LWRL and Child Support Registrar (Child support second review)
[2022] AATA 4450
•23 December 2022
LWRL and Child Support Registrar (Child support second review) [2022] AATA 4450 (23 December 2022)
Division:GENERAL DIVISION
File Number(s): 2021/4599
Re:LWRL
APPLICANT
AndChild Support Registrar
RESPONDENT
AndGHMB
OTHER PARTY
Decision
Tribunal: Member Lee Benjamin
Date:23 December 2022
Place:Brisbane
The decision under review is affirmed.
..............................[SGD].........................................
Member Lee Benjamin
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 (Cth).
Catchwords
CHILD SUPPORT – percentage of care decision –actual care – pattern of care – dispute about percentage of care – date of effect – consideration of evidence as to percentage of care – decision affirmed
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 MQMV [2019] FCA 1171
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645)
F v LP (Child Support) [2015] AATA 321
Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473
Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562
Shi v Migration Agent Review Authority [2008] HCA 31.
QWKW and Child Support Registrar (Child support second review) [2021] AATA 2060
Secondary Materials
Guides to Social Policy: Child Support Guide
REASONS FOR DECISION
23 December 2022
The Decision under review
The decision under review is that made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 2 July 2021 which set aside the decision made by an authorised officer of the Child Support Registrar (the Respondent or the Registrar) on 4 March 2021. In substitution, the AAT1 found that from 18 March 2019 the Other Party (GHMB or mother) had 66% care of G1 (born 2008) and G2 (born 2009) and the Applicant (LWRL or father) had 34% care, and that the mother had 64% care of B1 (born 2012) and the father had 36% care.
Background
The father and the mother are the parents of three children, G1, G2, and B1 (the children).
From 10 March 2018, the children were in the mother’s care 61% of the time, and in the father’s care 39% of the time. These care percentages were given effect in the child support assessment from 23 August 2018, being the date of notification (existing care determination) (Exhibit R1, T29, p 263, p 265 & p 267).
On 18 August 2020, the mother notified Services Australia – Child Support (the Agency) that there had been a change of care for the children from 18 March 2019 such that from that date, she and the father had 242 nights (67%) and 123 nights (33%) care of the children respectively as a result of her changing work conditions (Exhibit R1, T6, p 46).
On 6 October 2020, the Agency decided to record the care percentages for the children as 67% to the mother and 33% to the father from 18 March 2019. The Agency also determined the mother’s increased care percentage applied from the date the Agency was notified of the change (18 August 2020) and the father’s decreased care percentage applied from the date the care changed (18 March 2019) (the original care determination) (Exhibit R1, T11, p 52).
On 12 October 2020, the father objected to the original care determination on the basis that his care had not changed and may have even increased during the past two years, amounting to a total of approximately 137 nights of care (Exhibit R1, T13, p 91-92). The father provided further evidence to support his contention on 17 November 2020 (Exhibit R1, T19, p109), including:
(a)A statement calculating the nights he had care of the children (Exhibit R1, T19, P 110-111);
(b)Text messages with the mother confirming the days that he had the children (Exhibit R1, T19, p 112); and
(c)Letter of support from a third party dated 17 November 2020 confirming the days the father had the children (Exhibit R1, T19, p 134).
On 4 March 2021, an authorised officer (objection officer) allowed the father’s objection. The objection officer found that the father’s regular care pattern for the children involved providing care two nights per week, half the school holidays as well as ad hoc care, bringing the total nights of care during the care period to 143 nights, which was in line with the original assessment. Accordingly, it was determined that there was no change of care from 18 March 2019 (Exhibit R1, T23, p 141-147) (the objection care determination).
