NHVK and Secretary, Department of Social Services (Child support second review)

NHVK and Secretary, Department of Social Services (Child support second review) [2019] AATA 78 (4 February 2019)
Division:GENERAL DIVISION
File Number: 2018/2018
Re:NHVK
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

AndFRWB
OTHER PARTY

DECISION
Tribunal:Member C Edwardes

Date:4 February 2019
Place:Perth

The decision under review is affirmed.
.......[Sgd]..........................................................
Member C Edwardes
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
SOCIAL SECURITY - child support – percentage of care – no court orders - flexible arrangements – revocation of existing care percentage determination - texts between parties – usual care – AAT1 decision substitutes decision of registrar - decision affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) – ss 48, 50, s54A, 54F, 54G, 54H, 55C
Child Support (Registration and Collection) Act 1988 (Cth) – s 96A
CASES
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179
Polec & Staker & Anor [2011] FMCAfam 959
P v Child Support Registrar [2013] FCA 1312
SECONDARY MATERIALS
Department of Social Security, Guide to Social Policy Law: Child Support Guide (Department of Social Security, Version 4.37, 2 January 2019) – Ch 2.2.1
REASONS FOR DECISION
Member C Edwardes
4 February 2019
INTRODUCTION

NHVK (the Applicant) seeks review of a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) on 15 March 2018. The AAT1 found that “FRWB (the Other Party) provides 14 per cent care of [Child 1] and [Child 2] and NVHK provides 86 per cent care from July 2017” (T2, 10).
The Applicant applied on 16 April 2018 to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the decision of the AAT1 (T1, 1-5).
The Tribunal has jurisdiction to determine this matter pursuant to s 96A of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act).
The Applicant gave the following reasons for the current application for review (T1, 4):
The decision was made on two texts between [Other Party] and I. Both texts were regarding the change of care. The comment “usual care of 2 nights per fortnight” was what is meant to be happening and what I suggested to happen. Hoever [sic] as explained to Mr Richard Ellis, this WAS NOT happening, and this is why I made the application for the change in care.
The other text Mr Ellis refers to, was a text that I sent to [Other Party] trying to arrange care arrangements for [Child 2]. Once again, I explained to Mr Ellis, that although [Other Party] was using this text as evidence, he actually did not forward on or show the texts following where he refused these arrangements. I however did forward these texts onto CSA, when they were looking into our case.
Mr Ellis was also shown and advised over the telephone of the pattern each month since June (as were the CSA) when [Child 2] was in [Other Party’s] care. I had previously given CSA full proof that [Child 2] was in my care on the dates I had shown.
I fully understand of the decision made by Mr Ellis, but I feel very disappointed that he has taken the words from of 2 our texts between [Other Party] and I regarding the usual care. But has clearly missed that the reason for my appeal was that [Other Party] was not committing or upholding his “usual” care, which is clearly shown in the diary that I provided to Mr Ellis and the CSA.
[Other Party], has on many occasions told me he has a friend who he plays cricket with in the government’s family law, and I would never win this case and I would not be getting any money from him, and would not survive.
The Applicant and the Other Party attended the hearing in person on 22 January 2019. The Respondent was represented by Ms Underhill from Mills Oakley.
The Respondent takes a neutral position in this matter, and provided a Statement of Facts, Issues and Contentions to assist the Tribunal to reach the correct and preferable decision and to set out the relevant law.
The Tribunal thanks all parties for the assistance they provided during the hearing.
BACKGROUND
The Applicant is separated from the Other Party and they have two children, [Child 1] born in 1999 and [Child 2] born in 2006.
The child support arrangement since 2014 amounted to the Applicant having 79% care and the Other Party having 21% care of the Children (T43, 184).
The Department of Human Services – Child Support (the Department) was advised on 13 September 2017 by the Applicant that there had been a change in care arrangements. The Applicant claimed the Other Party had a maximum of 50 nights of care annually (T12, 81).
The Other Party received the following advice from the Department on 21 September 2017 (T15, 84):
The information we have is:
You have 50 nights per year and [NHVK] has 315 nights per year for [Child 2] from 28 July 2017.
You have 50 nights per year and [NVHK] has 315 nights per year for [Child 1] from 28 July 2017.
The Applicant provided a diary, text messages, letters and a submission in support of her advice to the Department that the pattern of care arrangements had changed. She stated in her submission dated 1 October 2017 (T17, 87-101):
…
Since [FRWB] and I have separated, we have always had an agreement, that the children can choose when they would like to spend time with either of us, although we have an unwritten agreement that they spend time with [FRWB] every other weekend for 3 nights. If ever the children had had plans on either of our weekends, [FRWB] was always happy for them not to go and spend time with him. This however changed in July …
Since the CSA have contacted [FRWB] regarding the change of care, he is now saying that we have not changed any care arrangements.
...
The Other Party objected to these arrangements on 5 October 2017. He stated in his objection (T19, 104-107):
... I completely reject [NHVK’s] clain [sic] that the care arrangement has changed to being under 52 nights per year.
