LWTK and Child Support Registrar (Child support second review)

LWTK and Child Support Registrar (Child support second review) [2023] AATA 1264 (17 May 2023)
Division:GENERAL DIVISION
File Number(s): 2022/4475
Re:LWTK
APPLICANT

AndChild Support Registrar
RESPONDENT

AndRNMY
OTHER PARTY

DECISION
Tribunal:Ms A E Burke AO, Member
Date:17 May 2023
Place:Melbourne

The Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 28 April 2022.
........................[sgd]................................................
Ms A E Burke AO, Member
Names used in all child support 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 sections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
Catchwords
CHILD SUPPORT – review of care percentage determinations –change in care – actual care not varied from arrangements as provided for in Court orders – interpretation of the percentage of care in dispute – conflicting evidence of extent of impact of special days on actual care provided – decision under review affirmed
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 (No 2) (1979) 2 ALD 634
QXPD and Child Support Registrar (Child support second review) [2021] AATA 318
Ware and Ware (Child support) [2021] AATA 3607
Secondary Materials
Department of Social Services, Child Support Guide (Guides to Social Policy Laws, version 4.69, 6 February 2023)
REASONS FOR DECISION
Ms A E Burke AO, Member
17 May 2023

The Applicant, LWTK, is seeking a second-tier review by the General Division of the Administrative Appeals Tribunal (AAT2) of a decision of the Social Security and Child Support division of this Tribunal (AAT1) of 28 April 2022 to affirm the decision of the Child Support Agency (CSA) of 6 December 2022.
The application was heard on 29 March 2023 by telephone. LWTK and RNMY (the Other Party) were both self-represented. Mr Aaron Taverniti, solicitor at Sparke Helmore, appeared for the Respondent, the Child Support Registrar.
BACKGROUD
The Applicant, LWTK, and the Other Party, RNMY, are the separated parents of a child born in 2015 (referred to as child A).
On 24 April 2017 an administrative assessment of child support for child A was made, pursuant to the Child Support (Assessment) Act 1989 (the CSA Act), that from 29 July 2020, LWTK had 35% care of child A, and RNMY had 65%.
On 5 September 2021, LWTK notified the CSA that final parenting orders providing for the care of child A had been made by the Federal Circuit Court of Australia on 27 August 2019 (the Court orders).
On 23 September 2021, LWTK advised that care of child A was occurring in accordance with the Court orders. He claimed that from 16 September 2021, the Court orders provided that he was to have 153 nights of care of child A per year, or 41%, because half of the school holidays needed to be included which he claimed was an additional 48 nights.
On 7 October 2021, a delegate accepted LWTK’s request for a new determination of care percentage. The delegate found that from 16 September 2021, LWTK had 41% care of child A (153 nights), and RNMY had 59% (215 nights).
On 8 October 2021, RNMY contacted CSA to advise that she believed this decision was incorrect; a file note records:
RNMY advised that the SO rushed the care changes and said that if she does not call us before the close of business day then the care will be finalised.
RNMY said that she was in presure and said yes to the care change and the care nights are not correct.
RNMY said that the care nights are not correct from 16/09/2021
…
The customer advised they intend to proceed with the objection process.
* Details: RNMY advised that she worked out the care which is not correct and she said that the officer gave her a deadline by whcih she was not ready and when the follow up call came she just agreed to the care.
On 6 December 2021, the Registrar partially allowed RNMY’s objection and found that from 16 September 2021, LWTK had 38% care of child A (142 nights), and RNMY had 62% care (223 nights). The details of the objection decision state:
REASONS FOR THE DECISION
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.
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 (CSA Act section 54A).
In order to make a decision to change the record of care for a child we must be satisfied that there has been a change to the ongoing pattern of care (section 49 and 50 of the Child Support (Assessment) Act 1989).
In this case both parents have conflicting calculations as per court ordered care… In order to determine the actual percentage of care for Child A we have interpreted LWTK’s court ordered care as follows:
From 29 July 2021 onwards:
Details of Objection Decision
From the conclusion of school each alternate Friday to the commencement of School Monday. From 4.45pm each alternate Wednesday to the commencement of School on Friday.
TOTAL CARE: 100 Nights (20 fortnights of school term + 5 nights per fortnight = 100 nights)
For the commencement of the September school term holidays in 2021 (from the conclusion of school until 12 noon on the middle Saturday of the holidays).
TOTAL CARE: 7 nights (1 week)
For the first half of the school term holidays in 2022 and each alternate year thereafter and for the second half of the school term holidays in 2023 and each alternate year· there after.
TOTAL CARE: 14 nights (2 weeks)
