HGNT and Child Support Registrar (Child support second review) - [2020] AATA 5181

HGNT and Child Support Registrar (Child support second review) [2020] AATA 5181 (22 December 2020)
Division:GENERAL DIVISION
File Number: 2020/1993
Re:HGNT
APPLICANT

AndChild Support Registrar
RESPONDENT

AndWLGP
OTHER PARTY

DECISION
Tribunal:Senior Member P J Clauson AM
Date:22 December 2020
Place:Brisbane

The Reviewable Decision is affirmed.
.................................[SGD].......................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Family Assistance – Percentage of Care – Consideration of correct percentage of care – whether decision should be varied – decision affirmed.
Legislation
Child Support (Assessment) Act1989 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473
P v Child Support Registrar [2014] FCAFC 98
Polec and Staker [2011] FMCA 959
Re Drake v. The Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Wade v Secretary, Department of Family and Community Services [2004] FCA 1660
Secondary Materials
The Child Support Guide
REASONS FOR DECISION
Senior Member P J Clauson AM
22 December 2020

The Applicant and the Other Party are the separated parents of Child H, born 28 April 2010; Child A, born 19 November 2004 and Child C born 3 November 2016. This matter relates only to Child H.[1]
[1] Exhibit 1, T24, page 165.
The Applicant notified Services Australia (“the Agency”) on 13 August 2019 of a change in care arrangements for Child H[2] insofar as she was now staying with him for one night per week pursuant to a Parenting Plan signed by the parties on 15 July 2019.[3] Up until this notice, the Applicant’s percentage of care was recorded as zero.
[2] Exhibit 1, T26, pages 181 to 183.
[3] Exhibit 1, T4, pages 16 to 18.
On 27 September 2019, a decision was made that there was no change in care and the care continued at zero percentage to the Applicant.[4]
[4] Exhibit 1, T26, pages 190 to 192.
The Applicant objected to this decision on 10 October 2019[5] and on 12 December 2019, that objection regarding Child H was disallowed.[6] The Applicant then sought a review in the Social Services and Child Support Division of the Tribunal (“AAT1”) of the decision of 12 December 2019 on 20 December 2019[7] and this review affirmed the decision.
[5] Exhibit 1, T26 at page 197.
[6] Exhibit 1, T23, pages 126 to 164.
[7] Exhibit 1, T24 at page 165.
The Applicant then sought review of the AAT1 decision on 31 March 2020.[8]
[8] Exhibit 1, T1 at pages 1 to 5.
THE ISSUES FOR DETERMINATION
The issue for determination in this matter is whether there was a change in care in relation to Child H from 27 July 2019, as notified by the Applicant on 13 August 2019 and, if so, what percentage of care allocation should be reflected in the Child Support Register from the date the care changed. Also, can, in the circumstances, an Interim Care Determination be made.
THE LEGISLATIVE FRAMEWORK RELATING TO THE PROCESS OF DETERMINING PERCENTAGE OF CARE
The legislation relevant to the consideration in this matter is:
(a)The Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”); and
(b)The related policy as contained in:
(i)The Child Support Guide (“the Guide”), Chapter 2.2;
The Registrar (“the Respondent”), in determining percentage of care, applies the provisions of the Assessment Act in a coordinated assistance process with the policy outlined in the Guide.
Although the Tribunal is not bound by policy, it must take policy into account and follow it unless there are cogent reasons for not so doing.[9]
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR at 409; Re Drake v. The Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639 to 645.
This view of policy was considered appropriate in contested matters relating to a situation of shared care:
The Respondent had submitted that it is appropriate to have regard to Centrelink’s policy guideline. From the inception of this Tribunal there has been judicial guidance concerning the need for the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (“the Guide”). In my view, it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision making.[10]
[10] Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473, [11].
The Assessment Act in Division 4 of Part 5 provides the rules for determining a party’s percentage of care which, in turn, determines the amount of child support payments payable by one parent to the other.
The Child Support Registrar (“CSR”) is the determining party under the Assessment Act who determines if a person has or does not have a pattern of care in relation to a child. It is up to the CSR to determine the responsible person’s percentage of care for the child during the period of care.[11] Should no pattern of care exist, the person’s percentage of care is zero.[12]