On 30 March 2021, the mother applied to the AAT1 for a review of the objection care determination (Exhibit R1, T24, p 174). The mother provided the following evidence in support:
(a)Letter of support from a neighbour dated 23 March 2021 (Exhibit R1, T24, p 184);
(b)Letter of support from a Home Support Assessor dated 18 March 2021 (Exhibit R1, T24, p 185);
(c)Letter of support from a friend of the mother (Exhibit R1, T24, p 186);
(d)Letter of support from the mother’s parents, dated 24 March 2021 (Exhibit R1, T24, p 187);
(e)Annotated calendar from March 2019 to December 2020 (Exhibit R1, T24, p 188); and
(f)Text messages with the father confirming the days that she had care of the children (Exhibit R1, T24, p 200).
The mother and the father both gave sworn evidence to the AAT1 at hearing on 31 May 2021 (Exhibit R1, T2, p 7 at [8]).
On 2 June 2021, the father provided further text messages in support of his contentions (Exhibit R1, T25, p 242).
The AAT1 found that the pattern of care for the children was for the mother to have care of the children for five nights per week and half the school holidays, whilst the father had care for two nights per week and half of the school holidays. Under this arrangement, the mother would have 242 nights of care (67%) and the father would have 122 nights of care (33%) (Exhibit R1, T2, p 9 at [16] and [17]).
Although the evidence provided was inconclusive in regards to the amount of ad hoc care (Exhibit R1, T2, p 9 at [18]), the AAT1 was satisfied that it was more likely than not that the father would have had at least six more nights of care during the care period for B1 (Exhibit R1, T2, p 9 at [20]) bringing his care percentage to 36% which would grant him a cost percentage greater than 24%. The AAT1 was satisfied that the mother had 64% of the care of B1 from 18 March 2019.
In relation to G1 and G2, the AAT1 was satisfied that the mother had 66% care and the father had 34% care from 18 March 2019 (Exhibit R1, T2, p 9 at [21]).
Accordingly, on 2 July 2021, the AAT1 set aside the decision under review and in substitution decided that from 18 March 2019 (Exhibit R1, T2, p 6):
(a)The mother had 66% of the care of G1 and G2 and the father had 34% of their care; and
(b)The mother had 64% of the care of B1 and the father had 36% of his care.
On 9 July 2021, the father applied for further review of the AAT1 decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (Exhibit R1, T1, p 1).
The Hearing for the application took place on 29 June 2022 by telephone. LWRL and GHMB provided evidence on affirmation. The Respondent was represented by Ms TinYan Wong of the Litigation Branch of Services Australia.
LWRL and GHMB provided mid- and post-Hearing submissions, respectively, setting out their contentions in relation to the identification and computation of the nights they each claim to have had care of the children.
Issues
The issues for consideration by the Tribunal are:
(a)Whether the existing care determination should be revoked pursuant to s 54F, s 54G or s 54H of the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act); and if so
(b)What percentage of care should be attributed to the father and the mother under s 49 and/or s 50 of the Assessment Act, and from what date; and
(c)What the date of effect of any subsequent care determination ought to be.
Law
Applicable Legislation and Policy
The relevant legislation is contained in:
(a)The Assessment Act;
(b)The Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act); and
(c)The Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
The relevant policy is contained in the Child Support Guide (the Guide). The Tribunal is not bound by policy, but must take it into account and will usually follow it unless there are cogent reasons not to do so (see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634 at 639-645) (Drake).
In Gillson and Secretary, Department of Families, Housing, Community Services & Indigenous Affairs [2011] AATA 473 the Tribunal said that it is appropriate to have regard to departmental policy in contested cases of shared care:
… The respondent has submitted that it is appropriate to have regard to Centrelink’s policy guidelines. From the inception of this Tribunal there has been judicial guidance concerning the need of the Tribunal to have regard to policy. Centrelink decisions about shared care are generally made with reference to the Family Assistance Guide 1999 (“the Guide”). In my view it is appropriate to have regard to this policy document in contested cases of shared care; the application of the policy encourages consistent decision making.
Jurisdiction
Section 96A of the Collection Act states:
An application may be made to the AAT for review (AAT2 second review) of the following decisions of the AAT:
(a)A decision under section 92 to refuse an extension application;
(b)A decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
(c)A decision under subsection 95N(2) to make, or not to make, a determination.