For half of all summer holidays and in default of agreement weeks 1, 3 and 5 on a week about basis. TOTAL CARE: 21 nights (3 weeks).
TOTAL ANNUAL CARE: 142 nights.
In light of this it is clear that LWTK’s level of care is 142 nights per year.
On 28 April 2022, AAT1 affirmed the decision under review. The presiding Member at AAT1 decided:
The issue for the tribunal is the calculation of the pattern of care for the child.
There is no dispute between the parties that the care arrangements for the child are as per the court order of 27 August 2019. The tribunal accepts that while the court order is detailed and lists nuances, including care in periods involving public holidays, effectively the court order provides for LWTK to have care of the child for 5 nights during the 20 fortnights of the school term, and for half of the school holidays.
The parties agree that LWTK has care of the child for 100 nights during the 20 fortnights of the school term. The parties agree there are 12 weeks of school holidays during the year, made up of 3 x 2-week term holidays and 1 x 6-week holiday break in the summer period. While the parties broadly agree that the care of the child during school holidays is shared equally, LWTK contends that the actual day count represents 46 days.
The tribunal accepts the annual school holidays represent an overall period of 84 days (7 days multiplied by 12 weeks). In the tribunal’s view, this reflects a fair and reasonable overall assessment, and in relation to a pattern of care, an overall assessment of 42 days, that is half of the total period, applies to each party. LWTK has submitted that a further 4 nights’ care per year should be allowed for him on the basis that he would have an average of 4 extra nights’ care during the year as a result of public holidays. The tribunal does not accept this submission, overall the tribunal accepts that care following public holidays would even out over the years and one party should not be given a favourable allowance over the other party in relation to public holidays.
The tribunal has carefully considered the evidence before it and found the Agency correctly assessed the pattern of care of the child as 142 nights (38%) for LWTK and 223 nights (62%) for RNMY from 16 September 2021, as notified on 23 September 2021.
On 25 May 2022, LWTK requested a review of the AAT1 decision by AAT2 on the basis that the decision made was wrong. He states that the reason he claimed the decision was wrong was, amongst other things:
My final request here is it should be taking into account that as a paying parent it would have made more sense to at least weigh in the past data available rather than put at 142 nights since the fact shows it more than 148 days with least public holidays. Even when we average out 2 years date (Jan22-Dec23) it’s around 148 nights. Kindly fix my nights spent as 150 nights per year/ as a law of average we need to come up to 150 nights.
ISSUE
The issue for determination before the Tribunal is whether there has been a change in the pattern of care from 16 September 2021, and if so, what percentage of care applies to each parent.
LEGISLATIVE FRAMEWORK
The relevant legislation, the CSA Act, contains a complex and confusing scheme for the determination of the pattern of care for a dependent child. The scheme determines the percentage of care, in this case, for each parent. The percentage of care is generally determined by the actual care each parent is providing to the child and is often guided by a care agreement. In this case, the original determination of care was based on the Court orders issued in 2019.
The term ‘percentage of care’ is defined in section 5 of the CSA Act:
percentage of care, in relation to an individual who cares for a child, means the individual’s percentage of care for the child that is determined by the Secretary under Subdivision D of Division 1 of Part 3.
Subdivision B—Determination of percentage of care, Division 4 of the CSA Act contains the following provisions:
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) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and
(ii) is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage of care determined under subsection (2) must be 0%, unless section 51 or 52 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) a parent is taken under section 73A to have had a relevant dependent child from a day specified in that section;
and the Registrar is satisfied that a responsible person for the child has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances; or
(b) the Registrar:
(i) revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of a care for a child that was made under section 49 or this section; and
(ii) is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2) The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3) The percentage determined under subsection (2) must be a percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period.
(4) Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
Section 54A of the CSA Act states:
54A Working out actual care, and extent of care, of a child
(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.
(4) This section does not limit section 50, 51, 52 or 54.