[11] see section 49(2) and s50(2) of the Assessment Act.
[12] see section 49(3) of the Assessment Act.
Should a pattern of care exist in relation to the child, then section 50(3) of the Assessment Act states that the:
Percentage determined … must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.[13]
[13] Section 50(3) of the Assessment Act.
The Assessment Act, sub-section 54A(1) provides that the actual care of a child that a person has had, or is likely to have, during a care period may be worked out 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.
It is further noted that the Courts have held the concept of "care” to be broader than simply the accommodation provided on any particular night, and that percentage of care does not necessarily need to be determined by reference to a time based calculation.[14]
[14] Polec and Staker [2011] FMCA 959 at paragraph [56]; P v Child Support Registrar [2014] FCAFC 98 at paragraph [47].
The Assessment Act sets out the circumstances as to whether an existing Care Determination is required to, or may be revoked in sections 54F, 54G and 54H.
The effect of each of these sections is:
·Section 54F requires that the CSR must revoke an existing Care Determination if there is a change in the percentage of care that would result in a change to a person’s cost percentage in relation to a child;
·Section 54G requires that if a parent was to have at least 14% care (53 nights per year), the CSR must revoke the existing Care Determination if the parent’s percentage of care falls below 14% despite the other parent’s making the child available to them; and
·Section 54H provides a discretion to the CSR to revoke the existing Care Determination if there is a change in the percentage of care that does not result in a change to the cost percentage.
Relevantly, section 54F states:
(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, other percentage to be the person’s percentage of care for the child; and
(c)Section 54G does not apply; and
(d)Sub-section (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).
In this matter, a Parenting Plan was agreed by the parties on 15 July 2019, which provided inter alia for the child, Child H, to stay overnight at the Applicant’s residence on a Saturday night and the Applicant would also have the care of Child H from 4pm to 7.45am on a Tuesday.[15]
[15] Exhibit 1, T4 at page 16.
The Applicant’s evidence was that Child H had stayed the first night as per the Parenting Plan and since that time has only stayed one other night on 29 June 2020.[16] The evidence before the Tribunal is that Child H does visit the Applicant in general accord with the Parenting Plan’s arrangements for non-overnight access visits, but the conduct of these occasions would appear to vary. The mother suggests that the father lets Child H decide when to return home and the father asserts that the mother tends to suggest that the father, when he texts her to advise that Child H may wish to go home early, asks whether those are Child H’s wishes or his for his own convenience.
[16] Transcript of Proceedings, page 6 at line 24.
It is clear from the evidence before the Tribunal that the terms of the Parenting Plan were not being adhered to during the relevant period under consideration. This is confirmed by the fact that between the date the care was said to have changed on 27 July 2019 and the date of notification of the change in care on 13 August 2019, the child, Child H, had stayed with the Applicant for only one night during that period when Child H should have stayed with the father for three nights.
THE EXISTING CARE DETERMINATION
The current Determination in place is that the Applicant and the Other Party had zero percentage and 100 percentage shared care of Child H respectively. The Applicant contends that the care should be reflective of the Parenting Plan and if the nights of care under the Plan are applied, the Applicant’s percentage of care would be 14%. The Applicant’s contention is for the Determination to reflect the care regime outlined by the Parenting Plan. The Other Party contends in response that the current Determination of 100% to her and 0% to the Applicant is appropriate based on the number of overnight stays that Child H has had with the Applicant during the relevant period.
ESTABLISHING THE PERCENTAGE OF CARE
The percentage of care for Child H, must be established in accord with the provisions of sections 49 and 50 of the Assessment Act, as outlined previously herein. The Tribunal, to establish a percentage of care, must be satisfied that the Applicant had either no pattern of care (section 49) or a pattern of care (section 50) that in the circumstances it considers appropriate.
