HLKP and Child Support Registrar (Child support second review)

[2021] AATA 700

HLKP and Child Support Registrar (Child support second review) [2021] AATA 700 (26 March 2021)

Division:GENERAL DIVISION

File Number(s):     2020/4645          

Re:HLKP

APPLICANT

AndChild Support Registrar

RESPONDENT

AndFMXQ

OTHER PARTY

DECISION

Tribunal:Member W Frost

Date:26 March 2021

Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the decision under review is set aside and the Tribunal makes a decision in substitution revoking the existing care determination and replacing it with a determination that the percentage of care for the Children for the 12 month period from 7 January 2019 to 6 January 2020 was 15% for the Father and was 85% for the Mother.

............................................................

Member W Frost

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

CHILD SUPPORT – percentage of care – whether there was a change to the pattern of care – whether existing determination regarding percentage of care should be revoked -from when existing determination should be revoked – what care actually occurred during relevant care period - decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 ss 37, 43,

Child Support (Assessment) Act 1989 ss 49, 50, 54A

Child Support (Registration and Collection) Act 1988 s 16

Cases

Frampton and La Ponder [2015] AATA 321

P v Child Support Registrar [2014] FCAFC 98

P v CSR 2013

Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562

Polec and Staker [2011] FMCAfam 959

Secondary Materials

Child Support Guide

REASONS FOR DECISION

Member W Frost

26 March 2021

INTRODUCTION

1. The Applicant, ‘HLKP’ (the Father), and the Other Party, ‘FMXQ’ (the Mother), are the separated parents of two daughters (the Children). In February 2016, the Child Support Agency (Agency) determined that the Mother had 94% care of the Children and the Father had 6% care of the Children. The determination of the percentage of care is one of the requisite steps in assessing the rate of child support payable by the Father to the Mother under the Child Support (Assessment) Act 1989 (Assessment Act).

2. This decision concerns the appropriate percentage of care for the Children following the Father reporting a change of care to the Agency in 2019. The Father lives in New South Wales and the Mother lives in Queensland. The Agency initially determined that the parents’ percentage of care had changed from September 2019, whereby the Father had 16% care of the Children and the Mother had 84% care. The Mother objected to that determination and the Agency partly allowed the objection, finding that a change of care occurred from an earlier time, in January 2019, and that the percentage of care was 15% for the Father and 85% for the Mother. These decisions reduced the amount of child support payable by the Father to the Mother.

3. The Mother applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for review of the Agency’s decision. The AAT1 set aside the decision and found that there had been no change in care from January 2019. That is, the AAT1 refused to revoke the existing care determination made in 2016 that the Father had 6% care of the Children and the Mother had 94% care. The Father applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).

   ISSUES

4. The issues for the Tribunal to determine in this proceeding are:

   (a)should the existing determination regarding percentage of care be revoked;

   (b)if so, from when should the existing determination be revoked; and

   (c)the percentage of care the Father and the Mother each had of the Children.

   BACKGROUND

5. The relevant percentage of care determination for the Children took effect from 9 February 2016, which found that the Mother had 94% care of the Children and that the Father had 6% care of the Children.[1] As a result of this determination, and the other relevant factors considered to determine the applicable rate of child support, the Father was required to make child support payments to the Mother.

   [1] Exhibit R1, T21, page 96.

6. In October 2018, the Father moved from Queensland to New South Wales for work.[2]

   [2] Exhibit A1.

7. In August 2019, the Mother agreed that the Children could travel overseas with the Father for a period of up to 3 weeks during the upcoming Christmas school holidays.[3]

   [3] Exhibit R1, T5, page 32.

8. On 22 October 2019, the Father notified the Agency that there had been a change in the percentage of care of the Children from September 2019 in circumstances where the Children were expected to stay with him for longer than usual during the Christmas holidays.[4]

   [4] Exhibit R1, T25, page 125.

9. In November 2019, the Registrar informed the Mother that the Father had advised there had been a change of circumstances. This Father reported having 62 nights of care (up from 25 nights of care) from 24 September 2019, meaning that the Mother had 303 nights care of the Children in a twelve month period.[5] The Mother disputed the Father’s claimed change of care and stated that there had been no such agreement or discussion of future care of the Children beyond the 2019 Christmas holidays. The Mother advised that the Father’s increased care during the Christmas break was due to him having no care of Children over the upcoming Easter 2020 holidays because she was taking them on a holiday.[6]

   [5] Exhibit R1, T6, page 33.

   [6] Exhibit R1, T15, page 82; T25, page 127.

10. In January 2020, the Mother confirmed the dates in that year she would be away on holiday with the Children. Both parents also corresponded regarding the Father’s potential care of the Children in the Easter holidays in April or, alternatively, the mid-year holidays.[7] 

    [7] Exhibit R1, T10, pages 50-52.

