CSQG and Child Support Registrar (Child support second review)

CSQG and Child Support Registrar (Child support second review) [2020] AATA 2050 (1 July 2020)
Division:GENERAL DIVISION
File Number:2019/6472
Re:CSQG
APPLICANT

AndChild Support Registrar
RESPONDENT

AndDGNS
OTHER PARTY

DECISION
Tribunal:Member L M Gallagher
Date:1 July 2020
Place:Perth

The reviewable decision, being the AAT1 decision dated 12 September 2019, is affirmed.
..........................[sgd]..............................................
Member L M Gallagher
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change in care –
actual care – extent of care – inconsistent evidence – conflicting evidence – no pattern of care – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) – ss 49, 50, 54A, 54F, 54G, 54H, 55C
Child Support (Registration and Collection) Act 1988 (Cth) – s 87AA
CASES
Child Support Registrar v MQMV [2019] FCA 1171
P v Child Support Registrar [2014] FCAFC 98
P v Child Support Registrar [2013] FCA 1312
Parent A and Child Support Registrar and Anor [2013] AATA 562
Polec & Staker & Anor [2011] FMCAfam 959
Re Drake and Minister for Immigration and Ethnic Affairs (No 2)
(1979) 2 ALD 634

SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide – Chapter 2.2.1
REASONS FOR DECISION
Member L M Gallagher
1 July 2020
BACKGROUND

The Applicant and the Other Party are the separated parents of two children. The present application relates to one of those children (the child), who is now 21 years of age.
On 6 November 2001, a child support case was registered in relation to the child

(R1, T26, page 213).
Departmental records[1] refer to the Other Party as having 100% care of the child from

6 June 2011 (R1, T26, page 215).
[1] The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.
On 19 November 2012, the Applicant wrote to Services Australia (the Agency) advising that since 19 September 2012, the child had been in his care two nights per fortnight

(R1, T5, page 32).[2] This information was not actioned at the time it was received, and the Agency apologised for the oversight (R1, T8, page 37).
[2] By notifying the Agency of the claimed change in the percentage of care, the Applicant effectively requested that there be a change to the assessment of child support on the basis that the care of the child had changed.
On 24 April 2014, the Child Support Registrar (the Registrar) decided that on the basis of the information provided by the Applicant on 19 November 2012, the care percentage had not changed on 19 September 2012 and it was therefore not required to change the assessment of child support (the original decision) (R1, T10, page 45). By doing so,

the Registrar effectively refused to revoke the existing percentage of care determination and it continued to have effect.
The original decision stated that the Applicant could request a review of the decision within 28 days from the date of receipt of the original decision and provided further information on how to proceed with an objection (R1, T10, page 45).
On 9 February 2019, the Applicant lodged an objection to the original decision (R1, T13). On the objection form, the Applicant stated that the reason for the delay and his request for an extension of time was that in his opinion he had not been provided with the

“correct guidance” on how to object to the decision by the decision maker (R1, T10, page 50).
On 16 April 2019, the Applicant was advised that the objection was disallowed

(the objection decision) (R1, T21, page 128). In effect, the objections officer refused to revoke the existing percentage of care determination, recording the care percentage as 100% to the Other Party and 0% to the Applicant.
On 15 May 2019, the Applicant applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) for a first review of the objection decision

(R1, T23).
On 12 September 2019, the AAT1 affirmed the objection decision (the reviewable decision) (R1, T2).
On 9 October 2019, the Applicant applied to the Tribunal’s General Division for a review of the reviewable decision on the basis that the Applicant disagreed with the reviewable decision and had further evidence to support the Applicant’s care percentage (R1, T1,

page 2).
ISSUES FOR DETERMINATION
The issues for determination by this Tribunal are:
(a)Whether the existing determination of percentage of care made on 6 June 2011 should be revoked and replaced. This requires the Tribunal to determine what percentage of care the Applicant and the Other Party each had of the child from 19 September 2012.
(b)If so, that is, if the Tribunal finds that there was a change in the percentage of care from 19 September 2012 such that a new determination of percentage of care should be made:
(i)What is the new percentage of care determination?
(ii) What is the date from which the new percentage of care determination should have effect for the purposes of child support? This date will be either:
· From the date the objection was lodged[3], which was on 9 February 2019[4]; or
· From the date that the change in care was notified, being 19 November 2012. This will be the case only if there were special circumstances that prevented the objection from being lodged at the time it was required to be lodged, namely within 28 days of the original decision[5]. The period of time that needs to be considered in the context of special circumstances is the period between 24 April 2014, when the original decision was made, and 9 February 2019, when the objection was lodged.
[3] Section 87AA(1) of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) provides that where an objection is not lodged within 28 days of a percentage of care determination, and the objection is allowed in a way that has the effect of varying the percentage of care determination or substituting a new care percentage determination, the objection decision will have effect from the date the objection was lodged. In this context, a percentage of care determination includes a decision not to revoke an existing percentage of determination (Child Support Registrar v MQMV [2019] FCA 1171).
[4] The Tribunal notes that the child was already 18 years of age by 9 February 2019 and the Child Support Assessment had ended. Therefore, a new percentage of care determination from this date would be of no practical benefit to the Applicant or to the Other Party.
[5] Section 87AA(2) of the Collection Act provides that the Registrar may determine that the 28-day objection period be extended to such longer period as the Registrar determines appropriate if the Registrar is satisfied that special circumstances prevented the objection being lodged within the stipulated timeframe. In that situation, the objection decision has effect as if the objection were lodged within the 28-day timeframe and therefore will have effect from the date that the original decision had effect (being 19 November 2012 in the present matter).
The Tribunal notes that if, and only if, it is established that the existing determination of percentage of care made on 6 June 2011 should be revoked and replaced that the remaining issues fall for consideration.
As the Tribunal has concluded below that the existing determination of percentage of care is correct, the Tribunal has not addressed the legislation or policy guidelines relevant to the remaining issues. In the circumstances, the Tribunal considers it is not required to do so.
Nevertheless, the Tribunal has, at times, set out the facts and the oral evidence as they relate to the issues in their entirety in order to preserve the chronology and completeness of the factual picture.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). While the Tribunal is not bound by law to apply the Guide, it should have regard to it and follow it unless there are cogent reasons not to do so.[6]
[6] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:
(a)no pattern of care for the child (s 49(1)(a) of the Assessment Act); or
(b)
a pattern of care that corresponds with the actual care[7] of the child

(ss 50(1)(a) and 50(3) of the Assessment Act),
during such period (the care period)[8] as the Registrar considers, having regard to all the circumstances.
[7]
[8]
If there has been a change in the pattern of care subsequent to a percentage of care determination, a new percentage of care determination can be made only if the existing percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).
An existing percentage of care determination must be revoked where the care of a child has changed pursuant to, relevantly:
(a)Section 54F of the Assessment Act – there is a change to the person’s cost percentage, that is, the percentage of a child’s costs that the person meets through care.[9]
(b)Section 54G of the Assessment Act – where, under the new percentage of care determination, one of the persons who was previously assessed to have at least regular care of the child is now determined to have less than regular care[10] of the child being made available by the other parent.
(c)Section 54H of the Assessment Act – where the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is taking place. In these circumstances, the Registrar may exercise its discretion to revoke the existing percentage of care determination but is not required to.
[9] In the present matter, there is no cost percentage as the existing percentage of care determination records the Applicant as having 0% care of the child from 6 June 2011 (refer to paragraph [3] above and s 55C of the Assessment Act). For a cost percentage to apply, s 55C of the Assessment Act provides that the minimum care percentage is 14%. Therefore, ss 54F and 54G of the Assessment Act are enlivened only if the Tribunal were to find that the Applicant had at least 14% of the care of the child.
[10]
If ss 54F, 54G or 54H of the Assessment Act do not apply, the existing percentage of care determination cannot be revoked and will continue to apply.
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 27 May 2020. The Applicant was represented by

Mr Laurie Fittock from Child Support Help Australia. The Other Party was

self-represented. The Registrar was represented by Ms Hinwood, Seconded Lawyer.[11]
[11] Given the nature of the present application, the Registrar proceeds on the basis that its role should be confined to assisting the Tribunal in identifying and applying the relevant provisions to the evidence. Accordingly, the Registrar gave no evaluation of the available evidence, did not advance a position as to the findings of fact the Tribunal is called upon to make and made no submissions as to what the correct and preferable decision in this matter is.
Following the changes to national circumstances due to the COVID-19 pandemic,

the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.

The parties and witnesses appeared at the hearing via means of electronic communication.
The Tribunal admitted the following documents into evidence:
(a)Applicant’s Tender Bundle provided at hearing (97 pages) (A1);[12]
(b)Applicant’s Statutory Declaration dated 8 December 2019 (A2);
(c)The T-documents (267 pages) (T1 to T27) (R1); and
(d)
The Registrar’s Statement of Facts, Issues and Contentions dated

27 March 2020 (R2).
[12] The Tribunal notes that while a Statement of Facts, Issues and Contentions was not filed on behalf of the Applicant, the Applicant’s letters to the Tribunal dated 20 May 2020 and 21 May 2020 (at A1, pages 93 to 95 and 96 to 97 respectively) contain a number of the matters the Tribunal deems to be the Applicant’s written submissions in the present application.
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
The Applicant’s evidence
At the hearing, the Applicant gave evidence. The Applicant provided the following written evidence:
(a)Applicant’s undated written submission (A1, pages 17 and 18);
(b)Applicant’s undated written submission (A1, page 53);
(c)Applicant’s care record certified on 3 February 2020 (A1, page 54 and referred to in A2).[13]
[13] The Tribunal notes that the Applicant’s representative has, in the index to A1, referred to the Applicant’s undated written submission in A1, page 53 and Applicant’s care record in A1, page 54 as ‘Statement [CSQG] and care record’. The Tribunal’s records indicate that these records were not in fact filed together, the care record having previously been filed with the Tribunal on 12 December 2019 and the written submission being filed for the first time within the tender bundle (A1).
(d)Applicant’s Statutory Declaration dated 8 December 2019 (A2);
(e)
Response to an application for final orders dated 9 December 2015

(R1, T4);
(f)
Applicant’s written correspondence to the Agency dated 19 November 2012

(R1, T5);
(g)Applicant’s email to the Agency dated 20 December 2018 (R1, T12);
(h)
Applicant’s completed Objecting to a Child Support decision form dated

9 February 2019 (R1, T13);
(i)
Applicant’s emails to the Agency dated 10 February 2019, with enclosures

(R1, T14, T15 and T16);
(j)
Applicant’s application for review to the AAT1 dated 15 May 2019

