DQFY and Child Support Registrar (Child support second review)

[2020] AATA 2174

DQFY and Child Support Registrar (Child support second review) [2020] AATA 2174 (6 July 2020)

Division:GENERAL DIVISION

File Number:          2019/4902

Re:DQFY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndJCDG

OTHER PARTY

DECISION

Tribunal:Member K. Parker

Date:6 July 2020

Date of written reasons:        10 July 2020

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides that:

1. the care determination dated 6 July 2018 is revoked;
2. with effect from 6 July 2018 to 2 June 2020, the Applicant had a care percentage of 40% and the Other Party had a care percentage of 60% in relation to their two children; and
3. with effect from 3 June 2020, the Applicant had a care percentage of 42% and the Other Party had a care percentage of 58% in relation to their two children.

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

Member K. Parker

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 – review of care percentage determination – assessment of accuracy of records of care maintained by each parent over care period – consideration of recent new parenting arrangement – decision under review set aside – original care percentage determination revoked – new care percentage determination made

Legislation

Child Support Assessment Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Member K. Parker

10 July 2020

BACKGROUND

1. The Applicant, DQFY, and the Other Party, JCDG, are the parents of two children. DQFY and JCDG live in separate households and they share the care of their two children.

2. On 6 July 2018, a delegate of the Child Support Registrar determined that DQFY had 42 per cent of the care and JCDG had 58 per cent of the care of the two children (Original Determination).

3. On 14 July 2018, JCDG lodged an objection to the Original Determination. The objection officer allowed the objection and on 5 September 2018, decided that DQFY had 28 per cent of the care and JCDG had 72 per cent of the care of the two children (Objection Decision).

4. DQFY sought review of this decision by the Social Services and Child Support Division of the Administrative Review Tribunal (AAT1). On 16 November 2018, the AAT1 affirmed the Objection Decision (AAT1 Decision).

5. DQFY sought review of the AAT1 Decision by the General Division of the Administrative Appeals Tribunal (this Tribunal).

6. A hearing took place on 6 July 2020. The Tribunal was provided with records of care maintained by each parent for at least a 12-month period commencing on 1 November 2018. 

   EVIDENCE

7. The days of care of the children by DQFY and JCDG respectively were marked on each parents’ record of care. There were significant inconsistencies between the two records of care as a comparison was undertaken at the hearing. The Tribunal gave each parent an opportunity to make submissions or provide further evidence at the hearing to demonstrate that the other parent’s record of care was inaccurate.

8. DQFY provided a flight itinerary for a vacation he took with the two children to the Gold Coast from 7 to 12 April 2019. This was a period that JCDG had indicated on her record of care that the children were in her care, not JCDG’s care, from 7 to 10 April 2019.  At the hearing, JCDG did not dispute that their two children went on this vacation with DQFY. For the period 7 to 10 April 2019, the Tribunal was satisfied that DQFY’s record of care was correct and JCDG’s record of care was incorrect. 

9. Neither DQFY or JCDGD provided any further evidence or made further submissions to suggest that the marked-up days of care on their own record of care were correct or that the marked-up days of care in the other parent’s record of care were incorrect. DQFY highlighted to the Tribunal that his mother and his current partner had also lodged statements which gave an account that supported his contention that he had cared for their two children, on average, about three days per week.

10. At the hearing, JCDG told the Tribunal that she had a practice of updating her record of care fortnightly. DQFY told the Tribunal that he had a practice of updating his record of care weekly.

    CONSIDERATION

11. As explained at the hearing, in deciding this application the Tribunal considers it appropriate to make the assessment in respect of a 12-month “care period” as referred to in the legislation, from 1 November 2018 to 31 October 2019. This period was used as the “care period” because both parents had maintained a record of care for a 12-month period commencing on 1 November 2018. 

12. Overall, there was a paucity of evidence from which the Tribunal was able to decide this application. However, the Tribunal finds, on the balance of probabilities, that DQFY’s record of care for the above-mentioned “care period” was accurate and that JCDG’s record of care was not. The Tribunal makes this finding for the following reasons:

    (a)DQFY maintained his record of care on a more regular basis than JCDG as he updated it weekly, whereas JCDG updated her record of care fortnightly;

    (b)the evidence given in the statements provided by DQFY’s mother and his current partner were broadly consistent with DQFY’s record of care and inconsistent with JCDG’s record of care. The Tribunal explained at the hearing that there was a limit to how much weight the Tribunal had placed on the evidence from DQFY’s mother as she did not live in the same house as DQFY; or the evidence of DQFY’s current partner, as she did not live in the same house with DQFY until on and after July 2019;

    (c)most importantly, when some of the dates in the record of care for the month of April 2019 were tested with DQFY and JCDG by the Tribunal during the hearing, DQFY was able to demonstrate (by the production at the hearing of the flight itinerary as detailed in paragraph [8]) that the markings for 7 to 10 April 2019 in his record of care were correct; and JCDG’s were incorrect. This caused the Tribunal to have far greater confidence in the accuracy of DQFY’s record keeping in respect of his record of care, over that of JCDG’s record keeping.

    CONCLUSION

13. Accordingly, the Tribunal prefers the evidence of DQFY and finds that the children were in his care on the days (and correspondingly in JCDG’s care) indicated in his record for the period 1 November 2018 to 31 October 2019. From those records, the Tribunal has counted that the children were in DQFY’s care for 147 days over the care period (40 per cent of 12 months). Accordingly, the Tribunal finds that DQFY had 40 per cent of the care and JCDG had 60 per cent of the care of the two children, and is satisfied that this was the case as from at least the date of the Original Determination until more recently, when a new parenting arrangement was agreed between DQFY and JCDG.

14. The Tribunal was informed by DQFY and JCDG at the hearing that the effect of the new agreed parenting arraignment was that DQFY would care for the children three days per week with effect from 3 June 2020. The Tribunal calculates the percentage of care for DQFY to be 42 per cent (rounding down), based on three days per week equalling 156 days per year.

    DECISION

15. In conclusion, the Tribunal sets aside the decision under review and, in substitution, decides that:

    (a)the care determination dated 6 July 2018 is revoked;

    (b)with effect from 6 July 2018 to 2 June 2020, the Applicant had a care percentage of 40% and the Other Party had a care percentage of 60% in relation to their two children; and

    (c)with effect from 3 June 2020, the Applicant had a care percentage of 42% and the Other Party had a care percentage of 58% in relation to their two children

I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Associate

Dated: 10 July 2020

Date of hearing:	6 July 2020
Applicant:	By telephone
Advocate for the Respondent:	Mr T Noonan
Solicitors for the Respondent:	Department of Human Services
Other Party:	By telephone