discussions with the other party:
- [CGJK] advised that she disagrees with Care lodged by [LTQV] for [A].
[CGJK] advised that she has 78 night of care and [LTQV] is having 287 nights since 26/11/2021
…
Details of evidence supplied other than parental statements, how I have interpreted the evidence, and how the evidence has been applied to the decision:
- [LTQV] provided the following evidence
Self statement making reference to Child Impact Report and advising “I would suggest The 26th November 2021 would be the date care changed. Since then, [A] has continued to spend 2 nights per month with her mother"
Third party statement advising since the start of 2022 [A] mostly residing with her father
[CGJK] provided the following evidence
Copy of court orders dated 8/4/15
Copy of binding agreement from MAY 2015
Self statement advising her care for [A] had increased and provided a calendar showing care as 3 nights a ft with approx. half school holidays
Text messages between herself and [A] which I am unable to consider
Text messages between [LTQV] and [CGJK] from Oct to Nov
Based on the evidence provided I am satisfied there has been a change in pattern of care for [A] from 26/11/2021 this is based on third party statement [CGJK] failed to provide independent evidence of her care of [A].
On 11 September 2022, the CSR advised LTQV of an update of his care percentage for A based on recent information it had received:
We were told on 21 June 2022 that the care of [A] changed on 26 November 2021. Our records now show you have:
92% care of [A] and [CGJK] has 8% care of [A] from 26 November 2021.
When we are told about a change more than 28 days after it happened, we must use this information in the assessment in different ways. We use the decreased care percentage from the date the care changed and the increased care percentage from the date we were told. This means that your care percentage applied from 21 June 2022 and [LTQV's] care percentage applied from 26 November 2021.
On 12 January 2023, the CSR advised they had disallowed the recent objection of the care arrangement of A as 92% to LTQV and 8% to CGJK from 26 November 2021. On 1 February 2023, CGJK applied for a review of this decision to the AAT1.
On 14 February 2023, the CSR advised they had received new information about the care arrangement of A and their records now showed 100% care to CGJK and 0% to LTQV from 17 January 2023.
On 11 July 2023, AAT1 affirmed the decision under review. The Presiding Member at AAT1 decided:
On balance the tribunal accepted the information contained in the Child Impact Report and the text messages between [CGJK] and [LTQV]. The Child Impact Report states that [CGJK] was having care of [A] two nights a month. The tribunal accepted [LTQV] evidence that [A] was staying with [CGJK] two nights a month from 26 November 2021. While the care of [A] may have increased for [CGJK] around late May early June 2022 as indicated by the text messages from [CGJK], this is not the decision the tribunal is reviewing. The decision the tribunal is reviewing is the decision of Child Support which applied from 26 November 2021. If changes to the care of [A] occurred after May 2022, this is not relevant to the care change the tribunal is reviewing.
Section 54F of the Act means that if the parent with the increased care notifies of the increased care more than 28 days after their care increased, then the revocation determination applies from the day before they notified of the change. [LTQV] notified of the change of care on 21 June 2022. This means the revocation of [LTQV] care of 79% is revoked from 20 June 2022. In relation to [CGJK] as she has reduced care of [A] her care is reduced from the day before the change of care day, in this instance the change of care for [A] occurred on 26 November 2021; [CGJK’s] 21% care is revoked from 25 November 2021.
A new care determination is made in accordance with section 50 of the Act in which the care of [A] is two nights a month to [CGJK] and the remaining time to [LTQV]. This means from 26 November 2021 [A] is in [LTQV’s] 92% care and [CGJK’s] 8% care from 26 November 2021.
On 18 July 2023, CGJK requested a review of the AAT1 decision by AAT2 on the basis that:
The decision to reduce my care of [A] from the 26th November 2021 to 8% is categorically wrong, the law has not been applied correctly within CSA or the tribunals decisions and evidence I have provided was not taken in to account and is missing. There is a Binding Child Support agreement in place that has been registered with CSA for my care at 21% where ‘both parties agree that for the purposes of calculating child support’ the children are in my care 78 nights per year. There has been no decrease to the number of nights within this agreement or substantial change to the care in the orders of 8 April 2015. This legally binding document was not considered as part of the tribunals review and should be taken in to account.
The tribunal states that the decision they are reviewing is ‘if a change of care occurred on the 26th November 21’. They also acknowledge that care may have increased in May or June 2022, however, this was not the decision the tribunal is reviewing. CSA accepted a change in care on 11th September 2022, they were notified on 21st June 2022 and backdated a change in care almost 12 months before this from November 21, effectively reducing my time to ‘Below regular care’. In speaking with CSA complaints department, they were surprised to see that a change in care had been made retrospectively, almost 12 months prior and that it took them until January 2023 to finalise the change and advised I should commence legal proceedings. I am applying for a second review in the hope that you are able to review all evidence and apply the law correctly.
In short, there is no evidence to support a claim that care changed in November 21 however, there is evidence showing I had regular and ongoing care of [A] for this period in accordance with the Binding Child Support Agreement.
I put in a change of care for [A] in June 2022 and September 2022, both of these were cancelled by CSA and I was advised on several occasions I could not submit any change in care as the care change was already being reviewed. It took CSA over 12 months to make a care determination for this case Nov 21 – Jan 23. CSA failed to act in a timely and efficient manner, outside of their required review period which resulted in a substantial financial loss to me as a result of incorrectly applying the law and not taking all evidence in to account.
The tribunal has made a decision that accepts the text messages between [LTQV] and I which show a consistent pattern of care however, did not overturn the decision. They also accept evidence provided in the Child Impact Report however, this was not written until April 2022 so cannot be used as evidence to change care in November 21 and the statement they rely on is vague, noting [A] wants to keep current care arrangements which can be perceived as the care that had been in place since 2015, supporting my claim that there was no change in November 21.
The care period is such a period the Registrar considers to be appropriate having regard to all the circumstances (subparagraph 50(1)(b)(ii) of the Act). Chapter 2.2.1 of the Guide, provides that a care period is generally a 12-month period from the day on which the care of a child began or changed, and the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. As I will provide below, I have provided an overwhelming amount of evidence to support my care was intended to remain at 78 nights per year for the 12 month period however, the tribunal has not considered this evidence and has made a change to this care with no evidence from the other party supporting an increase in care in November 21. My evidence demonstrates a consistent level of care for the 12-month period, in fact in January 2023 [A] came to live with me 100% of the time and has not returned to her father because she knows he has lied about the care that occurred in 2022. Whilst I acknowledge there may have been minor departures where we swapped some weekends around as per the court orders of 8 April 2015 i.e. instead of having [A] for the second and third weekend in March, one of the weekends was swapped to align with every second weekend or another example, where I did two weekends in June, where I was not meant to have any care at all until the school holidays (end of June) so this was in addition to my 12 days school holiday however, it would not constitute a change to the pattern of care.
The orders of 8 April 2015 stipulate my time as an average of 6-7 nights a month including school holiday care equating to 78 nights in total. The only change that occurred to the pattern of care was that my other daughter [S] came to live with me on the 12th December 2021, fulltime. To ensure the girls saw each other regularly, [LTQV] and I agreed in January 2022, after the normal holidays care in Dec 21 and Jan 22 that we would move some weekends around to allow this to happen in addition to maintaining the usual holiday care. The only care that was missed for this time was due to COVID when [A] had to isolate at the end of Jan 2022 which was out of my control and would not constitute a change in care pattern. I provided evidence of [A] being in isolation during my time within the Orders and text evidence of the agreement to move to every second weekend after the hearing which the tribunal had asked me to share and was not reviewed by the tribunal and no response was received from [LTQV] on the additional key piece of evidence.
There is a consistent bias towards [LTQV] and incorrect application of the law where CSA has changed care with no evidence provided by him supporting a substantial increase of care in November 2021. The only evidence he has produced was an email from his ‘partner’ xx that he started seeing around March 2022, who did not meet the children until later that year or spend regular time with them until the end of 2022. The partner has her own children and is with them the majority of the time so has no idea what is happening at [LTQV’s] house or mine. In addition, this person was out of the country for almost 6 weeks at the time she sent an email (that was prepared for her by [LTQV]) in August 2022. The email was a very vague statement and not enough to draw any real conclusions about a date care had changed or a pattern of care changing, considering she did not know [LTQV] until almost 6 months after the apparent change in care which he claimed happened in November 2021, the tribunal cannot determine a change of care pattern due to a vague statement or a date of change in care based on this. This should be discounted as it is not relevant.
