JWTJ and Child Support Registrar (Child support second review)
[2024] AATA 630
•5 April 2024
JWTJ and Child Support Registrar (Child support second review) [2024] AATA 630 (5 April 2024)
Division: GENERAL DIVISION
File Number(s):2020/4657
Re:JWTJ
APPLICANT
AndChild Support Registrar
RESPONDENT
AndZWGB
OTHER PARTY
DECISION
Tribunal:Senior Member Dr Linda Kirk
Date:5 April 2024
Place:Sydney
The Reviewable Decision dated 14 July 2020 is affirmed.
....................................[SGD]....................................
Senior Member Dr Linda Kirk
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 – care period – consideration of actual care – adhering to parenting plan – determination of new percentages of care – conflicting evidence – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act 1988
CASES
BYKM and Child Support Registrar (Child support second review) [2022] AATA 70
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533
F and LP (Child Support) (‘F and LP’) [2015] AATA 321
Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
Harpley and Secretary, Department of Social Services (Social services second review) [2020] AATA 2052
JDTX and Child Support Registrar (Child support second review) [2023] AATA 3609
KMDB and Child Support Registrar (Child support second review) [2019] AATA 5536
Marson and Marson (Child support) [2021] AATA 1001
Norouz and Secretary, Dept of Social Services (Social services second review) [2018] AATA 2712
P v Child Support Registrar [2013] FCA 1312
Parent A and Child Support Registrar [2013] AATA 562
Polec & Staker & Anor [2011] FMCAfam 959
QWKW and Child Support Registrar [2021] AATA 2060
SHQY and Child Support Registrar [2021] AATA 930
Vendrell and Secretary, Department of Social Services [2014] AATA 22
Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159
XQTJ and Child Support Registrar (Child support second review) [2023] AATA 50
SECONDARY MATERIALS
Department of Social Services, Child Support Guide (Guides to Social Policy Law, version 4.69, 6 February 2023)
REASONS FOR DECISION
Senior Member Dr Linda Kirk
5 April 2024
BACKGROUND
JWTJ (‘the Applicant’) and ZWGB (‘the Other Party’) are the separated parents of their son (AAP) born in 2003.[1]
[1]Section 37 T-Documents, T2, 7.
On 9 February 2015, parenting orders were made by consent in the Federal Circuit Court of Australia at Canberra (‘the Parenting Orders’).[2] The Parenting Orders provided for the Applicant and the Other Party to have equal shared parental responsibility for AAP, for AAP to live with the Other Party, and spend time with the Applicant for four nights per fortnight, half holidays and on special occasions.
[2]Ibid, T5, 39-44.
From 1 February 2016, the existing percentage of care determination in respect of AAP was 67% to the Other Party and 33% to the Applicant (‘the Existing percentage of care determination’) based on the Parenting Orders.[3]
[3]Ibid, T24, 300.
On 10 February 2020, the Other Party notified Services Australia (‘the Agency’) of a change in the care arrangements of AAP. The Other Party asserted that her percentage of care of AAP was 100% from 1 August 2018 (‘the First notification’).[4]
[4]Ibid, T29, 348.
On 28 February 2020, the Applicant provided a response to the Agency in respect of the First notification. The Applicant claimed that from December 2017 to August 2018, AAP was an inpatient at Sydney Children’s Hospital (‘SCH’) and his percentage of care during this period was over 50% (‘the Second notification’).[5]
[5]Ibid, T16,163.
On 13 March 2020, an authorised officer of the Registrar made a care percentage decision (‘the Original decision’) that:
a)Revoked the Existing percentage of care determination under section 54F of the Child Support (Assessment) Act 1989 (Cth) (‘the Assessment Act’) with effect from:
(i) the date of notification, being 10 February 2020, in respect of the Other Party’s percentage of care; and
(ii) the date of event, being 1 August 2018, in respect of the Applicant’s percentage of care.
(b)Made a new percentage of care determination that the Other Party had a percentage of care of 100% from 1 August 2018.[6]
[6]Ibid, T19, 271-274.
The Original decision did not address the Second notification made by the Applicant.
By way of letter dated 22 March 2020, the Applicant objected to the Original decision.[7] In his correspondence, the Applicant again asserted that from December 2017 to August 2018 his percentage of care was over 50%.[8]
[7]Ibid, T21, 290-294.
[8]Ibid, T21, 292.
On 13 May 2020, an objection officer disallowed the Applicant's objection (‘the Objection decision’).[9] The officer found that the Other Party had a percentage of care of 100% in respect of AAP from 1 August 2018.[10] The Objection decision did not address the Second notification.
[9]Ibid, T24, 298-307.
[10]Ibid, T24,302.
On 15 May 2020, the Applicant lodged an application for first review in the Social Services and Child Support Division of the Administrative Appeals Tribunal (‘AAT1’).
On 14 July 2020, AAT1 varied the decision under review such that the Other Party's percentage of care be reflected as 100% and the Applicant’s percentage of care be reflected as 0% from 1 September 2018 (‘the Reviewable Decision’).[11] The Reviewable Decision did not address the Second notification.[12]
[11] Ibid, T2, 6-8.
[12] AAT1 noted that its review is a ‘point in time’ assessment and is limited to considering the pattern of care for AAP as of April 2018; other changes to the pattern of care before or after that time are the subject of separate decisions and determinations not presently before it.
On 3 August 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (‘the Tribunal’) for review of the Reviewable Decision.[13] In his application, the Applicant asserted that he had a percentage of care of 50% from 3 December 2017 to 31 August 2018.[14]
[13]Section 37 T-Documents, T1, 1-5.
[14]Ibid, T1, 4.
A hearing was conducted via MS Teams on 30 September 2021 and 20 November 2023. The Applicant and the Other Party were self-represented, gave oral evidence, and made submissions. The Respondent was represented by a solicitor, whose appearance was confined to assisting the Tribunal in eliciting evidence and identifying and applying the relevant legislative provisions to the evidence.
In conducting the review, the Tribunal has had regard to:
·Documents produced by the Respondent pursuant to section 37 of the AAT Act numbered T1-T30 and paginated pp. 1-386 (‘Section 37 T-Documents’) filed 21 January 2021
·Respondent’s Statement of Facts, Issues and Contentions dated 23 July 2021 (‘RSFIC’)
·Respondent’s Submissions dated 16 August 2023
·Applicant’s Statement of Facts, Issues and Contentions dated 25 August 2021 (‘ASFIC’)
·Applicant’s documents – see paragraph [51]
·Other Party’s Statement of Facts, and Contentions dated 14 September 2021
·Other Party’s documents – see paragraph [63]
·Oral evidence of the Applicant and the Other Party
LEGISLATION AND POLICY
The relevant legislative provisions are contained in:
a)the Assessment Act;
b)the Child Support (Registration and Collection) Act 1988 (Cth) (‘Collection Act’); and
c)the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
Policy advice contained in the Child Support Guide (‘the Guide’) is also relevant. While the Tribunal is not bound by the policy, to promote consistency in decision making the relevant policy should be followed unless there are cogent reasons to depart from its application: P v Child Support Registrar;[15] Re Drake and Minister for Immigration and Ethnic Affairs (No 2).[16] In Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (‘Gillson’),[17] the Tribunal found that it is appropriate to have regard to the Guide in contested cases of shared care:
[15][2012] FCA 1398, [3].
