KMDB and Child Support Registrar (Child support second review) - [2019] AATA 5536

KMDB and Child Support Registrar (Child support second review) [2019] AATA 5536 (23 December 2019)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2019/3010
GENERAL DIVISION  )
Re: KMDB
Applicant

And: Child Support Registrar
Respondent
And: KKJZ
Other Party
DIRECTION
TRIBUNAL:  Member P Ranson
DATE OF CORRIGENDUM:            7 January 2020
PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth) to alter the text as follows:
1. The Care Arrangements in the Decision on page 1 from “the Care Arrangements are 32% for the Father and 78% for the Mother” to “the Care Arrangements are 32% for the Father and 68% for the Mother”.
2. At paragraphs 35, 36 and 39, the Care Arrangement percentages are amended to: 32% for the Father and 68% to the Mother.

............................[Sgd]...............................
Member P Ranson

Division:GENERAL DIVISION
File Number: 2019/3010
Re:KMDB
APPLICANT

AndChild Support Registrar
RESPONDENT

AndKKJZ
OTHER PARTY

DECISION
Tribunal:Member P Ranson
Date:23 December 2019
Place:Brisbane

The matter is set aside and remitted back to the Respondent for redetermination on the basis that the Care Period is 12 months from 29 November 2018 and the Care Arrangements are 32% for the Father and 78% for the Mother.

.............................[Sgd]..........................................
Member P Ranson
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 - care arrangements – percentage of care - hours of care v days of care - whether the correct basis for determining care of children is based on nights versus hours - whether there has been a change in the pattern of care - whether the child support percentage of care is incorrect - whether special circumstances apply - decision under review set aside and remitted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth)
CASES
Gillson and Secretary, Deptartment of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473
Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959
Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide
Queensland School Term 2019: FOR DECISION
Member P Ranson
23 December 2019
BACKGROUND

The Applicant in this matter is the Mother of three children (the Children) under the age of 18 years, and the Other Party is their Father. The parents separated some years ago and in 2016 the Federal Circuit Court of Australia issued orders by consent for the parenting of the children. Those orders in general terms specified that the Father was to have five nights per fortnight with the Children during school terms plus 28 days during school holidays. The Children were to spend the balance of the time with the Mother other than specific dates such as Mother’s Day, Father’s Day, Christmas Day and birthdays for which the orders made specific arrangements.
A strict reading of the orders suggests the Father is to have 128 nights per annum with his children plus a small number of other days as specified in the orders. The practical application of those orders generates a different result.
Further, the Mother holds the view that the care arrangement should be calculated on the basis of hours in care rather than nights in care. Nights in care is the starting point for any care arrangement determination and only in limited and special circumstances will nights in care produce the preferable outcome. There are no special circumstances in this case.
The current determination, which was made by the Child Support Agency, records the Father as having 35% care of the children with the Mother then having 65% care of the children. That determination was upheld by the Social Services & Child Support Division of this Tribunal in the absence of a calendar of actual care. The Mother has applied for a review of that decision as she believes it does not correctly reflect the actual pattern of care arising from the practical application of the parenting orders.
THE FACTS AND EVIDENCE
The decision under review was made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 20 May 2019 which affirmed the decision by the Registrar that the Father has 35% care and the Mother 65% care of the Children from 29 November 2018. AAT1 also affirmed that the correct basis for determining a care determination is the number of nights the Children spend with each parent.
The Hearing was held on 9 October 2019 (the Hearing). The Mother and Mr Murphy as representative for the Respondent attended in person and the Father participated by telephone conference. The Mother and the Father gave affirmed evidence.
The following documents were admitted into evidence:

Exhibit 1

T Documents

Exhibit 2

Respondent’s Statement of Facts, Issues and Contentions, with attachments

Exhibit 3

Submission by the Mother, with attachments

Exhibit 4

Applicant’s Statement and Evidence

All parties confirmed they had their copy of all four exhibits with them at the Hearing.

