FWGS and Child Support Registrar (Child support second review)

FWGS and Child Support Registrar (Child support second review) [2021] AATA 305 (24 February 2021)
Division:GENERAL DIVISION
File Number: 2019/8491
Re:FWGS
APPLICANT

AndChild Support Registrar
RESPONDENT

AndDZBS
OTHER PARTY

DECISION
Tribunal:L M Gallagher, Member
Date:24 February 2021
Place:Perth

The reviewable decision, being the AAT1 decision dated 13 December 2019, is affirmed.
........ ................[sgd]................................................
L M Gallagher, Member
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 – whether there was a change in care – actual care – extent of care – pattern of care – special circumstances – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act (1975) (Cth) – s 43(6)
Child Support Assessment Act 1989 (Cth) – ss 49, 49(1)(a), 49(1)(b), 49(3), 50, 50(1)(a), 50(1)(b), 50(3), 51, 54A, 54A(1), 54A(3), 54B
Child Support (Registration and Collection) Act 1988 (Cth) – ss 95N1, 95N(2), 96A(c)
CASES
P v Child Support Registrar [2013] FCA 1312
P v Child Support Registrar [2014] FCAFC 98
Parent A and Child Support Registrar and Anor [2013] AATA 562
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide – s 2.2.1
REASONS FOR DECISION
L M Gallagher, Member
24 February 2021
BACKGROUND

The Applicant and the Other Party are the separated parents of a child, who is now 18 years of age (the child) and to whom the present application relates.
On 27 July 2015, a child support case was registered in relation to the child

(R2, T42, page 542).
On 17 August 2018, the child support case was ended (with effect from 9 July 2018) on the basis that the child was no longer in either parent’s care (R2, T9, pages 75-76 and

T10, pages 77-78).
On 7 February 2019 the Other Party contacted Services Australia[1] (the Agency) to advise that she had 100% care of the child from September 2018 (R2, T41, page 512).

The Other Party lodged a new application for a child support assessment as required,

which the Agency acknowledged on 16 February 2019 (R2, T12, page 98).
[1]
On 11 March 2019, the Agency accepted the Other Party’s application for a child support assessment and decided to record the percentage of care as 100% (the original decision) (R2, T13, pages 100 and 104).
On 12 March 2019, the Applicant objected to the original decision on the bases that

(R2, T41, pages 523 and 524):
(a)the child had not been in either parent’s care; and
(b)both parents were providing financial support.
On 22 July 2019, the Applicant and the Other Party were advised that the Applicant’s objection dated 12 March 2019 was allowed, effective from 7 February 2019 (the objection decision) (R2, T34, pages 479 and 480). In reaching their decision, the objections officer decided that neither parent had care of the child from 30 September 2018. The effect of the objection decision was that the Other Party’s application for a child support assessment[2] was refused.
[2] Refer to [4] above.
On 26 August 2019, the Other Party applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) for a first review of the objection decision (R2, T35, pages 486 to 491).
On 1 October 2019, the Applicant contacted the Agency to advise that the child was

‘back in his care’ after having been in third party care (R2, T41, page 536). On advice from the Agency, the Applicant lodged a further application for a child support assessment.

The Agency acknowledged the Applicant’s further application on 5 October 2019

(R2, T38, pages 499 and 500).
On 5 November 2019, the Agency accepted the Applicant’s application for a child support assessment, with effect from 1 October 2019 (R2, T40, pages 503 and 504).

Care was recorded as 100% to the Applicant and 0% to the Other Party (R2, T40,

page 506).
On 13 December 2019, the AAT1 set aside the objection decision (R2, T2, pages 6 to 12). In substitution, the AAT1 decided that from September or October 2018, the Other Party’s care percentage for the child is 100% and is to be used in the child support assessment from the application date of 7 February 2019 (R2, T2, page 6) (the reviewable decision). In reaching its decision, the AAT1 decided that special circumstances prevented the

Other Party’s application for review being made within the 28 day period after notice of the objection decision was given (R2, T2, page 11). That is, the AAT1 made a determination under s 95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth)

(the Collection Act) to extend the period for lodging the application for review to 26 August 2019 (being the date it was lodged).
On 20 December 2019, the Applicant applied to the Tribunal’s General Division for a review of the reviewable decision on the basis that, in the Applicant’s view, the child did not live with the Other Party during the relevant period nor did the Other Party provide financial support for the child (R2, T1, page 4). In his application, the Applicant also claims that he provided nearly $4,000 during the period between November 2018 to March 2019

(R2, T4, page 4).
ISSUES FOR DETERMINATION
The issue for determination by the Tribunal is what percentage of care the Applicant and the Other Party had of the child from a date after the previous child support assessment was ended to, generally speaking, a date 12 months from that commencement date.[3]

