LRJQ and Child Support Registrar (Child support second review)

LRJQ and Child Support Registrar (Child support second review) [2024] AATA 2458 (15 July 2024)
Division:GENERAL DIVISION
File Number(s): 2023/1909
Re:LRJQ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndRJBF
OTHER PARTY

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:15 July 2024
Place:Adelaide

The Tribunal affirms the Level 1 decision of the Tribunal dated 23 February 2023.

.....................[sgnd]...........................................
Senior Member Dr N A Manetta

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 – 50/50 split in care over many years – adolescent child opting to spend more time with mother – child then prevented from residing with father due to impact of Covid restrictions – very little care provided by father over more than two months despite his willingness to do so – found on facts that pattern of care had changed – Level 1 decision affirmed
LEGISLATION
Child Support (Assessment) Act 1998 (Cth)
REASONS FOR DECISION
Senior Member Dr N A Manetta
15 July 2024

This is an application by ‘LRJQ’, a father, seeking a review of a Level 1 decision of this Tribunal dated 23 February 2023.[1] This decision concerned LRJQ’s obligation to pay increased child support in respect of one of his children, to whom I shall refer as ‘B’. Child support obligations are regulated by the Child Support (Assessment) Act 1998 (Cth) (‘the Act’), amongst other legislation. The Other Party in this proceeding (‘RJBF’) is B’s mother.
[1] Ex R2, 6ff.
In these reasons, I shall refer to LRJQ as ‘B’s father’ and to RJBF as ‘B’s mother’. As neither B’s father nor B’s mother was legally represented, I shall express myself as plainly as possible.
BACKGROUND FACTS
The background facts are as follows. B’s father and B’s mother married in 1990. They had a number of children. The application before me concerns the youngest child, B. In 2008 the marital relationship ended. Both B’s father and B’s mother gave evidence that the divorce was bitter. It was only finalised after some years.
From the end of their relationship in 2008, B’s father and B’s mother shared care of their children on a 50/50 basis[2] with a weekly turnaround. Child support payments were regulated in accordance with this arrangement. A written agreement to this effect was concluded in 2010, I understand.[3] The evidence before me suggests that the agreement was observed. The 50/50 split in care continued for many years.
[2] The care arrangement was administered on the basis of B’s mother having 51% care and B’s father 49% care.
[3] Ex R2, 80.
Before the end of the marriage, B’s father and mother and their children had lived on a livestock property in a rural area. The closest town was ‘Z’, some 35 kilometres away. B’s mother left the area after the end of the marriage and settled in a major city, only returning to Z, as I understand matters, when her week of care arose. She returned to live in Z permanently in late September 2021, however.
B’s father acknowledged that from October 2021 onwards, the weekly turnaround in respect of B did change in actual fact. B was 16 and a half years old at this point in his life, and his wishes were important and respected by both parents. I accept that B decided to spend more time at his mother’s house in Z in January 2022 so as to be closer to friends over the school holiday break (rather than spend half his time on his father’s property, which, as I say, was situated some distance away from Z).
That said, I also find that B and his father have always enjoyed a very positive relationship with one another and continue to do so. B and B’s father have never been estranged.
REASONS
Care decisions
On 5 March 2022, B’s mother notified the Child Support Agency that there had been a change in the 50/50 pattern of care in respect of B.[4] B’s mother nominated 1 January 2022 as the start date for the change in the pattern of care. The Agency decided that B’s mother had assumed 100% care of B, but from 1 February 2022 only, and adjusted child support payments accordingly.[5] When B’s father appealed the decision internally, it was affirmed.
[4] Ibid.
[5] It would appear that B’s mother agreed to this revised start date: Ex R2, 84.
B’s father brought proceedings in this Tribunal seeking a reversal of the Agency’s decision and a reinstatement of the status quo. The Level 1 Tribunal agreed with the Agency’s decision that B’s mother had 100% care of B but also decided that this new pattern of care had commenced on 1 January 2022, as asserted by B’s mother in her notification to the Agency, and not on 1 February 2022. It also affirmed the Agency decision that the date of effect of the change in B’s mother’s care to 100% should be 5 March 2024.
B’s Father’s Application to the Tribunal
B’s father has brought a further application to the Tribunal (at Level 2). He disputes the Level 1 decision and the earlier Agency decisions. He maintains that the well-settled pattern of 50/50 care remained the same from 1 January 2022 and did not change. B’s mother maintains that there was a change in the pattern of care. She said in her evidence that the change began as soon as she returned to live permanently in Z (i.e., in September/October of 2021), but her notification to the Agency specified 1 January 2022 as the start date.
Tribunal’s Critical Task
My critical task in this review is to decide afresh on the evidence before me whether there was a change in what the Act calls ‘the pattern of care’ in respect of B; and, if there was one, when it commenced. If there was a change in the pattern of care, I must also determine what the dates of effect of the new decision should be for B’s father and B’s mother. This latter question depends on which one of three sections in the Act applies.
