HVQM and Child Support Registrar (Child support second review)

[2021] AATA 4806

HVQM and Child Support Registrar (Child support second review) [2021] AATA 4806 (23 December 2021)

Division:GENERAL DIVISION

File Numbers:         2020/5085; 2020/5981

Re:HVQM; GGBS

APPLICANTS

AndChild Support Registrar

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:23 December 2021

Place:Perth

The Reviewable Decision, being the AAT1 Decision dated 30 July 2020, is set aside and is substituted with the new decision that the Objection Decision dated 24 March 2020 is affirmed.

The practical effect of this decision is that the Objection Decision dated 24 March 2020, which refused to record a change in the percentages of care of 59% to the Mother and 41% to the Father, is upheld.

...........[Sgd].............................................................

Senior Member Dr M Evans-Bonner

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

CATCHWORDS

CHILD SUPPORT – percentage of care decision – whether there was a change in care – dispute about percentage of care – Tribunal not satisfied on the evidence that there was a change in care – AAT1 decision set aside and substituted – practical effect of this decision is that the Objection Decision is upheld

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) ss 54A, 54F, 54G, 54H

Child Support (Registration and Collection) Act 1988 (Cth) s 95N

CASES

Polec & Staker & Anor [2011] FMCAfam 959

SECONDARY MATERIALS

Guides to Social Policy: Child Support Guide [2.2.1]

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

23 December 2021

BACKGROUND

1. The Father (GGBS) and the Mother (HVQM) have lodged separate applications seeking review of a decision dated 30 July 2020 made by the Social Services & Child Support Division of this Tribunal (AAT1) in the General Division of this Tribunal (AAT2).

2. Orders were made on 17 November 2020 to join the Father and the Mother’s applications so they could be heard concurrently.

3. The Father and the Mother are the separated parents of a minor child, S, born on 12 May 2016.

4. A child support case was first registered for S on 15 August 2017 (T26/207). From 21 May 2019, the child support assessment was based upon the Mother having 59% care and the Father having 41% care of S (T26/209).

5. There is a dispute between the Father and the Mother regarding the percentage of care provided to S from on or around 19 June 2019.

   THE MOTHER’S TELEPHONE CALL TO THE AGENCY

6. These proceedings eventuated due to a telephone call made by the Mother to the Child Support Agency (Agency) on 12 July 2019. According to the electronic file note made by the Agency, the Mother advised that she had 100% care of S since 19 June 2019, there was no planned care going ahead, that there were no court orders in place and that it was likely the Father would not disagree with that information (T25/164-165).

7. I listened to the recording of this telephone conversation because it was a point of contention between the Mother and Father at the hearing. I will now summarise the relevant part of the telephone call. The Mother telephoned the Agency because she had been assessed as owing the Father $40. The Mother said to the Agency officer that she had care of S the previous week when the Father was meant to have care, and so the Father should owe the Mother money. The Mother said that she had care of S from 19 June 2019 to 8 July 2019. The Mother stated that she thought the percentage of care was 59% to her and 41% to the Father, but that care changed throughout the year so she was uncertain about what the pattern of care would be in the future. It was suggested to the Mother by the Agency officer that if the Father missed one more care event, being two care events in total, the Mother should telephone the Agency and they could change the assessment to 100% to her. Then if the Father resumed care, she could telephone the Agency again to advise of the change. However, during a lengthy discussion with the Agency officer, the Mother repeatedly stated that she was unhappy with this option. The Agency officer then suggested changing the pattern of care to 100% care to the Mother from 19 June 2019 and suggested that the Mother could telephone the Agency again if the Father resumed care. The Mother agreed with and approved this course of action.

8. On 17 July 2019, the Agency spoke to the Father who disagreed with the information provided to the Agency by the Mother. The Father advised that there was a court order in place and that the Mother was not allowing him access to S (T25/166).

