MPWY and Child Support Registrar (Child support second review)

[2022] AATA 2630

MPWY and Child Support Registrar (Child support second review) [2022] AATA 2630 (17 August 2022)

Division:GENERAL DIVISION

File Number(s):      2021/7108

Re:MPWY

APPLICANT

AndChild Support Registrar

RESPONDENT

AndSGPN

OTHER PARTY

DECISION

Tribunal:Senior Member J Rau SC

Date:17 August 2022

Place:Adelaide

The decision under review is set aside and substituted with a decision that the existing percentage of care determination is revoked with effect from 12 August 2020 pursuant to section 54F of the Act and a new determination is made with effect from 13 August 2020, pursuant to section 50 of the Act that the father has the children for 161 nights. This is 56/44 split in favour of the mother.

..........[sgnd].....................

Senior Member J Rau SC

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 – change in percentage of care – whether percentage of care changed – whether care arrangement is complied with – whether reasonable action taken to obtain care of the children – decision under review is varied

LEGISLATION

The Child Support Assessment Act 1989 (Cth)

CASES

Parent A and Child Support Registrar and Anor [2013] AATA 562

REASONS FOR DECISION

Senior Member J Rau SC

17 August 2022

INTRODUCTION

1.       The Applicant seeking review of a decision of the Administrative Appeals Tribunal in its Social Services and Child Support Division (AAT1) dated 6 September 2021. In that decision, the AAT1 set aside a decision of an objections officer dated 3 May 2021 (the May decision) and substituted a new decision in its place.

2.       These proceedings concern a dispute between the Other Party (SGPN) and the Applicant, as to the applicable percentages of care.

3.       The Respondent does not advance any position regarding the facts to be found.

BACKGROUND

4.       The Applicant and the SGPN are the parents of two children:

(i)Daughter A (born 25 June 2006 now aged 15); and

(ii)Daughter B (born 10 February 2008 and now aged 14)

5.        The care percentage prior to the May decision was 64/36 in favour of the Applicant.

6.       On 13 August 2020, final parenting orders were made by consent in the Federal Circuit Court of Australia (“the consent orders”). A copy of this document is attached and marked “Annexure B”.

7.       There is agreement between the Applicant and SGPN that the consent orders are the basis of their parenting care arrangements. The Applicant and SGPN are however, in dispute about the practical consequences, or application of the consent orders.

8.       Under the consent orders, the children “live with the mother” (the Applicant),[1] and “the children spend time with the father” (SGPN) as set out elsewhere in the orders.[2] In other words, unless otherwise provided, the default position is that the children remain with the mother.

[1] Order 1.

[2] Order 2 & 3.

9.       The note at the end of order 2 (a) is the subject of a disputed interpretation between the parties. This dispute in essence revolves around whether a weekend can be at the same time, the “first weekend” of a month, when it is also the last weekend of another.

10.     Order 2 (b) refers to “school holidays”. The issue here seems to be whether this includes “pupil free days” or other variations in the school calendar.

11.     Order 3 (e) provides for variations on special occasions “as agreed between the parties in writing”. The issue here seems to be whether there was such an agreement. There is also the question of whether such an ad hoc change should, in any event, be considered relevant in the determination of a pattern of care.

12.     On 13 August 2020, SGPN contended that the children would spend 159 nights with him in the year following the making of the consent orders.[3] (57/43 in the Applicant’s favour)

[3] Exhibit 2, T9, pp 115-117, T10, pp 119-136.

13.     On 15 August 2020, the Applicant contended that the children would spend 151 nights with SGPN over the same period.[4] (59/41 in the Applicant’s favour)

[4] Ibid, T11, p 137.

14.     On 21 August SGPN provided a new estimate of 164 nights during the same period (56/44 in the Applicant’s favour) and 149 nights in the year from 13 August 2021- 12 August 2022.[5]

[5] Ibid, T13, p 140.

15.     On 26 August 2020, an authorised officer revoked the then existing care order and replaced it with a new determination that care of the children would be divided 56/44 in favour of the Applicant from the dated of the consent orders. This was based on the children being with SGPN for 161 nights.[6] A copy of Respondent’s table of claimed days in which the children were in the care of the father in the year commencing 13 August 2020 is attached and marked “Annexure C”.

[6] Ibid, T15, p 151.

16.     On 1 September 2020, the Applicant objected to the delegate’s decision. She estimated that SGPN would have 152 nights, not 151 nights as per her earlier estimate.[7]

[7] Ibid, T18, pp 173-175.