I note that my task is not to review the Level 1 Tribunal’s decision as such, but to reach what I assess to be the preferable decision based on the totality of the evidence before me. This includes evidence given by the parties at the Level 1 hearing. Some of this evidence is canvassed in the Level 1 Tribunal’s decision.
B’s Father’s specific submissions
It is convenient to record at this point B’s father’s specific submissions. B’s father submitted that any change in the actual number of nights B spent with B’s mother in January 2022 was simply part and parcel, so to speak, of the ad hoc holidays, unplanned absences and the like that had occurred periodically over the preceding years. These had all taken place, he submitted, without either party asserting a change in the ongoing pattern of care.
B’s father acknowledged that after the school holidays concluded at the end of January 2022, B continued to spend most of his time with B’s mother; but he submitted this occurred only because his own household was impacted by Covid, and this compelled B to stay away. B’s father further maintained that he was always prepared to have B live with him. I accept that is true. B’s father said he intended to make up for the time he ‘lost’ during February, so to speak, by having B at his home more frequently later in the year. I also accept this is true.
Factual findings concerning actual care
It is appropriate to decide the question of care by reference to the nights B spent at his mother’s or father’s. This course is routinely followed in the Tribunal, and it is an appropriate way to proceed in this matter in my opinion.
On the evidence before me, B spent either all nights in January 2022, or alternatively almost all nights of that month, at B’s mother’s house. In this regard, I think the Level 1 Tribunal’s record of the evidence before it (at [14] – [16] and [30] of its reasons) is consistent with B’s father accepting greatly increased care by B’s mother during the school holidays from 1 January 2022 to the end of January. Indeed, he said he was happy for B to spend time with her and with his school friends.
Basing myself on B’s father’s calendar evidence,[6] I also find that B spent every February night at B’s mother’s house apart from three nights.
[6] Ex R2, 126-129.
I note, in fact, that from 1 February 2022 and up to and including 20 March 2022, B’s father’s calendar discloses that only eight nights were spent by B at B’s father’s property.
Change in the ‘pattern of care’
In light of these factual findings, I turn now to consider whether there was a change in the ‘pattern of care’ because this threshold must be satisfied before care percentages may be altered. In my opinion, when I come to determine whether there was a change in the ‘pattern of care’, I should ignore the fact that the change may have been involuntary (in the sense that B would have spent part of February 2022 or March 2022 at his father’s property but for Covid restrictions that prevented him from doing so). Whatever the cause, it remains the case that B spent those nights in his mother’s house.
On my review, I find as a fact that B spent as few as 8 nights out of 79 nights at his father’s home in the period from 1 January 2022 to 20 March 2022.[7] In my opinion, this period discloses that there had been a change in the 50/50 ‘pattern of care’ that had persisted for so many years. In my opinion, it is appropriate to conclude that B’s mother provided 100% care from 1 January 2022. I do not believe there is sufficient evidence before me to conclude that the pattern of care commenced earlier than 1 January 2022, and I note that this was the date specified by B’s mother in her notification to the Agency.
[7] This assumes no nights in January were spent by B at B’s father’s home. If B spent a few nights in January at his father’s house, it would only make a marginal difference to the fraction.
The interval of two and two-thirds months (from 1 January 2022 to 20 March 2022) constitutes a lengthy period of time. There was a regular and mainly unvarying way in which B spent his nights during this interval; namely, he was spending the vast majority of the nights at his mother’s house with only occasional nights at his father’s property. This became a new pattern.
From 21 March 2022 to 3 April 2022, a period of 14 days, B did stay with his father every night, but then for a further 24 days (until 27 April 2022), B stayed with his mother every night with just one exception according to B’s father’s calendar.[8] The 14 nights that B spent with his father, when viewed in the context of the preceding period from 1 January 2022 and of the succeeding period of 24 days, did not break the pattern of B’s mother having 100% care of B in my opinion: it was too short a time to effect an alteration in what had become the new pattern of care.
[8] Ex R2, 127-128.
From 28 April 2022 onwards, it appears that B’s father’s care began to increase substantially, and this change, effective from 13 May 2022, was notified to the Child Support Agency.
Conclusions on the evidence
My review of all the evidence has led me to conclude that the Level 1 Tribunal was correct to find that from 1 January 2022, B’s mother began to provide 100% care and B’s father 0% care. It follows, therefore, that I agree with the conclusions of the Level 1 Tribunal to this effect appearing at [36] of its decision.
This level of care was not desired by B’s father from 1 February 2022 onwards (when the school year recommenced), and I acknowledge that he was forced to accept the situation because the Covid pandemic had impacted his household. Nevertheless, his reduced level of care, and B’s mother’s commensurately higher level of care, did in fact occur.
