DNTV and Child Support Registrar (Child support second review)

[2024] AATA 2273

DNTV and Child Support Registrar (Child support second review) [2024] AATA 2273 (5 July 2024)

Division:GENERAL DIVISION

File Number(s):     2023/8026          

Re:DNTV

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVMJL

OTHER PARTY

DECISION

Tribunal:Member W Frost

Date:5 July 2024

Place:Canberra

The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

...[SGD].........................................................

Member W Frost

Catchwords

CHILD SUPPORT – percentage of care – revocation of existing care percentage determinations – care period – pattern of care – actual care – delegated physical care – responsible person - no change in the care of the Children – decision affirmed

Legislation

Administrative Appeals Tribunal Act 1975 ss 37,43

Child Support (Assessment) Act 1989 ss 4, 35, 49, 50, 54A, 54D, 54F, 54G, 54H

Child Support (Registration and Collection) Act 1988 ss 16, 96A

Cases

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
P v Child Support Registrar [2012] FCA 1398

Secondary Materials

Child Support Guide

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.

REASONS FOR DECISION

Member W Frost

5 July 2024

INTRODUCTION

1. The Applicant, DNTV (the Father), and the Other Party, VMJL (the Mother), are the separated parents of two children (Children). From January 2020, the Child Support Agency (Agency) determined that the Father had 11% care of the Children and that the Mother had 89% care of the Children.[1] The determination of the percentage of care is one of the requisite steps in assessing the rate of any child support payable by one parent to the other under the Child Support (Assessment) Act 1989 (Assessment Act).

   [1] Exhibit 1, pages 380 and 384.

2. In February 2023, the Agency rejected the Father’s change in care notification that he would have 100% care of the Children from 13 November 2022 to 24 January 2023.[2] The Father objected to that determination, which was allowed by an authorised officer who decided that the Father had 14% of the Children during the abovementioned period in late 2022 and early 2023. As a result, the Mother applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for review of that objection decision.[3]

   [2] Ibid., pages 170 and 310-11.

   [3] Ibid., pages 105-135.  

3. The AAT1 set aside the objection decision and found that, despite the Father having an increased percentage of care during the 2022-2023 school holidays, the overall pattern of care that the Father provided for the Children was 11%, such that there was no change in care from the existing care determinations. The Father applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).[4] The Tribunal has considered all documents lodged by the Registrar pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) and the parties’ submissions. For the following reasons, the Tribunal has decided to affirm the AAT1 decision.  

   [4] Ibid., pages 1-3.

   ISSUES

4. The issues for the Tribunal to determine in this proceeding were:

   (a)whether the existing care percentage determinations should be revoked pursuant to sections 54F, 54G or 54H of the Assessment Act;

   (b)if so, what percentages of care should be attributed to the Father and to the Mother under sections 49 and/or 50 of the Assessment Act during an appropriate care period; and

   (c)from what date should any new percentages of care take effect.

   BACKGROUND

5. In March 2017, a child support case was first registered in relation to the Children.[5]

   [5] Ibid., page 366.

6. From 24 January 2020, the administrative assessment of child support was that the Father provided 11% care of the Children and the other party provided 89% care (Existing Care Percentage Determinations).[6]

   [6] Ibid., pages 380 and 384.

7. On 28 November 2022, the Father informed the Agency that care for the Children had changed, and that from 13 November 2022 to 24 January 2023, he would have 100% care of them.[7] The Mother disputed this claimed change in care of the Children and told the Agency that the Existing Care Percentage Determinations remained unchanged from 13 November 2022.[8]

   [7] Ibid., page 170.

   [8] Ibid., pages 196-197.

8. In February 2023, an authorised officer of the Agency decided to reject the Father’s change in care notification such that the Existing Care Percentage Determinations remained in place (Original Decision).[9]

   [9] Ibid., pages 310-313.

9. In April 2023, following the Father’s objection to the Agency’s Original Decision, another authorised officer of the Agency allowed his objection and decided that the Father provided 14% care of the Children from 13 November 2022 and that the Mother provided 86% care (Objection Decision).[10] During that review, the Father informed the Agency that he had not intended to claim that he had 100% care of the Children, but rather had 14% care from November 2022.[11]

   [10] Ibid., pages 316-318 and 343-362.  

