DRQL and Child Support Registrar (Child support second review)

[2024] AATA 2278

DRQL and Child Support Registrar (Child support second review) [2024] AATA 2278 (5 July 2024)

Division:GENERAL DIVISION

File Number(s):      2023/6689

Re:DRQL

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKJJZ

OTHER PARTY

DECISION

Tribunal:Member Ranson

Date:5 July 2024

Place:Brisbane

The Tribunal varies the decision under review.


...................................[SGD].....................................
Member Ranson

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 (Cth).

Catchwords

CHILD SUPPORT – percentage of care determination – change in care - where there is dispute as to whom had care of the child during the care period – whether either parent provided actual care during the care period – where there were periods during which neither parent provided actual care – application of Polec & Staker – decision under review varied

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

Cases
Child Support Registrar v BKCZ [2023] FCA 1109

Polec & Staker & Anor (SSAT Appeal) (2011) 253 FLR 339; [2011] FMCAfam 959

REASONS FOR DECISION

Member Ranson

5 July 2024

BACKGROUND

1. DRQL (mother) and KJJZ (father) are in dispute about the care of their daughter born in 2006. She is about to turn 18. The period in dispute starts on 27 September 2022 by which time the daughter had left the care of her mother and returned to live with her father interstate. A child support case had been in place since 2009 which assigned 100% care to the mother and 0% care to the father.

2. The father notified the agency he had 100% care of the daughter once she arrived at his place however the mother asserted that was not the case. She agreed she no longer had any care and the daughter, she said to Centrelink, was not in the care of her father rather she was moving from house to house. It seems the daughter was living occasionally with her father and otherwise stayed with her older sister, her father’s brother and her mother’s mother. They all live in the same general area. The father partly disagreed.

3. He agreed his daughter was not in his overnight care all the time as his accommodation had only one bedroom, which was occupied by his son. He also agreed his daughter would often stay with others. He said he provided for his daughter as she was his responsibility, legally and financially. The mother says her daughter was only with her father during the day and slept elsewhere overnight. She says she paid her daughter’s phone bill and bought her clothes.

4. Others have offered differing views of where the daughter received overnight care. The only certainty seems to be she was in the care of her father on a very limited basis and his financial support was as limited as it was from the mother. Centrelink assigned 100% care to the father and the mother seeks a review of that decision. She says there was no pattern of care and both parents should be assigned 0% care of the daughter for the period until the father made appropriate living arrangements and the daughter moved in with him in December 2023.

5. There is no dispute the care of the daughter changed on 27 September 2022 and the mother had no overnight care from then. The question is who, if anyone, had care of her from that date, considering the limited financial contributions from each parent and the numerous nights the daughter stayed with someone other than her father.

6. For the following reasons, the Tribunal varies the decision under review and finds the care period was from 27 September 2022 to 26 December 2023 and during that period each parent had a care percentage of nil. From 27 December 2023 the care percentages are 100% to the father and 0% to the mother until the daughter turns 18.

   THE LAW

7. As set out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC), The relevant legislation and policy provisions are contained in the:[1]

   (a)Child Support (Assessment) Act 1989 (Cth) (Assessment Act);

   (b)Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act); and,

   (c)Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

   [1] SFIC, paragraph 30.

   Determining the percentage of care

8. This is dealt with under ss 49 and 50 of the Assessment Act. The meaning of these sections is set out in Child Support Registrar v BKCZ [2023] FCA 1109 where Thomas J states from [60] to [62] and in [71] and [86]:

   [60] Section 49 requires that the Registrar must be “satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [61] Section 50 requires that the Registrar must be satisfied that a “responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”.

   [62] Section 50 continues, when referring to the percentage of care determined under subs (2), that it “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period”.

   …

   [71] The sections themselves point to a consideration of “actual care”. For example, s 50(3) requires that the percentage of care determined “must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period” (italics added).

   …

   [86] In answer to the question of law raised:

   …

   (c) the AAT was obliged to adopt an approach incorporating a consideration of events occurring after the date of notification of the change.

