JPFQ and Child Support Registrar (Child support second review)

[2022] AATA 1117

JPFQ and Child Support Registrar (Child support second review) [2022] AATA 1117 (10 May 2022)

Division:GENERAL DIVISION

File Number:          2021/4710

Re:JPFQ

APPLICANT

AndChild Support Registrar

RESPONDENT

AndFGYY

OTHER PARTY

DECISION

Tribunal:Member R West

Date:10 May 2022

Place:Melbourne

This Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 16 June 2021.

...........................[sgd]............................................

Member  

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 ASSESSMENT – application for review – child care percentage – alleged change of percentage – appeal from decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal - decision affirmed.

Legislation

Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018

Cases

F v LP [2015] AATA 321
Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562
Polec v Stalker (2011) 253 FLR 339
SHQY and Child Support Registrar (Child support second review) [2021] AATA 930

Secondary Materials

Guides to Social Policy: Child Support Guide

REASONS FOR DECISION

Member R West

10 May 2022

1. This is an application to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal, dated 16 June 2021. The Social Services and Child Support Division affirmed a decision of an authorised objections officer, dated 2 March 2021, not to vary the care percentage to be attributed to each parent in respect of two of their children, D and W, during the relevant period.

   BACKGROUND

2. The Applicant (Father) and the Other Party (Mother) are the separated parents of three children, G, D and W.

3. On 20 April 2020, a delegate of the Respondent revoked existing care percentage determinations in respect of the three children[1] and replaced them with a new care percentage determination to the effect that:

   (a)for the child G - 100/0 per cent in favour of the Mother from 28 October 2019; and

   (b)for the children D and W – 67/33 per cent in favour of the Mother from 20 July 2017.

   [1] T8, T11, T34 andT72

4. The decision was made in response to a care change notification made by the Mother on 12 December 2019.[2] The basis of this determination was the making of parenting orders under the Family Law Act 1975 (Cth) on 20 July 2017 (Court Orders).

   [2] T34 at p.161

5. By letter dated 27 November 2020[3] (received on 11 December 2020), the Father objected to both parts of the delegate’s determination.[4]

   [3] T53 at p.218

   [4] The Father claimed to have lodged the objections by letter dated 12 May 2020 (T53/219). However, the Child Support Registrar did not receive this document (T8 at p.6).

6. In support of his objection applications, the Father provided a breakdown of the nights each of the children had spent with him between July 2019 and November 2020.[5]

   [5] T53 at p.221

7. The Father’s letter, dated 27 November 2020, also contained submissions in support of a change of assessment application based on the party’s income. That issue is outside the scope of this review.

8. On 2 March 2021, an authorised objections officer:

   a)disallowed the Father’s objection concerning G[6]; and

   b)allowed in part the Father’s objection concerning D and W but did not change the care percentage assessment in respect of those two children.[7]

   [6] T8 at p.95

   [7] T11 at p.101

9. The objections officer determined that the date of notification was 25 July 2017, as this was the date when the Registrar first became aware of the change in care. The date of effect of the care decision was therefore 20 July 2017 (Objection Decisions).

10. The Father received the Objection Decisions on 10 March 2021.[8]

    [8] T71 at p.275

11. On 23 March 2021, the Father lodged an application with the Social Services and Child Support Division of this Tribunal for a first tier review of the Objection Decision[9] (AAT 1 Review).

    [9] T4 and T5 at p.72

12. The Tribunal conducted a hearing in relation to the AAT 1 Review on 16 June 2021. At the hearing, the Father confirmed that he accepted the delegate’s determination that G was in the sole care of the Mother from 28 October 2019[10]; and he did not press the objection in relation to G.[11] 

    [10] T34 at p.160

    [11] T2 at [12]-[13]

13. The Tribunal affirmed the Objections Decision in respect of D and Won 16 June 2021.[12] (AAT 1 Decision).

    [12] T2, p.7 at [2]

14. On 14 July 2021, the Father applied to the General Division of the Tribunal for review of the AAT1 Decision as it applied to the determination for the children D and W[13] (AAT 2 Application).