A “pattern of care” is a concept not defined legislative in the Assessment Act. It is necessary for the Tribunal to seek guidance in this regard from the Guide as it assists in the interpretation of and how the Act is applied. It is not a compulsory edict for the Tribunal to follow the Guide, but it is generally a sound principle to do so as to ensure a just and reasonable outcome in each matter.
The Guide suggests that the initial step to determine the percentage of care to be attributed to a party is outlined in section 2.1.1.50.
Section 2.1.1.50 provides:
The pattern of care to be used in the shared care determination is either the pattern agreed to by all carers of the child or, if there is no such agreement, the pattern of care as established by the decision maker for the care period. A care period begins on the day on which the care of a child starts to be shared between two or more adults, or the day on which the pattern of care changes and ends when there is a subsequent change in care.
Therefore, the percentage must be considered as a concept which allows for a pattern of care to be both stable and dynamic should the circumstances change.
The Guide starting from a position of reason suggests that the pattern of care to be used in the shared care assessment is the actual care arrangements for the child.
As much as possible, the pattern of care should be the pattern as agreed to by all parties who care for the child. Otherwise, Centrelink must carry out further investigation to determine the actual pattern of care.[17]
[17] The Guide, Chapter 2.1.1.45.
If the parties who are in care of the child are at some point unable to agree on a pattern of care for that child, the Guide also provides that:
Centrelink must determine the actual pattern of care on the basis of available evidence. This applies even if a formal care arrangement exists. If the carers do not agree on the care percentage, each carer should be asked to provide additional evidence to support their declared arrangements in order for Centrelink to make a decision as to the actual pattern of care.
The above approach was approved by the Federal Court in the matter of Wade v Secretary, Department of Family and Community Services [2004] FCA 1660 and the decision of Kiefel J. (as she then was) where Her Honour stated that each person’s percentage of care allocated to them “should reflect the actual care provided by them”.[18]
[18] Ibid at paragraphs 29 to 31.
Additionally, Her Honour also held that the pattern of care should “as much as possible” be the pattern agreed as the pattern of care is also used as the basis for the calculating percentage of care in paragraph 2.1.1.50 of the Guide. However, she also observed that:
Although they are expressed as the respective parties ‘days of care’ under para 2.1.1.45, which are to be divided by the number of days in the period in question, the Guidelines permit more than one method of assessing those days. Relevantly, one is to calculate the number of hours of care and aggregate them.
The Applicant in this matter has contended that as the care was not in accordance with the care agreed to be provided in the Parenting Plan that an interim Care Decision should be made.
Before an Interim Care Determination can be made pursuant to section 51 of the Assessment Act, the Tribunal must first decide that the existing care determination of 0% should be revoked, thus requiring it to make a new Care Determination pursuant to section 49 or section 50 of the Assessment Act.
In this matter, as contended by the CSR, should the Tribunal decide that a change of care had occurred and that the Applicant’s percentage of care aligned with the Parenting Plan at 14%, there would be no necessity for the Tribunal to make an Interim Care Decision, the actual care determined by the Tribunal and that under the Parenting Plan being the same.
EVIDENCE OF THE PARTIES RELATING TO THE ACTUAL CARE OF THE CHILD
The Tribunal had both written evidence before it as well as the oral evidence of the parties.
At the hearing, both parties were affirmed and provided oral evidence by telephone.
The Applicant, at the hearing, stated that he relied upon his submissions filed with the Tribunal on 3 July 2020 as part of Exhibit 3. This material consisted of four pages of a timeline outlining the list of contacts and other steps taken to attempt a normalisation of the Parenting Plan entered into in July 2019.