This requires consideration of:
(a)Whether the Applicant and/or the Other Party had care of the child after the previous child support assessment was ended, that is, after 8 July 2018; and, if so,
(b)What percentage of care the Applicant and the Other Party had of the child, respectively; and
(c)During what period (i.e., the start and end dates) those percentages applied to the Applicant and to the Other Party in their respective care of the child.
[3]
If the Tribunal should vary or set aside the reviewable decision, the date from which its decision should have effect for the purposes of the child support assessment will also fall for consideration. This date will be either the date that the AAT1 application for review was lodged, being 26 August 2019,[4] or if the Tribunal is satisfied that there were special circumstances that prevented the application to the AAT1 from being lodged within 28 days of the Other Party having been notified on the objection decision,[5] the decision will have effect from 7 February 2019.[6]
[4] See s 95N(1) of the Collection Act. The Other Party did not lodge her application for review with the AAT1 until 26 August 2019 (R2, T35, page 486), which was more than 28 days after she received notice of the objection decision. The AAT1 determined, in accordance with s 95N(2) of the Collection Act, that the time for lodging an application for review should be extended to 26 August 2019. The Tribunal has jurisdiction to review the AAT1’s decision to make such a determination under s 96A(c) of the Collection Act.
[5] The date of notification being 22 July 2019 (see [7] above).
[6] Being the date of effect of the original decision (R2, T13, page 102).
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Collection Act.
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). While the Tribunal is not bound by law to apply the Guide, it should have regard to it and follow it unless there are cogent reasons not to do so.[7]
[7] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at [644]-[645].
Determination of percentage of care
The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:
(a)no pattern of care for the child (s 49(1)(a) of the Assessment Act); or
(b)
a pattern of care that corresponds with the actual care[8] of the child

(ss 50(1)(a) and 50(3) of the Assessment Act),
during such period (the ‘care period’)[9] as the Registrar considers, having regard to all the circumstances.
[8] Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has had or is likely to have may be worked out based on the number of nights of care. The concept of ‘care’, however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time based calculation (Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 at [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47]. A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).
[9] See fn 3.
If there has been a change in the pattern of care subsequent to a percentage of care determination, a new percentage of care determination can be made only if the existing percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).
If the Registrar is satisfied that a responsible person for the child has had, or is likely to have no pattern of care for the child, the Registrar must determine that the responsible person’s percentage of care was 0% during the relevant period (s 49(3) of the Assessment Act).
Pattern of care
The phrase ‘pattern of care’ is not defined in the Assessment Act. The meaning of the term was considered in the decision of Parent A and Child Support Registrar and Anor

[2013] AATA 562. At [33] the decision states:
The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern 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.
This interpretation is consistent with the Guide, which provides that that [sic]
minor departures from the normal care of the child will not constitute a change to the pattern of care.
(Emphasis added and footnote omitted.)
The Tribunal therefore considers the percentage of care in any matter, including the matter before it, to be a finding of fact based on the available evidence.
Section 49 of the Assessment Act applies where a parent does not have a pattern of care for a child. Where the Registrar is satisfied that a person does not have a pattern of care during a care period for a child in relation to whom an assessment is made, by s 49 of the Assessment Act, the Registrar must determine the responsible person’s percentage of care for the child during the care period. If there is no pattern of care, and unless s 51 of the Assessment Act[10] applies, that percentage of care must be determined to be 0%.
[10] Section 51 of the Assessment Act provides for determining the percentage of care where the actual care of the child that the responsible person has had does not correspond with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period.
Section 50 of the Assessment Act applies where a parent has a pattern of care for a child. Where the Registrar is satisfied that a person has a pattern of care during a care period for a child in relation to whom an assessment is to be made, by s 50 of the Assessment Act the Registrar must determine the responsible person’s percentage of care for the child during the care period, based on the actual care of the child that the responsible person has had, or is likely to have, during the care period.
Percentage of care
Section 54A of the Assessment Act provides for working out the actual care and the extent of care of a child. Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has had or is likely to have may be worked out based on the number of nights of care.
The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time based calculation (Polec & Staker & Anor(SSAT Appeal) [2011] FMCAfam 959 at [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47].
A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).
Application of a determination to a 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 under s 49 or s 50, the determination will apply to each day on and from the application day unless the determination is revoked.
The Guide at s 2.2.1 also provides the following guidance on determining whether care exists:
Determining whether care exists
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. 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:
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).
·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.
Date of effect
By s 43(6) of the Administrative Appeals Tribunal Act (1975) (Cth), if the Tribunal finds that the reviewable decision should be varied or set aside, the Tribunal’s decision becomes a decision of the Registrar, with effect from the date of effect of the decision under review.
However, if an application for review is made more than 28 days after notice of the objection decision was given, any decision made by the AAT1 which varies or substitutes the objection decision will only have effect on and from the day on which the application for review by the AAT1 was lodged (s 95N(1) of the Collection Act). The exception to this rule is if the Applicant satisfies the AAT1 that there were special circumstances which prevented them from applying for AAT1 review within the prescribed 28 day period (s 95N(2) of the Collection Act).
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 20 October 2020. The Applicant and the Other Party were self-represented. The Registrar was represented by Ms Hinwood, Seconded Lawyer.[11]

The parties did not seek to call any witnesses at hearing.
[11]
Following the changes to national circumstances due to the COVID-19 pandemic,

the Tribunal announced it was closing to all visitors from Thursday 26 March 2020.