Over the last 2 months the children have stayed a little less regularly, [NHVK] and I have no formal agreement and this small change over the short period is in no way a regular change in care in the future.
…
Since our separation in 2014 I have always had the children 3 nights every fortnight. I regularly pick them up from events, take them to events when I do not have them in my care.
The Child Support Registrar (CSR) rejected the Applicant’s application on 2 November 2017 (T22, 124-127). The CSR stated (T22, 126):
At this time CSP cannot be satisfied there has been any variation to the actual care pattern.
The Applicant objected on 3 November 2017 to the original care decision (T26, 139).
The Applicant provided further evidence on 22 November 2017 and 1 December 2017 (T30, 150-151 & T35, 160-170).
The Other Party provided further evidence on 27 November 2017 and after having considered all the evidence the CSR wrote to the parties and advised them accordingly (T43, 181):
We are writing to advise you that we have allowed in part the recent objection to the decision made on 2 November 2017 to refuse to amend the care of [Child 2] and [Child 1] to reflect 87% care to [NHVK] and 13% to [FRWB] from 28 July 2017 date of notification 13 September 2017.
The Other Party sought a review of the Objection Decision to the AAT1 on 22 January 2018. On 15 March 2018, the AAT1 set aside the CSR decision and substituted it accordingly (T2, 6):
... [The Tribunal] decides that [FRWB] has 14 per cent care of [Child 1] and [Child 2] and [NHVK] has 86 per cent care effective from 13 September 2017.
The Applicant sought a review of the AAT1 decision to the General Division of the Administrative Appeals Tribunal on 16 April 2018 (T1, 1-5).
ISSUES
The Tribunal must consider whether there was a change of care and if so what the percentage is for the new care arrangements.
LEGISLATION AND RELEVANT POLICY
The relevant legislation is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act).
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 Act. Whilst 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 (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The provisions relating to the determination of the percentage of care of a child are contained in Part 5, Division 4 of the Assessment Act. Section 50 of the Assessment Act states:
(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)both of the following apply:
(i)     the determination of a responsible person’s percentage of care for a child that was made under section 49 or this section is revoked or suspended under Subdivision C of this Division, except under paragraph 54FA(3)(b) or 54HA(3)(b);
(ii)    the Registrar 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 applies in relation to the responsible person.
Section 54A of the Assessment Act provides for how the actual care, and extent of care, is to be calculated:
(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, 53B or 54.
Section 54F of the Assessment Act provides that the determination must be revoked if there is a change to the responsible person’s cost percentage:
(1)The Registrar must revoke a determination of a responsible 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:
(c)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or
(d)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or
(e)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:
(f)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
(g)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.
Section 54G of the Assessment Act provides the determination must be revoked if there is less than regular care:
(1)If:
(a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c)a determination of the other responsible person's percentage of care for the child has been made under section 50; and
(d)the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances; the Registrar must revoke both determinations.
Note: The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).
(2)The revocation of each determination takes effect:
(a)if the first responsible person never established a pattern of care in accordance with the first care determination - at the beginning of the application day for that determination; or
(b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care - at the end of the day before the day on which the person ceased the previously established pattern of care.
(3)To avoid doubt, a responsible person never establishes a pattern of care if:
(a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and
(b)the responsible person does not establish that pattern during that particular period.
Section 54H of the Assessment Act allows the CSR to revoke the determination of an existing care:
(1)The Registrar may revoke a determination of a responsible 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, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person's percentage of care for the child, the other percentage would not be the same as the person's existing percentage of care for the child;
(c)sections 54F, 54FA and 54G do 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 maximum interim 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 for the earlier determination does not currently apply;
(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.
Chapter 2.2.1 of the Guide provides that “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).” Further, chapter 2.2.1 of the Guide provides that:
The Registrar must make a determination of the care a parent or non-parent carer is likely to have of the child during the 12-month care period, which will often be at least partly prospective. In making a determination, the Registrar may use or request information about past care to form a judgment about likely future care. In doing this, the Registrar may consider patterns of care that have been established in recent months if it is satisfied that the pattern is likely to continue.
The Guide at chapter 2.2.1 further states that:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.

