LJSS and Child Support Registrar (Child support second review)

[2023] AATA 3960

LJSS and Child Support Registrar (Child support second review) [2023] AATA 3960 (29 November 2023)

Division:GENERAL DIVISION

File Number:          2021/5274

Re:LJSS

APPLICANT

AndChild Support Registrar

RESPONDENT

AndKBNY

OTHER PARTY

DECISION

Tribunal:Member R. West

Date:29 November 2023

Place:Melbourne

The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 June 2021 affirming the decision of the authorised objections officer dated 6 April 2021 that the Applicant and the Other Party each had 50% care of their child N from 3 December 2019, effective from 23 June 2020 (Initial Determination), is varied such that:

(a)the Initial Determination is revoked effective 28 February 2020;

(b)a determination is made under s.50(1)(a) and s.50(2) of the Child Support (Assessment) Act 1989 (Cth) that from 1 March 2020 to 31 August 2020 the Applicant had 20% care and the Other Party had 80% care of the child N, effective 23 June 2020 (Second Determination);

(c)the Second Determination is revoked effective 31 August 2020; and

(d)a determination is made under s.50(1)(a) and s.50(2) of the Child Support (Assessment) Act 1989 (Cth) that from 1 September 2020 to 31 August 2021 the Applicant had 50% care and the Other Party 50% care of the child N, effective 1 September 2020.

...............................[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 ASSESSMENT – on remittal from the Federal Court – application for review – child care percentage – alleged change of percentage – appeal from decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal – care period affected by COVID restrictions – decision varied.

Legislation

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

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

Cases

Child Support Registrar v BKCZ [2023] FCA 1109
Child Support Registrar v DQFY [2023] FCA 601
Drake and Minister for Immigration and Ethnic Affairs, Re (No. 2) (1979) 2 ALD 634
F v LP 1 [2015] AATA 321
LJSS v Child Support Registrar (Child support second review) [2022] AATA 1319
P v Child Support Registrar [2013] FCA 1312
Parent A and Child Support Registrar and Parent B [2013] AATA 562
Polec v Staker (2011) 253 FLR 339
QWKW and Child Support Registrar [2021] AATA 2060

SHQY and Child Support Registrar (Child support second review) [2021] AATA 930

Secondary Materials

Guides to Social Policy: Child Support Guide (version 4.75, updated 6 November 2023)

REASONS FOR DECISION

Member R West

29 November 2023

This matter concerns the reconsideration of an application to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 June 2021 on remittal from the Federal Court pursuant to a consent order made by Justice Kenny dated 9 June 2023.

BACKGROUND

1. The Applicant (Mother) and the Other Party (Father) are the separated parents of their child ‘N’ (born December 2010).

2. The Mother and Father separated on 29 May 2018.

3. On 23 October 2019 an Interim Order was made by the Federal Circuit Court for the Father to have care of N every second Friday, Saturday and Sunday night from 25 October 2019 and every Tuesday and Wednesday night commencing 29 October 2019 (Court Order).[1]

   [1] T23 at p.53.

4. On 23 June 2020 the Mother applied to the Respondent for an administrative assessment of child support in respect of N. She claimed 100% care of N from 29 May 2018.[2]

   [2] T41 at p.192 and T4 at p.10.

5. On 18 September 2020 the Registrar issued an assessment for the period 23 June 2020 to 22 September 2021 based on the Applicant’s 100% care of N (Original Decision). [3] 

   [3] T11.

6. On 9 February 2021 the Father objected to the Original Decision.

7. On 6 April 2021 an authorised objections officer found that the care in accordance with the Court Order commenced from 3 December 2019 and determined that the Mother and the Father each had 50% care of N from 3 December 2019 effective from 23 June 2020 (Objection Decision).[4] 

   [4] T38.

8. On 26 April 2021 the Mother applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal to review the Objection Decision.[5]

   [5] T3.

9. On 28 June 2021 the Social Services and Child Support Division of the Administrative Appeals Tribunal affirmed the Objection Decision in determining that the Father and Mother each had 50% care of their child N from 3 December 2019 effective from 23 June 2020 (AAT1 Decision).[6]

   [6] T2.