Paragraph 17 of the tribunal’s decision shows a bias when discounting the Statutory Declaration from my wife of 10 years, which does not acknowledge the relevance of this person, who is a step mother to the children and has lived with the children for 10 years only calls her by her name Ms xx xx. My wife is a much more reliable source than a girlfriend who has not known the children for more than a few months, does not live with them and who was out of the country. The Statutory Declaration provided by my wife was provided as additional evidence as part of the objections process and is very clear with the information about a regular care pattern with exact dates which was also consistent with text messages to [LTQV] but discounted by the tribunal not recognising my same-sex relationship and stating the statutory declaration does not align with text messages between [CGJK] and [LTQV] about [A’s] care for the period in dispute which is incorrect as the statutory declaration supports the text messages and was part of the objection to change care in Nov 21. In addition to a further email from [LTQV’s] partner who had by this stage actually spent some time with the children and could see for herself the regularity of care I provided, sent an email to me about hers and [LTQV’s] ‘child free weekends’ supporting my care every second weekend. I provided this as evidence however, the tribunal did not take this into account and dismissed this. The Statutory Declaration, a legal document from a credible source, text messages between the two parents plus an email from [LTQV’s] girlfriend all showing a consistent message about my care arrangements with dates etc and it was all discounted. Under the Guide, all circumstances should be considered which it clearly has not. In addition to the law not being applied correctly, it shows a bias towards [LTQV] which looks as a result of my sexual preference.
In addition, my wife provided two Statutory Declaration one at the end of Jan 22 and one in September as part of the objections process however, the tribunal did not consider the first one and was missing as evidence. These both need to be considered in the context of the care arrangements and when considering all of the evidence provided to ensure the Registrar is appropriately applying the law in accordance with the Guide.
There is absolutely no supporting evidence provided by [LTQV] or referred to by the tribunal where the care has changed from the 26th November 2021 therefore the law has been applied incorrectly under Section 54F of the Act. The only evidence provided by [LTQV] was contained within a Child Impact Report, of which was stipulated by the court to be a confidential document and not be shared without permission, which was not sought by [LTQV]. It, however, did not provide a date that care was alleged to have changed. This report was written in late April 2022 and is too broad to draw any real conclusion on a change of care or a date that care changed. The statement is vague at best and is a statement that was apparently made by a child which I have been told cannot be considered as evidence. The only relevance is that my care for [A] has remained consistent with weekends and school holidays since 2015, in line with the binding child support agreement and substantial evidence provided. Section 13 of the Tribunals response states [A] clearly stated that she wants the current parenting arrangements to remain, where she lives with her father and spends time with her mother one weekend per month and any other time that works within her schedule of school, part-time work and football commitments. [A] stated she would also take into account spending time with [S] at either her mother’s or father’s home, this is vague as it is shows that care of [A] was not just limited to one weekend a month but to ‘other times’ and around the care of [S] which was every second weekend with her mother. “Current parenting arrangements” could be interpreted as the care arrangements that had existed since April 2015. As stated earlier this statement is not clear as to the actual care that was taking place, it does not prove that supports [LTQV’s] care increased or mine decreased and definitely does not say when a change in care was alleged to have started.
In another case 2018/MC013523 point 36, the tribunal dismissed three statutory declarations as evidence because the ‘statement is not specific enough to draw any conclusion about dates or the number of nights’ a child has been in someone’s care and ‘without further detailed evidence I am not able to consider this matter further.’ How can the tribunal in one case dismiss three statutory declarations which told the same story about the case and not accept a very detailed statutory declarations (from someone that lives with the children) which lines up with other evidence provided over accepting a vague statement a 15-year-old ‘apparently made’ and an unreliable source which doesn’t provide number of nights or dates, who a month later provided a further email which contraindicated her first email? The tribunal is inconsistent with their approach and shows a strong bias towards [LTQV].
It is unreasonable to expect text messages of every care date to be taken especially when there is a Binding Child Support Agreement in place and text evidence from November 2021 stating between the parties that there was an agreement of care for November 2021, December 2021 and January 2022 in accordance with the 2015 Biding Child Support Orders. [LTQV] has not provided any text message evidence showing his 92% care. There is sufficient text message evidence however of my compliance with the 21% care required of me.
[LTQV] was requested in the hearing to provide a care calendar after the hearing and was given sufficient time however, he did not produce this. There is no concrete evidence from [LTQV] showing a 92% care increase. The evidence that I provided shows consistent and ongoing care of [A] as per the orders from April 2015 and binding child support agreement equating to 21%.
In addition to not being able to prove [LTQV’s] care increase, he has not shown that his cost of caring for [A] increased either as is required under the Act or that care should be revoked. In fact, he acknowledges that she spent a lot of time when working through the week at her boyfriend’s house when she was meant to be in his care, which in turn reduced his expenses. I have evidence that [A] paid for a lot of her food, transport, clothes etc. when she started working as [LTQV] refused to pay for this and she had to use her own money. He has not shown at all that his cost of caring for [A] increased.
Chapter 2.2.1 of the Child Support Guide states that the Registrar requires information about the pattern of care that each parent has of the children. [LTQV] has provided no evidence about the pattern of care he provides. It also states that minor departures from the normal care of the child does not constitute a change to the pattern of care. My care for [A] has been consistent with the binding child support agreement with only minor departures due to COVID isolation which was beyond my control. The Registrar is also required to determine if the parent is likely to have care during a 12-month period and if it is likely to continue. Point 24 of the decision states that my care of [A] has increased in late May, early June of 2022 however, this is not the decision the tribunal is reviewing. Yet, my care was reduced to 8% for over a 14-month period as a result of the decision which again shows a bias towards [LTQV]. The tribunal notes that a notification of a change in care was made by [LTQV] in June 2022 and backdated to November 2021.
Given the overwhelming evidence I have provided and lack of evidence provided by [LTQV], it is clear to see that perjury has been committed by [LTQV] and he has intentionally given false statements and has fabricated false evidence by backdating letters which he gave to the tribunal under affirmation, submitting a letter in June and backdating it to April lying about a ‘glitch’. If there was a ‘glitch’, Child Support have a number of other avenues in which to lodge an objection which are clearly outlined at various Child Support sites. Taking 188 days to lodge an objection was well out of the normally allotted time allowed and stating a ‘glitch’ does not constitute a valid reason for an allowable delayed response, as per Child Support guidelines. This was not taken into consideration, and I believe should not have been accepted according to the law.
I have another case for care of my other daughter [S] … which will also be submitted for a second review as the decision is also incorrect. The findings by the tribunal are completely contradictory to this decision where actual care has not been applied even though there is no dispute from [LTQV] on the actual care, this has also been made in his favour where I provided 100% care for [S] and he was awarded 79% care for a period of 6 months. He did not see her or care for her and when asked to see her he refused to provide care under the court orders. There is a consistent bias towards him and acceptance of his ongoing lies, where the tribunal accepts a change to court orders even without evidence and in [S’s] case, they do not consider ‘actual care’ even when there is no dispute on the ‘actual care’ they accept court orders which were not being adhered to. In another recent example which is going through CSA at the moment, [LTQV] has not seen [S] for the past 10 weeks and is aware she is not returning to his care, he is continuing to lie to CSA claiming he still has 40% care.
The supporting evidence provided in the 506 pages is largely what I have provided and shows a consistent story and pattern of care that aligns with the binding child support agreement therefore the decision by the tribunal is wrong and I would ask that you consider this and the appropriate application of the law to support this for a different decision to be made.
Child S
On 12 December 2021, CGJK notified the CSR that she now had care of S 100% of the time.
On 13 January 2022, new parenting orders for S were entered into by consent pending further orders of the Court, which provided:
That Orders 4 to 6 inclusive of the Parenting Consent Order of 8 April 2015 is suspended relevant to the [S] during school term, with school holiday time to otherwise proceed in accordance with that Order.
That pending further Order [S] live with the Father as agreed, but in the absence of agreement so as to include:
a)During the school term from after school each alternate Friday from 6pm to the following Wednesday before school; and
b)At such further after school time in the alternate week to time pursuant to Order 8(a) herein upon the provision of reasonable notice to the Mother of his availability to spend time with [S].
That [S] will live with the Mother when she is not otherwise living with the Father pursuant to Order 8 herein.
The Parents will share in the transport of [S] on a Friday afternoon to give effect to time pursuant to Order 8(a) herein.
That each party will do all acts and things and sign all documents necessary to enrol [S] at [new school].
On 29 March 2022, the CSR determined:
We recently received information about your care percentage for [S]. We have used this information to update our records.
We were told on:
14 April 2015 that the care of [S] changed on 8 April 2015.
12 December 2021 that the care of [S] changed on 9 January 2022.
Our records now show you have:
[CGJK] has 21% care of [S] and [LTQV] has 79% care of [S] from 8 April 2015 to 8 January 2022.
[CGJK] has 83% care of [S] and [LTQV] has 17% care of [S] from 9 January 2022.
We made this decision based on the actual care percentage you have for your children because: there is no evidence that continuous reasonable action has been taken to make sure that care happens as set out in a court order, parenting plan or written agreement or we were not notified in time to base your care percentage on your court order, parenting plan or written agreement, or there is no care arrangement in place.
On 21 June 2022, LTQV lodged an objection to the CSR’s determination of percentage care for S, as he believed:
I am writing to advise that I am objecting to the care percentage made on the 22nd April, 2022. The care percentage is unfavourable towards me and does not represent a fair split of care. It does not factor time in the holidays. I have been [S's] primary carer since 2015 when the first order was made by the family court. Section 4. of order (P)MLC68/2015 (already on file with the CSA) advises the children live with the father and Section 5. advises the children spend time with the mother (a) through (m) specifically addressing holidays.