(R1, T23); and
(k)Applicant’s various documents submitted to the Tribunal (R1, T24).
The Applicant’s witnesses’ evidence
The Applicant also called the following witnesses to give evidence at the hearing in support of his application:
(a)The Applicant’s friend, to be referred to as Friend A (Friend A);[14]
(b)The Applicant’s mother;[15]
(c)The Applicant’s brother;[16]
(d)The Applicant’s partner;[17]
(e)The Applicant’s friend, to be referred to as Friend B (Friend B);[18] and
(f)The Applicant’s partner’s sister, to be referred to as Friend C (Friend C).[19]
[14] Witness statement located at A1, page 43.
[15] Statutory declaration located at A1, pages 31 to 33 (declared on 6 February 2019).
[16] Statutory declaration located at A1, page 30 (declared on 8 February 2019).
[17]
[18] Statutory declaration located at A1, pages 39 to 40 (declared on 25 June 2019).
[19] Statutory declaration located at A1, pages 44 to 45 (declared on 8 July 2019).
The witnesses listed in paragraph [27] above gave evidence via telephone.
The Tribunal notes additional witness statements provided in support of the Applicant’s application, by witnesses who did not give evidence during the hearing:
(a)Letter from the Applicant’s general practitioner dated 30 January 2020, enclosing the Applicant’s patient history;[20] and
(b)
Statutory declaration by the Applicant’s partner’s daughter declared on

25 June 2019.[21]
[20] Letter located at A1, page 19 and patient history at pages 20 to 29 (dated 30 January 2020). The Tribunal notes that while the Applicant’s representative has entitled the letter and the related patient history in the index to the Tender Bundle as ‘Medical Certificates and Patient History’, it is unclear whether the two documents stand together, as in the medical history was an enclosure to the letter, or whether the two documents have been placed in the bundle side by side as a matter of administrative convenience.
[21] Statutory declaration located at A1, pages 41 to 42 (declared on 25 June 2019).
The Other Party’s Evidence
The Other Party provided the following written evidence:
(a)Bundle of documents sent by fax on 9 April 2014 (R1, T9);
(b)Bundle of documents sent by fax on 1 April 2019 (R1, T19); and
(c)Documents provided to the AAT1 on 18 July 2019 (R1, T25).
The Other Party’s witnesses’ evidence
The Tribunal notes additional witness statements provided in support of the Other Party, by witnesses who did not give evidence during the hearing:
(a)The Other Party’s sister;[22]
(b)The Other Party’s ex-partner;[23]
(c)The child’s tutor;[24]
(d)The Other party’s father;[25]
(e)The Other Party’s friend;[26] and
(f)The Other Party’s neighbour.[27]
EVIDENCE AND PARTIES’ CONTENTIONS
[22] Witness statement located at R1, T9, page 42 (dated 5 April 2014).
[23] Witness statement located at R1, T9, page 43 (dated 1 April 2014) and at R1, T19 pages 123 and 124 (dated 3 March 2019).
[24] Witness statement located at R1, T9, page 44 (dated 25 March 2014).
[25] Witness statement located at R1, T19, page 120 (dated 18 March 2019).
[26] Witness statement located at R1, T19, page 121 (dated 17 March 2019).
[27] Witness statement located at R1, T19, page 122 (dated 13 March 2019).
The Applicant’s evidence
In his documentary evidence, the Applicant stated that his care of the child was as follows:
(a)Two nights per fortnight since 19 September 2012 (as at 19 November 2012);[28]
[28] R1, T5.
(b)
Shared care[29] from 2008 to 2013, regular care[30] from May 2014 to
[29] In this context, shared care is defined to be at least 35% to less than 65% of the care of the child (the Guide at 2.2.1).
[30] Refer to footnote 10 above.

May 2016 and the child being 100% in his care from May 2016 onward;[31]
(c)
Every second weekend from 2003 to 2007, 50% of the time while he was working an eight days on/six days off roster from 2008 to 2013,

