GJNP and Child Support Registrar (Child support second review)

[2022] AATA 551

GJNP and Child Support Registrar (Child support second review) [2022] AATA 551 (28 March 2022)

Division:GENERAL DIVISION

File Number:2021/2411          

Re:GJNP  

APPLICANT

AndChild Support Registrar

RESPONDENT

AndYJQG

OTHER PARTY

DECISION

Tribunal:Member P Ranson

Date:28 March 2022

Place:Brisbane

The Tribunal sets aside the decision of the Social Services and Child Support Division made on 18 February 2021 and, in substitution, finds the care of the Children during the period 29 January 2018 to 28 January 2020 was 65% to the Father and 35% to the Mother, with effect from 29 January 2018 for the Mother and from 2 October 2018 for the Father.

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

Member P Ranson

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.

CATCHWORDS

Social security — Child support — Assessment — Percentage of care — Working out actual care of a child — Children reside predominately at boarding school — Decision under review set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth)

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

CASES

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

P v Child Support Registrar and Anor (2013) 138 ALD 563

Polec & Staker & Anor (2011) 253 FLR 339

SECONDARY MATERIALS

Child Support Guide, Department of Social Services

REASONS FOR DECISION

Member P Ranson

28 March 2022

BACKGROUND

1. The Mother and the Father are the parents of a son, born in 2002, and a daughter, born in 2005 (the Children). They separated in 2016 and, at the request of the Mother, a child support case commenced on 2 October 2018 which assigned 90% of the care of the children to the Mother and 10% to Father. The Father applied for a divorce in 2021 and noted on the application the primary caregivers were himself and the Mother. By then, only the daughter was under 18.

2. In 2019, the Father contacted the Child Support Registrar claiming he was unaware a child support case had been registered. In doing so, the Father also notified he had care of the Children for 323 nights and the Mother had care for 42 nights of the year from 1 January 2018. This, he asserted, had arisen because the Children were attending boarding school and he was responsible for their financial and emotional support, whereas the Mother had care of children for just half of the school holidays. The Father has a highly paid position in Papua New Guinea (PNG), and he transferred the Children out of the school they were attending and enrolled them to boarding schools in another locality. The Mother says this was done without her agreement. The Father cited the safety of the Children, given the then health situation of the Mother.

3. Despite that notification, on 9 January 2020, the Child Support Registrar made a new care determination finding there was no change in care from 1 January 2018, which would remain as 90% to the Mother and 10% to the Father.

4. On 30 June 2020, the Father objected to that decision. The objection was allowed in part and a new determination was made setting the care at 83% to the Mother and 17% to the Father. The Father was dissatisfied with this decision and applied to the Social Services & Child Support Division (SSCSD) of this Tribunal for a first-tier review. The outcome of that review was to vary the percentage of care awarding 73% to the Father and 27% to the Mother. This time, the Mother was dissatisfied with the decision and applied to the General Division of this Tribunal for a second-tier review.

5. There is no doubt the Father has the resources from his income to fund the cost of boarding and tuition fees and to cover the ancillary needs of the Children such as extracurricular activities and clothing. He was also actively involved in providing emotional support to the Children. It is also true the Children would visit their Mother regularly on weekends, as well as during school holidays, and she covered their private expenses whilst they were with her. She also provided ongoing emotional support to them. These and other factors, including the actual time the Children spent with each parent, decides this case.

   PROCEDURAL HISTORY

6. The parties in this case are:

Applicant	GJNP (the Mother)
Respondent	Child Support Registrar (the Registrar)
Other Party	YJQC (the Father)

1. The Mother applied to the Registrar on 2 October 2018 and requested a care determination. On 28 February 2019, the Registrar accepted the application for a child support assessment and decided the care percentages were 90% to the Mother and 10% to the Father from 31 January 2016, with effect from 2 October 2018 to 1 January 2020 (the Original Care Determination).[1]

   [1] Exhibit 1, T Documents, T18, page 195.

2. On 30 October 2019, the Father contacted the Registrar stating he was unaware the care determination had been made and advising the actual care had changed on 1 January 2018 because the Children had been transferred to boarding school, albeit they didn’t commence at the boarding school until 29 January 2018. The Registrar originally recorded the contact by the Father on 30 October 2019 as advice of a change of care and, on 9 January 2020, an authorised officer made a new care determination, with effect from 1 January 2018, without changing the care percentages from 90% to the Mother and 10% to the Father.

