KWQX and Child Support Registrar (Child support second review)

[2023] AATA 2960

KWQX and Child Support Registrar (Child support second review) [2023] AATA 2960 (15 September 2023)

Division:GENERAL DIVISION

File Number:          2022/7229

Re:KWQX

APPLICANT

AndChild Support Registrar

RESPONDENT

AndLLFP

OTHER PARTY

DECISION

Tribunal:Mr S Evans, Member 

Date:15 September 2023  

Place:Sydney

The reviewable decision is set aside and the matter is remitted to the Respondent with the direction that: 

·There was no pattern of care provided to the Child by the Applicant or the Other Party from 1 March 2015

·Pursuant to section 54F the of the Assessment Act the date of effect of the new care percentage is 1 March 2015;

.............[Sgd]...........................................................
Mr S Evans, Member

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988. 

Catchwords

CHILD SUPPORT —percentage care decision - Change of care —Actual care — Extent of care— where the Child removed from Other Party’s care by Court Order – Where the child was in a state-run institution – Whether Other Party had any care of the Child during relevant period – Date of effect – Decision set aside and remitted with directions.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Cases

Heyward v Minister for Immigration & Citizenship [2009] FCA 1313
Vasiliou and Secretary, Department of Social Services (Social Services Second Review) [2020] AATA 962
Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31
Polec v Staker & Anor (2011) 253 FCR 339
Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Secondary Materials

Child Support Guide

REASONS FOR DECISION

15 September 2023

INTRODUCTION

1. The Applicant, KWQX, and the Other Party, LKFF, are the separated parents of a child (the Child) born in December 2000. The Child lives with the Other Party in Israel. Since 1 July 2008 the Other Party has had 100% care of the Child, with the Applicant having 0% care as she resides in Australia (the existing care percentage determination).

2. The Applicant contends that the Other Party ceased to care for the Child from 1 March 2015 until December 2018 when the Child turned 18 (the care period). On 21 May 2021 a delegate of the Child Support Registrar (the Registrar) refused the Applicant’s request for a new care percentage determination (the care refusal decision).

3. The Applicant objected to the care refusal decision and on 20 January 2022 her objection was disallowed (the objection decision) as the delegate was not satisfied the evidence supported a finding that the Child had been removed from the Other Party’s care. The Applicant applied to the Social Services & Child Support Division of the Tribunal (AAT1) for review of the objection decision. On 4 August 2022 the AAT1 affirmed the objection decision (the reviewable decision).

4. For the following reasons, the reviewable decision will be set aside and the matter remitted to the Registrar for reconsideration with the finding that both the Applicant and the Other Party had 0% care of the child during the care period.

   FACTUAL BACKGROUND

5. A child support case was first registered with the Registrar in relation to the Child on 11 January 2006. Since 1 July 2008 the administrative assessment of child support for the child reflected the existing care percentage.

6. On 13 October 2015 the Applicant is recorded to have told Services Australia (the Agency) that the Child left the Other Party’s care for 5 months and lived with another person.[1] On 19 October 2015 the Applicant is recorded to have told the Agency that the Child left the Other Party’s care from 27 March 2015 to 15 July 2015 and had since returned.[2] On 28 June 2019 the Applicant called the Agency about her child support arrears. She is recorded to have told the Agency that she would attempt to obtain evidence that the Child had left Other Party’s care when she was 16.[3] 

   [1] T25/140

   [2] T26/141

   [3] T44/196-197

7. On 12 June 2020 the Applicant called the Agency and stated that she had found out the Child went to boarding school for ‘a few years’ while the assessment was still in place and confirmed she would find out more.[4]

   [4] T45/198

8. On 9 December 2020 the Applicant’s representative wrote to the Agency claiming that a terminating event occurred in March 2015 when the Child was removed from the Other Party’s care by Israeli social services (social services).[5] The Applicant provided a translation of an order issued by the Youth Court in the Tzfat Magistrates Court (the Youth Court) dated 3 December 2020 stating that the Child was to subject to orders of the court from March 2015 until she attained 18 years of age.[6] The Applicant also provided links to and a transcript of a YouTube video in which the Other Party reportedly discussed his moving to Israel and the difficulties he experienced with social services.[7]