    [13] T1

    HEARING

15. A hearing of the AAT 2 Application was conducted by telephone on 21 December 2021.  The Mother and the Father were self-represented. The Respondent was represented by Mr Samuel Cummings, a solicitor with Sparke Helmore. Mr Cummings’ appearance was confined to assisting the Tribunal in eliciting evidence, and identifying and applying the relevant legislative provisions to the evidence.

16. In conducting the review of the AAT 2 Application, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) (T Documents), and the oral submissions of the Mother and the Father.

    RELEVANT LEGISLATION

17. The legislation relevant to the determination of the Application is:

    a.Child Support (Assessment) Act 1989 (Cth) (Assessment Act);

    b.Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act); and

    c.AAT Act.

18. The Tribunal has also had regard to the Child Support Guide (the Guide), where relevant.

    ISSUES

19. The issues for determination in this matter are:

    (a)whether the existing care determination must or should be revoked pursuant to ss 54F, 54G or 54H of the Assessment Act;

    (b)if so, what percentage of care should be determined for the Mother and the Father under s 49 and/or 50 of the Assessment Act; and

    (c)the date of effect of the percentage of care determination.

    EVIDENCE

20. The issues for determination essentially turn on a factual assessment of the pattern of care.

21. The basis of the authorised objections officer’s determination, as affirmed in the AAT 1 Decision, was the making of the Court Orders on 20 July 2017[14] which the delegate calculated provided for the children D and W to spend 122 nights per year (33%) with the Father.[15] The Tribunal noted in the AAT 1 Decision that:

    The Agency says based upon the Orders the pattern of care is that [the Father] has 122 nights of care per annum; this is comprised of 42 nights over the school holidays and 80 nights over the school term.

    [14] T21

    [15] T24 at pp.137-140

22. Under the terms of paragraph 5 of the Court Order,[16] D and W were to spend time with the Father as follows:

    a.in week 1 from 4 pm Friday to Monday morning during school term;

    b.in week 2 from Thursday afternoon to Friday morning during school term;

    c.one week during each school term holidays at times to be agreed;

    d.one half of the summer holidays in blocks of one week;

    e.on Father’s Day each year from 4 pm Saturday to commencement of school on the following Monday; and

    f.from 6 pm on Christmas Day until 6 pm on Boxing Day, and each alternate year from 6 pm Christmas Eve to 6 pm Christmas Day.

    [16] T21 at pp.123-124

23. The Father’s principal submission was that the correct interpretation of the Court Order provided him with care of D and W at least 129 nights per year; and on this basis his care percentage should be 35%. 

24. The Father submitted that the delegate had incorrectly interpreted the Court Orders in calculating that he had care of D and W 122 nights per year, as the delegate had not taken into account the fortnightly cycle specified in the Court Orders and the start and finishing dates of school holidays.  Therefore, the correct implementation of the Court Order resulted in him having D and W for 129 nights per year, representing 35% care. The Father relied on a written submission prepared for the hearing of the AAT 1 Review,[17] in which he set out his assertions as follows:

    [17] T73 at pp.304-320

    A correct review of the nights of care AS ORDERED will show the father has more nights of care than the 122 nights calculated by CSA in their simplified summary calculation. The additional nights occur in the following situations:

    1. Where school holidays commence in the week following week 1 of the order: (father has 6 nights of care in a fortnight instead of the calculated 4)

    i. 10th & 17th April

    ii. 10th & 17th July,

    iii. 11th & 18th September

    2. Where the school holidays run beyond 4pm Friday in the second week (Additional 3 nights in school holidays)

    i. 10th April

    ii. 10th July

    iii. 2nd October, and

    3. Where a Thursday night in week 2 leads directly into school holidays the following day

    i. Thursday 17th September

    4. The CORRECT count of nights of care for (D and W) with the father AS ORDERED is 129 nights or 35.3%. (“Shared Care”)

25. The written submission included a calendar from February 2020 to January 2021,[18] setting out the school holidays and indicating the nights of care of D and W which the Father asserted he was entitled to under the Court Order.