The Respondent determined the issues to be as follows:
(a)whether there was a change in the pattern of care that the Mother and the Father had of the Children from 29 November 18; and if so
(b)whether the existing care determination should be revoked; and if so
(c)the percentage of care to be used in a new care determination; and
(d)the date of effect of the new care determination.
Consistent with the above, the Mother identified her issues as follows:
(a)the care determination should be based on the hours the Children spend with each parent rather than on the nights the Children spend with each parent; and failing that
(b)the calculation of the number of nights determined from the orders made by the Federal Circuit Court of Australia dated 9 December 2016 (the Orders) are incorrect and should be the amount shown on the calendar prepared by her setting out the actual nights that the Children spend with their Father; and
(c)the care determination should commence on 29 November 2018.
The Father’s position is that the current care arrangement is correct as it is in accordance with the Orders and that a calculation based on hours in care for the Mother is not warranted.
The Respondent clarified that it adopts a neutral position as to the correct outcome and reverted to the Social Security Guide, which determines the pattern of care based on the number of nights the children spend with each parent and calculating the care percentage on the basis of hours in care is only used in extreme cases where special circumstances exist.
What do the Court orders say?
The Orders provide that from 1 July 2017 and during school term in each two-week block[1]:
(a)in week one the Children will spend Thursday evening with their Father;
(b)in week two the Children will spend Thursday evening plus Friday evening to Monday morning with their Father;
(c)28 days per annum during each calendar year during Queensland gazetted school holiday periods; and
(d)Other arrangements are made for certain other days such as Father’s day, Mother’s day, Christmas day, and birthdays.
[1] Exhibit 1, T Documents, T4, FCCA Orders 9 December 2016, paragraphs 2.1.3, 2.1.4 and 2.2.
The general effect of the above is the Children are to spend five nights per fortnight with the Father during school terms plus 28 days during school holidays, that is, a total of 128 nights each calendar year. The Father advised the Tribunal at the Hearing that he believes the percentage of care should be determined on the basis of 128 nights per annum in accordance with the Orders. Further, he does not see that any special circumstances exist for a calculation based on hours in care rather than nights in care. As mentioned above the Mother disagrees on the basis the practical application of the orders results in 119 nights per annum for the Father and not 128 nights per annum, if the basis on which the decision is made is nights in care.
Hours vs. Nights
The relevant policy in regard to a care determination is contained in the Guides to Social Policy Law: Child Support Guide (the Guide) and in particular in chapter 2.2.1 which states: ‘a parent or non-parent carer’s percentage of care for a day in a child support period is a percentage of care that the person is likely to have of the child during the care period. 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’[2]. It goes on to say: ‘[h]owever, 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 8am to 6pm every weekday. In such cases, … 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.’
[2] Child Support (Assessment) Act 1989 (Cth) s 54A.
In determining who has the care of a child consideration is given as to who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves.
The case law in this area is well settled. For example, in Vendrell and Secretary, Department of Social Services and Anor [2014] AATA 22 at [15] it was quoted: ‘Generally a pattern of care is based on the number of nights in a care period where an individual has the overnight care of an FTB child. A person with the overnight care of a child is regarded as having had care of the child for that day.’
Further, in Gillson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and Anor [2011] AATA 473 at [12] (‘Gillson’) Dr P McDermott RFD, Senior Member, as he then was, noted: ‘… 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.’ Then later at [15] the Senior Member noted: ‘even if … it was appropriate to determine the FTB entitlement of the applicant on an “hours in care” basis, it would be artificial to credit to either the applicant or the added party the hours that were spent by the child in school.’
Finally, in Polec & Staker & Anor (SSAT Appeal) [2011] FMCAfam 959 at [56]:
‘In my view, in determining whether and to what extent a person has care of a child …, it is necessary to consider the following:
a)To what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities?
