GFSG and Child Support Registrar (Child support second review)

[2021] AATA 2765

GFSG and Child Support Registrar (Child support second review) [2021] AATA 2765 (9 August 2021)

Division:GENERAL DIVISION

File Number:          2019/8164

Re:GFSG

APPLICANT

AndChild Support Registrar

RESPONDENT

AndMWKV

OTHER PARTY

DECISION

Tribunal:Member K. Parker

Date:9 August 2021

Place:Melbourne

The Social Services and Child Division of the Administrative Appeals Tribunal made the following decision on 4 October 2019 (Decision Under Review):

This Tribunal set asides the Objection Decision and in substitution, decides:

(a)  to revoke the existing percentage of care determinations from 1 August 2018 and make new determinations to reflect that from 2 August 2018, GFSG had a percentage of care of the child of 100% and MWKV had a percentage of care of the child of 0%; and

(b)  to revoke those determinations from 21 September 2018 and make new percentage of care determinations to reflect that from 22 September 2018, GFSG had a percentage of care of the child of 0% and MWKV had a percentage of care of the child of 0%.

The General Division of the Administrative Appeals Tribunal (this Tribunal) VARIES the Decision Under Review by:

(a) substituting the date referred to in the first line of paragraph (b) of the Decision Under Review (i.e. 21 September 2018) with the date 2 November 2019; and

(b)substituting the date referred to in the second line of paragraph (b) of the Decision Under Review (i.e. 22 September 2018) with the date 3 November 2019.

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

Member K. Parker

Catchwords

CHILD SUPPORT – care percentage determinations – meaning of “care” – child lived separately from both parents at certain times – provision of other types of care and support – new evidence presented to the Tribunal - 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

Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959

Secondary Materials

Guides to Social Policy Law, Child Support Guide -

Using the Child Support Guide | Child Support Guide (dss.gov.au)

REASONS FOR DECISION

Member K. Parker

9 August 2021

INTRODUCTION

1. The Applicant, GFSG, and the Other Party, MWKV, are the separated parents of a child born in 2002 (the Child). GFSG lodged this application seeking review of a decision made on 4 October 2019 by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) about care percentage determinations made for the purpose of assessing child support in respect of the Child (Decision Under Review).[1]

   [1] The names of the Applicant and Other Party have been replaced with a pseudonym and any identifying information has been 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).

2. The hearing of this application took place on 29 March 2021. There were several persons in attendance at this hearing, including:

   (a)GFSG;

   (b)MWKV and his current wife who sought to represent MWKV at the hearing;[2]

   (c)the Child who was 19 years old at the time of the hearing;

   (d)the Child’s grandmother (GM);

   (e)the Child’s maternal aunt (Aunt); and

   (f)the Child Support Registrar’s (CSR’s) legal representative.

   [2] MWKV’s current wife recently notified the Tribunal that she no longer sought to represent MWKV in this application.

3. More than 1,000 pages of evidence was lodged in this application. It was unclear to the Tribunal, even after the hearing took place, precisely what evidence was being relied upon by GFSG and MWKV to support their respective positions. The Tribunal made directions requiring further clarification to be provided by GFSG, MKWV, and GM, after the conclusion of the hearing, to make this clear to the Tribunal.

4. In compliance with the Tribunal’s directions referred to in the above paragraph, MWKV lodged further material on 31 March 2021 and 12 April 2021, as referred to in paragraphs [28(f)] and [28(h)] below. GM lodged the statutory declaration referred to in paragraph [28(g)] on 12 April 2021. GFSG lodged a statutory declaration and further information on 8 June 2021, as referred to in paragraph [28(i)].[3]

   [3] There was a delay in the lodgment of GFSG’s materials due to medical issues that arose after the hearing, requiring her hospitalisation for a short time.

5. For the reasons set out below, the Tribunal varies the Decision Under Review, as follows (variations underlined):

   This Tribunal set asides the Objection Decision and in substitution, decides:

   (c)   to revoke the existing percentage of care determinations from 1 August 2018 and make new determinations to reflect that from 2 August 2018, GFSG had a percentage of care of the child of 100% and MWKV had a percentage of care of the child of 0%; and

   (d)  to revoke those determinations from 2 November 2019 and make new percentage of care determinations to reflect that from 3 November 2019, GFSG had a percentage of care of the child of 0% and MWKV had a percentage of care of the child of 0%.

