LBYF and Child Support Registrar (Child support second review)

[2022] AATA 4304

LBYF and Child Support Registrar (Child support second review) [2022] AATA 4304 (14 December 2022)

Division:GENERAL DIVISION

File Number(s):2022/3034      

Re:LBYF  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

AndTMLV

OTHER PARTY

Decision

Tribunal:Senior Member G Lazanas

Chris Puplick AM, Senior Member

Date:14 December 2022

Place:Sydney

The decision under review is affirmed.

..............................[SGD]..................................

Senior Member G Lazanas

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

Catchwords

CHILD SUPPORT –  percentage of care – whether parent continues to provide care where child hospitalised – whether parent continues to provide care where child the subject of temporary care arrangement – whether parent continues to provide care where child the subject of children’s court order allocating parental responsibility to the Minister – whether parent has responsibility for making decisions in relation to the welfare of the child – whether parent continues to provide financial and emotional support – decision under review affirmed

Legislation

Children and Young Persons (Care and Protection) Act 1998 (NSW) s 151

Child Support (Assessment) Act 1989 (Cth) s 7B, 22, 51, 54A, 54F, 54G, 54H, 55C

Child Support (Assessment) Regulations 2018 (Cth) r 6

Cases

Frampton and La Ponder (Child Support) [2015] AATA 321

Mirvac and Caster (Child Support) [2018] AATA 3067
P v Child Support Registrar [2013] FCA 1312
Polec & Staker (SSAT Appeal) [2011] FMCAfam 959
SHQY and Child Support Registrar [2021] AATA 930

Shi v Migration Agent Review Authority [2008] 235 CLR 286

Secondary Materials

The Child Support Guide

REASONS FOR DECISION

Senior Member G Lazanas
Chris Puplick AM, Senior Member

14 December 2022

INTRODUCTION

1. The Applicant (Father) and the Other Party (Mother) are separated parents of two children. This proceeding relates to the care of their eldest child now aged 11 (Child) who has several developmental and behavioural challenges.

2. On 8 April 2022, the Father applied to this Tribunal, the General Division of the Administrative Appeals Tribunal (AAT2), for a second-tier review of a decision by the Social Services & Child Support Division of the Tribunal (AAT1) on 18 February 2022 in relation to the care percentage for the Child (AAT1 Decision) for the purposes of the Child Support (Assessment) Act 1989 (Cth) (Assessment Act).

3. The AAT1 affirmed a decision of an objections officer on behalf of the Child Support Registrar, being the Respondent (Registrar), who had decided that the Mother continued to provide 100% care for the Child after 11 April 2021, even where the Child had been hospitalised and later where the Child was the subject of a care arrangement with the NSW Department of Communities & Justice (DCJ) and, subsequently, where the Child was the subject of a court order allocating parental responsibility to the Minister of the DCJ.

4. For the following reasons, we have decided to affirm the decision of the AAT1.

   THE FACTUAL AND PROCEDURAL BACKGROUND

5. Since June 2017, child support assessments have been in place in respect of both children.

6. Relevantly, from September 2020, the care percentages used in the assessment of child support for the Child reflected that the Mother provided 100% care (existing care percentage determination), and the Father 0%.

7. On 2 February 2021, the Child was first hospitalised in a local public hospital. On 2 March 2021, the Child was moved to The Children’s Hospital at Westmead and remained there until 12 April 2021. The events leading up to the hospitalisation of the Child include the Child’s challenging behaviour at home and at school and circumstances where the Mother had called the police over 20 times, in the preceding 18 months, in relation to the Child’s behaviour.

8. On 19 March 2021, the Mother entered a “Temporary Care Arrangement” with the Secretary of the NSW Department of Family and Community Services (FACS), an agency of the DCJ, pursuant to s 151 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (NSW Children Care Act) in the form of a written signed agreement between the Mother and FACS.

9. Section 151(2)(a) of the NSW Children Care Act provides that FACS will have “care responsibility” of a child who is the subject of such an arrangement. The reasons for the Temporary Care Arrangement in relation to the Child are stated in the signed agreement, as follows:

   [The Child] has been in a Health setting since 2 February 2021. Due to [the Child’s] diagnosis and complex behaviours, [the Mother] is currently unable to keep [the Child] safe at home, or keep herself and [the other child] safe from [the Child] when he uses violent and aggressive behaviours.