11. On 18 February 2020, the Agency determined that there had been a change in the percentage of care for the Children from 20 September 2019 (not 24 September 2019 as claimed),[8] such that the Father had 16% care and the Mother had 84% care of the Children. This resulted in changes to the rate of child support payments required to be made by the Father to the Mother.[9]

    [8] Exhibit R1, T25, page 133.

    [9] Exhibit R1, T11, pages 53-56.

12. On 21 February 2020, the Mother objected to the Agency’s decision to change the percentage of care to 16% for the Father and 84% for herself.[10] The Mother relevantly stated that the Father had not advised her of his plan to increase his level of care of the Children and his increased care over the Christmas holidays in 2019 was longer than usual because he would not be seeing the Children over the Easter holidays.

    [10] Exhibit R1, T15, page 82.

13. On 18 May 2020, the Agency partly allowed the Mother’s objection and found that the change of care occurred from 7 January 2019 (not from 20 September 2019) and was in the amounts of 15% for the Father and 85% for the Mother (not 16% and 84%, respectively).[11] The Agency calculated that the Father had care of the Children for 55 of 365 nights for the 12 month period from 7 January 2019 to 6 January 2020, which equated to 15% care by the Father and 85% care (or 310 of 365 nights) by the Mother. This change was effective from 7 January 2019 for the Mother and from 22 October 2019 for the Father. 

    [11] Exhibit R1, T21, pages 93-97.

14. On 25 May 2020, the Mother applied to the AAT1 for review of the aforementioned decision.[12]

    [12] Exhibit R1, T23, pages 116-121.

15. On 14 July 2020, the AAT1 set aside the Agency’s decision and substituted it with a decision to record no change in care between the parents. That is, the AAT1 refused to revoke the care determination made in February 2016, where it was found that the Father had 6% care and the Mother had 94% care of the Children.[13]

    [13] Exhibit R1, T2, pages 6-9.

16. On 3 August 2020, the Father applied to the General Division of the Tribunal for review of the AAT1 decision.[14]

    [14] Exhibit R1, T1, pages 1-5.

17. On 10 March 2021, the Tribunal held a hearing by telephone. The Father and the Mother represented themselves and a legal representative appeared on behalf of the Respondent, the Child Support Registrar (Registrar).

18. The Tribunal has considered all documents in the bundle of documents lodged on 6 October 2020, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[15] The submissions made by the parties have also been considered, including the following documents provided to the Tribunal:

    (a)The Father’s bundle of documents filed on 17 November 2020, comprising his Statement to the Tribunal, email correspondence between the Father and the Mother from 24 September 2019 and flight booking details for December 2019;[16]

    (b)The Mother’s Statement to the Tribunal filed on 17 December 2020;[17] and

    (c)The Mother’s annotated calendar for 2020.[18]

    [15] Exhibit R1.

    [16] Exhibit A1.

    [17] Exhibit OP1.

    [18] Exhibit OP2.

19. While the Registrar provided submissions in relation to the facts and legislation applicable in the proceeding, it adopted a neutral position regarding the evidence and contentions of the Father and the Mother and made no submissions or contentions on the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Registrar and its legal representative through the Registrar’s submissions and during the course of the proceeding.

    LEGISLATION & POLICY

20. Section 35 of the Assessment Act sets out the applicable formula to determine the rate of child support payable for the Children. Step 4 in the formula is to ‘Work out each parent’s percentage of care for the child’. The determination of the percentage of care for a child during a care period can be made under sections 49 or 50 of the Assessment Act, depending on whether there has been a ‘pattern of care’ for the child provided by a ‘responsible person’, being a parent or non-parent carer. Both the Father and the Mother in this proceeding agree that they each had some care of the Children during the relevant period, such that there has been a pattern of care for both the Father and the Mother and section 49 of the Assessment Act does not apply.

21. In determining percentage of care, under section 50 of the Assessment Act, the Registrar must be satisfied that the person ‘has had, or is likely to have’ a pattern of care for the child during the relevant care period that it ‘considers to be appropriate having regard to all the circumstances’.

22. Subsection 50(3) of the Assessment Act provides that any percentage of care determination must be a percentage that corresponds with the ‘actual care’ of the child that the Registrar is satisfied the responsible person ‘has had, or is likely to have, during the care period’.

23. Subsection 54A(1) of the Assessment Act 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 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’.

24. The Guide at paragraph 2.2.1 advises that, where there is doubt about the extent of care a person is providing for a child, the Registrar will consider the following:

    ·     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.

25. While the Assessment Act does not specify any fixed duration, the ‘care period’ is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child. In this regard, the Guide at paragraph 2.2.1 states that: ‘A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised’.