9. As pointed out in the Respondent’s Statement of Facts, Issues and Contentions (SFIC), there was an existing pattern of care, established in 2011, which was 100% to the mother and 0% to the father. Those care percentages were determined under s 50 for the mother, because she had a pattern of care and s 49 for the father, because he had no pattern of care.

10. The decision in BKCZ clarifies the Tribunal’s role in the present decision is to consider what actual care occurred after the daughter left the care of her mother and went into the care of her father. The identification of actual care was reiterated at the hearing by Ms Gehrke for the Registrar who also observed the care period is usually 12 months although the period can be longer or shorter than that, and multiple care percentage changes are possible.

    Sections 54F, 54H and 54G of the Assessment Act

11. These sections apply to the revocation of a care percentage determination. Section 54H can only apply if ss 54F and 54G do not apply and s 54F can only apply if s 54G does not apply. The order for consideration in s 54G, then s 54F and then s 54H.

    Cost percentages

12. Cost percentages are relevant to any decision to change a care determination under s 54F of the Act. There are a series of bands of care percentages which correspond with bands of cost percentages. As discussed above, if a change in the care percentage causes a change in the cost percentage the Registrar must revoke the existing care percentage determination. Those bands are:

Cost percentages
Item	Percentage of care	Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

Section 54G

1. This section deals with the situation where a person who is responsible for a child was to have at least regular care of the child and they had no care of the child, or a pattern of care that is less than regular care of the child, despite another person who is responsible for the child making the child available. In that case, if a determination of the percentage of care for the child has been made and the other responsible person gives notice the pattern of care is less than regular care of the child, despite the child being made available within a reasonable period, the Registrar must revoke both determinations.

   Section 54F

2. The Registrar must revoke a determination of a percentage of care for a child if they are notified, or otherwise becomes aware, that the actual care of the child does not correspond with the existing percentage of care and the Registrar is satisfied the cost percentage for the child would change if the Registrar were to determine another percentage of care for the child. As mentioned above, this section can only apply if section 54G does not apply.

   Section 54H

3. The Registrar may revoke a determination of a percentage of care for a child if notified, or otherwise becomes aware, that the actual care of the child does not correspond with the existing percentage of care and is satisfied that a fresh percentage of care would not be the same as the existing percentage of care. This section can only apply if sections 54F and 54G do not apply.

   WHAT HAPPENED?

4. The mother formed the view the daughter would be better off transferring into the care of her father. The mother and the father live in different states. She informed the Registrar that the daughter left her care on 10 September 2022.[2] The father notified the Registrar the change into his care began on 27 September 2022.[3]

   [2] Section 37 ‘T’ Documents, T7.

   [3] Section 37 ‘T’ Documents, T4.

5. The difference in the date of change appears to relate to the travel arrangements for the daughter. She arrived by plane and was collected by her mother’s parents and spent two nights with them before moving to live at a friend’s mother’s house. Later she was taken by them to her father’s unit which he shared with his son, who is the brother of the daughter.[4]

   [4] Evidence of the mother at the hearing.

6. On 27 October 2022, the father called the Agency and said:[5]

   [redacted – the father] advised his brother will be able to provide statement as child is living with him due to [redacted – the father] living in 1 bedroom house but [redacted – the father] still providing for child eg meals and other support.

   [5] Section 37 ‘T’ Documents, T8.

7. The SFIC records at paragraph 16: ‘On 20 December 2022, a delegate of the Registrar revoked the existing care determination and determined that the Applicant had 0% care and the Other Party had 100% care of the child from 27 September 2022’.[6]

   [6] Section 37 ‘T’ Documents, T24.

8. The mother objected in time to that decision and an objections officer disallowed her objection.[7] She applied to this Tribunal for a review of that decision, which was affirmed.[8] She then applied out of time to this Tribunal for a second review of that decision,[9] and an extension of time to apply was granted.[10]

   [7] Section 37 ‘T’ Documents, T41.

   [8] Section 37 ‘T’ Documents, T2.

   [9] Section 37 ‘T’ Documents, T1.

   [10] Section 37 ‘T’ Documents, T50.