10. The relevant terms of the Temporary Care Arrangement are:

    ·the Temporary Care Arrangement is voluntary;

    ·an authorised carer is to provide care to the above child;

    ·the Secretary has care responsibility for the above child during the Temporary Care Arrangement, however, the Mother should be informed and, where possible, involved in any significant events which may occur during the temporary care period;

    ·the Mother may have contact with the above child at times arranged with FACS and the authorised carer;

    ·throughout the duration of the Temporary Care Arrangement, the authorised carer of a child has authority to do any of the following:

    oto consent to medical treatment, not involving surgery, for the child on the advice of a medical practitioner

    oto consent to medical treatment involving surgery that a medical practitioner certifies in writing needs to be carried out as a matter of urgency in the best interests of the child

    oto consent to dental treatment involving dental surgery other than minor dental surgery that a dentist certified in writing needs to be carried out as a matter of urgency in the best interests of the child

    oto correct and manage the behaviour of the child, subject to the regulations

    oto give permission to participate in activities such as school excursions, that are organised for the child

    oto make other decisions that are required in the day to day care and contact of the child

    oto provide or permit participation in religious instruction, subject to written direction which may be given by the designated agency that placed the child, or the Children’s Guardian.

    ·unless otherwise brought to an end, the Temporary Care Arrangement ends on 17 June 2021.

11. On 12 April 2021, the Child was moved from The Children’s Hospital at Westmead and placed in the care of Trilogy Disability Services (Trilogy).

12. On 29 April 2021, the Father notified Services Australia (Agency) that as of 2 February 2021, the Child had ceased to live with the Mother and had been placed into the care of a NSW Department. The Mother confirmed to the Agency that a Temporary Care Arrangement had been entered into with the DCJ on 19 March 2021 and that the Child was later moved to Trilogy.

13. On 15 June 2021, the Temporary Care Arrangement was extended for a further three months with an expiry date of 13 September 2021. (The maximum total period for a child under Temporary Care Arrangements is six months). During the period of the Temporary Care Arrangements and while the Child was placed in an out of home placement with Trilogy, the Mother was actively involved in the necessary arrangements and his admission. She visited him regularly which required her to commute a significant way from her home and to make alternative care arrangements for her other child. The Mother was also regularly involved in conferences regarding the Child’s care with his medical team.

14. On 28 June 2021, the Registrar revoked the existing percentage of care determination and substituted a new determination providing that the percentage of care should be reflected as 0% for both parties as from 11 April 2021 (the date prior to the Child being taken into the care of Trilogy).

15. On 29 June 2021, the Father objected to the Registrar’s decision claiming that the 0% care for both parties should have been determined as of 2 February 2021 when the Child was hospitalised after which he never returned to the direct care of the Mother.

16. On or about 13 September 2021, the DCJ assumed care responsibility of the Child from Trilogy.

17. On 21 September 2021, the NSW Children’s Court made an order under the NSW Children Care Act that “all aspects of parental responsibility” for the Child were allocated to the Minister administering that Act, until further order. The applicant for that order was the DCJ.

18. The Report in support of the application initiating care proceedings in the NSW Children’s Court prepared on behalf of the DCJ (DCJ Report) “to support a determination that a child is in need of care and protection” sets out the following circumstances as having led to the removal or assumption of the Child’s care:

    1On 13 September 2021, the Department of Communities and Justice (DCJ) assumed care responsibility of [the Child] from Trilogy Disability Services. [The Child] has been known to DCJ since 12 June 2017 and has been the subject of twenty two (22) Risk of Significant Harm Reports. … [The Child] has complex diagnoses of Autism Spectrum Disorder Level 2, Mild Intellectual Disability, expressive and receptive speech delay, Klinefelter’s Syndrome and generalised anxiety. As a result of these diagnoses and historic trauma, [the Child] exhibits a range of behaviours that make it unsafe for him to return to the family home.