[16](1979) 2 ALD 634, 639-645.
[17] [2011] AATA 473, [11].
… The respondent has submitted that it is appropriate to have regard to Centrelink’s policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (‘the Guide’). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision- making.
Care
‘Care’ is not defined in either Act. The level of care provided by a person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.
The Guide provides the following guidance on determining whether care exists:[18]
[18]Child Support Guide, [2.2.1].
Determining whether care exists
An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
• To what extent the person has control of the child, including having overall responsibility for the child and making:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o arrangements 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.
Care period
The term ‘care period’ is given meaning under section 5(1) of the Assessment Act by reference to the terms of the sections in which it appears; namely, section 49(1)(a) and (b), and section 50(1)(a) and (b). Under these sections a ‘care period’ is not of any fixed duration – it is a period ‘the Registrar considers to be appropriate having regard to all the circumstances.’
Care arrangement
The term ‘care arrangement’ is defined in section 5 of the Assessment Act, which, when read together with the definition in section 3 of the A New Tax System (Family Assistance) Act 1999 (Cth) (‘Family Assistance Act’) and section 64B of the Family Law Act 1975 (Cth), relevantly includes parenting orders made by the Federal Circuit Court. The Parenting Orders are a care arrangement as defined under the Assessment Act.
Percentage of care
The Guide provides:[19]
[19]Guide, [2.2.1]
Percentageof care
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
…
Care will generally be worked out based on the number of nights that the child is
likely to be in the care of the person during the care period (CSA Act section 54A).
Care percentage decision
A ‘care percentage decision’ is defined in section 4 of the Collection Act:
‘care percentage decision’ means a decision as to the particulars of an administrative assessment, or as to the particulars of a notational assessment, to the extent that the decision involves (wholly or partly):
(a)a determination of a person's percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or
(b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.
Subdivision B of Division 4 of Part 5 of the Assessment Act contain the rules for determining a person’s percentage of care of a child. Sections 49 and 50 set out when a determination of a percentage of care must be made.
Section 49 of the Assessment Act, concerns circumstances where the responsible person has had no pattern of care for a child:
Subdivision B—Determination of percentage of care
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1)This section applies if:
(a)either of the following applies:
(i)an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii ) …
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b)…
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.
Section 50 of the Assessment Act concerns circumstances where a person has had a pattern of care for a child:
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1) This section applies if:
(a) either of the following applies:
(i)an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;
(ii)…
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) …
(2)The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4)Subsection (3) does not apply if section 51 applies in relation to the responsible person.
Section 51 of the Assessment Act provides for an interim care determination to be made:
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1) This section applies if:
(a) the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b) a care arrangement applies in relation to the child; and
(c) the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d) a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.
An interim care determination will only apply in limited circumstances. The Guide provides:[20]
[20]Ibid, [2.2.4].
[g]enerally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply.
Actual care
Section 54A of the Assessment Act provides a method for determining the actual care of a child. The section relevantly states:
(1)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.
(2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.
(4)This section does not limit section 50, 51, 53B or 54.
Revocation of an existing care percentage determination
A new care determination must be made if the decision-maker revokes an existing care percentage determination that was made under sections 49 or 50 of the Assessment Act.
The catalyst for the making of a care percentage decision is the Registrar being notified, or otherwise becoming aware that the existing percentage of care determinations for each parent do not reflect the actual care of the child: sections 54F(1)(a), 54G(1)(d) and 54H(1)(a) of the Assessment Act. Upon being notified, or otherwise becoming aware, of the purported change, if the decision maker is satisfied that one of sections 54F, 54G or 54H of the Assessment Act is satisfied, the existing percentage of care determination for each parent must or may be revoked (revocation determination). Upon the making a revocation determination, the decision maker must then proceed to make new percentage of care determinations under sections 49 or 50 of the Assessment Act in respect of the relevant care period for each parent.
The provisions relevant to the revocation of an existing care percentage determination are contained in Part 5, Division 4, Subdivision C of the Assessment Act. Section 54F and section 54G provide for circumstances when a percentage of care determination must be revoked:
Subdivision C - Revocation and suspension of determination of percentage of care
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1) The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, 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
(b)the Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and
(c)section 54G does not apply; and
(d)subsection (2) applies in relation to the individual.
Note: The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
54G Determination must be revoked if there is less than regular care etc.
(1)If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
Note:The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
(2)The revocation of each determination takes effect:
(a)if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or
(b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.
(3)To avoid doubt, a responsible person never establishes a pattern of care if:
(a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and
(b)the responsible person does not establish that pattern during that particular period.
In relation to section 54G, ‘regular care’ is defined by section 5(2) of the Assessment Act to mean that the relevant person has a ‘percentage of care for the child during a care period is at least 14% but less than 35%’.
Section 54H confers a discretionary power on the Respondent to revoke a percentage of care determination:
54H Registrar may revoke a determination of a responsible person’s percentage of care
(1)The Registrar may revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:
(a)the Registrar or Secretary is notified, or otherwise becomes aware, 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
(b)the Registrar is satisfied that, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and
(c)sections 54F, 54FA and 54G do not apply; and
(d)subsection (2) applies in relation to the individual.
Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2)This subsection applies in relation to a responsible person if:
(a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(c)all of the following apply:
(i)section 51 did apply in relation to the responsible person;
(ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;
(iii)an interim period for the earlier determination does not currently apply;
(iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.
Note:For when section 51 does not apply, see section 53.
(3)The revocation of the determination takes effect at the end of:
(a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or
(b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:
(i)the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or
(ii)the responsible person’s care of the child has reduced—the day before the change of care day.
Cost percentages
A person’s cost percentage is determined by reference to their care percentage for the child and is to be ascertained in accordance with the table in section 55C of the Assessment Act:
Working out cost percentages
A parent’s or non‑parent carer’s cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent’s or non‑parent carer’s (as the case requires) percentage of care for the child for the day.
Cost percentages Item Column 1
Percentage of care
Column 2
Cost percentage
1 0 to less than 14% Nil 2 14% to less than 35% 24% 3 35% to less than 48% 25% plus 2% for each percentage point over 35% 4 48% to 52% 50% 5 more than 52% to 65% 51% plus 2% for each percentage point over 53% 6 more than 65% to 86% 76% 7 more than 86% to 100% 100%
ISSUES FOR DETERMINATION
The key issue for the Tribunal to determine is the appropriate percentage of care between the Applicant and the Other Party in respect of the First and Second Notifications.
The issues for determination for both Notifications are:
1) Did the Applicant’s care reflected in the Existing care percentage determination change? If so, when did the care change?
2) What is the appropriate care period?
3) Was there a pattern of care during the care period and, if so, what was the Applicant’s care percentage during that period?