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?’
The Mother mentioned in her submission the care percentages were determined on hours in care when the Orders were originally implemented. The rationale for this appears to be the Orders go into great detail to specify particular times and days when the Children are to be delivered and collected. The Mother states: ‘the Mother called child support before agreeing to the orders the father had presented to her in 2016 to discuss the care arrangement and was told that if she was the one who had to take time off while the children were sick that she could go by hours of care not nights of care’ and she provided a record of that conversation with her submission.[3] The hours in care basis was later changed to be nights in care basis by the Child Support Authority (CSA).
[3] Mother’s undated submission received by the Tribunal on 30 August 2019, para 51.
The Children are all of primary school age and it is clear from the material presented that they attend school on a full-time basis, that is, normal school hours of approximately 8:30AM to 2:30PM Monday to Friday during 40 weeks of school terms.
In her submission the Mother concludes Child Support should be calculated using hours in care to accurately reflect the care taking place as she has all the day-time care of the Children as well as most of the night-time care.[4] Whilst at one level the Tribunal can see the Mother does have all of the daytime care of the Children, it is also the case that the Children attend primary school on a full-time basis and so the hours the Children spend at school would have to be allocated to the parents. As mentioned above in Gillson, if the “hours in care” basis is adopted, it would be artificial to credit to either one parent or the other with the hours that were spent by the child in school.
[4] Mother’s undated submission received by the Tribunal on 30 August 2019, para 86.
Notwithstanding the Mother is more likely to be the parent called upon first during school hours if one of the Children are ill or otherwise require attention, in the event the Mother was unavailable the school would have to contact the Father.
The Mother does have all of the daytime care of the Children during the 40 weeks of school except for the hours they are at school. During school holidays the Father has up to 28 days of care even though the Mother presented evidence the Father does not always avail himself of the full 28 days. Even if the Father has the Children for say 25 days, that still amounts to 30% of the school holiday time. The Tribunal prefers the view that the Mother has the majority of daytime care rather than all of the daytime care.
The drafting of the Orders, whilst replete with specific days and times when the Children are to be dropped off and returned, are not unusual and appear to be designed to fit in with school hours so that the Children are not disadvantaged. If the original interruption of the Orders as hours in care arose because of the many references to days and times, the Tribunal concludes that was an error of interpretation ultimately corrected by reverting to the nights in care basis.
In her submission the Mother makes reference to the Children’s fixed costs, which she says are not contributed to by the Father.[5] The items listed total $2,738.50 for the 2019 calendar year and include such items as school excursions, sporting equipment and uniforms and school stationery and books. Items such as these are not regarded as special needs, which do not include daily expenses like food, clothing or standard medical care. Special needs might include, for example, specialist medical or orthodontic treatment. The items listed are intended to be covered by the child support assessment, which is not the subject of this decision.
[5] Mother’s undated submission received by the Tribunal on 30 August 2019, para 67.
The Father is responsible for the costs of supporting the Children when they are in his care. His evidence at the Hearing was that he does so including providing pre-prepared lunches for them which they have with them when he returns them to the Mother at 7.30am on Friday mornings.
The Tribunal finds that the hours in care basis does not apply in this case because;
(a)Other than on Thursdays when the father has the Children for 17 hours rather than 24 hours, the Father has the Children continuously cross each second weekend. The Children are not returned to the Mother during the day on those weekends;
(b)Neither parent is incurring a greater financial burden than the other given the time each of the Children spends with them relative to the other parent;
(c)The drafting of the Orders should not be interpreted as implying the hours in care basis is to be used; and
(d)The fixed costs identified by the Mother are not special needs as such and are intended to be covered by the child support assessment.
What is the pattern of care?