9. The basis of the mother’s application is the daughter was not in the care of the father. There is no dispute she was also not in the care of the mother, rather she lived in several other places including occasionally with her father, who did not provide her with a home. She says the care percentages should be nil to both parents during this period.

10. The hearing for the second review was held on 11 March 2024. The mother attended by video and the father by telephone. Ms Gehrke appeared for the Registrar.

11. As mentioned above, s 54G cannot apply to revoke the care determination because for the father, that determination was made under s 49 of the Act. The situation for the mother is her care went from 100% to 0%. That means her cost percentage changed from 100% to nil. Accordingly, the Tribunal finds s 54F of the Act applies and the care percentage determination of 2011 must be revoked. As s 54F of the Act applies in this case, s 54H has no application.

    What does the mother say?

12. The mother provided a written submission dated 19 December 2023,[11] and statements from her son (Mr D),[12] and her daughter (Ms K),[13] both dated 17 October 2023. Mr D is the elder brother of the daughter and Ms K, who is not the biological child of the father, is the stepsister of the daughter. Ms K says in her statement she considers him to be her father. A statement from the mother of the daughter’s best friend was also provided.[14]

    [11] Exhibit A1.

    [12] Exhibit A2.

    [13] Exhibit A3.

    [14] Section 37 ‘T’ Documents, T34.

13. The mother’s statement speaks of the difficult relationship with the father and accuses him of using illicit drugs and providing them to their children once they were teenagers. The relationship between the parents and them with the children and the associated parenting arrangements is not relevant to this decision.

14. She speaks of her financial contributions for the care of the daughter including the deposit for the cost of braces however that was after the care period under review and is not relevant to this decision. She says she booked and paid for the learner licence and the licence once she passed the driving test. She says she paid for the daughter’s mobile phone, public transport, and for birthdays and Christmas she filled a massive basket with toiletries, underwear, swimmers, shoes, and clothes enough to last her several months. Birthday and Christmas presents are a normal part of parenting. To the extent the ‘massive baskets’ were more than normal gifts they amount to providing care by way of financial assistance albeit there is no evidence to show how much was spent.

15. The mother acknowledges the father was instrumental in enrolling the daughter in a TAFE course albeit he made no financial contribution as the cost was paid for by HECS and which has now resulted in a HECS debt. The Tribunal notes most students emerge from tertiary study with a HECS debt so that is not unusual.

16. She discussed her understanding of the living arrangements and says she disputes the daughter lived with her father until he obtained his own accommodation at the end of 2023. She says:[15]

    From the time [the daughter] left my care up until now [19 December 2023] she’s been moving from house to house, getting lifts of everyone, but considering how [the father] has been 20 mins away for a while now, it’s usually other people.

    She’s been staying and eating at my mum and dad’s a fair bit and they love having her there because they know she’s eating properly.

    [15] Exhibit A1.

17. The most relevant part of the statement by Mr D is as follows (errors in the original):[16]

    He [the father] works at [redacted] hospital as a wards-man, whilst I was living with him he would work about 4-7 days a Fortnite my sister [the daughter] would share her time at [father’s brother] our flat or her boyfriend at the time, [the daughter] would sometimes stay over on the lounge because it was a 1 bedroom unit or she would just come over to smoke and go back to [father’s brother].[Paternal grandfather] was always giving [the daughter] money if dad couldn't give her any he would also drive her most places and pick her up.

    [16] Exhibit A2.

18. This tells the Tribunal the times when the daughter stayed overnight with her father were few and intermittent with no indication of any regular pattern of care. The Tribunal notes this statement indicates Mr D would give money to his sister when the father could not. Mr D was not called to give evidence at the hearing by the mother or the father.

19. The most relevant part of the statement by Ms K, who was called to give evidence and did so by video, is as follows (errors in the original):[17]

    Since [the daughter] moved down she hasn't had much stability she's stayed at mine quiet a far bit on the lounge where she was living out of a travel bag, she's also stayed at my dads house on his lounge as he lived in a one bedroom unit where my brother had the bedroom and my dad and sister would sleep in the lounge room , he has recently had to leave this place and is now staying with his mother in [redacted] and my brother lives here with my nan and pop, she [the daughter] now a stays at [friend’s mother’s] house with [other sister] in [redacted] and at our [father’s brother] in [redcated] in the spare bedroom.