every second weekend from May 2014 to May 2016 plus an eight-week trip and full-time from 6 May 2016 onward;[32]
(d)50% of the time between January 2010 and September 2013, every other weekend plus eight weeks full-time between October 2013 and 2015 and 100% of the time from May 2015;[33] and
(e)100% care of the child from 2015 and shared care prior to that.[34]
[31] A1, page 18.
[32] A1, page 54
[33] R1, T12.
[34] R1, T27, page 260.
At hearing, the Applicant gave evidence that he had had very difficult dealings with the Agency over the years. The Applicant said that he had, over the years, notified the Agency many times of the level of care he had of the children and nothing had ever transpired from it (transcript, page 18 [5]-[20]).
The Applicant said that throughout 2011 and 2012 he had been going through a lot of personal difficulties (transcript, page 19 [15]). As to the Applicant’s care of the child from 2012 (transcript, pages 19 [25-45] and 20 [5-40]:
CSQG: … Exact dates, you know, days I can’t recall but there was a time between 2008 and 2013 when I was on an eight and six roster that I had care of both kids 50 per cent of the time. Especially with [the child]. And then after around 2014 there was,
as I stated, it was every second weekend on top of European trips that I had [the child] with me and [the child’s sibling] at the time from 2014 to 2016. And then obviously from 2016 to this very day, you know, and obviously he’s over 18 at the moment but he was a hundred per cent in care. So the kids or especially
[the child] was never a hundred per cent care in her – she never had a hundred per cent care at all, it was always, as I stated there on the list. You know, working on an eight and six roster, which was a week on week off I had the kids, I had [the child] especially week on week off for that period of time.
MEMBER: Could I just ask a question there, CSQG? So your letter T5 or I think it’s page 1 of the tender bundle where you’ve said:
Two nights per fortnight since 19 September 2012.
Now, in his opening Mr Fittock said that that was the case right up until 6 May 2016. But what I think I’ve just heard from you is more in accordance with the care record on page 54 of the tender bundle where you’ve talked about where it was 50 per cent when you were on the eight six roster and then went up to every second weekend more from 2014. So, Mr Fittock, do you see that that’s different?
MR FITTOCK: Yes, I acknowledge that, Member.
CSQG: At the time - sorry, Member.
MEMBER: Yes, go ahead CSQG?‑‑‑At the time on the tender bundle the T5 where that was written by myself soon after that things changed with the care arrangements basically straight after, you know, straight after that. So at that time in that state of mind that I was in, you know, I was thinking I was doing the right thing and everything by being – you know, letting them know. But then the problem that started happening after things changed and I started making the phone calls to the Department and that’s where things started going pear shaped, you know.
MEMBER: All right, well, then if that’s the case then - - -?‑‑‑And I never heard anything. I never heard anything. Sorry.
MEMBER: I’ll ask you the same question I asked Mr Fittock then, if Mr Fittock doesn’t think it’s right and you don’t either. Is that in his opening he said that that was the case up until 6 May ‘16 but you’re saying that shortly after you wrote that the situation changed.
So when would you say that changed?
[The child] has been in my care two nights per fortnight since 19 September 2012.
But you’re saying shortly after. So this was November 2012 that you wrote it, was it shortly after that or you can’t really say?
I appreciate it’s a while ago but you seem to remember that it changed?‑‑‑Look, it was a while ago. We were on a 50 – I had [the child] on an eight six roster, then it did change for a very brief time, which I let the Department know and I put it in writing. And then after that it – basically within two or probably about two months after that.
So early 2012?‑‑‑It just went – yes, after, you know, probably around just before, you know, Christmas time things just changed and it went back to normal. But then I did attempt many, many times to call the Department and then I never heard anything from them for a long, long while. And, yes, I just ‑ ‑ ‑
All right, so I’ll just take that to be your evidence rather than what Mr Fittock said in opening. And I think, Mr Fittock,
you seem happy with that?
MR FITTOCK: (Indistinct), Member.
(Emphasis added.)
The Applicant’s witnesses
Friend A

Friend A gave evidence that in the time he has known the Applicant, since 2006,

their families have shared several occasions together, including travel between Perth and Melbourne in order for this to occur (A1, page 43; transcript, page 34 [5]-[15]). Friend A gave evidence that on every occasion that he has visited Perth (which was about five times of one to two week’s duration per visit), the child has been living in the Applicant’s care 50% of the time and in the last four years the child has been living with the Applicant 100% of the time (A1, page 43; transcript, pages 34 [30] and 35 [5]-[10]).
The Applicant’s mother
The Applicant’s mother gave evidence that (A1, page 32 and transcript, page 38):
(a)From 17 January 2003 to 4 May 2008, the Applicant had care of the child every other weekend plus birthdays, Easter and Father’s Days;
(b)From 10 February 2009 to 5 May 2014 the Applicant had care of the child on a week on, week off basis, in keeping with his work schedule;
(c)From 6 May 2014 to 6 May 2015, the Applicant had care of the child every second weekend and for 100% of the time on a six-week overseas holiday during that period; and
(d)From 4 May 2015 to 24 January 2019, the Applicant had full-time care of the child.
The Applicant’s mother stated that she knew the claimed care levels set out at paragraph [34] to be true because she would talk with her son and with the child and the child’s sibling, therefore she knew when they were together (transcript, page 40).
The Applicant’s brother
The Applicant’s brother gave evidence that (A1, page 30):
(a)Prior to 4 May 2015, the child lived with the Applicant 50% of the time, coinciding with the Applicant’s week on-week off work roster;
(b)The child had accompanied the Applicant, the Applicant’s partner and the child’s sibling on an overseas holiday from 31 August 2014 to 12 October 2014; and
(c)The child had been living with the Applicant and the Applicant’s partner from 4 May 2015 to the present (being the date of his statutory declaration on 8 February 2019).
The Applicant’s brother stated that he knew the periods and care referred to in his statutory declaration were true because at times he had lived with his and the Applicant’s parents,[35] and would see the child and the child’s sibling come and go to and from school.
[35] At the hearing, the Applicant’s brother gave evidence that he had lived with his parents between 2008 and 2010 (transcript, page 43 [20]) and between 2017 and 2018 (transcript, page 42 [30]. The Tribunal notes that these claimed periods cover part, but not all, of the period referred to in the Applicant’s brother’s statutory declaration.
The Applicant’s partner
The Applicant’s partner gave evidence that (A1, page 35):
(a)From 2010 to 2014, the child lived with the Applicant and the Applicant’s partner 50% of the time;
(b)From around 6 May 2014 to around 6 May 2015 the child spent every second weekend with the Applicant;
(c)From 31 August 2014 to 12 October 2014 the child accompanied the Applicant and the Applicant’s partner on an overseas holiday; and
(d)From 4 May 2015 to the present, the child had been living with the Applicant and the Applicant’s partner 100% of the time.
Friend B
Friend B gave evidence that the child has resided with the Applicant and the Applicant’s partner during the four years prior to his statutory declaration (declared on 25 June 2019) (A1, pages 39 to 40). Friend B said that he knew this to be true because he used to talk to the Applicant every second or third day and because the Applicant and the child used to go to his house at least once a week (transcript, page 48 [10]).
Friend C
Friend C gave evidence that the child had resided with the Applicant and the Applicant’s partner during the four years prior to her statutory declaration (declared on 8 July 2019)

