JDWM and Child Support Registrar (Child support second review)

[2022] AATA 1061

JDWM and Child Support Registrar (Child support second review) [2022] AATA 1061 (14 April 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/4357
GENERAL DIVISION	)

Re: JDWM
Applicant

And: Child Support Registrar
Respondent

And: PVNB
Other Party

DIRECTION

TRIBUNAL:  Senior Member K Millar

DATE OF CORRIGENDUM:            2 May 2022

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. At page 1 and page 17, paragraph 96, the date 13 July 2013 is amended to read 13 July 2019; and

2. The reference on page 18 to ‘the preceding ninety-seven (97) paragraphs’ is amended to read ‘the preceding ninety-six (96) paragraphs’.

............................[Sgnd].............................

K MILLAR
  (Senior Member)

Division:GENERAL DIVISION

File Number(s):      2021/4357

Re:JDWM

APPLICANT

AndChild Support Registrar

RESPONDENT

AndPVNB

OTHER PARTY

DECISION

Tribunal:Senior Member K Millar

Date:14 April 2022

Place:Adelaide

The decision under review is set aside and substituted with the following:

The existing percentage of care determination is revoked from 12 July 2019 and replaced with a determination that JDWM’s percentage of care is 73% for the care period 13 July 2013 to 10 January 2021. 

………………[Sgnd]……………….

Senior Member K Millar

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 – change in percentage of care – whether percentage of care changed – whether child was independent from parent during particular period – child completing considerable periods of work in a location different to that of the parent – criteria to determine to what extent a parent has care of a child – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Cases

Polec v Staker [2011] FMCAfam 959

REASONS FOR DECISION

Senior Member K Millar

14 April 2022

INTRODUCTION

1. JDWM is the mother and PVNB is the father of B, who is now 19 years old. This application is about the percentage of care that JDWM had of B in a period where B was working and living on a cattle station. The percentage of care affects the amount of child support PVNB was required to pay.

2. From 1 July 2008, B was recorded as being in the 100% care of her mother.

3. On 6 April 2020, B’s father contacted the Child Support Agency to advise that her mother did not have 100% care from October 2019 because B was living and working on a cattle station. A delegate of the Registrar agreed and on 26 May 2020 found that neither parent had care of B from 1 September 2019.

4. B’s mother objected to this decision, and on 17 November 2020 an objections officer found that neither parent had care of B from 13 June 2019. The mother applied for a review of this decision in the Social Services and Child Support Division of this Tribunal (AAT1), which affirmed the decision that B was not in the care of either parent from 13 June 2019. However, as AAT1 found this was a terminating event for the purposes of the Child Support (Assessment) Act 1989 (Cth) (the Act), the previous decision was set aside. 

5. B’s mother contends that she had the care of B in the time when B was at home and was not at the station. B’s father contends that B was independent, and neither parent had care of B from 13 July 2019. 

6. B turned 18 on 10 January 2021, and if the child support case does not end at an earlier date, it would have ended when she turned 18. 

7. Without meaning any disrespect to the parties, and in acknowledging they are the parents of B, JDWM is referred to as “B’s mother” and PVBN is referred to as “B’s father” in these reasons. In the interests of protecting the privacy of the parties, the name of the station at which B was working and the name of the town in each parent live,  are not specified. 

   REQUEST TO RE-OPEN 

8. After the hearing, the father sought leave to re-open his case as he stated he had failed to seize opportunities at the hearing to show the mother was being untruthful, particularly in regard to a letter purportedly written by B. He states he had documents from 2007 from police and a general practitioner (GP) to show the mother has provided false information. 

9. Section 2A of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) requires the Tribunal to provide a mechanism of review that is accessible, quick, fair, just, economical, proportionate to the complexity of the matter and promotes trust and confidence in the decision making of the Tribunal.

10. During the hearing, the father said he had expected his daughter B to be called to give evidence. A consideration in deciding whether to allow a person to re-open his or her case is where a witness is not called that was expected to be called.[1] In this case B’s father had nominated B as his witness but did not take action to arrange B to give evidence and says she will not communicate with him. B’s mother provided a statutory declaration from B and had previously provided a statement from B but did not make her available to give evidence. At the hearing, B’s mother said B had a contract caretaking a cattle farm and only had satellite telephone reception intermittently. 

    [1]Barker v Furlong [1891 – 1894] All ER Rep Ext 2030, In the Marriage of Gelley (No 1) [1992] FLR 92 – 290.

11. The father sought to refute allegations about his parenting in a statement by B’s mother and a statutory declaration from B and alleged that documents purportedly written by B had been written by her mother. B is a child of the relationship. While she is now an adult, care must be exercised in making her a participant in this dispute. 

12. At the hearing the father also stated he wanted B to give evidence because she had refused to communicate with him, and he wanted to talk to her. He said he mostly wanted to say hello and explain that there is another side to the story. B’s father was clearly distressed by his lack of contact with B and feels like he has lost his relationship with his daughter, no matter the outcome of these proceedings. While the Tribunal has considerable sympathy for his situation and appreciates his genuine desire to be in contact with his daughter, this is not an appropriate use of these proceedings.   

13. In his application to re-open his case, B’s father sought to canvas material a considerable period in the past. He sought to re-open his case to again prosecute the veracity of the mother and stated he would rely on police and GP reports from 2007. He had raised the truthfulness of B’s statement and statutory declaration prior to the hearing, and at the hearing put this to B’s mother. The father has consistently sought to impugn the credit of the mother and had the opportunity to do so before the hearing and during the hearing.  

14. Allowing leave to re-open his case would prejudice the mother in prolonging the proceedings and her legal expenses in this matter. 

15. Having balanced the fairness of his request, the likely relevance of any further evidence given it was obtained in 2007, the opportunity the father had before the hearing to lodge relevant documents, the opportunity during the hearing to put forward his case, and the objects of the AAT Act, leave to re-open his case was refused.

    LEGISLATION

16. If the Registrar is notified or otherwise becomes aware that the actual care of a child does not correspond to the person’s existing percentage of care, then the percentage of care must be revoked in some circumstances and may be revoked in others.

17. The existing percentage of care must be revoked if there is a change to the person’s cost percentage (s 54F of the Act) or if the person has less than regular care (s 54G of the Act). The Registrar may revoke a determination of the person’s percentage of care if there is a change to the person’s percentage of care, but this change does not result in a person having less than regular care, or to a change in the cost percentage (s 54H of the Act).   

18. Section 54A of the Act provides a method for working out the actual care, and the extent of care of a child. The care may be worked out based on the number of nights the child was, or is likely to be, in the care of the person during the care period.

    The care period

19. “Care period” is defined in s 5 of the Act as the period defined in ss 49(1)(a), 49(1)(b)(ii), 50(1)(a) or 50(1)(b)(ii). This is such period as the Registrar, and the Tribunal in the place of the Registrar, considers to be appropriate in all the circumstances.

20. The circumstances of this case include that B turned 18 on 10 January 2021 and this is the end of the child support case.[2]   

    [2] s.12(1)(c) and s. 74 of the Act. B completed her secondary education before she turned 18 and the provisions in s. 151C do not apply. 

21. Given the relatively short period before the end of the case, and the benefit in finalising this matter, the appropriate care period is from the date any change occurred until the end of the child support case on 10 January 2021.

22. B first started some work at the station in May 2019. The first evidence of this being formalised is contained in an email to the school from B’s mother that B will have a placement at the station commencing 13 July 2019, and this is the date of the care change.

23. The care period is the period from 13 July 2019 to 10 January 2021, which is 18 months or approximately 78 weeks. 

    Who had the care of B while she was at the station?

24. While number of nights is one way in which the care can be calculated, the Tribunal is not required to only use this approach.[3]   

    [3] P v Child Support Registrar [2013] FCA 1312, P v Child Support Registrar [2015] FCA 116.

25. In Polec v Staker[4], the child was undertaking an apprenticeship and was not living at home.  The father in that case argued that moving away from home constituted a terminating event or a significant reduction in the percentage of care provided by the mother. Federal Magistrate Hughes stated that in determining whether and to what extent a person has care of a child it is necessary to consider:

    1.    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?

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

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

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

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

    6.    To what extent is the child financially independent or financially supported from another source? [5]

    [4] [2011] FMCAfam 959.

    [5] at [56].