The Tribunal is assisted by the Guide to Social Policy Law: Child Support Guide (the Guide). The Guide provides assistance to those who administer the CSA Act. While it is not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (See Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide clearly outlines that the guiding principle of the CSA Act is the duty of care a parent owes to their child, which is not affected by the duty any other person has to maintain the child. The Guide states at 1.3.1:
Principal Object
·The principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents.
Particular objects
The particular objects of the CSA Act include:
·that the level of financial support is provided in accordance with the parents' capacity to provide financial support - parents with a like capacity should provide like amounts
·that the level of support should be determined in accordance with the costs of the children
·that carers should be able to have the amount of financial support assessed without the need for court proceedings
·that children share in changes in the standard of living of both of their parents, whether or not they live with both or either of them, and
·that Australia is in a position to give effect to its obligations under international agreements or arrangements which relate to maintenance obligations arising from a family relationship, parentage or marriage.
Duty of parents to maintain their children
·The CSA Act also states that a parent has a primary duty to maintain their child. This duty: is not lower in priority than the duty of a parent to maintain any other child or person
·has priority over all commitments of the parents apart from necessary commitments for self-support or necessary commitments to support another child or person that the parent has a duty to maintain, and
·is not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to receive an income tested pension, benefit or allowance.
The Guide at 2.2.2 provides the following guidance on determining types of care determinations:
When determining a percentage of care, the Registrar can make the following types of determinations:
·a determination of the percentage of the actual care that each parent provides (sections 49 and 50)
….
The Registrar will usually determine a percentage of care based on the actual care that each parent or non-parent carer has of the child. The only circumstance in which the Registrar will not use actual care to determine the care percentage is in limited circumstances where a parent or non-parent carer is not complying with a written agreement, court order or parenting plan and an interim care determination is in effect
When the Registrar is notified or otherwise becomes aware that the care for a child has changed, the previous determination will be revoked. A new care determination will be made according to the circumstances.
The Guide provides definitions used to describe care for child support assessments at 2.2.1:
Once a care percentage has been determined, there are 5 different terms that may be used by the Registrar to describe a parent or non-parent carer's care:
Below regular care: A care percentage of 0% to less than 14%. This level of care does not affect the child support assessment.
Regular care: A care percentage of 14% to less than 35% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent or carer will not receive child support if they have a care percentage of less than 35% for a child.
Shared care: A care percentage of 35% to 65% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent with shared care can receive or be required to pay child support. A non-parent carer with at least shared care can receive child support.
Primary care: A care percentage of more than 65% to 86% - will be recognised in the child support assessment as a contribution to the costs of the child. A parent will not be assessed to pay child support if they have more than 65% care.
Above primary care: more than 86% to 100% - will be recognised in the child support assessment as meeting all of the costs of the child. A parent with this amount of care is not required to pay child support.
The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.
TermPercentage of care              Number of nights
Below regular             0 to less than 14%                 0 to 51
Regular  14% to less than 35%            52 to 127
Shared  35% to 65%  128 to 237
Primary  More than 65% to 86%          238 to 313
Above primary            More than 86% to 100%        314 to 365
At 2.2.2 the Guide provides the following on determining a change in pattern of care:
When considering whether to make a new care determination, the Registrar will consider whether there has been a change to the existing pattern of care. If there has been a change to the pattern of care, the Registrar will need to identify the event that is relevant. The event is used to determine the commencement of the care period. The Registrar will need to determine the percentage of care that is likely to occur in the care period.
What constitutes a change to the pattern of care will depend upon the individual circumstances of the case.
The Guide provides the following on determining whether care exists at 2.2.1:
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' (section 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:
o major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements 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.