(A1, pages 44 to 45). Friend C said that during this time she saw the Applicant and her sister two or three times a week (transcript, page 50 [20]) and that she has seen the child as often as she can remember (transcript, page 50 [40]).
The Applicant’s submissions
In his written submissions, the Applicant states (A1, page 18):
I acknowledge there may have been inconsistencies in information given by me to the Department on my care of [the child]. I submit that these inconsistencies are relatively minor… …I submit that the evidence that I have provided overwhelming [sic] supports of [sic] my version of the level of care have had for [the child].
(Emphasis added.)
In a written submission dated 20 May 2020, Mr Fittock submitted on behalf of the Applicant (A1, pages 94 to 95):[36]
It is clear that the Registrar sees no further role for herself in deciding the facts of this matter.[37] The Statement of Facts, Issues & Contentions confirms that a care change was notified by the Applicant on 19 November 2012 and that if the Tribunal decides in favour of the Applicant that the appropriate period for the change should be from 18 November 2012 to 18 May 2017. Our client advises that he had regular care of the child from the date advised in November 2012 until
6 May 2016. After that the child was in his care 100% of the time.
In these circumstances I submit that a finding by the Tribunal reflecting this level of care would be appropriate.
(Emphasis added.)
[36] Mr Fittock’s later correspondence dated 21 May 2020 makes a submission to the same effect (A1, pages 96 to 97).
[37] Refer to the explanation of the Registrar’s role in the present matter at footnote 11 above.
In a written submission dated 21 May 2020, Mr Fittock further submitted on behalf of the Applicant (A1, pages 96 to 97):
…With respect to the [AAT1] Tribunal member, the original decision appears to be predicated on conclusions that were either not supported by evidence or by evidence that was many years old without fresh evidence being supplied by either party.
Mr Fittock goes on to submit that the Agency notes do not support a conclusion that there is no evidence that the Applicant attempted to advise the Agency of the various changes in care. Mr Fittock says that, rather, those notes support the contention that the Applicant did so on numerous occasions.[38]
[38] Refers to paragraph [64(b)] below for the Tribunal’s consideration of the relevant Agency notes in this regard.
Mr Fittock, at hearing (transcript, pages 11 [35] to 12 [40]):
Mr FITTOCK: Now, the truth of what the actual level of care was for any specific period is, I don’t know, and I don’t think that eight years later that either parent would be able to record with 100 per cent accuracy who had the children on what particular days but

what our contention is, is that certainly a care change was notified in 2012 and that did reflect the level of care
.
…
… my submission is that if the tribunal, after hearing me and CSQG and the other witnesses, and any response from DGNS, decides that the care should be changed, the submission is that it should be noted as shared care up until either May 2015 or May 2016 and I’ll clarify that later. I can’t be certain of it at the moment but certainly from May 2016, the care for CSQG was 100 per cent.
MEMBER: All right, so I’m a little unclear. So, what you’re saying is that -

so page one of the tender bundle says:
Two nights per fortnight since 19 September 2012.
MR FITTOCK: Yes.
MEMBER:      So, your submission that was the state of things up until - - -
MR FITTOCK: Up until the child…was in the 100 per cent care of CSQG and I’ll clarify that here a bit later.
MEMBER: So, you’re saying from 19 September 2012 until May ‘16, 6th or 7th, just from memory, that you’re saying that was two nights per fortnight - - -
MR FITTOCK: I’m saying that’s the care…
MEMBER:      So, Mr Fittock, I thought I just heard you say shared care?
MR FITTOCK: I apologise, regular care for CSQG.
…
MEMBER:      All right. So, that’s your primary submission?
MR FITTOCK: Yes….
(Emphasis added.)

and (transcript, page 52 [30]):
MR FITTOCK: …the evidence provided by CSQG and the sworn statements from
the five witnesses overwhelming [sic] support CSQG’s version of events as to the care that he has had, and without the dates being precisely defined, the approximate dates of the care that he had. On this basis the submission is that the quality of the evidence provided by CSQG outweighs the evidence provided by DGNS, and on this basis the objection decision should be overturned.
(Emphasis added.)
When asked by the Tribunal to identify specific evidence in support of the Applicant’s submissions, Mr Fittock gave the following response (transcript, pages 53 to 55, 60):
MR FITTOCK: All right. So leading back to the first point, Member, I think the evidence clearly points to a finding that the objection decision should be overturned.
MEMBER: Okay. Go ahead, but I might – I will bring you back to that in a moment.
MR FITTOCK: And we believe that that would lead to a just and equitable outcome, and that the care change should be dated from the date that was flagged by the Registrar. That’s all I have to say, apart from questions that you might have.
MEMBER: All right. Well, good, I will get to those now. Let’s go back to the first part, which you’ve said twice. So you’ve said the evidence is overwhelming in CSQG’s favour in your view. Could you point the tribunal to specific examples of that evidence, and demonstrate how it’s favourable. Because I understand that’s your view, but it’s – the way I’m hearing it, it’s a broad view that’s not – you’ve not explained what you rely upon in forming that – you say evidence. Which evidence? Could you point to specific pages and demonstrate how that is favourable?
MR FITTOCK: We have heard from – evidence from CSQG himself, and also the sworn evidence of five witnesses.
MEMBER: Yes. But you will recall Ms Hinwood helpfully set out the issues before the tribunal and that the care decision of 2011, and that that was 100 per cent care for DGNS. So the first question for the tribunal to turn its mind to is as at September 2012, was this no longer correct, and was a different determination required…

So if that’s the first issue that the tribunal has to consider and you say that the evidence is overwhelmingly in favour that this is no longer correct, what evidence can you direct the tribunal to demonstrate that it’s no longer correct.
MR FITTOCK: The 100 per cent care is no longer correct?
MEMBER: Yes, as at September 2012. Yes. That’s the first issue before the tribunal.
MR FITTOCK: All right. The evidence from CSQG himself, and - - -
MEMBER: All right. So can you tell me what aspect of his evidence?