The Applicant submitted that the decision of the AAT1 was in error on the basis that it had not considered that the Applicant’s attempts to restore the agreed Parenting Plan arrangements in accordance with the Assessment Act section 51(1)(d) were reasonable actions in the circumstances. The Applicant contended further that the decision maker should have made an Interim Care Determination under the section 51(1) provisions notwithstanding that the actual care that the Applicant consisted of one night only following the establishment of the Parenting Plan and had become reduced to zero subsequently.
In the circumstances, the CSR considered that the pattern of care had changed and determined that the percentage of care for the Applicant had reduced to between 0% and 14%.
The Tribunal has noted the extensive number of text messages which the Applicant sent to the Other Party asking for Child H to be made available to him pursuant to the Parenting Plan and querying why she was not being made available. The Tribunal has also considered the Other Party’s replies in this regard where she states that she has encouraged Child H to go and stay with her father on the agreed occasions, but that Child H refused to go and the Other Party was reluctant to force the child to participate against her will.
The Other Party told the Tribunal that Child H was reluctant to stay and was:
At this stage to only go to day visits and I encourage her and she is very happy with that and comfortable with just the day visits on a Saturday at this stage.[19]
[19] See Transcript of Proceedings, page 4.
The Other Party, in response to the Tribunal’s question as to how she handled Child H’s reluctance to go to her father’s residence and stay over if she didn’t wish to go, replied:
I encourage her and tell her that she should be going - and - but she’s very reluctant.
The Other Party stated further:
That she should have a relationship with her father as well.
Further, she told the Tribunal that:
She goes on a Tuesday night for dinner and then she - and then she goes on the Saturday at this stage.[20]
[20] See Transcript of Proceedings, pages 4 and 5.
The parties exhibited a degree of dissension about how the visits by Child H to her father operated. The Other Party indicated that the Applicant allowed the child to return to her mother’s at times of the child’s own choosing when the Other Party said that she thought that Child H would be going for the day. She used an example of the weekend prior to the hearing where Child H was with her father for a period alleged to be three hours.
The Applicant’s response to this contention was that Child H had not been to his place on a Tuesday evening for about three weeks. He confirmed that if Child H wanted to go home at a certain time, the Other Party questioned if when he contacted her about this asked him whether those were the child’s wishes or his.
The Other Party told the Tribunal that her views were that notwithstanding the Parenting Plan, she was reluctant to force Child H to stay over against her will and that a report had been written for recommendations to the impending Court proceedings which indicated that Child H stay one night per week with the Applicant, but subject to the accommodation being satisfactory.
The Applicant told the Tribunal he disputed some of the material in the report and contended that sections of the report indicated that Child H, should be spending more time with him. The Other Party also raised the issue that Child H’s sleeping arrangements were unsatisfactory. The Applicant also asserted that the report suggested that Child H may be under pressure to side with the Other Party and that she should be encouraged to be spending more time with him.
The Tribunal considers that these allegations and counterclaims are matters that should be more properly ventilated in the Court proceedings which have now been commenced by the Applicant.
CONSIDERATION
It is noted from the proceedings at the AAT1 that the Applicant had been apprised of the Other Party’s attitude to the parenting matters by her lawyers at that time insofar as that:
In the interim and whilst the children are vulnerable and going through a significant change in their lives, our client suggests you and she take an approach to parenting that is sensitive to the children’s views and emotions. Our client does not agree that any of the children should be forced into situations they do not feel comfortable with and that necessary safeguards should be put in place to ensure their emotional well-being is being adequately cared for.[21]
[21] Exhibit 1, T22, page 147. Extract from correspondence from KLM Solicitors to the applicant dated 26 August 2019, transcribed and supplied by the applicant.