To determine whether care exists the CSR relies on Chapter 2.2.1 of the Guide which outlines the factors that might be considered in order to determine the extent of caring. They include:
·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
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.
The Secretary’s Statement of Facts, Issues and Contentions (SOFIC) states (R2):
Section 48 of the Assessment Act provides that a person's percentage of care for a child is used in working out the person's cost percentage for that child. A person's cost percentage represents the amount of a child's costs that the person meets directly through the provision of care.
Section 55C of the Assessment Act provides for percentage of care thresholds and correlating cost percentages. Relevantly, the cost percentage for a person with between 0% and less than 14% care is nil, the cost percentage for a person with between 14% and less than 35% care is 24%.
EVIDENCE
The Tribunal has before it the following evidence:
·Applicant’s evidence dated 21 September 2018 (Exhibit A1)
·Applicant’s evidence dated 20 September 2018 (Exhibit A2)
·Applicant’s evidence dated 24 August 2018 (Exhibit A3)
·Applicant’s evidence dated 23 August 2018 (Exhibit A4)
·Applicant’s evidence dated 23 August 2018 (Exhibit A5)
·Applicant’s evidence dated 22 August 2018 (Exhibit A6)
·Other Party’s evidence dated 20 September 2018 (Exhibit OP1)
·Statement from Other Party’s wife dated 1 August 2018 and Other Party’s parents dated 30 July 2018 (Exhibit OP2)
·Care Calendar from January 2018 to April 2018 (Exhibit OP3)
·Consent order dated 7 August 2018 (Exhibit OP4)
·Email from Applicant with offer of parenting plan dated 6 July 2018 (Exhibit OP5)
·Certificate by Family Dispute Resolution Practitioner dated 16 May 2018 (Exhibit OP6)
·T documents (T1-T49, 1-238) (Exhibit R1)
·Respondent’s Statement of Facts Issues and Contentions, dated 23 October 2018 (Exhibit R2)
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
HEARING
The Applicant stated at the hearing:
·The primary reason for this application was that the Other Party was not adhering to the flexible arrangements agreed to and in fact “the usual 2 nights was not happening.”
·There was a substantial change to the agreed pattern of care. Prior to July 2017 the Other Party had the children for 3 nights every second fortnight.
·The Applicant felt the Other Party was more interested in his own new life rather than his children. She had on many occasions offered for the Other Party to have more time with the children, but he appeared not to be interested.
·There was tension between the Other Party and his daughter who is 12 years old because [Child 2] felt when she did stay with her father he didn’t pay sufficient attention to her.
The Other Party stated at the hearing:
·There had been a viable flexible care arrangement with the Applicant for about 5 years.
·There was never an issue over the number of nights the children spent with each of the parents. It was a loose arrangement which suited all parties of the family.
·He claimed over the whole period he doubted the number of care nights dropped below 60 and that it was never 50 nights.
·He did agree however that in July 2017 there was a change in care arrangements and according to him there were particular reasons, however these were disputed by the Applicant.
The Respondent assisted the Tribunal with the various options available to it.
RESPONDENT’S SUBMISSIONS
As previously stated, the Respondent takes a neutral position in this matter. The Respondent has provided an analysis of the contentions of the Applicant and the Other Party. That analysis is repeated below (R2):
41.In order to assist the Tribunal, the Registrar makes the following observations in relation to the arguments and evidence submitted by the Applicant and the Other Party.
42.The Applicant contends that the Other Party is no longer routinely having care of the children for two nights every second weekend. The Other Party contends that there has been no change in the pattern of care for the children.
43.The Applicant first contacted the Registrar about a possible change in care on 2 August 2017. Departmental records of the conversation record: "[NHVK] has decided that [FRWB] will no longer have Thurs night and drop [Child 2] at school on Friday" (T8, p 74). Departmental records provide that a change in care notification was not progressed at this time as the Applicant advised that change in care was only anticipated and had not actually occurred.
44.On 8 August 2017 the Applicant lodged an on-line change in care notification which stated a care change date of 8 August 2017 and stated the Applicant had 315 nights per year, equating to 87%.