Can you point to a page in the documents or something that he said perhaps?
MR FITTOCK: Just bear with me. Page 53 and 54, I believe, Member.
MEMBER:      Of the tender bundle?
MR FITTOCK: Yes.
MEMBER:      All right. All right. So – yes.
MR FITTOCK: All right. Was there another question, Member?
MEMBER: I was just waiting for you to answer the first question. So you said that at pages 53 and 54 demonstrate that the 100 per cent care for the other party was no longer correct as at September 2012. So I’m just looking at those two pages for you to point to me or explain to me how they demonstrate that.
MR FITTOCK: All right. Well, can I refer back to page 1 of the tender bundle.
MEMBER:      Yes.
MR FITTOCK:Which is his original notification of the change of care to the Department.
MEMBER: Yes. Right. So – okay. See, this is where I’m struggling a little bit and I’m hoping you can clear up for me, is on page 1 where it says, “Since September 2012” and that’s dated November 2012, and I appreciate CSQG’s [oral] evidence was that that changed shortly after that time.[39] And it says that [the child] has been in his care for two nights per fortnight. So if we take that to be the case for argument’s sake November 2012, but if you look at page 54 where it says 2008 to 2014 that CSQG had 50 per cent of the time, had care for [the child] on the 8 to 6 roster, that those two are different. So which one do you say is correct?
[39] Refer to the Applicant’s evidence at hearing extracted at paragraph [34] above.
MR FITTOCK: I don’t say either of them is correct…
MR FITTOCK: …What I’m saying is that it appears that CSQG had regular care from 19 September 2012, but then shortly after that that turned into 50/50 care, I believe.[40]
[40] Mr Fittock’s submission on this point is a reiteration of the Applicant’s which was heard for the first time at the hearing and does not appear in any of the Applicant’s written submissions. Refer to footnote 39 and paragraph [34] above.
MEMBER: Well, it’s just that page 54, in page 54 that’s reflected from 2008.

So is there something else that you can refer to that supports what you’re saying now?
MR FITTOCK: No, Member, there’s not.
…
MEMBER: …overall I think what you’re asking the tribunal to do is to take the case to be as expressed by CSQG in his oral evidence today, irrespective of the inconsistencies it may find across the documents.
MR FITTOCK: I acknowledge there are inconsistencies there.
…
MEMBER: Yes. So you acknowledge them. And just from what I’ve heard you want the tribunal to just say they exist and adopt CSQG’s oral evidence?
MR FITTOCK: I believe so. Yes.
(Emphasis added.)
The Other Party’s evidence
In her documentary evidence, the Other Party stated that (R1, T9, pages 40 and 41):
(a)the child has been in her care since the day he was born and continues to be for 100% of the time;[41]
(b)the child has not stayed with the Applicant any more than six nights since 2011;
(c)she did not keep records of when the child has spent time with the Applicant; and
(d)she has never expected that she would need to as the child has always lived with her.[42]
[41] See also R1, T19, page 94 and R1, T25, page 145.
[42] See also R1, T27, page 247.
The Other Party maintains that the child has never had every second weekend at the Applicant’s house.[43]
[43] R1, T19, page 94.
The Other Party gave evidence that from around 2003 to 2005, the Applicant’s parents were caring for the child (and his sibling) most fortnights, not the Applicant. The Other Party stated that at this time she did not know where the Applicant was. The Other Party said that around 2006, the Applicant was a little more interested in having the child and his sibling most fortnights, however this was short lived and from then on, the child and his sibling were living with her full-time.[44]
[44] R1, T19, page 94.
The Other Party provided to the Tribunal a printed copy of a text message from the Applicant received on 15 October 2014, which states, in part (in the context of issues regarding payment of the child’s school fees):[45]
My conclusion to this is that I will not pay the school fees not one [expletive] cent. You can deal with the court action they will take.
You have 100% of [the child] you have 100% of all the costs…
(Emphasis added.)
[45] R1, T19, page 111.
The Other Party’s witnesses
The Other Party’s ex-partner gave evidence that in the 19 months prior to 1 April 2014,
he knew of a half-dozen times that the child stayed the night at the Applicant’s house.[46]
In his later statement, the Other Party’s ex-partner stated:[47]
I was dating [the Other Party] for 2 years in the period of October 2013 to December 2015. And I can verify [the Applicant] the father never, at any stage had full time care of [the child], neither did he have him every fortnight weekend.