4) Does the Applicant’s care percentage during this period correspond with that determined by the AAT1? If it does, the AAT1’s decision should be affirmed.
5) If it does not, the AAT1’s decision should be set aside, and a new care percentage determination should made as follows:
a) If the care that actually occurred during the care period corresponded with the Applicant’s existing care percentage determination, the Existing care percentage determination should not be revoked.
b) If the Applicant had a different percentage of care in the care period to the Existing care percentage determination, the Tribunal must determine which of sections 54F, 54G or 54H is applicable.
c) If the Tribunal revokes the Existing care percentage determination under any of these sections, it must make a new care percentage determination and confirm the date of effect of that determination.
6) If a new care determination is made, what is the date of effect of that new care determination under section 87AA of the Collection Act.
EVIDENCE AND SUBMISSIONS
Applicant
The Applicant’s evidence is that on 3 December 2017, he transported AAP and the Other Party from Canberra to the SCH following AAP being diagnosed with Leukaemia.[21]
[21] ASFIC, [1]; Transcript of proceedings, 30 September 2021, 16-17.
The Applicant provided the following records of AAP’s attendance as an inpatient and outpatient at SCH during the period 3 December 2017 to 31 August 2018:
The Applicant’s evidence is that he shared a room with AAP and the Other Party at Ronald McDonald House (‘RMH’) from 6 December 2017 until the end April 2018.[22] He claims that during this period he:
[22] ASFIC, [1]; Transcript of proceedings, 30 September 2021, 6-7.
· worked full-time from ‘home’ at RMH[23]
[23] ASFIC, [4]; Transcript of proceedings, 30 September 2021, 7.
· provided full-time joint care (50%) to AAP[24]
[24] ASFIC, [2].
· paid around 80% of AAP’s expenses.[25]
[25] ASFIC, [3]; Transcript of proceedings, 30 September 2021, 21.
During this period, the Applicant and the Other Party departed from the Parenting Orders made by the Federal Circuit Court on 9 February 2015.[26]
[26]Section 37 T-Documents, T5, 39-44; Transcript of proceedings, 30 September 2021, 22.
The Applicant told the Tribunal that during the two-week vacation period in December 2017, both he and the Other Party had commitments in Canberra which required them to travel back there. When this occurred, the other parent remained with AAP at RMH to care for him.[27]
[27] Transcript of proceedings, 30 September 2021, 7, 17, 18.
Between December 2017 and April 2018, AAP attended SCH as an inpatient for treatment or if he was very unwell, and either the Applicant or the Other Party would take him from RMH to SCH.[28]
[28]Ibid, 20.
The Applicant’s evidence is that during the period December 2017 to April 2018 when he came to Sydney for AAP’s medical appointments, he stayed at RMH with the Other Party and AAP. The Other Party took care of AAP at night, and he would take care of him during the daytime, so that the Other Party could get AAP’s clothes washed and attend to other tasks.[29]
[29] Transcript of proceedings, 30 September 2021, 43.
The Applicant’s leave records indicate that between 9 January 2018 and 29 March 2018 he took 13 days leave from his employment:
From the end of April 2018, the Other Party did not allow the Applicant to continue to share the room at RMH, and he arranged alternative accommodation.[30] During this period the Applicant:
[30] ASFIC, [5]; Transcript of proceedings, 30 September 2021, 7.
· stayed at hotel accommodation in Sydney[31]
[31] Transcript of proceedings, 30 September 2021, 7.
· sometimes stayed overnight at SCH with AAP[32]
[32]Ibid, 7, 9, 11.
· bought food for AAP and took him out to lunch, dinner and the movies[33]
[33]Ibid, 7.
· organised religious blessings in Sri Lanka for AAP[34]
[34]ASFIC, [6]; Transcript of proceedings, 30 September 2021, 39.
· travelled between Sydney and Canberra multiple times to look after AAP[35]
[35] ASFIC, [6]; Transcript of proceedings, 30 September 2021, 7.
The Applicant’s leave records for the period 11 April 2018 to 28 June 2018 state that he took 33 days leave from his employment:
The Applicant told the Tribunal that he could visit AAP when he was in hospital at SCH and could stay until 9pm and he could then return around 7am the next morning and take over from the Other Party. If he provided overnight care, he would stay overnight with AAP at SCH.[36] The Applicant does not have evidence of the number of nights he stayed overnight with AAP during this period.
[36] Transcript of proceedings, 30 September 2021, 14.
The Applicant’s leave records for the period 4 July 2018 to 18 September 2018 record that he took 14 days leave from his employment:
The Applicant told the Tribunal that during the period 7 December 2017 to 25 July 2018 he spent approximately $11,000 on expenses related to AAP, including the accommodation costs he incurred after he was no longer able to stay at RMH.[37]
[37] Transcript of proceedings, 20 November 2023, 9.
When AAP’s maintenance period commenced in September 2018, the Applicant was not permitted by the Other Party to see AAP in contravention of the Parenting Orders.[38]
[38]ASFIC, [7].
The Applicant provided the following evidence in support of the care arrangements:
a)Email from Ms Simone Daher (CEO, RMH) to the Applicant dated 18 January 2021
b)Protocol IIA and IIB of AP
c)Letter of Support by Applicant’s wife, SP, dated 21 March 2021
d)Applicant’s leave forms
e)Letter of Support from Ms Gemma Gleeson, Paediatric Social Worker, dated 20 December 2017
f)Letter of Support by Ms Gemma Gleeson to Finance Manager, Canberra Grammar School dated 16 January 2018
g)Letter of Support by Ms Gemma Gleeson dated 2 March 2018
h)Commonwealth Bank Statements from 26 June 2018 to 25 July 2018
i)Commonwealth Bank Statements from 25 May 2018 to 25 June 2018
j)Commonwealth Bank Statements from 26 July 2018 to 24 September 2018
k)Commonwealth Bank Statements from 25 April 2018 to 24 May 2018
l)Commonwealth Bank Statements from 27 March 2018 to 24 April 2018
m)Commonwealth Bank Statements from 24 January 2018 to 26 March 2018
n)Commonwealth Bank Statements from 24 November 2017 to 23 January 2018
o)AAP’s Hospital Attendance Record
p)Email from Applicant to Wendy Londal, Clinical Nurse Consultant, dated 11 October 2018 enclosing:
oAmended Family Violence Order dated 26 September 2019;
oCourt Order dated 26 August 2019; and
oChild Support Orders dated 9 February 2015.
q)Email from the Applicant to Annette Schmahl dated 11 October 2019
r)Statutory Declaration of Applicant’s wife, SP dated 6 February 2019
s)Email from the Applicant to Legal Aid dated 28 October 2019 enclosing:
oNotice of Risk dated 19 September 2019;
oResponse to Initiating Application dated 19 September 2019; and
oAffidavit of Applicant dated 19 September 2019.
t)Refusal Order dated 16 September 2021
u)AFP Voice Notes 1-5
Other Party
The Other Party’s evidence is that she travelled to Sydney with AAP and the Applicant following AAP’s Leukaemia diagnosis on 3 December 2017.[39]
[39] Transcript of proceedings, 30 September 2021, 24.