   [11] Ibid., pages 316 and 345-346.

10. In May 2023, the Mother applied to the AAT1 for review of the Objection Decision.[12]

    [12] Ibid., pages 105-135.

11. On 14 September 2023, the AAT1 set aside the Objection Decision and, in substitution, decided that there had been no change in the care of the Children as set out in the Existing Care Percentage Determinations, being 11% by the Father and 89% by the Mother.[13] The Tribunal relevantly found that:[14]

    (a)the Children were in the care of the Mother, with the exception of half of the school holidays after Terms 1, 2 and 3 in 2023 (with an averaging effect between the 2022 and 2023 years with regard to the school holidays after Term 3);

    (b)for the period from 13 November 2022 to 2 January 2023, the Father had 31 out of 58 nights of care of the Children (or 53%);

    (c)while the Father ‘may have had four additional nights over one part of the 2022/23 summer holidays’, the pattern of care that the Father has of the Children, according to the evidence of the parents, is half of the school holidays each year, meaning that the Father has six weeks of care per year, or 42 nights care of the Children on an annual basis; and

    (d)the Mother’s percentage of 323 nights out of 365 nights (88.49%) is to be rounded up to 89% and the Father’s care percentage of 42 nights out of 365 nights (11.51%) is to be rounded down to 11% under section 54D of the Act.

    [13] Ibid., pages 4-9.

    [14] Ibid.

12. On 1 November 2023, the Father applied to the Tribunal for review of the AAT1 decision.[15]

    [15] Ibid., pages 1-3.

13. In May 2024, in a related matter, an authorised officer of the Agency decided to reject the Father’s change in care notification in respect of a change claimed to have occurred on 17 September 2023. That decision was not before the Tribunal in this proceeding.

14. On 14 June 2024, the Tribunal held a hearing by the videoconferencing facility Microsoft Teams with all parties in attendance. While the Registrar provided detailed submissions in relation to the facts and applicable legislation in the proceeding, it adopted a neutral position regarding the evidence and contentions of the Father and the Mother and made no submissions or contentions regarding the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Registrar and its legal representative through the Registrar’s submissions and during the course of this proceeding. 

    LEGISLATION & POLICY

15. Section 35 of the Assessment Act sets out the applicable formula to determine the rate of child support payable for the Children. Step 4 in the formula is to ‘Work out each parent’s percentage of care for the child’. The determination of the percentage of care for a child during a care period can be made under sections 49 or 50 of the Assessment Act, depending on whether there has been a ‘pattern of care’ for the child provided by a ‘responsible person’, being a parent or non-parent carer.

16. Under section 49 of the Assessment Act, if 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 care period as the Registrar considers appropriate having regard to all the circumstances, the percentage of care provided by the responsible parent must be 0%.

17. Under section 50 of the Assessment Act, if the Registrar is satisfied that the responsible person ‘has had, or is likely to have, a pattern of care for the child’ during such care period that it ‘considers to be appropriate having regard to all the circumstances’, it must determine the responsible person’s percentage of care for the child that corresponds with the ‘actual care’ of the child that the Registrar is satisfied the responsible person ‘has had, or is likely to have, during the care period’.

18. Subsection 54A(1) of the Assessment Act provides that 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’. However, the Child Support Guide (Guide) states that where there is doubt about the extent of care a person is providing for a child, the Registrar will consider the following where relevant, based on the extent to which the:[16]

    [16] Ibid., page 55.

    ·     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.

    ·     To what extent the person 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.

19. The Tribunal notes that, while not binding, government policy such as the Guide, should generally be applied unless there are cogent reasons not to do so.[17] The Tribunal is not aware of any reasons for it to not apply the Guide and the parties did not make any submissions in this regard.

    [17] P v Child Support Registrar [2012] FCA 1398 at [3]; see also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

20. While the Assessment Act does not specify any fixed duration, the ‘care period’ is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child. In this regard, the Guide states that: ‘While a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances where determining the care over a shorter or longer care period may be more appropriate’ and the specific circumstances of each case will be considered to determine the appropriate care period.[18]

    [18] Ibid., page 57.