The parties and witnesses appeared at the hearing via means of electronic communication.
The Tribunal admitted the following documents into evidence:
(a)Applicant’s statement dated 9 June 2020 and Applicant’s son’s statement (undated), filed together on 10 June 2020 (A1);
(b)Applicant’s statement, filed by email dated 11 May 2020 (A2);
(c)
Other Party’s response to the Applicant’s statement dated 9 June 2020,

filed by email dated 6 July 2020 (OP1);
(d)Statement from Other Party’s lessor (undated) filed by email dated 5 July 2020 (OP2);
(e)Other Party’s statement dated 27 May 2020, filed by email dated 27 May 2020 attaching copy of text message from the Other Party’s sister (undated) (OP3);
(f)Other Party’s reply to A2, dated 25 May 2020, with attached summary table and bank record (OP4);
(g)The Registrar’s Statement of Facts, Issues and Contentions dated 6 August 2020 (R1); and
(h)The T-documents (560 pages) (T1 to T42) (R2).
The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.
EVIDENCE AND PARTIES’ CONTENTIONS
The Applicant’s evidence and submissions
The Applicant gave evidence and made submissions in support of his position (in A1 and A2 within R2)[12] and orally at hearing.
[12] The Applicant’s evidence and submissions within R2 appear at T17, T21, T23, T25, T26, T28, T29, T32, T33 and T36.
For the periods where the Applicant has indicated his claimed care percentages,

in his submission, this ‘care’ is indicated by ‘living costs and emotional costs’.[13]

The Applicant stated he has been in contact with the child five to 10 times per day by text message or phone call for the last 10 years and that he has been completely emotionally involved in the child’s life.[14] The Applicant stated however that, ‘obviously, I was living over east so it was complicated for a while’.[15]
[13] Transcript, page 10 at [35].
[14] Transcript, page 10 at [35] – [40] and page 14 at [5]-[10].
[15] Transcript, page 10 at [40].
July 2018, August 2018 and September 2018
For the period July, August and September 2018, the Applicant stated that he paid the child’s girlfriend’s mother rent each week directly into her account, and he paid money directly into the child’s account.[16] The Applicant said that he was emotionally involved in the child’s care in that he would speak daily to the child’s girlfriend’s mother and was involved in decisions about school and about anything that he paid for.[17]
[16] See R2, T17, page 128.
[17] Transcript, page 12 at [20]-[30].

When asked by the Tribunal to detail his involvement with the child’s school the Applicant said that this consisted of:[18]
[18] Transcript, page 15 at [25]-[40] and page 16 at [5].
Getting him back on track and making sure he attended school. We went from I think it was around 50 per cent of attendance the year before, so it was just about making sure he was there and then focusing on making sure he was getting the best out of what he was achieving

…
So my number and [the Other Party’s] number was probably the same. Mine was set up with a text message to see whether he attended school or not, and if he didn’t attend school I would speak to the year coordinator in regards to what was going on, and then when there was issues with a couple of teachers when he wasn’t turning up and doing what a teenager does in class, talking to them about fixing that,

and then working with [the child] on improving that, and then talking with [the child].
obviously about issues because they didn’t want to be involved about the school issues because they want that left up to the parents.
…
[The Other Party]
could well have been involved with the school, I don’t know.

I didn’t get any information to say that she was, but … I was worried about my son, not about her.
(Without alteration.)
The Applicant stated that, therefore, for this three month period, he believes he had 100% ‘financial and emotional care’ of the child.[19] The Applicant said that his belief that the

Other Party’s care percentage during this time was 0% was based on his being informed by the child’s girlfriend’s mother that she had had minimal contact with the Other Party.[20]
[19] Transcript, page 9 at [30]-[35] and page 11 at [20].
[20] Transcript, page 13 at [5] and [20].
October 2018 and November 2018
The Applicant stated that for the period October 2018 and November 2018, the child moved in with the Applicant’s friends (whom the Tribunal will refer to as “Mr and Mrs D” or the

“the Ds”).
The Applicant said that he had a direct arrangement with the Ds in relation to the child’s care, that he himself had facilitated.[21] The Applicant said the arrangement came about when the child called the Applicant and said he had nowhere to live and asked to call the Ds,

who picked up the child from his girlfriend’s house that same afternoon.[22]

The Applicant said he was living interstate at the time. The Applicant said that he paid the Ds ‘100%’ for the child’s food and board, provided emotional support, and support regarding decisions involving the child’s life. The Applicant said that during this period, he ‘looked after [the child] directly’, ‘on a daily basis’.[23]
[21] Transcript, page 10 at [5] and page 12 at [25]-[30].
[22] Transcript, page 10 at [5].
[23] Transcript, page 9 at [40], page 11 at [20] and page 12 at [25]-[30].
The Applicant stated that during this two month period the Applicant believes he had 100% care of the child.[24] The Applicant said that his belief that the Other Party’s care percentage during this time was 0% was based on his being informed by the Ds that their contact with her was minimal.[25]
[24] Transcript, page 9 at [40].
[25] Transcript, page 13 at [5] and [20].
December 2018 to February 2019
The Applicant said that in November 2018, the Ds advised the Applicant that the child was ‘going through a bit of a rough time’ and that ‘they couldn’t do it’ any longer.[26]