    2[The Mother] has continually stated she cannot care for [the Child] for [the Child] at this time. [The Mother] is unable to keep herself safe or [the other child] safe from [the Child’s] violent behaviours or [the Child] safe from himself. [The Mother] required police assistance nine (9) times from October 2020 until [the Child’s] admission to [hospital] on 1 February 2021. [The Child] absconded from public places, from medical appointments and the family home in daylight hours and at night when the family has been sleeping. [The Child] has chased his family with a knife, punched in the face and head, pulled hair, locked family out of the home, [the Mother] has repeatedly spoken of living in fear that [the Child] will kill [the other child] or herself or be hit by a car while absconding from her home. Family Law Court orders awarded sole custody of both children to [the Mother] and an order prohibiting [the Father] contacting or approaching [the Mother], [the other child] or [the Child].

    The Temporary Care Arrangement was extended on 15 June 2021 and expired for the second time on 13 September 2021. [The Child’s] behaviours remain escalated with frequent violent escalations with damage to staff and property. [The Child] is supported with an NDIS plan and Behaviours Support Plan (BSP) and 2:1 staffing in his Trilogy placement, but it remains unsafe to restore [the Child] back to his family home.[1]

    [1] T4, 89-90.

19. The DCJ Report also noted that police are unable to take action against the Child due to doli incapax and, further, that the Child is unable to be dealt with under mental health legislation as his issues are behavioural and not mental health related. Additionally, it was noted that the hospital had advised that there are no health reasons for the Child to remain in a health setting. Separately, the DCJ Report noted that the NDIS coordinator had advised that over 30 referrals had been made to locate respite care for the Child but, due to the Child’s behaviours, all declined to provide a service.

20. The DCJ Report proposed that the Mother and the other child have liberal and frequent contact with the Child.[2]

    [2] T4, 113.

21. On 30 September 2021, following the provision of further evidence by the Mother, the Registrar determined that the Mother continued to provide 100% care for the Child from 11 April 2021.

22. On 21 October 2021, the Applicant sought a review of the Registrar’s decision in the AAT1.

23. On 18 February 2022, the AAT1 conducted a hearing in the matter taking evidence from both the Father and the Mother and, on the same day, the AAT1 affirmed the decision under review. The AAT1 noted that there was no dispute that the Child ceased to be in the Mother’s overnight care from 2 February 2021 when he was admitted to hospital. The AAT1 found that the care arrangements for the child were not simply referable to overnight care and that the Mother continued to be involved in all major decisions in relation to the Child’s health, discipline, social and other activities, and provided ongoing practical and emotional support. The AAT1 concluded that the Mother continued to provide care in accordance with the existing care percentage determination.

24. On 8 April 2022, the Father applied to the AAT2 seeking a review of the AAT1 decision.

25. The hearing of this matter took place before us on 28 October 2022.  We spoke to the Father and the Mother separately on account of the fact that there is a protection order in place, with no end date, made by the Federal Circuit Court prohibiting the Father from, amongst other things, contacting the Mother and the children. Both the Father and Mother were self-represented. The Registrar was represented by Mr Eskerie from Sparke Helmore Lawyers who participated in the separate discussions involving the Father and the Mother.

26. We considered the oral and written evidence and the submissions of the parties, together with the documents lodged by the Registrar pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents).

    THE ISSUES BEFORE THis TRIBUNAL

27. The Tribunal’s review of the AAT1’s decision is confined to the question of the care provided for the Child by the Mother.[3]  Accordingly, in reviewing the AAT1 decision, the key issue for determination by the Tribunal is whether the existing care percentage determination (100% to the Mother) must or should be revoked. If so, there are secondary issues to be determined, including from when does the revocation take effect and what is the Mother’s percentage of care for the Child during the care period.

    [3] The Father has been determined to have 0% care for the Child and has made no claim that this determination is incorrect or needs to be varied.

28. In light of our decision that the AAT1 decision is correct, and the existing care percentage determination should not be revoked, it is unnecessary for us to consider the secondary issues.

    The Mother’s Evidence

29. The Mother gave evidence that while the Temporary Care Arrangement is expressly stated to have been entered into voluntarily, she felt that she did not have much choice as she had been seeking assistance for some time to address the violent and aggressive behaviours of the Child and nothing was available. She resorted to entering this arrangement as she considered it was in the best interests of the Child in circumstances where it was unsafe for him, her, and her other child for the Child to return home from the hospital. She stated that it was her understanding that parental responsibility remained with her throughout, although she acknowledged that from 12 April 2021 the Child had commenced an out of home care placement with Trilogy.