Section 4 of the Collection Act defines a care percentage decision as:
“care percentage decision” means a decision as to the particulars of an administrative assessment, or as to the particulars of a notional assessment, to the extent that the decision involves (wholly or partly):
(a)a determination of a persons’ percentage of care for a child that was made under a provision of Subdivision B of Division 4 of Part 5 of the Assessment Act; or
(b)a determination relating to a person that has effect, under section 54K of that Act, as if it were a determination made under such a provision.
The interpretation of a care percentage decision was considered in Child Support Registrar v MQMV [2019] FCA 1171 (MQMV), where Flick J held (at [46]):
To be susceptible to “second review” the decision of the Tribunal on “first review” does not have to be one made exclusively under Subdiv B but rather be one which “involve[d] (wholly or partly)… a determination made under a provision of Subdivision B…”. A decision to affirm a decision as to an existing determination of a parent’s percentage of care, or a decision to disallow an objection made to an existing determination, is such a decision. It is a decision which, at least in part, “involves” a decision that the existing “determination” remained appropriate.
On review, this Tribunal may affirm the AAT1’s decision if it considers it the correct or preferable decision. If the Tribunal sets aside the AAT1 decision it would need to:
(a)First, make a determination, relevantly under either ss 54F, 54G, or 54H of the Assessment Act as to whether the existing percentage of care determination must or should be revoked; and
(b)Second, in the event the existing percentage of care determination is revoked, make a new care percentage determination under either ss 49 or 50 of the Assessment Act.
EVIDENCE AND CONTENTIONS
Respondent’s contentions
Given the nature of the proceedings, which is essentially a dispute between the father and the mother regarding the care provided to the child during the relevant period, the Respondent considers that their role should be confined to assisting the Tribunal in identifying and applying the relevant provisions to the evidence. Accordingly, the Registrar does not advance a position as to the findings of fact that the Tribunal is called upon to make.
The Respondent’s contentions are set out below (Exhibit R2, p 1-18 at [26]-[60]).
The provisions relevant to the revocation of an existing care percentage are contained in Part 5, Division 4, Subdivision C of the Assessment Act (Exhibit R1, T3, p 11). In short, the Tribunal:
(a)Must revoke the existing care determination pursuant to s 54F where a new care percentage determination made under s 49 or s 50 would change the cost percentage for the child; or
(b)Must revoke the existing care determination pursuant to s 54G, where, under a new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child would now be determined to have less than regular care despite the child being made available by the other parent and the other parent notified the Registrar of this circumstance within a reasonable period; or
(c)May revoke the existing care determination pursuant to s 54H, where a new care percentage determination, if it was to be made, would change the care percentage and s 54F and s 54G do not apply.
Section 54H can only apply if ss 54F and 54G do not apply (s 54H(1)(e)). Further, s 54F can only apply if s 54G does not apply (s 54F(1)(e)). It is therefore appropriate for the Tribunal to first consider the applicability of s 54G.
Section 54G provides that where a parent is assessed as having at least regular care of a child during a care period, but has had either no care of the child or less than regular care (despite the other parent making the child available) and the other parent’s percentage of care for the child was made under s 50 of the Assessment Act, the Registrar (or the Tribunal standing in the Registrar’s shoes) must revoke both care determinations. As there is no evidence that either parent has had less than regular care of the children as required by s54G(1)(b), the Registrar submits s54G is not relevant to the decision under review.
The Tribunal must next consider whether s 54F applies. A parent’s cost percentage for the purposes of s 54F(1)(b) is to be worked out in accordance with the table in s 55C of the Assessment Act, namely:
Cost percentages
Column 1 Item
Percentage of care
Column 2
Cost percentage
0 to less than 14% 1
Nil
14% to less than 35% 2
24%
35% to less than 48% 3
25% plus 2% for each percentage point over 35%
48% to less than 52% 4
50%
more than 52% to 65% 5
51% plus 2% for each percentage point over 53%
more than 65% to 86% 6
76%
more than 86% to 100% 7
100%
If the Tribunal concludes that s 54F does not apply, then it should next consider whether s 54H applies. It should be noted that unlike s 54F and s 54G, revocation under s 54H is discretionary.
