NJTK and Child Support Registrar (Child support second review)
[2020] AATA 2386
•21 July 2020
NJTK and Child Support Registrar (Child support second review) [2020] AATA 2386 (21 July 2020)
Division:GENERAL DIVISION
File Number: 2019/5507
Re:NJTK
APPLICANT
AndCHILD SUPPORT REGISTRAR
RESPONDENT
AndZRDN
OTHER PARTY
DECISION
Tribunal:Senior Member Katter
Date:21 July 2020
Place:Brisbane
The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that there was no ‘pattern of care’ as to child J from 13 December 2018 to 20 February 2019.
...............[SGD]...................
Senior Member Katter
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 sub-sections 16(2AB)–(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care of child – consideration of entire care period - no pattern of care during care period - decision under review set aside and remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Parent A and Child Support Registrar and Anor [2013] AATA 562
REASONS FOR DECISION
Senior Member Katter
21 July 2020
This is an application to review the decision made by the Social Services and Child Support Division (‘SSCSD’) of this Tribunal setting aside a decision of the Respondent and substituting a decision that the Applicant and the Other Party each have 50% care of a child (child J) from 13 December 2018.
BACKGROUND
The Applicant and the Other Party are the parents of children (child J and child K).
The child support case commenced on 19 September 2017[1].
[1] T documents, T22, page 207.
For the period 27 August 2018 to 12 December 2018 the Applicant was assigned 42% care and the Other Party 58% care of both children (child J and child K)[2].
[2] T documents, T22, page 211.
On 4 January 2019 the Applicant communicated to the Department that there had been a change in care, with each parent having 50% care of the children (child J and child K) from 13 December 2018[3].
[3] T documents, T23, page 227.
On 30 January 2019 a new care determination was made whereby the Applicant had 51% care of the children and the Other Party had 49% care from 13 December 2018[4].
[4] T documents, T23, page 232.
On 31 January 2019 the Other Party objected to the decision made on 30 January 2019[5].
[5] T documents, T23, page 235.
On 25 May 2019 an objection officer of the Department made a decision partly allowing the objection made on 31 January 2019 by the Other Party, setting aside the decision of 30 January 2019 and substituting a decision that for one child (child J) the Applicant had 64% care and the Other Party had 36% care, with the care for the other child (child K) being 45% to the Applicant and 55% to the Other Party from 13 December 2018[6].
[6] T documents, T16, pages 138-146.
On 29 May 2019 the Other Party applied for a review of the objection decision of 25 May 2019 to the SSCSD of the Tribunal[7].
[7] T documents, T17, page 153.
On 13 August 2019 the SSCSD set aside the decision of 25 May 2019 and decided that the Applicant and the Other Party each had 50% care of the child (child J) in substitution for the decision that the Applicant had 64% care and the Other Party had 36% care from 13 December 2018 (‘AAT1 Decision’). The care as to the other child (child K) was not the subject of the AAT1 Decision[8].
[8] T documents, T2, pages 2-6.
On 30 August 2019 the Applicant applied to this Tribunal for review of the AAT1 Decision dated 13 August 2019[9]. The Applicant stated in the Application[10]:
“The decision was made by the [Social Services and Child Support Division] that the CSA decision on % of care for [child J] was made over a holiday period and therefore the percentage was not a true reflection of the care percentage that followed into the following months.
[The Other Party] has claimed that the care % [the Other Party] has had of [child J] is 50%.
I apologise as I had work commitments that made it impossible for me to attend the hearing.
I believe this decision that [the Other Party] has had 50% care of [child J] from December 2018 is incorrect.
I would like the opportunity to have this decision reviewed with my evidence of a care schedule for [child J], evidence of 100% school fees having been paid for [child J] by myself (for both the 2018 and 2019 school years), 100% of all school excursions and extra curricular activities for [child J] and medical evidence to demonstrate … why [child J] has been in my care the majority of the time and why [child J] will continue to be in my care the majority [sic].”
[9] T documents, T1, page 1.
[10] T documents, T1, page 1.
On 21 March 2019 a Care Determination was made regarding the child (child K), with the Other Party having 72% care and the Applicant 28% care from 4 January 2019[11].
[11] T documents, T23, page 251.
On 27 August 2019 a Care Determination was made regarding the child (child J), with the Other Party having 49% care and the Applicant 51% care from 21 February 2019[12]. As to that Care Determination of 27 August 2019, the Registrar states that that Determination was notified more than 28 days after it happened, with the new care therefore having effect from 21 February 2019 for the Applicant and 28 May 2019 for the Other Party[13].