30. The Mother stated that she continued to have meaningful input in relation to decisions regarding the Child’s medical care throughout, including after the NSW Children’s Court ordered that all aspects of parental responsibility for the Child were allocated to the Minister of the DCJ on 21 September 2021. She stated that nothing had changed except the legalities of parental responsibility because, on a practical level, she continued to be involved in his care from when he was first hospitalised, subsequently while under the care of Trilogy, and later after the DCJ assumed care. She explained that her involvement meant that she not only made arrangements, but she was consulted and participated in relevant decision-making about the Child’s health, medications and education and general welfare.

31. The Mother stated that while she did not pay for his accommodation costs or the bulk of his medical costs (which were covered by the public hospitals, and later by DCJ), she purchased clothing, shoes, and other personal hygiene items for him, as well as games and activities, food and snacks and had also paid for occupational therapy and speech therapy sessions that were not covered by his NDIS plan. She had also enrolled the Child in sporting activities. She also continued to be involved in emotionally supporting him under the guidance of his carers as to when and where it was appropriate to visit him.

32. The DCJ Report confirms that the Mother participated in numerous meetings with his treating psychiatrist and medical teams and continued to be involved in all planning and review meetings with therapists and support co-ordinators for the purposes of his NDIS package. The Mother also advocated for increased funding for therapeutic intervention and behaviour support at NDIS planning meetings. The Child first started a NDIS plan in August 2017 and was receiving 2:1 support service 24 hours a day, 7 days per week since 12 April 2021.  

33. The Mother stated she regularly visited the Child when in the hospitals from 2 February 2021.  At the time of the hearing, the Mother had been visiting the Child in his placement home twice per week, as well as on special events such as his birthday and when he was running certain social events.

34. The Mother stated that following the NSW Children’s Court orders, the Child’s health responsibility is shared between her and DCJ but she continues to be involved including to provide relevant medical history to his medical team and allied health practitioners. The Mother also continues to be responsible for his educational and cultural development. She stated that at the beginning of 2022, she had arranged for special education classes for the Child at a special school noting that the Child was not able to attend school when in Trilogy’s care but had participated through distance education. She stated that while the relevant enrolment forms for the special school had to be signed by the DCJ, she had been involved in all the school meetings and in making the necessary arrangements including making plans as to where the Child may be able to later attend high school.

35. When the Child was placed with Trilogy, the Mother had to travel extensively to visit the Child and had to make alternative arrangements for the care of her other child. The Mother later organised, at significant expense, to relocate herself and the other child to rental premises closer to the Child’s out of home place, to facilitate regular visits to him. She also stated that she had rented a three-bedroom home to accommodate her and her two children because her plan continues to be to bring the Child home.

36. The Mother referred to letters and other documents amongst the T-Documents corroborating her assertions which we accept. For example, we noted the following:

    (a)The Manager Casework for the DCJ confirmed in a letter dated 23 July 2021 that the Child is currently in a Temporary Care Arrangement and that “[the Mother] retains all aspects of Parental Responsibility for [the Child]. As such, [the Mother] remains financially responsible for all aspects of [the Child’s] care, apart from the accommodation cost”.[4]  

    (b)The DCJ Report dated on or about 16 September 2021 recorded the extensive involvement of the Mother with respect to the Child, including with his medical teams during the period from 5 March 2021 to 8 September 2021.[5]

    (c)The Child’s treating psychiatrist, Dr David Dossetor from The Children’s Hospital at Westmead, stated in a letter dated 21 July 2022 that “although [the Child] does not currently live with his mother … she is still actively involved with regular meetings regarding [the Child’s] care and medications. [The Mother] also provides [the Child’s] clothing and shoes, as well as any personal care items that [the Child] requires. [The Mother] visits [the Child] on a regular basis and they also cook and have meals together during the week. [The Mother] works alongside Allied Health and other Providers to facilitate all of his requirements and needs.”[6]

    (d)The Manager Casework for the DCJ confirmed in a letter dated 24 August 2022 that “[the Child] is currently in the Care of the Minister. [The Child’s mother], [the Mother] has continued to support [the Child] financially, apart from accommodation cost”.[7]

    (e)There were various receipts for expenses regarding food and snacks, clothes, shoes, therapy sessions included in the T-Documents, and extracts from the Mother’s bank statements showing, amongst other things, her fuel and rent expenses.[8]

    [4] T36, 201.

