FFCM and Child Support Registrar (Child support second review)

[2024] AATA 223

FFCM and Child Support Registrar (Child support second review) [2024] AATA 223 (20 February 2024)

Division:GENERAL DIVISION

File Number(s):     2022/8828          

Re:FFCM

APPLICANT

AndChild Support Registrar

RESPONDENT

AndDJLQ

OTHER PARTY

DECISION

Tribunal:Member W Frost

Date:20 February 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 – change in care notification – adherence to parenting plan – conflicting evidence – decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43.

Child Support (Assessment) Act 1989 ss 49, 50, 54A, 54B, 54F, 54G, 54H, 55C.

Child Support (Registration and Collection) Act 1988 ss 16, 80A, 87.

Cases

Child Support Registrar v BKCZ [2023] FCA 1109

F and LP [2015] AATA 321

Parent A and Child Support Registrar and Anor [2013] AATA 562

Polec v Staker & Anor (2011) 253 FLR 339

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

20 February 2024

INTRODUCTION

1. The Applicant, FFCM (the Father), and the Other Party, DJLQ (the Mother), are the separated parents of two children (together referred to in these reasons as the Children and separately referred to as I and C). From October 2020, the Child Support Agency (Agency) determined that the Father had 33% care of I and 11% care of C, and that the Mother had 67% care of I and 89% care of C.[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 2, pages 306 and 318-322 and Exhibit 1, page 283.

2. In January 2022, the Agency partially accepted the Father’s change in care notification and determined that, from 16 October 2020, the Father had 44% care of I and 19% care of C, and that the Mother therefore had 56% care of I and 81% care of C.[2] The Father objected to that determination, on the basis that he and the Mother had an agreed parenting plan which specified that both parents had 50% care of the Children.[3] The Father’s objection was disallowed and he subsequently applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).[4]

   [2] Exhibit 1, pages 158-159 and 170-175.

   [3] Ibid., pages 207-208.

   [4] Ibid., pages 41-48 and 256-260.  

3. The AAT1 affirmed the Agency’s decision and found that, from 16 October 2020, the Father had 44% care of I and 19% care of C, and therefore that the Mother had 56% care of I and 81% care of C. The Father applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).[5] 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 further material provided by the Father. The written and verbal submissions made by the parties have also been considered in making this decision. For the following reasons, the Tribunal has decided to affirm the AAT1 decision.  

   [5] Ibid., pages 1-6.

   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; and

   (c)from what date should the percentages of care apply.

   BACKGROUND

5. On 23 October 2020, the Father told the Agency that the care arrangements for the Children had changed from 2 October 2020, and that he had gone from having 0% care of the Children to having 43% care of I and 15% care of C.[6]

   [6] Exhibit 2, pages 310-317.

6. On 13 January 2021, the Agency determined that, from 2 October 2020, the Father had 33% care of I and 11% care of C, and the Mother had 67% care of I and 89% care of C.[7]

   [7] Exhibit 2, pages 306 and 318-322 and Exhibit 1, page 283.

7. On 10 May 2021, the Father provided the Agency with a verbally agreed, but unsigned, parenting plan made between the parents on 27 April 2021 (Parenting Plan).[8] The Father notified the Agency that there had been a further change in care from 16 October 2020, whereby he had 163 nights of care per year, or 44%, for both Children and therefore that the Mother had 202 nights of care per year, or 56%, although the Father shortly afterwards notified the Agency that he instead had 19% care of C, not 44%, according to his care calendar.[9] The Father told the Agency that these changes in care for the Children occurred from October 2020, before the Parenting Plan was said to have commenced in April 2021.[10]

   [8] Exhibit 1, pages 74-79.

   [9] Ibid., pages 80-83. See also Exhibit 1, pages 64-66 and 158.

   [10] Ibid., pages 80-81.

8. On 14 May 2021, the Agency informed the Mother of a potential change of care for the Children, based on the Father’s notification that, from 16 October 2020, the Father had 44% care of I and 19% care of C, and from 27 April 2021, the Father had 44% care of C, in addition to the ongoing 44% care of I.[11]  

   [11] Ibid., pages 85-86.