Determination of the percentage of care
Sections 49 and 50 of the Assessment Act set out when a determination of a percentage of care must be made. In determining a percentage of care under s 49 or 50, the Registrar is to be satisfied that the person has either no pattern of care (s 49) or a pattern of care s 50) during the care period that the Registrar considers to be appropriate having regard to all the circumstances (paragraphs 49(1)(a) and 50(1)(a)).
Where a percentage of care determination has previously been made under s 49 or s 50 in respect of a particular care period and the pattern in care for a child has changed, a new percentage of care determination cannot be made unless the existing percentage determination is revoked under Subdivision C of Division 4 of Part 5 of the Assessment Act (s 49(1)(b)(i) and s 50(1)(b)(i) of the Assessment Act).
When determining care, if no pattern of care is found, the Tribunal must determine the percentage of care to be 0% for that parent (s 49(2)-(3)).
If a pattern of care is found for one or both of the parents, the Tribunal must determine a percentage of care for the parent that corresponds with the actual care of the child that has occurred, or is likely to occur, during the care period (s 50(2)-(3)).
To make a determination of percentage of care in accordance with section 49 or section 50 of the Assessment Act, it is first necessary for the Tribunal to decide whether there is a ‘pattern of care’ within a care period: s 49(1) and s 50(1).
Pattern of care
The Tribunal considered the meaning of the term ‘pattern of care’ in Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 and said at [33]:
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 the 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 minor departures from the normal care of the child will not constitute a change to the pattern of care.
Care is not defined in either the Assessment Act or Collection Act. The level of care provided by a person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.
The Guide at chapter 2.2.1 provides the following guidance on determining whether care exists:
Determining whether care exists
An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (s 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.
In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:
·To what extent the person has control of the child, including having overall responsibility for the child and making:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and o arrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
The Guide further provides:
Percentage of care
The percentage of care is the mechanism used in the child support assessment formula to take into account the amount of time a parent or non-parent carer is responsible for providing care for the child.
A person's percentage of care for a child will generally be determined according to the actual care that they have of the child. The actual care may be reflected in care arrangements agreed upon by the parents, including non-parent carers. This agreement might take the form of a written agreement, parenting plan or court order in relation to a child's care. See 2.2.2 for more information on how percentages of care are worked out.
A parent or non-parent carer's percentage of care for a day in a child support period is the percentage of care that the person is likely to have of the child during the care period.
Section 54A of the Assessment Act provides how the actual care of the child may be determined. Section 54A provides that:
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time.
Section 54A(2) provides that the general method for assessing actual care is based on the number of nights that a child was, or is likely to be, in the care of a person.
However, the Tribunal may consider other criteria where in the circumstances of the case, the methodology in s 54A is inappropriate or provides no guidance (P v Child Support Registrar [2013] FCA 1312)
The Guide at 2.2.1 (Exhibit R1, T4, 25) states:
Generally, the number of nights a person cares for a child will be the best measure of their percentage of care. However, there may be some occasions where only counting the nights in care does not accurately reflect the caring arrangements for the child. For example, one parent may provide care every night while the other parent provides care from 8am to 6pm every weekday.
In such cases, at the request of a parent or non-parent carer, the number of hours of care may be calculated for each carer in determining the pattern of care and then converted into a care percentage. The Registrar will take into account the information from each parent or non-parent carer about the care they provide and why they think nights or hours is the better measure of care.
Example: Camryn and Capricia have one child Viktor. Camryn works night shifts and so can only provide care for Viktor during the daytime. Camryn cares for Viktor for 45 hours per week while Capricia cares for Viktor every night. A percentage of care based on nights would not properly reflect the parents' care arrangements for Viktor and the Registrar would therefore determine the percentages of care based on the hours that each parent provides care for Viktor.