    [5] T4, 96-111.

    [6] Attachment to the Mother’s submission dated 12 September 2022, page 4.

    [7] Attachment to the Mother’s submission dated 12 September 2022, page 3.

    [8] Attachments to the Mother’s submission dated 12 September 2022, pages 11 – 35.

    The Father’s Submissions

1. The Father argued that he should not be required to pay child support payments from 2 February 2021 as the Child ceased to be in the overnight care of the Mother from that date. He further submitted that the later events, namely, when the Child was placed in a Temporary Care Arrangement by the DCJ on 19 March 2021 which involved him being looked after by Trilogy and, subsequently, when the DCJ assumed “full parental responsibility” for the Child by virtue of the NSW Children’s Court order on 21 September 2021, were “additive at each stage” in respect of his argument that he should not be required to pay. The Father relied on various grounds, as explained below.

2. First, the Father argued that the Mother ceased to be an “eligible carer” under subsection 7B(2) of the Assessment Act. Section 7B defines “eligible carer” as follows:

   (1)In this Act, eligible carer, in relation to a child, means a person who has at least shared care of the child.

   (2)Despite subsection (1), if:

   (a)a person cares for a child; and

   (b)the person is neither a parent nor a legal guardian of the child; and

   (c)a parent or legal guardian of the child has indicated that he or she does not consent to the person caring for the child;

   then the person is not an eligible carer in relation to the child unless it would be unreasonable in the circumstances for a parent or legal guardian of the child to care for the child.

   (3)For the purposes of subsection (2), it is unreasonable for a parent or legal guardian to care for a child if:

   (a)the Registrar is satisfied that there has been extreme family breakdown; or

   (b)the Registrar is satisfied that there is a serious risk to the child’s physical or mental wellbeing from violence or sexual abuse in the home of the parent or legal guardian concerned.

3. Subsection 7B(2) is irrelevant to the present proceeding as that subsection applies to non-parent carers. It does not apply in circumstances where, as here, the Mother is a parent of the child (see s 7B(2)(b)). It appears that the Father selectively read s 7B(3) (as set out above) and argued that the Mother is not an eligible carer as “it is unreasonable for a parent to care for a child if … there is serious risk to the child’s physical or mental wellbeing from violence … in the home of the parent”. That is, the Father read s 7B(3) out of context overlooking the fact that all that s 7B(3) does, read in context, is inform the meaning of a non-parent carer in the definition of “eligible carer” by addressing and explaining certain circumstances set out in sub-section 7B(2). Accordingly, the Father’s argument on the application of s 7B(2) is misconceived.

4. Secondly, the Father referred to the decision in Mirvac and Caster (Child Support) [2018] AATA 3067 to point out that that case referenced parents (as distinct from non-parents) and s 7B of the Assessment Act in further support of his first argument. In that case, the Tribunal was satisfied there were no non-parent carers and that one parent in that case had “shared care”. The Tribunal held that neither of the parents was an “eligible carer” as defined in
   s 7B where the child had been living without direct daily parental supervision and commenced full-time employment and achieved a level of financial independence, as neither parent had overall control of or responsibility for making major decisions in relation to the child. That case is of no assistance to the Father’s argument in relation to subsections 7B(2) and 7B(3) of the Assessment Act as those sub-sections were not considered. The case is also of no assistance generally in relation to the present case as the factual circumstances are different.

5. Thirdly, the Father argued the Mother did not provide actual care after the Child was hospitalised from 2 February 2021. In relation to the hospitalisation period, the Father submitted that the Child was “abandoned” to hospital services and the Mother did not make any financial contributions. In relation to the period from 19 March 2021 when the Temporary Care Arrangement started, the Father stated that the letters in support of the Mother to the effect she retained parental responsibility and financial responsibility (aside from accommodation costs) contradicted the terms of the signed Temporary Care Arrangement agreement. In relation to the period following the NSW Children’s Court order on 21 September 2021, the Father relied on the express terms of the order that “all aspects of parental responsibility for [the Child] are allocated to the Minister” in support of his contention that the Mother was not allowed to and did not provide care for the Child.  