The Applicant said that the child then called the Other Party and asked her to come pick him up, which the Other Party did.
[26] Transcript, page 10 at [15].
The Applicant said he believes the child was in the care of the Other Party from December 2018 to February 2019.[27] The Applicant said he believes that even though the child was ‘living under [the Other Party’s] roof’ during that time, the care arrangement was 50/50 as the Applicant was ‘giving money directly to’ the child ‘on a daily, weekly basis’[28] in response to the child’s claim that ‘he needed it,’[29] the child ‘wasn’t there 90% of the time’ and the Applicant knew the child was ‘couch surfing’.[30] The Applicant said the Other Party was in no way providing the required support on her own during this period.[31] The Applicant said he was in daily contact with the child during this period.[32] The Applicant submitted his financial contribution during this period was supported by the bank statements he had provided.[33]
[27] Transcript, page 10 at [15]-[20].
[28] Transcript, page 10 at [15]-[20] and page 12 at [30].
[29] Transcript, page 12 at [30]
[30] Transcript, page 11 at [5]-[10].
[31] A2.
[32] Transcript, page 13 at [30] and A2.
[33] Transcript, page 10 at [15]-[20].
However, the Applicant said he does not, for present purposes, dispute the child was in the Other Party’s care 100% of the time during the period December 2018 to February 2019[34] and is ‘happy to let that period go’.[35] The Applicant said that this period was ‘very vague’[36] and the child was ‘a bit AWOL’.[37]
[34] Transcript, page 10 at [15]-[20] and page 11 at [5]-[10].
[35] Transcript, page 11 at [10].
[36] Transcript, page 12 at [30] and page 13 at [30].
[37] Transcript, page 13 at [30].
March 2019 to August 2019
The Applicant said that from March 2019 to August 2019 the child lived with the

Other Party’s sister and the Other Party’s sister’s husband[38] (whom the Tribunal will refer to as “Mr and Mrs K” or “the Ks”).
[38] Transcript, page 10 at [20] and A1.
The Applicant said that the arrangement with the Ks was that the Applicant would give money directly to the child each week[39] as the Ks ‘didn’t want any money from

[the Applicant]’,[40] which the Applicant submitted totalled over $10,000 during that period.
[39] A1.
[40] Transcript, page 10 at [25].
The Applicant said that Other Party was ‘supposedly paying rent’ (directly to Mrs K)[41] and that he paid the last month’s rent.
[41] Transcript, page 10 at [25], page 12 at [30]-[35]. See Mrs K’s statement at R2, T31.
The Applicant said that he was very much involved with Mr K regarding the child on a daily basis and he was also directly involved with the child.[42] The Applicant said he maintained daily contact with the child via social media (mainly snapchat and phone calls).[43]
[42] Transcript, page 11 at [20] and A1.
[43] A2.
The Applicant submits that therefore he had 50% care of the child between March 2019 and August 2019.[44]
[44] Transcript, page 10 at [25]-[30] and page 11 at [20].
August 2019 onward
The Applicant stated that from August 2019 onwards he had 100% care of the child as the child was living with him.[45]
[45] Transcript, page 10 at [25]-[30]. The Tribunal notes, however, that the Applicant does not dispute that the Agency accepted his application for a child support assessment, with effect from 1 October 2019 (that being the date the Applicant advised that the child was back in his care).
The Other Party’s evidence and submissions
The Other Party gave evidence and made submissions in support of her position

(in OP1 to OP4 (inclusive), within R2)[46] and orally at hearing.
[46] The Other Party’s evidence and submissions within R2 appear at T15, T18, T19, T22, T31, T37 and T39.
At hearing, the Other Party said that she has had 100% care of the child from the day the Applicant left.[47] The Other Party said she would still maintain this to be the case during the period the child was living with his girlfriend (from July 2018 to September 2018)

‘in terms of what caring is, not just giving money’.[48]
[47] Transcript, page 18 at [5].
[48] Transcript, page 18 at [5].
As to the Applicant’s claims of his involvement with the child’s school, the Other Party stated her belief that he had no involvement in anything in any way or form[49] and that she has seen no evidence of this.[50]
[49] Transcript, page 18 at [35]-[40].
[50] OP1.
The Other Party referred to the timeline provided (OP4) and explained that when she says ‘50% care’ that is not saying that the Applicant did the other 50%, it may be that somebody else, like Mr D, was the ‘50%’ carer.[51]
[51] Transcript, page 18 at [15].
July 2018, August 2018 and September 2018
The Other Party said that during the period from July 2018 to September 2018, when the child was living with his girlfriend and his girlfriend’s mother:[52]
[52] Transcript, page 20 at [35]-[45] and 21 at [5]-[20].
I didn’t like it … but what can you do, as a mum, so I invited [the child’s girlfriend’s mother] to my house, we talked about the arrangements, that I would be paying her cash[53]… she said she had nothing in the house, she had just moved here,
[53] See related corroborating bank records at, for example, R2, T23, page 322.