Example: Albert and Daria have one child, Ahmed. Albert has 98% care of Ahmed and Daria has 2% care based on the number of nights care over a 12-month care period. During the 12-month care period, Ahmed stays 7 Saturday nights (from 4pm Saturday to 12 noon on Sunday) with Daria and the rest of the nights with Albert.
Daria works night shifts and takes care of Ahmed every weekday from 8am until Albert returns from work at 6pm. This occurs for 40 weeks over 12 months. Daria requests that their care percentage be calculated using hourly care.
…
Even where a determination based on the hours of care that a person provides might result in a different percentage of care to a determination based on the nights of care, it may still be more appropriate to use nights of care as the best measure of care that the person provides.
If a person has some overnight care and a small amount of additional 'daytime' care that is not associated with an overnight stay, it may still be more appropriate to use a care percentage calculation based on nights. A decision as to whether nights are an appropriate basis for a care percentage determination will depend on the particular circumstances of the case.
Example: Leif and Kayley have 2 children, Emmett and Matti, who live mainly with Leif. Kayley has care of the children every second Friday and Saturday night and some school holidays. Kayley also picks the children up from school on Wednesdays, takes them to soccer and has dinner with them, before dropping them back to Leif's house for the night. As the daytime care Kayley provides each Wednesday does not significantly affect the care arrangements, it is appropriate to base the percentages of care on the nights of care that each parent has of the children.
In P v Child Support Registrar [2013] FCA 1312, Wigney J noted at paragraph 107:
Paragraph [56] of Polec should be approached on the basis that it is no more than what Hughes FM intended it to be; namely a workable guide to assist decisionmakers in determining the extent of care. It should not be approached on the basis that it provides some sort of exhaustive check list of matters that it is mandatory for decisions-makers to consider irrespective of the facts and circumstances of the particular case at hand. “Care” is not defined in the Act. The extent of care that is provided is a question of fact. It will depend on the facts and circumstances of the particular case. The meaning of care in any given case should not be constrained by a set list of questions or considerations.
As the Registrar understands it, the mother and father agree regarding the ‘default care arrangement’ that was provided for the children from at least 18 March 2019 (Exhibit R1, T2, p 9 at [16]). The Registrar notes, however, the dispute between the parents appears to centre on the ad hoc care that was provided by the parents and whether the father ought to be attributed a higher care percentage having regard to the additional care he asserts he has of the children.
The Register contends that the Tribunal is required to make findings of fact as to the appropriate percentages of care that the father and mother had of the children during the care period from 18 March 2019.
Care period
A care period does not have any fixed duration. The Guide provides at part 2.2.1 “a care period is generally a 12 month period from the date on which the actual care of the child changed” (which in this matter is 5 April 2019). However, there are some circumstances that would warrant a departure from the standard 12-month period. The Guide at 2.2.1 further provides that:
A care period of more than 12 months might be appropriate where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months.
Example: Martin and Cassie have one child, Priscila. Martin and Cassie have a parenting plan which provides Martin with care of Priscila every Saturday night and half of each of the school holiday periods except Christmas.
Martin and Cassie alternate care of Priscila over Christmas such that Priscila stays with Martin for all of the Christmas school holidays one year and then with Cassie for all of the Christmas school holidays the next year.
Depending on which parent has care of Priscila during the Christmas school holidays, both Martin and Cassie's care percentage would change each year if the care was determined over a care period of 12 months. In this case, it would be appropriate to consider a care period of 24 months to properly account for the alternating pattern of care for the Christmas school holidays.
The Registrar contends that the present circumstances do not present a compelling reason to depart from the standard 12-month period.
The Registrar contends that consistent with Drake there are no cogent reasons for the guide not to be followed and as such it is open for the Tribunal to depart from the standard 12-month care period. The Registrar notes that both the objections officer and the AAT1 followed this approach.
Date of effect
Section 54B of the Assessment Act dictates the date from which any new care percentage determination made by this Tribunal must take effect. The date of effect will be the day immediately after the day the revocation takes effect by operation of s 54B(2)(c)(ii). The Tribunal has no power to order otherwise. This date may be 18 August 2020, or if the Tribunal finds that the care changed on a different day prior to the date of notification and that the existing care determination should be revoked, the day after that revocation date.