9. On 25 May 2021, the Mother told the Agency she disagreed with the Father’s contentions regarding the change in care percentages for the Children.[12] While the Mother agreed that there was a change in care for I and that the Parenting Plan was being followed in relation to the care of I, the Mother disagreed with the date of effect of that change and submitted to the Agency that the Father’s care for I gradually increased and did not reach 44% until April 2021.[13] The Mother also disagreed that the Parenting Plan was being followed in relation to C and submitted that C had stayed with the Father at most two nights in the previous six weeks, and that before the Parenting Plan, C stayed with her Father on one night on the designated weekends.[14]

   [12] Ibid., page 87.

   [13] Ibid.

   [14] Ibid.

10. On 7 July 2021, the Father emailed the Agency and relevantly stated that ‘the care will move to a 50/50 arrangement later in the year in September 2021’ and that he was following the Parenting Plan.[15] The Father further stated that the ‘current calculated care percentage of 44% is incorrect’ and ‘by my calculation the percentage should be 46%’ due to additional school holidays.[16]

    [15] Ibid., page 101.

    [16] Ibid.

11. On 29 July 2021, the AAT1 found, in a separate child support proceeding, and based on the expected care of the Children, that the Father and the Mother both had 50% care of I from 6 March 2020, and 22% care and 78% care respectively in relation to C, with the date of effect being 27 January 2021 due to there being no special circumstances for the Father’s late lodgement of an objection to the related decision made by the Agency in April 2020.[17] In that regard, the Agency had accepted the Mother’s application for the registration of child support and attributed the care of the Children as being 100% to the Mother effective from 4 April 2017, in accordance with her original application lodged in June 2017.[18] The Father did not seek review of that AAT1 decision and it was not before the Tribunal in this proceeding, which relates to the subsequent AAT1 decision of 16 August 2022. It was noted in the AAT1 decision of 2021 that the consequence of a new care determination made on 21 January 2021, and effective from 2 October 2020, being the existing care determination under consideration in this proceeding, was that that AAT1 decision had ‘no effect on the care percentages’.[19] In this regard, the AAT1 decision under review in this proceeding noted that the effect of a care determination made in January 2022, that the Father had 44% care of I and 19% care of C from 16 October 2020, overrode the care determination previously made by the AAT1 in July 2021.[20]

    [17] Ibid., pages 103-109.

    [18] Ibid., page 104.

    [19] Ibid., page 108.  

    [20] Ibid., page 10.

12. On 22 December 2021, the Mother again told the Agency that the Father had care of I on ‘6 nights per fortnight and half of the school holidays since approx. May 2021’.[21] The Mother was informed that ‘these are the same details that [the Father] provided and that he stated this has been the care since 27/04/2021’.[22] The Agency recorded that the Mother stated that ‘she was happy to agree with the date [the Father] provided’.[23]

    [21] Ibid., page 152.

    [22] Ibid.

    [23] Ibid.

13. On 11 and 13 January 2022, the Agency partially accepted the Father’s change in care notification made on 10 May 2021 and determined that there had been a change in the percentage of care for I from 16 October 2020, such that the Father had 44% care and the Mother had 56% care.[24] This decision had effect on the child support assessment from 10 May 2021 for the Father and from 16 October 2020 for the Mother.[25] The Agency also accepted that, from 16 October 2021, there had been a change in care for C, such that the Father had 19% care and the Mother had 81% care.[26] This decision also had effect on the child support assessment from 10 May 2021 for the Father and from 16 October 2020 for the Mother.[27] The Agency found that there had not been a change in care of C by the Father from 27 April 2021 of 19% to 44%.[28]

    [24] Ibid., pages 167-171. 

    [25] Ibid., pages 170-171.

    [26] Ibid., pages 172-173.

    [27] Ibid.

    [28] Ibid., pages 174-175.

14. On 11 and 13 January 2022, the Agency sent notification of the care percentage decisions to the Father and the Mother.[29]

    [29] Ibid., pages 162-165; 176-182; and 189.

