DPND and Child Support Registrar (Child support second review)

DPND and Child Support Registrar (Child support second review) [2021] AATA 673 (29 March 2021)
Division:                  GENERAL DIVISION
File Number:2019/1572
Re:DPND
APPLICANT

Child Support RegistrarAnd
RESPONDENT

AndKGGS
OTHER PARTY

DECISION
Tribunal:Member S Barton
Date:29 March 2021
Place:Perth

The Tribunal varies the care percentage decision, being the decision of the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT1) dated 14 February 2019 as follows: the date “9 July 2017” is deleted and substituted with the date of “23 July 2017”. That is, the Applicant provides 40 per cent care and the Other Party provides 60 per cent care from 23 July 2017.

The Tribunal affirms the date of effect decision as affirmed by the AAT1 on 14 February 2019, with the date of effect for the care percentage decision being 9 July 2018.
…[SGD]................................................................
Member S Barton
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 – child support assessment – determination of percentage of care – lack of corroborating evidence – consideration of the date of effect – reviewable decision affirmed
LEGISLATION
Child Support (Assessment Act) 1989 (Cth) – ss 49, 50, 54A, 54B, 54F, 54F(2)
Child Support (Registration and Collection) Act 1988 (Cth) – ss 87AA(1), 87AA(2)
CASES
Parent A and Child Support Registrar and Anor [2013] AATA 562
Polec and Staker (2011) 253 FLR 339; [2011] FMCAfam 959
SECONDARY MATERIALS
Family Support Guide – paras 2.1.1, 2.2.1
REASONS FOR DECISION
Member S Barton
29 March 2021
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 14 February 2019 (reviewable decision).
The AAT1 found that from 9 July 2017 the Applicant had 40 per cent care of their son (the child) and the Other Party had 60 per cent care with effect, for child support purposes, from 9 July 2018.
FACTS
The Applicant and the Other Party are the separated parents of the child. The Other Party lodged an application for child support in January 2017, the Applicant is the parent liable to pay child support under the child support assessment (the assessment). On 12 January 2017, the assessment came into effect, recording that the care of the child was 70 per cent to the Other Party and 30 per cent to the Applicant.
On 29 August 2017, the Respondent determined there had been a change in care from 24 July 2017, the Other Party having 65 per cent care of the child and the Applicant having 35 per cent. This is the original decision that was before the AAT1.
On 9 July 2018, the Applicant objected to the original decision on the grounds that from 3 May 2017, he had 44 per cent care of the child in accordance with a parent plan. On 6 September 2018, an objections officer of the Respondent found that from 3 May 2017, the Applicant had 35 per cent care of the child and the Other Party had 65 per cent, effective from 9 July 2018 (the objection decision).
On 4 October 2018, the Applicant sought review of the care percentage decision and the date of effect decision in the AAT1. The AAT1 set aside the care percentage decision and substituted it with a decision that the care from 9 July 2017 was 40 per cent by the Applicant and 60 per cent for the Other Party, effective 9 July 2017. The AAT1 further affirmed the date of effect decision to be 9 July 2018.
On 22 March 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal for a review of the decision of the AAT1.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 15 December 2020. The Applicant appeared by telephone and was represented by his partner Ms C O’Neill of Arboreum Professional Services.
The Respondent was represented by Ms L Hinwood of Services Australia, who appeared by telephone.
The Other Party appeared by telephone and was self-represented.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions with attached Annexures A–E, received by Tribunal 3 July 2020 (Exhibit A1);
(b)Submissions in reply to Other Party’s response and evidence with attachments, dated 14 November 2019 (Exhibit A2);
(c)Written submission and supporting evidence with attached appendices A–F, dated 4 July 2019 (Exhibit A3);
(d)Respondent’s Statement of Facts and Contentions, dated 13 December 2019 (Exhibit R1);
(e)Section 37 documents (T-documents) numbered T1 to T68, comprising 270 pages, dated 1 May 2019 (Exhibit R2);
(f)Submission in reply to the Applicant’s Statement of Facts, Issues and Contentions with attached Magistrates Transcript, received by Tribunal 3 August 2020 (Exhibit O1);
(g)Submission in response to the Applicant’s evidence, received by Tribunal 5 November 2019 (Exhibit O2); and
(h)Submissions and supporting evidence including Whatsapp text message transcript and email records, received by Tribunal 1 October 2019 (Exhibit O3).
ISSUES
The issue before the Tribunal is what percentage of care the Applicant and the Other Party had of the child and, if there was a change in care, the date on which this change occurred. The Tribunal is also required to consider, for the purpose of child support, when any change in care should take effect.
LEGISLATIVE FRAMEWORK
The relevant legislation for this application is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act). The policy relevant to this application is titled the Child Support Guide (the Guide).
Sections 49 and 50 of the Assessment Act provide for the determination of a percentage of care. Section 49 applies when a parent does not have a pattern of care for the child; if satisfied that a person does not have a pattern of care for the child, the Respondent must determine the percentage of care to be zero.
Section 50 applies when the Respondent is satisfied that a person has, or is likely to have,