   RELEVANT LAW AND PRINCIPLES

6. The relevant provisions of the Assessment Act with respect to the revocation of an existing care percentage determination are ss 54F, 54G and 54H. The relevant extracts of these provisions are set out below.

   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).

7. As s 54H can only apply if ss 54F and 54G do not apply and, as s 54F can only apply if s 54G does not apply, it is appropriate to first consider the applicability of s 54G, followed by the applicability of s 54F and finally, s 54H.

8. It is clear on the facts of this case that s 54G of the Assessment Act does not apply because s 54G(1)(c) is not satisfied. This is because the determination of the existing care percentage determination of 0% for the Father (the other responsible person) is one that was made under s 49 and not s 50 of the Assessment Act. Broadly, s 49 applies where the “responsible person” (defined by s 5(1) to include a parent) has had no pattern of care for a child whereas s 50 applies where the responsible person has had a pattern of care for the child.

9. Section 54F applies if there is an existing care percentage determination in place for the responsible person in respect of the child and the care of the child that actually took (or is actually taking) place did or does not correspond with the responsible person’s existing care percentage for the child and the responsible person’s cost percentage for the child would change if a new care percentage determination was made.

10. A person’s cost percentage is determined by reference to their care percentage for the child and for the purposes of s 54F is to be ascertained in accordance with the table in s 55C of the Assessment Act 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. If the Tribunal concludes that s 54F does not apply, then it should proceed to consider whether s 54H applies.

2. Section 54H requires the Tribunal to consider, in deciding whether to revoke an existing care percentage determination, whether the care of the child that actually took (or is actually taking) place did or does not correspond with the responsible person’s existing care percentage for the child and if the Tribunal were to determine a new percentage of care for the responsible person, whether the new care percentage would not be the same as the existing percentage of care for the child.

3. Significantly, it is to be noted that unlike ss 54F and 54G which mandate revocation if the relevant requirements are met, revocation under s 54H is discretionary.

4. “Care” is not defined in the Assessment Act. 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 and circumstances: see P v Child Support Registrar [2013] FCA 1312 at [107] per Wigney J. The decision of Federal Magistrate Hughes in Polec v Staker (2011) 253 FLR 339 at [56] provides a helpful list of factors to assist decision-makers in determining whether care exists. These factors are also set out in The Child Support Guide (at [2.2.1]), as follows:

   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:

   ·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).

   ·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

5. For the reasons explained below, we have determined the care of the Child that actually took (or is taking) place corresponds with the responsible person’s existing care percentage determination and that the responsible person’s cost percentage for the Child would not change if a new care percentage determination was made. That is, the actual care provided by the Mother corresponds with the existing care percentage determination.

6. Accordingly, s 54F does not apply. Further, we have decided that s 54H does not apply for relevantly the same reason, but that even if it did apply, we would exercise the discretion to retain the same care percentage determination in the circumstances of this case.

   Determining whether care exists

7. Section 54A of the Assessment Act 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.

8. Where a pattern of care is found to exist, s 54A(1) provides that actual care may be worked out based on the number of nights a child was or was likely to be in the care of a parent. However, the use of the word “may” in s 54A is permissive: see P v Child Support Registrar [2013] FCA 1312 at [56] – [62].

9. It follows that if the Tribunal finds that it is not appropriate in the particular circumstances of the case to work out actual care based on nights in care, as is the case here, it is open to the Tribunal to employ a different methodology, and the weight to be given to financial considerations will differ in each case and depend on the particular facts and circumstances: see P v Child Support Registrar [2013] FCA 1312 at [108].

10. It is common ground in this case that the Mother ceased to have overnight care of the Child from 2 February 2021. The dispute is as to whether the Mother had any care of the Child from that point in time.

11. The Father submits that the Mother ceased to have any care of the Child from 2 February 2021, when the Child was admitted to hospital, or from 19 March 2021 at the latest, being the date on which the Mother entered the Temporary Care Arrangement with the DCJ. The Father also relies on the interim care order made by the NSW Children’s Court on 21 September 2021 which assigned “all aspects of parental responsibility” for the Child to the Minister until further order. He submitted that it is plainly inconsistent with the Mother’s claim to continue to care for the Child.