Between the period 3 December 2017 and 24 December 2018, the Other Party used all her annual leave, personal leave, long service leave and additional leave provided by her employer. She then went on reduced pay so that she was able to be available to take care of AAP. She claims she ‘looked after [AAP] 100% from March 2018.’[40]
[40] Other Party’s SFIC, 1.
The Other Party’s leave records for the period 4 December 2017 to 24 December 2018 are as follows:
55.
Description
*Begin Date
End Date
Duration
Hours
Duration Months
Carers Leave WMC Full Pay
04/12/2017
14/12/2017
67.5
Annual Leave Full Pay
15/12/2017
15/12/2017
7.5
Annual Leave Full Pay
19/12/2017
22/12/2017
30
Carers Leave WMC Full Pay
03/01/2018
19/01/2018
95.09
Annual Leave Full Pay
22/01/2018
05/02/2018
75
Long Service Leave - FT FP 06/02/2018 06/03/2018 157.5 1.033333 Exceptional Circumstances Full Pay
07/03/2018
30/04/2018
262.5
Long Service Leave - FT FP 01/05/2018 08/05/2018 45 0.266666 Annual Leave Full Pay
09/05/2018
09/05/2018
2.5
Annual Leave Full Pay
10/05/2018
10/05/2018
2.5
Annual Leave Full Pay
11/05/2018
11/05/2018
2.5
Annual Leave Full Pay
14/05/2018
14/05/2018
2.5
Carers Leave WMC Full Pay
15/05/2018
18/05/2018
30
Annual Leave Full Pay
21/05/2018
21/05/2018
2.5
Annual Leave Full Pay
22/05/2018
22/05/2018
2.5
Annual Leave Full Pay
23/05/2018
23/05/2018
2.5
Annual Leave Full Pay
24/05/2018
24/05/2018
2.5
Annual Leave Full Pay
25/05/2018
25/05/2018
2.5
Annual Leave Full Pay
28/05/2018
01/06/2018
30
Carers Leave WMC Full Pay
05/06/2018
06/06/2018
13.1
Carers Leave WMC Unpaid
06/06/2018
06/06/2018
1.9
Annual Leave Full Pay
07/06/2018
07/06/2018
7.5
Annual Leave Full Pay
08/06/2018
08/06/2018
7
Long Service Leave - FT FP
12/06/2018
27/07/2018
1.533333
Exceptional Circumstances Full Pay
30/07/2018
07/09/2018
225
Carers Leave WOMC Full Pay
02/10/2018
03/10/2018
15
Annual Leave Full Pay
12/10/2018
12/10/2018
7.5
Carers Leave WMC Full Pay
15/10/2018
15/10/2018
1
Personal Leave WMC Full Pay
18/10/2018
18/10/2018
6
Carers Leave WMC Full Pay
07/11/2018
07/11/2018
6
DECA Day
11/12/2018
11/12/2018
7.5
Annual Leave Full Pay
12/12/2018
14/12/2018
22.5
The Other Party’s evidence is that she and the Applicant shared a room at RMH from 4 December 2017 until around 4 January 2018 when the Applicant returned to Canberra for work. They shared AAP’s expenses during this period.[41]
[41]Section 37 T-Documents, T10, 87, [51].
The Applicant stayed in Canberra for two weeks and then returned to Sydney and stayed in the room at RMH and worked from ‘home’ for one week.[42] The Applicant travelled to Singapore from 20-28 January 2018.[43] He returned to stay with AAP and the Other Party for two weeks in February 2018.[44] Following ‘two unpleasant incidents’ in the RMH room, the Other Party ‘had to do something’ and, with the help of RMH staff, she ‘stopped’ the Applicant coming to RMH.[45]
[42] Transcript of proceedings, 30 September 2021, 27.
[43]Ibid, 28.
[44]Ibid, 32; Letter, [55(k)].
[45] Transcript of proceedings, 30 September 2021, 32.
On 14 March 2018, a solicitor from the NSW Legal Aid Family Law Early Intervention Unit wrote to the Applicant as follows:[46]
[46]Ibid; Section 38 T-Documents, T10, 118ff.
…
We understand that both you and [the Other Party] originally reside in Canberra and have had to obtain accommodation in Sydney through the Ronald McDonald House. We are instructed that on 11 March 2018 you vacated the accommodation at Ronald McDonald House in accordance with [AAP’s] wishes. We understand that the prior living arrangements were having a detrimental Impact on [AAP] and appreciate that you have moved out of the accommodation.
[The Other Party] does not wish to interfere with your ability to maintain a meaningful relationship with [AAP] and understands the Importance of your involvement in [AAP’s] life and wellbeing.
It is [the Other Party’s] intentions to continue following the [Federal Circuit Court] Orders as much as possible, however, due to [AAP’s] illness and significant change in circumstances, we note that certain parts of the Orders are difficult to follow as they do not reflect what is in [AAP’s] best Interests and address his current medical needs. As such [the Other Party] proposes that the following temporary changes be made regarding [AAP’s] care while is he undergoing the Protocol M Treatment:
1.While [AAP] is in Sydney at Sydney Children's Hospital in Randwick you spend time with him during the day, but not overnight
2.That [the Other Party] not be forced to vacate her accommodation at Ronald McDonald House in Sydney while you are spending time with [AAP]
It is our understanding that the Ronald McDonald House has been allocated to [AAP] and his primary carer. [The Other Party] is his primary carer and as you are both separated, it is your responsibility to obtain alternate accommodation.
3.That you and [AAP] maintain liberal telephone contact. However, if [AAP] is undergoing treatment, he is not obliged to answer your telephone calls,
4.That you contact the clinical nurse, Wendy Londal on XXXX XXXX in the event that you wish to obtain details about Akash's medical condition.
[The Other Party] is keen to ensure that, despite your separation, you both can maintain an amicable relationship when dealing with [AAP] and his needs. However, it is not [the Other Party’s] responsibility to provide you with daily updates on [AAP’s] medical condition and we would appreciate if you could contact the clinical nurse, Wendy Londal … to discuss [AAP’s] medical needs in the future.
5.That when [AAP] is in Canberra during his Protocol M Treatment, that he remain living with [the Other Party] as she is the primary carer.
This will allow him to resettle into his old lifestyle, meet his friends and settle back into the school term, from Monday, 19 March 2018, as he has been away from his normal lifestyle for more than 3 months now. We are instructed that [AAP] is very excited about meeting his friends and getting back to his old routine. However, we request that you allow him some time to resettle before your overnight contact with him resumes.
As and when [AAP] starts to feel better, your overnight time with [AAP] can recommence as per the Orders from a date agreed between you and [the Other Party].
We understand that [AAP] may be discharged from Sydney Children's Hospital at Randwick this week. If this is the case, [AAP] wishes to take [AAP] home to Canberra in accordance with his wishes.
[AAP] is at an age where his views will be given significant weight when his care arrangements are discussed and as such his wishes should be respected by both his parents.