3. Six months later, on 30 June 2020, the Father objected to that decision and, on 9 October 2020, a new care determination was made setting the care at 17% to the Father and 83% to the Mother from 29 January 2018 (the Objection Decision). In doing so, the Registrar initially determined the contact by the Father on 30 October 2019 was a request for a change of care and later determined it was an objection rather than a notice of change of care, so this decision was effective for the Father from 2 October 2018 (being the date of the case was registered). It is uncontroversial the contact on 30 October 2019 was not a care notification, rather an objection to the Original Care Determination.[2]

   [2] Exhibit 2, Respondent’s SFIC, paragraphs 12 to 14.

4. Dissatisfied with the Objection Decision, the Father applied to the SSCSD, which found the percentages of care were 73% to the Father and 27% to the Mother (AAT1). The AAT1 found there were special circumstances that prevented the Father from objecting within 28 days, so its decision was effective for the Father from 2 October 2018. The Mother was dissatisfied with the AAT1 decision and applied to the General Division of this Tribunal for a second-tier review.

5. Accordingly, the decision which is now under review was made on 18 February 2021 by the SSCSD of this Tribunal, which varied a decision of the Registrar such that the percentages of care, from 2 October 2018, became 73% to the Father and 27% to the Mother.

6. The Hearing for this current application was held on 9 February 2022 (the Hearing). The Applicant and the Other Party attended the Hearing together with the sister of the Applicant who appeared as a witness. All parties gave affirmed evidence. Ms Palita Averre (Ms Averre) attended the Hearing representing the Father, and Ms Maleah Underhill (Ms Underhill) attended the Hearing representing the Registrar. Ms Donna Smith (Ms Smith) has ongoing carriage of the matter for the Registrar.

7. All parties attended the Hearing by video or audio link facilitated by the Tribunal utilising Microsoft Teams. The Hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference, having regard to the nature of this matter and the individual circumstances of the Applicant.

8. The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the Hearing was not to be conducted by video conference. The Tribunal is satisfied all parties were given a fair opportunity to give evidence and present arguments.

9. The Registrar identified various issues to be decided in this case as follows:

   (a)What percentage of care should be attributed to the Applicant and to the Other Party in respect of the Children and for the child support; and

   (b)What the date of effect should be for the care determination?

10. At the Hearing, the Mother claimed she provides more than 40% care of the Children, including emotional support, although she hasn’t specified what percentage that should be. The Father’s position is the decision of AAT1 should stand.

11. Prior to the Hearing, all parties were provided with an Exhibit List showing Exhibits 1 to 9. After the Hearing, both parties filed further submissions which were entered as Exhibits 10 and 11 respectively. The following documents were admitted into evidence:

Number	Description
Exhibit 1	T-Documents
Exhibit 2	Respondent’s Statement of Facts, Issues and Contentions dated 1 October 2021 (SFIC).
Exhibit 3	Applicant’s material filed by post on 9 September 2021.
Exhibit 4	Applicant’s submissions filed 10 September 2021.
Exhibit 5	Applicant’s email submission dated 11 January 2022 in reply to the Other Party.
Exhibit 6	Other Party’s material filed 10 September 2021.
Exhibit 7	Other Party’s submissions filed 5 January 2022.
Exhibit 8	Other Party’s further submissions filed 2 February 2022.
Exhibit 9	Further material filed by the Registrar on 1 February 2022.
Exhibit 10	Post hearing material filed by the Applicant on 2 March 2022.
Exhibit 11	Other Party’s calendars of care for 2018-2019 filed on 1 March 2022.
Exhibit 12	Care Percentage Decision from Child Support Assessor dated 28 February 2018.

1. The Tribunal has considered all the material supplied to it and the oral evidence provided at the Hearing by the Applicant, the Other Party and the witness. Not all the evidence is referred to at length in this decision. That does not mean it has not been considered in determining the outcome. It is sometimes impractical or unnecessary to canvass all aspects, arguments, and history of a case in the decision.

   THE LAW

2. The SFIC sets out in detail the law which is relevant to this case, with which the Tribunal concurs. As a copy of the SFIC and its attachments were provided to the Applicant and the Other Party prior to the Hearing, that law will not be reproduced in detail in this decision other than to confirm the relevant legislation is contained in the:

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

   (b)Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).