26. While she was working at the station, B’s meals and accommodation were provided, and she was paid $650 net per week. While at the station she was independent financially and provided for her own needs. She undertook schoolwork remotely. From October 2019, B had a driver’s license and owned a car, and arranged her own transport. 

27. B’s mother said she assisted B with homework by telephone when she was at the station. She generally arranged B’s medical appointments. She provided B with emotional support while at the station through regular calls throughout the day. B’s mother provided transport for her until B had her driver’s license but did not take her to the station. B would wait for a station worker to be in town or for her brother to take her. 

28. As the station manager would not speak to B’s mother, B arranged the placements at the station herself. B’s mother said arranging the work at the station was a joint effort as she liaised with the school and tried to make sure B’s schoolwork was completed. 

29. B’s mother said when she was at home B did not contribute to the costs of the household and spends her money meeting friends for meals or on iTunes. B sometimes paid for clothes, and if she was not in a position to buy clothes, they would pay half each. B’s mother purchased her school uniform. 

30. B’s parents agree that B’s father paid for her laptop after her mother claimed this through Child Support. He met occasional discretionary expenses when she visited him. 

31. B’s father submitted that B was self-determining and “doing her own thing”. Until May 2020 B would stay with him regularly and he would speak to her about once a week, but she ceased all contact with him in May 2020. He attributes this to the decision of the Child Support Agency about the percentage of care. While B did visit her father from time to time, it was not contended that B was in the care of her father.

32. B arranged the work at the station and provided for her own needs when she was at the station. In deciding if she was in her mother’s care in this period, greater weight is given to her financial independence. Her mother provided emotional support and liaised with the school, however as B was financially independent and her accommodation and meals were provided by the station, she was not in the care of her mother. 

33. When B returned to her mother she was financially supported by her mother and did not contribute to household costs.

34. The Tribunal finds when she was at the station B was not in her mother’s care, and when she was living with her mother, she was in her mother’s care.

    Actual care

35. Section 54A(1) of the Act sets out how to work out the actual care of a child. It states:

    “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 the child was, or is likely to be, the care of the person during the care period.”

36. As the Tribunal has found the care period is 13 July 2019 to 10 January 2021, it must determine the actual care B’s mother has had in this period. 

37. As B was not in her mother’s care in the time she was at the station and was in her care when she was not at the station it is necessary to calculate the periods she was at the station and the periods where she was living with her mother. 

    When was B at the station?

38. There is dispute about the periods in which B was at the cattle station, when she was with her boyfriend, and when she was with her mother. Information from various sources conflicts, and the Tribunal must do the best it can with the available information. 

39. The Child Support Agency obtained information from the station owner and the station manager about B’s work at the station. Records of B’s school attendance were provided by B’s father. Both parents provided text messages from B and others which they each state establish where B was at particular points in time. Some of B’s bank statements were provided, and statutory declarations were provided from third parties.

40. The Tribunal does not consider it can rely on the information from the station owner as it is not consistent with contemporaneous emails between B’s mother and the school or B’s approved absences from school. This is not in any way a criticism of the owner, as it was not suggested the owner was consulting any records when he or she spoke to the Child Support Agency and instead provided broad date ranges when B was at the station.

41. The station manager has provided more specific dates. While the station manager appears to have aggregated the dates between July and December 2019, stating B only left for a week in this period to assist her mother, the Tribunal considers it can place some reliance on this information to show where B was located at particular points in time. 

42. The school records attendance in sessions. The school records the number of possible sessions, together with the number and percentage of sessions attended, unauthorised absences and authorised absences. Given the negotiations between B’s mother, B and the school about completing her education while at the station, the Tribunal considers the best indication of her time at the station from the school records is in the authorised absences.

43. In 2019, B had authorised absences of 43 sessions or 14.7% and in the 2020 school year to 15 May 2020 she had approved absence of 94 sessions or approximately 73%. 

44. B’s bank records are of assistance as she earned $650 per week net from the station and her income can be used to approximate her time at the station. B’s bank records also record income from a part time job located in the same town as her mother, which is approximately 250km from the station. B’s father argued that she may have travelled on weekends to work. However, given the distance from the station to the town where her mother lives, the evidence of her mother, that B only obtained her driver’s license in October 2019, and texts from B to the business owner, this is unlikely, nor was it raised as more than a possibility by the father. 