[The Other Party]
has raised the two children full time 100% on her own from 2003.
(Original emphasis.)
[46] R1, T9, page 43.
[47] R1, T19, page 123.
The child’s tutor gave evidence that during the time she had known the child
[48] R1, T9, page 44.
(since the beginning of 2012), she was aware that the child lived with the Other Party on a full-time basis.[48]
The Other Party’s father and the Other Party’s friend gave evidence that the child has been living with the Other Party full-time since 2003.[49]
[49] R1, T19, page 120 and R1, T19, page 121.
The Other Party’s neighbour gave evidence that since 2009, when he became a neighbour to the Other Party, he has known the child to live with the Other Party 100% of the time.[50]
[50] R1, T19, page 122.
The Other Party’s oral evidence and submissions
At hearing, the Other Party stated that in relation to her written submissions made in 2014 and in 2019[51] (transcript, pages 29 [30] and [45] and 30 [5]-[15]):
[51] Refer to the Other Party’s three written statements listed at paragraph [30] above.
…which are quite thorough, and they have dates, and it does explain, I think,

my life with my two children in order and the way we did things…
…
I’m just pointing out the fact that I am able, as much as I never thought I would ever be able to have to document just bringing up two children, but I was able to do that in both of my statements, in order and in date, and as factual as I can, in contradiction to what CSQG has put forward, is quite a confusing amount, which I can point out three pages where the dates just don’t correspond.
So my point, I guess, is that the way I’ve written my statement, and the way I can refer back to my life with the kids, is a little bit more thorough and a lot more truthful than what - I haven’t seen any statements from CSQG on proving how he even - how he even did this with the kids, and how my kids even got to school from wherever he lived in [suburb], just how they even got to training. I just don’t understand how, if he was flying in-flying out, how this worked. Like, I don’t - there’s no evidence telling you, the tribunal, how this works, how life worked with these kids with CSQG. But I’ve written about in my statement true facts, and that’s exactly how it has happened.
There’s just no evidence, there’s just a lot of excuses as to why he couldn’t provide evidence, but there’s still no hard evidence on what he is claiming. The contradictions are all over the place. I just - that’s really all I have to say.
(Emphasis added.)
At hearing, the Other Party also submitted (transcript, pages 60 [30-40] and [45] and 61

[5] and [20]):
…This whole process is – not process – this whole idea that CSQG had any of this time of care is really become so confusing because it just really didn’t happen, and that’s the truth. There never was a change in circumstances, and if you can refer back to my statement, which points out views of what I have been living with, with my children, there is no – the whole idea that there’s dates all over the place is just clinging to straws because none of it is true. There’s so many contradictions, even with CSQG’s statement, and then his witness’s [sic] statements, they don’t marry up to what CSQG has claimed, and he’s claiming so many different dates that actually it’s just – anyway, none of it makes any sense and none of it is marrying up…
…
…overall CSQG has missed out on many years of having time with the kids because he went along and he did what he wanted to do in his life, he went along, got well-paying jobs, he accumulated a lot of wealth. He missed out on taking the kids to birthday parties, to school. He missed out on the struggles of homework, doing assignments, he missed out on the struggles of bringing up teenagers, picking them up in the middle of the night, constantly. He missed all of that, and he won’t be able to ever tell you about doing any of that because it didn’t – it didn’t happen…
…
If we can just refer to page 111 of T19 in a text message that I have presented that admits the (indistinct) to me, in not a very nice way, “So you have 100 per cent of [the child] so you have 100 per cent of all the costs.” And that is exactly what has happened in the last 16 years of being divorced...
CONSIDERATION
Whether the existing determination of percentage of care made on 6 June 2011 should be revoked and replaced
The first matter for the Tribunal’s consideration is whether, as at September 2012,

the percentage of care determination made on 6 June 2011, which referred to the Other Party as having 100% care of the child, is no longer correct. If so, then the next step for the Tribunal is to revoke the existing determination and replace it with a different determination of percentage of care as at that date. If not, then the existing percentage of care determination remains in place and that ends the Tribunal’s consideration of the matter.

As the relevant care period has now passed, the Tribunal must determine the percentage of care by, in turn, determining the pattern of care that occurred during the relevant period, being 19 September 2012 to 4 May 2017.[52]
[52] Refer to footnote 8 above.
The phrase ‘pattern of care’ is not defined in the Assessment Act. The meaning of the term was considered in the decision of Parent A and Child Support Registrar and Anor [2013] AATA 562. At [33] the decision states:
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 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 that [sic] minor departures from the normal care of the child will not constitute a change to the pattern of care.
(Emphasis added and footnotes omitted.)
The Tribunal therefore considers the percentage of care in any matter, including the matter before it, to be a finding of fact based on the available evidence.
The Applicant first advised the Agency that there had been a change in care on

19 November 2012, relating to a change effective from 19 September 2012,

being two nights per fortnight that the child was in his care. Mr Fittock stated at hearing that that was the case until 6 May 2016. The Applicant, however, stated that this was the case only until just before Christmas 2012, following which time he had care of the child 50% of the time when he was on the eight days on/six days off roster.

Further, the Applicant also gave evidence that he had 50% care of the child from 2008 to 2014. When asked by the Tribunal, Mr Fittock was unable to explain the inconsistency,

or, at the least, indicate which aspect of the evidence was correct as it related to a particular period.
The remaining available evidence in this matter regarding the Applicant’s pattern of care is also contradictory. A detailed reproduction of the inconsistencies in the Applicant’s evidence is unnecessary, in the Tribunal’s view. Rather, it considers the numerous inconsistencies to be clearly apparent on the face of the evidence at paragraphs [32] to [48] above, along with:
(a)The Applicant’s concession to the Other Party in 2014 that the Other Party had 100% care of the child at that time;[53]
[53] Refer to paragraph [52] above.
(b)
The Agency’s file notes of conversations with the Applicant and the