    I've always helped [the daughter] out when I can whether that's giving her lifts dropping her places or buying her lunch on her lunch breaks when she's told me she had no food. I also took her into service NSW that our mum paid for for her to finally get her Ls.

    She's always had dinner at our house most Mondays where again it’s [maternal grandfather] dropping her here then my nan brother or I dropping her back off to her [father’s brother].

    Mum has always helped [the daughter] out whenever she's needed it whether that’s paying her phone bill sending her money or coming down on her birthday/Christmas and buying her all brand new clothes, shoes & toiletries. Whenever we’ve needed mum whether it’s something big or small no matter what it is she is the first to drop everything and help us out in anyway she can, she has even paid for all our flights to go up and stay with her in Brisbane.

    But in saying that I have seen dad buy [the daughter] her basic needs like clothes, makeup and dental when he does have enough money for it. He has also signed her up to a beauty course which [the daughter] is loving and thriving in, but that's leaving her in quiet abit of debt which she is stuck with when she finishes the course. [Maternal grandfather] also does help her out a lot with money, lifts and pretty much whatever she asks for.

    … this has gone on for far to long and it's not fair the things dads saying that are far from the truth.

    [17] Exhibit A3.

20. The most relevant part of the statement by the mother of the daughter’s best friend (errors in the original):[18]

    ‘… [the daughter] resides at my premises 3-4 nights in any week, she showers at my home quite regularly as there is no running hot water at her father's premises as well as the very bare minimum food items so she will often come to my place hungry and I will allow her to eat here when she needs even if she doesn't stay the night. [The daughter] knows she never has to go hungry if she requires a meal or somewhere to stay she is welcome at mine at any time.’

    [18] Section 37 ‘T’ Documents, T34.

21. In an e-mail to the Tribunal dated 5 January 2024, the mother agreed the daughter went to live with her father on 22 December 2023 because he had by then obtained his own accommodation and on that basis, she was willing to pay child support for the daughter from then.

    What does the father say?

22. The father provided no written submissions, and some oral evidence at the hearing. He maintains he is legally and financially responsible for the daughter and has been since she left the care of the mother. In his mind, he may be legally and financially responsible however there is limited evidence he discharged those responsibilities. He said at the hearing her time with him was erratic for a couple of months before he enrolled her in a beauty course at the local TAFE.

23. He expanded on his assertion the daughter was living with him by saying she was mostly with him over the weekend from Friday to Sunday and three to four nights per week with his brother and one to two nights per week with others. The remaining one to two nights per week he said she was with him in the one-bedroom unit he shared with his son. When asked who decided where the daughter would stay overnight, he replied it was a mutual decision, albeit he gave his daughter the opportunity to give her opinion.

1. He said he and his daughter moved into new premises on 27 December 2023. This is consistent with the evidence of the mother at the hearing when she said the daughter had moved in to live with her uncle at the beginning of January 2023 and left two to three months after she overheard a conversation between her uncle and his wife in October or November 2023 in which they are reported to have said they did not want her to stay any longer.

2. He then said he would answer no further questions and terminated the call with the Tribunal and left the hearing.

   Findings on the end of the care period

3. The Tribunal finds the end date for the care period is 26 December 2023, being the day before the daughter moved in to live permanently with her father, which the mother agrees with albeit she says the date was 22 December 2023. The Tribunal also finds the daughter was living with her uncle and his wife and not with her father for almost all of calendar 2023.

   Does the decision in Polec & Straker apply in this case?

4. Due to the vagaries of the evidence as to where the daughter was cared for overnight, the Tribunal has considered whether the decision in Polec & Staker & Anor (SSAT Appeal) (2011) 253 FLR 339; [2011] FMCAfam 959 has any application in this case. That case considered how care percentages can be assigned when the child does not reside with either parent. It established at [56] a non-exhaustive list of issues to consider including:

   (a)  To what extent does the person meet 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?