45. While the bank statements are heavily redacted and only range from 5 April 2019 to 1 April 2020, they show deposits marked as “wages”, “TTS wages” and “OSKO payments”. B’s mother said the payments marked “OSKO” are from the station and those marked “TTS wages” are from B’s part-time job at a saddlery store in the town where B’s mother lives.

46. Where possible, information on where B was located has been matched with contemporaneous text messages provided by her mother and her father. 

47. In summary, for the reasons provided below, the Tribunal accepts B worked in blocks at the station.  These these blocks of work total 21 weeks in the period 13 July 2019 to 10 January 2021. 

    Period: 13 July 2019 – 23 August 2019

48. B’s mother provided an email to the school dated 11 June 2019[6] in which she states B intends to be away from 13 July 2019 for about 6 weeks, after which they will plan term 4. The next day, the mother emails the school to advise B will be away for her first block of work from 13 July 2019 to 23 August 2019. As these emails are close to the time B was to leave for the station, they can be relied on to show what was happening at that time. 

    [6] T60, 176.

49. B’s bank statements show a payment of $2,986.71 for wages from the Rural Bank on 23 August 2019. It is not clear the provenance of this payment, as it was not from the source specified by her mother as payments from the station. However, it is consistent with B being at the station for the period 13 July 2019 to 23 August 2019 and the email from B’s mother to the school. 

50. According to her mother, B worked at a saddlery store when she was at home. The wages from this source appear on her bank account on a weekly basis, and the Tribunal considers this a good guide to when she was at home. While B’s father argued that she could return home to work from the station, these wages do not appear in the time she was at the station from 13 July – 23 August 2019. In addition, the distance of approximately 250km from the station, the evidence of the mother that B remained at the station during her blocks of work, and as she only obtained her provisional license in October 2019, make it more likely she worked when she was with her mother in the town and did not work when she was at the station.   

51. On the basis of information from the station, the school records, the email from B’s mother and the bank statements, the Tribunal finds B was at the station and not in the care of her mother for approximately 6 weeks from 13 July 2019 – 23 August 2019. 

    Period: 24 August 2019 – 13 October 2019

52. In this period, the Tribunal is satisfied B returned to her mother. This is shown by texts about B’s part time employment in town regarding her availability in September,[7] with B responding to an enquiry about when she could work stating that she is available in September 2019 until the end of the school holidays. There are also texts about B arriving home[8], texts between B and her friends in September and October indicating she is in town, a text to her teacher about doing a test while she is in town, and payments to her account from her part-time job for the period September to mid-October 2019.

    [7] Applicant’s bundle of documents, item (3)(p).

    [8] T60, 203.

1. The Tribunal is satisfied B returned to her mother from approximately 24 August 2019 until the end of school holidays on 13 October 2019.

   Period: 14 October 2019 – 25 October 2019

2. B returned to the station at the end of the school holidays on 13 October 2019 until her mother broke her arm, and B returned to help her at home. 

3. The Tribunal finds B was not in the care of her mother from mid-October until 25 October 2019, approximately 11 days.

   Period: 25 October 2019 – 17 November 2019

4. B’s mother provided text messages and gave oral evidence showing B returned home to care for her after she broke her arm on 24 October 2019. B’s mother states B returned home on 25 October 2019, and this is supported by texts from the mother to her son stating B had arrived on 25 October 2019. On the same day B was paid $2,000 by the station. This equates to approximately 3 weeks’ work. 

5. B’s mother states B stayed with her to assist her after she broke her arm until 17 November 2019.  In this period, there are no payments that appear in her bank account statement of wages from the station, and the Tribunal accepts B was living with her mother in this period. 

   Period: 18 November 2019 – 22 December 2019

6. B’s mother states that B returned to the station on 18 November 2019.  B was paid $2,500 by the station on 21 December 2019, equating to approximately 4 weeks’ work.

7. The Tribunal finds B was not in her mother’s care in the period 18 November – 21 December 2019 for approximately 4 weeks. 

   Period: 22 December 2019 – 17 February 2020

8. B’s mother, the station owner and the station manager all state B left the station in December as they shut down.

9. The station owner told the Child Support Agency when B left in December for holidays, she was staying in another town with her boyfriend, and while she saw her mother she was not living with or being financially supported by her. B’s mother states B was with her. While B may have spent time with her boyfriend or travelled with her boyfriend, the Tribunal is not persuaded that she was independent and not in her mother’s care at this time.  