In December 2021 [CGJK] began harbouring [S] and I was able to obtain an emergency enforcement hearing with the family court (documents already provided). In mid January the family court made an interim order suspending section 4. in respect to [S]. The new orders split care 5 nights with [LTQV] and 9 nights with [CGJK] per fortnight. The new interim order did not address holidays. Section 5 of the 2015 order is still in effect meaning that [S] has just completed 15 nights with me for Easter. Please refer to the screen shot of texts between [CGJK] and I verifying this. The family court has ordered we attend court mediation as section 5. Will need to be re-negotiated as it assumes the children live with the father whereas [S] now lives 9 nights per fortnight with [CGJK]. In any case the current care decision allocating me 17% does not factor the 6 fortnights of school holidays, is unfair and inaccurate based on the calculations below. The calculation below assumes an equitable split of holidays yet to be finalised but likely given the legal matter current proceeding.
On 9 November 2022, CSR advised CGJK of the following determination:
We are writing to advise you that we have allowed in part the recent objection to the decision made on 25 March 2022 to reflect the following care for [S]:
The interim care decision of 79% care to [LTQV] and 21% care to [CGJK] for [S] from 12 December 2021 to 8 January 2022.
The actual care of 83% care to [CGJK] and 17% care to [LTQV] for [S] from 9 January 2022.
CSR provided the following details for the determination of 9 November 2022, partially allowing for LTQV’s objection:
SUMMARY OF OBJECTION DECISION
The outcome of this decision is it has been part allowed.
We have made the decision to reflect an interim care decision reflecting 79% care to [LTQV] and 21% care to [CGJK] for [S] from 12 December 2021 until 8 January 2022.
We have made the decision to reflect actual care as 60% care to [CGJK] and 40% care to [LTQV] for [S] from 9 January 2022.
DECISION UNDER REVIEW
The decision made on 25 March 2022 to reflect the following care for [S]:
Details of Objection Decision
On 17 December 2021, [LTQV] disputed the care change and advised [CGJK] was contravening the parenting agreement by withholding the care for [S]. He stated he had initiated dispute resolution process to resolve this problem.
On 25 January 2022, [CGJK] advised [LTQV] had provided care during the following nights in December and January:
December 2021 26, 31 (2 nights)
January 2022 1, 12, 13, 14, 16 (5 nights)
On 25 March 2022, we made the decision to reflect the following care for [S]:
Interim care of 79% care to [LTQV] and 21% care to [CGJK] from 12 December 2021 to 8 January 2022.
Actual care of 17% care to [LTQV] and 83% care to [CGJK] from 9 January 2022.
On 21 June 2022, [LTQV] objected to the decision on the grounds the actual care reflected should be 60% care to [CGJK] and 40% care to him for [S] from 9 January 2022 as he had been providing care for 5 nights a fortnight and half the school holidays.
On 22 September 2022, [CGJK] disagreed with [LTQV] and agreed to provide evidence to support her claim.
Evidence from [LTQV]:
Third party statement from [LTQV]’s partner
Evidence from [CGJK]:
None provided
WE CONSIDERED THE FOLLOWING SPECIAL CIRCUMSTANCES
In considering special circumstances we will look at the particular circumstances of the applicant. Some examples of special circumstances may include:
The parent was seriously ill or had an accident that stopped them from lodging an objection;
The parent suffered a personal trauma such as a death in the family or a natural disaster that caused damage to the parent's property;
The parent had communication difficulties, including isolation, illiteracy or poor English-language skills; or
The parent reasonably relied upon inaccurate or misleading information.
There must an explanation of why there was a delay in lodging the objection and that the circumstances are sufficiently special for the applicant to receive the benefit of an extension to the pe1iod in which to lodge an objection, in order for the objection decision to have effect from an earlier date.
[LTQV] advised he sent the objection in April 2022. However, the objection failed to upload correctly due to a technical glitch.
We have accepted that special circumstances prevented [LTQV] from objecting earlier.
On 30 November 2023, CGJK applied for a review of this decision to the AAT1.
On 11 July 2023, AAT1 affirmed the decision under review. The Presiding Member at AAT1 decided:
In accordance with section 51 of the Act, where a new percentage of care must be determined, and the care does not comply with a written care arrangement, such as a consent order, and the person with reduced care is taking reasonable action to ensure that the care arrangement is complied with, an interim care determination may be made. This has the effect of maintaining, for an interim period, determined under section 53A of the Act, the care percentages set up by the consent orders rather than using the actual care percentages in the child support assessment. At the end of the interim care period, the care percentages would then be changed to reflect the actual care.
It was not in dispute that [S] went to live with [CGJK] on 12 December 2021. The tribunal agrees that in the circumstances Child Support was correct to make an interim care determination in accordance with section 51 of the Act from the date the care changed on 12 December 2021.
In this case the tribunal is satisfied [LTQV] commenced taking reasonable action to have [S] returned to his care from 23 December 2021 and he continued to take reasonable action. As this was within 4 weeks of the change of care day for [S] the tribunal is satisfied that the interim period ends on 8 January 2022. This means that the existing care percentages as stipulated by the consent orders continue to apply throughout the interim period.
The tribunal is satisfied that an interim care period should apply from 12 December 2021 to 8 January 2022 where the care is based on the consent orders of 79% care to [LTQV] and 21% care to [CGJK] for [S].
On 13 January 2022 consent orders were made which state that Orders 4 to 6 inclusive are suspended in relation to [S] during school terms but care during holidays is to proceed in accordance with the Parenting Consent Orders made on 8 April 2015.
The tribunal is satisfied that five nights’ care fortnightly as stipulated in the consent orders of 13 January 2022 provides that the actual care for [S] occurring from 9 January 2022 is 60% care to [CGJK] and 40% care to [LTQV].
On 18 July 2023, CGJK requested a review of the AAT1 decision by AAT2 on the basis that:
The decision to retrospectively change care of [S] allocating [LTQV] with care 79% in December 21 and then 40% from January 21 to July 22 is fundamentally wrong and the appropriate decision should be made to reflect ‘actual care’ and likely care in this period as per sections 49 and 50 of the Act. The information I provided was not taken in to account and the law was not applied correctly.
The parties do not disagree on the ‘actual care’ of [S], [LTQV] has consistently said that [S] was in my care for the above stated period. The only instances during this time were a couple of nights, special occasions for boxing day and new year and at the end of Jan 22 when she was isolating due to COVID, a trial of 5 nights in March and Easter holidays in April. If the correct law was to be applied to this, under section 50 of the Act and Chapter 2.2.1 it would show that I had 100% care of [S] from December 21 – mid July 2022 as minor departures such as those listed above do not constitute as a change in care pattern and the likely care on 12th December 2021 was 100% care to me. The information provided shows the pattern of care I provided and taking on all of the costs for [S] which I have been able to demonstrate which showed my cost percentage increased to 100%. In 18 months, the only cost for [S] that [LTQV] has had is buying her a couple of items of uniform in July 22 and some shoes for her birthday present in August 22. In accordance with Section 54F of the Act, there has been a significant increase in my cost for [S].
This decision and application of the law in this case 2022MC025159 where the Tribunal accepts court orders over actual care and in case 2023MC025537 it does not apply the court orders for care of [A]. CSA have an obligation to consider all evidence received to make a decision on care arrangements and for there to be a consistent application of the law and no bias. However, as you can see in the two cases one accepts court orders and one does not. If we are to apply actual care which should be the case under Sections 49 and 50 of the Act, then my care for [S] should in fact be 100% for this period. I agree that care did change some time after mid July 2022 when [LTQV] started to provide uniform for [S] and stopped refusing care of her however, that is not the decision that is in dispute. I agree to 40% care to [LTQV] from mid July 2022 however, the objection by [LTQV] and then the consequent decision to amend care in September 2022, well after this had occurred is fundamentally incorrect.
[LTQV] claims to have commenced mediation which did not actually occur, no meditation happened, this was for an old appointment and evidence provided was in relation to something that occurred 2 years before. The other piece of evidence that was relied upon was that he made an Application for Enforcement. He later revoked this and evidence of this was provided to the Tribunal however, was not considered. If this is the key piece of evidence that the Tribunal are relying on to make this decision, then it is only appropriate that the orders provided to the Tribunal showing that this had been cancelled at [LTQV’s] request, should also be considered.
The other evidence that was considered was the child impact report where [S] had ‘apparently’ stated she stayed with [LTQV] in March 22 for 5 nights. This was not disputed in fact, I acknowledge she did this as she was made to trial this as a ‘once-off’ for the purpose of the court appointed child psychologist interview so she could make an informed decision if this was going to work for her moving forward and as she stated, this did not suit her. This did not prove that 5 nights a fortnight was occurring or would likely to care. There is no evidence to suggest that she had regularly been doing this or that she would continue doing this. Staying 5 nights in 7 months is not considered regular care.
[LTQV] has not provided any evidence of having care of her in this period or that he has contributed in any way, because he can’t. [LTQV] was requested in the hearing to provide a care calendar after the hearing and was given sufficient time however, he did not produce this. If he did provide a care calendar and was honest about the actual care, a calendar would show that he only had care during sporadic periods which is not considered a pattern of care.