We are further Instructed that on 7 March 2018 you swore at [the Other Party] and threw your mobile phone on the floor in the presence of [AAP]. It is not in [AAP’s] best interests to be dealing with his parents’ arguments while trying to stay positive during his treatment. He does not need to hear and physically witness arguments and violent outbursts from his parents. This Is having a detrimental impact on his wellbeing and his ability to get better. We hope both you and [the Other Party] are willing to refrain from such behaviour in the future.
Please note that [the Other Party] does not wish to seek additional child support from you based on this alternate arrangement.
[The Other Party] hopes that you both are able to come to an agreement about the ongoing care arrangements for [AAP] and she invites you to attend a Child Inclusive Mediation at the Family Relationships Centre in Deakin, ACT to discuss these matters.
We look forward to hearing from you.
…
When AAP’s first treatment was completed, he and the Other Party returned to Canberra.[47] They stayed in Canberra for two weeks, and then returned to Sydney for four weeks for AAP’s second treatment.[48]
[47] Transcript of proceedings, 30 September 2021, 31.
[48]Ibid..
The Other Party told the Tribunal that from April 2018, the Applicant came to AAP’s medical appointments and had day visits, but he did not stay overnight with AAP.[49]
[49]Ibid, 35.
The Other Party had a booking at RMH from 29 and 31 May 2018 and as she had to stay in the hospital with AAP, she gave permission for the Applicant to stay in the room for one night.[50]
[50] Letter, [55(k)].
The Other Party was asked why she did not notify the Agency of the change in care until 10 February 2020 (the First Notification). She said it was because she ‘was very scared of [the Applicant]’.[51] In January 2019, an interim Family Violence Order was issued against the Applicant for the Other Party’s protection, and the final order was issued on 4 April 2019 by consent and without admission for a period of 24 months.[52] An Amended Family Violence Order was issued on 26 September 2019 for the same period of time and expired on 25 September 2021.[53]
[51]Transcript of proceedings, 30 September 2021, 25.
[52]Section 37 T-Documents, T8, 69-70.
[53]Ibid, T12, 145-146.
The Other Party provided the following evidence in support of the care arrangements:
a)Letter of Support by Ms Gemma Gleeson, Paediatric Social Worker, dated 20 December 2017
b)Email from Ms Simone Daher (CEO, RMH) to the Other Party dated 9 April 2021
c)Other Party’s Leave History dated 2 March 2021
d)Letter of Support by Ms Gemma Gleeson dated 19 June 2018
e)Letter of Support by Ms Gemma Gleeson to Finance Manager, Canberra Grammar School dated 27 July 2018
f)AAP’s In-Patient History
g)Other Party’s Credit Card Statements from 19 December 2017 to 16 February 2018
h)Other Party’s Credit Card Statements from 17 February 2019 to 19 April 2018
i)Other Party’s Credit Card Statements from 20 April 2018 to 19 June 2018
j)Other Party’s Credit Card Statements from 20 June 2018 to 19 September 2018
k)Letter of Support by Simone Dahmer (CEO, RMH) dated 16 March 2021
l)Email correspondence between the Applicant and the Other Party dated 20 January 2018
m)Email correspondence between the Applicant and the Other Party dated 28 January 2018
n)Email correspondence between the Applicant and the Other Party dated 20 March 2018
o)Email correspondence between the Applicant and the Other Party dated 28 April 2018
p)Email correspondence between the Applicant and the Other Party dated 4 May 2018
q)Email correspondence between the Applicant and the Other Party dated 21 May 2018
r)Email correspondence between the Applicant and Ms Gemma Gleeson from 5 April 2018 to 6 April 2018
CONSIDERATION AND REASONS
1. Jurisdiction
The Original decision made on 13 March 2020 was a ‘care percentage decision’ as defined within section 4 of the Collection Act, because it was a ‘decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partially) a determination of a person’s percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5’ of the Assessment Act. As such, the Original decision was reviewable on objection pursuant to section 80A of the Collection Act.
The Objection decision made on 13 May 2020, being a decision under section 87 of the Collection Act on internal review of the Original decision, was also a ‘care percentage decision’ in the terms of section 4 of the Collection Act. The Objection decision was reviewable by AAT1 on ‘AAT first review’ pursuant to item 2 of the table in section 89 of the Collection Act.
AAT1’s decision to affirm the Objection decision was a decision made under section 43(1) of the AAT Act. The Tribunal is empowered under section 96A(2)(b) of the Collection Act to review the AAT1 decision. It provides:
Application for AAT second review
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
(a)a decision under section 92 to refuse an extension application;
(b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c)a decision under subsection 95N(2) to make, or not to make, a determination.
The Tribunal’s jurisdiction was properly invoked by the application for review, which was lodged within the 28-day period prescribed by section 29(2) of the AAT Act.
The Tribunal is satisfied that, consistent with the findings of Justice Farrell in Child Support Registrar v DQFY (DQFY),[54] it has jurisdiction to determine multiple care changes in a single decision,[55] where the evidence before it supports such a finding. Her Honour found that the Tribunal did not need to make ‘two separate determinations’ and instead, if the evidence before the Tribunal establishes that there was a subsequent change in the care percentages provided by the parties, the Tribunal can ‘bifurcate’ the determination so there is more than one care percentage for the single care period.[56] The approach adopted by the Tribunal will depend upon the factual findings made by the Tribunal. The Tribunal is required to evaluate the evidence before it to determine when the first of the care percentages provided by the parents within the care determination began and ended, and when the second care percentages began.[57] It will also need to consider the notifications of the change in care.
2. Substantive issues
Did the Applicant’s care reflected in the Existing care percentage determination change? If so, when did the care change?
[54][2023] FCA 601.
[55]Ibid, [92]-[93].
[56]Ibid, [96].
[57]Ibid, [96]-[97].
The Applicant contends that from 4 December 2017 his care of AAP increased from 33% as reflected in the Existing care percentage determination to 50% or joint care. He claims that he had this percentage of care until 31 August 2018. The Other Party contends that from 16 March 2018, her care of AAP increased from 67% as reflected in the Existing care percentage determination to 100%.
What is the appropriate care period?
The Tribunal must determine the appropriate care period for which a percentage of care is to be assigned to the Applicant.
Pursuant to section 49(1)(a) and (b), and section 50(1)(a) and (b), ‘care period’ is not of any fixed duration and is a period ‘the Registrar considers to be appropriate having regard to all the circumstances’. The Guide recognises that while a care period would generally be the 12-month period starting from the date the actual care of the child changed, there are some circumstances when determining the care over a shorter or longer care period may be more appropriate:[58]
[58] Guide, [2.2.1].
In Parent A and Child Support Registrar, Member Webb observed:[59]
… the conception of “care period” is sufficiently broad to encompass recurrent cycles or patterns of care for a child. It may commence or end upon a change of significance in the actual care of the child, whereby an existing arrangement or pattern of care for the child is broken or changed. The duration of a period of care is to be determined having regard to all the circumstances.
[59][2013] AATA 562 at [35].
