JJMC and Child Support Registrar (Child support second review)

JJMC and Child Support Registrar (Child support second review) [2023] AATA 4205 (23 November 2023)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2023/1832

GENERAL DIVISION )
Re: JJMC
Applicant

And: Child Support Registrar
Respondent
And: BXJB
Other Party
DIRECTION
TRIBUNAL:  Senior Member Damien O’Donovan
DATE OF CORRIGENDUM:            8 December 2023
PLACE:           Canberra

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.

Delete the first sentence from paragraph 25 and replace with ‘A statutory declaration from the father of the mother’s now partner stated:’.
…………………………[sgd]……………………….
Senior Member Damien O’Donovan

Division:GENERAL DIVISION
File Number(s): 2023/1832
Re:JJMC
APPLICANT

AndChild Support Registrar
RESPONDENT

AndBXBJ
OTHER PARTY

DECISION
Tribunal:Senior Member O'Donovan
Date:23 November 2023
Place:Canberra

The decision under review is affirmed.
………………………[sgd]……………………
Senior Member O’Donovan
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 in the pattern of care – decision affirmed
LEGISLATION
Child Support (Assessment) Act 1989 s 54G, 54F, 54H
REASONS FOR DECISION
Senior Member O'Donovan

The applicant (the mother) and the other party (the father) in this matter are the parents of K and L. Prior to 20 August 2019, the Child Support Registrar (Registrar) understood that care was shared between the couple on a close to 50/50 basis. On 20 August 2019 the mother contacted the Registrar and advised that she had 100% care of K and L. The Registrar contacted the father to discuss the change in care notification and he advised that he agreed that there had been a change as notified. On the basis of the information given by the parties, the Registrar revoked the earlier percentage of care determination and made decisions on the child support payable, which reflected that the care arrangements had changed such that it was appropriate to revoke the earlier percentage of care determination and make a fresh determination that 100% of the care of K and L was provided by their mother.
The children’s father now claims that care did not change in August 2019 (contrary to what the Registrar was told) and that in fact he provided care on a 50/50 basis up until April 2022. The children’s mother accepts that the Registrar’s understanding of the care percentages that were being provided was not correct but asserts that there were changes to the care percentages over time and that these should be reflected in the percentage of care determinations.
As a result of these changes in position, a delegate of the Registrar on 20 October 2022 considered the evidence and determined that, contrary to the earlier decision in August 2019, there was in fact no change of care on 20 August 2019 and care was occurring as a 50/50 arrangement until 25 April 2022.
In order to understand how it is that a position which was once agreed between the parties has led to a significant dispute between them as to the percentage of care provided to their children since August 2019, it is necessary to review the evidence that has been provided over time and consider its credibility in light of what is now known about the arrangements.
All parties accept that the information provided to the Registrar in August 2019 did not reflect the reality. The children’s father was continuing to provide a significant amount of care to K and L, and it is unlikely that there was any change to the children’s care at that time.
While it is surprising that both parties would agree to provide information to the Registrar that was false, a possible explanation that emerged in the course of the review was that there may have been a tax benefit to the mother if the Registrar believed she had 100% of the children’s care. The father was willing to go along with this because there was no adverse impact on him because the parties’ had a private collection arrangement and no steps were taken by the mother to enforce any liability.
Following the reporting of the inaccurate information in August 2019, child support was calculated on an incorrect basis for more than three years. What the precise arrangements were in those three years is in dispute, but all parties agree that until April 2022 the father’s care percentage was significantly higher than the 0% which had been advised to the Registrar.
In April 2022, care did change when the father commenced an extended holiday with his new family. From that point the mother provided 100% of the care for K and L during the school term. In order to obtain child support payments to reflect that, the children’s mother switched the arrangement to an agency collection arrangement. As a consequence, child support payments were collected by the Registrar from the father. Notices were also issued in relation to periods from August 2019 which showed the father as liable for child support. He was travelling around Australia in a caravan at the time and it took him some time to get hold of the child support decisions.
When he received them, he became angry with the children’s mother and decided to object to the earlier determination that his care percentage was 0%.
At this point the parties began to provide the Registrar with more accurate information about what the care percentages were from August 2019.
The father rang Centrelink on 12 September 2022 and advised that:
…on 20/08/2019 the care did not change and care was maintained at 50% shared until 26 April 2022 when care changed.
That reflects the evidence which he gave at the hearing before me.
When the mother was asked about this by staff of the respondent on 16 September 2022, she gave a different version of events. Staff of the respondent summarised the information they had received to that point in time as follows:
…there was a parenting plan that expired back in 2018. Back in 2019 things were amicable and they had private collect, [the father] stated due to new job he was not sure when he could have care, so suggested to [the mother] that they change the care to 100% for [the mother], and when we contacted [the father] he agreed. From 20 August 2019, [the mother] states [the father] would have had care of the children at most two nights a fortnight. [the mother] stated [the father] has actually moved to Cairns in march (sic) 2022. [the mother] states [the father] is aggravated now as [the mother] has changed the collection to agency collect and we have intercepted his tax returns. [emphasis added]