21. For completeness, the Tribunal notes that, pursuant to subsections 96A(b) of the Child Support (Registration and Collection) Act 1988, an application may be made to the General Division of the Tribunal for review of a care percentage decision by the AAT1. The Tribunal therefore has jurisdiction in relation to the Father’s application for review of the AAT1 decision that there was no change in the percentage of care of the Children from November 2022.

    CONSIDERATION

22. The task of the Tribunal in this proceeding was to determine the percentage of care that the Father and the Mother each provided to the Children from 13 November 2022.

23. As stated above in these reasons, the Existing Care Percentage Determinations were that, from 24 January 2020, the Father had 11% care of the Children and that the Mother had 89% care of the Children.[19] This remained unchanged up until the present dispute between the Father and the Mother that arose from November 2022, when the Father informed the Agency of a claimed change in the parents’ respective percentages of care for the Children. The Father and the Mother disagreed as to whether care of the Children changed from 13 November 2022 and therefore disagreed about the amount of actual care they each had of the Children from that date.

    [19] Ibid., pages 380 and 384.

24. The first issue for the Tribunal to decide in this proceeding, which determines whether further issues must be resolved, was whether the Existing Care Percentage Determinations should be revoked. This would occur if the Tribunal found that from 13 November 2022 the care of the Children provided by each parent changed from that set out in the Existing Care Percentage Determinations.

25. As the AAT1 set out in its reasons, the Father and the Mother both agreed that the Father had 31 nights of care of the Children in the 58 night period from 13 November 2022 to 9 November 2023.[20] The Tribunal at the hearing in this proceeding confirmed that the parents agreed with this position. The parents also agreed at the Tribunal hearing, as they had before the AAT1, that after this summer holiday period, the Father provided 7 nights of care for the Children in the April 2023 school holidays and another 7 nights of care in the mid-2023 school holidays.[21]

    [20] Ibid., page 6.

    [21] Ibid., pages 3 and 8.

26. A ‘care period’ does not have any fixed duration and the Child Support Guide provides that it would ‘generally be the 12-month period from the day on which the actual care of a child began or changed’.  The care period does not necessarily have to be based on the calendar year or the average care provided by a parent during a particular period of time, such as school holidays. The Guide further provides that the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised. 

27. As set out above, the Agency made a decision in May 2024, while this proceeding was before the Tribunal, regarding care of the Children from 17 September 2023 onwards. That decision was not before this Tribunal. As a result, the Tribunal accepts that it is not open for the Tribunal to identify a care period beyond 16 September 2023 in relation to the issues before this Tribunal. Therefore, the Tribunal finds that the relevant care period before the Tribunal in this proceeding was from 13 November 2022 to 16 September 2023, being a period of 307 nights. Based on the accepted evidence, the Tribunal is satisfied that the Children spent 45 nights with their Father in this 307 night period, equating to 14.65%.

28. The AAT1 concluded that, during the period 13 November 2022 to 9 January 2023 (inclusive), the Mother and/or her parents (the Children’s maternal grandparents) had 27 nights of care of the Children.[22] While the Father’s notification in November 2022 of a claimed change in care of the Children from November 2022 to January 2023 contended that he had 100% care of the Children during this period, this submission does not appear to have been maintained before the AAT1.[23] During that hearing, the Father contended that he consistently had 14% care of the Children.[24] However, at the Tribunal hearing in this proceeding the Father again submitted that he had 100% care of the Children during the summer holiday period from November 2022 to January 2023 (apart from four days over Christmas) and that the Mother therefore had 0% care of the Children during this time. In the Father’s written statement accompanying his application to the Tribunal, it said that the Children ‘were in my full care when they we’re [sic] with me and at their grandparents’.[25]      

    [22] Ibid., pages 6-7.

    [23] Ibid., pages 8, 170, 178 and 203.

    [24] Ibid., page 8.

    [25] Ibid., page 3.

29. As referred to above in these reasons, the Guide provides the following relevant policy guidance regarding determining whether care exists:[26]

    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’ (CSA Act 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 and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). 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)

    [26] Ibid., page 55.