The Tribunal finds that the appropriate care period relevant to the Second Notification is the period from 4 December 2017 when AAP commenced his treatment at SCH following his leukaemia diagnosis until the end of his chemotherapy treatment at SCH on 31 August 2018 (‘the First care period’).
The Tribunal finds that the appropriate care period relevant to the First Notification is the period from 1 September 2018 to 31 August 2019 being AAP’s maintenance period (‘the Second care period’).
3) Was there a pattern of care during the care periods and, if so, what was the Applicant’s care percentage during those periods?
a)Was there a pattern of care?
The concept of a ‘pattern of care’ is not defined in the Assessment Act. In XQTJ and Child Support Registrar (Child support second review) (‘XQTJ’), Senior Member Furnell explained:[60]
In essence … it would seem to be constituted by a flexible form or sequence of events with respect to a child’s care on which a prediction of future events might be based, albeit that minor departures from the normal care of a child will not give rise to a change in the pattern of care.
[60][2023] AATA 50 at [26] citing Parent A and Child Support Registrar [2013] AATA 562 at [33].
The Tribunal considered the meaning of the term ‘pattern of care’ in Parent A and Child Support Registrar and Parent B,[61] Member Webb observed:
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.
[61][2013] AATA 562 at [33].
Any care percentage determination in relation to the Applicant would be made under section 50 of the Assessment Act. Pursuant to that section, a person’s percentage of care of a child in a care period must be determined so that it ‘corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.’
In F and LP (Child Support) (‘F and LP’),[62] the Tribunal observed that in determining a pattern of care, regard should be had to what care actually occurred during the relevant care period. Senior Member Walsh observed:
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.
[62] [2015] AATA 321 at [54]-[58]; see also SHQY and Child Support Registrar [2021] AATA 930 at [45]; QWKW and Child Support Registrar [2021] AATA 2060 at [57]-[60].
The approach in F and LP was followed by the Tribunal in SHQY and Child Support Registrar (‘SHQY’).[63] Member Reitano stated:[64]
I am required to be satisfied about each responsible person’s pattern of care during such period (known as the ‘care period’) as I consider appropriate. Both sections refer to that satisfaction as being informed by what is known from the past or what is likely in the future: the words are retrospective in referring to the care that the responsible person, ‘has had’, or prospectively in referring to the care that the responsible person, ‘is likely to have’. In short, I am entitled in forming any satisfaction to have regard to the facts as they have unfolded or, alternatively, having regard to what is likely to happen.
Of course, what has happened in the past may in many cases cast light on what is likely to happen in the future. But where the facts are established and known from the past and are capable of forming the foundation for a rationally based decision, a more soundly based approach is to only have regard to those facts which are known in applying both sections. That accords in the view I take with sound administrative practice so far as it places reliance upon known facts in circumstances where they can be found. In this case it is also reliable because the pattern of care appears to have existed over very many years.
[63][2021] AATA 930.
[64] Ibid, [45]-[46].
In BYKM and Child Support Registrar (Child support second review),[65] Senior Member Morris considered that the approach in F and LP, the logic of which was expanded upon in SHQY, is the preferable path to take when considering actual care during a care period which has passed. This is because the Tribunal can examine evidence before it of who was actually caring for the subject child or children over a particular period of time, rather than what was the prospective arrangement for care.
[65][2022] AATA 70.
In this case, the Tribunal is being asked to make an assessment as to the care that each parent had of AAP during a period which has already passed. Having regard to the earlier Tribunal decisions referred to above, the Tribunal finds that the correct approach in this matter is to determine what care actually occurred during the relevant care period.
The parties disagree in relation to the actual care provided by the Applicant during the First care period. The Applicant claims he had 50% care of AAP during this period. The Other Party contends that from 16 March 2018 to 31 August 2018 she had 100% care of AAP.
The parties agree that the actual care provided by the Applicant during the Second care period is 0% and that provided by the Other Party is 100%.
b)How should the actual care provided by the Applicant be assessed?
In Polec & Staker & Anor (‘Polec’), Federal Magistrate Hughes held that in determining whether and to what extent a person has care of a child for the purpose of child support legislation, it is necessary to consider the following non-exhaustive list of factors:[66]
(a)to what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, childcare, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)to what extent does the person make arrangements for others to meet the needs of the child?
(c)to what extent does the person pay for the costs of meeting the needs of the child?
(d)to what extent does the person otherwise provide financial support for the child?
(e)to what extent does the child provide for his or her own needs or have those needs met from another source?
(f)to what extent is the child financially independent or financially supported from another source?
[66][2011] FMCAfam 959 at [56].
In P v Child Support Registrar,[67] Wigney J described the list in Polec as ‘a workable guide to assist decision-makers in determining the extent of care.’ His Honour continued:[68]
It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand.
[67][2013] FCA 1312.
[68] Ibid, [107].
His Honour did not consider that the decision is authority for the proposition that financial arrangements for meeting the child’s needs are ‘paramount considerations’. He continued:
Much will depend on the particular facts and circumstances of the matter at hand. The weight to be given to financial arrangements will differ in each case. In some cases financial considerations will be paramount, in some cases they may not.[69]
[69] Ibid, [108].
Section 54A of the Assessment Act provides a method for determining the actual care of a child. The actual care that a person has had, or is likely to have, of a child during a care period is generally worked out based on the number of nights in the care period that the child is, or is likely to be, in the care of the person. This is recognised in the Guide as follows:[70]
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care.
[70] Guide, [2.2.1].
The evidence before the Tribunal is that from 4 December 2017 to (approximately) 4 January 2018, the Applicant and the Other Party stayed with AAP in their shared room at RMH. The Applicant then returned to Canberra where he stayed for two weeks. He then returned to Sydney and stayed in the room at RMH and worked from ‘home’ for one week.[71] Following his return from an overseas trip from 20-28 January 2018, the Applicant returned to stay with AAP and the Other Party at RMH for two weeks in February.[72] According to the solicitor’s letter dated 14 March 2018, the Applicant was staying in the room at RMH on 7 March 2018 when he and the Other Party argued, and on 11 March 2018, he vacated the room in accordance with AAP’s wishes. Following AAP’s first treatment, he and the Other Party returned to Canberra where they remained for two weeks. When they returned to Sydney for AAP’s second treatment at the beginning of April, the Applicant did not reside at RMH, but instead found alternative accommodation. From 1 April 2018 to 31 August 2018, being a period of 153 days, the Applicant had only occasional overnight care of AAP when AAP stayed at SCH.
[71] Transcript of proceedings, 30 September 2021, 27.
[72]Ibid, 32; Letter [55(k)].