   BACKGROUND

6. GFSG was assessed as from 8 August 2008 as having 76% care of the Child and MWKV as having 24% care of the Child for the purpose of child support payments (Original CP Determination).

7. On 16 July 2018, MWKV gave notice to the Child Support Agency (CSA) that the Child had been living with GM for the previous eight years and that GFSG had moved out of GM’s residence approximately two or three months prior.[4]

   [4] Refer T-Documents T9/85.

8. On 2 August 2018, GFSG informed the CSA that the Child was living with her full time and that they were living together with GM, at GM’s house. GFSG notified a change of care, being that she had 100% care of the Child.

9. On 9 August 2018, MWKV informed the CSA (again) that GFSG had moved out of GM’s house “a while ago”.[5]

   [5] Refer T-Documents T9/85.

10. On 25 September 2018, the CSA contacted GM. GM informed the CSA that in July 2018, GFSG had moved out of her house to do a week of house sitting and then GFSG had returned to GM’s house. GM advised the CSA that GFSG had not stayed at her home for the previous two weeks and that she was unsure if GFSG was returning, suggesting that she might be house sitting again. During this conversation, it was recorded, by the CSA, that GM had confirmed that GFSG had provided food and clothing for the Child but that GM (and GM’s husband) had provided the Child with a house to live in. GM informed the CSA that GM had the day to day care of the Child, but “any bigger decisions” were made in conjunction with GFSG.

11. Separately, in GM’s Statement, GM states that GFSG moved out of her house at the end of September 2018. This is broadly consistent with the information provided by GM to the CSA in the conversation referred in the above paragraph, which took place on 25 September 2018. At the hearing, the Tribunal found GM to be a credible witness trying her best to remain impartial amid the significant conflict that was evident between the various family members. The Tribunal accepts the evidence of GM and finds that GFSG moved out of GM’s on 11 September 2018 and did not return. This date is based on GM’s statements to the CSA made on 25 September 2018 as detailed in paragraph [10] (i.e. that GFSG had moved out two weeks ago, that is, 14 days before 25 September 2018).

12. The CSA noted supporting statements which had been provided by GM stating that GFSG and the Child had been living with GM for the last 13 years and even though GFSG had been temporarily absent on two occasions, GFSG was still supporting the Child financially and assisting with the day-to-day decision making in respect of the Child. On this basis, the CSA rejected the request made by MWKV to change the Original CP Determination.[6]

    [6] Refer T-Document T9/86.

13. On 27 September 2018, the CSA notified GFSG and MWKV in writing that the new information that had been provided did not require a change to the child support assessment and that child support in respect of the Child, was still payable at the current rate.[7] No objection was lodged by MWKV in relation to this decision.

    [7] Refer T-Documents T10/88 & 89.

14. On 29 October 2018, the CSA notified GFSG in writing that the CSA had recently received new information about the care of the Child and that CSA’s records showed that GFSG has 100% care of the Child, as from 2 August 2018. A CSA record produced to the Tribunal (attached to the CSR’s SFIC) stated that the CSA had spoken to MWKV on 29 October 2018 and he had confirmed his earlier advice to the CSA on 2 August 2018 that he had not cared for the Child “for a while”. The CSA notified MWKV in writing, that same day, that he was assessed as having 0% care of the Child as from 2 August 2018. The Tribunal will refer to these determinations collectively as the Second CP Determination.[8]

    [8] Refer T-Documents T12/96-99.

15. On 20 November 2018, MWKV’s current wife (as MWKV’s nominated representative) lodged an objection by telephone to the Second CP Determination (Objection).

16. On 4 April 2019 an authorised objections officer (ARO) allowed the objection and determined that GFSG had 83% care and MWKV had 17% care of the Child (Objection Decision).[9]

    [9] Refer T-Documents T16/116-119.

17. GFSG sought review of the Objection Decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).

18. On 4 October 2019, the AAT1 set aside the Objection Decision and in substitution, decided:

    (a)to revoke the existing percentage of care determinations from 1 August 2018 and make new determinations to reflect that from 2 August 2018, GFSG had a percentage of care of the child of 100% and MWKV had a percentage of care of the child of 0%; and

    (b)to revoke those determinations from 21 September 2018 and make new percentage of care determinations to reflect that from 22 September 2018, GFSG had a percentage of care of the child of 0% and MWKV had a percentage of care of the child of 0% (Decision Under Review).