17.     On 19 November SGPN provided a revised estimate of 165 nights, up from his previous estimate of 164 nights.[8]

[8] Ibid, T26, pp 204-205.

18.     On 3 May 2021, the objection officer allowed the Applicant’s objection.[9] A new care determination was made which provided for care on a 59/41 basis in the Applicant’s favour, from the date of the consent orders.

[9] Ibid, T31, p 221.

19.     On or about 14 May 2021, SGPN applied to the AAT1 for review of the May decision. The AAT1 determined the matter on a 54/46 basis in favour of the Applicant based on a finding that SGPN had the children for 171 nights.[10]

[10] Ibid, T2, pp 10-14.

20.     On 30 September 2021 the Applicant applied to AAT2 for review of the AAT1 decision.[11]

[11] Ibid, T1, pp 1-5.

21.     It is agreed that the consent orders changed the pre-existing pattern of care.

22.     It is agreed that the change operated as from 13 August 2020.

23.     There is a dispute whether SGPN should have had the children for 153 nights or a slightly lesser number, based on one child not having actually gone to SGPN on one occasion. I do not consider whether one child did or did not actually do as intended by the consent order, changes the pattern of care. I therefore start with the proposition that SGPN should have at least 153 nights.

24.     The dispute concerns 11 further nights. These are set out and discussed at paragraphs 33-36 below.

25.     I have determined that the relevant care period is 13 August 2020 to 12 August 2021.

THE EVIDENCE

26.     The care arrangements as set out in the consent orders, are quite detailed, as can be seen above.

27.     Evidence was received in documentary form. This evidence was generally, though not totally consistent regarding what happened.

28.     It is of course possible that over time, elements of the parenting care arrangements may be varied by consent, or otherwise on an ad hoc basis. A temporary illness for example, might precipitate such a change. One child may not do what the other does on occasions, for any number of reasons. That would not, in or of itself, in my view constitute a change in the “pattern of care”.[12]

[12] See Parent A (2013) AATA 562 at paras 33 and 43.

29.     It is also the case that even in their own terms, the consent orders when properly applied, will produce marginally different outcomes from one year to the next. This means that variations in the periods of actual care over time, compared with any determined pattern of care, will inevitably be at variance to some degree.

THE LEGAL FRAMEWORK

30.     On review, this Tribunal may affirm the AAT1’s decision if it considers it the correct and preferable decision. If the Tribunal does not consider the decision under review to be correct or preferable, it should set it aside and proceed to:

(i)First, make a determination, relevantly under either ss 54F, 54G, or 54H of the Assessment Act, as to whether the existing care determinations should be revoked;

(ii)Secondly, in the event the existing care determinations (or one of them) is revoked, make a new care percentage determination under either ss 49 or 50 of the Assessment Act; and

(iii)Thirdly, make a determination as to the date of effect of any new care determinations.[13]

[13] Exhibit 1, p 4, para 5.3.

31. 4.2 An existing determination continues in effect until revoked. The circumstances in which this may happen in this case is governed by section 54F of The Child Support Assessment Act 1989 (Cth) (“the Act”).

32.     This provides:

“(1) The Registrar must revoke a determination of a reasonable person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

(a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

(b)the  Registrar is satisfied that the responsible person's cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person's percentage of care for the child; and

(c)section 54G does not apply; and

(d)subsection (2) applies in relation to the individual.

Note:  The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

(2) This subsection applies in relation to a responsible person if:

(a)    disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

(b)    section 51 did apply in relation to the responsible person but the maximuminterim period for the determination has ended; or

(c)    all of the following apply:

(i)    section 51 did apply in relation to the responsible person;

(ii)  the maximum interim period for an earlier determination of the responsible person's percentage of care for the child has not ended;

(iii) an interim period does not currently apply in relation to the earlier determination;

(iv) the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision

Note: For when section 51 does not apply, see section 53.

(3)  The revocation of the determination takes effect at the end of:

(a)    if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person--the day before the change of care day; or

(b)    if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

(i)    the responsible person's care of the child has increased--the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

(ii)  the responsible person's care of the child has reduced--the day before the change of care day.[14]

[14] Section 54F of the Act.

CONSIDERATION

33.     The first dispute concerns 30-31 October 2020 and 1 November 2020. This involves a consideration of whether this should have been characterised as a 5^th weekend under the terms of the consent order.