Although this extract of correspondence from the Other Party’s then lawyers was received by the Applicant, it appears that the Applicant continued to engage in lengthy dialogue with the Other Party notwithstanding the tenor of the Other Party’s lawyer’s letter to him on this issue. He also continued such dialogue well past the date of the Other Party’s lawyers having their instructions withdrawn in relation to parenting matters in early December 2019.
Given that a Family Report was commissioned on or around 24 October 2019,[22] the contents of which were alluded to by the parties at the hearing, and the Applicant had received a letter of 26 August 2019 from the Other Party’s solicitors, it is the view of the Tribunal that, in these circumstances, it would have been reasonable for the Applicant to begin proceedings in a Court of appropriate jurisdiction to enforce his parenting rights. The Applicant ultimately sought legal advice on 28 January 2020 and then filed an Initiating Application in the Federal Circuit Court for the purpose of having his rights under the parenting arrangements enforced on 18 March 2020.[23]
[22] Exhibit 1, T2, page 10.
[23] Exhibit 2, Registrar’s Statement of Facts, Issues and Contentions, paragraph 41.
The Assessment Act requires that for an Interim Care Determination to be made, attempts by the person who has reduced care of the child, has taken reasonable action to ensure that the care arrangement is complied with.[24]
[24] Sub-section 51(1) of the Assessment Act.
The question thus, for this Tribunal, is whether, in the circumstances, the attempts made by the Applicant to ensure compliance of the care arrangement were reasonable. The evidence does indeed, indicate a lengthy and continuous record of correspondence between the Applicant and both the Other Party’s legal representatives (until the withdrawal of their instructions) and with the Other Party, both contemporaneously and discretely, up until 2 December 2019. Up to and beyond this time, he had not taken any steps to consult legal representatives with a view to enforcing his rights under the parenting arrangements. In fact, it was not until the end of January 2020 that he did so. An Application was filed with the Federal Circuit Court on 18 March 2020. It is the considered view of the Tribunal that the evidence indicates that the Applicant had not taken “reasonable action” as outlined in the Guide at Chapter 2.2.4.
Although “reasonable action” is not defined in the Assessment Act, the Guide, however, outlines some examples of reasonable action at Chapter 2.2.4.
Although not exhaustive, the list does highlight in paragraphs (c) and (d) two actions which are of relevance in this matter. These are:
(c) Seeking or obtaining legal advice regarding the making of a Court Order;
(d) Filing an Application to a Court to have an Order made or enforced.
In this matter, the Tribunal accepts that the Applicant undertook a persistent and numerically prodigious exchange of text communications with the Other Party as to why Child H was not being enabled to be made available to him pursuant to the terms of the Parenting Plan. The Other Party’s replies were equally persistent and consistent in the sense that they informed him that the Other Party was encouraging Child H to overnight with the Applicant, that Child H was refusing to do so and that the Other Party was reluctant to force her to do so. These exchanges do clearly indicate the exasperation with the situation as felt by the Applicant.
Further, the Applicant was aware of this view because it was reinforced by the Other Party’s legal representatives, KLM Solicitors,[25] as revealed in the extract of part of their correspondence of 26 August 2019.[26] KLM Solicitors advised the Applicant on 2 December 2019 that they no longer held instructions from their client regarding parenting matters and urging the Applicant to:
Liaise directly with our client with respect to same.[27]
[25] Exhibit 1, T22, at page 147, Ibid.
[26] Ibid.
[27] Exhibit 1, T22 at (xiv), page 156 of the T documents.
The Applicant, following receipt of this advice, then corresponded on 10 December 2019 in the following terms:[28]
Parenting
I note that you are no longer acting for [WLGP] in respect to parenting matters. However, could you please clarify if you are still prepared to accept service of documents in respect to the parenting matters and if so what is the scope of your involvement in the parenting matters?[29]
[28] Exhibit 3.
[29] Exhibit 1, T22 at (xv).
The Tribunal notes that there is no evidence of any action taken by the Applicant past this point to make attempts to agitate for his rights under the Parenting Agreement until he engaged legal advisors in late January 2020. This action then culminated in the Applicant’s issuing legal proceedings on 18 March 2020,[30] some considerable time after that period during which he had been communicating both with his wife and her lawyers regarding the activation of the Parenting Plan. This period, as noted by the AAT1, was more than 16 weeks.
[30] Exhibit 2, Registrar’s Statement of Facts, Issues and Contentions at paragraph 41.
The Tribunal acknowledges that the Applicant’s circumstances are certainly unfortunate and understandably frustrating. A lay person may interpret the actions the Applicant has taken to enforce his rights as “reasonable” in the circumstances. However, the law stipulates what constitutes reasonableness for the purposes of the Act and in this situation, the Applicant’s conduct does not satisfy that definition.
The Tribunal finds that such delay by the Applicant in taking legitimate action to enforce his entitlements pursuant to the Parenting Plan does not constitute reasonable action as considered by the provisions of section 51(1)(d) of the Assessment Act. It is thus inappropriate, after considering all the circumstances pertaining to this Application, for the Tribunal to make an Interim Care Order.
The Tribunal has decided that, consistently with the decision that there was no change of care occurring as at 13 August 2019 when the Applicant made a notification of change in care for Child H, the decision under review is affirmed.
DECISION
The decision under review is affirmed.

I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

..................................[SGD]......................................
Associate
Dated: 22 December 2020

Date(s) of hearing: 28 August 2020

Date final submissions received: 10 August 2020

Applicant: By phone

Solicitors for the Respondent: Ms D Smith, Services Australia

Other Party: By phone
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.

Date(s) of hearing:	28 August 2020
Date final submissions received:	10 August 2020
Applicant:	By phone
Solicitors for the Respondent:	Ms D Smith, Services Australia
Other Party:	By phone