10. On 3 August 2021 the Mother applied to the General Division of the Tribunal (the Tribunal) for review of the AAT1 Decision (Second Tier Review).[7]

    [7] T1.

11. A hearing of the Second Tier Review was conducted by the Tribunal on 22 March 2022 (AAT2 Hearing) and a decision handed down on 23 May 2022 (AAT2 Decision).[8]

    [8] LJSS v Child Support Registrar (Child support second review) [2022] AATA 1319.

12. On 7 September 2022 the Mother lodged an appeal from the AAT2 Decision to the Federal Court under s.44 of the Administrative Appeals Tribunal Act 1975 (AAT Act).

13. On 9 June 2023, Justice Kenny made orders by consent (Consent Order) setting aside the AAT2 Decision and remitting the matter to the Tribunal to be re-determined according to law, on the basis that:

    The First Respondent accepts that the Administrative Appeals Tribunal (General Division) made an error of law in its decision dated 23 May 2022 in finding that the second and third care determinations under subsection 50(2) of the Child Support (Assessment) Act 1989 (Cth) (Act) could be made without first revoking (either expressly or impliedly) the first and second determinations under section 54F or section 54H of the Act, pursuant to paragraph 50(1)(b) of the Act.

    Redetermination on Remittal

14. On 25 July 2023 the Tribunal invited submissions from the parties in relation to the nature and scope of the redetermination pursuant to the Consent Orders and the proper basis for the conduct of the redetermination.

15. The Tribunal has had regard to the decision in Child Support Registrar v BKCZ (‘BKCZ’) in which His Honour Justice Thomas made clear that in reviewing a decision of the Social Services and Child Support Division of the Tribunal in relation to the percentage of care under the Child Support (Assessment) Act 1989 (Assessment Act) the Tribunal is to determine the questions before it by reference to the material before the Tribunal and is not limited to the material before the original decision maker.  This includes information which may come into existence, or events that may occur, after the date of the original decision and up to the time of the Tribunal hearing.[9]

    [9] [2023] FCA 1109 at [30].

16. The Tribunal also notes s.44(6)(b) of the AAT Act which relevantly provides:

    If the Federal Court of Australia makes an order remitting a case to be heard and decided again by the Tribunal:

    (a)  …; and

    (b)  …--the Tribunal may, for the purposes of the proceeding, have regard to any record of the proceeding before the Tribunal prior to the appeal (including a record of any evidence taken in the proceeding), so long as doing so is not inconsistent with the directions of the Court.

17. Having considered the submissions of the parties and having regard to BKCZ and the provisions of s.44(6)(b) of the AAT Act, the Tribunal determined that on remittal the Tribunal would make a fresh determination of the application, and confirmed with the parties that it:

    (a)would not be bound by any findings in the initial proceeding, but

    (b)would, subject to any submissions of the parties, have regard to the record of the AAT2 Hearing, including the evidence admitted in that proceeding; and

    (c)would allow the Applicant and/or the Other Party to call further evidence relevant to the matters at issue; and

    (d)would conduct a hearing for the purpose of receiving any further evidence and to hear submissions from the parties.

18. The Tribunal issued directions providing for the Mother and the Father to serve and lodge further evidence and for the parties to serve and lodge written submissions.

19. The Father did not lodge any further evidence. The Mother lodged an additional witness statement of a friend, Ms V and called an additional witness, N’s Godmother, Ms S. The Respondent lodged supplementary documents under its continuing obligations under s.38AA of the AAT Act.

20. A hearing was conducted by telephone on 2 November 2023 (Hearing). The Mother and the Father were self-represented. The Respondent was represented by Ms Katherine Whittemore, a solicitor from Sparke Helmore, whose appearance was confined to assisting the Tribunal in eliciting evidence and identifying and applying the relevant legislative provisions to the evidence.

21. In conducting the Redetermination, the Tribunal has had regard to:

    (a)the documents produced by the Respondent pursuant to s.37 and s.38AA of the AAT Act at the AAT2 Hearing numbered T1-T41 and paginated as pages 1-202
    (T Documents);

    (b)the oral evidence and submissions of the Mother and the Father at the AAT2 Hearing;

    (c)the further documents produced by the Respondent pursuant to s.38AA of the AAT Act numbered ST1-ST4 and paginated as pages 1-74 (Supplementary T Documents);

    (d)the witness statement of the Mother’s friend, Ms V; and

    (e)the oral evidence of N’s Godmother, Ms S.