   [5] T54/260-262

   [6] T54/265-266

   [7] T54/267-268

9. On 16 February 2021 the Other Party disputed the Applicant’s notification of a change in care.[8] On 3 May 2021 the Applicant provided to the Agency a transcript of second YouTube video in which the other party is said to have discussed his situation in Israel.[9]

   [8] T57/278

   [9] T65/290

10. On 21 May 2021 a delegate of the Registrar made the care refusal decision.[10] The Applicant objected to the care refusal decision and on 20 January 2022 another delegate disallowed the Applicant’s objection[11] as they were not satisfied that the court order supported a finding that the child had been removed from Other Party’s care.[12]

    [10] T66/294

    [11] T5/89

    [12] T7/95

11. The Applicant applied for review of the decision which was affirmed by the AAT1 on 4 August 2022. The AAT1 was not satisfied that there was any change in the pattern of actual care of the Child from the existing care percentage determination for the Other Party.[13]  

    [13] T2/7-14

12. The reviewable decision found that the Applicant’s interpretation of statements made by the Other Party in the YouTube videos was not reliable and did not support her claim that the Child left his care.[14] It stated the evidence given by the Other Party was to the effect that the Child had experienced problems at school, she had changed schools but had continued to see the Other Party on weekends and school holidays and that he retained overall responsibility for her care.[15]

    [14] T2/13

    [15] T2/12

13. The AAT1 was satisfied that while the Child may have been in the care of the Israeli government or at boarding school in Israel, the Other Party had overall responsibility for the Child’s care. The AAT1 was not satisfied that the child was placed into the care of social services until she turned 18. The AAT1 considered that where the Child may have been in the care of social services or at boarding school, the Other Party maintained overall responsibility for her care including the type of supervision and care that would be exercised for a child in boarding school. As the AAT1 was not satisfied that there was any change in the likely pattern of actual care of the Child from the existing care percentage determination, the decision of the objection officer was affirmed.[16]

    [16] T2/14

    RELEVANT LAW

14. The legislation relevant to this application is found in the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act), the Administrative Appeals Tribunal 1975 (Cth) (the AAT Act). The Child Support Guide (the Guide) provides guidance which should be considered unless there are cogent reasons not to do so.[17] 

    [17] See Re Drake and Minister for Immigration, and Ethnic Affairs (No. 2) (1979) 2 ALD 634, 645 per Brennan J, which was cited with approval in Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13, 30 per French and Drummond JJ

15. The revocation of care percentage determinations is dealt with in Subdivision C of Division 4 of Part 5 of the Assessment Act. The relevant provisions of the Assessment Act with respect to the revocation of an existing care determination are subsections 54F, 54G and 54H.

    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).

    …

    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).

    …

    ISSUES TO BE DETERMINED

16. The issues to be determined by the Tribunal are whether the existing care percentage determination must or should be revoked; and if so:

    (a)the date the revocation should take effect;

    (b)what was the actual care of the Child during the care period; and

    (c)from when should the new care percentage determination take effect?

    CONTENTIONS AND EVIDENCE

    The Applicant   

17. In a statement dated 14 December 2022 the Applicant writes she separated from the Other Party in 2005. The Other Party relocated overseas with the Child and the Applicant lost contact with her until early 2015 when they reconnected through social media. The Applicant claims to have maintained contact with the Child since.

18. After re-establishing contact, the Child told the Applicant that social services was involved with her care because the Other Party had been violent towards her. The Applicant was contacted by a social worker in Israel named Hila. Hila told the Applicant the Child was living with her because social services were concerned about her welfare. Hila advised the Applicant to ‘get [the child] into her care’ before the Israeli government took her. The Applicant sought legal advice on how she could intervene in the Israeli court proceedings and how she might arrange to have the Child brought back to Australia.

19. The Applicant maintained contact with Hila until ‘mid-2015’ when the Child left her care to attend boarding school. The Applicant understands that the Child remained at boarding school until age 17 when she moved in with her boyfriend.