26. Subsection 54B(1A) of the Assessment Act relevantly provides that the percentage of care ‘applies to each day in a child support period on and from the application day until the determination is revoked’. Where a percentage of care determination is revoked under section 54F of the Assessment Act, subsection 54B(2)(c) relevantly provides that the ‘application day’ is the ‘day that begins immediately after the revocation of the determination’.

27. Section 54F of the Assessment Act relevantly provides that the existing percentage of care determination must be revoked if the Registrar is notified that the care of the child that is ‘actually taking place does not correspond with the responsible person’s existing percentage of care for the child’ and the person’s ‘cost percentage for the child would change’ if another care percentage were determined. Under subsection 54F(3) of the Assessment Act, the revocation of the determination takes effect at the end of the day before the change of care day if notification is provided within 28 days after the change of care or otherwise the day before notification.

28. For completeness, the Tribunal notes that, pursuant to subsections 96A(b) and (c) of the Child Support (Registration and Collection) Act 1988 (Registration Act), an application may be made to the General Division of the Tribunal for review of a decision by the AAT1 regarding care percentage. The Tribunal therefore has jurisdiction in relation to the Father’s application for review of the AAT1 decision to record no change to the percentage of care determination from 2016.

    CONSIDERATION

29. The task of the Tribunal in this proceeding is to determine the percentage of care provided for the Children by both the Father and the Mother. The relevant care percentage determination made in February 2016 was that the Father had 6% care of the Children and the Mother had 94% care of the Children. This determination has remained unchanged up until this present dispute between the Father and the Mother that arose from October 2019 when the Father informed the Registrar of a claimed change of care percentage for the Children. The Father and the Mother disagree as to whether care of the Children changed from 7 January 2019, and disagree about the amount of actual care they each had of the Children from that date.

30. For the following reasons, the Tribunal is satisfied that the existing care determination should be revoked, and a new care determination be made in accordance with section 50 of the Assessment Act.

31. In order to make a determination of percentage of care in accordance with section 50 of the Assessment Act, it is necessary for the Tribunal to decide whether there is a ‘pattern of care’. This term is undefined and can be interpreted according to its ‘ordinary meaning’.[19] For the avoidance of doubt, the Tribunal is satisfied that both the Father and the Mother had a pattern of care for the Children during the relevant period. This was not in dispute between the parties in circumstances where they agreed that each had some care of the Children, which was supported by the documentary evidence. Most relevantly, both the Father and the Mother acknowledged that the Father usually had some, albeit limited, care of the Children predominantly during their school holidays. However, since approximately March 2020, this care arrangement was impacted by the COVID-19 pandemic and the associated border closures between NSW and Queensland. For example, the Mother submitted that the Father had care of the Children for the following number of nights since 2016: 22 and 24 nights respectively for each of the two Children in 2016; 33 and 24 nights for each of the Children in 2017; 22 and 8 nights for each of the Children in 2018; 47 nights for the Children in 2019; and 17 nights in 2020.[20]

    [19] Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 at [33].

    [20] Exhibit OP1.

32. The number of nights the Children were in the care of the Father was not in dispute. The dispute between the parties concerned the date range for a particular care period and whether the Father’s increased care constituted or warranted a change in the parents’ care percentages determined in 2016. In this regard, the Mother asserted that the average number of nights care provided by the Father during the school holidays in a calendar year was the most accurate manner of determining care. The Mother also contended that the relevant period should be determined according to calendar year, whereas the Father submitted that his actual care between 7 January 2019 and 6 January 2020 should be the relevant timeframe to determine his level of care, because this was the period during which he had actual care of the Children at more than the previously determined level, noting also that this care extended further into January 2020.

33. To this end, the Father contended, and it was agreed by the Mother, that he had care of the Children for a total of 55 nights during the 12 month period from 7 January 2019 to 6 January 2020, as follows:[21]

    (a)12 nights between 7 January and 18 January 2019;[22]

    (b)9 nights between 6 April and 14 April 2019;[23]

    (c)12 nights between 2 July and 13 July 2019;[24]

    (d)12 nights between 20 September and 1 October 2019;[25] and

    (e)10 nights between 28 December 2019 and 6 January 2020 (noting that the Father continued to care for the Children until 18 January 2020).[26]

    [21] Exhibit A1.

    [22] Exhibit R1, T9, pages 37-38.

    [23] ibid., pages 39-40.

    [24] ibid., pages 41-42.

    [25] ibid 43-44.

    [26] ibid., pages 45-48.