10. It is then less clear when she returned to the station after Christmas. The Tribunal infers from a payment of wages of $800 on 4 February 2020, that B returned to the station for a little over a week in January, but then returned home for the start of school until approximately 17 February 2020.

11. During the Child Support Agency’s conversation with the station owner on 25 May 2020, the station owner is reported to have stated that B returned to the station in February 2020 after leaving in December 2019 for holidays. This is not consistent with the payments to B’s account or evidence of her attending school at the start of Term 1. 

12. In the conversation the Child Support Agency had with the station manager on 1 November 2020, the manager said that B returned on 20 January 2020 for approximately 3 weeks.

13. In the 2020 school year to 15 May 2020, B had approved absence for 94 sessions or 72% of the time. In a telephone call to the Child Support Agency on 25 May 2020, the school confirmed B was still enrolled but she was working and living at a cattle station. The file note records “She has been doing so since mid-last term”.[9] This implies she was with her mother at the start of Term 1 of 2020, and the school records show she was either at school or had unapproved absences 28% of the time to 15 May 2020. 

    [9] T20, 62.

14. Text messages from this time support that B was with her mother in early February, including a text from her mother dated 4 February 2020 “You’re spending an extra week at school. This is not negotiable”.[10]

    [10] Exhibit A1 item 3 (rr).

15. Given this information, the Tribunal finds B was in her mother’s care from 22 December 2019 to 17 February 2020, with the exception of a period a little over a week as shown by the payment from the station. 

    Period: 17 February 2020 – 2 April 2020

16. B returns to the station on approximately 17 February, receiving part payment of wages on 13 March, and then another payment on 25 March 2020. Together with the texts and emails, this supports another 6-week block of work at the station from 17 February 2020 – 2 April 2020.

17. The Tribunal finds B was not the care of her mother for a week in January for approximately 6 weeks from 17 February – 2 April 2020. 

    Period: 10 April 2020 – 6 May 2020

18. During the Child Support Agency’s conversation with the station owner on 25 May 2020, the station owner is reported to have stated that B left the station 4 weeks before this conversation, and the Tribunal infers the station owner’s view is that B left the station around late-April 2020.

19. None of B’s bank account statements are provided after 1 April, and the final page of her bank account statement is missing. The station manager states B returned to the station from 10 April 2020 until 6 or 7 May 2020 when B advised she did not want to stay any longer. Her mother states B was at the station for one week before she left, as her mother decided she should not stay due to B’s stress about COVID. She states there were no further payments from the station which is why she did not provide the bank account statements from 1 April 2020. This is not consistent with her evidence that B stayed at the station for a week in April, which would have resulted in a payment. 

20. B’s mother said she did not provide any further text messages to support where B was living in this period because she did not provide any material after the payments stopped. B’s 2019/2020 tax return has not been provided, despite the father seeking this information. The mother states she was never asked for this information and it is not her information to give. This is despite her statement to the Child Support Agency that B’s assessable income in 2019/2020 was $7,208. The Tribunal does not accept this figure is accurate as it is considerably less than the total wages that appear in B’s bank account statement.

21. In support of the mother’s position that B was not at the station from April 2020 she provided a statutory declaration from herself, B and a third party who is a friend of B.

22. The statutory declaration provided by B is witnessed by her mother. While B was over 18 at the time this statutory declaration was executed, the Tribunal is cautious about adopting statements prepared by a child of the relationship for the purpose of an application for review. In addition, where B’s statutory declaration is witnessed by her mother the Tribunal is not prepared to give it any significant weight. 

23. In the absence of financial information for this period, the Tribunal is left with the mother’s oral evidence, the record of the conversation with the station manager, the information from the father in the texts between B and her father, the recorded allowable absences from the school, the statement from the station manager and a statutory declaration from a friend of B.  

24. A text from B dated 29 April 2020 to her father states she is at the station drafting cattle and when this is finished, she plans to return to town to find work. B states she and her boyfriend are moving into her boyfriend’s family home. The statutory declaration of the father is that B arrived at his house from the station on 2 May 2020. A text dated 7 May to her father states she is back in town. 