Also at 2.2.1, the Guide provides the following on 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.
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.
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 (CSA Act section 54A).
…
Additionally, in limited circumstances, a person may have care of a child who is not living with them for a period of time. For example, a person can provide care for a child who is at boarding school, in hospital or in separate accommodation. However, a person who simply supervises the child (for example, a baby sitter, a child minder such as a grandparent or a schoolteacher) does not provide care.
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 Registrar will give weight to statements from both parents and any non-parent carers.
EVIDENCE
The court orders of 27 August 2019 provide:
3) That the child live with the mother.
4) That the child spend time and communicate with the father as follows:
a) From the 27th August, 2019 to 28th July, 2020:
i) From 4.45pm each alternate Friday to 9.15am Monday (or the commencement of kindergarten if applicable).
ii) Each Wednesday from 4.45pm to 7.30pm.
b) From the 29th July, 2020 to 28th July, 2021:
i) From 4.45pm each alternate Friday to 9.15am Monday (or the commencement of kindergarten if applicable).
ii) From 4.45pm each alternate Wednesday to 9.15am to Friday (or the commencement of kindergarten if applicable).
c) From the 29th July 2021 onwards:
i) From the conclusion of school on each alternate Friday (or 4.45pm if a non school day) to the commencement of school Monday (or 9am if a non school day).
ii) From 4.45pm each alternate Wednesday to the commencement of school on Friday (or 9am if a non school day).
iii) For the first half of the September school term holidays in 2021 (namely from the conclusion of school until 12noon on the middle Saturday of the holidays)
iv) For the first half of the school term holidays in 2022 and each alternate year thereafter and for the second half of the school terms holidays in 2023 and each alternate year thereafter.
v) For half of all long summer holidays and in default of agreement weeks 1, 3 and 5 on a week about basis.
d) From 5pm Christmas Day until 5pm Boxing Day in 2019 and each alternate year thereafter and from 5pm Christmas Eve until 5pm Christmas Day in 2020 and each alternate year thereafter.
e) From 5pm on Easter Saturday until 5pm Easter Monday in 2020 and each alternate year thereafter and from 5pm Holy Thursday to 5pm Easter Saturday in 2021 and each alternative year thereafter.
f) From 10am until 6pm on Father’s Day in the event that the child is not in the care of the Father on Father’s Day).
g) On A’s birthday if a weekday that she is not in the care of the Father from after school or 3.30pm to 6.30pm and on a weekend that she is not in the care of the Father from 9am to 2pm.
h) For the Cultural Festival if a weekend when the child is not in the care of the Father from 10am to 4pm in 2020 and each alternate year thereafter. However in the event that the child is in the care of the Mother for the Festival in 2019 and each alternate year thereafter and the Mother does not intend to attend the Festival with the child then she must advise the Father 48 hours prior to the Festival to enable him to attend the Festival with the child from 10am to 4pm.
i) For the Family Day on 14 September each year, if a weekday when the child is not in the care of the Father from the conclusion of school or 3.30pm to 7pm and if a weekend when the child is not in the care of the Father from 1pm to 7pm.
10) Where a public holiday occurs on a Monday or a Friday then the party who has the child in their care for the weekend immediately preceding or following the public holiday shall be entitled to have the child in their care on the Monday or Friday public holiday.
LWTK and RNMY have interpreted the court orders such that child A lives with RNMY and spends five nights per fortnight during the 20 fortnights of the school terms, and half of the school holidays with LWTK. LWTK and RNMY agree that the orders imply that care of child A during school holidays is shared equally, which comprises 12 weeks of school holidays per year, made up of 3 x 2-week term holidays and 1 x 6-week holiday break in the summer period.
A CSA file note of 19 November 2021 records LWTK’s interpretation of the Court orders:
As per the court order dated 27 August 2019, the orders are followed as stated. But in practical the days differ by a few days since the mother has not taken into the account half of the public holidays as well the school holidays also add about 3 to 4 days…
1) Half of the school holidays which is 12 weeks in a year, which comes up to 8 nights (Starts on Friday night and the child goes back on the following Saturday afternoon) for the first weeks of school holidays for 3 terms would total up to 24 nights and for the long Christmas break it comes up to 22 nights. The total equates to 46 nights which is as per court order number 4) c) 3,4 & 5 .
Example for the recent school holiday from 16th September to 25th September 2021 which accounted to 9 nights.
