LGSG and Child Support Registrar (Child support second review)

[2020] AATA 2215

LGSG and Child Support Registrar (Child support second review) [2020] AATA 2215 (15 July 2020)

Division:GENERAL DIVISION

File Number:          2019/5787

Re:LGSG

APPLICANT

AndChild Support Registrar

RESPONDENT

AndRXKV

OTHER PARTY

DECISION

Tribunal:Member R West

Date:15 July 2020

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution, decides that:

1.    the child support assessment in place from 27 March 2018 is revoked with effect on 21 August 2018; and

2.    a new percentage of care determination is made that RXKV has 100% care of the children with effect from, and including, 22 August 2018.

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

Member R West

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 determination – change of care percentage – revocation of existing care determination – interim determination considered – special circumstances – date of change – date of new determination – decision set aside and substituted.

Legislation

Child Support (Assessment) Act 1989

A New Tax System (Family Assistance) Act 1999

REASONS FOR DECISION

Member R West

15 July 2020

1. This matter concerns an application for review of a decision of the Social Services and Child Support Division of the Tribunal (AAT 1) on 21 August 2019 to affirm a decision of the Respondent to determine the care percentages as between the Applicant and the Other Party for the purpose of a care determination.

   LEGISLATION

2. The legislation under consideration is the Child Support (Assessment) Act 1989 (Act), the relevant sections of which are:

   49Determination 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.

   50Determination of percentage of care--responsible person has had etc. a pattern of care for a child

   (1)       This section applies if:

   (a)either of the following applies:

   (i)     an application is made under section 25 or 25A for a parent to be assessed in respect of the costs of the child;

   (ii)    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, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

   (b)both of the following apply:

   (i)     the determination of a responsible person's percentage of care for a child that was made under section 49 or this section 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, a pattern of care for the child during such period (the care period ) as the Registrar considers to be appropriate having regard to all the circumstances.

   (2)The Registrar must determine the responsible person's percentage of care for the child during the care period.

   (3)The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.

   (4)Subsection (3) does not apply if section 51 applies in relation to the responsible person.

   51Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with

   (1)       This section applies if:

   (a)the Registrar is required by section 49 or 50 to determine a responsible person's percentage of care for a child during a care period; and

   (b)a care arrangement applies in relation to the child; and

   (c)the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and

   (d)a person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

   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.

   …

   54FDetermination 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).

   (2)This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)all of the following apply:

   (i)     section 51 did apply in relation to the responsible person;

   (ii)    the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;

   (iii)   an interim period does not currently apply in relation to the earlier determination;

   (iv)   the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note: For when section 51 does not apply, see section 53.

   (3)The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)     the responsible person's care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)    the responsible person's care of the child has reduced—the day before the change of care day.

   BACKGROUND

3. The Applicant (father) and the Other Party (mother) are the parents of two children.

4. The child support assessment in place from 27 March 2018 was based on a court order dated 25 January 2018 that the Applicant had 49% and the Other Party 51% care of the children.

5. On 22 August 2018, the Other Party informed the Respondent that she had 100% care of the children from 25 June 2018.[1]

   [1] T12, T-documents, at p.65.

6. On 28 August 2018, the Applicant informed the Respondent that he continued to have 50% care of the children pursuant to court orders[2] and that the Other Party had taken the children without his consent on 27 July 2018.

   [2] T12, T-documents, at p.66.

7. On 27 October 2018, the Respondent determined that there had been a change in care and made a new care determination that the Applicant had 0% care and the Other Party 100% care, from 25 June 2018 (the October Care Determination).[3]  The October Care Determination was made with effect from 22 August 2018 as the Respondent was not notified of the change of care within 28 days.

   [3] T13, T-documents, at p.105.

8. On 6 September 2018, the Federal Circuit Court of Australia made an interim order[4] regarding the care of the children and a further new care determination was made for care from 7 September 2018 reflecting the terms of the interim order.

   [4] ST4, Supplementary T-documents, at p.212.

9. On 7 November 2018, the Applicant objected to the October Care Determination.[5]

   [5] T12, T-documents, at p.78.

10. On 13 March 2019, the Respondent considered the Applicant’s objection and affirmed the care percentages in the October Care Determination but amended the effective date of the October Care Determination to 9 August 2018 (Objection Decision).[6]

    [6] T3, T-documents, at p.11–15.