30. As set out in the Guide, in determining whether and to what extent a person has care of a child for the purpose of child support legislation, it is necessary to consider a number of relevant matters.

31. Based on the evidence before the Tribunal, and contrary to the Father’s submission, it is not satisfied that the Mother had no care (or 0% care) of the Children during the summer holiday period. The Tribunal does not accept that the Father had care of the Children when they were staying with their maternal grandparents. On 13 November 2022, the Children flew from their usual place of residence to another capital city and were collected at the airport by their maternal grandfather.[27] They resided with their grandparents from that time for a total of 27 nights out of 58 nights during that summer holiday period from November 2022 to January 2023, which included a period of time with both their Mother and grandparents.[28]  

    [27] Ibid., page 6.

    [28] Ibid.

32. There was no dispute that the Mother had arranged for her parents to look after the Children, because she was moving house due to a new job, and the Father had declined to take them for the initial part of the start of the relevant care period in November 2022 due to his work commitments. The evidence before the Tribunal, which it accepts, was that during the summer holiday period the Mother, as she had done since the Existing Care Percentage Determinations were in place, provided the overwhelming majority of care for the Children. This included the Mother delegating her care of the Children to her parents, the Children’s grandparents. During that time, the Mother arranged and paid for the Children’s return flights, and the Children were met at the airport by their maternal grandfather. The Children resided with their grandparents in the initial period and throughout a substantial proportion of time in the summer holidays, and the Mother communicated regularly with both her parents and the Children during the period they were not in her direct physical care. The Mother also provided her parents with funds for the Children and purchased credit to recharge the Children’s mobile phones, the grandparents sought her approval for the Children to undertake certain activities and the Mother provided assistance and guidance in relation to the Children’s health issues.[29]

    [29] Ibid., pages 103-135 and 268-302.

1. As a result, the Tribunal finds that the Mother continued to have care of the Children in a financial capacity, she delegated physical care of the Children to her parents and otherwise continued to exercise her responsibilities for decisions in relation to the Children during that time. To this end, the Tribunal is satisfied that the children remained in the Mother’s care during that time because she had control and responsibility for them for at least those particular nights that they stayed with their grandparents.

2. Additionally, while the Children stayed with the Father for 45 nights out of 307 nights in the relevant care period, which equates to 14%, the Tribunal finds that the overall pattern of care in that care period did not change from that which had been maintained for almost three years since January 2020, before this particular care period commencing in November 2022. The pattern of care was that the Father cared for the Children for half of each of the school holidays each year, being approximately six weeks annually (or 42 nights per year), with the Mother providing the balance of the care to the Children throughout a 12-month period. The Tribunal is satisfied that this pattern of care remained unchanged and best reflected the percentage of care provided respectively by the Father and the Mother to the Children in the relevant care period before the Tribunal. This also reflects the Existing Care Percentage Determinations that have been in place from January 2020 and the apparent ad hoc nature of the Father’s care of the Children since that time, noting also that parenting orders from 2018 (made with the consent of the parents) providing the Father with more than the current amount of provided care are not followed (which, for the avoidance of doubt, is not a reflection on either parent).[30]

   [30] Ibid., pages 426-434.

3. Having regard to all of the evidence, the Tribunal is not satisfied that the parents’ respective percentages of care for the Children were different to those found by the AAT1. The Tribunal finds on the available evidence that the Father had 11% care of the Children from 13 November 2022 to 16 September 2023 and that the Mother had 89% care of the Children during that care period. The Tribunal is therefore satisfied that there was no change in the care of the Children from that contained in the Existing Care Percentage Determinations. Accordingly, the Tribunal affirms the decision under review. This means that the Father’s application to the Tribunal is unsuccessful.  

   DECISION

4. The Tribunal affirms the decision under review pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

.....[SGD]...................................................................

Associate

Dated: 5 July 2024

Date(s) of hearing:	14 June 2024
Date final submissions received:	27 May 2024
Applicant:	By MS Teams
Solicitors for Respondent:	Mr Aaron Taverniti, Sparke Helmore Lawyers
Other Party:	By MS Teams