19. On 2 December 2019, GFSG sought second review by the General Division of the Administrative Appeals Tribunal (this Tribunal).

20. GFSG accepts that the Child moved out of GM’s house on 3 November 2019 and that she did not have care of the Child after this date. GFSG’s position is that the percentage of care “should be reinstated” as from 2 August 2018 and 25 September 2018, until 3 November 2019 when the Child moved out of GM’s house.

21. MWKV asserted that GFSG had 0% care of the Child from at least 2 August 2018 because he claimed that she did not live with the Child at GM’s house, nor provide for the Child financially or otherwise.

    LEGISLATIVE FRAMEWORK

22. Child support in Australia is governed by the Child Support (Assessment) Act 1989 (Cth) (the Act) and the Child Support (Registration and Collections) Act 1988 (Cth). Child support is generally assessed based on the “actual care” being provided to a child. The CSR is responsible for making care percentage determinations needed to assess child support payments.

23. Section 50 of the Act provides that where the CSR is satisfied that a person has a pattern of care during a care period for a child for whom an assessment is to be made, the CSR 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. Section 49 of the Act applies if the Registrar is satisfied that the person has had, or is likely to have, no pattern of care, in which case the responsible person will be found to have zero percentage of care, subject to certain exceptions which are not relevant in this case.

24. A new care percentage determination must not be made in respect of a child, unless the existing care percentage determination for that child has been revoked. 

25. Under s 54F of the Act, the CSR (or this Tribunal upon review) must revoke an existing care percentage determination if the responsible persons’ percentages of care have changed and the cost percentages would change under a new care percentage determination. The relevant part of this provision is reproduced below (emphasis added):

    54F Determination must be revoked if there is a change to the responsible person’s cost percentage

    (1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

    (a)the Registrar or Secretary is notified, or otherwise becomes aware, 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

    (b)the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

    (c)       section 54G does not apply; and

    (d)       subsection (2) applies in relation to the individual.

    Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

    …

    (3)       The revocation of the determination takes 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.

26. Under s 54H, the CSR (or this Tribunal upon review) also has a discretion to revoke an existing care percentage determination if the responsible parents’ percentages of care have changed, even if the cost percentage of each parent has not changed. The relevant part of this section is reproduced below (emphasis added):

    54H Registrar may revoke a determination of a responsible person’s percentage of care

    (1)The Registrar may revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

    (a)the Registrar or Secretary is notified, or otherwise becomes aware, 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

    (b)the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and

    (c)sections 54F, 54FA and 54G do not apply; and

    (d)subsection (2) applies in relation to the individual.

    Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

    …

    (3)       The revocation of the determination takes 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.

    ISSUES

27. In deciding this application, the following issues arise:

    (a)whether the existing care percentage determinations for the Child should be revoked and if so, from what date? and

    (b)if so, what new care percentage determination(s) should be made in respect of the Child and when they will take effect.

    EVIDENCE

28. The Tribunal has considered the evidence lodged by the parties in this application. Of note, the Tribunal has considered the following documents:

    (a)a set of documents lodged by the CSR under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents);

    (b)Statutory Declaration signed by the Aunt on 16 May 2019 (Aunt’s Statement);

    (c)Statutory Declaration signed by the Aunt on 9 November 2019 (Aunt’s Second Statement);

    (d)FAO12 Form signed by the Aunt on 18 December 2019 (Aunt’s FAO12 Form);

    (e)Statutory Declaration signed by the Child on 11 October 2020 (Child’s Statement);

    (f)Statutory Declaration signed by GFSG on 27 November 2020 (GFSG’s First Statement);

    (g)undated document signed (before an accountant) and lodged by MWKV on 15 December 2020 (MWKV’s First Statement);

    (h)undated document lodged by MWKV on 31 March 2021 (MWKV’s Second Statement);

    (i)Statutory Declaration signed by GM on 12 April 2021 (GM’s Statement);

    (j)undated documents lodged by MWKV on 20 April 2021 (MWKV’s Third Statement); and

    (k)Statutory Declaration signed by GFSG on 7 June 2021 (GFSG’s Second Statement).

29. The Tribunal heard oral evidence at the hearing from GFSG, MWKV, GM, MWKV’s current wife, and the Child who is now 19 years of age. The Tribunal did not call for the Child to be present at the hearing. He appeared at his own instigation. During questioning of the Child during the hearing, he was presented with evidence that was inconsistent with the assertion made by him (in the Child’s Statement) that GFSG did not “care, feed or provide” for him “mentally, physically or financially” from 13 April 2018 to 30 July 2020. When presented with evidence of support that GFSG had provided to the Child during this period, the Child acknowledged at the hearing that his previous assertion was not accurate.