a pattern of care during a care period. The Respondent must then determine the responsible person’s percentage of care for the child during the care period, which corresponds to the actual care the responsible person provided, or is likely to provide, to the child during the care period.
Section 54B of the Assessment Act provides that, if a determination of a responsible person’s percentage of care for a child is made, a percentage of care applies to each day in a child support period on and from the application day.
The Assessment Act uses phrases such as pattern of care, percentage of care and care period, which are discussed below.
Pattern of Care
The Assessment Act does not give any special meaning to the phrase ‘pattern of care’. These terms have previously been considered by the Tribunal, notably by Member Webb in Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33] (Parent A)
A pattern [of care] 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.
A pattern of care is taken to be a regular rhythm of care provided by the responsible persons which, nonetheless, can experience some occasional changes and variation due to the respective circumstances of the child and the responsible persons.
Percentage of Care
Section 54A provides guidance on working out actual care and extent of care, of a child.
It states:
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
…
The Guide, at 2.1.1, provides further guidance:
Determining whether care exists
…
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
The Tribunal is also mindful of the concept of care as discussed in the case of
Polec v Staker and Another (2011) 253 FLR 339 at [56]. In addressing the extent to which a person has care of a child, Hughes FM found it was necessary to consider the following:
(a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)To what extent does the person make arrangements for others to meet the needs of the child?
(c)To what extent does the person pay for the costs of meeting the needs of the child?
(d)To what extent does the person otherwise provide financial support for the child?
(e)To what extent does the child provide for his or her own needs or have those needs met from another source?
(f)To what extent is the child financially independent or financially supported from another source?
Care Period
At 2.2.1, the Guide states that:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a
12-month period from the day on which the actual care of a child began or changed (the date of event).
The Respondent has contended that it is appropriate for the standard 12-month care period to apply (Exhibit R1, p 5 at [31]). For the purposes of this matter, the parents’ care period under consideration is 3 May 2017 to 3 May 2018.
THE ORIGINAL DECISION
In this matter, there is some confusion or dispute by the Applicant regarding the ‘original decision’. From the Applicant’s perspective, the ‘original decision’ was made in January 2017, after the Other Party’s application for Child Support (Exhibit A1, p 2 at [8]). The Applicant contends that he never agreed to the care percentages at that time and that there was administrative negligence by the Child Support Agency (the Agency) (Exhibit A1, pp 1-2).
In the AAT1, the Tribunal advised the Applicant that the matter under consideration related only to the care percentage determination made by the Agency following the notification of a change of care in July 2017. Moreover:
The Tribunal made it clear that care in place at the time the assessment commenced had its own objection rights and was not part of the current review. (Exhibit R2, p 15).
Nevertheless, the Applicant (in both written and oral submissions) raised the issue of the percentage of care that was determined in January 2017. During the hearing, the Applicant claimed that an objection was lodged by him in relation to the January 2017 decision. The Respondent provided the following response during the hearing (transcript, pp 22–23):
To the extent that the Applicant says that there was an objection made in February to that January decision, I don’t have any record of that but in any event, I think the fact is that what’s been reviewed, sought review of, and what’s before the Administrative Appeals Tribunal is the decision made on 29 August 2017 to change the care assessment.
So, in seeking to argue that there was an objection lodged in relation to that January 2017 decision, I’m not sure that it really gets us anywhere with the Administrative Appeals Tribunal proceedings because even if it were accepted that objection was lodged, it hasn’t been decided by the [R]egistrar or the AAT-1, and the [T]ribunal, in my view wouldn’t have the jurisdiction to consider that.
In the interests of clarity, it is worth reiterating for the Applicant, that in this matter, the Tribunal can only consider the decision made on 29 August 2017 which determined that there had been a change in care.
A Parenting Plan (the Plan) was agreed by the parents on 3 May 2017, establishing a regime for the care of the child (Exhibit R2, pp 135–140). It established a four-week routine where the child was in the care of the Applicant for 11 nights each 28 days, as follows (Exhibit R2, p 136):
(a)week one, Sunday to Tuesday (two nights);