12. On the other hand, the Mother contends that the earliest date on which her care of the Child can be said to have changed is 12 April 2021, from when the Child commenced the placement at Trilogy, but she submitted she has nevertheless continued to provide care for the Child in a financial capacity since that time (other than accommodation costs) and to be involved in all major decisions in his life.

    Has there been a change in the care of the Child?

13. We are required to review the care that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] 235 CLR 286. 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. There is no such limitation requiring the referencing of the state of the evidence at a particular point in time in the present matter. See also Frampton and La Ponder (Child Support) [2015] AATA 321 at [54] to [58] and SHQY and Child Support Registrar [2021] AATA 930 at [45] to [46].

14. Accordingly, in undertaking this task, we have reviewed all the evidence of care during the period, including after the AAT1 decision, to determine whether the care that actually took place during the care period corresponded with the existing care percentage determination for the Mother. This is because the determination of whether a person provides care for a child under the Assessment Act is concerned with the actual care provided by a person.

15. A person may provide actual care for a child without providing overnight care for that child. That is, the child does not have to be in the physical presence of the person. A person may, therefore, care for a child even if not done directly. This is because a person can provide care by making arrangements for a child to be provided with accommodation, food, or otherwise providing financially for the child’s needs. They may also do so, for example, by deciding for the needs of the child to be met by others by way of delegated care. In the present case, the Mother decided that she could not take care of the Child at home because of the significant risks but arrangements were made for the Child to be cared for. Accordingly, whether a person has legal parental responsibility for a child or direct care is not determinative of who provides actual care for a child.

16. As stated above, there is no dispute that the Child ceased to be in the Mother’s overnight care from 2 February 2021 when he was hospitalised.  We find that the Mother continued to maintain parental responsibility during the hospitalisation period. We also conclude that she continued to provide actual care for the Child during his hospitalisation and did not abandon the Child as claimed by the Father. This is because the Mother continued to provide emotional and financial support and was actively involved in all decision making about the Child’s health and care generally.

17. It is also not disputed that the Mother voluntarily entered a Temporary Care Arrangement with the DCJ on 19 March 2021 which was renewed for a second term in June 2021. As a result of that arrangement entered into by the Mother, the Child was placed in an out of home placement on 12 April 2021 with Trilogy. The Child also had NDIS care of 2:1, 24 hours a day, seven days a week which the Mother had been involved in arranging. Regardless of the fact the Child was in an out of home placement, in our view, the Mother continued to provide actual care for the Child during the period of the Temporary Care Arrangement as, besides procuring the arrangement, she continued to provide emotional and financial support and was actively involved in the decision-making regarding the Child’s welfare.

1. This conclusion is reached notwithstanding the terms of the Temporary Care Arrangement agreement which states “the Secretary has care responsibility for the [Child] during the Temporary Care Arrangement”. As is evident from the extracts of the agreement set out at [10] above, the agreement specifically also required that the Mother should be informed and where possible involved in any significant events. This is precisely what occurred as confirmed by the DCJ’s contemporaneous documents referred to at [36(a)] and [36(b)] above.

2. The Mother continued to be actively involved in all significant events in the Child’s life and she continued to visit him when in Trilogy’s care even though she incurred significant costs to commute and had to make arrangements for the care of her other child. The Mother also decided to relocate with her other child to a three-bedroom home to be closer to where the Child was living to be able to visit him more frequently. While the Mother did not pay for the Child’s accommodation and food from the time he was hospitalised, the Mother purchased other items for him including clothing, activities and paid for certain therapy sessions not covered by the Child’s NDIS plan.

3. The Mother continued to provide the same actual care for the Child even after the NSW Children’s Court ordered “all aspects of parental responsibility” for the Child to be allocated to the Minister of the DCJ on 21 September 2021. We accept the Mother’s evidence that, on a practical level, nothing changed, and she continued to be actively involved in the Child’s care in the same way as beforehand, except that the legal position was that the DCJ had to sign documents with respect to the Child such as his special school enrolment forms. Therefore, the actual care for the Child was the same as before the court order. We were reinforced in our views by the contemporaneous letters provided by the Child’s treating psychiatrist, Dr David Dossetor from The Children’s Hospital at Westmead and by the DCJ Manager Casework (see [36](c) and [36](d) above).

4. We consider that our conclusion that the Mother continued to provide actual care for the Child even though care responsibility was assumed by other parties is not incongruous as these concepts are, evidently, not concerned with the same thing. The concept of care is broad and includes making arrangements for and decision-making about the welfare of a child. Our views are consistent with Polec’s case and The Child Support Guide.

5. This was a complex case because the Child has severe developmental and behavioural challenges, and he could not be cared for at home. There was a need for him to be properly supervised away from home as the Child was violent and aggressive over a considerable period and there were significant risks for the Child and others. The Mother and various health practitioners acknowledged the Child was dangerous and his needs were acute and demanding.

6. While the Mother relinquished aspects of parental responsibility for the Child to be looked after away from home by third parties, the Mother continued to provide actual care for the Child in the form of making arrangements for the welfare of the Child and providing emotional and financial support. Most significantly, the Mother continued to be actively involved in the arrangements for the Child and in the decision-making regarding his welfare, including his health care and education and in maintaining frequent contact with the Child.

7. In the circumstances, we do not see any basis for any change to the existing care percentage determination, namely, 100% care of the Child by the Mother. We further note the child support legislation is concerned with setting a percentage of care based on a pattern of care during the care period. This is a broad concept and encompasses recurrent patterns of care for a child which do not necessarily end upon significant events. We have determined that the pattern of care in the present case did not change from the initial hospitalisation of the Child for the reasons we have explained.

   Other Matters

8. For completeness, we note subsections 49(3) and 50(4) raise the question of the applicability of s 51 of the Assessment Act which states, as follows:

   (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.

   Note:  This section does not apply in certain circumstances: see section 53.

   2 percentages of care in relation to the responsible person

   (2)Subject to subsection (5), the Registrar must determine, under section 49 or 50, 2 percentages of care in relation to the responsible person.

   (3)The first percentage of care is to be a percentage that corresponds with the extent of care of the child that the responsible person should have had, or is to have, under the care arrangement during the care period (which may be nil).

   (4)The second percentage of care is to be:

   (a)for a determination under section 49—0%; or

   (b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

   Single percentage of care in relation to the responsible person

   (5)If the Registrar is satisfied that special circumstances exist in relation to the child, the Registrar may determine, under section 49 or 50, a single percentage of care in relation to the responsible person.

   (6)The single percentage of care is to be:

   (a)for a determination under section 49—0%; or

   (b)for a determination under section 50—a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person would be likely to have during the care period if the action referred to in paragraph (1)(d) were not to succeed.

9. Broadly, s 51 applies in situations where a care arrangement exists in relation to a child and action is taken by a parent to ensure compliance with the arrangement. We are satisfied that s 51 is not applicable to this matter as there is no question of the Mother having taken action to ensure that a care arrangement is being complied with.

10. Finally, we further note that we had regard to subsection 22(1) of the Assessment Act which states:

    (1)The regulations may provide that children who are under the care (however described) of a person under a child welfare law are not eligible children.

11. Broadly, Regulation 6 of the Child Support (Assessment) Regulations 2018 (Cth) states that for the purposes of subsection 22(1) of the Assessment Act, children are not “eligible children” if they are in the custody of, or under the guardianship, care and control or supervision of, a person under a child welfare law of Western Australia or South Australia. As the Regulations do not cover the child welfare laws of New South Wales, the Child is an “eligible child” for the purposes of the Assessment Act.

    Conclusion

12. The AAT1 correctly decided to refuse to revoke the existing care percentage determination and, accordingly, the Registrar’s objection decision to the effect that the Mother provides 100% care and the Father provides 0% care of the Child is affirmed.  

I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member G Lazanas and Chris Puplick AM, Senior Member

..............................[SGD].................................

Associate

Dated: 14 December 2022

Date(s) of hearing:	28 October 2022
Applicant:	In person
Solicitors for the Respondent:	Mr K Eskerie, Sparke Helmore Lawyers
Other Party:	In person