    LEGISLATION

22. The legislation relevant to the determination of the Application is:

    (a)Child Support (Assessment) Act 1989 (Assessment Act);

    (b)Child Support (Registration and Collection) Act 1988 (Collection Act); and

    (c)Administrative Appeals Tribunal Act 1975 (AAT Act).

23. The Tribunal has also had regard to the Child Support Guide[10] (the Guide) where relevant.

    [10] The Tribunal is not bound by this policy but may take it into account, and ought to follow it, unless there are cogent reasons not to do so: P v Child Support Registrar [2012] FCA 1398 at [3]; Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645.

24. The determination of the appeal in this matter requires the Tribunal to consider s.49 or s.50 of the Assessment Act with respect to each parent. The relevant provisions are:

    49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child

    (1)       This section applies if:           

    (a)       either of the following applies:

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

    (ii )…

    and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

    (b)       …

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

    (3)       The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.

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

    (1)       This section applies if:

    (a)       either of the following applies:

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

    (ii)       …

    and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or

    (b)       …

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

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

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

25. This requires the Tribunal to decide:

    (a)the date upon which the actual care of the child began or changed (date of event);

    (b)the appropriate care period; and

    (c)the pattern of care of both parents in the care period.

    Date of Event

26. The date of event sets the commencement of the care period and is a matter for the Tribunal to determine having regard to the available evidence.   

    Care period

27. A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer.

28. The length of the care period is not defined in the Assessment Act and is such period … as the Registrar considers appropriate having regard to all the circumstances.[11] The Guide states that a ...care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). However, the Guide recognises that ...there are some circumstances when determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the care period.

    [11] Sections 49(1) and 50(1) Assessment Act.

29. If the Tribunal finds the care period started prior to the date of the application for a child support assessment, it will only have effect in the child support assessment from the date of the application, in this case 23 June 2020[12] (although it will have effect for family tax benefit purposes from the start of the care period).

    [12] Section 54B(2) Assessment Act.

    Care

30. The term ‘care’ is not defined either in the Assessment Act or the Collection Act.

31. Section 54A of the Assessment Act states that the actual care or the extent of care may be worked out based on the number of nights that the child was, should have been, or was likely to be in the care of the person.

32. The Guide notes that while care will generally be worked out based on the number of nights that the child is likely to be in the care of the person during the care period…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.

33. The level of care provided by a person to a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.[13]

    [13] P v Child Support Registrar [2013] FCA 1312 at [107]; see also Polec v Staker and Another (2011) 253 FLR 339 for indicative factors.

    Pattern of Care

34. The Tribunal explained in F v LP (Child Support)[14] that it is preferable for the Tribunal to have regard to what care actually occurred during the relevant care period in determining a pattern of care.

    [14] [2015] AATA 321 at [54]-[58]; see also SHQY and Child Support Registrar [2021] AATA 930 at [45]; QWKW and Child Support Registrar [2021] AATA 2060 at [57]-[60].

35. The Tribunal considered the meaning of the term ‘pattern of care’ in Parent A and Child Support Registrar and Parent B:[15]

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case. This interpretation is consistent with the Guide, which provides that that minor departures from the normal care of the child will not constitute a change to the pattern of care.

    [15] [2013] AATA 562 at [33].

36. The Tribunal is also required to have regard to s.54F of the Assessment Act which provides:

    (1)  The Registrar must revoke a determination of a responsible person's percentage of care (the existing percentage ofcare) 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).

    EVIDENCE

    Agreed facts

37. The parties gave consistent evidence on a number of relevant facts:

    (a)the parties separated on 29 May 2018;

    (b)the Federal Circuit Court made orders on 23 October 2019 providing, inter alia, for the Father to have care every second Friday, Saturday and Sunday night from 25 October 2019 and every Tuesday and Wednesday night commencing 29 October 2019 (Court Order)[16];

    (c)initially the Mother did not comply with the Court Order;

    (d)on 29 November 2019 the parties returned to Court and the Mother was informed of her obligations under the Order by the presiding judge; and

    (e)the Mother subsequently complied with the Court Order;

    (f)from 25 November 2020, when N returned to school following the COVID lockdown period, the parties observed the 50:50 care arrangement in accordance with the Court Order.