(b)week two, Saturday to Tuesday (three nights);
(c)week three, Sunday to Tuesday (two nights); and
(d)week four, Friday to Tuesday (four nights).
The Plan also established arrangements surrounding birthdays, holidays and other significant events (Exhibit R2, p 137).
According to the Other Party (transcript, p 25 at [29]):
Before we had the formalised Parenting Plan in May, I felt that it was a flexible ad hoc arrangement where we had a sort of affixed routine of two nights a week where [the child] would spend with his dad, and that’s how I viewed the arrangement.
In AAT1, the Other Party said the Plan was followed as much as possible (Exhibit R2, p 16). The Applicant has also noted that the Plan was ‘primarily adhered to’ (Exhibit A1, p 5 at [24]), however he said that it reflected the care plan that was already in place (Exhibit A1, p 9 at [55]).
The Applicant stated that he posted a copy of the signed Plan in late May and early June 2017, having been advised in January 2017 by the Agency that no email facility existed for him to do so (Exhibit A1, p 12 at [67](b)).
He said that he electronically submitted the Plan in July 2017 and contacted the Agency on 22 August 2017 to check the progress of his submission, and to record that the care percentage was not 70 per cent to the Other Party and 30 per cent to him (Exhibit A1, p 12 at [62](b)).
According to the Agency’s notes, the Applicant contacted the Agency on 24 July 2017, to advise of a change of care whereby the Applicant had five nights of care per fortnight, that his care percentage was 35 per cent and that a parenting plan was in place (Exhibit R2, p 214).
The Applicant again contacted the Agency on 22 August 2017 to advise that from 24 July 2017 the child had five nights in the Applicant’s care per fortnight. He further advised that he had 35 per cent care, and the Other Party had 65 per cent care (Exhibit R2, p 216).
On 29 August 2017, the Agency wrote to the Applicant stating that from their records, he had 35 per cent care of the child from 24 July 2017 (Exhibit R2, p 61). On the same day, the Agency advised the Other Party that her care of the child from 24 July 2017 was 65 per cent (Exhibit R2, p 63).
On 9 July 2018 the Agency confirmed that the Applicant objected to the decision of 29 August 2017 (Exhibit R2, p 84). The Agency record of conversation notes that the Applicant stated that a parenting plan was made on 3 May 2017 and that ‘[m]y care was 44% as per the parenting plan if [the Other Party] hadn’t chosen to keep [the child] in December 2017 and January 2018. We went through dispute resolution after she withheld my care’ (Exhibit R2, p 223).
The Applicant claimed that there were special circumstances preventing him from lodging his objection within 28 days of the original decision. According to the Agency notes, he advised that he had called about these matters in February or March 2018 and was advised the website was not working properly to supply his evidence (Exhibit R2, p 223).
In his submission the Applicant stated that he had contacted the Agency in January 2018, citing audio records of the contact, and that the Agency had not ‘kept good notes’ (Exhibit A1, p 10 at [60]). The question of special circumstances will be addressed later in this decision.
On 23 July 2018, in response to the Applicant’s objection, the Other Party provided a breakdown of the days the child was in the Applicant’s care between 24 July 2017 and 13 July 2018 (which amounted to approximately 40.39 per cent with the Applicant) (Exhibit R2, p 87), and disputed the claim that she withheld care in December 2017 and January 2018 (Exhibit R2, p 86). The Other Party also noted that the Plan is unclear and open to interpretation, necessitating the need for mediation.
The Other Party also provided a statement from her mother, who states (Exhibit R2, p 88):
I am aware of the routine [the Other Party] and [the Applicant] have in place, [the Other Party] has done her best to uphold the agreement to date. However there has been previous and ongoing disputes about the parenting plan from both parties and mediation has been attempted but unsuccessful.
Every Tuesday I call [the Other Party] at 6.30pm to ensure the safety of [the child] and [the Other Party], as Tuesday is the changeover day…
On 16 August 2018, the Applicant provided the Agency with a statement that disputed the Other Party’s account (Exhibit R2, p 90). In his statement, the Applicant addresses the percentage of care from January 2017, which is not relevant to this decision.
The Applicant disputed the summary of the care times based on the Other Party’s use of the Cozi Calendar, a shared calendar application, which he states is open to retrospective manipulation (Exhibit R2, p 92). The Applicant stated that he preferred a handwritten communications book with recorded time entered by each parent, which was commenced in September 2017 (Exhibit R2, p 91). The Tribunal does not have a copy of this record.
The Applicant disputed the Other Party’s assertion that the Plan was unclear for the December to January period, noting that the Plan refers to arrangements for school holidays, despite the fact the child is yet to enter school (Exhibit R2, p 92).