Other Party contained within R1, T27 regarding the Applicant’s evidence of care in 2012.[54] These notes indicate:
(i)The Applicant maintained to the Agency on 21 November 2012 that he has had ongoing care of the child for three nights per fortnight since his case started. The Applicant was “aggrieved” to be told this was not the case according to previous information he had provided.[55]
(ii)The Other Party indicated to the Agency on 24 March 2014 that the Applicant did not have regular care of the child as of 19 November 2012 and had had no care of the child for the last three years.[56]
(iii)The Applicant advised on 25 March 2014 that he had been caring for the child 50% of the time for a long time apart from a period around the end of 2012 when the child was only spending two nights per fortnight with him.[57]
(iv)On 7 April 2014 the Applicant agreed he was not caring for the child for a few months in 2011 and so he would withdraw the care objection.[58]
[54] Refer to R1, T12, page 47. Also refer to paragraph [32(a)] above.
[55] R1, T27, page 234.
[56] R1, T27, pages 241 to 243 and page 247.
[57] R1, T27, page 245.
[58] R1, T7, page 249.
The Applicant and the Other Party clearly dispute each other’s evidence regarding the various care arrangements over time, other than the period in 2014 where the child was in the Applicant’s care during an overseas holiday. The Applicant’s own evidence regarding his care of the child over time is inconsistent with itself and inconsistent with the evidence of his own witnesses, most of whose evidence is insufficient to discern any pattern of care. The Applicant’s evidence regarding the Other Party’s care of the child is also inconsistent.[59] The Applicant is of the view that these inconsistencies are minor and can co-exist along the Applicant’s oral evidence, which, in the Applicant’s view, ought to be accepted by the Tribunal.[60] The Tribunal disagrees.
[59] For example, the Applicant states the Other Party never had 100% care at all (refer to paragraph [34] above) but also stated in 2014, in a text message to the Other Party “[y]ou have 100% of [the child] you have 100% of all the costs” (refer to paragraph [52] above).
[60] Refer to paragraph [48] above.
While the Tribunal acknowledges that there is an element of flexibility in determining the pattern of care,[61] it is of the view that to characterise the pattern of the Applicant’s care, even in the broadest of terms, requires evidence of far greater clarity and consistency than what is available to it in the present application. The Tribunal is also of the view that the inconsistencies in the evidence around the Applicant’s care of the child at the relevant time have not been satisfactorily explained. Rather, the Tribunal’s unsuccessful attempts to gain an explanation of the inconsistencies from Mr Fittock have resulted in the Applicant’s evidence taking on an even cloudier quality. In comparison, the Tribunal considers the
[61] Refer to paragraph [61] above.
Other Party’s contemporaneous evidence provided to the Agency and evidence provided to the Tribunal to be both consistent with itself and consistent over time.
As to what is to be made of these circumstances, the Tribunal considers the only reasonable finding available to it is that there is no evidence to demonstrate a pattern of care during the relevant period at all, let alone a pattern of care that is different to the relevant care arrangement that was already in place. The Tribunal therefore finds that the current percentage of care determination should remain in place,[62] that is, the likely pattern of care was that the Other Party had 100% care of the child from 6 June 2011. On this basis,

the Tribunal concludes that the existing care determination of percentage of care made on

6 June 2011 should not be revoked.
[62] Refer to paragraph [3] above.
Given the Tribunal’s finding, at paragraph [67] above, that the existing determination of percentage of care made on 6 June 2011 remains in place, the Tribunal has not addressed the remaining issues set out at paragraph [12(b)] above. In the circumstances, it considers it is not required to do so.
CONCLUSION
The Tribunal has found that there is insufficient evidence to disturb the existing percentage of care determination currently in place between the Applicant and the

Other Party. As such, the Tribunal concludes that the existing care determination of percentage of care made on 6 June 2011 should not be revoked.
DECISION
For the reasons outlined above, the correct or preferable decision is to affirm the reviewable decision.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

.........................[sgd]...............................................
Associate
Dated: 1 July 2020

Date of hearing: 27 May 2020

Advocate for the Applicant: Mr Laurie Fittock

Counsel for the Respondent: Ms Laura Hinwood

Solicitors for the Respondent: Services Australia

Other Party: Self -represented

Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has or is likely to have had may be worked out on the number of nights of care. The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time based calculation (Polec & Staker & Anor [2011] FMCAfam 959 at [56];

P v Child Support Registrar
[2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47]. A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).

A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate (the Guide at 2.2.1). In the present matter, the assessment of child support ended on

4 May 2017, when the child reached 18 years of age. The Tribunal therefore considers it would be open to it to consider a care period from 19 September 2012 up to and including 4 May 2017 rather than the standard

12 months.

In this context, ‘regular care’ is defined to be at least 14% to less than 35% of the care of the child

(the Guide at 2.2.1).

Statutory declaration located at A1, pages 34 to 36 (declared on 7 February 2019). The Tribunal notes that there are two pages of what the Applicant’s representative has entitled as ‘supporting information’ to the Applicant’s partner’s statutory declaration. These two pages contain the child’s passport information and confirmation of a travel booking for an overseas trip taken by the Applicant, the child and three other persons in 2014. The Tribunal notes that these additional pages were not part of the original statutory declaration filed with the Tribunal on 7 February 2020, however it accepts that these documents form part of the evidence before it. At hearing, when asked by the Tribunal to explain the discrepancy, Mr Fittock admitted that he had added the additional pages to the Applicant’s partner’s statutory declaration himself (transcript, page 44 [35]).

Mr Fittock was “not sure how it came to be added in to tell you the truth” (transcript, page 45 [15]).

[2020] AATA 2050

1 July 2020

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Statutory Construction

Jurisdiction

Procedural Fairness

Remedies

Date of hearing:	27 May 2020
Advocate for the Applicant:	Mr Laurie Fittock
Counsel for the Respondent:	Ms Laura Hinwood
Solicitors for the Respondent:	Services Australia
Other Party:	Self -represented