I note at this point that the mother’s statements about what happened in August 2019 to prompt the change have varied over time. When the version given to staff in September 2022 is compared with the evidence she gave to the Tribunal at Tier 1 and to me in these proceedings, there are few similarities.
Having put their positions orally to the Registrar, each parent then submitted other material including such things as text messages to support their position concerning a change of care versus care continuing unchanged.
Much of the material provided was inconclusive, but among the material provided by the father there was a statutory declaration made by the driver of the country bus which the children took on days when they were being cared for by the father. The bus driver attested to the fact that the children took the bus every second week from 2018 until April 2022. Other friends of the family also attested to week-about arrangements occurring consistently over many years. The text messages submitted by the parties were, generally speaking, consistent with each parent providing care for a week each fortnight all through 2019 and in the years following.
The texts also indicated that there may have been financial reasons why the mother did not want to be honest with the Registrar about arrangements. One text from her states:
Before I confirm the turning off of the child support case I thought I would call Centrelink to see how it would affect my FTB [Family Tax Benefit]. Found out that it will drop by $320 a fortnight ($220 if based on 50/50 care). I understand that I said that I would turn child support off but I also have to look after mine and my family’s best interests.
This was sent in September 2019 and does suggest that the financial significance of the child support arrangement was on the mother’s mind.
On 20 October 2022 a delegate of the Registrar considered the evidence and determined that, contrary to the earlier decision in August 2019, there was in fact no change of care on 20 August 2019 and care was occurring as a 50/50 arrangement until 25 April 2022.
The delegate went on to determine that, as the father had objected more than 28 days from the date of the original decision, and waited until 12 September 2022 before lodging the objection, the change of care decision only applied from that date. The delegate was satisfied that special circumstances did not prevent the father from objecting earlier and concluded.
As a result, we have made the decision to reflect the care of K and L as 50% to [the mother] and 50% to [the other party] from 20 August 2019 effective in the assessment from the date of objection lodgement, 12 September 2022.
When the mother received these decisions, she contacted the Registrar and notified other changes that had happened in care arrangements since August 2019 and advised that care had not been 50/50 since December 2021 and she had 100% of care since April 2022.
She then applied to the Tribunal for review of the decision that there was no change in care in August 2019.
On 29 December 2022, after the application had been made to the Tribunal, a delegate of the Registrar made a decision that the care percentages changed on 15 February 2022 to 100% care by the applicant and 0% care by the Other Party. I do not have jurisdiction to review that decision and consequently I do not have jurisdiction to determine the relevant care percentages on and from 15 February 2022.
When applications for review are filed in the Tribunal in relation to child support decisions, a review, known as a Tier 1 review, takes place. It is conducted in the Social Services & Child Support Division of the Tribunal. For the purposes of that review the mother submitted some statutory declarations.
A statutory declaration from the father of the mother’s now partner stated:
In regards to the care arrangement for K and L, between [the mother and [the father].. My wife and I have been involved with K and L’s after school care and occasional school holidays over the past 5+ years – Looking after K and L every second week, Tuesday and Thursday when there was 50/50 care between [the applicant] and [the Other Party]. From March 2021 looking after K and L after school and holidays became more frequent.
The mother’s current partner gave a statutory declaration that stated that K and L were in their mother’s care 10 nights per fortnight (except school holidays which were 50/50) from February 2015 to 18 January 2020. From January 2020 to March 2021 the arrangement was 50/50. From March 2021 the arrangement was 10 nights per fortnight with L staying an additional night on some occasions. From 27 December 2021 the children’s father stopped having K and L altogether. K and L were with their father for 3 nights only in 2022 from 11 to 13 February 2022.
When the matter came before the Tribunal at Tier 1 the mother said:
(a)In August 2019 [the father] was going to hospital to have surgery; they agreed that she should be reflected as having 100% care of the children. [The father] was not paying any maintenance; this would allow [the mother] to claim 100% family tax benefit;
(b)The care for the children from August to December 2019 was not 50/50. She cannot remember exactly what it was as it was a long time ago;
(c)After his operations 50/50 care only resumed in January 2020 and continued until March 2021;
(d)After March 2021 to December 2021 [the father] had K for 4 nights and L for 3 nights a fortnight;
(e)From January 2022 he had the children for 3 nights in February 2022 as he was busy relocating. In April 2022 he moved interstate.
The father told the Tier 1 Tribunal the following:
(a)Due to his new job he was not sure when he could have care, so he suggested that care change to 100% to [the mother]. He informed the Agency that he agreed that the applicant have 100% care. He was also going into hospital in August 2019 for surgery. The mother agreed to look after the children while he was incapacitated; he did not know how long his recuperation would take.;
(b)He was however only incapacitated for a few weeks after which time 50/50 care recommenced. He had K for 7 nights a fortnight and L for 6 nights per fortnight until April 2022 when he moved to Queensland;