25. The texts and information from the station support that B was at the station for at least several days from mid to late April until May 2020. The Tribunal does not accept the evidence of the mother that she only returned for part of a day to pick up her gear and that she worked unpaid drafting cattle on that occasion.

26. Given the lack of information to establish when B is at the station and the conflicting evidence given by the mother, the Tribunal does not accept the mother’s evidence in relation to this period of work. The Tribunal prefers to rely on the text message to B’s father and the information from the station manager and finds B was at the station from 10 April until 6 May 2020, approximately 4 weeks.

    Period: 7 May 2020 – 10 January 2021

27. B’s father states that B was living with her boyfriend after 6 May 2020 and cites texts from B stating she and her boyfriend were going to live by themselves at his family’s house. B’s mother denies she was living with her boyfriend. Statutory declarations were provided from third parties that state B and her boyfriend did not live together, and that the mother was responsible for caring for the property of the boyfriend’s family. 

28. Texts again appear between B and her mother about daily matters from July 2020. 

29. The father states that from the date of the decision of the Child Support Agency on 26 May 2020, B has not had any further contact with him, and he cannot provide any further information on where she lives. 

30. B’s father points to a text dated 6 May 2020 from B stating she had been offered a job at a plantation. Her mother says she worked as a casual at the plantation and completed her secondary schooling before starting a full-time job at the planation in December 2020. The mother states the father did not ask B about her employment or when it started.

31. B’s mother provided a Semester 2 attendance certificate issued by her school stating B attended 100% attendance in Semester 2 of 2020. B’s mother said this shows how poor the school’s attendance reporting was, as B was not at school 100% of the time. The certificate does, however, support the claim that B returned to the town and was attending school in Semester 2 of 2020. According to her mother, this semester was from mid-July 2020 until mid-December 2020, and B graduated on 20 November 2020. 

32. B’s father is at a disadvantage in trying to establish where B is living after May 2020 as he is not in contact with her. B’s mother has provided statutory declarations from third parties that B and her boyfriend do not live together. She has provided some evidence that B was living with her after she left the station.  

33. The information before the Tribunal is that B was with her mother after she left the station, and the Tribunal finds she was in the care of her mother from 7 May 2020 until she turned 18 on 10 January 2021.

    Conclusion regarding care of B in the above periods

34. The Tribunal is satisfied that B was living independently and was not in the care of her mother in the periods she was at the station, which equates to approximately 21 weeks in the period 13 July 2019 to 6 May 2020. 

35. The Tribunal is satisfied B was in the care of her mother in those periods she was not at the station. 

    What was B’s mother’s percentage of care in the care period?

36. Of the 78 weeks in the care period 13 July 2019 – 10 January 2021, approximately 21 weeks B was not in her mother’s care. 

37. This results in B being in her mother’s care 73% of the time in the care period.

    Revocation of the percentage of care determination

38. Section 54F(1) of the Act requires a percentage of care determination to be revoked if there is a change to the cost percentage.

39. The cost percentages are set out in s 55C of the Act. A change from 100% care of a child to 73% care of a child reduces the cost percentage from 100% to 76%.

40. As a result, the percentage of care determination must be revoked. 

41. Section 54F(3) sets out when this determination takes effect. The Registrar was notified by B’s father of a care change more than 28 days after the change occurred. This means it is revoked from the day before the care changed, which is 12 July 2019. 

42. Under s 50 of the Act, if the existing percentage of care determination is revoked, it must be replaced with a determination that corresponds with the actual care that the person has had, or is likely to have, during the care period.

43. The Tribunal has found B’s mother had 73% care in the care period, and a percentage of care determination is made that she had 73% care from 13 July 2019 to 10 January 2021. 

    DECISION

44. The decision under review is set aside and substituted with the following:

    The percentage of care determination is revoked from 12 July 2019 and replaced with a determination that JDWM’s percentage of care is 73% for the care period 13 July 2013 to 10 January 2021. 

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar.

..............[Sgnd]...............

Associate

Dated: 14 April 2022

Date of hearing: 16 February 2022

Representative for the Applicant:	Ms Sephyr Cooper, Maleys Barristers and Solicitors
Representative for the Respondent:	Mr Sam Cummings, Sparke Helmore Lawyers

Other Party:  Self-represented