Based on the evidence before it, the Tribunal accepts the Applicant’s evidence that during the period 4 December 2017 to 4 January 2018, the Applicant had joint care of AAP for approximately 32 days, in February 2018 he had approximately 14 days of joint care, and in March 2018 he had approximately seven days of joint care, totalling approximately 53 days. On the remaining approximate 48 days, the Applicant was either in Canberra or overseas and had nil nights of overnight care of AAP. The Tribunal accepts the Applicant’s evidence that during the period 1 April 2018 to 31 August 2018 he did not stay with AAP and the Other Party at RMH, but he did occasionally stay with AAP overnight at SCH. The Patient Attendance Summary records that AAP was an inpatient at SCH for 20 nights from 1 April to August 2018. Assuming the Applicant stayed overnight with AAP at SCH for half of those nights, being ten nights, he had approximately 63 nights of care of AAP (53+10), during the period 4 December 2017 to 31 August 2018 (239 days), or approximately 26% care. As there are no records as to the exact number of nights the Applicant stayed overnight with AAP at the room at RMH or at SCH, and allowing for error in the above calculations, the Tribunal is satisfied that the Applicant did not have more than 33% care of AAP during the period 4 December 2017 to 31 August 2018.
Although section 54A refers to nights in care, there may be circumstances when applying nights in care is inappropriate or provides no guidance.[73] This is recognised in the Guide:[74]
However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8 am to 6 pm every weekday.
[73]P v Child Support Registrar [2013] FCA 1312.
[74] Guide, [2.2.1].
Accordingly, while the ‘starting point’ is nights in care,[75] in some circumstances ‘hours of care’ may be a more appropriate measure of the care provided:[76]
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or nonparent carer about the care they provide and why they think nights or hours is the better measure of care.
[75]JDTX and Child Support Registrar (Child support second review) [2023] AATA 3609 at [30].
[76] Guide, [2.2.1].
The Guide goes on to state:[77]
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
[77]Ibid.
In XQTJ, Senior Member Furnell noted that ‘hours of care’ is recognised in the Guide ‘as an alternative method of determining the extent of a person’s actual care of a child’.[78] With reference to earlier Tribunal decisions, he observed:[79]
[Hours of care] has, for instance, been used where a person’s financial responsibility for a child reflects a level of care in disconformity with care determined on the basis of nights in care. Hence, it has been said that the “cost associated with caring for a child…” might, in some cases, “… favour an assessment of the hours in care rather than nights in care.”
[78] [2023] AATA 50, [49].
[79] Ibid, [49] citing Drury and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 533 at [14]; Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 473 at [12]; Vendrell and Secretary, Department of Social Services [2014] AATA 22 at [34].
In Drury and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs (‘Drury’),[80] the applicant mother claimed that the father contributed nothing to the children’s day-to-day care and she paid 100 percent of these costs. In addition to the day-to-day costs of caring for her children, there were also indirect costs that the applicant incurred; it was necessary for her to have time off from work and, as a result, she suffered a reduction in her employment income. The father spent nothing on the children’s education and, because he lived in a caravan park, he looked after them at his sister’s house. His family had purchased clothing for the children, whereas the father had spent little or nothing on these items. The children had medical conditions which incurred ongoing expenses, to which the father had not contributed anything.[81]
[80][2010] AATA 533.
[81] Ibid, [10].
The Tribunal concluded that a more equitable outcome to reflect a greater financial contribution was achieved by calculating the hours of care rather than nights in care.[82] Senior Member Dunne stated:
… In my view and based on the evidence, the use of the nights in care method seems to me to yield a result which is inequitable. I believe it is preferable, in a case such as this, that an hours of care method is used. Moreover, in support of the use of hours of care and adopting the approach taken by Deputy President P E Hack SC in Re Warne and Secretary, Department of Family, Community Services and Indigenous Affairs and Anor [2006] AATA 159, I believe it is appropriate to have regard to the greater financial responsibility that has been cast upon Ms Drury by virtue of the shared care arrangements.
[82] Ibid, [14].
In Gillson the Tribunal observed:[83]
The Guide provides that, generally, a pattern of care is based on the “number of nights in a care period where an individual has the care of a FTB child”. The Guide also provides that “there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child”. I appreciate that in some cases it may be appropriate to assess care arrangements on an “hours in care” basis where a greater financial burden is placed on one parent.
[83][2011] AATA 473 at [12].
Senior Member Dr McDermott concluded that there was no evidence that one party had made a greater financial contribution which would warrant a departure from the ‘nights in care’ basis of calculation.[84]
[84] Ibid, [12].
In Vendrell and Secretary, Department of Social Services and Anor (‘Vendrell’),[85] the Tribunal found that Gillson did not suggest that the cost associated with caring for a child, or financial responsibilities, is more important than other considerations, only that in some cases, those aspects might favour assessment of hours of care rather than nights in care.[86] Senior Member Toohey referred to the Tribunal’s decision in Warne and Secretary, Department of Family, Community Services, Indigenous Affairs and Anor,[87] in which it was considered appropriate to have regard to the greater financial responsibility that the shared care arrangements had placed on the mother. Deputy President Hack said:[88]
It would be wrong, I think, to require the Secretary to undertake a minute examination and comparison of the expenditure of the parties on their children. Moreover it would in all likelihood certainly lead to greater disputation between the parties in an area where there is already sufficient disputation. But where, as I find to be the case here, there is a significant difference between the amounts expended by one party compared with the amounts expended by the other, an adjustment, again on a broad brush basis, seems to me to be plainly warranted. Here on the evidence Mrs Warne was expending on average $238.00 per month on the children’s medical and schooling needs. Over that period the evidence supports a finding that Mr Warne paid child support on an average of about $55.00 per month and I think likely he also paid occasional costs attributed with schooling.
The disproportion between these expenditures warrants, in my view, an adjustment of 5% in favour of Mrs Warne.
[85] [2014] AATA 22.
[86] Ibid, [34].
[87] [2006] AATA 159.
[88] Ibid, [27]-[28].
In Vendrell, Senior Member Toohey stated that she did not consider that Warne suggested ‘that financial responsibilities are a more important consideration than any other’ and noted it was ‘relevant that the Tribunal found a “significant difference” in financial contributions before adjusting respective percentages of care.’[89] The Tribunal determined that hours in care more accurately reflected the actual care arrangements rather than nights in care in the parties’ circumstances. This was because although Mr Vendrell had overnight care, Ms Vendrell had daily care for extensive periods:[90]
It is immediately apparent that the arrangement between Ms Vendrell and Mr Vendrell does not fit this pattern. On Mondays and Tuesdays when Mr Vendrell has overnight care, Ms Vendrell has care of the child from 7.30am to 5.30pm. On Fridays, when the child spends the night with Mr Vendrell, Ms Vendrell has, until recently, had care of him for four hours during the day while he was not at kindergarten. (In the last eight weeks of last term this reduced to three hours).
In these circumstances, I am satisfied that hours in care more accurately reflects the actual care arrangements than nights in care.
[89] Ibid, [38].
[90] Ibid, [44]-[45].
In XQTJ, the Tribunal found that financial responsibility is not determinative of the appropriate measure of the extent of a person’s care of a child. Senior Member Furnell stated:[91]
Costs of a child’s care or financial responsibility for such care is not, however, determinative as to the most appropriate basis upon which to measure the extent to which a child is actually in the care of a person. The underlying issue is whether hours in care “…more accurately reflects the actual care arrangements than nights in care” so that, “…in determining an equitable outcome, it may be appropriate in a particular case to consider the actual hours of care…”
[91] XQTJ, [50] citing Vendrell and Secretary, Department of Social Services [2014] AATA 22 at [45] and Norouz and Secretary, Dept of Social Services (Social services second review) [2018] AATA 2712 at [34].