45.On 18 August 2017 the Applicant contacted the Registrar to discuss her on-line change in care notification and said the Other Party is having care every second weekend on Friday and Saturday nights but that he does miss a night throughout the year. Departmental records provide the Applicant withdrew the change in care notification dated 8 August 2017, stating she would start keeping a diary of the nights the Other Party has care and if he misses some nights she will lodge a further change in care notification (T9, p 75).
46.On 13 September 2017 the Applicant wrote to the Registrar to advise that the children now spend two nights every second fortnight with the Other Party. She also stated in recent fortnights the Other Party has only been having care for one night (T11, p 80).
47.The AAT1 decision at paragraph [29] states that the parties agree there was a change in care for the children in July 2017 (T2, p 10).
48.At the time of the objection decision the Applicant said that the Other Party had 50 nights care per year, that he had no additional care in the holidays and that he didn't offer to make up care he had missed. The Applicant stated that the change in care occurred on 15 July 2017 and not 28 July 2017 (T43, p 183).
49.The parties have each provided care calendars, though none of the dates provided overlap.
(a)The Applicant provided care calendars for October and November 2017 that state the Other Party had eight nights care in those months (T30, p 151 and T35, p 168) and care calendars for May to August 2018 that states the Other Party had eight nights care in those months (ST51, 255-258).
(b)The Other party provided a care calendar for January to April 2018 that states he had 24 nights care or 20% care in the period (ST50, p 243-246).
50.The parties have also each provided a range of third party statements to corroborate their respective positions.
(a)The Other Party has provided third party statements from (his parents) (ST50, p 242 and 250); and (his wife) (ST50, p 241).
(b)The Applicant has provided third party statements (teacher) (T35, p 167); (her mother) (ST51, p 281); and [Child 1] (ST51, p 280).
Date of effect
51.The AAT1 gave effect to the change in care decision from 13 September 2017 following a finding that the change in care occurred in July 2017.
52.The Registrar's objection decision noted that the change in care occurred on 28 July 2017. The Applicant stated in her objection that the change in care occurred on 15 July 2017 (T43, p 183).
53.The date of notification, being 13 September 2017 is more than 28 days after both 15 July 2017 and 28 July 2017.
54.If this Tribunal finds a change in care occurred on or before 15 August 2017 (including either on 15 July 2017 or 28 July 2017), then:
(a)Pursuant to section 54F(2)(b) of the Assessment Act the revocation is given effect from the day before the Registrar was notified of the change in care; or
(b)Pursuant to section 54G(2)(b) of the Assessment Act, the revocation is given effect from the day before the change in care occurred; or
(c)Pursuant to section 54H(2)(b) of the Assessment Act, the revocation is given effect from the day before the Registrar was notified of the change in care.
55.Therefore, if this Tribunal finds a change in care occurred on or before 15 August 2017, the existing care must be revoked with effect from 12 September 2017, the day before the Registrar was notified of the change in care. The care percentages for the parents determined by this Tribunal will then have effect from 13 September 2017.
56.If this Tribunal finds that a change in care occurred on or after 16 August 2017 (being within 28 days of the date of notification) the existing care determination is revoked the day before the change in care occurred and a new care determination is made as to the person's percentage of care in the care period, starting on the date the change in care occurred (s 50(3) of the Assessment Act).
APPLICANT’S SUBMISSION
This is contained in a number of text messages, a calendar and letters from third parties and [Child 1]. The Tribunal notes them and attaches appropriate weight to them for the purpose of this application.
OTHER PARTY’S SUBMISSION
This is contained in text messages, a calendar, letters from third parties and responses to various commentary made by the Applicant. The Tribunal notes these and attaches appropriate weight to them for the purpose of this application.
CONSIDERATION
The Tribunal notes the evidence given by the Applicant and the Other Party to the AAT1. Their evidence is as follows (T2, 8-10):
13.[FRWB] told the Tribunal at hearing he had care of the children on a Thursday, Friday and Saturday night every second fortnight. He said this level of care had been consistent since separation and had been decided at mediation. [FRWB] said care had never been formalised and both parents had always allowed for flexibility in the care arrangements.