20. The Applicant contends that the Child was removed from the Other Party’s care in March 2015 and did not return to the Other Party’s care prior to turning 18 in December 2018. She submits that the Other Party’s care percentage was reduced from 100% to 0% and the existing care percentage should be revoked to reflect this change.   

    The Other Party

21. The Other Party gave evidence he maintained 100% of the Child’s care and during the care period during which the Child lived with him at least 90% of the time.

22. In a submission dated 21 November 2022 he states he ‘paid AUD50,000’ for the Child. He has submitted a court document dated 13 December 2005 confirming a settlement was reached between the Applicant and the Other Party, the terms of which included a settlement sum of AUD50,000 and custody of the Child to be awarded to the Other Party. 

23. The Other Party said that in 2015 and 2016 the Child was a teenager who ‘had some bad associations’ and made some bad decisions.[18] One evening the Child did not come home because she wanted to be with her friends. The Other Party was worried about the Child and called the police and social services. When she returned home there was an argument. The Child told social services ‘a story’ which was not true and when social services became involved it was ‘hard to turn back.’[19]

    [18] Transcript of proceedings dated 27 June 2023 (Day 1 Transcript), 14

    [19] Day 1 Transcript, 15-16

24. The Other Party does not dispute that the Child was placed into foster care or that she attended boarding school. However, he maintains that he had overall care for the Child and continued to provide for her financially. He writes in the November 2022 submission:

    The public school system in Israel is free of charge. Before she attended boarding school, she was asked to leave three schools because of her character and unable, to tell the truth. Once she started boarding school, I actually spent more money on her. As I mentioned above, I would take her out to eat, buy gifts and drive an hour to visit her. And all this time I still maintained a house that included a private bedroom for her as I paid the rent. Again I will emphasize that [the Child] came to our house often on weekends and the Holy days here. She didn't come every weekend as she was supposed to, but she came often.

25. The Other Party contends that while the Child was at boarding school she would regularly stay with the Other Party as the boarding school had ‘an open-door policy’[20] and was only a 45 minute bus ride from his home.[21] 

    EVIDENCE

    [20] Transcript of proceedings dated 18 June 2023 (Day 2 Transcript), 46

    [21] Day 1 Transcript, 20

    Youth court orders

26. It is not in dispute that the Youth Court made Orders concerning the Child in relation to proceedings against the Other Party in March 2015, when she was 14 years old.

27. There are two Youth Court orders before the Tribunal. The first order was sourced by the Applicant and officially translated into English on 3 December 2020. It states that in the matter of Tzfat Welfare Services vs [the Other Party], the Magistrate decided:  

    I hereby confirm that [the Child] was subject to orders of this court, in as part of proceedings instituted against her father in accordance with The Youth, Care and Supervision Act, from March 2015 and until she attains the age of 18 years.

28. The Other Party subsequently provided a second Youth Court order dated 7 February 2018. The second order identifies the petitioner as social services represented by a social worker by youth law and the respondent as the Child and Other Party. The order acknowledges the presence of a legal guardian and a counsellor from the boarding school the Child was attending.

29. The certified translation of the February 2018 Youth Court Order states in part that:  

    Social worker by Youth Law: [I] repeat what was stated in the request, explaining to the father [the Other Party] that there is no possibility to continue in the absence of discourse between the parties, and in the splits between what he says to the minor to what he tells social (services).

    [The Child] is very confused from the double and inaccurate messages she receives from her father that tells her that he wants her at home and tells us that he wants her in the boarding school. In the past she excelled in school and in the boarding school itself, currently she objects and utterly refuses to go back to that framework. The main purpose of this discussion is to have an open and frank discussion with [the Child] from which she could continue, we are very worried about her condition.

    She started smoking drugs, we know that she is sexually active and that she continues to make bad choices. The last time she ran away she was caught stealing credit cards, and a file has been opened against her in the Jerusalem police. I think that for her, to come back home and to live here in [city] with her father is a grave mistake. She also must hear this from her father.