[12] T documents, T22, page 210.
[13]Registrar’s Statement of Facts, Issues and Contentions dated 7 February 2020, paragraph 15 and Attachment A - Letter to the Applicant from the Registrar Respondent dated 27 August 2019.
ISSUE
First, as to the period 13 December 2018 to 20 February 2019 what is the pattern of care, if any, as to child J. Secondly, if there is a finding as to a pattern of care for the period 13 December 2018 to 20 February 2019, what finding as to a percentage of care should be attributed to the Applicant and the Other Party as to the child J[14].
[14] Registrar’s Statement of Facts, Issues and Contentions dated 7 February 2020, paragraph 2.
CONSIDERATION
Division 4 of Part 5 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) states the rules for determining a person’s percentage of care of a child. Sections 49 and 50 set out when a determination of a percentage of care must be made:
“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) both of the following apply:
(i) the determination of a responsible person's percentage of care for a child that was made under this section or section 50 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, 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 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) 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.”Therefore, pursuant to sub-s 50(3) of the Act the care percentage must correspond with the actual care a person has of the child during the care period[15].
[15] Registrar’s Statement of Facts, Issues and Contentions dated 7 February 2020, paragraph 22.
Sections 54F, 54G and 54H of the Act state that a care determination must or can be revoked where there has been a change in care. Where a care determination is revoked a new care determination of the percentage of care each has in respect of a child must be made.
As referred to above, the first issue is whether there is a ‘pattern of care’, if any, as to child J as to the period 13 December 2018 to 20 February 2019.
The Applicant states that on 13 December 2018 there was a change in care, in that the Applicant graduated from a ‘recruit course’ on that date[16]. The Applicant described the change in care as being “very distinct[;] it was clear”[17]. The Applicant referred specifically to the period of 14 December 2018 onwards, in that the ‘recruit course’ finished on 13 December 2018[18]. On the night of 13 December 2018 child J was with friends of the Applicant[19]. If 13 December 2018 is included, child J was with the Applicant for 12 of 19 days, until the end of 2018[20]. In the month of January 2019, the Applicant stated that child J was with the Applicant for 21 of 31 days[21]. As to the period up to and including 20 February 2019, the Applicant stated that child J was with the Applicant for 10 of the 20 days[22]. Therefore, the Applicant stated that child J was with the Applicant for 43 of 69 days in the period 13 December 2018 to 20 February 2019[23].
[16] Transcript, 9 March 2020, P-14, line 25.
[17] Transcript, 9 March 2020, P-14, lines 35 and 36.
[18] Transcript, 9 March 2020, P-25, line 39.
[19] Transcript, 9 March 2020, P-25, lines 41-44; P-26, lines 12-15.
[20] Transcript, 9 March 2020, P-26, lines 34-35.
[21] Transcript, 9 March 2020, P-26, lines 37-38.
[22] Transcript, 9 March 2020, P-27, line 14.
[23] Transcript, 9 March 2020, P-27, line 40.
As to whether there was a ‘pattern of care’ in the period 13 December 2019 to 20 February 2019, the Applicant stated that “ … the only thing that really felt regular was that [child J] was with me the majority and [child K] was with [the Other Party] for the majority[24]”. The Applicant stated that: “ … look, I want to say that there was probably not much consistency …”[25]. The Applicant stated that the intention had been to go approximately one week on and one week off with child J, but that was not the way that it worked out[26]. Child J would be with the Applicant for the whole time except for two night-shifts (by the Applicant), when the Other Party would take child J. The Applicant stated that sometimes the child “wasn’t even going to the [Other Party] those two nights …”[27]. The Applicant stated that in the period in February 2019, finishing on 20 February, the care percentage between the Applicant and the Other Party as to child J was 50%, with the Applicant stating that after 21 February the percentage was not 50%[28].
[24] Transcript, 9 March 2020, P-28, lines 18-20.
[25] Transcript, 9 March 2020, P-29, lines 32-33.
[26] Transcript, 9 March 2020, P-28, lines 34-39; P-31, line 11.
[27] Transcript, 9 March 2020, P-28, lines 37-39.
[28] Transcript, 9 March 2020, P-37, lines 29-36.
The Other Party stated that from 1 January 2019 to 20 February 2019 there was agreement as to the care days for child J[29]. As to the period 13 December 2018 to 28 December 2018, the Other Party stated that the ‘pattern of care’ was four days, with the Other Party and three days with the Applicant in each week[30], however, when identifying the specific days in that period as to whether there was a difference between the articulation of the Applicant and the Other Party’s articulation, the Other Party stated that there was not conclusiveness “one way or another … on those days”[31].
[29] Transcript, 9 March 2020, P-39, lines 32-38.
[30] Transcript, 9 March 2020, P-40, lines 7-8.
[31] Transcript, 9 March 2020, P-41, lines 26-27.
The Other Party submitted that “the Applicant cannot point to any pattern of care”[32], that the Applicant had just finished a long training course, it was the Christmas holidays, child J had not seen the Applicant very much and the Other Party in January had to move house, so there were a lot of ad hoc days during that time[33].
[32] Transcript, 9 March 2020, P-47, line 25.
[33] Transcript, 9 March 2020, P-47, lines 28-34.
The evidence is that child J, therefore, was with the Applicant about 61.9% of the period 13 December 2018 to 20 February 2019[34]. The Applicant submitted that the ‘pattern of care’ was related to percentage of care, rather than a day pattern[35].
[34] Transcript, 9 March 2020, P-43, line 11.
[35] Transcript, 9 March 2020, P-44, lines 10-14.
The Registrar submitted that there should be a “clear pattern of care”[36] for the entire period 13 December 2018 to 20 February 2019, not just the start of the care period[37]. The Registrar further submitted that, having regard to the particular phrase in the legislation, “flexibility needs to be given as to what a pattern of care is”, recognising that there can be conflict and it can be difficult to establish a clear pattern of care all the time[38]. The Registrar submitted that it was a “relatively flexible test”[39]. However, the Registrar submitted that the ‘pattern of care’ is not equivalent to the percentage of care[40].
[36] Transcript, 9 March 2020, P-45, line 21.
[37] Transcript, 9 March 2020, P-45, lines 28-29.
[38] Transcript, 9 March 2020, P-45, lines 37-41.
[39] Transcript, 9 March 2020, P-46, lines 26-29.
[40] Transcript, 9 March 2020, P-46, lines 11-12.
CONCLUSION
Having regard to the evidence of the parties, as referred to above, it is found that there was no ‘pattern of care’ for the child J during the period 13 December 2018 to 20 February 2019. Although applying a ‘relatively flexible test’[41], there is not, through the entire period of 13 December 2018 to 20 February 2019, a repeated arrangement or consistency in terms of care, factually sufficient to be a ‘pattern of care’.
[41]Transcript, 9 March 2020, P-46, lines 26-29. See Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33] per Member Webb.
It was submitted by the Respondent that, if there is a finding as to a pattern of care for the period 13 December 2018 to 20 February 2019, then a finding as to a percentage of care should be made as to the Applicant and the Other Party as to child J[42].
[42] Transcript, 9 March 2020, P-12, lines 4-10. See also Registrar’s Statement of Facts, Issues and Contentions dated 7 February 2020, paragraph 2.
The Respondent Registrar alternatively submitted that if “no pattern of care can be established, there is no change of care and the existing care decision would continue to apply. In this case, it would mean setting aside the decision under review and determining that there was no change in care”[43]. The existing care decision for the period 27 August 2018 to 12 December 2018 was that the Applicant had 42% care and the Other Party 58% care of both children (child J and child K)[44]. The SSCSD assessed, from 13 December 2018 a care percentage of 50% to the Applicant and the Other Party as to child J. There was, on the evidence, a change in care as to child J from 13 December 2018, with a material increase in the days of care by the Applicant, as referred to above.
[43] Registrar’s Further Submissions dated 3 April 2020, paragraph 9.
[44] T documents, T22, page 211.
The decision under review is set aside, as there was not a ‘pattern of care’ from 13 December 2018 to 20 February 2019 as to child J. The matter will be remitted for reconsideration. There is a recommendation[45] that there was a change in care as to child J from 13 December 2018.
[45] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).
DECISION
The decision under review is set aside and the matter is remitted for reconsideration in accordance with the direction that there was no ‘pattern of care’ as to child J from 13 December 2018 to 20 February 2019.
I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter
..................[SGD]......................
Associate
Dated: 21 July 2020
Date of hearing: 9 March 2020 Date final submissions received: 8 May 2020 Applicant: Appeared by telephone Advocate for the Respondent:
Other Party:
Ms D. Smith
Appeared by telephone
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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