14.[FRWB] said care changed in July 2017 around the time he sent his daughter to school without her school jumper. He said he and [NHVK] had different rules for the children and this was not unusual in different houses. After this incident he said he had stopped having care of the children on a Thursday night but, as care was always flexible anyway, he thought the change would only be temporary and he would pick up the time elsewhere. He said he never worried about missing a few nights here and there.
15.[FRWB] said that both children were also involved in the tragedy at Dreamworld in Queensland in late 2016 and had been required to participate in the ongoing investigation through 2017. He said this had been a difficult period for the children and had impacted on the level of care he had as well. He said staff from Worksafe had been to [NHVK’s] home in September 2017 to discuss the accident and this had also disrupted his care.
16.[FRWB] also said he felt like [NHVK] was manipulating the children so that they would not stay with him and his level of care would fall below the “magical” 52 nights a year. He said [NHVK] would often change plans so the children could not stay with him. He said he felt like [NHVK] was motivated by money at the time she said there had been a change in care to a maximum of 50 nights especially as she knew [Child 1] was soon to turn 18 years of age and she would receive less child support.
17.The Tribunal asked [FRWB] if both [Child 1] and [Child 2] stayed with him at the same time and he said that was usually the case. [NHVK] agreed the children would go to [FRWB’s] together.
18.[FRWB] said it was not accurate to say his care was now less than 50 nights a year and it was inconceivable he had less than regular care. He said he felt the pattern of care was now returning to three nights every fortnight and he planned to ensure a more formal care arrangement was put in place in the future either through the courts or mediation.
19.The Tribunal notes the additional evidence provided by [FRWB] includes a calendar of care from 1 June 2017 to 6 February 2018. The calendar shows [FRWB] having care of the children for two nights and sometimes three nights every second week. [FRWB] said the calendar proved that for any period during this time his care equated to more than 50 nights a year.
20.The Tribunal calculated the care of [Child 1] and [Child 2], according to the calendar provided by [FRWB], to be approximately 16 per cent care.
21.[NHVK] said she disputed the level of care [FRWB] had of the children following the change of care in July 2017. She said between July 2017 and January 2018 [FRWB] had a maximum of 25 nights with the children. She said she would often ask [FRWB] if he wanted additional care but he was either busy or not interested. She said she could not see [FRWB’s] level of care changing in the future.
22.[NHVK] said she was definitely not trying to get more child support and was not manipulating the children at all. She said [Child 2] had a strained relationship with her father and simply did not want to stay with him as often as he would like. [NHVK] said the letter she provided from […..], a teacher at [Child 2’s] school, was evidence of this. She said she also had a report from a psychologist which indicated the relationship [Child 2] had with her father was ambivalent. [NHVK] also said now that [Child 2] was older she would chose [sic] when she wanted to stay with her dad.
23.The Tribunal notes in documents provided by the Child Support Agency a letter from [……….], a teacher at [……….] Primary School, dated 3 November 2017. The letter states that [Child 2] does not enjoy spending time with her father “and often chooses not to go to his house on his rostered weekends”.
24.[NHVK] agreed that prior to July 2017, [FRWB] had the children for three nights every second fortnight. Although she said there were often issues even with this level of care as [FRWB] would frequently not take the children on the nights they were supposed to stay with him. She said it was after the incident where [Child 2] was sent to school without a jumper that [FRWB’s] care changed.
25.[NHVK] said, despite her regularly offering, [FRWB] did not want more care of the children. She said he had never been interested in care during school holidays because he preferred to holiday with his partner or was too busy doing his own thing. [NHVK] said it came down to differing attitudes to being a parent. She would always put the children first whereas [FRWB] preferred the children to fit in with him and what he wanted to do.