In accordance with the Act, I am required to provide evidence to demonstrate a change of care occurred which I did. I have also shown a lot of evidence during this period where [LTQV] has refused to provide care for [S] in accordance with the court orders of 2015 and 2022. There is no mentioned of this or consideration of this evidence or appropriate application for this. In addition, there are two Statutory Declarations that were provided by my wife have not been reviewed as part of this evidence.
[LTQV] had ample opportunity to object to the original decision which had appropriately allocated a much higher care percentage to me however, he did not respond in the required time because he did not have any evidence to prove he ever had consistent care of [S] from December 21 – mid July 22. Under the Guide 4.8.1, [LTQV] needed to show that there were factors that should be considered as special circumstances as to why he submitted an objection past the required 28 days. None of these special circumstances occurred and CSA accepted that he had coincidently back dated a letter within 1 day of the cut off which he submitted in June 22. This is not the right application of the law and shows a bias towards [LTQV]. I have complied presenting all evidence and submitting everything in the required time frames however, have been significantly disadvantaged due to CSA accepting a falsification of a letter.
I would ask that a second review be completed where all of the evidence provided is considered and the law appropriately applied consistently which would lead to a different decision being made.
ISSUE
The issue for determination before the Tribunal is whether there has been a change in the pattern of care for the children and if so,
(i)What percentage of care applies; and
(ii)from when do the new care percentages take effect.
LEGISLATIVE FRAMEWORK
The relevant legislation, the Child Support (Assessment)Act (CSA Act), contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing the child and is often guided by a care agreement. In this case, the original determination of care was based on the court orders issued on 8 April 2015.
The term ‘percentage of care’ is defined in section 5 of the CSA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Subdivision B—Determination of percentage of care, Division 4 of the CSA Act contains the following provisions:
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.
Section 54A of the CSA 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.
Subdivision C—Revocation and suspension of determination of percentage of care of the CSA Act contains the following provisions:
54F Determination 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.
54FA Suspension of determination before the end of the maximum interim period if there is a change to the responsible person’s cost percentage
(1) This section applies if:
(a) a determination (the earlier determination) of a responsible person’s percentage of care (the actual percentage) for a child has been made under section 49 or 50 for the purposes of subsection 51(4); and
(b) 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 actual percentage for the child; and
(c) 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
(d) sections 54F and 54G do not apply; and
(e) an interim period for the earlier determination does not currently apply; and
(f) the maximum interim period for the earlier determination has not ended.
Suspending the determination
(2) The Registrar must suspend the earlier determination. The suspension takes effect at the end of the day before the Registrar or Secretary is so notified or otherwise becomes aware.
Note: The Registrar must make another determination under section 49 or 50 when the earlier determination is suspended: see paragraph 49(1)(b) or 50(1)(b).
Lifting of suspension of determination
(3) If a further interim period for the earlier determination begins before the end of the maximum interim period for the determination because the person who has increased care of the child ceases to take reasonable action to participate in family dispute resolution, the Registrar must revoke:
(a) the suspension of the earlier determination; and
(b) any determination (the later determination) of the person’s percentage of care for the child that was made under section 49 or 50 during the suspension.
A revocation under this subsection takes effect at the end of the day before the person ceases to take that reasonable action.
Ending of maximum interim period
(4) When the maximum interim period for the earlier determination ends, the Registrar must revoke:
(a) the earlier determination (and any suspension of the earlier determination); and
(b) any later determination that meets the following conditions:
(i) the later determination was made during the suspension of the earlier determination;
(ii) the Registrar is satisfied that the care of the child that is actually taking place does not correspond with the responsible person’s percentage of care for the child determined under the later determination.
Note: The Registrar must make another determination under section 49 or 50 after revoking a determination under this subsection: see paragraph 49(1)(b) or 50(1)(b).
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.
The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the CSA Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide clearly outlines that the guiding principle of the CSA Act is the duty of care a parent owes to their child, which is not affected by the duty any other person has to maintain the child. The Guide states at 1.3.1:
Principal object
The principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents.
Particular objects
The particular objects of the CSA Act include:
·that the level of financial support is provided in accordance with the parents' capacity to provide financial support - parents with a like capacity should provide like amounts
·that the level of support should be determined in accordance with the costs of the children
·that carers should be able to have the amount of financial support assessed without the need for court proceedings
·that children share in changes in the standard of living of both of their parents, whether or not they live with both or either of them, and
·that Australia is in a position to give effect to its obligations under international agreements or arrangements which relate to maintenance obligations arising from a family relationship, parentage or marriage.
…
Duty of parents to maintain their children
The CSA Act also states that a parent has a primary duty to maintain their child. This duty:
·is not lower in priority than the duty of a parent to maintain any other child or person
·has priority over all commitments of the parents apart from necessary commitments for self-support or necessary commitments to support another child or person that the parent has a duty to maintain, and
·is not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to receive an income tested pension, benefit or allowance.
The Guide, at 2.2.2, provides the following guidance on determining types of care determinations:
When determining a percentage of care, the Registrar can make the following types of determinations:
·a determination of the percentage of the actual care that each parent provides (sections 49 and 50)
…
The Registrar will usually determine a percentage of care based on the actual care that each parent or non-parent carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or non-parent carer is not complying with a written agreement, court order or parenting plan and an interim care determination is in effect (disputed care arrangement).
When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances.
The Guide provides definitions used to describe care for child support assessments at 2.2.1:
Once a care percentage has been determined, there are 5 different terms that may be used by the Registrar to describe a parent or non-parent carer's care:
Below regular care: A care percentage of 0% to less than 14%. This level of care does not affect the child support assessment.
Regular care: A care percentage of 14% to less than 35% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent or carer will not receive child support if they have a care percentage of less than 35% for a child.
Shared care: A care percentage of 35% to 65% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent with shared care can receive or be required to pay child support. A non-parent carer with at least shared care can receive child support.
Primary care: A care percentage of more than 65% to 86% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent will not be assessed to pay child support if they have more than 65% care.
Above primary care: more than 86% to 100% - will be recognised in the child support assessment as meeting all of the costs of the child. A parent with this amount of care is not required to pay child support.
The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.
TermPercentage of care Number of nights
Below regular 0 to less than 14% 0 to 51
Regular 14% to less than 35% 52 to 127
Shared 35% to 65% 128 to 237
Primary More than 65% to 86% 238 to 313
Above primary More than 86% to 100% 314 to 365
At 2.2.2, the Guide provides the following on determining a change in pattern of care:
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. 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.
The Guide provides the following on determining whether care exists at 2.2.1:
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, based on the extent to which 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)
·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
·person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child
·child provides for his or her own needs or has those needs met from another source
·child is financially independent or financially supported from another source.
Also at 2.2.1, the Guide provides the following on percentage of care:
The percentage of care is the mechanism used in the child support formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child. A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have, or has had, of the child during the care period.
…
A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care.
…
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 (CSA Act section 54A).
.
EVIDENCE
The Final Federal Circuit Court Parenting Orders by consent of 8 April 2015 provide the following care arrangement for the children:
That the children live with the husband.
That the children spend time and communicate with the wife each year as follows:-
(a) For the last two weeks of January - Tuesday to Friday;
(b) For the first two weekends of February- Friday to Monday;
(c) For the second and third weekend in March - Friday to Monday;
(d) For the last 2 weekends in April -Friday to Monday;
(e) For the first 2 weekends in May - Friday to Monday;
(f) 12 days during June and July over the school holidays;
(g) For the last 2 weekends in August-Friday to Monday;
(h) 12 days during September and October over the school holidays;
(i) For the last 2 weekends in November - Friday to Monday;
(j) For the middle 2 weeks of December - Tuesday to Friday;
(k) On Christmas Day each alternate year commencing 2015, or at otherwise agreed between the parties, and in default of agreement between the parties, and in default of agreement between 9am and 9pm.
(l) On the children's birthdays at times to be agreed, or as otherwise agreed between the parties, and in default of agreement between 3.15pm and 6.30pm if a school day and 10am and 3 pm if a non-school day.
(m) Such further or other times agreed between the parties.
That in addition to the above time, the wife be at liberty to spend time with the children during the school week of not less than 2 evenings, or 2 days if a non-school day, from after school or 10am if a non school day until 8pm with the agreement of the husband, upon giving the husband notice by 4pm the evening prior, and the husband's agreement not to be unreasonably withheld.
That the wife's time on weekends to commence from after school or 3.30pm if a non-school day Friday and conclude Monday morning or Tuesday if Monday is a non-school day (or alternatively Sunday evening if agreed between the parties).
That the wife's time during the week or otherwise over holiday periods to commence from after school if a school day, or at an agreed time on a non school day, and conclude prior to the commencement of school or at an agreed time if a non school day
On 6 April 2022, a child impact report noted that child A and child S were the two youngest of four children, that the two eldest children, child R and child F no longer lived with their parents, while child A lived with her father, and child S lived with her mother.
The Respondent advised the Tribunal of the following care percentages recorded on the Services Australia system for the children.