30. When taken to the February 2018 court order the Other Party stated the order contained a lot of opinion but not fact. He indicated the Child was offered the choice of attending the boarding school or another institution. The Other Party states that the Child did not want to attend the other institution and had threatened to run away. He gave evidence that following the court appearance ‘a lot transpired’ including that his wife spent many hours teaching the Child.[22]

    [22] Day 2 Transcript, 50-51

31. The February 2018 order also states that the parties left the Court and the Magistrate conducted a private conversation with the Other Party. It was the Other Party’s evidence that during their discussion the Magistrate informed him that the only option for the Child was to attend boarding school but that she would be able to ‘come and go’ as she pleased. He stated the Magistrate was clear that the order did not remove the Child from his care, he maintained full custody and responsibility for the Child and that social services preferred that he remain involved in the Child’s care.[23]

    [23] Day 2 Transcript, 81-82

32. The Other Party gave evidence that ‘because of the Court’ he was required attend counselling. When the counselling was complete, ‘they’ told him ‘[y]ou don’t need counselling, your daughter needs counselling.’[24]

    [24] Day 1 Transcript, 14

    Letter from the boarding school

33. In an undated letter from the head of the boarding school confirms the Child was a student at the institution between November 2016 and June 2017, September 2017 and June 2018 and September 2018 and November 2018. The letter also states that:

    To be noted, it has been agreed with [the Child] that on weekends she would stay at her father's, but .many times, she did not. Many times, [the Child] chose to stay at our institution or go to other places outside of our institution.

    The evidence of the Child

1. In a response to a series of questions posed by the Applicant’s representative via email in September 2022, the Child wrote that when she was 14 years old she left home to live with the social worker Hila. She also confirmed not having spent time with the Other Party, that she left school to live with her boyfriend aged 17 and the Other Party did not provide her any money or support as ‘he has his other family.’

2. However, in two subsequent emails addressed to the Tribunal dated 5 March and 19 April 2023 the Child writes that she ‘lied and fabricated’ the story about her father and the only part that was true is she went to boarding school for a brief period of time. She writes that she is ‘ashamed’ that she ‘started this fiasco.’

3. The Child, who is now 23 years old, gave evidence at the hearing. She was asked about the inconsistent emails she sent to the Applicant’s representative and the Tribunal. The Child agreed she went to boarding school for a brief period, but stated that she had spent a lot of time at her father’s house. She also claimed to have received social security payments whilst at school but later clarified she did not receive these payments until she gave birth to her child. She said while at boarding school she maintained a room at school and another at her father’s house. She confirmed leaving school at 17.[25]

   [25] Day 1 Transcript, 17-21

   Internet videos  

4. The Other Party appeared in two videos on the internet – one uploaded on 2 September 2017 and an earlier video form 29 November 2016. Links to both videos have been provided by the Applicant, along with transcripts generated by the Applicant.

5. Subsection 33(1)(c) of the AAT Act provides that the Tribunal is not bound by the rules of evidence. While not bound by the rules of evidence, the Tribunal’s practice has been to use the rules as a frame of reference.[26] Having viewed the videos on the internet, I am satisfied of their authenticity and the accuracy of the transcripts compiled by the Applicant.

   [26] Heyward v Minister for Immigration & Citizenship [2009] FCA 1313, [63] – [64] per Emmett J; see also Vasiliou and Secretary, Department of Social Services (Social Services Second Review) [2020] AATA 962

6. The description to the November 2016 video states it was recorded at a Conference on Human Rights Violations of Israel and foreign nationals which reportedly took place on 29 November 2016. In the video the Other Party is introduced as having an Australian born daughter who ‘social workers decided they’d rather have.’ The introduction states that ‘social workers put criminal charges’ on the Other Party. During the forum the Other Party states that he has a daughter that is going to be sixteen and ‘almost two years ago’ she was ‘acting up’ and there was ‘a bit of a brawl.’[27]

   [27] T90/389

7. Later in the conference the following exchange takes place:

   Speaker: Ok your daughter was born in Australia, and due to a call and due to a noise, the social workers came and took her away from you, am I right?”