34.     The evidence suggests that there was a particular reason for this provision in the consent order, namely, to enable the children to attend a race meeting with their father on those weekends. This is not however explicitly set out in the consent order. In my view, the Tribunal must attempt to make a rational interpretation of the consent order as it stands. I emphasise for the party’s benefit, that the Tribunal’s view in this regard is not a judicial determination.

35.     In order to make the best sense of consent order 2 (a) I read the disputed passage in this way:

“…the calendar month commences on the first day of each month. If[15] the first day falls on a Saturday or a Sunday, that day[16] will be considered to be the first weekend of the month.”

[15] My emphasis added.

[16] Ibid.

36.     31 October 2020 was a Saturday. 1 November 2020 was a Sunday. 31 October 2020 was the 5^th Saturday in October. In my view a proper application of the consent order would mean that these 3 nights should be with the father. This brings his total to 156 nights.

37.     The second dispute concerns 25 - 27 January 2021. The issue here is about school holidays. I note that the children returned to school on consecutive days. I take the view that there is no distinction to be drawn between public holidays, or “pupil free days” and “school holidays” where they fall on consecutive days. To do otherwise, would in my view be drawing a distinction that is more apparent than real. I also note that from year to year and student’s days of attendance may vary. For example, year 11 and year 12 students may not start or finish a term on the same day as year 8 students. This will obviously vary from year to year as a student progress. In my view the proper application of the consent order would mean that these 2 nights are with the father. This brings his total to 158 nights.

38.     The third dispute concerns 27 April 2021 to 1 May 2021. 27 April 2021 was the father’s 40^th birthday. 1 May 2021 was the day of a party to celebrate it. Order 3 of the consent orders does not provide any right for the father to have the children on his birthday. This may be the subject of a written consent however under order 3 (e). The parties are in dispute as to whether such permission in writing was granted by the mother. The evidence suggests that written consent may have been given by text message on 1 May 2021.[17] There is no evidence before the Tribunal of written consent for 27 April 2021. I have come to the view however, that whether permission was or was not granted in writing pursuant to order 3 (e), is irrelevant. Any consent given under order 3 (e) is necessarily ad hoc. It is no more predictable than a variation due to temporary illness, or some other unexpected event. It does not and cannot, in my view constitute a pattern of care. The fathers total therefore remains at 158 nights.

[17] Exhibit 2, T47, p 332.

39.     The fourth dispute concerns the weekend of 30 July 2021 to 1 August 2021. This is another instance of the 5^th weekend issue, discussed in connection with dispute 1 above. Saturday July 31 was the 5^th Saturday in July. In my view a proper application of the consent order would mean that these 3 nights should be with the father. This brings his total to 161 nights.

DETERMINATION

40.     In determining this matter, I have formed the view, as already indicated, that the period from 13 August 2020 to 12 August 2021 affords the best available opportunity to observe the practical implementation of the consent orders.

41. For the reasons set out above, I revoke the existing 54/46 care determination pursuant to section 54F of the Act with effect from 12 August 2020.

42. I make a new determination pursuant to section 50 of the Act based on the father having the children for 161 nights. This is 56/44 split in favour of the mother.

43.     This determination is to be effective from 13 August 2020.

1.       I certify that the preceding one hundred and forty-three (43) paragraphs are a true copy of the reasons for the decision of Senior Member J Rau SC

...............[sgnd]....................

Associate

Dated: 17 August 2022

Representative for the Applicant:

Self-represented

Representative for the Respondent:

Mr Sam Cummings

Sparke Helmore Lawyers

Representative for the Other Party:        Self-represented

Annexure A – List of Exhibits

Exhibit no.	Lodged by	Document
1	Respondent	Statement of Facts, Issues and Contentions dated 19 April 2022
2	Respondent	T-Documents dated 29 October 2021
3	Applicant	Bundle of documents dated 26 December 2021
4	Applicant	Calendar listing of dates from 13.08.2020 to 31.05.2022 children spent with the Other Party
5	Applicant	Bundle of documents dated 9 July 2022
6	Other Party	Bundle of documents dated 21 June 2022
7	Other Party	Bundle of documents dated 26 July 2022

Annexure B – A Copy of Final Parenting Order 13 August 2020

“………

BY CONSENT IT IS ORDERED

1.That the children DAUGHTER A born 25 June 2006 and DAUGHTER B born 10 February 2008 live with the mother.