26.[FRWB] acknowledged the children were close to their mother but said [Child 2] had never raised with him anything about not wanting to stay. He said he disagreed that [Child 2] did not want to stay with him although he accepted that she often made up her own mind. [FRWB] told the Tribunal he did not spend much time in the school holidays with the children. He said this was partly because he started a new job in March 2016.
27.The Tribunal discussed with both [FRWB] and [NHVK] the text messages they had provided as evidence. Many of these were not directly relevant to determining the level of care provided by both parents. The Tribunal did view one particular text message exchange dated 22 November 2017 as significant. The message, from [NHVK] to [FRWB], states:
She has said to both of us that she wants to keep things the same, therefore I am happy for [Child 2] to be in your care from either 8:30am Friday (when I drop her off to school) until Sunday night like usual…or Saturday morning until Monday 3:00pm when I pick her up from school.
28.[FRWB] said this was evidence his “usual” care was at least two nights every fortnight. [NHVK] explained that she sent the text message after they had been to court but [FRWB] had not agreed to the offer. When asked by the Tribunal if “usual” care meant two nights every fortnight [NHVK] agreed but said [Child 2] didn’t always follow that pattern.
29.Based on the evidence provided the Tribunal finds there was a change of care for [Child 1] and [Child 2] in July 2017. The parents do not dispute this. [FRWB] and [NHVK] disagree, however, about the level of care of the children from that point forward.
30.[FRWB] states he has care of at least two nights every second week. [NHVK] agrees that should be the level of care, but often the children do not stay with [FRWB] when they are supposed to and [FRWB] does not seek to have any extra time with [Child 1] and [Child 2] to make up the difference. [FRWB] states this is because he is flexible and is relaxed about the times the children want to stay with [NHVK] instead of him.
On the basis of the evidence above the AAT1 made the following determination:
31.The Tribunal is of the view that the text message dated 22 November 2017 from [NHVK] stating “usual” care is two nights care for [FRWB] every second week strongly suggests this is the new pattern of care. While the Tribunal accepts that [FRWB] may not always have the children overnight on these particular two nights, the evidence does not show enough missed care to warrant less than the agreed two nights every fortnight.
32.The Tribunal therefore finds that [FRWB] provides 14 per cent care of [Child 1] and [Child 2] and [NHVK] provides 86 per cent care from July 2017.
33.In making this finding, the Tribunal notes, however, that if [FRWB’s] relaxed attitude to making up the missed care was to become a clear pattern then [NHVK] would be within her rights to notify of a subsequent change in the pattern of care.
34.Section 54H of the Act allows for discretionary revocation of care percentages where the new care percentage determination affects the care percentage but not the cost percentage, and certain other conditions are met.
35.In this regard, the Explanatory Memorandum to the Bill for the amending Act states that: “This discretion allows the Registrar to maintain accurate records of changes in care and, because of the alignment provisions, this assists in keeping accurate records for FTB and child support."
36.In relation to discretionary revocation, section 2.2.2 of the Child Support Guide can also guide the Tribunal in its deliberations. It states as follows:
Whether the Registrar revokes an existing care percentage determination under section 54H will depend on the circumstances of the case. If there is clear evidence of a change in care and the Registrar is able to determine new care percentages for the parties to an assessment, the Registrar should revoke the existing care percentage determination, even though the cost percentage is not affected. This helps to ensure there is an accurate record of the care history on a case. However, if the evidence indicates that a change in care has occurred that would not affect the cost percentage, but the evidence is not conclusive as to the precise care percentages, the Registrar may decide not to revoke the existing determination. This discretion enables the Registrar to decide not to proceed with unnecessary investigations to determine precise care percentages that would not make a material difference to the assessment.
37.As section 54H of the Act is met, the Tribunal finds the previous determination can be revoked and replaced with the agreed pattern of care so the records are accurately reflected.