15. On 9 March 2022, the Father lodged an objection to the care percentage decisions of January 2022, based on the aforementioned AAT1 decision that he had 50% care of I and in accordance with the Parenting Plan.[30] The Father also noted that the special circumstances for lodging his objection outside the 28-day timeframe were that he had been away from his home for three weeks due to attending on his father in hospital, and therefore did not receive the relevant correspondence until his return in early March 2022.[31]

    [30] Ibid., page 208.

    [31] Ibid.

16. On 21 March 2022, the Mother responded to the Father's objection to the care percentage decisions, and again told the Agency that the Father had care of I for ‘4 nights one week and two nights the following week’.[32] The Mother also said that she was ‘supportive of 50/50’, but the Father ‘hasn’t moved to do that’.[33] The Mother also told the Agency that C ‘basically never goes’ to stay with her Father, that she ‘sometimes goes for dinner but does not stay overnight’.[34]

    [32] Ibid., page 221.

    [33] Ibid.

    [34] Ibid.

17. On 12 May 2022, a delegate of the Registrar disallowed the Father’s objection and found that:[35]

    (a)the evidence provided by the Father and the Mother was contradictory and neither party’s statements confirmed they follow the care in the Parenting Plan;

    (b)they were unable to establish if one party's information was more credible than the other to allow any alternative decision to be reached; and

    (c)therefore, they could not reflect the care of C at 44% to the Father and 56% to the Mother from 27 April 2021, and continued to reflect the care of I at 44% to the Father and 56% to the Mother from 27 April 2021.

    [35] Ibid., pages 256-260.  

18. On 4 June 2022, the Father applied to the AAT1 for review of the objection decision of 12 May 2022.[36]

    [36] Ibid., pages 41-48.

19. On 16 August 2022, the AAT1 affirmed the objection decision and found that:[37]

    (a)there was no doubt that the Parenting Plan was signed by the Father and the Mother in May 2021, which initially provided for the Father to have 44% care for both children, increasing to 50% care from September 2021. However, based on the comments from the parents, the Tribunal was not persuaded that the Parenting Plan was ever fully implemented;

    (b)neither parent agreed with the evidence provided by the other, but the Mother was willing to accept the current decision, that the Father had 44% care of I and 19% care of C from 16 October 2020, although there was no further increase in the Father’s care of the Children even after the Parenting Plan was signed; and

    (c)from the available evidence, it was unable to establish that the decision under review ought to be altered, and that neither party's information was more credible than the other.

    [37] Ibid., pages 7-12.

20. On 24 October 2022, the Father applied to the Tribunal for review of the AAT1 decision.[38]

    [38] Ibid., pages 1-6.

21. On 16 January 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. 

    CONSIDERATION

22. The task of the Tribunal in this proceeding is to determine the percentage of care that the Father and the Mother had of the Children from or around 16 October 2020 and from or around 21 April 2021. There was no dispute that both the Father and the Mother each had some care of the Children during these periods of time.

    Did care change from that provided in the existing care percentage determination?

23. As stated above in these reasons, the relevant existing care percentage determination was that, from 2 October 2020, the Father had 33% care of I and 11% care of C, and that the Mother had 67% care of I and 89% care of C.

24. Based on the evidence before the Tribunal, it is satisfied that the care of the Children from October 2020 was different to that set out in the existing care percentage determination. In the course of this dispute regarding the respective care percentages each parent had of the Children, the Father and the Mother both agreed that the Father had more than 33% care of I and 11% care of C from October 2020. Most relevantly, in the AAT1 proceeding, the Mother accepted that the Father had 44% care of I and 19% care of C from 16 October 2020. This position accords with the available evidence before the Tribunal.

25. Therefore, the Tribunal finds that care of the Children changed from the existing care percentage determinations with effect from 16 October 2020.

    What is the appropriate care period?

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’.[39] 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.[40]

    [39] Child Support Guide at paragraph 2.2.1, see accessed on 23 January 2024.

    [40] Ibid.

27. As previously set out in these reasons, on 10 May 2021 the Father notified the Agency of a change in the care of the Children from 16 October 2020 and again from 27 April 2021. The Mother has accepted that there was a change in care from October 2020. The Tribunal is satisfied that the general care period of 12 months should apply, such that it runs from 16 October 2020 to 15 October 2021. This therefore covers both of the two distinct dates claimed by the Father, up until the Tribunal hearing, on which a change in his care of the Children occurred, being 16 October 2020 and 27 April 2021.