3. The SFIC also refers to the Child Support Guide (the Guide), Chapter 2.2. The Tribunal notes, where a general policy exists to guide the decision-maker in exercising its powers, the Tribunal “will ordinarily apply that policy in reviewing the decision, unless the policy is unlawful or unless its application tends to produce an unjust decision… cogent reasons will have to be shown against its application”.[3]

   [3] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, 635 (Brennan J).

4. To the extent the Tribunal has considered policy in this case, it has not applied it inflexibly and has only considered it to the extent the Guide is consistent with the requirements as set out in the legislation as it would be an error of law for the Tribunal to state it must (emphasis added) follow what policy says concerning the scope or meaning of a provision in the Act.

5. In this case, an application for child support assessment was made on 2 October 2018 by the Mother. This decision then relates to the proper determination of care percentages for the parents as at that date, pursuant to sections 49 or 50 of the Assessment Act.

6. In making its decision, the Tribunal must consider whether each parent has a ‘pattern of care’ for the child during a ‘care period’. The term ‘care period’ is not defined except in sections 49 and 50 of the Assessment Act, which states the care period is ‘such period as the Registrar considers to be appropriate’. The care period can commence before the date of the application for assessment, but the care determination will only have effect from 2 October 2018.

7. The Registrar’s policy suggests the care period will usually be a period of 12 months commencing on the date of the most recent change in care for the children. In a matter when care alternates over a two-year period, for example, court orders with alternating holidays, the Tribunal finds it reasonable to consider a 24-month care period. In this case, the pattern of care has changed, as between 2018 and 2019, from the time the Children started at boarding school on 29 January 2018 until lockdowns associated with the COVID-19 epidemic began in early 2020, and later that year when the son turned 18, when the pattern of care changed again. The Tribunal will have more to say about this later in this decision. The care period for this decision is 29 January 2018 until 28 January 2020, that is, from the start of the school year in 2018 to the start of the school year in 2020 (the Care Period).

8. The actual care of the children is most often based on the number of nights the children spent in the care of each parent. In this case, there were some nights in the care of each parent; however, a lot of the Children’s time has been spent at boarding school since 29 January 2018. When considering which parent has care of the Children while they are at boarding school, the principles in Part 2.2.1 of the Guide, which are consistent with those in Polec & Staker (Polec),[4] should be considered. Hughes FM said at [56]:

   ‘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 and the Child Support (Registration and Collection) Act, 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 extra curricular activities?

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

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

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

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

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

   [4] Polec & Staker & Anor (2011) 253 FLR 339.

9. However, in the Federal Court decision of P v Child Support Registrar and Anor (2013) 138 ALD 563, Wigney J held at [107] in respect of Polec:

   In my opinion, however, [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decision-makers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.

10. The Tribunal’s role is to assess the contributions of each parent to the care of the Children, including their financial needs and who was making the day-to-day decisions involving their care, and from that, determine the percentage of care each parent provided during the Care Period.

    THE FACTS AND EVIDENCE

    Care prior to 29 January 2018

11. From 31 January 2016 until 29 January 2018, the Children lived with the Mother in the former matrimonial home and attended a private school in the local area. The Father paid the loan on the home and all expenses associated with the property, plus the private school fees.

12. The Father’s evidence is, at some time in 2017, the Mother was driving the Children to school and an incident occurred, after which, he felt the Children were not safe in her care. He enrolled the Children in private boarding schools in another locality, the Mother says without her consent, and they commenced there on 29 January 2018.

    Care from 29 January 2018

13. From 29 January 2018, the Children mostly lived at the boarding schools during school terms and spent some, but not all, weekends and other times, plus half the school holidays with the Mother and with the Father. The calendars of care reveal the details.

    Calendars of care

14. The Mother provided a calendar of care showing the overnight care she provided during the calendar years 2018 to 2022 to date. As the Tribunal is considering the 24-month period from 29 January 2018, the calendars of care for 2020 to 2022 are not directly relevant, other than January 2020. The calendar for 2018 shows 39 nights of overnight care and for 2019 shows 86 nights of overnight care, that is, 124 nights of care those two years.

15. The Father provided calendars of care for 2018 and 2019 showing the overnight care he provided, and the Mother provided, during the Care Period, which shows 189 combined nights of care for the Mother and 285 nights of care for the Father. The Tribunal notes the Father’s calendars of care suggest the Mother had more overnight care than her calendars of care. Accordingly, the Tribunal accepts the Father’s calendars of care, as amended to include January 2020 from the Mother’s calendars of care, for this decision.