Child A from 26 Nov 2021 CGJK 8% LTQV 92%
from 6 May 2022 CGJK 20% LTQV 80%
from 17 Jan 2023 CGJK 100% LTQV 0%
Child S from 12 Dec 2021 CGJK 21% LTQV 79%
from 9 Jan 2022 CGJK 60% LTQV 40%
from 5 May 2022 CGJK 100% LTQV 0%
from 17 Nov 2023 CGJK 0% LTQV 100%
from 30 Jan 2024 CGJK 100% LTQV 0%
On 13 January 2022 consent orders were made which state that Orders 4 to 6 inclusive are suspended in relation to [S] during school terms but care during holidays is to proceed in accordance with the Parenting Consent Orders made on 8 April 2015.
The tribunal is satisfied that five nights’ care fortnightly as stipulated in the consent orders of 13 January 2022 provides that the actual care for [S] occurring from 9 January 2022 is 60% care to [CGJK] and 40% care to [LTQV].
CONTENTIONS
Respondent
Given the nature of the current proceedings, essentially a dispute between the mother and father as to the care provided to the children during the relevant period, the Respondent helpfully contended that the Registrar’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Registrar did not wish to advance a position as to the findings of fact that the Tribunal is called upon to make.
The Respondent submitted in its written material that:
The core issue for the Tribunal to determine on review is the appropriate percentages of care for the children for the care periods chosen by the Tribunal. In making its decision, the Tribunal will be required to consider retrospectively the actual care that the parents provided for the children in the care periods.
The Registrar respectfully submits that the Tribunal should approach its determination of the review as follows.
First, for each of the decisions under review, the Tribunal will need to identify whether the care reflected in the existing care percentage determinations for either parent changed; if so, when care changed; and, when the Registrar was notified or became aware of the change.
Secondly, for each of the decisions under review, the Tribunal should determine which of ss 54F, 54G or 54H is the appropriate provision under which to revoke the existing care percentage determinations, and proceed to revoke the determinations.
Thirdly, for each of the decisions under review, the Tribunal should identify the appropriate care period, starting from the day on which the Tribunal determines that the care reflected in the existing care percentage determinations changed. As indicated above, the Tribunal may identify a care period of such duration as it considers appropriate. However, the circumstances of this case dictate the outer limits of the care period that would be logically open to the Tribunal to identify.
Fourthly, having identified the appropriate care periods, the Tribunal will be required to determine whether the parents had a pattern of care during the care periods and, if so, proceed to make determinations under ss 49 or 50 of the parents’ care percentages during that period. The Tribunal will need to make findings on the evidence presented by the parties as to the care of the child during the care period.
For matter 2023/5647, determine whether there are special circumstances under s87AA(2) of the Collection Act.
The Respondent submitted in its written material in respect of S that:
Interim Care
In respect of the decision for [S], the Registrar contends that the Tribunal is precluded in these proceedings from making any care percentage determinations for the purposes of s 51 of the Assessment Act unless it is satisfied that the existing care percentage determinations must be revoked under s 54G of the Assessment Act. For the reasons outlined above, the Registrar does not consider that the existing care determination can be revoked under s54G.
If the Tribunal decides that the existing care percentage determinations are required to be revoked under s 54F of the Assessment Act (as opposed to s 54G), this will have the consequence that s 51 of the Assessment Act cannot apply to the new determinations that the Tribunal is required to make under ss 49/50 of the Act. Accordingly, the Tribunal will be precluded from making any interim care determinations under s 51.
This outcome flows from the terms of section 53 of the Assessment Act, which prescribes circumstances in which s 51 does not apply. Section 53(1) provides as follows (emphasis added):
Section 51 does not apply in certain circumstances
(1) Section 51 does not apply in relation to a responsible person in relation to whom a determination is to be or has been made under section 49 or 50 if:
(a) in a case where subparagraph 49(1)(a)(i) or 50(1)(a)(i) applies in relation to the determination--the day the application referred to in that subparagraph is made is after the end of the maximum interim period for the determination; or
(b) in a case where subparagraph 49(1)(a)(ii) or 50(1)(a)(ii) applies in relation to the determination--the day referred to in that subparagraph is after the end of the maximum interim period for the determination; or
(c) the Registrar has revoked the determination under section 54F or 54H.
The Registrar submits that, correctly construed, s 53(1)(c) operates such that once a determination under s 49 or s 50 has been revoked by the Registrar under s 54F or s 54H (as the case may be), s 51 does not apply in relation to a responsible person in relation to whom a determination is to be made under s 49 or s 50. The effect of this is that in the event the Tribunal revokes the existing care percentage determinations under s 54F, s 51 would not apply to the parents in the circumstances of the present case.
The Registrar notes that his preferred construction is contrary to the understanding of s 53(1)(c) on which the decisions below have proceeded. However, the Registrar’s preferred construction was recently confirmed as correct by the Federal Court in CMU23.
CMU23 was the Registrar’s appeal from the decision in Oldfather and Fountaine (Child Support) [2023] AATA 3301, in which the AAT1 had decided that s 53(1)(c) of the Assessment Act only prevents the application of a further interim period if a determination initially made under s 51 is revoked under s 54F or s 54H within the maximum interim period. The AAT1 therefore proceeded to make interim care determinations under s 51 despite having revoked the existing care percentage determinations under s 54F.
The Registrar advanced the following ground of appeal before the Federal Court:
“The Tribunal erroneously applied section 51 of the Act to determinations of percentage of care for the Respondents because it misconstrued paragraph 53(1)(c) of the Act.
a. The Tribunal found that, following a change of care on 6 February 2019, it was required to:
i revoke the First Respondent’s existing determination of percentage of care under section 54F of the Act, and make a new determination of percentage of care for the First Respondent under section 49(1)(b) of the Act; and
ii revoke the Second Respondent’s existing determination of percentage of care under section 54F of the Act, and make a new determination of percentage of care for the Second Respondent under section 50(1)(b) of the Act.
b. By reason of the matters set out in paragraph 1.a, when the new determinations were required to be made, each Respondent was a responsible person in relation to whom a determination was to be and had been made, and in relation to whom a determination had been revoked under section 54F of the Act, within the meaning of paragraph 53(1)(c) of the Act.
c. By reason of the matters set out in paragraph 1.b, s 53(1)(c), properly construed, meant that section 51 did not apply to the new determination to be made for each Respondent.
d. The Tribunal erred by construing paragraph 53(1)(c) of the Act as not disapplying section 51 to the new determination to be made for each Respondent.”
In allowing the Registrar’s appeal, Logan J concluded as follows (at [48]) after outlining the AAT1’s attempt to overcome a perceived gap in the drafting of s 53(1)(c):
“Any change to s 53 thought necessary as a result of the exposure of a gap by the Tribunal’s reasons and those of this Court, it is a matter for the parliamentary, not the judicial, branch. On the facts of the present case, there were relevant determinations which engaged, on their face, s 53(1)(c). The criterion specified in that paragraph, in turn, that had the effect of rendering s 51 of the Assessment Act inapplicable. In turn, that means that the grounds of appeal must be upheld, such that the Tribunal was an error in looking, in the circumstances of the present case, to s 51 of the Assessment Act.”
As such, if the existing care percentage determinations in this case are revoked under s 54F of the Assessment Act, it is not open to the Tribunal as a matter of law to proceed to make new determinations pursuant to s 51. Rather, the Tribunal must proceed under ss 49 and 50 of the Assessment Act to reflect the actual care provided by the parents during the care period.
Subsequent legislative amendment
The Registrar notes that following the Federal Court’s decision in CMU23, Parliament considered, and on 21 March 2024, passed the Social Services Legislation Amendment (Child Support and Family Assistance Technical Amendments) Act 2024 (Child Support and Family Assistance Technical Amendments Act). The Child Support and Family Assistance Technical Amendments Act has removed s 53(1)(c) of the Assessment Act: cl 6. However, cl 11 provided, the amendments made by the Child Support and Family Assistance Technical Amendments Act to the Assessment Act only apply “in relation to a determination that is to be or has been made under section 49 or 50 of that Act on or after the commencement of this item if the change of care day for the responsible person, and the child, concerned occurs on or after that commencement” (emphasis added). As such, the amendments do not apply to the circumstances of this case, which concern a change of care that occurred in March or April 2022. The Tribunal will instead be required to apply the unamended version of s 53 in force prior to the commencement of the amendments by the Child Support and Family Assistance Technical Amendments Act, as construed by the Federal Court in CMU23.
For completeness, the Registrar notes that the Child Support and Family Assistance Technical Amendments Act also includes a validating provision in cl 13. The provision preserves the legal validity of past decisions involving interim care determinations despite them being contrary to s 53(1)(c). As such, when passed into law the provision will render the AAT1’s decision valid in law to the extent that it involved the making of interim care determinations when this was prohibited by s 53(1)(c). However, the validation of the AAT1’s decision is of no consequence for the Tribunal’s consideration of the application for AAT second review, and the making of the present Tribunal’s own decision: the Tribunal’s task is and will remain to “stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made”.
The Respondent asserted at hearing that this was a dispute between the parties regarding the care each had been providing the children, as a result of the 2015 Court orders not being followed.