    CONSIDERATION

30. The application before the AAT1 involved a review of the Objection Decision. The Objection Decision involved a review of the Second CP Determination. Accordingly, the Tribunal must consider whether the CSR’s decision on 27 October 2018 to revoke the existing percentage of care determination in respect of the Child, being the Original CP Determination, and to make a new care percentage determination, i.e. the Second CP Determination, in its place as from 2 August 2018, was the correct or preferable decision.

31. For either of s 54F, or s 54H, to have applied on 27 October 2018, it is necessary for this Tribunal to determine whether the mandatory requirement in subsections (1)(a) of those provisions, were met in respect of the Child, namely (underlining added):

    the Registrar or Secretary is notified, or otherwise becomes aware, 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

32. Under the Original CP Determination, GFSG was assessed as having 76% care of the Child and MWKV as having 24% of care of the Child. The Tribunal must determine whether the care of the Child that was “actually taking place” as from 2 August 2018, corresponded with those percentages of care.

33. The CSA (and this Tribunal upon review) was provided with a copy of a Federal Magistrates’ Court parenting order issued in 2007 (Court Orders). As noted by the CSA, the Court Orders have not been followed by the Child’s separated parents for many years. Neither GFSG nor MWKV disputed this. The Tribunal will disregard the Court Orders because the parenting arrangements in them did not reflect the care of the child that was “actually taking place” leading up to and including 2018, and beyond.

1. As mentioned above, GFSG asserts that since at least 2 August 2018, she has always had 100%, and MWKV 0%, care of the Child until the Child moved out of GM’s house on 3 November 2019. MWKV disagrees with this assertion. He asserts that GFSG had 0% of the care of the Child and that he had 100% care.

2. The Child did not reside with either parent as from 11 September 2018. Further, for short periods prior to this date, GFSG was absent from GM’s house while she was house sitting. The Child remained living with his GM from 11 September 2018 until 3 November 2019, when he moved out and commenced living his Aunt.

3. The main issue arising in this case is whether the Tribunal should find that either or both of GFSG or MWKV had provided actual care for the Child, even though neither of them resided in GM’s house together with GM and the Child, from at least 11 September 2018 to 3 November 2019.

4. The Act does not define the concept of what is regarded as “care” or “actual care” other than to suggest a possible way in which it might be calculated. Specifically, s 54A of the Act provides as follows (underlining added):

   (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)  …

5. There have been instances where a child is regarded as being in the care of a person even though they do not sleep under the same roof, for instance, where a child attends significant periods of time at a boarding school or is absent from the family home for some other work or study reason. The Applicant referred this Tribunal to the decision of Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 (Polec).

6. In Polec, the SSAT decision to affirm the Child Support Registrar’s decision that the departure of the child from the mother’s house to take up an apprenticeship, did not mean that there had been a significant reduction in the child’s mother’s care percentage or that it was a “terminating event”, was overturned on appeal.

7. Polec stands as authority for the proposition that a range of different factors, not limited to the physical or financial care arrangements, should be considered in assessing whether a person has care of a child. Hughes FM formulated the following list of factors to be considered:

   In my view, in determining whether and to what extent a person has care of a child for the purpose of the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988, it is necessary to consider the following:

   a. To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?

   b. To what extent does the person make arrangements for others to meet the needs of the child?           

   c. To what extent does the person pay for the costs of meeting the needs of the child?

   d. To what extent does the person otherwise provide financial support for the child?

   e. To what extent does the child provide for his or her own needs or have those needs met from another source?

   f. To what extent is the child financially independent or financially supported from another source?

8. GFSG contends that she continued to provide ongoing care to the Child, despite not living in the same house as GM and the Child as from September 2018, by providing him with the following:

   (a)ongoing financial support, including the payment of the Child’s school-related, medical, dental and other expenses;

   (b)giving GM cash from time to time to be used by GM to pay for groceries consumed at GM’s house;

   (c)making decisions affecting the Child;

   (d)supporting the child when he was hospitalised; and

   (e)providing the Child with general emotional support.