The Applicant proceeded to compare the dates provided by the Other Party with an Excel spreadsheet maintained by him. He disputes some of the dates, noting for example, double entries, holidays, work trips by the Other Party (Exhibit R2, pp 93–98). The Applicant concludes:
Even solely utilising the months of the care periods covered by the table provided by [the Other Party], from own diarised nights that my son spent with me across this period, that I provided evidence were correct, I observe that the full monthly calculated care period with me on average for this period reflect >42.80% and would have been as high as 45.04% had care not been withheld.
The Applicant also provided statutory declarations from his mother, dated 7 August 2018 (Exhibit R2, p 102). In her statutory declaration, his mother stated (Exhibit R2, p 103):
In September 2017 I understand my son to have finished his move from his friends unit to a residence with his new partner…
I understand that the agreed care times of the parenting plan have been observed by both parties since his move to this living circumstance and that both parents… contribute to a shared communication book for the grandsons care, since September 2017.
(Without alteration.)
The Applicant’s mother also stated that the Other Party had denied the Applicant care of the child over Christmas 2017 and not consented for the child to travel overseas for a family holiday (Exhibit R2, p 103).
The Applicant’s father also provided a statutory declaration, which gave a broad overview of the care arrangements. It mentions the mother having care of the child during Christmas 2017 and the child not being able to attend the family overseas holiday (Exhibit R2, pp 108–109).
The Applicant’s partner also provided a statutory declaration, which identified some discrepancies in the dates provided by the Other Party, specifically 7–15 August, 24–26 September and 8–13 February provided by the Other Party (Exhibit R2, p 113–115).
The Applicant also provided a copy of an Excel spreadsheet on which he recorded the care of the child, records of his son’s attendance at South Perth Early Childhood Centre, documents relating to the mediation and the Plan (Exhibit R2, pp 117–140)
CONSIDERATION
Percentage of Care
The Tribunal is satisfied that there was a change in care from the previous pattern on 3 May 2017, when both parties agreed to the Plan. As detailed above, this would mean that the Applicant has care of the child for 11 nights every 28 days, or 39 per cent from 3 May 2017. The relevant care period is 3 May 2017 to 3 May 2018.
Both parties have provided a care record. It is clear from the evidence provided that the Applicant has provided a more detailed record. The Other Party stated during the hearing (transcript, p 25 at [21]):
I didn’t keep my own set of calendars. I was just going via correspondence through messages and emails and that sort of thing to create my own calendar, so I can’t say whether they are accurate or not because I didn’t keep my own set of calendars.
The Agency’s objections officer compared the actual care given during the period, based on the 11 nights each 28 days, with the record of the care provided by the Applicant. On two occasions, there were 11 nights in each 28-day cycle. On three occasions the Applicant provided an additional care of seven nights during the respective cycle. On four occasions additional care was provided on one to three nights during the respective cycle, on two cycles only ten nights of care were provided and one occasion five nights during the cycle only 5 nights of care were provided (Exhibit R2, p 148).
The objection officer concluded (Exhibit R2, p 148):
His extra care appears to be ad-hoc with no specific pattern. Additionally, the reasons behind the departures from the care under the parenting plan is more aligned with the parents being flexible, rather than decided permanent change to the pattern of care.
Notwithstanding the clearly apparent tension between the two parties over the care provided, there is evidence of the parties displaying a degree of flexibility in relation to the care period in question. The Tribunal is mindful of Member Webb’s observation in Parent A at [33]:
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.
The extra care totaled 18 more nights of care for that care period. This is not insignificant, however, as the decision maker in the objection decision found, it was ad hoc and did not follow a specific pattern. This variation therefore does not constitute a change in the pattern of care.