The Respondent contended that ordinarily, it is open to the Tribunal to determine the care period, including the duration, that the Tribunal deems appropriate. However, accepting that the care period is a statutory device allowing the Tribunal to identify an appropriate period of time over which to assess (in a case such as the present) the care that was actually provided, and given that the Tribunal must only make determinations about care provided “during” the care period (s 50(2) of the Assessment Act), the Registrar respectfully submits that it would not be open to the Tribunal to apply a care period that extends beyond 5 May 2023 and (for S) and 6 May 2022 (for A). The care that is applied for the periods from these dates is determined by separate care decisions which does not form part of this review and relation to which separate review rights exist.
Whilst the Respondent adopted a neutral position, it assisted the Tribunal by clarifying its position that the Tribunal could not affirm the decision to grant an interim care period for S.
Applicant (CGJK)
Child A
Contends that:
·CSA’s decision to reduce her care of A from the 26 November 2021 to 8% was categorically wrong, the law had not been applied correctly and evidence she had provided was not taken in to account.
·that a Binding Child Support agreement was in place that had been registered with CSA since 2015, this care percentage was determined to be 78 nights as agreed in the Binding Child Support agreement, reflecting 21% care for her as ‘both parties agree that for the purposes of calculating child support’.
·A had been living between herself and LTQV since April 2015 as per consent orders dated 8 April 2015.
·The time A resided with her consisted essentially of weekends and school holidays, plus “such further or other times agreed between the parties”.
·There was no evidence to support a claim that care for A changed in November 2021.
·There was evidence showing she had regular and ongoing care of A for this period in accordance with the Binding Child Support agreement.
Submitted that:
·Her witness had been truthful and had attested that A had not changed her pattern of care, that she had been coming to her home each weekend and school holidays as previously.
·Text messages between herself, LTQV and A clearly demonstrated when A was in her actual care in this period.
·The binding child support agreement should continue to be observed.
·LTQV’s partner could no attest to A’s living arrangement as she had not actually met them until Easter of 2022 and had been overseas for 6 weeks from late July to early September 2022.
CGJK’s wife evidence:
·She had been in a relationship with CGJK since 2013 and from 2013/2014, A who would have been 8 at the time, came to live with them in accordance with the binding agreement.
·She had in fact done a great deal of assisting the children as she worked from home and reduced her hours at work for that reason, since the children had been in their full time care.
·She had taken the children to school, medical appointments, other necessary appointments and helped with homework.
·She had not been overseas from November 2021 to July 2022.
·There had been a regular pattern of care for A from 26 November 2021, as there always had been, and no change had occurred in the time she had spent with CGJK – being they had the children on weekends (Friday and Saturday night) and school holidays.
CGJK’s personal friend’s evidence:
·She had known CGJK for over 25 years and had known the children all their lives.
·Her children were very good friends with CGJK’s children and had lived in close proximity to one another (1-2kms), and home schooled their children together.
·As she had originally trained as a hairdresser, she had cut the children’s hair all their lives so often observed them in CGJK’s care.
·She was not aware of the actual parenting orders but had observed that A spent weekends and school holidays with CGJK and had been increasing the time she had spent with her until she came to live with CGJK at the commencement of year 12 in 2023.
·Whilst she could not tell precisely when A had been at CGJK’s, it would have been at least one weekend a month, as A was present at birthdays, holidays, haircuts, dog walks, dinners and other events they shared together.
·Even if she had not seen A physically, she was kept abreast of A’s time with CGJK because they always took and shared photos.
Child S
Contends that:
·The Tribunal must determine a percentage of care for the parent that corresponds with the actual care of the child that has occurred, or is likely to occur, during the care period and other criteria in Polec & Staker.[1]
·CSA correctly changed her care to reflect the actual care to 100% and incorrectly allowed LTQV’s objection as it was out of time, that special circumstances did not exist and LTQV had provided no pattern of care for S.
·One of the objects 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’.
·CSA has continued to allocate care to LTQV from December 2021 – July 2022 when he had no pattern of care during the care period.
·Under section 54A, the Tribunal may also consider the circumstances that in addition to having 100% care of S, providing her accommodation, clothing, food, education, health care, emotional support, supervision, transport, extracurricular activities, setting her up in a new school, paying all her expenses medical (doctor, psychologist, dentist etc.), new laptop, books, stationery, school excursions, fees, uniform, in addition to paying LTQV to care for her when she was not in his care and he flatly refused to contribute a cent is unjust and goes against the object of the CSA Act.
[1] Polec & Staker & Anor (2011) 253 FLR 339.
Submitted that:
·Her witness had been truthful and had attested that S had come to live with her full time from the end of grade six December 2021.
·LTQV had put in his objections out of time, and he had not demonstrated there were special circumstances for his objection to be considered by the CSR.
·The binding child care agreement was no longer in force for S.
·S had requested she live with CGJK as she wished to attend high school near CGJK’s home.
·LTQV had been advised by S’s primary school that S had been enrolled in high school closer to CGJK’s home.
·LTQV had been refusing to have S in his care, he refused to pay for a school uniform for S to keep at his home, and she had been paying him child support whilst she had full time care of S.
CGJK’s wife’s evidence:
·She had been in a relationship with CGJK since 2013 and from 2013/2014, S, who would have been 4 at the time, came to live with them in accordance with the binding agreement.
·S had come to live with them full time from 12 December 2021 until 8 January 2022, excluding Boxing Day, New Years Eve and New Years Day. From 19 January 2022, she had contracted COVID and was forced to isolate with LTQV, causing her to miss the first day of year 7 at her new school, and returned to GGJK’s care on 6 February where she later spent 16 – 22 March in Lorne with LTQV and then from 22 July had commenced staying 5 nights a fortnight with LTQV.
CGJK’s personal friend’s evidence:
·S had been living with CGJK on a full-time basis since Christmas 2021.
·Her daughter and S were very close and spent considerable time together.
·The families holidayed together and spent important occasions such as New Years and birthdays with each other.
·S had commenced at high school close to CGJK’s home in 2022 and that is why she was living with CGJK on a full time basis.
Other Party (LTQV)
LTQV provided the following by way of background in his written submission.
During 2015 to 2022 I was the primary carer of the four Children. During this eight-year period, [CGJK] paid a total of $7000 child support. The CSA collected around $800 per year for me to care for four children solo over eight years. I was ineligible for the parent pension as [CGJK] had claimed this benefit, only to relinquish care at the beginning of 2015. The children & I endured significant financial hardship during this time as [CGJK] was easily able to lie to avoid child support as she was routinely believed without evidence. I however, would provide large amounts of evidence and still be greeted with suspicion by CSA officers. I have paid substantially more child support to [CGJK] for her limited care of [A] and [S]. [CGJK] was financially abusive and controlling of me.
Child A
Contends that:
·A had made a decision to stay at his house on the weekends as she had a casual weekend job, was seeing a boyfriend and undertaking sporting activities.
·The 2015 Court orders were no longer being followed in respect of A because she only wanted to spend time with CGJK one weekend a month in order to manage her other commitments.
·The Child Impact Report from the Child Expert of the Family Court was uncontrivable evidence that A ‘live with her father and spend time with her mother one weekend per month’.
·He had, at all times, been honest with the CSR.
·He had never denied that A spent time at her mother’s but it had become irregular and could no longer be considered a pattern of care.
·He had been the victim of sexual violence, financial and controlling abuse from CGJK who had manipulated all claims with CSR to her advantage.
·He was now alienated from his children by the manipulation of CGJK, after he had sacrificed his life to raise the 4 children as a single parent when the children were very young.
·CSR had correctly reflected the actual care he had been providing to A and the original determination should be affirmed.
Submitted that:
·His witnesses had been truthful and had attested that A was heavily involved in the local community, so it would be impossible that she had been spending 2 weekends a month and all the school holidays with CGJK.
·A no longer wanted to go to her mother’s home each weekend from about 21 November 2021, as she had commenced working at the local IGA doing 2-3 shifts a week, including after school shifts and some weekend shifts; had a local boyfriend, was playing footy on weekends and also spending time with her peer group.
·The only irrefutable evidence provided in respect of the time A spent with CGJK was her own words in the child impact report.
LTQV’s partner evidence:
·She had met LTQV at the end of 2021 and they began dating in 2022. Whilst she did not physically meet his children until mid-February 2022, she was aware they were at LTQV’s home as she would speak to him on the phone and make arrangements to catch up when he had child free weekends.
·She was not aware of the actual parenting orders for the children but was aware orders were in place.
·She and LTQV do not live together, as she has children from a previous marriage and generally only stays at LTQV’s place when her children are with their father.
·That she would spend typically 4 nights a fortnight at LTQV’s place; alternate weekends and usually one weeknight.
·When she stayed at LTQV’s home, A was generally there.
·A would spend on average, one night a weekend with CGJK but no more, as she would be home on Sunday night to go to school on Monday.
·LTQV struggled to spend time at her place as he was predominately caring for A.
LTQV’s personal friend’s evidence:
·He had known A and S all their lives, their families had been very close and had home schooled the children together.
·He had no idea of the care arrangements for the children but he had known that LTQV had care of the four children after the marriage broke down, as his wife had assisted LTQV with care of his four children.