28. At the Tribunal hearing, the Father’s representative contended that the two distinct care periods were from 16 October 2020, after which he had, it was submitted, 50% care of I, and then from 2 March 2022 to 13 August 2023, during which he had 57% care of I. As a result of the Father’s submission that the Agency was notified of a change of care from 2 March 2022 and had not progressed that notification, which issue had not previously been raised in this proceeding, the Tribunal made directions for the parties to provide written submissions following the hearing in relation to its jurisdiction regarding the notification of a change of care from 2 March 2022.

29. The Registrar’s post-hearing submissions confirmed that, on 26 August 2022, the Father’s representative notified the Agency of a change of care from 2 March 2022, said to be 57% care of I by the Father and 43% care of I by the Mother.[41] On 12 October 2022, the Agency unsuccessfully attempted to contact the Father directly to discuss this reported change in care.[42] The Agency’s notes relevantly recorded that:[43]

    (a)in accordance with the objection decision made on 12 May 2022, referred to above in these reasons, the Father was recorded as having 44% care of I and the Mother having 56% care of I from 27 April 2021; and

    (b)at no point in the associated care review leading to the objection decision of 12 May 2022 did the Father advise of a new care event from 2 March 2022, noting also that he had lodged the objection on 9 March 2022 in which he submitted he had 50% care, just after the purported further change in care on 2 March 2022 to 57% care of I.

    [41] Exhibit 8.

    [42] Exhibit 9.

    [43] Ibid.

30. There was no evidence before the Tribunal that a decision was made by the Agency in relation to the change in care notification made on behalf of the Father on 26 August 2022. As a result, and as submitted by the Registrar, the Mother has not had an opportunity to respond to the notification of a claimed change in care from 2 March 2022, there has been no opportunity for either parent to lodge any objection to an associated care percentage decision pursuant to section 80A of the Child Support (Registration and Collection) Act 1988 (Collection Act), there has been no consideration by the Agency of any such objection and there is no reviewable decision of the Agency under section 87 of the Collection Act that is before the Tribunal.

31. In all of those circumstances, and given the change in care notification was made on 26 August 2022, the AAT1 decision of 16 August 2022, that is under review by the Tribunal, did not consider whether there was a change in care from 2 March 2022, and the Tribunal's jurisdiction cannot now be invoked to consider the change in care notification of 26 August 2022.     

32. Having regard to the above discussion and findings regarding the extent of the Tribunal’s jurisdiction, for completeness and in the absence of persuasive evidence to the contrary, the Tribunal considers the percentages of care determined in this proceeding for the care period from 16 October 2020 to 15 October 2021 should continue to apply beyond that period and up until any future decision by the Agency in relation to that subsequent period of time, including from 2 March 2022 and up until 13 August 2023, from which time a further increase in the Father’s percentage of care occurred in relation to I, to 49%, which was the subject of a separate decision and not reviewable by this Tribunal.

    What percentages of care should be attributed to the Father and to the Mother?

1. The relevant 12-month care period is now in the past and the Tribunal is required to make a retrospective care determination. In accordance with the Assessment Act, the Tribunal considers that the correct approach is to make a determination of what care actually occurred during the relevant care period. The Tribunal in F and LP [2015] AATA 321 explained why it is preferable to make a determination of what care actually occurred during the relevant care period, as follows:[44]

   Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time.

   [44] F and LP [2015] AATA 321 at [54]-[58]. See also Child Support Registrar v BKCZ [2023] FCA 1109.

2. In order to make a determination regarding the percentages of care in accordance with section 50 of the Assessment Act, the Tribunal must be satisfied that the Father and the Mother have had a ‘pattern of care’ for the Child during the care period. The term ‘pattern of care’ is undefined and can be interpreted according to its ‘ordinary meaning’.[45] Under subsection 50(3) of the Assessment Act, the percentage of care for the child during a care period must be a percentage that corresponds with the ‘actual care of the child’ that the Registrar (or here, the Tribunal) ‘is satisfied that the responsible person has had’ during the care period. For the avoidance of doubt, the Tribunal is satisfied that both the Father and the Mother had a pattern of care for the Children from October 2020. Accordingly, section 49 of the Assessment Act, which applies if a ‘responsible person’ has had, or is likely to have, ‘no pattern of care for the child’, is not relevant in this proceeding.