so I provided bedding, doonas, towels, cutlery, cups, plates, chairs for her family and my son. Again, I didn’t want this to happen but if my son was going to live there I wanted to make sure he had a bed. It was the middle of winter. So he was there, he was – she was a drug addict, the cash that was being supplied by [the Applicant] was spent on those drugs. She wasn’t there most nights of the week. She was with her boyfriend and she left her young baby for [the child] and the girlfriend, who was 16 at the time, to look after. I stopped giving cash, but I would take bags of food over there, meat, frozen vegetables, toilet paper, tissues and the like. So [the child] had seen that and that’s all been accorded in the previous court case…
That became a very horrible place to live. [The child] found it wasn’t as great,

it wasn’t so green on the other side. He rang up very upset crying because there was no – money was – you know, he was – he looked very sick and ill. Money hadn’t been spent on food for him or anything. And at that time I was still paying for HBF,

I was still paying – his mail still came to my house, I was still … physically present with the teachers having meetings and we were doing emails with all the teachers, and all that evidence that was supplied previously is on record ...
Eventually FWGS Son asked if he could come home…I’m the one who brought his gear back, and he moved back in with me … For me, yes, [the Applicant] was supplying money, yes, that money was being shot up by a lady. No, that money was not helping towards any sort of food or clothing or medical for [the child], and I was the parent and I was still doing the best I could in some pretty trying times with a lady who had a wonderful opportunity of money going into a bank weekly from somebody who was on the other side of Australia ...
Late September 2018 to November 2018
As to the period from late September 2018[54] to November 2018 when the child was living with the Ds, the Other Party said:[55]
[54] R2, T15, page 119.
[55] Transcript, page 21 at [25]-[45] and page 22 at [5]-[15]. See also summary table attached OP4.
Thankfully [the Ds], had offered to take [the child] in for a while, which was fabulous. [Mr D] and I had regular contact. I’m not sure why [the Applicant] would say otherwise, multiple texts, multiple phone calls, both – [the Applicant] was missing in action. [The Applicant] and FWGS actually fell out over it for a period of time.

And [Mr D] and I were caring for [the child] with [Mrs D]. However, [the child] was being a bad influence on [Mr Ds] children, so he’s coming and going, he was using their place for a bed now and again when he felt like it, and eventually for [Mr D] it become untenable, because it was setting a bad example for him and it was affecting his family. But thankfully for them they did – absolutely helped out for a period of time. I was still at that point paying for the HBF, and this is the period of time where child support – well … it was … during that period the child] was an independent for three months before he was living with [the Ds], and this is what [the Applicant] had written. I didn’t dispute that even though I was still doing parenting things constantly with [the Ds] …
… [The child] was coming and going a lot. There was tension with [the Ds] …

I had given evidence in that table [OP4] of what I was paying for and I provided written evidence of all that … So I would say [the Ds] were 50 per cent care and I was the other 50 per cent care … I wouldn’t doubt that [the Applicant] was doing regular phone calls when he could, but at that time [the child] wasn’t always picking up his phone … So it would be very hard for [the Applicant] to know what was going on from the other side of Australia.
November 2018 to mid-December 2018
The Other Party said that from 12 November[56] to mid-December 2018, the child was in her care 100% of the time as follows:[57]
[56] R2, T15, page 113.
[57] Transcript, page 22 at [15]-[25]. See also summary table attached OP4 and R2, T22.
Come November I came home from a gym workout to find [Mr D] at my house with all [the child’s] gear and said that [Mr D] could no longer look after him, so I text

[the Applicant]
to say I lived in a one-bedroom place … [the Applicant] texted back saying … [the child] doesn’t want to live with him, so I have to look after [the child] full time.[58] [The child] and I sat down, I said my rules haven’t changed …
… So he moved into my care from then and I still continued to do all the school –

or pay the uniforms and the rest…[59]
(Without alteration.)
[58] The Tribunal notes a copy of the exchanged text messages appears at R2, T15, page 113.
[59] See for example R2, T18, pages 145 to 149 and T31, pages 463 and 464.
Mid-December 2018 to February 2019
The Other Party said that during the school holiday period commencing at the end of 2018, the child was in her care 100% of the time, as follows:[60]
[60] Transcript, page 22 at [30]-[45] and page 23 at [5]-[15].
It came to school holidays… he was old enough to go to and from [his friends’ residences] on the train … [the child] decided he was going to go back into year 12. [The child and the Other Party] moved during that period, moved to the other property in Beaconsfield … together…we … physically moved the gear together.