Furthermore, the changes in care did amount to a change in the ‘pattern of care’ in my opinion.
The Level 1 Tribunal was also correct in my view to decide as a matter of fact that the change in the pattern of care was notified to the Agency on 5 March 2022 by B’s mother.
Date of commencement of decision
Having made its finding that there had been a change in the pattern of care, the Level 1 Tribunal had then to determine which of sections 54F, 54G and 54H of the Act applied. These sections are mutually exclusive and operate to fix the dates of the revocation of the existing percentage-of-care determinations. The Level 1 Tribunal applied section 54F to fix these dates. In my opinion, it was correct to do so.
As I have said, B’s mother notified the Agency of the change in the pattern of care on 5 March 2022. I find that she ought reasonably to have alerted the Agency to the change earlier than 5 March 2022 even if the change in the pattern of care commenced on 1 January 2022.[9] In my opinion, section 54G(1)(d), which specifies that B’s mother must have notified the Registrar within a ‘reasonable period’ of the change if section 54G is to apply, is not satisfied. Given this conclusion, I need not decide whether B’s mother ‘made B available’ to B’s father from 1 January 2022. If not, that would be an additional reason for not applying section 54G: see section 54G(1)(b). My conclusion is, therefore, that section 54G does not apply.
[9] B’s mother asserted in her evidence to me that the change had begun well before 1 January 2022.
The preconditions for the application of section 54F have been satisfied in my opinion. The Level 1 Tribunal was correct to find this was the case in my view. I need not set out the preconditions. As section 54F applies, it follows that section 54H cannot apply: see section 54H(c).
As section 54F is the correct section in the Act to apply to determine the dates of effect of the change, the Level 1 Tribunal was correct to revoke the determination in respect of B’s mother with a date of effect as determined by section 54F(3)(b)(i). This subsection specifies that the date of effect of the revocation of the old percentage of care is the day preceding the day on which the notification is made. B’s mother made her notification on 5 March 2022.
The Tribunal was also correct to revoke the determination in respect of B’s father from the day preceding the day on which the pattern of care actually changed as required by section 54F(3)(b)(ii). The new pattern of care commenced on 1 January 2022.
FINAL CONCLUSION
Having considered all the evidence afresh for myself, and having heard the parties’ submissions, I have concluded that the critical decision reached by the Level 1 Tribunal (as to a change in the pattern of care) is the preferable one on the evidence before me.
The appropriate decision in my view is to affirm the Level 1 decision.
ADDITIONAL OBSERVATIONS
I would note that much antagonism might have been avoided if B’s mother had sought to discuss matters with B’s father, or at least texted him to explain her position,[10] before making her application to the Agency. That is not a legal requirement; but giving advance notice can be helpful in maintaining a degree of goodwill between estranged parents. I do not doubt that B’s father felt affronted, so to speak, by the Agency’s notification to him that an application for a change in child support had been made by B’s mother. On the evidence before me, the decision taken by B’s mother not to disclose her intention to B’s father in advance was unnecessarily controversial, especially after the passage of so many years where the 50/50 split had been agreed and acted upon. It appears to have reignited the bitterness that had attended the drawn-out divorce and property settlement.
[10] B’s mother accepted that she was able to text B’s father in the past to mention matters concerning the children.
I would also note that B has felt aggrieved, understandably, by both his parents’ actions in this matter. He has implied that he has felt dragged in by both parents to take their side against the other parent. He has specifically noted the potential effect on his mental health.[11] Both parents expressed their love of B and their concern for his welfare. They may wish to reflect on how they choose to deal in the future with issues concerning money or property so as to preserve as great a degree of harmony as possible within the family circle. I imagine their children, all of whom are now adults, would appreciate such an effort being made, and would seek to participate meaningfully in discussions (at least where they felt they could play a constructive role). These are not, of course, legal observations; but having heard the parties, I have decided to offer them in the hope that they may prove useful.
[11] Ex OP1.
I have numbered the exhibits before me as follows:
(a)Respondent’s Statement of Facts, Issues and Contentions  R1
(b)Respondent’s Tribunal Documents   R2
(c)B’s Statement dated 15 May 2023 provided by Applicant (LRJQ)               A1
(d)B’s Statement dated 27 June 2023 provided by Applicant (LRJQ)             A2
(e)B’s Statement dated 17 June 2023 provided by Other Party (RJBF)           OP1
(f)B’s Statement dated 19 June 2023 provided by Other Party (RJBF)           OP2
I certify that the preceding thirty-seven (37)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]………………………..
Associate
Dated: 15 July 2024
Date of hearing:  24 May 2024
Advocate for the Applicant:      Self-Represented
Advocate for the Respondent:  Gillian Gerhke
Services Australia
Advocate for the Other Party:  Self-Represented

[2024] AATA 2458

15 July 2024

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction