DLDX and Child Support Registrar (Child support second review)

[2021] AATA 2161

DLDX and Child Support Registrar (Child support second review) [2021] AATA 2161 (30 June 2021)

Division:GENERAL DIVISION

File Number(s):      2020/1964

Re:DLDX

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKCWL

OTHER PARTY

DECISION

Tribunal:Member R. West

Date:30 June 2021

Place:Melbourne

The Tribunal:

(a)sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 6 February 2020;

(b)revokes the determination of 5 October 2015 that the care percentage for B be 86% for the Applicant and 14% for the Other Party, effective from 4 December 2018; and

(c)determines the care percentage for B to apply from 4 December 2018 to be 90% for the Applicant and 10% for the Other Party.

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

Member R. West

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 ASSESSMENT – application for review – child care percentage – change of percentage – revocation under s 54H and s 54G of the Child Support (Assessment) Act 1989 - decision set aside – new determination.

LEGISLATION

Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018

CASES

Polec v Stalker (2011) 253 FLR 339

SECONDARY MATERIALS

Guides to Social Policy: Child Support Guide

REASONS FOR DECISION

Member R. West

30 June 2021

BACKGROUND

1. This matter concerns a dispute between parents as to the care percentage to be attributed to each parent in respect of their son during the relevant period.

2. The Applicant (Mother) and the Other Party (Father) are the separated parents of two sons, B and J.[1]

   [1] For the purpose of these proceedings the child support arrangements for J are not relevant as the AAT1 Decision did not alter the objections officer’s decision not to change the level of care recorded in respect of him.

3. From 5 October 2015, a child support assessment was made based on B being in the Mother’s care 86% of the time and in the Father’s care 14% of the time.

4. On 19 June 2017, the Mother notified the Registrar of a change in the care arrangements for B and J from 17 June 2017. The change was initially accepted by an authorised officer of the Respondent, but an authorised objections officer set aside this decision on 27 September 2017 and the 5 October 2015 care percentages continued to apply.[2]

   [2] See ST 1.

5. On 4 December 2018, the Mother lodged a further change of care application in respect of B seeking a determination that from 1 October 2018 B was in her care 96% of the time and in the care of the Father 4% of the time. 

6. On 9 April 2019, an authorised officer of the Respondent rejected the Mother’s application.

7. On 7 May 2019, the Mother lodged an objection to this decision and on 12 August 2019 an authorised objections officer accepted the Mother’s objection and determined that the care of B was 95% to the Mother and 5% to the Father.

8. On 19 August 2019, the Father lodged an application with the Social Services and Child Support Division of this Tribunal for a first tier review of the authorised objection officer’s decision. 

9. On 6 February 2020, the Social Services and Child Support Division set aside the authorised objection officer’s decision in respect of B and instead found that there had been no change in the care of B from 1 October 2018 (AAT 1 Decision).

10. On 18 March 2020, the Mother applied to the General Division of the Tribunal for a review of the AAT 1 Decision (Application).

    RELEVANT LEGISLATION

11. The legislation relevant to the determination of the Application is:

    a.Child Support (Assessment) Act 1989 (Assessment Act)

    b.Child Support (Registration and Collection) Act 1988 (Collection Act); and

    c.Administrative Appeals Tribunal Act 1975 (AAT Act)

12. The Tribunal has also had regard to the Child Support Guide (the Guide) where relevant.

    HEARING

13. A hearing of the Application was conducted by telephone on 12 February 2021.  The Mother and the Father were self-represented. The Respondent was represented by Ms Maleah Underhill, a solicitor with Mills Oakley. Ms Underhill appeared on the basis that the proceedings were essentially concerned with a dispute between the parents and her role was confined to assisting the Tribunal in eliciting evidence and identifying and applying the relevant legislative provisions to the evidence.