2) Then the balance of 40 weeks which equates to 100 nights which is as per court order number 4) c) 1 & 2.
3) Half of public holidays which equates to 5 nights on the father's time spent which is as per court orders 10).
4) The total nights spend for the year would be 151(46+100+5) nights.
For any doubts/ clarifications happy to talk through these calculations again since I believe it's not as straight forward as the orders as practically it increases my time specifically.
Finally, below are the proof to show the visits are happening as per the court orders as it shows the child is in my care as the mother confirms me the timing of video call as per court order 7) b
A CSA file note of 19 November 2021 records RNMY’s interpretation of the Court orders:
RNMY said that LWTK is interpreting the court order wrong.
He is adding on extra days that have already been calculated.
She said that it does not say anywhere in the court order that he has "half the public" holidays.
The public holidays are included on weekends where LWTK has child A already or during school holidays where he has care.
LWTK and RNMY both provided calendars marking the days child A was in their care. The Tribunal places no weight on this information as they provided nothing beyond highlights of days; the calendars did not provide any contemporaneous evidence to substantiate the claims made by the parties.
LWTK provided an undated signed letter from his parents confirming the court orders were being followed.
In LWTK’s written submission dated 22 November 2022 he contended:
1)    The public holidays as stated in court order no 10 is not accommodated in any ways which should be shared between both parties equally even though its different every year to avoid confusion of care percentage. There are about 6 public holidays which are not overlapping with the school holidays/ court orders out of total 13 public holidays.
2)    As per the court order 4)c)iii, iv, v the changeover has to happen at 12pm on a Saturday every alternate week but if the child A spends her last week of school holidays with the mother (say 6th week of the long summer holidays/ 2nd week of the school term holidays) she is not returned to me at 12pm on Saturdays whereas the mother tries to mis interpret the court order and only lets the child to come after 14 days where in I am losing my valuable time to be spend with the child which is clearly shown in the calendar presented by the mother on 1st November,2022 in her submissions. And because of this misinterpretation I am losing around 4 to 8 days every year.
3)    Again on the same court order 4)c)iii, iv, v the pickup needs to be at the conclusion of the school but the mother misinterprets this order as Victorian gazetted school holidays whereas court orders are in line with federal laws. I have attached the email forwarded to the mother and her response in regard to this is contentious and again I have lost 2 nights in this instance.
4)    According to my calendar in year 2021, I should have spent 146 nights, in 2022 I should have spent 150 nights just by following the court orders judiciously. I have attached this calendar. I have roughly calculated the time spend in 2023 which would again come up to 151 Nights. Also I have attached grandparents letter which I have send previously to the tribunal.
5)    There has been a bit of going back and forth since the agency was informed of the change of care on 23rd September 2021 with the mother initially agreeing to the care change and then disagreeing to the night spend on 12^th October 2021. But she has been standing her grounds to the fact that the child only spends 142 Nights which has now changed to 145 Nights in her submission on 1st November which contradicts her statements.
6)    Recently the mother wanted to go overseas and she wants me to have the first 3 weeks of summer holidays which she says starts on 16th December since the school closes on this date but Victorian gazetted holidays start from 21st December,2022. If 21st Dec is the start of school holidays until 31st Dec except, she goes to the mother on 25th Dec= 9 Nights. 7th Jan to 14th Jan= 7 Nights.21st Jan to 28th Jan= 7 Nights and this will be as per the court order. The whole nights spend with the father will be 23 Nights during the school holidays.
7)    All apart from this I also spend half of the child's school fees which would come up to $1400 per year. I am remarried I have 2 young children in our care apart from the child (A) and this process is adding more stress in my life.
8)    My request here would be to finally adjust my nights to 153 Nights or at least fix a date so that Child support considers how many nights have been spend in the previous year but to take this the above arguments 1, 2 & 3 needs to be adjusted/ factored accordingly as it would not reflect the real facts and figures.
LWTK advised the Tribunal at the hearing:
(a)The first week of every fortnight during the school term, child A spends Fridays to Mondays with him, then Wednesday evening to Friday the following week, and that ends the normal fortnightly care plan which starts Friday, ends Monday, and starts again on Wednesday;