The Tribunal notes that much of the evidence from the parties is in the “he said/she said” category, which gives the Tribunal context as to the substance of disagreement between the parties. The parties agree that the evidence provided to the AAT1 was substantially correct, except for the interpretation of some SMS text messages.
The key question for this Tribunal is what was the likely pattern of care for [Child 1] and [Child 2] in the care period from July 2017.
The Tribunal finds both parties have the interests of their children as their primary concern, and both parties gave the Tribunal the impression the loose and flexible care arrangements they have had over a period of time has worked to the advantage of both parties.
The Tribunal finds both parties to be truthful, although evidence given is provided from their respective views.
The Tribunal notes that the term “pattern of care” is not defined in the legislation. In determining the pattern of care the decision–maker must consider the actual care of the child in the care period. The “care period” is the period which the decision maker considers is appropriate having regard to all the circumstances of the case.
Whilst the Tribunal is mindful of the decision in Polec & Staker & anor [2011] FMCfam 959 at [56] which lists matters needing to be considered relating to the determination of the extent of care to each party, it is also cognisant of the decision of P v Child Support Registrar [2013] FCA 1312 where his Honour Wigney J stated [at 107]:
In my opinion, however, 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 decisionsmakers 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. Failure to have regard to one of the matters referred to in Polec may or may not invalidate a decision depending on the particular facts and circumstances of the case. On the other hand, in some cases a decision-maker might fall into error by ignoring facts or circumstances that are not in the list in Polec.
The Tribunal having examined the various text messages presented in evidence concurs with the view of the AAT1 in respect to the message of 22 November 2017 from [NHVK] to [FRWB] which states:
She has said to both of us that she wants to keep things the same, therefore I am happy for [Child 2] to be in your care from either 8:30am Friday (when I drop her off to school) until Sunday night like usual … or Saturday morning until Monday 3:00pm when I pick her up from school.
This in the mind of this Tribunal adds to the context of the type of flexible approach in terms of care arrangements that suited the lifestyle of both primary care givers; in this instance the mother and father.
The Tribunal understands the date of effect of a change of care depends upon when the Registrar is notified of the change. If the Registrar becomes aware of a change of care within 28 days of the change, the assessment will be amended using the new percentage of care from the date the change of care occurred: s 54F(3) of the Assessment Act.
In this matter, 13 September 2017 is the date established by the CSR and the AAT1. Whilst there is dispute between the parties over this, the Tribunal finds that there is a new care determination in place which commenced on 13 September 2017. From this change in care date the AAT1 determined the Applicant had 86% care and the Other Party had 14% care.
The Tribunal supports the rationale applied by the AAT1 to determine the care period and ultimately the care determination that resulted out of this rather informal and flexible approach to care arrangements between the parties.
The Tribunal is aware that following this period a more formal approach through Consent Orders are now before the Family Court for a determination.
The evidence provided by the parties to this Tribunal is broadly reflective of that given to the AAT1.
The Tribunal finds that there was a change in care arrangements in July 2017, which is agreed to by the parties. The point of contention however rests with the level of care attributed to each party. On this point the Tribunal supports the finding of the AAT1 on the basis of the available evidence before it.
DECISION
In view of the evidence above, the Tribunal affirms the decision of the AAT1.

I certify that the preceding 56 (Fifty Six) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.......[Sgd]...........................................................
Associate
Dated: 4 February 2019

Date of hearing: 22/01/2019

Applicant: In person

Counsel for the Respondent: Ms Underhill, Mills Oakley

Other Party: In person

[2019] AATA 78

4 February 2019

Key Legal Topics

Areas of Law

Family Law

Administrative Law

Legal Concepts

Appeal

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	22/01/2019
Applicant:	In person
Counsel for the Respondent:	Ms Underhill, Mills Oakley
Other Party:	In person