9. There was subsequently a substantial amount of correspondence between the Agency and the Mother and Father.

10. By way of summary, the Mother and the Father had numerous telephone conversations with the Agency (T25/168, 170-171, 176, 180). The Agency requested further evidence from them both (T7/48-49; T10/79-82). The Mother provided childcare attendance records and copies of Family Court Orders to the Agency on separate occasions (T6/35; T11/83-84; T25/178). The Agency corresponded with the Mother and the Father seeking copies and further information about the court orders and whether any action had been undertaken to enforce them (T10/79-82; T25/173-174). The Father and the Mother provided further copies of Family Court Orders (T12/85-114; T14/121-128).

11. Electronic file notes made by the Agency, including notes made on 8 November 2019 and 21 November 2019 show that the Mother tried to clarify that she did not advise the Agency that she had 100% care of S, but that she thought she had more than the percentages reflected in the Family Court Orders of 59% to the Mother and 41% to the Father. She expressed frustration that the Agency records were still showing 100% care to her when she had subsequently confirmed that was incorrect (T25/179; T13/115).

12. On 26 November 2019, a delegate of the Registrar decided that the new information from the Mother did not require a change in the child support assessment at that time (Original Decision). This was because there was insufficient evidence to determine, nor agreement between the Mother and Father about, the level or pattern of care since 19 June 2019. This meant that the existing care decision of 59% to the Mother and 41% to the Father continued to apply to the assessment (T15/129-130; T25/184).  

13. On 6 December 2019, the Mother lodged an objection to the Original Decision with the Agency (T16/131).

14. The Mother subsequently emailed copies of handwritten calendar entries from May 2019 to January 2020 to the Agency, which indicated when S was cared for by the Mother, the Father and when S was at childcare (T20/139-147).

15. On 24 March 2020, an objections officer of the Agency disallowed the Mother’s objection, which affirmed the Original Decision to refuse to record a change in care (Objection Decision) (T22/150-151).

16. On 28 May 2020, the Mother lodged an application with the Tribunal seeking review of the Objection Decision (T24/163).

17. The Tribunal wrote to the Father on 9 June 2020 inviting him to be joined as a party to the application, but he did not respond and so he was not added as a party (T2/4).

18. The AAT1 hearing took place on 30 July 2020, and the Mother attended by telephone (T2/4).

19. On 30 July 2020, the AAT1 set aside the Objection Decision, and substituted a new decision that the Mother provided 69% care and the Father provided 31% care of S, from 19 June 2019. The AAT1 declined to make a determination under s 95N of the Child Support (Registration and Collection) Act 1988 (Cth) with the consequence that the date of effect of the Tribunal’s decision was 28 May 2020 (T2/3) (AAT1 Decision).

    THE APPLICATIONS

20. The Mother lodged an application (2020/5085) seeking a review of the AAT1 Decision on 23 August 2020 (T1/1-2). At the AAT2 hearing the Mother explained that the AAT1 had only considered care of S over a three-month period. She thought she had a higher percentage of care than the AAT1 decided but was uncertain as to what the percentage should be.

21. The Father also lodged an application (2020/5981) seeking review of the AAT1 Decision (which he received on 7 September 2020) on 30 September 2020 (Exhibit 2).  His reasons for making the application included that he did not receive notification of the AAT1 proceedings. At the hearing the Father estimated that he had between 36% and 43% care of S during the care period in question. 

22. The AAT1 Decision is the Reviewable Decision that is the subject of both applications.

    THE HEARING

23. The AAT2 hearing was held on 22 July 2021. Both the Mother and the Father gave evidence and made submissions. I made a Direction for the Mother and Father to provide further written submissions and evidence to confirm, amongst other things, when care changed and why, a timeline identifying the nights S spent with each parent, whether the Family Court Orders were being complied with and the factors in Polec & Staker & Anor [2011] FMCAfam 959 at [56] (Polec Factors) which are reproduced in paragraph [2.2.1] of the Guides to Social Policy: Child Support Guide (Guide). This Direction was extended several times due to extensions being sought by the Applicants. A large volume of material was received from both Applicants which was of limited relevance to what I requested in the Direction.