… I was paying for everything ...
… [The child] was all keen on getting a house by himself, which I didn’t agree with. However, I said, well, why don’t we do a trial. We’ll … get a grannie [sic] flat …

[The child]
and I went to the granny flat, we looked at a few places in Mandurah together. We went to [the lessor’s] house in Falcon … we wrote the rules down[61]… As per [the lessor’s statement] … she never met [the Applicant], never heard of

[the Applicant]
, there was no contribution from [the Applicant].[62] I moved [the child’s] gear in, I filled up his fridge, I did home cooked meals that were frozen in the freezer.

We would meet a couple of times a week, we would talk every day. I would sleep there a couple of nights a week[63]…
(Without alteration.)
[61] A screenshot of the rules the Other Party claims the child wrote and stored on his phone appears at R2, T15, page 120.
[62] See also OP2.
[63] See OP2.
Similarly, the Other Party said in relation to this period:[64]
[The child]
was on school holidays and lived with me. We moved into a larger rental together mid December. During this time we discussed option for returning to school to do year 12. The best option was to have a base in Mandurah near his school.

I arranged for a granny flat for us in Falcon, however we had to wait 2-3 weeks for it to become available.
(Without alteration.)
[64] Summary table attached to OP4.
February 2019 to March 2019
The Other Party stated that during the period February 2019 to March 2019, she had 100% care of the child, who was living with her in the granny flat in Falcon.[65] The Other Party stated that the lessor then advised it wasn’t working out:[66]
Then unfortunately [the child] … started to have friends over and…he started to smoke pot, and [the lessor] found some drugs in his room … [the child] said that his dad gave him money and I said … the repercussion of your choice is you can no longer live here … [the lessor] said it just wasn’t working out having a young boy there, and she couldn’t wait those couple of months for me to live out there full time.
[65] Summary table attached to OP4.
[66] Transcript, page 23 at [5]-[25]. See also R2, T15, page 118.
April 2019 to September 2019
The Other Party said that in early 2019, at her request, her sister agreed for the child to live with her family until the end of the school year.[67] The Other Party claims to have had 100% care of the child during this period, from April 2019 to September 2019.[68] The Other Party said that there was no arrangement between the Applicant and Mr K as the Applicant claims.[69] The Other Party said that the agreement with her sister, Mrs K, was:[70]
I would pay food, accommodation, clothing, contribute to power, water, gas.

I continued to pay [the child’s] HBF, I continued to go to school, I continued to have his mail sorted, I continued to parent [the child] … I think [the child] craved normal and he loved being there. But I did all the parenting. As my sister’s statement said she didn’t do any parenting, she was purely providing a boarding place for [the child] to stay … There was no money received for [the child] from anyone …

The arrangement was with me and the money was with me.
[67] Transcript, page 23 at [30] and summary table attached to OP4.
[68] See summary table attached to OP4.
[69] OP1.
[70] Transcript, page 23 at [35]-[45] and page 24 at [5]
The Other Party said that later in 2019 she was diagnosed with cancer and she and her sister were unable to continue the arrangement, at which time the Other Party’s sister,

Mrs K, approached the Applicant to start contributing financially:[71]
He said he would, but he refused to go through child support agencies … he did two payments and that was it.[72] [The Applicant] never spoke to [the Other Party’s sister], and [the Applicant] wasn’t parenting and he had no further contribution.

[The Applicant]
has also put in his last statement there that he was looking after

[the child]
from August/September I think, which is just not true. He wasn’t even in the state full time then from what I understand.
[71] Transcript, page 24 at [5]-[10] and summary table attached to OP4. See also extract of text message at R2, T36, page 493 and continued at page 496.
[72] See copy of text message from Mrs K confirming dates and amounts of these two payments at OP3.
September/October 2019 onwards
The Other Party said that in her view, from at least September 2019[73] and (more)

‘probably … the first week of October’, the Applicant moved back to Western Australian permanently after four or five years and the child moved in with him.[74] The Other Party said that the Applicant became the child’s full-time carer from roughly November 2019.[75]

The Other Party that she had 50% care of the child from September 2019 to late October 2019 while the child:[76]
… floated for meals and beds between my mums with me, his dad when he was in town and my sisters and friends. I continued to meet [the child] weekly and pay for some food and took him shopping for food and clothing. I continued to contribute to travel, HBF, made dentist appointments etc.
(Without alteration.)
[73] OP4.
[74] Transcript, page 18 at [15] and A2.
[75] Transcript, page 24 at [20].
[76] Summary table attached to OP4, page 2.
CONSIDERATION
As noted above, the task for the Tribunal in the present matter is to determine the percentage of care, if any, that each parent, being the Applicant and the Other Party,

had of the child. The date from which any such determination would have effect also falls for consideration.
The starting position is that the earlier child support assessment that was in place from 2015 was ended with effect from 8 July 2018 because the child was found to no longer be in either parent’s care. The Tribunal understands that this is not in dispute between the Applicant and the Other Party.
Rather, the child support assessment that is the subject of the present proceedings is the assessment prompted by the Other Party’s advice to the Agency on 7 February 2019 that she had 100% care of the child and that he had returned to her care from September 2018.
Is there a pattern of care?