34. As previously stated, a care period does not have any fixed duration and the Guide provides that it is ‘generally a 12 month period from the day on which the actual care of a child changed’. The care period does not necessarily have to be based on the calendar year or the average care provided by a parent during a particular period of time, such as school holidays. The Tribunal is satisfied that the actual level of care provided by the Father and the Mother changed in the 12 month period from 7 January 2019 and that the relevant care period is the 12 month period from 7 January 2019 until 6 January 2020. 

35. That care period is now in the past and the Tribunal is required to make a retrospective care determination. In accordance with the Assessment Act, the Tribunal considers that the correct approach is to make a determination of what care actually occurred during the relevant care period. The Tribunal in Frampton and La Ponder [2015] AATA 321 explained why it is preferable to make a determination of what care actually occurred during the relevant care period, as follows:[27]

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

    [27] Frampton and La Ponder [2015] AATA 321 at [54]-[58].

1. As set out above, section 54F of the Assessment Act provides that a determination must be revoked where the existing care percentages do not correspond with the actual care of the child that is taking place and accordingly there would be a change to the person’s cost percentage for the child.

2. While noting that the concept of ‘care’ is broader than the provision of accommodation on any given night, and that percentage of care does not necessarily need to be determined by reference to a time based calculation,[28] the Tribunal is satisfied that section 54A of the Assessment Act should be applied in this matter. As such, the actual care of the Children that the parents had during the care period is to be worked out based on the number of nights that the Children were in their respective care. On the evidence before the Tribunal, it is satisfied that the Father had 55 nights care of the Children, which equates to 15%, in the relevant 12 month care period from 7 January 2019 to 6 January 2020. The Mother, accordingly, had 85% care of the Children during this care period. These care percentages differ from the existing determination made in 2016 whereby the Father had 6% care and the Mother had 94% care of the Children. In addition, the Father’s cost percentage for the Children would be impacted because the relevant care percentage threshold for changes to the level of child support payments is 14%. Accordingly, the Tribunal finds that the existing care determination should be revoked pursuant to section 54F of the Assessment Act.

   [28] See Polec and Staker [2011] FMCAfam 959, at [56]; P v CSR 2013, at [107]; and P v Child Support Registrar [2014] FCAFC 98, at [47].

3. Plainly, the level of actual care provided by each of the Mother and the Father changed dramatically after early 2020 due to the COVID-19 pandemic, the associated border closures resulting in cancelled travel plans and the Mother’s planned travel with the Children during certain school holidays.[29] In this regard, the Mother provided evidence that for the balance of the 2020 calendar year, the Father had the Children in his care for 22 nights.[30] The Tribunal notes that there was evidence before it of the Mother providing notice to the Father in February 2020 of her holidays with the Children and also the Father’s efforts in 2020 to seek to see the Children in addition to these periods of care.[31] However, due to the Tribunal’s above findings regarding the care period ending on 6 January 2020, that subsequent period of time does not fall for determination in this proceeding. 

   [29] Exhibit R1, T10, page 50.

   [30] Exhibit OP2.

   [31] Exhibit R1, T10, pages 50-52.

4. The percentage of care applies to each day in a child support period on and from the ‘application day’ which, pursuant to subsection 54B(2)(c)(ii) of the Assessment Act, because the decision was made under section 54F, begins on the day ‘immediately after the revocation of the existing determination’. The Tribunal has found that the care determination from February 2016 should be revoked and replaced with a new care determination applicable from 7 January 2019.

5. On 22 October 2019, the Father notified the Agency of his increased care of the Children.[32] Following the Tribunal’s findings regarding the commencement of a new care determination from 7 January 2019, the Father therefore provided notification more than 28 days after the change of care day on 7 January 2019. As a result, subsection 54F(3)(b)(i) of the Assessment Act provides that, where the responsible person’s care of the child has increased, the revocation of the determination takes effect at the end of the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter. That is, the revocation of the 2016 determination takes effect from the end of 21 October 2019 and will therefore have effect from 22 October 2019.

   [32] Exhibit R1, T25, page 125.

6. For completeness, the Tribunal notes that the Father and the Mother lodged their respective objections to the Agency and applications to the AAT1 within time and so the Tribunal does not need to consider the date of effect provisions which would apply had the objection or application for review been made out of time.

   DECISION

7. Pursuant to subsection 43(1)(c) of the AAT Act, the Tribunal sets aside the decision under review and makes a decision in substitution that revokes the care determination made in February 2016 and replaces it with a determination that the percentage of care for the Children for the 12 month period from 7 January 2019 to 6 January 2020 was 15% for the Father and was 85% for the Mother.

I certify that the preceding 42 (forty two) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

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Associate

Dated: 26 March 2021

Date(s) of hearing:	10 March 2021
Date final submissions received:	21 January 2021
Applicant:	By telephone
Solicitors for Respondent:	Mr Kelvin Defranciscis, Services Australia
Other Party:	By telephone