·During 2021 and 2022 he saw a great deal of A as he was her footy coach.
·A was a talented and dedicated footballer who attended almost all training sessions, he had spreadsheets which demonstrated that A was at pre-season training (February 2021) near LTQV’s home on a Monday/Wednesday and during the season (April to September) training Tuesday/Thursday and games on Saturday.
·LTQV was the assistant coach and always brought A to training and games.
·He could not recall seeing CGJK at games.
·He would regularly see A around town and at IGA where she worked.
·He could not say when A was at CGJK’s during the week or weekend but his impression was it had to be seldom and irregular because of the times he saw A.
Child S
Contends that:
·CGJK took S from his care in December 2021 without his consent and was not making S available to him.
·CGJK enrolled S in a secondary school, outside of the 2015 court orders, without his consent or knowledge.
·He obtained an emergency hearing with the Family Court which made interim care orders from mid-January 2023 that split S’s care as 5 nights with him and 9 nights with CGJK per fortnight.
·The new interim order did not address holidays and therefore section 5 of the 2015 Order was still in effect, meaning that S spent 15 nights with him for Easter.
Submitted that:
·His witnesses had been truthful and had attested to the actual care he had been able to provide S after CGJK took her from him in contravention of the parenting orders.
·Parents should abide by parenting orders and that Courts, Tribunals and the CSR should not allow parents to just flout orders by withholding children from the other parent.
·CGJK’s action of taking S and enrolling her in another school without his permission or consent were against the parenting orders and was a deliberate step by CGJK to alienate and humiliate him; that CGJK’s actions had caused S great harm.
·The CSR had correctly determined that percentage of care for S was based on the time she should have been in his care.
·He had S over the school holidays in 2021/2022; again in March and then on a basis of 5 days a fortnight when the new parenting orders were implemented.
LTQV’s partner’s evidence:
·She had not met LTQV in November 2021.
·S had come away with them from 19 March 2021, then again on 2 April and had been with LTQV over Easter and the September school holidays.
·S came back into LTVQ’s care around 19 March 2021, was then coming Friday to Tuesday in line with the interim care orders and then fortnightly from then on.
·She had found CGJK’s emails to her intimidating and inappropriate.
LTQV’s personal friend’s evidence was that he would see S at football games occasionally as she would always say hello.
CONSIDERATION
Fundamentally this is a case where both parties want their cake and to eat it too. Both parties are in furious agreement that the binding care orders should be adhered to in respect of one child, and both furiously agree the binding care orders should not apply to the other child. What the applicant and other party do not see eye-to-eye on is which child should be subject to the binding care orders and which should not.
CGJK’s position is that the binding care arrangements should be adhered to as there was no change in the care arrangement for A, so there should be no alteration in her percentage of care. CGJK’s written submission provides:
[S] made a decision to move schools at the end of Year 6, to live with me fulltime on the 12th December 2021. At this time, she made it clear that she did not intend to reside with her father again which resulted in a significant change in circumstances where she was enrolled in a new school. Her father was aware that this change was occurring in the lead up to this as [S’s] current school had contacted him about this.
I contacted the father and made him aware of this change. I kept him updated as to [S’s] where abouts and offered on several occasions to ‘come and collect her’ to spend time with her, however, he refused. She was consistently made available to him but he consistently refused care of her.
However, CGJK contends there was a significant change in the care arrangement for S and the binding agreement should be revoked and changed to reflect the actual care arrangement. CGJK’s written submission writes:
There are court orders in place and a binding child support agreement (both supplied) which there has been no legal change to or any written request from [LTQV] to change this or any request to attend mediation. No such change can be made to reduce my time without my consent or changes to court orders. There are no other court orders which change the care of [A] and I have not ever rejected to provide care for her in the times stated in the court orders. I am complying with the court orders in place which also allow me to have care of [A] for 78 nights per year and additional times under item ‘6’ of the court orders which I have been doing every second weekend this year.
LTQV’s position is that parents should abide by the binding care agreements and not unilaterally determine where a child will live. LTQV told the Tribunal that:
Moral concern – actual care verses care determination which comes down to whether you respect orders or not, I get you can’t just leave orders in place for ever but there is a moral consideration here. If we don’t respect orders at all and go purely with actual care you create a perverse incentive for parents to deliberate undermine orders and you also create a perverse incentive that financial rewards parents that can manipulate children and alienate them from the other parent and that has huge consequences for children, for child safety it is the reason why we don’t accept evidence from children anymore.
Not telling [Tribunal] what to do as that is your job but practical there needs to be a balance between actual care sure that’s got to be acknowledge if you don’t set an expectation that people respect orders you create a perverse incentive for people to manipulate children.
LTVQ reiterated that the changes in living arrangements for S were done without his consent. LTQV argued his percentage of care for S should reflect the consent orders of 2015 until such time as when new consent orders were put in place.
However, LTQV contends there was a change in the care arrangement for A and the binding agreement should be revoked and changed to reflect the actual care arrangement. LTQV’s original objection to the CSR determination stated:
I am writing to advise a change of care with [A]. … [A] specifically states she wants the “current arrangements to remain...” and she specifically describes these arrangements as “one weekend per month...”… [A] and [S] where scheduled to spend 2 weekends with their mother that month being 12-13th and 26-27th, however [A] only attended the first weekend due to work commitments. I would suggest The 26th November 2021 would be the date care changed. Since then, [A] has continued to spend 2 nights per month with her mother.
Whilst the Tribunal is completely aware of the cost associated with raising children, particularly teenagers, and that any slight variation in a parent’s percentage of care can have an impact on their finances, it is still perplexing the length both parties were prepared to go to in this matter, given the limited financial implication of the actual percentage determination on either party. The Tribunal was then left with the unenviable task of working out the correct and preferable decision in this case, where there was:
·Actual scant evidentiary proof of where the children were residing.
·Actual scant evidentiary proof of who was providing them financial and emotional support.
·Both consistent and conflicting evidence.
·Recrimination, obfuscation, intimidation and historical resentment.
It would seem that CGJK took S to live with her on a permanent basis at the end of her primary school year and advised the CSR of a change in the care arrangement. The CSR made a change of care arrangement determination for S on 29 March 2022 and found there was no change to A’s care arrangement. Various events then occurred which led LTQV to lodge an objection on 22 June 2022 to the new care arrangement for S and notified a change had also occurred for A from 26 November 2021.
The Tribunal must determine if there has been a change in the pattern of care, noting that the pattern of care concept is not defined in the CSA Act. In essence, however, it would seem to be constituted by a flexible form or sequence of events with respect to a child’s care, which a prediction of future events might be based, albeit that minor departures from the normal care of a child will not give rise to a change in the pattern of care. In this case, as we are dealing with historical events, the Tribunal can and should utilise the actual care of the children.
Case law has established that in considering a person’s pattern of care, the actual care of the child in question in the relevant care period must be considered. However, exactitude is not required. Instead, what has been characterised as a “broad brush approach” is acceptable, recognising that sometimes the demands of teenagers, parents, work and new partners may not fit easily into a determination made years previously.
If the Tribunal is satisfied that the pattern of care has changed, it must determine the circumstances in which a pre-existing determination may be revoked, as identified in sections 54F, 54G and 54H of the CSA Act. The “effects” of these sections were described in the Tribunal’s decision in HMXZ.[2] There, those effects were described as follows:
·section 54F requires that the CSR must revoke an existing Care Determination if there is a change in the percentage of care that would result in a change to a person’s cost percentage in relation to a child;
·section 54G requires that if a parent was to have at least 14% care (53 nights per year), the CSR must revoke the existing Care Determination if the parent’s percentage of care falls below 14% despite the other parent’s making the child available to them; and
·section 54H provides a discretion to the CSR to revoke the existing Care Determination if there is a change in the percentage of care that does not result in a change to the cost percentage.
[2] HMXZ and Child Support Registrar (Child Support Second Review) [2021] AATA 520.
The Tribunal can then move to determine the care periods in question and if there was a pattern of care and make a determination under section 49 or 50 of the CSA Act of the parties’ care percentage during the relevant periods.
Whether the existing care percentage determination should be revoked
The Tribunal, based on the evidence before it, is satisfied that there was a change in the care arrangement for A and S.
The Respondent contended that due to subsections 54G(1)(a) and (b), it would not be open to the Tribunal to revoke the existing care determination for S under section 54G of the Assessment Act.
The Respondent contended that it may be open to the Tribunal to revoke the existing determination under section 54G for child A if the Tribunal considers that the notification was made within a reasonable timeframe.
Child A
The Parties did not agree that there had been a change in the care arrangement for A. The Tribunal found on the evidence that it was impossible for A to have been attending CGJK’s premises in accordance with the 2015 parenting orders given her extracurricular activities at the time.
The Tribunal placed no weight on the child impact report as it was ambiguous about the exact amount of time A was spending with CGJK. Clearly it identifies one weekend a month, but it also identifies A would spend time with her mother and sister when she could, dancing around work, school and footy commitments. Additionally, the report is dated 22 April 2022 and cannot provide a basis for a determination that a change in care pattern occurred on 26 November 2021 for A.