11. On 6 June 2019, the Applicant sought a review of the Objection Decision by the Social Services and Child Support Division of this Tribunal, and on 21 August 2019 the Tribunal affirmed the Objection Decision (AAT 1 Decision).[7]

    [7] T2, T-documents.

12. On 12 September 2019, the Applicant applied for the review of the AAT 1 Decision by the General Division of the Tribunal.

    Tribunal Hearing

13. A hearing in relation to the review was held by telephone on 30 April 2020.  The Applicant and the Other Party were each self-represented.  The Respondent was represented by Ms Voigt, a solicitor with Services Australia.  The Respondent appeared on an amicus curiae basis, electing not to advance a position as to the findings of fact on the basis that the nature of the proceedings was essentially a dispute between the Applicant and the Other Party.

14. The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 pandemic.  These restrictions necessitated that the hearing not be conducted in person.  The parties each consented to the hearing proceeding on 30 April 2020 on the basis that it was conducted by telephone.

15. Following the hearing the parties were given an opportunity to provide additional documents to the Tribunal.  The Applicant and the Other Party each provided a number of documents including as follows:

    a.    a draft unsigned Family Court Affidavit,

    b.    a copy of a text message dated 29 September 2019,

    c.     a sworn statement of the Applicant dated 6 September 2018,

    d.    a letter to the Other Party from Department of Health and Human Services dated 7 January 2018,

    e.    a letter to whom it may concern from the Safe Steps Family Violence Response Centre dated 7 May 2020

    f.   a child support assessment statement for the period 25 November 2019 to 31 December 2020;

    g.    a statement of the Applicant dated 25 May 2020 and an attached letter to the Applicant from Victoria Police, dated 6 September 2018, and

    h.     a Federal Circuit Court order dated 25 November 2019.

    ISSUES

16. In reviewing the Respondent’s decision to make a new care determination, the Tribunal effectively stands in the shoes of the Respondent and is required to determine afresh whether a new care determination should be made to replace the previous assessment.

17. In this case the determination in question is the October Care Determination which replaced the child support assessment in place from 27 March 2018.  The Respondent’s determination of 7 September 2018, which reflected the terms of the Court’s interim order of 6 September 2018, is not subject to review.  Accordingly, the Tribunal’s jurisdiction in this matter is confined to the assessment of the support for the children after 27 March 2018 and prior to 7 September 2018.

18. In deciding whether the child support assessment in place from 27 March 2018 should be replaced with a new care determination the following issues need to be considered:

    a.Section 54F of the Act requires that an existing care percentage decision must be revoked if the actual care that is taking place does not correspond with the percentage of care stated in the decision and that change would alter the parent’s cost percentage as determined under s 55C.

    b.Under the Act the assessment of the child support payable by one parent to the other is calculated using a statutory formula which considers the parents’ respective taxable incomes, the number of children and the relative percentages of care as between the parents.  Under ss. 49 and 50, the percentage of care is assessed on the basis of the actual or likely pattern of care during a care period. 

    c.Section 51 of the Act provides that an interim determination may be made if there is a formal care arrangement in place which has not been complied with. Under s 3 of the A New Tax System (Family Assistance) Act 1999, a care arrangement includes an arrangement under a written agreement between the parents, a court order or a parenting plan.  Section 51 of the Act further provides that an interim determination may be made if the parent with reduced care takes reasonable action to have the agreement, court order or parenting plan complied with. 

    d.A further consideration under s 51 of the Act arises from subsection (5), which provides that if special circumstances exist in relation to a child a single percentage of care rather than two percentages of care may be determined based on the actual care taking place.

    CONTENTIONS

19. The Applicant and the Other Party agreed that after 27 March 2018 the actual percentage of care changed such that the Other Party assumed 100% care of the children.  The issue in dispute is the date upon which this occurred.  The Applicant contended that it was       21 July 2018.  The Other Party claimed it was 25 June 2018.

20. The Applicant asserted that an interim determination should be made reflecting the percentages of care stated in the court order of 25 January 2018, that the Applicant had 49% and the Other Party 51% care of the children, on the basis that he had taken reasonable action to have the court order complied with.  The Applicant further submitted that there were not special circumstances warranting a single percentage of care determination under s 51(5) of the Act.