    [18] T73 at p. 313

26. The arrangements under the Court Order specify nights of care in discrete periods, either during the school terms or during school holidays, without any obvious overlap. A close analysis of the information in the calendar provided by the Father discloses that the Father calculation includes nights of care during the school holidays under the alternate week provisions reserved for school terms in the Court Order. Thus, the Father calculations include the periods 10-12 April, 10-12 July, 2-4 October (9 nights) as nights of care within a period of school holidays, in addition to the periods provided under paragraph 5 (iii) and (iv) of the Court Order for the relevant school holidays.

27. The Tribunal is therefore not satisfied that the correct count of nights of care of D and W is 129 as asserted by the Father. Applying the terms of the Court Order, the Father’s care is comprised of 3 weeks of school term holidays, taken as 7 nights each week (21 nights), 3 weeks of summer holidays at 7 nights each week (21 nights), and 4 nights per fortnight for 20 fortnights during school terms (80 nights). This gives a total of 122 nights per year. It is possible that in some years there may be an additional night or two from the provisions for Father’s Day (2 nights) and Christmas (1 night), but there is also a likelihood that those nights would overlap with the other nights of care. The Tribunal is satisfied that a care percentage for D and W of 33% for the Father and 67% for the Mother is consistent with the Court Order.

28. The Father also raised in his review application that his actual care of D and W since July 2017 had exceeded the 129 nights provided for by the Court Order. In a letter to the Respondent dated 27 November 2020,[19] the Father included a table setting out the number of nights of care he claimed to have had the care of D and W each month from July 2019 to November 2020. It asserts that D and W were actually in the Father’s care for 134 nights between July 2019 and June 2020. In a separate table, the Father asserted that in various years the actual nights of care for D and W varied from 138 to 142.

    [19] T53 at pp. 218-223

29. The Mother acknowledged that the Father had some additional nights of care for D and W but in her submission to the AAT 1 dated 31 May 2021,[20] said that with the exception of some nights when the Father kept the children without her consent, contrary to the Court Order, D and W had stayed 122 nights per year with the Father since July 2017, consistent with the Court Order. Her assertion was corroborated by her father in a separate statement included in the T Documents.[21]

    [20] T75 at p.331

    [21] T74 at p.328

30. Based on the evidence of both parents, the Tribunal is satisfied that the Father had the care of D and/or W for some nights outside of the requirements of the Court Order, although neither parent’s evidence established that there was any particular pattern to the additional nights. Both parents recognised that the requirements of the Court Order set the framework for their respective care. The Mother submitted that the parents had applied the Court Order since July 2017.   The Tribunal noted in the AAT 1 Decision that since 2017 the Father had taken no issue with the Agency’s calculation of the nights in care, and that he had only recently put forward an alternative calculation of the nights in care.[22] The decision notes further that the Father confirmed with the Respondent on 22 August 2017 that care was taking place as per the Court Order.[23]

    [22] T2 at p.10 at [18]

    [23] T2 at p.10 at [19]

31. While the Tribunal has accepted that it is desirable to base decisions regarding care percentages on actual evidence of what occurred during a care period,[24] it is relevant to note that the term ‘pattern of care’ is not a rigid concept. The Tribunal stated in Parent 1 and Child Support Registrar and Parent 2:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.[25]

    [24] F v LP (Child Support) [2015] AATA 321

    [25] [2013] AATA 562 at [33]

32. Having regard to these matters, the Tribunal is not satisfied on the evidence that there was an actual pattern of care from July 2017 which was different to the pattern determined on the basis of the Court Orders, or that the pattern of care changed at any time after July 2017. Accordingly, the Tribunal is not satisfied that there is a proper basis to revoke the existing determination. The correct and preferrable decision is to affirm the decision under review.

    DECISION

    The Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty-one) paragraphs are a true copy of the reasons for the decision herein of Member Richard West.

..............[sgd]..............................................

Associate

Dated:    10 May 2022

Date(s) of hearing:	21 December 2021
Applicant representative:	Self-represented
Other Party representative:	Self-represented
Respondent representative:	Mr Samuel Cummings
Solicitors for the Respondent:	Sparke-Helmore