LJSS and Child Support Registrar (Child support second review)

LJSS and Child Support Registrar (Child support second review) [2022] AATA 1319 (23 May 2022)
Division:GENERAL DIVISION
File Number(s): 2021/5274
Re:LJSS
APPLICANT

AndChild Support Registrar
RESPONDENT

AndKBNY
OTHER PARTY

DECISION
Tribunal:Member R West
Date:23 May 2022
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, is set aside and the matter is remitted to the Respondent for reconsideration with a direction that

(a)from 3 December 2019 to 29 February 2020 the Applicant and the Other Party each had 50% care of the child N;
(b)from 1 March 2020 to 31 August 2020 the Other Party had 80% care and the Applicant 20% care of the child N; and
(c)from 1 September 2020 to 2 December 2020 the Applicant and the Other Party each had 50% care of the child N.

.......................[sgd]...... ...........................................
Member 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 – 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 set aside and remitted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Drake and Minister for Immigration and Ethnic Affairs, Re (No. 2) (1979) 2 ALD 634
F v LP 1 [2015] AATA 321
Parent A and Child Support Registrar and Parent B [2013] AATA 562
P v Child Support Registrar [2013] FCA 1312
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
REASONS FOR DECISION
Member West
23 May 2022

This matter concerns an application to review a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal dated 28 June 2021:
(a)affirming a decision of an 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; and
(b)setting aside the decision under s 87AA(2) of the Child Support (Registration and Collection) Act 1988 and determining in substitution that s.87AA (1) of that Act does not apply such that no determination could be made.
BACKGROUND
The Applicant (Mother) and the Other Party (Father) are the separated parents of their child ‘N’ (born December 2010).
The Mother and Father separated on 29 May 2018.
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.
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.
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.
The Father was not notified of the Original Decision at the time as the Respondent did not have his contact details.
On 9 February 2021 the Father objected to the Original Decision.
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.
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.
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 but set aside the authorised objections officer’s decision under s 87AA(2) of the Child Support (Registration and Collection) Act 1988 (AAT1 Decision).[6]
[6] T2.
On 3 August 2021 the Mother applied to the General Division of the Tribunal for review of the AAT1 Decision (Second Tier Review).[7]
[7] T1.
HEARING
A hearing of the Second Tier Review was conducted by telephone on 22 March 2022. The Mother and the Father were self-represented. The Respondent was represented by Mr Tim Noonan, a solicitor with Services Australia. Mr Noonan’s appearance was confined to assisting the Tribunal in eliciting evidence and identifying and applying the relevant legislative provisions to the evidence.
Following the hearing, the Tribunal issued directions providing for the parties to file final written submissions. The Father lodged a written submission on 30 March 2022 and a reply submission on 21 April 2022. The Mother lodged a written submission on 20 April 2022. The Respondent lodged a written submission on 11 April 2022.
In conducting the Second Tier Review, the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 and s 38AA of the Administrative Appeals Tribunal Act 1975 (AAT Act) (T Documents) and the oral evidence and submissions of the Mother and the Father at the hearing and the written submissions and supporting documents lodged after the hearing.
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).
The Tribunal has also had regard to the Child Support Guide[8] (the Guide) where relevant.
[8] 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.
EVIDENCE
The parties gave consistent evidence on a number of relevant facts:
(a)the parties separated on 29 May 2018;
(b)the pattern of care for N following the separation had changed by the time the Mother lodged her application for child support on 23 June 2020;
(c)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)[9];
(d)initially the Mother did not comply with the Court Order;
(e)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
(f)the Mother subsequently complied with the Court Order.
[9] T23.
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.
(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.
Both parties agreed that 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.
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.
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.
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. 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.
The T Documents include a brief unsworn statement of N’s godmother, dated 21 January 2021.[10] The godmother stated that, during the period October 2019 to February 2020, the Mother looked after N full time. She stated further that she had been present in their lives and at their residence almost daily since May 2018.
[10] T22 at p.51.
The Father gave evidence 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.
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[11] and further copies of various screenshots of text messages were included with the Father’s written submissions.
[11] T28 at pp.83-138 and further screenshots filed with leave of the Tribunal after the hearing.
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.
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.[12] 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.
[12] T35 at pp.153-162.
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.
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. The Mother’s recollection was uncorroborated by any documents and the godmother was not called and her brief statement was untested.
FINDINGS
Having regard to this evidence, the Tribunal finds that:
(a)the care arrangements for N changed as a result of the Court Order;
(b)the Court Order provided for 50:50 care;
(c)the 50:50 care arrangement commenced on 3 December 2019 and continued until March 2020;
(d)during the period from March 2020 until August 2020, because of the COVID restrictions, N was in the care of the Father 143 of a possible 180 nights representing 80% care; and
(e)as the COVID restrictions were removed, beginning in September 2020, the parties resumed the 50:50 care arrangement.
ISSUES
The Applicant did not dispute the AAT1 Decision in relation to the application of s 87AA(2) of the Child Support (Registration and Collection) Act 1988. The application for review concerned the decision to affirm 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.
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.
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
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. In this case the appropriate date of event is the date upon which the 50:50 care arrangement commenced, namely 3 December 2019.
Care period
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer.
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.[13] 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.
[13] Sections 49(1) and 50(1) of the Assessment Act.
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[14] (although it will have effect for family tax benefit purposes from the start of the care period).
[14] Section 54B(2) of the Assessment Act.
In this case, the period of 12 months following the care event is appropriate and accordingly, the care percentage is to be assessed during the period from 3 December 2019 to 2 December 2020.
Care
The term ‘care’ is not defined either in the Assessment Act or the Collection Act.
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.
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.
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.[15]
[15] P v Child Support Registrar [2013] FCA 1312 at [107]; see also Polec v Staker and Another (2011) 253 FLR 339 for indicative factors.
The Tribunal notes that the Father has provided evidence relevant to the broader concept of care[16], 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.
[16] See T17, T28 and T23.
Pattern of Care
The Tribunal explained in F v LP (Child Support)[17] 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.
[17] [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].
The Tribunal considered the meaning of the term ‘pattern of care’ in Parent A and Child Support Registrar and Parent B:[18]
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.
[18] [2013] AATA 562 at [33].