    Evidence

21. In conducting the review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T-Documents), the oral evidence of the Applicant and the Other Party, and the additional documents lodged by the parties with leave following the hearing.

    The Applicant’s Evidence

22. The Applicant gave evidence that the care arrangement in place from 27 March 2018, based on the court order dated 25 January 2018 that the Applicant had 49% and the Other Party 51% care of the children, had been complied with prior to 21 July 2018.  These arrangements gave the Applicant care of the children three days one week and four days the next on a rotating fortnightly cycle.[8]

    [8] ST2, Supplementary T-documents, at p.197.

23. The Applicant stated in a sworn affidavit tendered in the Federal Circuit Court,[9] that there were arrangements on 21 July 2018 whereby both parents were to attend at the Epping Police Station carpark at 6:00 pm for the changeover of the children.  The Applicant said he waited in the carpark until 7:30 pm and as the Other Party had not arrived by then, he reported the matter to the officer on duty at the Epping Police Station.  The officer contacted the Other Party who told the officer not to get involved in family court matters.  The Applicant stated that he contacted the Mill Park Police Station on  

    
    

    Sunday, 22 July 2018 to seek assistance in locating the children, but he was told to take the matter up with his solicitor.  He stated that on Monday, 23 July 2018 he contacted the children’s school and was told that the children were not in attendance at school.  He said that he then contacted his solicitor.  He said he was subsequently advised by his solicitor that the children had been admitted to a women’s refuge which had advised the Other Party not to make the children available to the Applicant or allow them to attend school.  

    
    

    In his oral evidence, the Applicant stated that he contacted child support and sent a letter to the Department of Human Services (DHS) or Centrelink on 5 August 2018 expressing his concerns for the safety of the children.

    [9] ST2, Supplementary T-documents, at pp.191–192.

24. On 27 July 2018, the Applicant filed an application with the Federal Circuit Court[10] seeking orders, inter alia, that the children be returned to the Applicant’s sole care with the Other Party having supervised access to the children.

    [10] ST2, Supplementary T-documents, at p.189.

25. In an unsworn statement provided to the Tribunal,[11] the Applicant supported his assertion that the care arrangements for the children did not change until 21 July 2018 with the following:

    a.a letter to DHS sent on 5 August 2018, and incorrectly dated 5 July 2018,[12] which stated the Other Party had failed to return the children to him at the Epping Police Station as arranged on 21 July 2018;

    b.school records from the children’s school showing their attendance at school up to 18 July 2018, when the Applicant claimed the children were handed over to the Other Party as part of the care arrangement; and

    c.medical certificates for both children dated 25 June 2018,[13] evidencing their absence from school due to illness while in his care.

    [11] ST5, Supplementary T-documents.

    [12] See T10, T-documents, at p.56.

    [13] See also T9, T-documents, at p.52–53.

1. The T-documents also contain photographs of the two children provided by the Applicant and dated 25 June and 4 July 2018[14] when the Applicant claimed they were in his care.

   [14] T9, T-documents, at p.39–45.

2. In a letter to the Applicant dated 6 June 2019,[15] the DHS stated:

   …our file indicates that [the Other Party] and the children entered refuge accommodation on 26 June 2018.  I acknowledge the photos you provided via email of the children in your care on 4 July 2018, in addition our file also notes that the children’s contact with you continued until 21 July 2019.  Contact was withheld at this point due to [the Other Party’s] fears of being located by yourself.

   [15] T1, T-documents, at p.3.

3. The Applicant gave evidence at the hearing that he was not a risk to the children and that he had no history of violence.  He claimed he retained a licence for his employment and a Working with Children Check, and asserted that there was no evidence to support the Other Party’s claims that he represented a threat of domestic violence toward her or the children.  He asserted instead that the Other Party had threatened violence, and produced copies of intervention orders taken out by himself and his sister against the Other Party following an incident at his mother’s house in November 2017.  He also asserted in a sworn statement dated 6 September 2018, lodged with the Tribunal following the hearing, that the Other Party had made threats to kill against him, and produced a letter from Victoria Police confirming that the Other Party had been charged and found guilty on 5 August 2019 and sentenced to a Community Corrections Order.

   The Other Party’s Evidence

4. The Other Party insisted in her oral evidence that the change of care arrangements occurred on 25 June 2018 when she moved to a refuge for her own safety.  She said that she had no contact with the Applicant after 26 June 2018 and asserted that the shared care arrangements of alternating three and four days care each week ceased from that date.  She reported this to Centrelink.[16]  DHS records indicate that there are conflicting claims by other individuals regarding the date on which the Other Party assumed 100% care of the children,[17] but DHS records note 26 June 2018 as the date from which the Other Party actually had 100% care of the children.[18]

   [16] T12, T-documents, at p.73.

   [17] T12, T-documents, at p.67 (which refers to 2 and 8 May 2018) and at p.68 (to 27 April 2018).

   [18] T12, T-documents, at p.71.

5. The Other Party claimed she entered the refuge because of concerns for her safety and that of her children, and claimed that the Applicant had threatened her and her sister. 

6. The T-documents contain a letter from DHS dated 8 May 2018[19] stating:

   It has been assessed by Child Protection that [the Other Party] is experiencing family violence by her ex-partner [the Applicant].  One of the forms of violence by [the Applicant] is financial control of [the Other Party].  It is further assessed that the risk of [the Applicant’s] behaviours will increase as he is preoccupied with [the Other Party] and has made threats to ‘ruin her’.  [The Applicant] may be experiencing mental health concerns and is required to undergo an mental health assessment.

   [19] T9, T-documents, at p.48.

7. The T-documents also include a letter from the Berry Street organisation, dated 2 May 2018[20] stating that the author, a Specialist Family Violence Practitioner, understands that the Other Party has been subject to extremely significant family violence, and that:

   [d]espite her taking steps to end the relationship, she continues to be harassed and abused via a multitude of mediums, including false allegations being made about [the Other Party] to a variety of different organisations and agencies with the intention of rendering her and the children homeless and socially and financially disadvantaged.

   [20] T9, T-documents, at p.49.

8. The Other Party provided copies of two letters subsequent to the hearing.  The first, dated 7 May 2020 was from the Safe Steps organisation addressed to whom it may concern.  

   
   

   It confirms that the Other Party had received support from Safe Steps Family Violence Response Centre, including emergency crisis accommodation.  It notes that on 12 June 2018, the Other Party contacted Safe Steps reporting on-going family violence and was assessed as a high risk client, and given crisis accommodation.  The letter notes that the Other Party exited the accommodation on 17 July 2018 but was readmitted to crisis accommodation on 19 July 2018, and subsequently entered a longer term women’s refuge on 6 August 2018.  The second letter from DHS dated 7 January 2018 confirms that Child Protection was then involved with the family due to concerns regarding the children’s exposure to family violence perpetrated by [the Applicant], transience, ongoing financial struggles and environmental concerns.

   Consideration of the Evidence

9. As stated above, it is agreed between the Applicant and the Other Party that, after  

   
   

   27 March 2018, the actual percentage of care changed and the Other Party assumed 100% care of the children.  The contentious issue is the date when this occurred.

10. The Applicant contends that the change occurred on 21 July 2018, when the Other Party failed to attend the changeover at the Epping Police Station.  The Other Party claims it was 25 June 2018 when she entered the women’s refuge.

11. The Applicant gave sworn evidence regarding the events on 21 July 2018 in his oral evidence to the Tribunal and in affidavits filed with the Federal Circuit Court.  He was consistent in his assertion that the care arrangements of 27 March 2018 had applied up to 21 July 2018.  His evidence was corroborated in part by other evidence such as the photographs of his children and school records.  In addition, the relevant DHS file contains a note that the children’s contact with the Applicant continued until 21 July 2019. 

    
    

    This was confirmed in the DHS’s letter to the Applicant, dated 6 June 2018.  While there were contradictory statements contained in correspondence from child protection agencies in the DHS files, these statements were essentially hearsay accounts.  In her oral evidence before the Tribunal, the Other Party, in stating that she assumed 100% care of the children when she entered the refuge on 25 June 2018, conceded that the children continued to see the Applicant until 21 July 2018.

12. Having considered the evidence the Tribunal is satisfied, on the balance of probabilities, that the care arrangements for the children changed on 21 July 2018 from a split of 49% to the Applicant and 51% to the Other Party, when the Other Party assumed 100% care of the children, as asserted by the Applicant.

13. As a consequence of the Tribunal’s finding above, the Tribunal revokes the care determination of 27 March 2018.  Section 54F(1) of the Act states that a care determination must be revoked if the Tribunal is 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. The responsible person's cost percentage for the child would change if the Registrar were to determine, under sections 49 or 50 of the Act, another percentage to be the person's percentage of care for the child.

14. As discussed by the Tribunal in the AAT 1 Decision at [22], the table contained in s 55C of the Act provides for a cost percentage of 50% where a parent has a percentage of care between 48% and 52%, and a nil cost percentage where the percentage of care is less than 14%.  Thus a change in the Applicant’s care percentage from 49% to 0% will result in a change to the Applicant’s cost percentage.

15. As to the question, whether the Applicant took reasonable steps to have the 27 March 2018 care arrangements complied with, the Applicant raised the following:

    a.his reports to the police at Epping Police Station on 21 July 2018 and Mill Park Police Station on Sunday 22 July 2018, to seek assistance in locating the children;

    b.his letter to DHS or Centrelink on 5 August 2018, expressing his concerns for the safety of the children; and

    c.his application to the Federal Circuit Court dated 27 July 2018.

16. The Applicant’s reports to the police were limited to the purpose of locating the children.  While his letter to DHS or Centrelink did raise the Other Party’s breach of the care arrangements, the Applicant did not expressly ask for any assistance to enforce the care arrangements.  In its terms, the letter is a complaint in which the Applicant expressed his grave concern regarding the Other Party’s conduct.  Significantly, DHS did not act on the letter and only made the October Determination following a notification of a change of care arrangements by the Other Party on 22 August 2018.

17. The application filed with the Federal Court on 27 July 2018 was, in its terms, not an application which sought to enforce the terms of the child support assessment in place from 27 March 2018.  That assessment was based on a court order dated 25 January 2018 that the Applicant had 49%, and the Other Party 51%, care of the children.  The application filed on 27 July 2018 sought orders to set aside the substance of the 25 January 2018 order and the provisions that the Applicant had 49%, and the Other Party 51%, care of the children.  The substantial terms of the application were for orders for the location and recovery of the children and then for the Applicant to be granted 100% care of the children.

18. Section 51(1)(d) of the Act requires the Tribunal to be satisfied that the person who has reduced care of the child is taking reasonable action to ensure that the care arrangement is complied with.

19. Having regard to the evidence, the Tribunal is not satisfied, on the balance of probabilities, that the Applicant took reasonable action to have the care arrangements in place from 27 March 2018 complied with.  Accordingly, there is no basis under s 51 of the Act for the making of an interim determination.

20. The question whether there were special circumstances under s 51(5) of the Act such that a single percentage of care rather than two percentages of care may be determined based on the actual care taking place raises a difficult issue.

21. Section 51(5) of the Act provides: 

    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.

22. The Other Party asserts that the threat of violence against her and her children by the Applicant constitute special circumstances for the purposes of s 51(5).  However, the evidence regarding the threat of violence is problematic, and the Tribunal is reluctant to draw any conclusions regarding the respective conduct of the parties based on the limited evidence before it.  Fortunately, it is unnecessary for the Tribunal to consider the issues under s 51(5) given its finding that the actual care arrangement in effect after 21 July 2018 was for the Other Party to have 100% care of the children.  This finding necessitates the determination of a single percentage of care irrespective of the existence of special circumstances.

23. Under s 49(1)(b) of the Act, if a care determination is revoked and the Registrar is satisfied that one parent has no pattern of care during a care period, the Registrar must determine that that parent’s percentage of care is 0%.

    Conclusion

24. Having regard to all of these matters the Tribunal concludes that on and from 21 July 2018 a new care arrangement, namely 100% care by the Other Party, came into effect and s 54F of the Act requires revocation of the existing care percentage decision in place from 27 March 2018 that the Applicant have 49% and the Other Party 51% care of the children.  The Tribunal is also satisfied that there are not grounds for making an interim determination under s 51 of the Act and it is unnecessary to consider the special circumstances provisions in s 51(5) as the new arrangements do not involve two percentages of care.

25. The Tribunal therefore determines that:

    a.the care arrangement in place from 27 March 2018 should be revoked pursuant to s 54F(1);

    b.the Applicant’s care percentage should be 0% pursuant to s 49(1)(b); and

    c.the Other Party’s care percentage should be 100% pursuant to s 50(1)(b).

    These findings require a consideration of the date of effect of the revocation and the commencement of the new determination.

26. As the change of care occurred on 21 July 2018, s 54F(3) of the current Child Support (Assessment) Act 1989 applies.

27. Under s 54F(3) of the current Act, if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph 1(a) of s 54F, within 28 days after the change of care day, the date of revocation is the day before the change.  However, if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter more than 28 days after the change of care day and the responsible person’s care of the child has increased, the date of revocation is the day before the Registrar is notified, or otherwise becomes aware of the matter.  The matter to which s 54F(1)(a) relates is 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.

28. To determine the revocation date under s 54F(3) of the Act, it is therefore necessary to determine the date upon which the Registrar or the Secretary was notified, or otherwise became aware, that the care of the child that was actually taking place did not correspond with the responsible person's existing percentage of care for the child.  There is conflicting evidence on this point.

29. The Registrar’s file notes record that the Other Party notified the Registrar of the change of care on 22 August 2018.[21]  The file note explicitly refers to change of care arrangements/details.[22]  However, the Respondent asserts that the Applicant notified the Registrar of the change on 9 August 2018, when a letter from the Applicant sent at  

    
    

    6:26 am on 5 August 2018[23] was uploaded to the Respondent’s departmental record. 

    
    

    The letter does not directly assert 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.  The letter expresses concern for the safety and welfare of the children.  It asserts that the Other Party breached court orders giving each party 50% care, by failing to return the children to him during exchange at 6:00pm on 21 July 2018.  The Applicant cites his lawyer’s advice that the Other Party has entered a women’s refuge as a ‘tactic’ with the sole intent to have the children 100%.  He attributes her motive to financial greed.  While it can be inferred from these assertions that a change of care arrangements has taken place, the letter does not say so explicitly and the Applicant’s position was clearly to preserve the existing care arrangement.  The Registrar’s file notes record that the Applicant had contacted the Registrar and asserted on 28 August 2018 that he still has 50% care as per court orders and that the Other Party was attempting by fraud to claim that she had 100% care.[24]

    [21] T12, T-documents, at p.65.

    [22] T12, T-documents, at p.64.

    [23] See T10, T-documents, at p.56: the Tribunal notes that this letter is dated 5 July 2018, but accepts the Applicant’s evidence that the letter was incorrectly dated 5 July 2018.

    [24] T12, T-documents, at p.66.

30. It is clear that the Registrar’s decision of 27 October 2018, to make a new care determination that the Other Party have 100% care, was based on the notification by the Other Party on 22 August 2018.  This is explicitly stated in the notice issued to the Applicant dated 27 October 2018.[25]

    [25] T13, T-documents, at p.105.

31. Given the explicit nature of the Registrar’s file note of 22 August 2018 and the reliance placed on it to make a new determination on 27 October 2018, compared to the indirect nature of the Applicant’s letter of 5 August 2018, the Tribunal is satisfied, on the balance of probabilities, that the Registrar was not notified, or made aware, that the care of the children that was actually taking place did not correspond with the responsible person's existing percentage of care for the children until the Other Party contacted the Registrar on 22 August 2018.

32. As 22 August 2018 is 32 days after the date of change of care on 21 July 2018, s 54F(3)(b)(i) of the Act applies. It provides that if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter more than 28 days after the change of care day and the responsible person’s (in this case, the Other Party) care of the child has increased, the date of revocation is the day before the Registrar is notified, or otherwise becomes aware of the matter.  In this case this means the date of revocation is 21 August 2018 and the new determination takes effect from 22 August 2018.

    DECISION

33. The decision under review is set aside and, in substitution, the Tribunal decides that the child support assessment in place from 27 March 2018, based on the Federal Circuit Court order dated 25 January 2018 (that the Applicant had 49% and the Other Party 51% care of the children), is revoked with effect on 21 August 2018, and the new percentage of care determination, that the Other Party has 100% care of the children, takes effect from 22 August 2018.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R West

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

Associate

Dated: 15 July 2020

Date of hearing:	30 April 2020
Applicant:	By telephone
Solicitors for the Respondent:	Ms A Voigt, Services Australia
Other Party	By telephone