16. In reviewing the Father’s calendars of care, nights when the Children were staying with friends, even if arranged or agreed with the Father, have been disregarded. Only the nights the Children were with one of their parents has been included. The result is the Father has 61% of overnight care and the Mother has 39% overnight care. If this decision relied on overnight care, that may be decisive; however, for this decision these percentages are just another factor in deciding the percentage of care provided by each parent.

    Polec & Staker

17. As discussed above at [24], Polec is considered the authority in care determinations which cannot be decided solely based on overnight care. Whilst the facts in Polec differ markedly to the facts in this case, the principles are similar and are discussed below. It should also be borne in mind, in this case, the Children officially lived at boarding school during school terms and returned home to live with the Mother or the Father on some weekends and during school holidays. In Polec, the child moved away for employment and did not return to live with either parent.

18. In Polec, there are six criteria to be considered in deciding how much care each parent provides. For this decision, the fifth and sixth criteria are not relevant because there is no evidence or suggestion the Children were in any material way self-sufficient. The first criterion is the most relevant and is expanded by the second, third and fourth criteria. Given the ages of the Children at the time, childcare is also not relevant.

19. Applying Polec to this decision means ascertaining who covered the cost of accommodation, clothing, food, education, health care, and provided emotional support, supervision, transport, and extracurricular activities, or otherwise arranged for that to occur. The decision in Polec included some discussion about the weight or priority of each identified criteria as they applied in that case.

1. The Tribunal has applied its own weighting of each criterion as they apply in this case, remembering the criteria identified in Polec, as discussed in Re: P (discussed above at [25], are neither prescriptive nor exhaustive.

2. Whilst the Tribunal sees accommodation, food and clothing as basic human needs without which the rest do not matter very much, they are a given in this case, because the Father was already paying for private school fees and providing the family home prior to the Children starting at boarding school. As such, the Tribunal finds accommodation, food and clothing carry equal weight with education, health care, emotional support, supervision, transport, and extracurricular activities.

   Accommodation, food, and clothing

3. From 29 January 2018, the cost of boarding fees, which cover the cost of food and accommodation whilst the Children are at school, usually during school terms only, were paid wholly by the Father. This is a significant cost to which the Mother makes no contribution.

4. That said, the boarding houses at the Children’s schools is where they reside during school terms. It is not necessarily their home as such. If the parents were together, the Children’s home would be where their parents reside. Given the Father resided in PNG at all relevant times, it is difficult to see the Children regarding his residence there as their home. The Mother resided in the former matrimonial home until it was sold under mortgagee in possession when the loan payments fell into arrears, after the end of the Care Period, after which, the Mother has lived in rental accommodation, being a three-bedroom townhouse in a nearby locality. The Children’s personal possessions would likely have been either with them at the boarding house or at the place where the Mother resided, being the former matrimonial home during the Care Period.

5. The Father has access to a property in the general locality of the Children’s boarding schools. The Mother asserts he owns the property, which the Father denies and there is no evidence before the Tribunal to suggest he does. The Father says the property is not his, rather it is owned by a friend who allows him to use it. Whether the Father owns or rents the property, or its owner permits him to use it, is not relevant to this decision. The question is whether the Children regarded it as their home.

6. The Father asserts he wanted the Children to use this residence. There is some evidence they did and were asked to collect mail from that address. By way of example as to how the Children may have regarded the property used by the Father, in July 2020, the son, who by then was 18, used this as his postal address on a gym membership application, yet nominated his Mother as his emergency contact.[5] The son also referred to the Mother’s residence as ‘Home – Sunshine Coast’ on requests for leave from the boarding school.[6]

   [5] Exhibit 3, Applicant’s material filed by post on 9 September 2021.

   [6] Exhibit 3, Applicant’s material filed by post on 9 September 2021.

7. Based on that, the Tribunal concludes the Children’s home, at least until they turn 18, is where their Mother lives, in which case, the weight given to the cost of boarding fees paid wholly by the Father partly diminishes.

8. Terms at private schools are generally 37 weeks per year so, in theory, 71% of the cost of the food and accommodation for the Children is covered by the Father, and not by the Mother. It seems AAT1 awarded 73% to the Father based on 38 weeks of school terms; however, the evidence of the Father with terms dates for the daughter’s boarding school for 2019 and 2020 shows 37 weeks.[7] That said, the Children were in the habit of visiting their parents at various times during school terms and for part of the school holidays. On those and other occasions, the cost of food and accommodation was covered by whichever parent they were visiting. To the extent that includes the Mother incurring those costs, the Father acknowledges and dismisses as nominal at best.[8] Time spent with the Father was at various addresses, including in PNG prior to 2020, at numerous sporting fixtures and with friends.

   [7] Exhibit 6, Other Party’s material filed 10 September 2021.

   [8] Exhibit 7, Other Party’s submissions filed 5 January 2022.

9. Books and uniforms, including sporting uniforms and associated equipment, for the Children were also paid for by the Father before and after the Children went to boarding school so, like the tuition fees, the cost of this, although born by the Father, does not add or detract from his contribution to the care of the Children. The Mother also covered some of these costs, albeit to a lesser extent.

10. That leaves non-school clothing and personal expenses. The Father provided funds to the Children on a regular basis by depositing funds into their bank accounts, which they were at liberty to use as they saw fit.

11. Ms Averre asserted the Mother was reimbursing herself from the Children’s bank accounts, on which she was an authorised signatory, for costs she was incurring on their behalf. The implication being the Mother was not incurring any costs as she had been reimbursed. The schedules provided by Ms Averre claimed to prove the point the Mother was reimbursing herself. However, the schedules also revealed the Mother was depositing funds into these bank accounts. For the period covered by Ms Averre’s schedules, the net difference was a small amount in favour of the Mother. Ms Averre was asked about the difference and was unable to explain the lack of materiality, rather claiming it showed a pattern of behaviour.[9] The Tribunal places no weight on the assertion the Mother had been fully reimbursed for the expenses she incurred for the Children.

    [9] Exhibits 7, Other Party’s submissions filed 5 January 2022; Exhibit 8, Other Party’s further submissions filed 2 February 2022.

12. The cost of the boarding fees, which is paid wholly by the Father, carries significant weight in determining who had care of the Children, for 71% of the year. As discussed above at [‎30] to [‎32], the Children spent some time with each of their parents during school terms so some reduction in the 71% of the time covered by the Father’s payment of boarding school fees is warranted; however, it is difficult to see that number falling to less than 65%, allowing for the time the Children spent at home and the cost of food and personal items paid for by the Mother. That reduction may be greater in the 2020 year when the Children were living with the Mother during a period of COVID-19 lockdown; however, that is beyond the scope of this decision.

    Education

13. It is uncontroversial the Father paid the school fees before and after the change in January 2018, so his continuing to pay the tuition fees doesn’t add or detract from his contribution to the care of the Children.

    Health care

14. The Father paid the cost of health insurance for the Children and, when necessary, paid for out-of-pocket medical costs incurred by them. The Mother asserts she also paid some medical expenses for the Children, especially the daughter.

15. On one occasion, the daughter was admitted to hospital with dehydration arising from overexertion at sport. The Father asserts he paid the excess for the cost of the hospital and the Mother provided evidence in the form of emails from the hospital requesting payment, suggesting the Father had not paid the account.

16. On another occasion, the daughter had a medical issue to deal with and did not want the Father to be involved given the private nature of the condition. She consulted with the Mother who arranged appropriate medical attention to the issue and covered the cost of that.

17. The Tribunal finds the parents contributed equally to the cost of health care for the Children.

    Emotional support

18. The Father says he was in regular contact with the Children by telephone and web-based chat services, although in part of his evidence, he said he spoke with the Children once each fortnight and more often if issues arose. Examples of these exchanges were included in the Father’s evidence. The Father was living and working in PNG then and now so clearly, he could not provide direct face-to-face contact with the Children other than when he visited Australia or they visited him in PNG, which they were free to do in 2018 and 2019 before the lockdowns occurred due to the COVID-19 pandemic.

19. By contrast, the Mother lives and works in Australia, albeit in a different locality to the boarding schools attended by the Children. As noted above, the Children returned to the Mother occasionally during school terms and for half of the school holidays, as confirmed by the Father’s calendars of care. The calendars also reveal the Children were with her for 175 days in the year ended 31 December 2020, attributed to COVID-19 lockdowns; however, that is beyond the scope of this decision so will not be considered further.