Having regard to these earlier Tribunal decisions, particularly Warne and Vendrell, the Tribunal finds that the (approximate) $11,000 that the Applicant incurred from 4 December 2017 until 31 August 2018 in travelling to Sydney to attend AAP’s medical appointments, including his accommodation expenses from April 2018, and the money he spent on food and entertainment for AAP, is not such that there is a ‘significant difference’ in the parties’ financial contributions to warrant adjusting the respective percentages of care. The Other Party’s evidence, including her credit card statements, indicate that she spent a similar amount of money on AAP’s expenses, although she was not required to pay for accommodation during the First care period as she stayed with AAP at RMH.
Following the approach adopted by the Tribunal in Drury and XQTJ, the Tribunal also is not satisfied that the financial burden placed on the Applicant as a consequence of costs he incurred travelling from Canberra to Sydney and paying for alternative accommodation so that he could be present during AAP’s treatments warrants an assessment of the percentage of care on an ‘hours of care’ basis. It finds that the use of the ‘nights in care’ method does not yield a result which is inequitable, such that an ‘hours of care’ approach should be adopted to achieve a more equitable outcome.
(c) What was the Applicant’s care percentage during the care periods?
The Tribunal finds that the Applicant had actual care of AAP for approximately 63 nights during the First care period from 4 December 2017 to 31 August 2018 equating to a care percentage of 26% and the Other Party had 74% care during the care period.
There is no dispute between the parties that during the Second care period from 1 September 2018 to 30 August 2019 the Applicant had 0% care percentage and the Other Party had 100% care during the period.
4)Do the Applicant’s care percentages during the care periods correspond with the Existing percentage of care determinations?
AAT1 made a determination in relation to the Second care period that the Applicant had 0% care percentage and the Other Party had 100% care during the period. As the Tribunal has reached the same conclusion in relation to the Applicant’s percentage of care during this period, the Reviewable Decision is affirmed.
AAT1 did not make a determination in relation to the First care period. The Existing percentage of care determination in respect of AAP was 67% to the Other Party and 33% to the Applicant.
Should the Existing percentage of care determination be revoked?
The provisions relevant to the revocation of existing percentage of care determinations are contained in Part 5, Division 4, Subdivision C of the Assessment Act. Relevantly, the Tribunal:
a)must revoke the existing percentage of care determination pursuant to section 54F where a new percentage of care determination made under section 49 or 50 would change the cost percentage for the child; or
b)must revoke the existing percentage of care determinations pursuant to section 54G, where one parent notifies the Registrar within a period considered reasonable in the circumstances and the Registrar determines that the other parent, who was previously assessed to have at least regular care of the child, has had no care or a pattern of care less than regular care despite the child being made available; or
c)may revoke the existing percentage of care determination pursuant to section 54H, where a new determination, if it was to be made, would change the percentage of care and section 54F and section 54G do not apply.
It is appropriate for the Tribunal to first consider the applicability of section 54G. This is because as noted above, section 54H can only apply if sections 54F and 54G do not apply (section 54H(1)(c)), and section 54F can only apply if section 54G does not apply (ection 54F(1)(c)).
‘Regular care’ is defined by section 5(2) of the Assessment Act to mean that the relevant person has a ‘percentage of care for the child during a care period is at least 14% but less than 35%’. Section 54G is not applicable to the First care period as the Applicant had a percentage of care of 26%, and therefore he had ‘regular care’ of AAP.
Section 54G is relevant to the Second care period, as the Other Party notified the Registrar on 10 February 2020 that that the Applicant had no care of AAP from 1 August 2018. Accordingly, for section 54G to apply the Tribunal needs to find that the First Notification was made within a period considered reasonable in the circumstances.
The Guide provides that the Registrar will be satisfied that notification was within a reasonable period if it occurs within 28 days of the parent becoming aware that the other parent never established a pattern of care or ceased to have care in accordance with their established pattern of care.[92] The evidence before the Tribunal is that the Other Party did not notify the Agency until 10 February 2020 and therefore section 54G does not apply.
[92]Guide, [2.2.3].
A parent’s cost percentage for the purposes of section 54F(1)(b) is worked out in accordance with the tables in section 55C of the Assessment Act. Having had regard to the cost percentages table in [34] above, the Tribunal finds that the Applicant’s care percentage of 26% during the care period is between 14% and 35% equating to a cost percentage of 24% which is not relevantly different from the Applicant’s 33% percentage of care in the Existing percentage of care determination. Accordingly, the Tribunal is not required to revoke the Existing percentage of care determination pursuant to section 54F of the Assessment Act.
Having concluded that section 54F does not apply, the Tribunal has considered whether section 54H applies, noting that unlike sections 54F and 54G, revocation under section 54H is discretionary. The Tribunal is satisfied that as the cost percentage remains the same whether the Applicant’s percentage of care is 33% or 26%, there is no reason to exercise its discretion to revoke the Existing percentage of care determination.
Should an interim care determination be made?
As referred to above, sections 49(3) and 50(4) raise the potential applicability of an interim period under section 51 of the Assessment Act in circumstances where there is a care arrangement in place in respect of the child.
The term ‘care arrangement’ is defined in section 5 of the Assessment Act, which, when read together with the definition in section 3 of the A New Tax System (Family Assistance) Act 1999 (Cth) (‘Family Assistance Act’) and section 64B of the Family Law Act 1975 (Cth), relevantly includes parenting orders made by the Federal Circuit Court. The Tribunal is satisfied that the Parenting Orders are a care arrangement as defined under the Assessment Act.
An interim care determination will only apply in limited circumstances. The Guide provides:[93]
‘[g]enerally, there must be a care arrangement in place that is being followed at the time the care changed, in order for an interim determination to be considered. If a care arrangement exists but the parents were not adhering to the care arrangement prior to the disputed care change occurring, an interim period will not apply’.
[93] Ibid, [2.2.4].
On application to the facts of this matter, the Tribunal finds:
a)In respect of the Second notification where the Applicant asserts the Other Party had a reduced level of care, there is no evidence, and nor does she assert that action was taken to ensure compliance with the Parenting Orders; and
b)In respect of the First notification, it appears the parties do not dispute that compliance with the Parenting Orders had ceased and that from 1 September 2018, the Other Party had a percentage of care of 100% in respect of the child.
Accordingly, the Tribunal finds that section 51 of the Assessment Act does not apply in the circumstances of this case.
DECISION
The Reviewable Decision dated 14 July 2020 is affirmed.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr Linda Kirk
...................................[SGD].....................................
Associate
Dated: 5 April 2024
Date(s) of hearing:
20 November 2023
Applicant:
In person
Solicitors for the Respondent:
A. Wong, Mills Oakley
Other Party:
In person
0
16
0