    [16] T23.

38. There were two principal issues of dispute between the parties relevant to the Tribunal’s deliberations:

    (a)The Father asserted that the Mother commenced to comply with the Court Order from 29 November 2019, but the Mother asserted that she commenced complying from 1 February 2020; and

    (b)The Mother asserted that she had principal care of N during the period from March to November 2020 during the COVID lockdown period when various restrictions were imposed by the Victorian Government to deal with the COVID pandemic. The Father asserted that during this period he had principal care of N.

    Father’s evidence

39. The Father lodged various documents in the initial proceedings:[17]

    (a)his care diary recording the time N spent with each parent;

    (b)screen shots of SMS messages;

    (c)a residential tenancy agreement;

    (d)a list of rental payment; and

    (e)a table of income and expenses.

    [17] T28 at pp.73-138.

40. The Father also gave evidence in the initial proceedings but did not produce further evidence at the Hearing.  The record of the initial proceedings contains the following evidence from the Father:

    (a)The Father said that after the parties separated in May 2018, he went overseas for around 3 months returning in August 2018.  He said that after he returned, he was denied care of N by the Mother and in October 2019 he applied to the Court for an order that he have 50:50 care.  He said the Court Order granting him 50:50 care was made on 23 October 2019, but the Mother initially did not comply and the matter returned to Court on 29 November 2019 when the judge directed the Mother to comply.  The Father said that the Mother commenced complying with the Court order from 29 November 2019 but there was a short transition period and his 50% care of N commenced from 3 December 2019.

    (b)The Father said that he arranged collection of N from the Mother’s house by sending her a text message.  Copies of text messages commencing on 26 November 2019 for the period to 17 August 2020 were included in the T Documents[18] and further copies of various screenshots of text messages were included with the Father’s written submissions.

    (c)The Father said that N was mostly in his care during the period of restrictions imposed because of the COVID pandemic, including periods of lockdown, from March to November 2020.  He said he was working from home during this period and was very flexible.  He disputed the Mother’s statement that he was too busy to care for N and asserted that he was better able to support N with her remote learning.

    [18] T28 at pp.83-138 and further screenshots filed with leave of the Tribunal after the hearing.

1. The Father produced a care diary for the period October 2019 to August 2021 in the form of a computer spreadsheet which he said he updated each day.[19]  The spreadsheet indicates that:

   (a)50:50 care in accordance with the Court Order commenced from 3 December 2019; and

   (b)the number of days N spent with the Father compared to the Mother in the period March to August 2020 was March (24:5), April (21:8), May (22:9), June (28:2), July (28:3) and August (20:10), a total of 143:37. 

   [19] T35 at pp.153-162.

2. The Father said that he did not keep a record of the actual COVID lockdown dates but recalled that the lockdowns continued to August 2020 after which the Mother requested that they resume the 50:50 arrangement.  The spreadsheet records indicate that from September 2020 the care closely reflected the 50:50 care arrangement.

   Mother’s Evidence

3. The Mother gave evidence in the initial proceedings but did not give further evidence herself at the Hearing.  She provided an unsworn statement of Ms V dated 23 September 2023 and called oral evidence from Ms S. 

4. The record of the initial proceedings contains the following evidence from the Mother:

   (a)The Mother explained in her evidence to the Tribunal that she was initially unaware of the Court Order. She said that following the parties’ court appearance on 29 November 2019 she became aware of the order and N commenced being in the care of the Father initially for short periods because N was not confident to go to the Father as N had not lived with him for approximately 2 years.  The Mother said that it was not until 1 February 2020 that the 50:50 care arrangement was fully implemented.

   (b)The Mother said that the 50:50 arrangement continued until March 2020 when the first lockdown occurred.  She said that she then had mostly 100% care of N from the start of the lockdown until 25 November 2020 when N returned to school.  She said that she provided home schooling for N most of the time during lockdown.

   (c)She said that the Father was too busy during lockdown to care for N.  She said that the Father had access to N when he was available, but this was not regular and was sometimes in the day, the evening or at night.  She said N stayed with the Father overnight occasionally.