9. Similarly, MWKV contended that the Child was still in his care while he was living with GM. However, at the hearing, he did not agitate this contention vigorously or set out detailed reasons why the Tribunal should be so satisfied. Nor did he produce the same magnitude of compelling supporting documentation before or after the hearing, as GFSG did, to show that he had supported the Child financially or in other ways concerning the Child’s schooling, medical and dental treatment during that period.

10. The CSG Policy provides the following policy guidance in relation to deciding whether a person has cared for a child (at paragraph 2.2.1, under the heading “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:

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

    oarrangements for others to meet the needs of the child (delegated care).

    ·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

    ·To what extent the person pays for the costs of meeting the needs of the child.

    ·To what extent the person otherwise provides financial support for the child.

    ·To what extent the child provides for his or her own needs or has those needs met from another source.

    ·To what extent the child is financially independent or financially supported from another source.

11. The CSG Policy also provides the following guidance in respect of older children living away from home:

    Older children living away from home

    Generally, older children who live independently and separately from their parents or carers provide for many of their own needs. This may include meeting their own ongoing daily needs (such as meal preparation, transport, socialising, etc.) as well as making their own decisions about their daily activities, schooling and health issues. Therefore, it may be difficult to establish whether a person provides care for an older child who lives separately from that person.

    Where a person provides substantial financial support to an older child living away from home, the Registrar will generally consider that financial support as an indicator that the person is continuing to provide care for the child. The support can be in relation to daily costs such as food, accommodation and transport, and/or longer term costs such as school fees, paying for airfares home for holidays, clothing, health and dental care, etc.

    While financial support is often a key factor in determining whether a person cares for a child who lives away from home, it will not always be the sole determinant. In cases where the financial support provided is limited, and other factors exist that suggest that the person continues to care for the child, the Registrar will consider whether the person is actively involved in major decisions relating to the child. For example, decisions relating to the child's health, schooling, relationships, career, etc. may be indicators that the person continues to provide care for the child.

12. Based on the evidence produced to the Tribunal, especially the evidence contained in a document entitled “Index to documents” produced by GFSG, the Tribunal finds that the primary and overwhelming financial backing for the Child during the period 2 August 2018 to 3 November 2019 was provided by GFSG. By comparison, MWKV provided an insignificant proportion of the financial support for the Child over this period.

13. It was also apparent that GFSG carried the bulk of the parental responsibility for the Child, both managing and paying for his frequent medical and dental treatment, albeit the Aunt was also involved when the Child and GFSG were “not talking” and especially when it involved matters regarding the Child’s schooling. The Child preferred that the Aunt be the nominated contact person at his school since November 2018.

14. In the Second GM Statement, GM stated that she had checked her diaries for the previous few years and that GM and/or GFSG had taken the Child to the appointments with the Child’s psychologist, doctors, and dentist. Details of those appointments were as follows:

    (a)appointments with the Child’s psychologist on 21 occasions between 12 February 2018 and 26 February 2020. GM said she would pick the Child up from school so that he could make it to the appointment on time because GFSG lived further away;

    (b)GM took the Child to two appointments with a general practitioner in February and May 2019 to obtain a mental health plan for the Child;

    (c)GM and/or GFSG took the Child to dental appointments on 12 occasions between 13 October 2017 and 4 October 2019;

    (d)GFSG and GM took the Child to the Emergency Department at The Royal Children’s Hospital (RCH) on 15 July 2019 for a medical condition. GM took the Child to further appointments at the RCH on 16 and 23 July 2019;

    (e)GFSG had taken the Child to see a dermatologist on 20 March 2018 and 22 July 2020. GM took the Child to see his dermatologist on 19 January 2021;

    (f)GM drove the Child to and from Essendon Station so that he could attend a City Experience week-long school excursion from 29 October 2018 to 2 November 2018;

    (g)on 21 July 2018, the Child went to see MWKV for the first time in over a year and he was dropped home the day after on 22 July 2018; and

    (h)GM collected the Child from his place of employment and drove him to the Aunt’s house on six occasions between 27 November 2020 and 21 January 2021.