To make a determination of percentage of care in accordance with s 49 or s 50 of the Assessment Act, it is first necessary for the Tribunal to decide whether there is a

‘pattern of care’ (ss 49 and 50(1) of the Assessment Act). In the present matter, the Tribunal is required to determine whether either parent commenced having a care pattern of or a care arrangement for the child at some stage after 8 July 2018.
The relevant care period has now passed, and a new child support assessment was made on 1 October 2019 and was in effect from that date. That being so, the Tribunal must identify on what date after 8 July 2018 the care arrangement commenced and on what date it ceased.
As noted at paragraph [20] above, ‘pattern of care’ is not a defined term and can be interpreted according to its ordinary meaning.
The Tribunal has considered the available evidence, set out at paragraphs [35] to [64],

and listed at paragraph [33] above. The Tribunal has formed the view that at the time the Other Party made the application for a child support assessment following her advice that she had 100% of the child (see paragraph [4] above), she had established a ‘pattern of care’ in respect of the child. The Tribunal does not hold the same view in relation to the Applicant and considers the evidence demonstrates no pattern of care for the child.

The Tribunal’s view is based on the evidence that:
(a)
The Other Party has been responsible for the child’s living arrangements,

living costs, day-to-day matters and personal care, including during periods where the child did not continuously reside with her personally.
(b)The Other Party has been responsible for providing the child with food, health insurance, meeting the costs of his education, transport and other general necessities of daily life.
(c)
The Applicant provided money, at times, to the child, which he was free to use as he pleased (rather than, for example, his schooling or accommodation).

However, there was no particular arrangement, regularity nor pattern to these payments or any parameters regarding appropriate use of the funds.
(d)The Applicant was far less involved than the Other Party, in making day to day decisions regarding the child, other than expressing his view at one point that he wanted the Other Party and the Ks to be responsible for the child.
As to the date the pattern of care commenced, the Tribunal is satisfied that the Other Party had care of the child from 9 July 2018, being the first day after the previous care arrangement ceased to have effect. The Tribunal makes this finding irrespective of there being no specific evidence or submission made of the exact date on which the child commenced and subsequently ceased his accommodation with his girlfriend and his girlfriend’s mother or the exact date on which he moved in with the Ds. This is because the Tribunal takes the view that, on the evidence, the Other Party’s pattern of care of the child[77] was consistent throughout, irrespective of where the child was physically residing at any given point in time. Further, the Other Party’s bank records indicate that the first payment from the Other Party to the child’s girlfriend’s mother occurred on 17 July 2018.[78]

The Tribunal accepts the Other Party’s evidence that discussions were had with the child’s girlfriend’s mother prior to the child moving in. For all of these reasons,

the commencement date of the pattern of care of 9 July 2018 is reasonable in the present circumstances.
[77] See [20] above.
[78] R2, T23, page 322.
As to duration, the care period ends on 30 September 2019, the last day before the child support assessment dated 5 November 2019 took effect.[79] While the Applicant submitted that the child has been living with him since August 2019,[80] he did not dispute or seek to change the date of effect of 1 October 2019 in the child support assessment dated

5 November 2019. The Applicant also did not dispute the Other Party’s evidence regarding the child’s living arrangements at that time.[81]
What is the percentage of care?
[79] See fn 3 regarding instances where the care period is longer of shorter than the general 12-month period.
[80] See [51] above.
[81] See [62] to [64] above.
As the Tribunal has found there is a pattern of care, being from 9 July 2018 to 30 September 2019, it then must determine the percentage of care that the Applicant and the Other Party each had of the child during the relevant care period, and this must correspond to the actual care.
The Applicant and the Other Party disagree as to:
(a)whether care of the child actually changed from 30 September 2018; and
(b)the amount of actual care they each had of the child from 30 September 2018.[82]
[82]
The Tribunal has considered the available evidence and the Applicant’s and Other Party’s respective submissions regarding their claimed percentages of care of the child during the care period, in particular:
(a)The Applicant’s claim to have had 100% care of the child from July 2018 to December 2018, while he was living interstate.
(b)The Applicant’s claim to have had 50% care of the child from December 2018 to February 2018, although he is ‘happy to let that period go’ in favour of the Other Party, conceding she had 100% care of the child at this time.
(c)The Applicant’s claim that from March 2019 to August 2019 he had 50% care of the child, while the child was in the care of the Ks, largely demonstrated by his social media contact and direct payments to the child.
(d)The Applicant’s claim he had 100% care of the child from August 2019, when the child moved in with him.
(e)The Other Party’s claim at hearing that she has had 100% care of the child since the day the Applicant left.
(f)The Other Party’s oral evidence and bank records regarding the arrangements during the periods which the child lived with his girlfriend and the girlfriend’s mother.
(g)The Other Party’s claim that she had 50% of the care during the period the child lived with the Ds, from late September 2018 to November 2018, during which time she provided the usual financial and emotional support.
(h)The Other Party’ claim the child was in her care 100% of the time from November 2018 to approximately late September or early October 2019.
The Tribunal is of the view that there is little documentary evidence regarding the Applicant’s claimed financial arrangements and emotional support during these periods and the claims are largely unsubstantiated. Rather, the Tribunal is satisfied on the evidence that the