Date of effect of revocation
If the Tribunal makes a revocation decision under either ss 54F or 54H, that decision should take effect:
(a)for the parent whose care increases – at the end of the day before the notification of the change of care, or 18 August 2020: s 54F(3)(b)(i) or s 54H(3)(b)(i);
(b)for the parent whose care decreases – at the end of the day before the change of care day: s 54F(3)(b)(ii) or s 54H(3)(b)(ii).
Application to the present case
The core issue for the Tribunal to determine on review is the appropriate percentage of care between the father and the mother for an appropriate care period, starting from 18 March 2019, the date of the alleged care change. There appears to be no dispute that the father had an increase in ad hoc care during the care period (Exhibit R1, T2, p 9 at [18]). It is a matter for the Tribunal to determine if the evidence supports a finding there is a substantial departure from the established pattern of care or that one or the other of the parents has had more ad hoc care during the care period.
In making its decision, the Tribunal is required to make a retrospective care determination. In the Registrar’s submission, the correct approach is to make a determination of what care actually occurred during the relevant care period. This is in contrast to a ‘point in time’ approach, which asks what the responsible person’s percentage of care was likely to be during the relevant care period on the basis of the evidence before the Tribunal as to what happened up until, and was known as at, the date on which the original decision was determined by the Agency.
Senior Member CR Walsh explained in F v LP (Child Support) [2015] AATA 321 why it is preferable that the Tribunal make a determination of what care actually occurred during the relevant care period:
Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time.
The above approached was recently endorsed by Senior Member PJ Clauson AM in QWKW and Child Support Registrar (Child support second review) [2021] AATA 2060 at [57]-[60].[1]
[1] This approach has also been endorsed in the decision of HLKP and Child Support Registrar (Child Support second review) [2021] AATA 700 at [35]-[36] by Member Frost and SHQY and Child Support Registrar (Child Support second review) [2021] AATA 930 at [45] by Member Reitano.
The Registrar submits that the issues for the Tribunal’s consideration in this review are as follows in the following sequence:
(a)First, the Tribunal should identify the appropriate care period, starting from 18 March 2019, or other date the Tribunal might identify as to when the care changed (prior to the date of notification).
(b)Second, the Tribunal will be required to determine whether there was a pattern of care during the care period and, if so, the actual percentages of care provided by the parents during that period. The Tribunal will need to make findings on the evidence presented by the parties as to their respective levels of care of the child during the care period. In determining care, the Tribunal should have regard to the relevant factors identified in the Guide and those referred to by the Court in Polec.
(c)Third, once the Tribunal has determined the care percentages for the care period:
(i)if the Tribunal finds that the care percentages to each of the parents is unchanged from the existing care determination, the Tribunal should set aside the AAT1 decision and in its place make a decision to refuse to revoke the existing care determination; or
(ii)if the Tribunal agrees with the AAT1’s care percentage determination (including date of effect) then the decision under review should be affirmed; or
(iii)if the Tribunal makes findings that the percentages of care to each of the parents in the care period are different to those determined by the AAT1, then it must determine which of ss 54F or 54H is applicable in deciding whether to revoke the existing determination. If the Tribunal decides to revoke the existing determination, it must make a new care percentage determination under s 49 or s 50 and confirm the relevant date of effect thereof.
Applicant’s contentions
The father’s submission was as follows:
·He normally has the children two nights each week and half the school holidays. In March 2019, there was to return back to work for the mother.
·He prepared a calendar from March 2019 through until August 2020. He said that the had been “very methodical and very careful” about preparation of the calendar. He said that he “went through all text messages between [the mother] and [him] from these periods, which was the only thing that [he] could go back on to verify exactly when the dates were that [he] had the children.”