The school term dates for 2019[6] are as follows:

[6] cellpadding="0" cellspacing="0">

Term

Date

Length

Term 1

Tuesday 29 January – Friday 5 April

10 weeks

Term 2

Tuesday 23 April – Friday 28 June

10 weeks

Term 3

Monday 15 July – Friday 20 September

10 weeks

Term 4

Tuesday 8 October – Friday 13 December

10 weeks

As shown above, the official school term calendar shows a total of 40 weeks for the year ending 31 December 2019. Earlier in this decision information was provided of the care arrangements, which shows that the Father is to have five nights per fortnight during school terms. Theoretically for the 2019 year the Father is entitled to 100 nights of care during school terms plus 28 nights during school holidays plus certain other special occasions, hence the Father’s position that the Orders grant him a minimum of 128 nights per annum.
The Mother provided a calendar for the 2019 year showing each night when the Children were with their Father during school terms. The calendar records Thursday in week one and Thursday to Sunday in week two in accordance with the Orders[7] and shows that the Children spent a total of 90 nights with their Father. This is because the Orders specify the school holidays commence at the end of the last school day of the term and conclude at the commencement of the first day of the term. Therefore, four times each year the Father does not have care of the Children over the weekend immediately following the last week of term.
[7]     Exhibit 1, T Documents, T4, FCCA Orders 9 December 2016, paragraph 2.1.3 and 2.1.4.
The calendar also anticipates the Children will spend Christmas night alternately with the Mother and the Father depending on whether the year is odd or even numbered also in accordance with the Orders.[8] That means in the 2019 year the children will spend Christmas night with the Father adding one more night to the total for 2019. The calendar records the actual nights the Children were with their Father are up to 9 October 2019, being the date of the Hearing, and the theoretical nights they will be with him for the remainder of the year based on the pattern established up to that date. The calendar does not record the nights the Children spent with their Father during gazetted school holidays and so in compiling it the Mother made a specific allowance of 28 nights as required by the Orders.[9]
[8]     Exhibit 1, T Documents, T4, FCCA Orders 9 December 2016, paragraph 2.4.2.
[9]     Exhibit 1, T Documents, T4, FCCA Orders 9 December 2016, paragraph 2.2.
The calendar then shows the total number of nights for the 2019 year is 119.
There was some disagreement between the Mother and the Father as to whether the calendar recorded the week one night as Thursday or Monday. The Father pointed out it had been changed to Monday for week one and that is not what the calendar recorded. The Mother pointed out that Monday had been substituted for Thursday in order for the Children to attend particular sports training and that notwithstanding the change of days there are as many Mondays as there are Thursdays in the school week. The Father confirmed in evidence that the change from Thursday night to Monday night occurred in early May 2019.

The Father was asked several times during the Hearing to confirm or otherwise his agreement with the number of nights as shown on the calendar. Initially there was some disagreement however the Father eventually agreed that it was an accurate reflection of the nights the Children were with him up to the date of Hearing and the likely nights the Children would be with him up to the end of the year[10] albeit his agreement was for 120 nights allowing for the night of Monday 6 May 2019 when the Children were with him because it was a long weekend. However as the calendar at that time records Thursday

9 May 2019 as a night the Children were in the father’s care when it fact it was Monday

6 May 2019, the Tribunal accepts that the correct calculation for the year ending

31 December 2019 is 119 nights.
[10] Transcript, 12, line 10.
The Tribunal finds that a pattern of care has been established by the parents applying the Orders to the factual situation of the Queensland school term dates. That pattern of care reveals that the Father has 119 nights of care of the Children per annum which equates to 32% (rounded down) and therefore the Mother has 78% care of the Children.
Accordingly, the Tribunal revokes the existing care determination and instead finds there has been a change of care and the actual care arrangement of the children are 119 days per year for the Father and the balance for the Mother. This means the Father has 32% of the care and the Mother has 78% of the care.
WHEN DID THE PERIOD OF CARE COMMENCE?
On 29 November 2018 Turner J of the Federal Circuit Court of Australia ordered that the parenting arrangements as set out in the orders dated 9 December 2016 resume forthwith.
Accordingly, the Tribunal finds that the care period is 12 months from 29 November 2018.
CONCLUSION
The matter is set aside and remitted back to the Respondent for redetermination on the basis that the Care Period is 12 months from 29 November 2018 and the Care Arrangements are 32% for the Father and 78% for the Mother.

I certify that the preceding 39 (thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member P Ranson

.........................[Sgd]..........................................
Associate
Dated: 23 December 2019

Date of hearing: 9 October 2019

Applicant: Self-represented, in person

Solicitors for the Respondent:
Mr C Murphy

Department of Human Services

Other Party: Self-represented, teleconference

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Exhibit 1	T Documents
Exhibit 2	Respondent’s Statement of Facts, Issues and Contentions, with attachments
Exhibit 3	Submission by the Mother, with attachments
Exhibit 4	Applicant’s Statement and Evidence

Date of hearing:	9 October 2019
Applicant:	Self-represented, in person
Solicitors for the Respondent:	Mr C Murphy Department of Human Services
Other Party:	Self-represented, teleconference