14. Subsequent to the hearing the Tribunal issued directions for the filing of supplementary submissions. The Respondent filed a written Further Submission on 19 March 2021 and the Mother filed a submission in response on 6 April 2021. The Father elected not to file any further submission.

15. In conducting the Second Tier Review, the Tribunal has had regard to:

    (a)the documents produced by the Respondent pursuant to s 37 and s 38AA of the AAT Act (T Documents and Supplementary T Documents);

    (b)the oral evidence of the Mother and the Father; and

    (c)the various documents provided by each of the parties.

    ISSUES

16. The issues for determination in this matter are:

    (a)whether there was a change in the percentage of care arrangement for B from 1 October 2018, warranting the revoking of the existing determination of percentage care, and if so,

    (b)what new percentage of care should be determined and from what date.

    EVIDENCE

    Mother

17. The Mother gave evidence that the arrangement in place after October 2018 was that B would spend alternate weekends with the Father, but it was never consistent and over a period of 365 days he stayed with the Father only 20-35 nights. She asserted that B did not stay with the Father outside the weekends. The Mother confirmed that this was the arrangement in place before 1 October 2018.

18. She claimed that B and his brother J made their own decisions regarding where they stayed and she had never insisted that they stay with the Father on any occasion. She claimed that the Father had mental health issues and sometimes said he was not able to have the boys.

19. She said that when the boys were to stay with the Father he would pick them up and drop them off at times that suited him.

20. When asked why there was a change for B in October 2018 the Mother stated that she was prompted to reassess his care percentage when the arrangements for his brother J changed in October 2018.  She said she could not point to a precise date when the arrangements for B changed, but when she reassessed his arrangements in October 2018 she assessed that he was staying with the Father only 1 or 2 nights per month and was 95% in her care.

21. She referred to an occasion in 2019 when she went on an overseas holiday during which time B and his brother were cared for by her mother. She claimed that the boys were still under her care during this time. 

22. She said that B’s social circle was in Werribee where she lived and he stayed with her to be close with his friends.  She said he did not stay with relatives or friends for any extended period.

23. The Mother produced a care calendar[3] for the period October – December 2018 which she claimed confirmed that B had been in the care of his Father for only one night each month.  She explained that she had used an electronic work calendar on her phone, to which she lost access when she left that employment in August/October 2019. She said that she was able to recover the entries in 2019 and transposed them onto a blank hard copy calendar.

    [3] T66 at p.383-5.

24. She said that the Father paid 50% of B’s school fees and child support for B but she bore all other expenses. She said that the Father had no involvement in B’s education and she attended all parent/teacher interviews. She said that she made all decisions regarding B’s schooling and health and she dealt with issues related to B’s truancy from school by herself.  She recited an incident in 2017 when B had a skateboarding accident and broke his nose while in the Father’s care. She said the Father didn’t take B to hospital and when she raised it with the Father he delivered B to her and she had to deal with it.

    Father

25. The Father insisted that there had been no change in the care arrangements for B since 2018.  

26. The Father confirmed that the parents had an unofficial arrangement that he was to have care of B every second weekend which represented 14%. This was the position he asserted when the matter was considered by the authorised objections officer in September 2017.[4] The Father insisted that the arrangements were ad hoc and he left it up to B as to what he wanted to do on the weekends he was to be under his care.  He insisted that when B decided to stay with friends and not with him that B was still under his care. He also claimed that B was in his care for extended periods of school holidays, for example for two weeks in December 2019.[5]

    [4] See ST1 at pp.1-2.

    [5] T55 at p.340.

27. The Father gave evidence that he began keeping notes regarding his care of B[6] which he had provided to Child Support.  He was questioned about the notes and whether the entries were contemporaneous.  He insisted that they were made each day even though they were all made with the same pen and appeared to have been entered at the same time. His explanation was that he was very consistent. The Father also provided to Child Support several notes kept on his mobile phone which purported to document the times that B was under his care.[7] These records were at odds with the diary kept by the Mother.[8]

    [6] T33 at pp.275-278.

    [7] T59 at p.359.

    [8] T33.

28. He said that he was in regular contact with the boys by telephone including when they were in the Mother’s care. When asked to explain the difference between the nature of his communication with the boys when they were meant to be with him and when they were with the Mother he said that when they were with the Mother he did not ask them about matters such as what they were doing for dinner. 

29. He characterised his ‘care’ as financial support and love and affection. He highlighted that he gave B cash, provided Ubers, gave him credit card access for PlayStation, paid for football club membership and seating at Marvel Stadium and had purchased him an expensive mountain bike.

30. The Father’s mother provided a written statement to the case manager in January 2020[9] confirming that B sometimes stayed with her and her husband (B’s grandparents) and that when B stayed with friends he often contacted his grandparents to ask to be picked up and taken home or to another place because they lived close to where he was. The Father asserted that the involvement of his parents was part of his care of B.

    [9] T59 at p.353.

31. In an unsworn statement made to a disputes case manager in February 2019[10] the Father’s partner stated that on average B stayed under the Father’s care every second weekend, plus seven consecutive days in January 2018 when the Mother was on holiday in Bali.  She stated further that there have been occasional weekends when B stayed with friends on a Friday or Saturday night but this does not mean he was not in the Father’s care. She said that when B stays at a friend’s house the Father provided him with pocket money and paid for Uber trips. She also asserted that the care arrangements had not changed in October 2018.  The Father’s partner was not called to give evidence.

    [10] T33 at p.293 and T42 at pp.310-312.

32. The Father’s claims were contradicted by statements provided to the Respondent by the Mother’s brother and two of her friends, although their statements were strenuously denied by the Father who instructed lawyers to demand that the statements be retracted.[11] 

    [11] See T59 at pp.362-364.

33. The Tribunal gives little weight to these brief unsworn statements which were clearly partisan, preferring the sworn evidence of the Mother and Father.

34. The care percentage is to be assessed during a care period, which, in the case of a change of care, is usually the period of twelve months after the date of the change.  In this case the appropriate care period is from October 2018 to October 2019.

35. The evidence and material provided to the Tribunal in this case does not establish a clear picture of the care arrangements during the care period. There is considerable inconsistency between the accounts of the Father and the Mother. The Tribunal accepts the submissions of the Respondent that it is not for the Tribunal to go through the evidence in detail to make specific findings of fact in relation to each of the contested assertions. The task for the Tribunal is to make a broad assessment of the percentage of care based on the evidence before it.

36. While the parents disagreed on many matters of detail, they broadly agreed that there was an informal arrangement between them which had been the basis of the care percentage assessment prior to October 2018[12] by which the Father was to have care of B every second weekend.  Both parties acknowledged this arrangement and both parties accepted that this arrangement had operated on the basis that B had not always actually stayed with his Father on each alternate weekend. The essential dispute between the parties was the percentage of care that should be attributed to the Father as a result of the operation of this arrangement. The Mother acknowledged that this arrangement had always been in place and she was unable to point to any basis to assert that there had been a change in the care arrangements in October 2018.  Her evidence was that she was prompted to reassess the care percentage for B when the arrangements for his brother J changed in October 2018.  Her claim was in effect that the existing care percentage was incorrect, and by inference, had always been incorrect.

    [12] T24 at p.246

37. The Guide states that where the information provided by the parties is insufficient for a pattern of care to be determined, and there is no common expectation about future care, the Registrar will assume that the percentage of care known at the time of the assessment was made is continuing.

38. The Tribunal is satisfied having regard to the totality of the evidence that the care arrangements in place during the care period were a continuation of the care arrangement which had applied prior to October 2018.

39. However, the Tribunal is not satisfied that the current percentage care determination which has applied since 5 October 2015 reflects the actual care arrangements which have applied since that date.

40. Put at its highest, the assertion of the Father is that he cares for B every second weekend of the year, which is a 14% care percentage. The Mother’s assertion is that he does not assume care of B for the full extent of that care arrangement. Her assertion is that the Father only cares for B one or two nights per month, a total of 21 nights in 2019.  The Tribunal has considered the contradictory documentary evidence of the parties in the form of care diaries.[13]  The Tribunal is not satisfied that either set of documents can be relied on as an accurate record. However, both sets of documents record that B does not stay with his Father at his home on every occasion that he is designated to his care. On the Father’s own evidence B frequently does not stay with him but elects to stay with friends, with his grandparents or sometimes with his Mother.

    [13] Mother at T66 – pp.383-385 and Father at T33 – pp.277-279.

41. The Father’s claim for a 14% care percentage essentially rests on two assertions:

    (a)B is in his care when he stays with his friends or with his grandparents on days he is designated to be under the Father’s care; and

    (b)his care for B is demonstrated by the financial support and affection he provides.

42. The Guide[14] states that the percentage of care used in the child support assessment is to take into account the amount of time a parent is responsible for providing care for the child.  It will generally be determined according to the actual care the person has of the child, which may be reflected in care arrangements agreed upon by the parents.  Care will generally be worked out based on the number of nights the child is likely to be in the care of the person. The Guide notes that consideration is also to be given to who is responsible for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs. 

    [14] T4.

43. The Tribunal accepts that a child need not be in the physical presence of a person for the child to be in that person’s care. Similarly, care can be exercised through other people, such as the Father’s parents. However, where an adolescent such as B has the autonomy to decide, without consultation with his Father, to stay away from his Father’s home beyond the bounds of any effective supervision, the extent to which care can be meaningfully exercised is very limited. The Father’s claim is that he provides care to B in those circumstances by means of phone contact and providing him with pocket money and trips on Uber when requested. These matters may be evidence of care, but at a very low level.

44. The Tribunal accepts that the Father has provided substantial financial support to B in addition to the child support payments he makes. The Court in Polec v Stalker[15] accepted that the provision of financial support in many ways is relevant to whether a person has care of a child for the purpose of the child support legislation. However, it is most relevant to consider the extent to which the person contributes to the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities.

    [15] (2011) 253 FLR 339.

45. The additional financial support provided by the Father has a limited focus. It has been principally directed to B’s extracurricular activities (PlayStation, bicycle, memberships, Uber and money for entertainment).  The burden of day to day living expenditure appears to have fallen on the Mother. In addition, she has assumed sole responsibility for dealing with ongoing issues in relation to B’s education and health and has provided him with emotional support.

46. Taking all of these matters into account the Tribunal’s overall assessment is that since the initial care percentage determination was made B has not been in the care of his Father for 52 nights per year. On the many occasions he stayed with friends the extent of the care exercised by the Father was minimal at best.  Accordingly, the Tribunal is satisfied that the Father has exercised less than 14% care in relation to B throughout the period from 5 October 2015.  However, the Tribunal is not satisfied that the Mother has justified a finding that the appropriate percentage of care for the Father should be as low as 5%. Based on an overall assessment of the evidence the Tribunal determines that the appropriate assessment of the Father’s care percentage is 10%.

47. A new percentage of care determination cannot be made unless the existing percentage determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act.

48. The supplementary submission filed by the Respondent addressed the position if the Tribunal considered that the actual prevailing care arrangements do not reflect the percentage of care determination in force. There are three relevant provisions under the Assessment Act, ss 54F, 54G and 54H. These sections apply in a cascading way. Section 54H may only apply if neither ss 54F and 54G apply.[16] Section 54F may only apply if s 54G does not apply.[17] These requirements necessitate that the Tribunal consider first s 54G. If it does not apply, then it is appropriate to consider s 54F. If it does not apply then consideration can be given to s 54H.

    [16] Section 54H(1)(c).