·His calendar calculation shows that he had the children “44 per cent [over the period… [he’d] have to round that down slightly…so we could be looking at around the 39, 40, or whatever.” He further told me that there are a “few discretions where it might not have been all three children on that particular day, so that gets a little tricky.” He told me that “there were periods where [G1] was sick from school, so [he] would get her and have her an extra night, or … same with [B1]”. This point was further elucidated in the following exchange:
“MEMBER: So…just so I am clear on what your submission is, the calendar that you’ve submitted which shows 44 per cent of the care, your position is, and that’s not broken down by each of your three [children], is it?
LWRL: No, so that’s right. And that gets a little trickier but, you know, how you work that out exactly but majority, 95 per cent of it, is with all three children so it’s quite marginal.
MEMBER: Right…, what I am getting at is we need to be as precise as possible…
LWRL: Well, being precise as possible from the last outcome where they said that it stays exactly the same, was no where near precise (indistinct) complete evidence in the paperwork there that shows the extra days that I’ve had, it was never even considered.
MEMBER: So.. you’re asking the tribunal to allocate the care percentages in what percentage for each of your three kids?
LWRL: Well, I would – like I said, I would be happy to take a hit and take it, you know, back to what originally it was set at by child support and what was agreed to by them, which I think was 39. And even though I probably would’ve been above that, I’m more than happy to accept that.
MEMBER: So 39 per cent across G1, G2 and B1
LWRL: Yes.
MEMBER: Okay.
LWRL: Just for that period obviously, yes.
MEMBER: For the period from 18 March 2019 – - -
LWRL: Yes, 2019 through till 2020 in August, yes.” (Transcript, p 15, lines 5-42)
As referenced above, the father provided a 4 page mid-Hearing submission comprising a handwritten calendar. The father’s calendar summary claims 44% care for (all) the children over the period 19 March 2019 through until August 2020.
Other Party’s contentions
The mother’s submission was, in summary, that the AAT1 decision, “is accurate and reflects the actual pattern of care.” The mother contends that the AAT1 decision is “a fair account of the way it had been, he allowed for those ad hoc days that I’d admitted to and that my mother had admitted to in the letter that she submitted as well, that yes, there was extenuating circumstances with the pandemic and schools shutting down and what not.”
The mother provided a 28 page post-Hearing submission, comprising a handwritten calendar and 24 pages of text messages exchanged between her and the father. I note that the mother’s submissions were in response to the father’s 4 page mid-Hearing submission. I was unable to distil any new, relevant information from this submission.
Consideration AND Conclusion
In considering the issues before this Tribunal, I have had regard to the evidence and submissions placed before it in writing and made at the Hearing. Based on the same, I draw the following conclusions and make the following findings.
First, I am satisfied that there was a regular care arrangement for the children whereby the mother had their care for five nights per week and half the school holidays and the father had their care for two nights per week and half the school holidays. Both parties appear to accept that this was the default care arrangement and that it had been in place since at least 18 March 2019 (i.e., the date on which the relevant care period starts).
Second, both parties also accept that there is regular ad hoc care that is arranged by mutual agreement. What is in dispute is the amount of ad hoc care provided by each parent.
Third, I do not generally accept the father’s calculation of 44% care for the children (i.e., three children) as being accurate or credible. On the one hand, the father claimed that he been “very methodical and very careful” in determining this number. However, on the other hand, the father also conceded that that number was inaccurate and “could” actually be around the 39% or 40% and he did not have the same level of care across all three children.
Fourth, I find that the care arrangements are most consistent with a finding that:
(a)the mother had 66% care of G1 and G2 and the father had 34% care; and
(b)the mother had 64% care of B1 and the father had 36% care during the care period.
Decision
The decision under review is affirmed and it is decided that the percentages of care, with effect from rom 18 March 2019, are as follows:
(a)the mother had 66% care of G1 and G2 and the father had 34% care; and
(b)the mother had 64% care of B1 and the father had 36% care during the care period.
I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin
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Associate
Dated: 23 December 2022
Date(s) of hearing: 29 June 2022 Date final submissions received: 19 July 2022 Applicant: By telephone Solicitors for the Respondent: Ms TinYan Wong
Services Australia
Other Party: By telephone
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