In the instant case, the pattern of care during the care period as between the parties was 50:50, save for the period from March to August 2020 when the parties departed from that pattern because of the COVID restrictions and especially the enforced lockdowns (COVID Period). During this COVID Period, the Father had 75% care and the Mother 25% care.
The Tribunal therefore determines pursuant to s 50 of the Assessment Act that during the care period:
(a)from 3 December 2019 to 28 February 2020 the Mother and the Father each had 50% care of N;
(b)from 1 March 2020 to 31 August 2020 the father had 80% care and the Mother 20% care of N; and
(c)from 1 September 2020 to 2 December 2020 the Mother and the Father each had 50% care of N.
The Tribunal has considered an interim determination in relation to the COVID Period under s 51(1) of the Assessment Act but there is no evidence that the Mother took reasonable action to ensure that the 50:50 care arrangement under the Court Order was complied with during the COVID Period. The parties each appear to have accepted a departure from the 50:50 arrangement as a matter of expediency during the unusual circumstances that prevailed at the time.
The Tribunal is satisfied that in the circumstances the correct and preferable decision is to set aside the decision under review 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 and to remit the matter to the Respondent for reconsideration with a direction that:
(a)from 3 December 2019 to 28 February 2020 the Mother and the Father each had 50% care of N;
(b)from 1 March 2020 to 31 August 2020 the Father had 80% care and the Mother 20% care of N; and
(c)from 1 September 2020 to 2 December 2020 the Mother and the Father each had 50% care of N.
DECISION
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, is set aside and the matter is remitted to the Respondent for reconsideration with a direction that:
(a)from 3 December 2019 to 29 February 2020 the Applicant and the Other Party each had 50% care of the child N;
(b)from 1 March 2020 to 31 August 2020 the Other Party had 80% care and the Applicant 20% care of the child N; and
(c)from 1 September 2020 to 2 December 2020 the Applicant and the Other Party each had 50% care of the child N.

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member R West

...................[sgd].....................................................
Associate
Dated: 23 May 2022

Date(s) of hearing:

22 March 2022

Applicant: In person

Advocate for the Respondent: Tim Noonan

Solicitors for the Respondent: Legal Services Division, Services Australia

Other Party: In person

[2022] AATA 1319

23 May 2022

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date(s) of hearing:	22 March 2022
Applicant:	In person
Advocate for the Respondent:	Tim Noonan
Solicitors for the Respondent:	Legal Services Division, Services Australia
Other Party:	In person