   (d)She said the Father would contact N and pick N up from the Mother’s house and N would stay with him for a few hours, in the evening for dinner or sometimes stay overnight.  The Mother said that she did not keep any records of the Father’s contact with N.

   Mother’s friend – Ms V

5. The Applicant tendered a letter from Ms V dated 23 September 2023 at the Hearing and indicated her willingness to call Ms V as a witness.  However, Ms V was unavailable to participate in the telephone hearing when attempts were made to contact her by the Tribunal.  The Tribunal accepted the letter in evidence subject to submissions as to weight.  The letter stated:

   I have known [the Mother] and [the Father] since their arrival in Australia – 2013. I am very good friend with both of them.

   I would like to confirm that, I became very close with the Mother after the Father left them homeless and went overseas – May 2018. I have been present in their lives almost daily, ever since. After he left, I helped her to move out all furniture and took them at my house until she found new home for her and N. Both mother and child supposed to leave with me and my family at the house, until they had funds to acquire new residence, since the Father left them without notice and any funds. But it was too far from N’s school and they stayed at N’s Godmother, Ms S. The Mother was the only parent who looked after the child. When the Father returned to Australia, he wasn’t interested to take care of N, even refused to see her every time N called him.

   I advise the Mother since the beginning so many times to apply for Child support, but she didn’t wanted until 2020 pandemic hit and she lost her income. After that she had many issues with the Child support Registrar, including loss of initial application in March 2020, then rejected application in June 2020 and then objections from the father to pay in December 2020. I am aware that she still have many issues and ongoing proceedings in that matter.

   I would like to confirm that, for the period of May 2018 to February 2020, the Mother Looked after N full time. I have been present in their lives almost daily and now, ever since the Father left them and went overseas – May 2018.

   Suddenly, court order came in December 2019. From the court order decision N was in the Mother’s care and even then the Father did not always take care of N by the required times, until the school started in February 2020. Shortly after that, N was most of the time with the Mother, as the Father was working and wasn’t able to look after N all day at home. I know, that occasionally he looked after N some weekends when he wished so. For the period of time during the lockdown till November 2020, the Mother looked after N full time.

   N’s Godmother – Ms S

6. Ms S was called as a witness at the Hearing.  She affirmed her two statements dated 21 January 2021[20] and 3 March 2021[21] (each included in the T Documents in the initial proceedings) and gave oral evidence to the Tribunal.

   [20] T22 at p.51.

   [21] T31 at p.145

7. In her statement of 21 January 2021 she stated that the Mother looked after N full time between October 2019 and February 2020.  In her oral evidence she stated that she knew this because she called the Mother daily and went round to see her during the period.

8. In her statement of 3 March 2021 she stated that the Mother and N lived with her after the Father went overseas in May 2018, until they had the funds to acquire a new residence.  In her oral evidence she said she was not sure of the dates when the Mother and N lived with her but it was for a few months after the Father went overseas. The Mother was the only parent to look after N during this time.  When the Father returned to Australia he wasn’t interested in the care of N, even refusing to see her when she called. 

9. In her statement of 3 March 2021 Ms S described the arrangements after the granting of the Court Orders.  She said that N was in the Mother’s care until school started in February 2020 and shortly after that N was in the Mother’s care most of the time as the Father was working and wasn’t able to look after N all day at home.  She acknowledged that the Father looked after N occasionally some weekends. 

10. In her statement of 3 March 2021 Ms S said that during the COVID lockdowns the Mother looked after N full time.  In her oral evidence she reiterated that the Mother had full time care of N during the lockdowns and said she knew this because she spoke with the Mother by phone, although she was not able to visit her.

    Assessment of evidence

11. The Tribunal notes that the Father has provided evidence relevant to the broader concept of care,[22] but it is satisfied in this case that the appropriate basis for assessing the pattern of care is the number of nights spent with each parent.

    [22] T17, T28 and T23.