   [45] Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33].

3. Section 54A of the Assessment Act provides a method for determining the actual care of the child, as follows:

   (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.

   (4)   This section does not limit section 50, 51, 53B or 54.

4. The Child Support Guide provides the following policy guidance regarding determining whether care exists:[46]

   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' (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

   o major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and

   o arrangements for others to meet the needs of the child (delegated care)

   [46] Child Support Guide at paragraph 2.2.1, see accessed on 12 February 2024.

5. 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.[47]

   [47] See Polec v Staker & Anor (2011) 253 FLR 339 at [56].

6. As detailed above in these reasons, the Father notified the Agency that there had been a change in care from 16 October 2020, whereby he had 163 nights per year, or 44%, care of both Children and therefore that the Mother had 202 nights per year, or 56% care, although the Father shortly afterwards notified the Agency that he instead had 19% care of C, not 44%.[48] The Father told the Agency that these changes in care for the Children occurred from October 2020, before the Parenting Plan was said to have commenced in April 2021.[49]

   [48] Exhibit 1, pages 80-83. See also Exhibit 1, pages 64-66 and 158.

   [49] Ibid., pages 80-81.

7. The Parenting Plan, verbally agreed upon by the parents on 27 April 2021, provided that the Children would spend six nights per fortnight with the Father before moving to ‘shared care with the mother and the father…on a future date agreed by the parents on or before 1^st September 2021’.[50] The Parenting Plan was signed by the Mother on 18 May 2021 and by the Father on 23 May 2021.[51] As the AAT1 found, based on the available evidence and the testimony of both parents, this Tribunal was not persuaded that the Parenting Plan was fully implemented until late 2023 when both parents were determined to have 50% care of I. Rather, the evidence indicates that, from October 2020, the percentages of care for the Father were those he disclosed to the Agency relatively contemporaneously to the date of the claimed change, and which were reflected in the Parenting Plan. That is, that the Father had 44% care of I and 19% care of C. This accords with the decision of the AAT1. Moreover, as the AAT1 found, the Tribunal finds it somewhat unusual that if, as the Father contended, he had approximately 50% care of I from October 2020, he agreed to the Parenting Plan in April 2021 providing him with less care of I from April 2021, being 44% care, and which only contemplated an increase in his care to 50% from later that year.

   [50] Ibid., page 75.

   [51] Ibid., page 214.

8. In this regard, the Tribunal sets out the evolution of the Father’s contentions regarding his percentage of care, most relevantly in relation to I. On 23 October 2020, the Father told the Agency that he had 43% care of I and 15% care of C. On 10 May 2021, the Father notified the Agency that his percentage of care was 44% for I and 19% for C. These percentages of care have been agreed to by the Mother and supported by the findings of the Agency and the AAT1. However, in July 2021, the Father told the Agency that he then had 46% care of I, not 44%, and that he would have 50% care of I from September 2021, reflecting the terms of the Parenting Plan. In March 2022, the Father said he had 50% care of I, in accordance with the non-reviewable AAT1 decision from July 2021. This position was maintained by the Father before the AAT1 in August 2022, where it was recorded that he contended he had 48% to 50% care of I from at least September 2020. In undated written submissions provided in this Tribunal proceeding, the Father contended that ‘from about October 2020’ his care of I ‘was roughly at 50%’.[52] However, at the Tribunal hearing in January 2024, the Father’s representative contended that he had 50% care of I from 16 October 2020 and, from 2 March 2022, had 57% care of I. The Father’s own evidence to the Tribunal was that he had ‘somewhere between 48 to 50%’ care of I from October 2020.

   [52] Exhibit 3.

9. The Mother contended that the Father's care of I gradually increased such that he had 44% care from 27 April 2021 onwards. The Mother stated that C did not stay with the Father; she would visit for a few hours, but did not stay overnight. During the AAT1 proceeding, the Mother was willing to accept that the Father had 44% care of I and 19% care of C from 16 October 2020, but that there was no further increase in care for either of the Children, even after the Parenting Plan was signed in May 2021.