15. In GFSG’s First Statement, her evidence may be summarised as follows:

    (a)GFSG assisted the Child to open a bank account on 30 April 2019 and GFSG had made deposits into the Child’s account up until late-November 2019 (evidence of those deposits was attached);

    (b)GFSG had provided various amounts of cash to the Child over time but had struggled to do so after she stopped receiving child support and family tax benefit payments;

    (c)the Aunt had informed GFSG that she received $150 per week from MWKV and that $50 of that amount is paid to the Child;

    (d)MWKV said he would pay the Child’s school book list in November 2019, but he did not do so. GM paid for the Child’s book list. GM also paid for the Child’s laptop at the start of 2019. GFSG said the child support payments were used to fund such payments, before they were cut off;

    (e)GFSG provided evidence of 54 transactions from her bank account for payment of shopping, groceries, clothing and medication for the Child;

    (f)GFSG has not lived with GM and the Child since “late 2018” but would still provide them with groceries and cook for them;

    (g)GFSG provided evidence of 12 transactions from her PayPal account used to purchase things for the Child’s PlayStation;

    (h)GFSG provided evidence of eight transactions showing “top ups” by her into the Child’s mobile phone account. GFSG said she had purchased the Child’s current mobile phone. GFSG said she stopped paying for “top ups” in November 2019;

    (i)GFST provided evidence of the payment of private health insurance in respect of the Child for the period October 2019 to November 2020. GFSG states she had paid for the Child’s private health insurance since early 2016;

    (j)GFSG has taken the Child to see his psychologist on “some occasions” and that either she or GM would take him those appointments. GFSG says that MWKV has never taken the Child to such appointments;

    (k)GFSG had taken the Child to almost all of the appointments at the McNamara Clinic when he was sick and that MWKV had never done so;

    (l)GFSG took the Child to see a dermatologist in 2018;

    (m)GFSG choose the secondary school that the Child attended;

    (n)GFSG had paid for all school-related expenses of the Child, including yearly school book lists and school excursions and camps. GFSG said when she did not have the money to pay for those expenses, she would borrow it from her parents. GSFG stated she would always pay back the money to GM in cash instalments;

    (o)GFSG stated that the Child only spent one night at MWKV’s house in 2018, being 21 July 2018;

    (p)GFSG stated that the Child did not spend any nights at MWKV’s house in 2019 but he did catch up with him on several occasions for a meal and they went camping for a few days at the end of 2019;

    (q)GFSG stated that the Child did not spend any nights at MWKV’s house in 2020 and that she believed they only communicated by telephone and by text messages;

    (r)GFSG acknowledged that the Aunt had been caring for the Child for his whole life, that they were a close-knit family and had always helped each other out. GFSG stated that in a similar way, she had driven her niece to childcare or school several times a week. GFSG stated that the Aunt had been the Child’s chosen representative at his school from November 2018 onwards. GFSG stated that her late father had driven the Child to school each day and that this was “their thing”.

16. One of MWKV’s main points was that he asserted that the Westpac bank account statements provided by GFSG as evidence of financial support given by her to the Child, was not a bank account held by GFSG because the statements referred to this account being a “55+” account (and GFSG was born in 1973 and therefore, not aged over 55).[10] MWKV suggested that they might have been statements for a bank account held by GM instead. However, the Tribunal notes that on some of the Westpac bank account statements GFSG is referred to by name, after the word “Payer”. Further, at the hearing the Tribunal asked GM whether she banked with Westpac. GM said she did not and that she had only banked with the Commonwealth Bank of Australia. The Tribunal accepts this evidence. At the hearing, GFSG explained to the Tribunal that Westpac might have given her a “55+” account, because she was on a pension.

    [10] Refer MWKV’s First Statement.

17. Based on those two matters, the Tribunal is satisfied that GFSG is the account holder for the Westpac account statements provided to the Tribunal as evidence of financial support provided by GFSG to the Child.

18. MWKV also contended in his submission to the Tribunal on 20 April 2021 that the expenditure that GFSG had claimed was not supported with receipts. He suggested the groceries etc might have been purchased for use by GFSG, and not for the Child. There was no evidence provided by MWKV to support his assertion in this regard.

19. The Tribunal asked GM at the hearing whether GFSG had provided her with groceries. GM confirmed that she had done so every couple of days, although this would vary. GM also gave evidence that GFSG would visit GM and the Child every week and that this was the case up until Christmas 2020 when “things got upsetting”. GM gave evidence at the hearing that GFSG had cared for him, but the Child was “getting agitated over all of this and was backing away from her”. GM said that GFSG would visit one day and the Child would be nice to her, then GFSG would visit another day and the Child “couldn’t be bothered with her”.

20. At the hearing, GM gave evidence that GFSG would try and do things for the Child and he was not interested. GM said the more GFSG would try, the more the Child would back off.