12. In assessing the evidence regarding the percentage of care each parent had during the period from 29 November 2019 (when the parties returned to Court following the making of the Court Orders) to 25 November 2020 (when the parties agreed that COVID restrictions had ended), the Tribunal prefers the evidence of the Father.  It is supported by the contemporaneous entries in the care diary and the copies of text messages included in the T Documents. For example, in an SMS message on 4 August 2020 the Father requested the Mother to assume care of N so that he could attend a site meeting.  The message indicates that it was the Father who was involved with N’s online learning and was communicating with N’s teacher.[23]  The Mother’s recollection was uncorroborated by any documents and the Tribunal gives little weight to the evidence of Ms S and Ms V as to the care arrangements after February 2020. The comments of both witnesses that the Father was not interested in the care of N after he returned from overseas is contradicted by the SMS messages which show that the Father was positively involved in N’s care and also the fact that the Father sought court orders regarding his access to N.  Similarly, the claims by both witnesses that the Mother had full time care of N during the lockdown period between May and November 2020 was not based on their actual knowledge due to the limitations imposed by the lockdowns.  They each said they relied on what they were told by the Mother.  Their accounts are contradicted by the Father’s contemporaneous care diary and SMS messages. The Tribunal notes further that the independence of their recollections is brought into question by the fact that the final paragraph of Ms V’s statement is in almost identical wording to the final paragraph of Ms S’ statement of 3 March 2021.

    [23] T28 at p.131.

    FINDINGS

13. The evidence is clear that the Mother had 100% care of N from 28 May 2018 (date of separation) until after the Father returned from overseas and that she then had predominant care of N prior to the making of the Court Orders on 23 October 2019 and the following court appearance on 29 November 2019. The Father asserted that the 50:50 arrangement provided for in those Orders commenced after 29 November 2019, and his care diary indicates that the 50:50 arrangement commenced from 3 December 2019.  The Mother’s assertion that 50:50 care did not commence until 1 February 2020 is unsupported by any documentary evidence and the Tribunal accepts the evidence of the care diary to find that a change of care occurred on 3 December 2019.

14. The Tribunal is satisfied that the parties complied with the 50:50 care arrangement until 1 March 2020 when the Father assumed a greater share of the care of N under the COVID restrictions then in force. On the basis of the Father’s care diary the Tribunal assesses the percentage of care over the period from 1 March to 31 August 2020 as 80:20 in favour of the Father.

15. The Father’s care diary indicates that from 1 September 2020 until at least August 2021 the parties observed a 50:50 care arrangement.  On the basis of this evidence the Tribunal finds that there was a further change of care to a 50:50 care arrangement from 1 September 2020.

    DETERMINATIONS

16. The Respondent submits that the Tribunal could consider the following approaches on the basis of these findings:

    (a)make a determination under s.50(1)(a) and s.50(2) that care was 64:36[24] in favour of the Father over a 12 month care period 3 December 2019 to 2 December 2020 with a date of effect of 23 June 2020 when the child support application was made (s.54B(2)(a)); or

    (b)make a determination under s.50(1)(a) and s.50(2) that care was 80/20 in favour of the Father from 1 March 2020 to 31 August 2020, with a date of effect of 23 June 2020 when the child support application was made (s.54B(2)(a)) and make a further determination for the period from 1 September 2020 when it found care returned to 50:50 in accordance with the court order; or

    (c)adopt the approach taken in Child Support Registrar v DQFY (‘DQFY’)[25]. That is:

    i.determine an appropriate care period starting from before or at the time of application for an administrative assessment;

    ii.determine the care percentage during that care period; and

    iii.determine whether the care percentage determination should be made up of different percentages of care during different parts of the care period.

    [24] Being the relative percentages of days of care taken for each of the parties over the entire twelve month care period - for the Father 236/365.

    [25] [2023] FCA 601.

17. The Tribunal is not satisfied that the first option is appropriate as the averaging of the percentage of care over a 12 month period does not reflect the actual care taking place at any time during the period. 

18. Of the remaining alternatives mentioned above in paragraph 56 the Tribunal prefers option (c).

19. While there are not necessarily inconsistencies in the reasoning of the Court in DQFY and the Orders of Justice Kenny in this case, the Tribunal accepts that it is appropriate to address the issues on remittal having regard to the latter. The Orders of Justice Kenny identified as errors of law in the previous AAT decision that the making of the second and third determinations failed to revoke earlier determinations. The Tribunal is bound by Justice Kenny’s orders[26] which necessarily reflect Her Honour’s judicial consideration of the matter. Section 44(5) of the AAT Act requires the Tribunal, if the matter is remitted for redetermination, to reconsider the matter in accordance with the directions of the Court. The Tribunal is therefore required to make a decision in accordance with Justice Kenny’s orders and to address the identified errors of law on which they were based.