(c)He objected to the decision in September 2022 some three years after the notification of the change of care which he had agreed to as the applicant had arranged for maintenance to be collected by the Agency and he started being contacted by them regarding the collection of the maintenance. He was unhappy about this.
The Tribunal affirmed the decision under review.
On 21 March 2023 the mother applied to the Tribunal for what is known as a Tier 2 review which is conducted in the General Division of the Tribunal.
More material was filed by the parties and evidence was given under affirmation by each of them.
The father’s evidence departed significantly from what he told the Tribunal during the Tier 1 review. He advised:
(a)He had no surgery in 2019;
(b)The reason that changes to care percentage were reported to the Registrar was because the children’s mother told him that it would be in her interests to adjust the percentage in that way and because they had private collection it would not harm his financial interests;
(c)Since 2015 the care arrangement has been strictly 50/50 and it has not deviated from that until he left the region in April 2022;
(d)He did concede that there was a change in 2022 so that L spent Monday nights with his mother so she could drop him off and pick him up from ‘boys club’ at Treehouse which took place on a Monday night.
The father also made extensive allegations of social security fraud against the children’s mother in a statutory declaration. I am not in a position to judge the truth of those claims, but I do accept his evidence that he was approached by the applicant and agreed to advise the Registrar that the care arrangements were 100% with the applicant and 0% with him, even though this was not the case.
I note that it is difficult to accept that the children’s father gave 50/50 care until his departure in April 2022. Among the evidence filed by the mother is a statutory declaration of Mitchell Lyons. The father lived with Mr Lyons for 8 weeks prior to his departure in April 2022. Mr Lyons states that the father had K and L on weekends but gives no indication that there was a week-about arrangement in the 8 weeks when the children’s father lived on his property. While the period falls outside the one which I must determine, it is relevant to considering whether the father has been honest with the Tribunal. The father’s claim that the care was 50/50 to April 2022 is not credible, which casts doubt on his other evidence.
The mother’s position before me was as follows:
(a)She conceded that the children’s father did not undergo surgery in 2019;
(b)She accepted that the care wasn’t 100% for her but said it wasn’t 50/50 either;
(c)She asserted that from August 2018 to January 2020 K and L were in her care 10 nights per fortnight and during the Christmas period 50/50;
(d)She conceded that from January 2020-March 2021 the care arrangement was 50/50;
(e)From March 2021 to December 2021 K was 10 nights per fortnight with the applicant and L was 11 nights per fortnight to allow L to be taken to ‘boys club’. This arrangement was said to have been put in place because of the burden placed on the kids as a result of the long bus ride to their father’s home in Colington NSW – [I note that there are text messages from the father which suggest such a change was proposed but the father denies that the changes were ever implemented];
(f)The father ceased providing care in December 2021 and provided only 3 nights care in February 2022 and 2 nights care in December 2021;
(g)She noted that the father’s story had not been consistent in terms of what he told the Tribunal and the Registrar;
(h)The father was motivated to dispute the claim by having money garnisheed by the Child Support Agency;
(i)She denied asking him to agree she had 100% care for tax reasons.
Findings of Fact
As a starting point, I am satisfied that the children’s parents were sharing care on a week about basis at the start of August 2019. That was what the Registrar believed the arrangement was and at that point in time there does not appear to be any reason why either party would under-represent or over-represent what was happening. It is also consistent with the evidence of independent witnesses including the children’s bus driver whose evidence I regard as reasonably reliable.
I am not satisfied that there was any change to the arrangements at any point in August 2019. I am satisfied that the children’s father did not have surgery in August 2019 to prompt any change in care arrangements. In their evidence before me, neither parent gave evidence consistent with the father having surgery at that time and the father vehemently denied it. The version of events given previously by the mother to the Registrar which suggested that care changed because of a change in the father’s work was not pressed.
Accordingly, there is no credible evidence available which suggests that anything happened in August 2019 which led to a change in care arrangements. What is more likely is that the mother had financial incentives to want to change the care percentages recorded by the Registrar even though there was no actual change. That would explain why the Registrar was told that there had been a change when there wasn’t in fact any change.
In these circumstances I am not satisfied that there was a change in care percentage in August 2019.
The question then is, in light of there being no change in August 2019, am I satisfied that there was a change at any other time in the period over which I have jurisdiction.
Change in February 2022
The father was prepared to concede that there was one change in arrangements in 2022 where L spent Monday nights at the applicant’s house because of his need to attend ‘boys club’. That would mean a change of care percentage at some point in February 2022. I am unsure of the date of that care change and whether it is within my jurisdiction. The period post 14 February 2022 has been dealt with in a decision of the Registrar dated 29 December 2022. As I am not satisfied that there was a care percentage change prior to 14 February 2022, I am not satisfied that I have power to revoke the care percentage determination.
March 2021 to December 2021
The mother also contends that from March 2021 to December 2021 the father was only providing care for K four nights per fortnight and L three nights per fortnight. The father denies that there was any such change. Regrettably the other evidence does not provide a basis for reaching a clear conclusion.