(b)that there was no issue with that pattern of care of five nights per fortnight during school terms;
(c)the issue as he perceived it is the Court orders clearly state that from the conclusion of school on term holidays, handover of child A is on Saturday, however, some school holidays start on Wednesday in which case he would try to bring child A back on Saturday, but RNMY disagreed as she said care during school holidays is half and half, so that if the holidays start on Wednesday then handover is the following Wednesday;
(d)on the whole he was ok with that, however, last year term holidays, he had care of child A for the first block and RNMY had the second. He sent child A back on Saturday so on the second block RNMY should have brought child A back on the following Saturday afternoon, but as the holidays went until Monday, RNMY did not return child A;
(e)he claims that following the court orders, if he hands child A back on Saturday, 18 March at 12pm, then child A should come back to him the next coming Saturday, 25 March at 12pm but that doesn't happen;
(f)in that example, school then starts Tuesday. 28 March, which means RNMY has child A until 30 March, so he gets child A back two weeks later, which he argues is an incorrect interpretation of the court orders which are very clear and simple and specify every alternate week;
(g)in the long Christmas school holidays which are six weeks, he only had care of child A for 19-20 nights so not even half of the school holidays which is his main point of contention;
(h)that he is losing much time with child A, even if he had care for 147 nights last year, he is still losing nights and doesn’t get his normal holidays because of the interpretation of the court orders for school holiday changeovers;
(i)RNMY says the court orders should be interpreted as referring to Victorian gazetted holidays, but he argues that the Court orders do not say this; and
(j)he has care of child A around 152-154 nights per year, though it changes every year but that it hovers around that mark.
RNMY provided emails between the parties from November 2022 to January 2023 concerning various drop off and pick up arrangements which demonstrated some confusion between the parties about the interpretation of the Court orders.
In RNMY’s written submission she contended:
(a)As per paragraph 4(c)(iii) of the court orders, child A started to spend half of school term holidays with LWTK from September 2021.
(b)In 2022 LWTK spent 143 nights with child A in accordance with the court orders paragraphs (4)(c)(iii) (v) and 4(d)(e).
(c)In 2023 LWTK will spend 145 nights with child A in accordance with the court orders paragraphs (4)(c)(iii) (v) and 4(d)(e).
(d)The court orders at (4)(d) relate to December 24 to December 26, wherein each party gets one night with child A, either the night of 24 or 25 December.
(e)The court orders at (4)(e) specify that during Easter from Holy Thursday to Easter Sunday, each party gets two nights with child A regardless of whether child A is with LWTK or her.
(f)All the other days that child A spends with each parent according to the court orders are shown in the provided calendar years.
(g)The long summer holiday dates from 21 December 2022 to 29 January 2023 which is 40 nights. So each parent gets 20 nights with child A.
RNMY advised the Tribunal at the hearing:
(a)the court orders are very clear, child A spends 5 nights a fortnight with LWTK;
(b)during first three term holidays (April, July and September) in the first week child A goes with LWTK from when school ends on Friday, then spends the second week with her after which she drops child A to school on the first Monday of term and then the regular pattern resumes which is what her lawyer explained to her. In the alternate year this changes so she has care of child A in the first and LWTK has care in the second week after which he drops her to school on the first Monday of term. This means that the extra two nights are compensated for each alternating year;
(c)in the long summer holidays, the court orders very clearly state that each parent has care for half of all long summer holidays on a week about basis;
(d)On her lawyer’s advice, since child A started at prep, RNMY has followed the gazetted school holidays as different schools have different school holiday dates. This means that when school breaks on Wednesday, child A has to come for one week from then, except for 24 and 25 December where they have a different agreement;
(e)During the long summer holidays, she had wanted to travel to India to visit her mother. As it is not possible to travel to India in one week, she emailed LWTK to ask if he could have child A for the first three weeks of holidays and she would have care for the following three weeks, during which time she and child A would go to India. However, LWTK claimed that the six-week holidays is 42 nights so each parent has 21 nights of care, but he claims on his calculations that he gets 26 nights and she only gets 16. She believes this is incorrect and she tried to explain that each parent has care for half of the school holidays but he wouldn't agree so she had to forgo the plan to go to India;