   Other Party: “Ah pretty much right yeah.”[28]

   [28] T90/389

8. In the September 2017 video the Other Party recounts his experience relocating from the Philippines to reside in Israel. He says that his qualifying for Aliyah has been frustrated by a court case. Though he is ‘innocent’, the Other Party states ‘until that’s taken care of they can’t continue giving us the Aliyah.’ He explains that the court case concerns his daughter ‘at the social services’ and tells the audience:

   There’s some misunderstanding  of ah … I think with my daughter and so they’re we’re trying to work it out with social services so … I’m not exactly sure what the charge but ah I’d rather not say until I know for sure what I know what I’m talking about there’s no proof there’s no proof ‘cause it didn’t happen… ’[29]

   [29] T90/388

9. Later in the interview the Other Party makes reference to his daughter being 15 years old and having ‘talked to his daughter today’.[30] 

   [30] T90/388

10. When taken to the transcripts of the videos the Other Party did not question their authenticity and agreed he ‘might have said those things,’ but contends they were taken out of context. 

11. The Other Party explained that his Aliyah concerns his right to return to Israel and that it was ‘postponed’ because of the ongoing court case. He was asked if he was referring to the case involving the social services in the Youth Court, he only responded he was referring to a criminal matter. He explained:

    That was at criminal court was that because as I said yesterday once you enter a system in Israel it’s such a bureaucratic system here it’s very hard to pull out and I had to go through all the detail that they wanted so they said – I went to the criminal court.  The criminal court was that it got from the social services that I – they used the word brawl.  They said there was a fight.  There was physical abuse but there wasn’t.  you could ask [the Child] that and so there was no way of getting out until I went through the whole process.  It took months and months to get a court date.  So it was a criminal court.  I went to the court two times, and they said we see that you’re not that kind of a person.  You’re not a violent person so if you do one year of counselling and then we’ll determine what will happen.  So I said okay counselling is better.  Even though I didn’t want to do it I went along with it.[31]

    [31] Day 2 Transcript, 55

    The Other Party’s wife

12. The Other Party’s wife provided a statement and gave evidence at the hearing. She first met the Child in 2008 and gave evidence that she was living with the Child when she went to boarding school when she was 15.

13. As the Child grew older she ‘made trouble’ for the family and her behaviour effected their status and Israeli citizenship. The Other Party would deal with the police to find the Child after she ran away from home.

14. In her written statement she explains that ‘[s]ocial welfare of Tzfat stepped in to solve the problem for [the Child’s] good,’ following which the Child ‘stayed for a month at Heli’s house’ during which ‘they found [the Child’s] problematic personality.’ After a month it was arranged for the Child to see the Other Party and his family and from then social services decided there was no reason for the Child to be taken from the Other Party’s custody. Social services then arranged a boarding school for the Child and it was agreed she would visit the Other Party at home on weekends and holidays as much as she wished. The Other Party’s wife recalls that the Child went from ‘school to another school’, did not like study and ‘stopped going to school and chose to stay with her boyfriend’ three months prior to finishing high school.

    Evidence of Rabbi Weinreb

15. Rabbi Weinreb has been working with the Other Party’s family for approximately two and a half years. He is a NLP master practitioner who was also trained through rabbinic studies. He sees his role as that of a community member who visits the Other Party’s family regularly. When he started working with the family the Child was no longer living at the Other Party’s home. He stated his experience of the Child was that she is manipulative when she wants something. In Rabbi Weinreb’s experience, the Other Party has always behaved respectfully towards the Child and his other children.[32]

    CONSIDERATION

    [32] Day 1 Transcript, 7-10

    Should the existing care percentage determination be revoked? 

16. I am required to review the actual care that was provided during the care period. In Shi v Migration Agents Registration Authority 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.[33] There is no such limitation requiring the referencing of the state of the evidence at a particular point in time in the present matter.

    [33] Nelson Guang Lai Shi v Migration Agents Registration Authority [2008] HCA 31, [34] – [47] per Kirby J; [99] – [100] per Hayne and Heydon JJ; [134] per Kiefel J

17. The emails reportedly sent by the Child are inconsistent and contradictory and her appearance at the hearing did not further my understanding of her evidence. This is perhaps unsurprising in the circumstances and not a reflection on the Child. Nonetheless, her evidence overall has very little probative value and is afforded little weight.