I have before me some texts which include some discussion of an arrangement like the one asserted by the mother, but ultimately the texts are inconclusive. The father denies that the arrangement foreshadowed in the texts ever came to fruition and the statutory declaration from the mother’s father-in-law is also equivocal on this point.
Despite the mother’s partner’s evidence that there was a new arrangement in this period, I am not satisfied in light of the other evidence that there was.
While I don't necessarily accept the father's evidence as credible on this question, I am not satisfied that the care percentage changed. It is possible that it did but given the divergence in the evidence, I am not satisfied that it did.
December 2021 to February 2022
The question then is whether there was a change in December 2021 through to 14 February 2022. The father is again firm in his evidence that there was no change. He gave evidence that he had the kids for several weeks over both the December 2021 and the January 2022 periods, and week-about care resumed in February 2022 when school resumed.
I have doubts about whether the father is being honest in the evidence that he gave on this issue, but I have not been provided with evidence of sufficient quality to make an affirmative finding that he is not telling the truth.
Conclusion
In order to take action on any change in care percentage I must be satisfied that the statutory requirements for revoking the care percentage determination which is in place are present. Given my factual findings above, I am not satisfied that any of the preconditions necessary for the revocation of a care percentage determination have been established as being present in the care period from August 2019 to 14 February 2022. The preconditions for revocation are specified in sections 54F, 54G and 54H.
Section 54G of the Child Support (Assessment) Act 1989 (Assessment Act) does not apply because the father, at all relevant times, had at least regular care during the care period. Accordingly, there is no basis for revoking the determination that applied as at 26 August 2019 under section 54G.
Under section 54F, as at 26 August 2019, the care of L and K that was actually taking place did correspond with the father’s existing percentage of care and accordingly there was no requirement for the Registrar to revoke the existing percentage of care determination. I am not satisfied that that situation changed at any point up to 14 February 2022.
Under section 54H, as at 26 August 2019 the care of L and K that was actually taking place did correspond with the father’s existing percentage of care and accordingly there was no discretion for the Registrar to revoke the existing percentage of care determination. I am not satisfied that at any point up to 14 February 2022 that that situation changed.
In those circumstances I am not in a position to revoke the existing percentage of care determinations for the relevant care period.
I affirm the decision under review.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member O'Donovan

....................................[sgd]....................................
Associate
Dated: 23 November 2023

Date(s) of hearing: 3 October 2023

Date final submissions received: 4 October 2023

Applicant: Self-Represented

Solicitors for the Respondent: Sparke Helmore

Other Party: Self-Represented

[2023] AATA 4205

23 November 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Natural Justice

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/1832
GENERAL DIVISION	)

Date(s) of hearing:	3 October 2023
Date final submissions received:	4 October 2023
Applicant:	Self-Represented
Solicitors for the Respondent:	Sparke Helmore
Other Party:	Self-Represented