Other Party had care of the child from 9 July 2018 to 30 September 2019, her percentage of care was 100% and this percentage of care is to be applied to the child support assessment from the application day, being 7 February 2019.
The Tribunal does not consider that for the period from late September 2018 to November 2018, when the child lived with the Ds, that the evidence indicates any departure from the normal care of the child sufficient to constitute a change to the pattern of care or to the percentage of care. This is despite the Other Party’s claim she had 50% care of the child (which, albeit, stands alongside her claim to have had 100% care of the child throughout) and despite the Applicant’s claim to have had 100% care of the child at this time.
What is the date of effect?
The Tribunal has accepted that there was a pattern of care and has determined the percentage of care based on the available evidence. As the Tribunal has, in effect, affirmed the reviewable decision, the date from which the percentage of care will have effect for the purposes of the child support assessment in question does not fall for consideration.
For completeness only:
(a)The Other Party’s application for review to the AAT1 was lodged more than 28 days after the objection decision was made. Therefore, in accordance with s 95N(1) of the Collection Act, prima facie, the decision has effect from the date that the application was lodged, which, in this case was 26 August 2019.
(b)The exception to this is if there are special circumstances that prevented the application from being lodged within the 28 days, If so, it is open to this Tribunal to find that the decision has effect from the date of the original decision, which, in this case, is 7 February 2019.
(c)The Other Party advised that she was unable to lodge her application to the AAT1 within the 28 day timeframe as she was receiving cancer treatment and she was unwell and recovering at that time.[83] At hearing, the Applicant said he was not going to dispute this and that he was ‘not worried about the 28 days.’.[84]
(d)
The Tribunal, if it had been required to be so satisfied, considers that the

Other Party’s circumstances regarding her health at the relevant time constitute special circumstances under s 95N(2) of the Collection Act and, had it been required to do so (which it was not, given it has affirmed the reviewable decision),

would extend the period for lodgement to 26 August 2019.
[83] R2, T35, page 487.
[84] Transcript, page 30 at [15] and [25].
CONCLUSION
The Tribunal has found that a care arrangement commenced after 8 July 2018, being the date the previous child support case was ended.
The Tribunal has further found that the Other Party had 100% care of the child from 9 July 2018 to 30 September 2019, with effect from 7 February 2019. Further and for completeness only, given that it did not fall for consideration in the present matter, the Tribunal is of the view that special circumstances existed that prevented the application to the AAT1 being lodged within the required timeframe.
DECISION
For the reasons outlined above, the correct or preferable decision is to affirm the reviewable decision.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of
L M Gallagher, Member

........................[sgd]................................................
Associate
Dated: 24 February 2021

Date of hearing: 20 October 2020

Applicant: In person

Counsel for the Respondent: Ms Laura Hinwood

Solicitors for the Respondent: Services Australia

Other Party: In person

The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known,

as the ‘Department of Human Services’.

The objection decision found that care of the child changed from 30 September 2018. Therefore, prima facie, this is the appropriate commencement date of the care period. A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate

(the Guide at 2.2.1). Therefore, and generally speaking, if the Tribunal also finds the care period commenced on 30 September 2018, the effect of its decision will be for a closed period ending on 30 September 2019.

If, however, on the evidence before it, the Tribunal finds that a pattern of care commenced on a different date, and/or for a period shorter or longer than 12 months, the Tribunal should go on to decide the care period based on the alternative date that the pattern of care began and for the duration best indicated by the evidence. As the relevant care period is now in the past, the Tribunal is required to determine the actual care that occurred during the relevant period. For completeness, it would be inappropriate for the care period to begin after 7 February 2019, being the date that the application for a child support assessment was lodged

(referred to as the ‘application day’ in, for example, s 54B of the Assessment Act).

Given the nature of the present application, the Registrar proceeds on the basis that its role should be confined to assisting the Tribunal in identifying and applying the relevant provisions to the evidence.

Accordingly, the Registrar gave no evaluation of the available evidence, did not advance a position as to the findings of fact the Tribunal is called upon to make and made no submissions as to what the correct and preferable decision in this matter is. The Tribunal notes the Registrar’s file notes of conversation with both parties, contained within R2, T41.

Noting that the Tribunal has found the relevant pattern of care to have commenced on 9 July 2018,

not 30 September 2018, for present purposes.

[2021] AATA 305

24 February 2021

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Natural Justice

Date of hearing:	20 October 2020
Applicant:	In person
Counsel for the Respondent:	Ms Laura Hinwood
Solicitors for the Respondent:	Services Australia
Other Party:	In person