18. Based on the Youth Court orders I am satisfied that the Child left the care of the Other Party on 1 March 2015 and was appointed a legal guardian. I am satisfied that the Child initially lived with a social worker as is agreed by both parties, though the period in which the Child was in the care of a social worker is disputed. I also accept that the Child attended boarding school from November 2016 as confirmed in the email sent by the school head.

19. The Other Party’s comments as recorded on YouTube November 2016 strongly support a finding that the Child had not returned to his care at that time. Despite asserting he paid for the Child’s books, pocket money and accommodation at the boarding school, the Other Party has not provided probative evidence of any such expenditure during the care period.

20. For these reasons, I am satisfied that the evidence supports the percentage of care provided by the Other Party differed from the existing care percentage which was based on the Other Party having 100% care for the Child. I find that the change in the actual care provided by the Other Party occurred on 1 March 2015.

    Relevant care period

21. In determining the relevant care period, guidance is provided in the Guide. Normally a care period is for 12 months from the date it is determined that the actual care of a child changed and the same care arrangement is assumed to apply for the subsequent 12-month period. In the current case I find that the care percentage determination took effect from 1 March 2015 and remained in place until the Child turned 18 in December 2018.

    Pattern of care and care percentages

22. I now turn to whether there was a pattern of care during the care period and if so the percentages of care provided by the Other Party during the care period.

23. Care is not defined in the legislation. The level of care provided by a responsible person for a child is a question of fact to be determined in each case by reference to the particular facts or circumstances.[34] The Guide at paragraph 2.2.1 provides useful guidance for determining whether care exists:  

    [34] Polec v Staker & Anor (2011) 253 FCR 339, [56]

    An object of the Child Support Scheme 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' (CSA Act 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 and care will generally be worked out based on the number of nights that the child is likely to be, or has been, in the care of the person during the care period (CSA Act section 54A). Where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case, based on the extent to which the:

    ·     person has control of the child, including having overall responsibility for the child and making

    ·     major decisions relating to who the child spends time with, and the child's health, education, discipline, recreational and/or social activities, and

    ·     arrangements for others to meet the needs of the child (delegated care)

    ·     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

    ·     person pays for the costs of meeting the needs of, or otherwise provides financial support for, the child

    ·     child provides for his or her own needs or has those needs met from another source

    ·     child is financially independent or financially supported from another source.

24. Relevantly, the Guide also acknowledges that a person may have care of a child who is not living with them for a period of time

    Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital, or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care. Consideration is given 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 Registrar will give weight to statements from both parents and any non-parent carers.

25. I acknowledge that the Other Party had involvement in the Child’s care through the Court and social services after 1 March 2015. This finding is supported by the February 2018 Youth Court order recording the Magistrate engaged in a closed-door meeting with the Other Party regarding the future care arrangements of the Child.  

26. However, I do not accept that the Other Party supported the Child financially after March 2015. The Other Party concedes that the school fees were paid for by the state, and his claims to have spent money taking her out and buying her gifts are not supported by evidence.[35]

    [35] Day 2 Transcript, 61

27. The Child may have occasionally stayed with the Other Party whilst she attended boarding school. If she did so, I consider this was infrequent based on the guardianship arrangement, the statement from her boarding school that the child ‘could have but did not’ stay with her father on most weekends and the advice of the social worker that the Child ‘not return … to live with her father’ as recorded in the 7 February 2018 Youth Court order. After completing boarding school at age 17 the evidence supports the Child having resided with her boyfriend.

28. Having regard to the factors identified in the Guide I am not satisfied that there was a pattern of care provide by the Other Party after March 2015 and as such the appropriate percentage of care was 0%. 

    Must or should the care percentage decision be revoked?

29. As I am satisfied that the appropriate percentage of care differed from the existing care percentage and should have reflected 0% care for both parties, I must consider whether the existing care percentage should be revoked.

30. In doing so, I note that Section 54H can only apply if sections 54F and 54G do not apply, and section 54F can only apply if section 54G does not apply. As such, it is appropriate to first consider the applicability of section 54G, followed by the applicability of section 54F and then section 54H.