20. The Mother also claims she was in regular (possibly daily) contact with the Children by mobile phone and web-based chat services. Examples of these exchanges were included in the Mother’s evidence.

21. Emotional support is only one aspect of the overall care for the child. The Tribunal finds both parents contributed equally, in their own way, to the emotional support of the Children.

    Supervision, transport, and extra-curricular activities

22. The parents are at odds about who had the primary responsibility for the supervision of the Children when they were at boarding school. The Tribunal accepts when the Children were with one or the other parent, that parent had primary responsibility for the supervision of the Children. It should be borne in mind the son turned 16 and the daughter turned 13 during the 2018 calendar year, so they were teenagers and would have made some decisions for themselves and not necessarily in consultation with their parents.

23. The boarding schools attended by the Children adopted online systems by which boarders could request permission to leave the school grounds to attend activities such as sporting events, meet and perhaps with stay with friends and the like. These systems operate by the child entering the operative details of the event, an email is sent to the parents advising of the request and the parents then login and either approve or not as they see fit.

24. The Father asserts he was the primary contact for the Children, perhaps because the Mother refused to sign the enrolment forms, and he was the person the school would contact in the first instance for permission for the child to undertake an activity. The Mother asserts and the Father did not challenge she also was a primary contact, being the Mother of the Children, and the school would and did contact her for such permissions. The evidence suggests this is correct. It is also the case there were occasions when one of the parents was not available and the other gave the requested permission.

25. There are the occasions when the one, or both, of the Children were with one or the other of their parents. On those occasions, the Tribunal understands the parent with whom the Children were staying would grant or otherwise the requested permission.

26. The Tribunal asked at the Hearing what would happen if the request was for an extreme situation, such as that offered by the Father of the son wanting to go skydiving. The parents agreed they refused to have any contact with each other, and it seemed an extreme situation did not arise to test that.

27. It is clear to the Tribunal both parents were involved in different ways in supervising the Children to the extent necessary given they were teenagers at the time and that involvement was likely to be largely the same.

    Date of effect

28. The Original Care Determination was made on 28 February 2019 when the Registrar accepted the Mother’s application for a care determination. The Father did not become aware of that determination until 30 October 2019. The objections officer and AAT1 both found there were special circumstances which prevented the Father from lodging his objection within 28 days and this decision does not seek to disturb that finding.

    CONCLUSION

29. Decisions about the level of care parents have of their children are necessarily subjective when overnight care is not the deciding factor, as is the case here. Considering the evidence of the Mother and the Father and the discussion above, the Tribunal finds the percentage of care for the Care Period is 65% to the Father and 35% to the Mother because:

    (a)The Father applied for a divorce in 2021 and noted on the application the primary caregivers were himself and the Mother.

    (b)The payment of the boarding fees by the Father suggests 73% to him and 27% to the Mother, for a 38-week school year, as AAT1 found. As noted above, based on a 37-week school year, the correct percentages are 71% to the Father and 29% to the Mother. The Father also covered other costs for the Children, such as travel costs and medical expenses.

    (c)The Mother also incurred various costs for the Children including medical expenses, the provision of food packs and toiletries and she assisted with the cost of travel such at toll fees and Go Card top-ups.

    (d)Overall, the children spent 56% of their time across the 2-year Care Period in the care of one or the other parent, including during school terms. The split of that time suggests 61% to the Father and 39% to the Mother.

    (e)Both parents contributed similar levels of emotional support, supervision, transport, and extra-curricular activities for the Children, each in their own way.

30. The Tribunal notes new care percentage determinations will be required from the end of the Care Period until the son turned 18 in 2020 and from then until the daughter turns 18 in 2023. They are decisions for others.

    DECISION

31. The Tribunal sets aside the decision of the Social Services and Child Support Division made on 18 February 2021 and, in substitution, finds the care of the Children during the period 29 January 2018 to 28 January 2020 was 65% to the Father and 35% to the Mother, with effect from 29 January 2018 for the Mother and from 2 October 2018 for the Father.

I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

……………[SGD]……………………………..
Associate
Dated: 28 March 2022

Date of Hearing: 

9 February 2022, Post-Hearing material filed 10 March 2022

Applicant:

Other:

Representative for the Respondent:

By Video

By Video

Ms Maleah Underhill

Solicitor for the Respondent:

Ms Donna Smith