The Tribunal placed weight on the evidence of LTQV’s partner. She was a credible witness who did not exaggerate and has provided consistent evidence throughout this process. LTQV’s partner stated that she had not started dating LTQV until early 2022, and when she started spending weekends at his premises, A was predominately there with the odd night away at her mothers. Whilst LTQV’s partner recalled meeting the children at the end of February 2022, the clearest memory all parties have is that the A and S spent time away with LTQV from 19 March 2022.
The Tribunal placed weight on the evidence of LTQV’s personal friend and the coach at the time of A’s football team, given he was of all the witnesses the most genuine in his reflection of the time he had observed A in the local community near LTQV’s residence.
The Tribunal placed limited weight on the email exchanges between CGJK and LTQV, as they do demonstrate that A was travelling between CGJK’s and LTQV’s residence, but they do not cover the entire period or reflect when A actually stayed the night at CGJK’s. The Tribunal found no evidentiary proof in the calendars provided by the parties.
The Tribunal did not consider it was feasible, given the distance between LTQV’s and CGJK’s home, that A had travelled from school to her mother’s on a Friday night, returned to her fathers to play football on a Saturday morning, returned back to her mother’s afterwards and then returned again on Sunday night to attend school on Monday – this pattern was simply implausible.
The Tribunal considered it was incredibly unlikely for a parent to do this much in-between travelling or for a teenager to take that much public transport.
The Tribunal determined there was no basis to find the pattern of care had altered for A from 26 November 2021, outside of LTQV’s recollection for when it had occurred. The child impact report was not written until April 2022, and LTVQ’s partner was not spending time at his home before the end of February 2022. The Tribunal considered the evidence to effectively demonstrate that there was a change in A’s care from February 2022, when pre-season training commenced for the 2022 football season, and LTQV’s partner commenced spending weekends at LTQV’s home.
The Tribunal found on the evidence before it that A’s pattern of care changed and is satisfied that both CGJK and LTQV had a regular pattern of care for the A during the noted period.
The Tribunal has consequently determined that the pattern of care for A should be revoked in accordance with section 54F of the CSA Act, as the change will result in an alteration to the cost percentages in relation to A.
Child S
The Tribunal accepted the assessment of the CSR that there were special circumstances which prevented LTVQ’s objection to the new care arrangement for S in time and proceed on this basis in its determination.
The parties did not dispute there had been a change in the care for S. What was in contention was the impact of this change on the care percentage, as the new care arrangement was made unilaterally by CGJK without LTQV’s consent. The Tribunal found on the evidence CGJK had initiated a change in the care arrangement for S without the consent of LTQV in accordance with the 2015 parental agreement.
The Tribunal relied on the consistent evidence of all witnesses that S went to reside with CGJK on a permanent basis from 12 December 2021 and commenced secondary school in February 2022 closer to CGJK’s home.
The Tribunal relied on the consistent evidence that S spent at least 2 nights with LTQV in December 2021 (Christmas/New Years Eve with LTQV’s family), 5 – 6 nights in January 2022 (New Years Day and then a period of isolation due to COVID) 5 – 8 nights in March (a trail of the new parenting orders/weekend of 19 away) and then between 10 – 14 nights in April (Easter/School holiday 2022). The Tribunal relied on the evidence of CGJK, which she provided orally to the CSR:
On 25 January 2022, [CGJK] advised [LTQV] had provided care during the following nights in December and January:
December 2021 26, 31 (2 nights)
January 2022 1, 12, 13, 14, 16 (5 nights)
And in her written appeal to the AAT2 dated 18 July 2023:
The only instances during this time were a couple of nights, special occasions for boxing day and new year and at the end of Jan 22 when she was isolating due to COVID, a trial of 5 nights in March and Easter holidays in April.
The Tribunal relied on the interim parenting orders of 13 January 2022 for S, which fundamentally provided that S had spent 9 nights with CGJK and 5 nights with LTQV a fortnight.
The Tribunal found on the evidence before it that S’s pattern of care indeed changed, and is satisfied that both CGJK and LTQV had, or was likely to have, a pattern of care for S during the care period.
The Tribunal has therefore determined that the pattern of care for S should be revoked in accordance with section 54F of the CSA Act as the change will result in a change to the cost percentages in relation to S.
Pattern of Care
The Tribunal considered the meaning of the term ‘pattern of care’ in Parent 1:[3]
The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. 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.
[3] Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 [33].
The Tribunal found on the evidence before it that A’s care pattern altered from 7 February 2022, and continued until 6 May 2022, when the CSR registrar determined a new pattern of care for A.
The Tribunal accepted the contention of the Respondent that:
In respect of the decision for [S], the Registrar contends that the Tribunal is precluded in these proceedings from making any care percentage determinations for the purposes of s 51 of the Assessment Act unless it is satisfied that the existing care percentage determinations must be revoked under s 54G of the Assessment Act. For the reasons outlined above, the Registrar does not consider that the existing care determination can be revoked under s54G.
If the Tribunal decides that the existing care percentage determinations are required to be revoked under s 54F of the Assessment Act (as opposed to s 54G), this will have the consequence that s 51 of the Assessment Act cannot apply to the new determinations that the Tribunal is required to make under ss 49/50 of the Act. Accordingly, the Tribunal will be precluded from making any interim care determinations under s 51.
The Tribunal therefore determined on the evidence before it that the care periods for S altered during the period in dispute. Whilst this is not an exact science as accurately observed by the Member in Parent 1[4] and reflected in the Guide, minor departures to care arrangements do not constitute a change to the care pattern; but in this situation significant changes do necessitate a new care arrangement.
[4] Ibid.
The Tribunal finds on the evidence before it that S’s care pattern altered from 12 December 2021 when she went to reside with CGJK and continued until 19 March 2022. The pattern of care for S then altered from 19 March 2022 when the parties commenced trialling the new parenting orders dated 9 January 2022.
Determination of percentage of care/Care Period
A new care determination must be made if the decision maker revokes an existing care percentage that was made under section 49 or 50 of the CSA Act.
In Polec,[5] the then Federal Magistrates Court held that in determining whether and to what extent a person has care of a child for the purpose of child support legislation, the following factors may provide guidance:
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?
[5] Polec & Staker & Anor (2011) 253 FLR 339.
The Federal Court has confirmed that the factors in Polec should not be treated as an exhaustive list of factors that are relevant to determining care.
As the Tribunal has determined that the existing care arrangements need to be revoked and found that both CGJK and LTQV had a pattern of care for both A and S, it must also determine the percentage of care for the children in accordance with section 50 of the CSA Act, as well as the care period in which these percentage of care applies.
In its written submissions the Respondent contended:
There is no agreement between the parties as to the date the care changed. The AAT1 found that for 2023/5647 the care change was 21 December 2021. For 2023/5646 the care change was on 26 November 2021.
Ordinarily, it is open to the Tribunal to determine the care period, including the duration, that the Tribunal deems appropriate. However, accepting that the care period is a statutory device allowing the Tribunal to identify an appropriate period of time over which to assess (in a case such as the present) the care that was actually provided, and given that the Tribunal must only make determinations about care provided “during” the care period (s 50(2) of the Assessment Act), the Registrar respectfully submits that it would not be open to the Tribunal to apply a care period that extends beyond 5 May 2023 and (for child S) and 6 May 2022 (for child A). The care that is applied for the periods from these dates is determined by separate care decisions which does not form part of this review and relation to which separate review rights exist.
The Tribunal considered the evidence indicating that A was spending more than 2 nights a month with her mother and determined CGJK had 14% care of A in this period whilst LTQV had 86%.
The Tribunal was satisfied on the evidence that A was only spending the odd night with LTQV from 12 December 2021 until 19 March 2022, so could not find he was providing regular care to S. The Tribunal determined that from 12 December 2021 until 19 March 2022 that CGJK had 100% care for S and LTQV had 0%.
The Tribunal was satisfied on the evidence that five nights of care fortnightly, as stipulated in the consent orders of 13 January 2022, commenced from 19 March 2022 and provided that the actual care for S was 60% care to CGJK and 40% care to LTQV. The Tribunal determined that this care percentage arrangement ended on the 5 May 2022 in line with further determinations of the CSR.
As there was no appeal before this Tribunal as to the CSR determination of the care arrangement for S from 5 May 2022 with CGJK 100% and LTQV 0%, from 17 Nov 2023 with CGJK 0% and LTQV 100% and from 30 Jan 2024 with CGJK 100% and LTQV 0%, the Tribunal made no findings on these periods in question.
DECISION
Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decisions under review and makes decisions in substitution that:
·7 February 2022 until 6 May 2022 that CGJK had 14% care of child A and LTQV had 86%.
·12 December 2021 until 19 March 2022 that CGJK had 100% care for child S and LTQV had 0%.
·19 March 2022 until 5 May 2022 that CGJK had 60% care for child S and LTQV had 40%.
I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member
............................[sgd]...................................
Associate
Dated: 5 August 2024
Date(s) of hearing: 8, 9 July 2024 Applicant: Self-Represented Other Party: Self-Represented Advocate for the Respondent: Ms Kathryn Lieschke Solicitors for the Respondent: Seconded Lawyer Services Australia
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