    Revocation under section 54G

31. As the current care percentage determination of 0% for the Applicant is one made under section 49 of the Assessment Act subsection 54G(1)(c) is not satisfied and section 54G is not applicable in this case.

    Revocation under section 54F

32. I next consider section 54F of the Assessment Act which stipulates that the existing care percentage determination must be revoked if ‘the care of the child is actually taking place does not correspond’ with the existing percentage of care determination and the responsible person’s cost percentage for the child would change if a new care percentage determination was made.

33. A person’s cost percentage is determined by reference to their care percentage for the child and for the purposes of section 54F is to be ascertained in accordance with the table in section 55C of the Assessment Act which is as follows:

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%

1. As set out above I am satisfied that the actual care of the Child did not correspond to the existing percentage of care determination from 1 March 2015. I am also satisfied that the Other Party’s cost percentage would change as a consequence of the actual care percentage. As such I am required by operation of subsection 54F(1) to revoke the existing determination.

   Revocation under section 54H

2. Having decided that section 54F applies to revoke the existing determination, if follows that section 54H does not apply.

   Determining percentages of care under ss 49, 50 or 51 of the Assessment Act

3. Where the Tribunal determines the responsible person’s percentage of care is 0% section 49 of the Assessment Act applies. Section 50 applies where the responsible person had a pattern of care for the Child during the care period and Section 51 applies where action is taken to ensure that a care arrangement in relation to a child is complied with.

4. As I have found that there was no pattern of care by the Other Party I am required to proceed under section 49 of the Assessment Act which specifically applies to determinations where the responsible person(s) had no pattern of care for a child. Section 49 provides:

   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)  a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;

   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)  both of the following apply:

   (i)  the determination of a responsible person’s percentage of care for a child that was made under this section or section 50 is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);

   (ii)  the Registrar is satisfied that the responsible person 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.

   (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.

5. As the conditions set out in subsection 49(1)(b) are satisfied, pursuant to subsection 49(2) I am required to determine the Other Party’s percentage of care for the Child and pursuant to section 49(3) that percentage of care must be 0% because section 51 does not apply.

   Terminating event and reviewable decision

6. Finally, I turn to section 12(2AA) of the Assessment Act which provides that:

   (2AA)  A child support terminating event happens in relation to a child if:

   (a)  both of the parents of the child are not eligible carers of the child…

7. The Applicant submits that as both parents ceased to be eligible carers of the Child as they had less than 35% care of the Child, a terminating event occurred.

8. Subsection 25(1) of the AAT Act provides that the scope of the Tribunal’s jurisdiction is to be found in the enactment creating the relevant review right, which in this case is the Collection Act. Section 87 of the Collection Act provides for consideration of objections by the Registrar and section 89 provides that applications may be made to the AAT for review. As the delegate was not concerned with the question of whether a terminating event occurred, a decision engaging the AAT1’s review function under section 87 was not made on that question. As such, as the role of the Tribunal is merely to review the AAT1’s decision, the issue of whether a terminating event occurred is outside of the ambit of this review and is not for the Tribunal to determine.

1. In any event, the happening of a terminating event arises as a matter of law consequent upon the satisfaction of certain criteria. Having determined that each parent ceased to have at least 35% care of the Child from 1 March 2015, a terminating event will occur a matter of law.

   DECISION

2. The reviewable decision is set aside and the matter is remitted to the Respondent with the direction that: 

   ·There was no pattern of care provided to the Child by the Applicant or the Other Party from 1 March 2015

   ·Pursuant to section 54F the of the Assessment Act the date of effect of the new care percentage is 1 March 2015;

I certify that the preceding 76 (seventy -six) paragraphs are a true copy of the reasons for the decision herein of

..............................[Sgd]..........................................

Associate

Dated: 15 September 2023

Date(s) of hearing:	27 and 28 June 2023
Date final submissions received:	2 August 2023
Solicitors for the Applicant:	Ms L Craig, Legal Aid NSW
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore
Other Party:	In person