21. At the hearing, the Tribunal asked GM whether GFSG had given money to the Child. GM answered “yes” and that GFSG would give amounts of between $50 to $150 to GM and GM’s husband once a fortnight. GM said that GFSG paid for the Child’s schoolbooks and excursions. GM said that MWKV did not pay for those things. GM said that she and GFSG would take the Child to the dentist and the doctor. GM said that MWKV had only taken the Child to the doctors on one occasion. The Tribunal accepts this evidence.

22. The Tribunal asked GM who had looked after the Child after GFSG ceased living in her home. GM said that GFSG attended school parent-teacher interviews. GM said that “we have all been looking after him”. GM said that the Child had seen MWKV, “a fair bit, but not looking after him in that sense”.

23. The Aunt gave evidence at the hearing to indicate that she disagreed with a lot of information GM and GFSG had provided to the Tribunal. The Aunt asserted that GFSG did not attend any parent teacher interviews, the Child was failing at school and that nothing had been done about it. The Aunt told the Tribunal that she had arranged for extra support and tutoring for the Child, paid for by her and for which she later received reimbursement from GM. GFSG confirmed at the hearing that she did not pay for the Child’s tutoring.

24. The Tribunal asked GM and the Aunt whether GFSG’s efforts to care for the Child were consistent up until recent times. The Child told the Tribunal that the last time he has been in contact with GFSG was when he turned 18. This was in July 2020. GM said GFSG’s efforts were consistent, up until the time that the Child moved out of GM’s house, at which time it became “hostile”. The Aunt told the Tribunal that GFSC’s efforts had fluctuated and that sometimes she would leave GM’s home for two weeks. The Aunt said that there was one stage, where GFSC did not see the Child for six weeks. When the Aunt was asked how she knew this, the Aunt said that she spoke to the Child every day.

25. Upon being questioned at the hearing, MWKV gave evidence that the Aunt was providing care for the Child from April 2018 to July. MWKV said that the Aunt had called him to tell him the GFSC had moved out of the GM’s house and that the Aunt was looking after GM and the Child.

26. Of all the witnesses who appeared at the hearing, the Tribunal found GM to be impartial, unlike the other witnesses on account of the high degree of conflict between them. It is for this reason, and because GM impressed the Tribunal as a measured and credible witness, that the Tribunal accepts GM’s account of the matters set out in the above paragraphs [52] to [55].

27. Overall, the Tribunal found the oral evidence given by the GM at the hearing to be compelling. GM did not dispute that until the Child had moved out of GM’s home, GFSG had maintained a significant and consistent role in the Child’s life, had provided the Child with financial support, taken him to medical and dental appointments, and had been involved in making important decisions concerning the Child. Further, the Tribunal considers that GFSG had provided delegated care of the Child by arranging with GM to meet the daily needs of the Child while he remained living in GM’s house.

28. On balance, the Tribunal is satisfied that even though GFSG was not residing in the same house as GFSG from 11 September 2018 (and for some short periods prior to this date), she was the primary financial and supervisory support base for the Child and she had delegated care of the Child to GM, as mentioned above. This finding is based, in large part, on the evidence given by GM at the hearing and the further detailed financial evidence and information provided by GFSG after the hearing. That evidence was not before the AAT1. MWKV had an opportunity to respond to this evidence. The Tribunal does not consider that the response provided by MWKV raised any substantive challenge to this evidence.

1. Accordingly, the Tribunal finds that GFSG had “actual care” of the Child by providing him with financial and other support and by actively supported or enabled GM to provide for the Child’s daily care needs while living in GM’s house between 2 August 2018 and 2 November 2019. For those reasons, the Tribunal finds that despite GFSG not residing with the Child, she was nevertheless providing the actual care of the Child between 2 August 2018 to 2 November 2019. The Tribunal also finds that she was living, albeit sporadically, with the Child between 2 August 2018 and when she departed on 11 September 2018. The Tribunal finds that GFSG had 100% care of the Child during both of those periods (i.e. from 2 August 2018 to 11 September 2018, and 12 September 2018 to 2 November 2019).