   (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?

5. Considering these factors, the Tribunal finds the mother and father provided limited care of the daughter during the care period because:

   (a)The daughter left the care of her mother on 10 September 2022 and stayed with her maternal grandparents until 27 September 2022 after which she was delivered into the care of her father. That means the mother had no overnight care which she does not dispute.

   (b)The number of nights the daughter stayed over with the father were limited, intermittent and variable and the accommodation he occupied was a one-bedroom unit which meant it was impractical for the daughter to stay overnight because she had to sleep on a couch on those occasions. The father says she did stay with him one or two nights per week which is contradicted by the evidence of others. The best evidence suggests there was no regular pattern of care of the daughter with either parent until the father obtained his own accommodation at the end of December 2023.

   (c)

   (d)Both parents provided some financial support albeit neither of them provided enough to fully meet the needs of the daughter for food, clothing and accommodation as that was done by others including the daughter’s uncle and his wife, her grandparents on both sides, her sister, and the mother of her best friend. Based on the statements of others, the best evidence suggests the mother may have provided more financial support that the father during the care period.

   (e)Her transport needs were largely met by others including the paternal grandfather and the mother of her best friend.

   (f)The decisions about where the daughter would stay overnight were made mutually, that is, not solely by the father and not at all by the mother.

   (g)The mother said the daughter was working part-time and later was receiving Austudy so she was at least in part providing for her own needs.

6. Accordingly, the Tribunal finds neither parent had care of the daughter during the care period.

7. On 4 October 2022, the father notified the Agency the daughter was in his care from 27 September 2022, that is, within 28 days of the date of change. Accordingly, the Tribunal finds 27 September 2022 is the change of care day.[19]

   [19] Section 5(1) (definition of ‘change of care day’ para (a)) of the Act.

   CONCLUSION

8. The evidence of the father in this case is vague and not supported by the statements of two of his other children and the mother of the daughter’s best friend at the time. The evidence of the mother is mostly consistent with those witness statements. The father chose to leave the hearing early so the Tribunal was denied the benefit of whatever oral evidence he may have given if he had stayed until the end of the hearing.

9. Each parent provided some financial support but not enough to partially, much less fully, sustain her. It is not possible to determine with any accuracy if either provided more than the other with the best evidence suggesting the mother may have provided more than the father. The bulk of her needs were covered by others including her uncle and his wife, the mother of her best friend and her grandparents.

10. The father did not have and so could not offer suitable accommodation for his daughter as he was living in a one-bedroom unit with his son who occupied the bedroom. If the daughter stayed overnight, she had to sleep on a couch.

11. The evidence suggests the daughter lived out of an overnight bag until she moved in to live with her father on 27 December 2023 once he secured suitable accommodation for them.

12. Accordingly, the Tribunal finds:

    (a)the care period commenced on 27 September 2022, because that is when the daughter was delivered into the care of the father. The period from 10 September 2022 to 26 September 2022 can be regarded as family time with grandparents at the direction of the mother before the daughter commenced a new living arrangement with her father.

    (b)The care period ended on 26 December 2023 being the day before the daughter moved in to live permanently with her father. That means the care period was 27 September 2022 to 26 December 2023.

    (c)From 27 September 2022 to 26 December 2023 the daughter was not living with either parent rather she was itinerant as she was living out of a travel bag at whichever place she chose to stay on any given night.

    (d)To the extent the parents provided financial support it was limited and insufficient to cover all her needs for food clothing and shelter and so does not amount to care of her.

    (e)Both parents provided some emotional support by means of phone calls and text messages.

    DECISION

13. The Tribunal varies the decision under review and finds the care period was from 27 September 2022 to 26 December 2023 and during that period each parent had a care percentage of nil. From 27 December 2023 the care percentages are 100% to the father and 0% to the mother until the daughter turns 18.

51.     I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member Ranson.

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

Associate

Dated: 5 July 2024

Date of hearing:

11 March 2024

Applicant:

Self-represented

Other Party:

Self-represented

Solicitors for the Respondent:

Services Australia