AAT1 noted that the Plan of 11 nights every 28 days, equaling 143 nights per year, was being adhered to (Exhibit R2, p 17 at [35]). However, AAT1 also calculated that, according to the Plan, with birthdays, Christmas night and alternating Easter, the Applicant would have care of the child for 149 nights or 40 per cent of the time for the period (Exhibit R2, p 18).
The Tribunal concurs with the calculation of the AAT1, that is, 40 per cent care to the Applicant and 60 per cent care to the Other Party.
Revocation of Existing Care Percentage
Section 54F of the Assessment Act states that a percentage of care determination must be revoked if the Respondent is notified or becomes aware that the care of the child does not correspond with the existing percentage of care.
The relevant provision at the time, s 54F(2) of the Assessment Act provides that where care has increased, the revocation of care determination takes place from the date of the change of care if the Respondent is notified of the change within 28 days or from the day before the Respondent is notified of the change in care, if this does not occur within 28 days of the change occurring.
The Respondent contends that if the Tribunal is to revoke the percentage of care, the appropriate date would be 23 July 2017 (Exhibit R1, p 6 at [36]). The Tribunal accepts this contention: the care arrangements changed on 3 May 2017 and the Applicant advised the Agency on 24 July 2017.
Date of Effect
Section 87AA(1) of the Collection Act provides that where an objection is not lodged within 28 days of receiving the notice of the care percentage, and the objection is allowed either in part or full, the objection decision will have effect from the date the objection was lodged.
Section 87AA(2) of the Collection Act, provides that the Registrar may determine that the period of 28 days be extended if satisfied that special circumstances prevented the objection being lodged within the required timeframe.
The AAT1 listed some examples of special circumstances, also listed in the objection officer’s decision (Exhibit R2, p 19). They include:
(a)the parent was seriously ill or had an accident that prevented them from lodging an objection;
(b)the parent suffered a personal trauma such as a death in the family or natural disasters causing damage to the parent’s property;
(c)the parent had communication difficulties; and
(d)the parent reasonably relied upon inaccurate or misleading information.
The Applicant has contended that there were gross administrative errors made by the Agency (Exhibit A1, p1). As the AAT1 noted, it may be correct that the Applicant was poorly advised on at least one occasion, regarding advice to keep a care diary for at least 127 nights before lodging an objection, this does not explain the nearly 12 month delay for the lodging of the objection (Exhibit R2, p 20).
The Applicant, an engineer, has demonstrated a capacity to vigorously interrogate information provided by the Other Party. He wrote long and detailed emails to the Other Party regarding clauses of the parenting plan and pursued Agency information and recordings. He could very well, based on this pattern of behaviour, have lodged an objection sooner.
DISCLOSURE
In the course of finalising this decision, it came to my attention (through the Other Party’s application for child support) that the Applicant was at one time employed by a company for which I now work (Exhibit R2, p 38).
The company has multiple business units and tens of thousands of employees in Australia. I do not know in what capacity or business unit the Applicant was employed and he is not known to me. To my knowledge, he was not employed in my business unit or in a function or position which I would engage or work with; nor was he employed by the company during the same time period.
These circumstances should not give rise to any reasonable apprehension of bias.
DECISION
The Tribunal varies the care percentage decision, being the decision of the AAT1 dated 14 February 2019 as follows: the date ‘9 July 2017’ is deleted and substituted with the date of ‘23 July 2017’. That is, the Applicant provides 40 per cent care and the Other Party provides 60 per cent care from 23 July 2017. Furthermore, the Tribunal affirms the date of effect decision as affirmed by the AAT1 on 14 February 2019, with the date of effect for the care percentage decision being 9 July 2018.

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

...[SGD]....................................................................
Associate
Dated: 29 March 2021

Date of hearing:

15 December 2020

Advocate for the Applicant:

Representative for the Respondent:

Ms C O’Neill

Ms L Hinwood

Solicitors for the Respondent:

Services Australia

[2021] AATA 673

29 March 2021

Key Legal Topics

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Family Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Judicial Review