2. The Tribunal is not satisfied that MWKV provided any significant parental support to the Child, and certainly not enough to justify a finding that he had provided “actual care” to the Child for any part or all of the period between 2 August 2018 to 2 November 2019. MWKV provided some of his bank statements to the Tribunal after the hearing showing payments described as “Dads payment”, which were in the sum of $50 per week, and “Adams payment”, which were in the sum of $150 per week. However, the earliest of those payments was made on 4 December 2019, according to the bank statements produced to the Tribunal. This is also consistent with the oral evidence given by GM in relation to MWKV’s (lack of) involvement with the Child, while the Child was living with GM. The Tribunal considers that the evidence presented by MWKV was insufficient to make a finding that MWKV has been involved in the “actual care” of the Child between 2 August 2018 to 2 November 2019. There was no further evidence demonstrating that MWKV had been involved in the Child’s schooling or his medical or dental treatment or extracurricular activities.

3. MWKV, by his own evidence, confirmed that he was not involved with the care of the Child while he was living at GM’s house. At the hearing, MWKV told the Tribunal that he had not made any payments to GM. MWKV told the Tribunal that GM and GFSG had kept the Child’s welfare interests away from MWKV despite MWKV telling them that he was willing to take the Child “anywhere, at any time”. MWKV said that neither GM nor GFSG had not contacted him to do so. MWKV cited an example that he had not been informed that the Child was having surgery. It is irrelevant why MWKV might not have been actively involved in the care of the Child while he was living at GM’s house. Of importance to the Tribunal’s decision, was MWKV’s own evidence which confirmed that he was not actively involved in the Child’s care during this time.

4. The Tribunal is satisfied that as at 29 October 2018, the care of the Child that was “actually taking place” as from 2 August 2018 did not correspond to the Original CP Determination. The Tribunal considers that it was appropriate that on 29 October 2018, the Original CP Determination was revoked and that new care percentage determinations were made in respect of the Child. The Tribunal also considers that it was correct for the CSR to have made the new care percentage determinations that GFSG had 100% care of the Child and MWKV had 0% care of the Child as from 2 August 2018.

5. The effect of the AAT1 Decision was to reinstate the Second CP Determination as from 2 August 2018 until 22 September 2018 being the date that the AAT1 found that GFSG ceased living in GM’s home and ceased actual care of the Child. The Tribunal agrees with this decision in principle but for the date that the AAT1 decided that both GFSG and MWKV both had 0% care of the Child. This Tribunal finds that the date that  both GFSG and MWKV ceased having actual care of the Child was on 3 November 2019 when the Child moved out of GM’s house, instead of 22 September 2018 (when the AAT1 found that GFSCG moved out of GM’s house). The Tribunal makes this finding based on the wealth of financial and other evidence presented to this Tribunal after the hearing showing the continuing financial and other support provided by GFSG to the Child between 22 September 2018 and 2 November 2019. This further evidence was not before the AAT1 when it made the Decision Under Review.

6. The Tribunal considers that this further evidence produced by GFSG after the hearing, has supplemented her earlier evidence produced to the Tribunal, demonstrating many instances of individual acts of care by GFSG toward the Child. This evidence supports this Tribunal’s findings that after GFSG left GM’s home on 11 September 2018 up until 2 November 2019 (and for some short periods of absence between 2 August 2018 and 11 September 2018), GFSG still had 100% care of the Child and MWKV had 0% care of the Child. The Tribunal accepts GM’s evidence that GFSG’s care for the Child ended, when the Child left GM’s home on 2 November 2019.

7. This Tribunal finds that when the Child left GM’s home and commenced living with the Aunt on 3 November 2019, that GFSG and MWKV both had 0% care of the Child.

   CONCLUSION

8. Accordingly, this Tribunal varies the Decision under Review, being the AAT1 Decision (reproduced below), by amending the date referred to in the new care percentage determinations as follows (variations underlined):

   This Tribunal set asides the Objection Decision and in substitution, decides:

   (a)  to revoke the existing percentage of care determinations from 1 August 2018 and make new determinations to reflect that from 2 August 2018, GFSG had a percentage of care of the child of 100% and MWKV had a percentage of care of the child of 0%; and

   (b)  to revoke those determinations from 2 November 2019 and make new percentage of care determinations to reflect that from 3 November 2019, GFSG had a percentage of care of the child of 0% and MWKV had a percentage of care of the child of 0%.

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

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

Associate

Dated: 9 August 2021

Date of hearing:

29 March 2021

Date last submission lodged:

Advocate for the Applicant:

Advocate for the Other Party:

8 June 2021

Self-represented

Self-represented

Advocate for the Respondent:

Ms Maleah Underhill

Solicitors for the Respondent: 

Mills Oakley Lawyers