    CONSIDERATION

24. Before I consider whether there was a change in care, it is first relevant for me to identify the care period in question. The Mother’s telephone call to the Agency informed them that care changed from 19 June 2019. At the hearing the Father thought that there was a change in care slightly later in July 2019 when he returned to work after an illness (transcript/30). I will use 19 June 2019 as the beginning of the care period, although whether the care period commences then, or from July 2019, makes no effective difference. This is because, for reasons that I will explain below, I am not satisfied that there is sufficient evidence to determine whether there was a change in care, and if so, to what extent.

25. I will now make some brief comments about the evidence to illustrate why it does not sufficiently assist me in determining whether there was a change in care.

26. There are photocopied calendar entries in the T-documents from May 2019 to mid-January 2020. On each calendar month the Mother marked the days that she had care of S, and the days that the Father had care of S. It was unclear to me from some of the notations on this calendar as to which parent had S on which days. Some days were clearly marked with the Mother or Father’s initial, but other entries had both or several initials. I note that the AAT1 calculated the Mother’s care of S during this period (and with reference to this calendar) as being 111 nights, or 69% care to the Mother during that period (T2/6). However, as the calendar stops in mid-January 2020, there is a gap in the evidence of approximately five months from that time until the end of the care period in late June 2020. I also note that the Father spoke with the Agency on 18 February 2020 and stated that the calendar dates provided by the Mother appeared accurate, however, that she had marked some days as though she had care, even though S was at childcare and the Father had collected S and had care of her overnight (T25/206).

27. In response to my Direction, the Mother provided a photograph of a handwritten timeline that was blurred and difficult to decipher. This timeline indicated the days between 6 May 2019 to 23 June 2020 when the Mother had the care of S. On 5 October 2021, my Associate emailed the Mother to request a clearer copy of the document, but no response was received. From what I could decipher, the timetable showed 113 nights commencing from 19 June 2019. However, I could not decipher what was written on the timeline from mid-March 2020 through to 24 May 2020.

28. I also note various childcare records submitted by the Mother which showed when S was in childcare. However, again it was difficult to determine when each parent had S overnight from these records.

29. The Father gave evidence at the hearing that he had experienced some health issues from March 2019 and could not work for six months. He estimated that from July 2019 he had only missed approximately three weeks care of S due to having to undertake fly in fly out work, but that the time was later made up because the Family Court had ordered he have extra time with S when the Mother had not given him access.

30. For completeness, I observe that although the number of nights a child spends with a parent is the primary measure of care, (s 54A of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act)), the Polec Factors (which are reproduced in the Guide at paragraph [2.2.1]) provide further guidance for determining whether and to what extent a person has care of a child. However, despite the Direction, the Applicants did not provide sufficient submissions or evidence to permit me to assess these factors to the extent that I could be reasonably satisfied that there was a change in care, and if so, the extent of any change.

31. In summary, I am not reasonably satisfied on the evidence that there was a change in the pattern of care for S (from the Mother having 59% care and the Father having 41% care) during the care period. Consequently, I do not need to make a determination under s 54F, 54G, or 54H of the Assessment Act.

32. Further, as there is effectively no change to the Objection Decision, I do not have to make a determination regarding the date of effect under s 95N of the Child Support (Registration and Collection) Act 1988 (Cth).

    DECISION

33. The Reviewable Decision, being the AAT1 Decision dated 30 July 2020, is set aside and is substituted with the new decision that the Objection Decision dated 24 March 2020 is affirmed.

34. The practical effect of this decision is that the Objection Decision dated 24 March 2020, which refused to record a change in the percentages of care of 59% to the Mother and 41% to the Father, is upheld.

I certify that the preceding 34 (thirty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd].............................................................

Associate

Dated: 23 December 2021

Date of hearing:	27 July 2021
Date final submissions received:	30 September 2021
Representative for the Applicants:	Self-represented
Representative for the Respondent:	Ms A Cornfield, Sparke Helmore Lawyers