    [17] Section 54F(1)(c).

    Revocation under s 54G

1. Section 54G of the Assessment Act provides:

   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.

2. Regular care is effectively defined in s 5(2) of the Assessment Act as less than 14% care.

3. In the context of the present case s 54G would apply if the Tribunal is satisfied that:

   (a)the Father has had less than 14% care of B;

   (b)the Mother has made B available to the Father; and

   (c)the Mother notified the Registrar that the Father had less than regular care within a reasonable period.

4. For the reasons discussed above the Tribunal is satisfied that the Father has exercised less than 14% care in relation to B and the first factor under s 54G is satisfied.

5. The Father has not asserted that the Mother has prevented or dissuaded B from being available to the Father on every second weekend as arranged. The Mother has given no indication that she has not made B available to his Father. Accordingly, the Tribunal is satisfied that the second requirement of s 54G is also met.

6. The Mother’s relevant change of care percentage notification was on 4 December 2018.  That notification was made on the basis of the assertion that the Applicant’s percentage of care for B was below 14%. As such it is a notification that the Father had less than regular care as required by s 54G. The question is whether notification was within a reasonable time. This is an objective assessment.

7. The Mother first notified the Registrar of a change in care percentage in June 2017, although ultimately the Respondent did not accept the Mother’s assertions, and the original care percentage was affirmed by the determination of the authorised objections officer on 27 September 2017.[18] The basis of the Mother’s notification was that the Father’s care percentage was zero by reason that an intervention order was in place.[19] It was not in substance an assertion that the 14% care percentage was otherwise not a true reflection of the actual care of the Father.

   [18] ST1.

   [19] ST1.

8. The current notification was made some fifteen months after the authorised objections officer’s determination. The Tribunal can accept that it may have been appropriate to wait for some time after that determination before notifying the Registrar. However, given that the care determination had been in effect from 5 October 2015 the Tribunal is not satisfied that the notification was made by the Mother within a reasonable time.

9. Accordingly, the Tribunal is not satisfied that the requirements of s 54G are satisfied.

   Change of Care Percentage under s 54F

10. Section 54F(1) provides that:

    (1) the Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) 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.

11. Section 54F does not refer to a change in the pattern of care, but rather to the Registrar becoming aware that the actual care taking place in respect of the child does not correspond with the existing percentage of care.

12. For the reasons discussed above the Tribunal is satisfied that since the inception of the care determination on 5 October 2015 the Father’s percentage of care has been less than the 14% provided for in the existing care determination.  Based on the evidence as a whole the Tribunal finds that the actual percentage of care for the Father is 10%.

13. The requirements of s 54F are mandatory in that the Tribunal must revoke a determination if the section is satisfied. The date of revocation is to be determined by the provisions of the Assessment Act prior to the amendments made by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018, being the date of notification on 4 December 2018.[20]

    [20] The disparity between the Father’s actual care and the determination predates 1 July 2018, the relevant date of commencement of the amending legislation, and the date of notification is before 31 December 2018.

14. To replace the revoked determination the Tribunal determines that a new determination be made that the care percentage for B be 90% for the Mother and 10% for the Father effective from the date of revocation.

    DECISION

15. The Tribunal:

    (a)sets aside the decision of the Social Services and Child Support Division of the Tribunal dated 6 February 2020;

    (b)revokes the determination of 5 October 2015 that the care percentage for B be 86% for the Applicant and 14% for the Other Party effective from 4 December 2018; and

    (c)determines the care percentage for B to apply from 4 December 2018 to be 90% for the Applicant and 10% for the Other Party.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member R. West

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

Associate

Dated: 30 June 2021

Date(s) of hearing:	12 February 2021
Date final submissions received:	7 June 2021
Applicant:	By telephone
Advocate for the Respondent:	M. Underhill
Solicitors for the Respondent:	Mills Oakley Lawyers
Other Party:	By telephone