10. In the absence of persuasive evidence to the contrary, the Tribunal is not satisfied that the percentages of care were different to those found by the Agency and the AAT1. That is, the Tribunal finds on the available evidence that the Father had 44% care of I and 19% care of C from 16 October 2020. The evidence before the Tribunal to demonstrate any change from the care percentage determinations made in January 2022 was incomplete and unpersuasive, with the submissions of the Father in relation to his care of the Children, particularly of I, appearing to shift over the last three years. While the independent evidence provided by the Father in support of his position demonstrated that he had care of the Children, it did not demonstrate that there had been a change in the percentages of care for I from 44% to 48%, or 50%, or higher, as claimed at the Tribunal hearing.[53] The Father’s care calendars provided a snapshot of care of the Children, but were not a comprehensive record of the relevant care period and therefore did not provide certainty about the actual care provided such as to establish the requisite degree of satisfaction to find that the existing care percentages decisions were wrong. Additionally, and for the avoidance of doubt, the Tribunal gives little weight to the written evidence of the Father’s brother given his likely empathy and support for the Father’s position.[54] The Tribunal prefers the relatively contemporaneous evidence from the Father himself that he had 44% care of I. This position was agreed to by the Mother at the AAT1 hearing.

    [53] See, for example, Exhibits 4 to 7.

    [54] Exhibit 1, pages 245-246.

11. As a result of all of the above, the Tribunal is not satisfied that the decision under review, confirming the care percentage decisions of January 2022, should be changed. Having regard to the available evidence, the Tribunal is satisfied that the AAT1 decision was the correct or preferable decision in this matter. The Tribunal accepts, on the available evidence, that the Father’s care of I was 44% from 16 October 2020, but it is not satisfied that his care was equivalent to any higher amount in the relevant care period. The Tribunal also accepts that the Father’s care for C was 19% from 16 October 2020.

12. Section 54F of the Assessment Act relevantly provides that the existing percentage of care determination must be revoked if the Registrar is notified 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 the person’s ‘cost percentage for the child would change’ if another care percentage were determined. Under subsection 54F(3) of the Assessment Act, the revocation of the determination takes effect at the end of the day before the change of care day if notification is provided within 28 days after the change of care, or otherwise the day before notification.

13. Given the Tribunal’s findings regarding the applicable percentages of care for the Children from October 2020, the Tribunal must revoke the existing care percentage determination pursuant to section 54F of the Assessment Act, because the new care percentage determination made by the Tribunal would change the cost percentage for the Children. That is, from 16 October 2020, the Father’s care of I was 44%, not 33%, and his care of C was 19%, not 11%. These new percentages of care will change the Father’s cost percentage by moving him, for each of the Children, into the cost percentage item number, set out in the table under section 55C of the Assessment Act, immediately above that under the now revoked percentage of care determination.

14. Section 54B of the Assessment Act dictates the date the new care percentage determination made by the Tribunal must take effect. The date of effect will be the day immediately after the day the revocation takes effect by operation of subsection 54B(2)(c)(ii). In circumstances where the Tribunal has found that section 54F of the Assessment Act applies, subsection 54F(3) provides that the revocation will take effect at the end of:

    (a)   if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

    (b)   if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

    (i)the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

    (ii)the responsible person's care of the child has reduced--the day before the change of care day.

15. As a result, because the Father notified the Agency on 10 May 2021 that there was a change of care from October 2020 and April 2021, the revocation of the care percentage determinations takes effect for the Father from 9 May 2021, pursuant to subsection 54F(b)(i), and for the Mother from 15 October 2020, pursuant to subsection 54F(b)(ii) of the Assessment Act.

    DECISION

16. 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 48 (forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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

Associate

Dated: 20 February 2024

Date(s) of hearing:	16 January 2024
Date final submissions received:	13 February 2024
Applicant’s Representative:	Ms Crystal Paduch, Child Support Consultants
Solicitors for Respondent:	Mr Matt Gauci, Hunt & Hunt Lawyers
Other Party:	By MS Teams