(f)What actually happened in the long school holidays was that child A went to LWTK on Wednesday, and as the court orders specify each parent is to have care of child A on a week about basis, the next Wednesday she waited for LWTK to return child A, however he did not return her until Saturday. The following Saturday RNMY gave child A back to LWTK as this was a week about basis and because otherwise she would only get 14 days holidays with child A. She argued that this was absolutely not fair which is why when child A came back on Saturday, she kept her for a week;
(g)She knew this would occur so last year when child A was in prep where holidays started Wednesday, so on Friday she gave her back and from there it was a week about basis;
(h)Whichever way you calculate the court orders, the three term holidays alternate so one party compromise every alternate year. She totally agreed that in the three term holidays she hands over child A on Saturday and LWTK drops her at school on Monday. However, on the long school holidays, when there is 42 nights of holidays, each parent is entitled to half of those nights. She stated that she was not asking for anything more, just that the long holidays be divided equally; she was not asking any extra as that would not be fair, but the Court orders are clear.
CONTENTIONS
Respondent
Given the nature of the current proceedings, essentially a dispute between the father and mother as to the care provided to child A during the relevant period, the Respondent helpfully contended that the Registrar’s role should be confined to assisting the Tribunal in applying the relevant provisions to the evidence. Accordingly, the Registrar did not wish to advance a position as to the findings of fact that the Tribunal is called upon to make.
The Respondent noted in its written submission that it would appear to be common ground between the parents that the Court orders are being followed, with the dispute being as to what percentages of care those orders provide for. As to that dispute, the Respondent submitted in its written material that:
(a)LWTK maintains his primary contention that the Court orders provide him with 153 nights of care per year, or 41%, but appears to accept that he has not in fact provided that level of care.
(b)RNMY contends that LWTK provided 143 nights of care in 2022 and will provide 145 nights of care in 2023, both figures amounting to 39% in accordance with s 54D of the CSA Act.
The Registrar submitted that the issues for the Tribunal's consideration in this review are as follows:
(a)First, the Tribunal will need to determine whether the care reflected in the existing care percentage determinations for either parent changed; if so, when care changed; and, when the Registrar was notified or became aware of the change. It should then consider the following matters in the context of the relevant scheme of law and policy set out above for the relevant change of care day.
(b)Secondly, the Tribunal should identify the appropriate care period, starting from the day on which the Tribunal determines that the care reflected in the existing care percentage determinations changed. The Registrar notes that the Tribunal may consider that a care period of 24 months may be appropriate in this matter, having regard to the alternating regime of holiday care established by the Court orders.
(c)Thirdly, the Tribunal will be required to determine whether there was a pattern of care during the care period and, if so, the parents’ care percentages during that period. The Tribunal will need to make findings on the evidence presented by the parties as to the care of the child during the care period. In particular, the Tribunal will need to satisfy itself as to whether care has been provided in compliance with the Court orders, which will include a finding as to the correct interpretation of those orders. In determining care, the Tribunal should have regard to the relevant factors identified in the Guide.
(d)Fourthly, once the Tribunal has determined the percentages of care provided by the parents during the care period, it should consider whether those percentages correspond to those determined by the AAT1: a. If they do, the Tribunal should affirm the AAT1’s decision. b. If they do not, the Tribunal should set aside the AAT1’s decision and in substitution thereof, make a decision following the steps below.
(e)Fifthly, the Tribunal should determine whether the care that actually took place during the care period corresponded with the existing care percentage determinations. If so, the Tribunal should decide not to revoke the existing care percentage determinations.
(f)Sixthly, if the Tribunal finds that either parent had a different percentage of care in the care period to their respective existing care percentage determination, it should determine which of ss 54F, 54G or 54H is applicable. If the Tribunal revokes the existing care percentage determination for either parent under any of these sections, it must proceed to make a new care percentage determination under either s 49, 50 or 51.
CONSIDERATION