    [26] Orders made by the Court have the same force and validity as an order made after a hearing by the Court: rule 39.11(3) of the Federal Court Rules 2011 (Cth).

    Initial Determination

20. The existing determination made by the authorised objections officer on 6 April 2021 and affirmed in the AAT 1 review is that the Mother and Father each had 50% care of N from 3 December 2019 effective from the date of the application for child support on 23 June 2020 (Initial Determination). 

21. The Tribunal finds that this determination accords with the actual percentages of care for the parties in the period 3 December 2019 to 28 February 2020. 

    Second Determination

22. The Tribunal finds that there was a change of care on 1 March 2020 such that the Father had 80% and the Mother had 20% care in the period 1 March to 31 August 2020. 

23. As the change from 50% to 80% care for the Father would result in a change in cost percentage from 50% to 76% under s.55C of the Assessment Act, the Tribunal is required to revoke the Initial Determination from 28 February 2020 under s.54F of the Assessment Act.

24. The Tribunal is satisfied that as a consequence a care period from 1 March 2020 to 31 August 2020 is appropriate and determines under s.50(1)(a) and s.50(2) that the percentage of care for the child N in the care period to be 80% for the Father and 20% for the Mother effective from 23 June 2020 (Second Determination).

    Third Determination

25. The Tribunal finds that there was a further change of care on 1 September 2020 such that the Father had 50% and the Mother had 50% care of N.  This change was notified to the Registrar by the Father on 1 December 2019.[27]

    [27] T17 at p.41.

26. As the change from 80% to 50% care for the Father would result in a change in cost percentage from 76% to 50% under s.55C of the Assessment Act, the Tribunal is required to revoke the Second Determination effective 31 August 2020 pursuant to s.54F of the Assessment Act.

27. The Tribunal determines as a consequence that a care period from 1 September 2020 to 31 August 2021 is appropriate and determines under s.50(1)(a) and s.50(2) that the percentage of care for the child N in the care period to be 50% for the Father and 50% for the Mother effective 1 September 2020 (Third Determination).

    Reviewable Decision

28. The decision under review is the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 28 June 2021 which affirmed the decision of an authorised objections officer dated 6 April 2021 to determine that the Mother and the Father each had 50% care of N from 3 December 2019 effective from 23 June 2020.

29. The Tribunal accepts the correctness of this decision insofar as it relates to the period from 3 December 2019 to 28 February 2020, but not in relation to the period from 1 March 2020 to 31 August 2020. Under s.43(1) of the AAT Act the Tribunal may affirm, vary or set aside the decision under review. In circumstances where the Tribunal is satisfied that the decision was the correct decision initially the appropriate course is to vary the decision to give effect to the Second and Third Determinations.

    DECISION

30. The decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 June 2021 affirming the decision of the authorised objections officer dated 6 April 2021 that the Applicant and the Other Party each had 50% care of their child N from 3 December 2019, effective from 23 June 2020 (Initial Determination), is varied such that:

    (a)the Initial Determination is revoked effective 28 February 2020;

    (b)a determination is made under s.50(1)(a) and s.50(2) of the Child Support (Assessment) Act 1989 (Cth) that from 1 March 2020 to 31 August 2020 the Applicant had 20% care and the Other Party had 80% care of the child N, effective 23 June 2020 (Second Determination);

    (c)the Second Determination is revoked effective 31 August 2020; and

    (d)a determination is made under s.50(1)(a) and s.50(2) of the Child Support (Assessment) Act 1989 (Cth) that from 1 September 2020 to 31 August 2021 the Applicant had 50% care and the Other Party 50% care of the child N, effective 1 September 2020.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member R. West

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

Associate

Dated: 29 November 2023

Date of hearing:	2 November 2023
Applicant:	Self-Represented
Advocate for the Respondent:	Katherine Whittemore
Solicitors for the Respondent:	Sparke Helmore
Other Party:	Self-Represented