2.That the children spend time with the father as follows:

a.Outing school terms only and inclusive of the final weekend of term:

i.From the conclusion of school Friday (or 3:30pm if a non-school day) unti1 the commencement of school the following Monday (or Tuesday in the event Monday is a non-school day). on the second weekend and each fifth weekend of each month (if the calendar month has a fifth weekend);

ii.From the conclusion of school (or 3:30pm if a non-school day) on the Monday preceding the fourth weekend of each calendar month until the commencement of school the following Monday (or Tuesday in the event Monday is a public holiday); and

iii.Such further or other times as agreed between the parties.

NOTING THAT the calendar month commences on the first of each month whereby if the 1^st day of the month falls on a weekend the same shall be considered to be the first weekend of the month.

b.During the school holiday periods only NOTING THAT the care arrangements for the children as outlined in paragraph 2(a) inclusive are suspended during school holiday periods:

i.    For all school holiday periods as agreed between the parties in writing and in default of any agreement each alternate week from 8:30am Monday until 8:30am the following Monday NOTING THAT the father will have the first week in all odd numbered years and the second week in all even numbered years.

Special Occasions

3.That irrespective of the above orders related to the children's school term and school holiday living arrangements, and unless the parties agree otherwise in writing, the children will spend time with each parent as follows:

a.   On Christmas Day with the parent who does not have the care of the children pursuant to paragraph 2(b)(ii) herein from 11:00am until 4:00pm.

b.   At Easter, when such event does not fall in the April school holiday period as defined above:

i.In odd numbered years with the mother from 9:00am Good Friday until 9:00am Easter Sunday and with the father from 9:00am Easter Sunday until the commencement of school the following Tuesday;

ii.In even numbered years with the father from 9:00am Good Friday until 9:00am Easter Sunday and with the mother from 9:00am Easter Sunday until the commencement of school the following Tuesday.

c.For each child's birthday at times as agreed between the parties in writing and in default of any agreement with the parent who does not have the care of the children from 3:30pm until 5:30pm if a school day and for a period of three hours on a non-school day at times as agreed.

d.For Mother's Day with the mother from 10:00am until the commencement of school the following day and for Father's Day with the father from 10:00am until the commencement of school the following day.

e.For all such other special occasions, including extended family members birthdays or other important family events, at such times as agreed between the parties in writing.

Communication

4.That both children be at liberty to telephone either parent in accordance with her wishes at any reasonable time NOTING THAT if either child does not have a personal mobile phone device available to her, the parent in whose care she is staying is to facilitate the child/ren calling from his or her mobile telephone and in the event either or both child/children possess a mobile telephone that telephone will travel with the child/children when in the care of either party in accordance with the child or children’s wishes.  

5.That the parties do communicate via SMS for all non-urgent issues affecting the health, care and welfare of the children.

6.That the parties do telephone the other parent if urgent issues arise affecting the health, care and welfare of either or both of the children or in the case of a medical emergency involving either or both of the children.

7.That unless agreed otherwise by SMS, all communication regarding the children be restricted to occur only between the parties to the exclusion of other adults NOTING THAT it is anticipated the father's wife will need to communicate on behalf of the father at such times as he is unavailable.

Handovers

8.That all handovers that do not occur at the children's school do occur at the home of the parent into whose care they are going unless agreed otherwise in writing.

Schooling and extracurricular activities

9.That the children attend Wirreanda High School for the duration of their secondary schooling education unless agreed otherwise in writing.

10.That each party be at liberty to attend at those schooling events to which parents are usually invited.

11.That each party consult with the other in relation to extracurricular activities he or she seeks to enrol either or both of the children in NOTING THAT there will be no expectation that each parent will facilitate the same during his or her time caring for the children if not practicable but will allow the non-resident parent to facilitate the children's attendance at said activities provided the non-resident parent collects and returns the child(ren) from the resident parent's home unless otherwise agreed in writing.

12.That each party be at liberty to attend at special events in connection with extracurricular activities including such events as end of year performances, finals and presentations.

Medical and Health

13.That each party be authorised and at liberty to obtain all necessary information from the relevant medical or health professionals involved with the children's care including information about recommended treatment and referrals to specialists.

14.That in the absence of any agreement in writing indicating otherwise and save and except in the case of a genuine emergency, each party be restrained and an injunction be granted restraining each party from allowing the children to undergo beauty procedures and/or body modification procedures usually reserved for people aged over 18 years.

15.That in the absence of any agreement in writing indicating otherwise and save and except in the case of a genuine emergency, each party be restrained and an injunction be granted restraining each party from allowing other adults to make decisions about, facilitate or attend to the children's medical needs, health or physical wellbeing needs, including but not limited to body modification or beauty procedures usually reserved for people aged over 18 years NOTING THAT it is anticipated the parties will communicate and agree for the father’s wife to attend certain minor medical health and physical wellbeing needs or appointments when the father is not available due to work.

Travel

16.That each party be at liberty to travel interstate with the children during his or her time with said children on the provision that the travelling party has provided the other with written notice of intention to travel at least two weeks prior including contact details for where the children will be staying AND NOTING THAT a shorter notice period will be acceptable and as agreed between the parties by SMS.

17.That each party be at liberty to spend ten (10) consecutive days with the children during each extended Christmas school holiday period PROVIDED THAT:

a.The parent proposing to travel with the children provides the other parent with written notice of their intention to travel at least two (2) calendar months' notice prior to such travel;

b.An itinerary of where the children will be staying and contact details for the children are provided to the non-travelling parent;

c.The children are to have ongoing access to their mobile telephone with same to be charged and switched on NOTING THAT the non-travelling parent is at liberty to contact the children; and

d.The children then spend ten (10) consecutive days with the other parent NOTING THAT the parties will otherwise revert to the school-holiday regime outlined in paragraph 2(b) hereof.

18.That the children be permitted to travel overseas on the following basis:

a.That father be responsible for paying for any passport required for the children and that on the issuing of same, the child DAUGHTER A’s passport shall be held in the possession of the mother and the child DAUGHTER B’s passport shall be held in the possession of the father with both said passports to be returned to each respective parent at the conclusion of any travel;

b.That said travel do occur primarily during the period of the time the children would usually be in the care of the travelling parent and not exceed more than seven (7) days of the time the non-travelling parent would usually be caring for the child unless agreed otherwise in writing between the parties;

c.That, unless agreed otherwise in writing between the parties, the travel is restricted to countries that are signatory to the Hague Convention; and

d.That, unless agreed otherwise in writing between the parties on each occasion, the travelling parent do provide the Other Party with at least 8 weeks' notice of intended travel and with information confirming the itineraries and contact details and addresses for all places the children would stay AND NOTING THAT the passport held by the travelling parent will not be released by the non-travelling parent until said parent has been provided with copies of receipts for fully paid return airfares for each child.

19.That all extent applications stand dismissed.”

Annexure C – A Copy of Table of Days in which the children were in the care of the father in the year commencing 13 August 2020

Mother’s position to delegate (T33/233)	Father’s position to delegate (T33/234)	Father’s position to objection officer (T26/204)
			Delegate’s decision (T15/152)	Mother’s position to objection officer (T18/173-175, T23/196	Objection Decision (T7/103-104)	AAT1 (T2/13-14)
			Month
Aug-20	10 nights	10 nights	10 nights	10 nights	13 nights	10 nights	12 nights
(13th onwards)
Sep-20	11 nights	12 nights	11 nights	11 nights	12 nights	12 nights	12 nights
Oct-20	14 nights	16 nights	16 nights	14 nights	16 nights	14 nights	30 nights (October
							and November)
Nov-20	13 nights	14 nights	13 nights	13 nights	14 nights	13 nights	30 nights (October
							and November)
Dec-20	10 nights	10 nights	14 nights	10 nights	10 nights	10 nights	12 nights
Jan-21	17 nights	19 nights	15 nights	17 nights	19 nights	17 nights	17 nights
Feb-21	14 nights	15 nights	15 nights	15 nights	15 nights	14 nights	12 nights
Mar-21	10 nights	10 nights	10 nights	10 nights	10 nights	10 nights	12 nights
Apr-21	12 nights	13 nights	13 nights	12 nights	13 nights	12 nights	12 nights
May-21	12 nights	11 nights	12 nights	12 nights	12 nights	12 nights	12 nights
Jun-21	11 nights	11 nights	11 nights	11 nights	11 nights	11 nights	12 nights
Jul-21	14 nights	19 nights	17 nights	14 nights	16 nights	14 nights	16 nights
Aug-21	3 nights	4 nights	4 nights	3 nights	4 nights	3 nights	12 nights
(up to 12th)
Total	151 nights	164 nights	161 nights	152 nights	165 nights	152 nights	171 nights