The Tribunal is satisfied that there was a change in care from 16 September 2021 when LWTK and RNMY commenced the pattern of care agreed to by consent in family court proceedings. The agreement, whilst complex, fundamentally provides that child A lives with RNMY, spends five nights per fortnight with LWTK during the 20 fortnights of school term, and spends half the school holidays each with LWTK and RNMY.
The Tribunal is satisfied that at all relevant times since 16 September 2021 there was a ‘pattern of care’ for child A for the purpose of satisfying s 50(1)(b)(ii) of the CSA Act. This was not in dispute. The percentage of care determined by the Tribunal must be based on the actual care that was provided to the children by each parent during the ‘care period’.
The CSA Act states at section 50:
…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.
LWTK, RNMY and the Respondent all agree that the pattern of care for child A is that which is set out in the Court order and that is the actual care which the child is receiving. Whilst LWTK and RNMY both indicated that there had been slight variations in the pattern of care when child A commenced school as a result of the parties coming to grips with the vagaries of the end of terms dates. The Tribunal did not consider that this reflected a change in care, just the usual process of parents navigating a school year and parenting orders.
The Tribunal found both LWTK and RNMY to be credible witnesses with neither party disputing the actual care taking place. Where LWTK and RNMY differed was on the calculation of the nights, though both agreed that the nights of care will vary slightly from year to year.
As in the matter of Ware and Ware [2021] AAT 3607, the Court orders have been based on an alternating care pattern between odd and even years. The Member in that decision assumed that this was so the nights of care would even out over time. Similarly, in respect of this matter, the Tribunal finds that this is how the Court orders have been structured and the pattern of care for child A is best determined over a 24 month period, having regard to the alternating regime of holiday care established by the Court orders.
LWTK, RNMY and the Respondent all agree that the dispute is not about the pattern of care but how the court orders have been assessed in percentage terms. The issue in contention boils down to a calculation of nights child A spends with each parent during school holiday periods and a calculation of the impact of public holidays.
As the Tribunal has noted in numerous other decisions, Family Court orders stipulate what nights a child will be with which parent; they do not make provision for translating the orders into nights or percentages of care. The result of this is that whilst the court order’s provide parents with guidance about when their child will be in the care of each parent, they do not assist parents to navigate the child support system.
Whilst the Tribunal is fully aware that the final parenting orders are not about how much money a payer has to pay a payee; they are universally adopted as the basis on which such determinations are made. CSA determines how much a payer has to pay a payee and Centrelink calculates benefits in accordance with the CSA’s assessment.
The Tribunal wholeheartedly endorses Senior Member Puplick's acute observation at [13] in the mater of QXPD and Child Support Registrar [2021] AATA 318 that 'The Acts themselves are models of complexity'. This observation is at the heart of the current review before the Tribunal. The combination of the complexity of the Acts and the complexity of the family court orders have left all concerned trying to ascertain what is the correct and preferable determination of the number of nights which LWTK and RNMY have care of their child.
The Tribunal could not find any evidence to supports LWTK’s assertion that he had child A in his care for 153 nights. The Tribunal does not find that paragraph 10 of the court orders meant LWTK had child A for half of all the public holidays. The orders certainly refer to public holidays, but again envisage that over a 24-month period the days will even out, and each parent will have the benefit of long weekends with child A if the public holiday falls on a Monday or a Friday, on each alternate year.
The Tribunal was sympathetic to both LWTK and RNMY’s frustration about interpreting the court orders in respect of the commencement and end of the school holidays. This is compounded by the fact child A does not attend a state government school and will in most years have more school holidays than those gazetted. The Tribunal concurs with LWTK that the orders make no reference to the gazetted holidays but speak of each parent having care of child A for half of all school holidays.
The Tribunal finds that there are 12 weeks of school holidays in Victoria each year and each parent has care of child A for half of all holidays, equating to six weeks per year.
The Tribunal can appreciate the additional pressures on LWTK as he has remarried and has two other children, however this cannot come at a cost to his responsibility to child A. It should never be forgotten that the principal object of the CSA Act is to ensure that children receive a proper level of child support from their parents. The CSA Act also clearly states that it is parents’ duty to maintain their child, and this is not lower in priority than their duty to maintain any other child or person. The cost of this duty is dependent on the level of support the child requires and the parents’ capacity to pay.
The Tribunal finds that however you cut and dice it, there are only 365 nights in each year and there will be a slight variance in nights that child A spends with LWTK and RNMY each year. There is no dispute that the pattern of care will alter from year-to-year, factoring in such things as when a public holiday falls on a Monday or Friday and child A is already in the care of one parent on that public holiday, and the slight changes year to year in the number of nights in school holidays and the days of the week on which school holidays commence and end. In some years LWTK will have more than 142 nights and some years he will have less. Likewise, in some years child A will be in RNMY’s care more than 223 nights and some years less. Arriving at this precious number seems beyond the wit of everyone and we cannot predict the future. The only guide for the Tribunal is the nights of care in the Court orders.
The Tribunal finds the actual nights of care contained in the Court orders is the correct and preferable decision, that being 142 nights (38%) with LWTK and 223 night (62%) with RNMY and as such affirms the decision under review.
DECISION
The Tribunal affirms the decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal of 28 April 2022.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO, Member

............................[sgd]............................................
Associate
Dated: 17 May 2023

Date of hearing: 29 March 2023

Applicant: Self-Represented

Other Party: Self-Represented

Advocate for the Respondent: Mr Aaron Taverniti

Solicitors for the Respondent: Sparke Helmore

[2023] AATA 1264

17 May 2023

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Statutory Construction

Procedural Fairness

Jurisdiction

Date of hearing:	29 March 2023
Applicant:	Self-Represented
Other Party:	Self-Represented
Advocate for the Respondent:	Mr Aaron Taverniti
Solicitors for the Respondent:	Sparke Helmore