NLBD and Child Support Registrar (Child support second review)
[2020] AATA 35
•17 January 2020
NLBD and Child Support Registrar (Child support second review) [2020] AATA 35 (17 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/0965
Re:NLBD
APPLICANT
AndChild Support Registrar
RESPONDENT
AndFRJL
OTHER PARTY
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:17 January 2020
Place:Sydney
The decision under review is set aside and substituted with a decision that the percentage of care is 34% for NLBD and 66% for FRJL.
...............................[sgd]...............................
Chris Puplick AM, Senior Member
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – no agreed pattern of care – actual care – delegated care – inconsistent evidence – care period – cost percentages – revocation of percentage of care determination – decision under review set aside and substituted
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 5, 35, 49, 50, 51, 53, 54A, 54B, 54F, 54G, 54H, 55C
Family Law Act 1975 (Cth) s 60I
CASES
PYYM and Child Support Registrar (Child support second review) [2018] AATA 4670
Shi v Migration Agents Registration Authority [2008] HCA 31
SECONDARY MATERIALS
Department of Social Services, 2.2.1 Basics of care (20 September 2018) Child Support Guide < of Social Services, 2.1.1.60 Change of care of an FTB child (5 November 2018) Family Assistance Guide < FOR DECISION
Chris Puplick AM, Senior Member
17 January 2020
BACKGROUND
NLBD and FRJL are, respectively, the father and mother of Child A (hereafter, the Child) who was born in 2013. The parties were together from 2009 and separated in 2016.
They now share responsibility for the care of the Child although there is no formal court-ordered or written parenting agreement in place. In other words, “there is still no agreed pattern of care” as far as the Child is concerned.[1] Care arrangements are made on an essentially ad hoc basis depending on the working arrangements of each parent and NLBD’s commitments in the nation’s Reserve Forces.
[1] Section 37 Documents (T Documents) at p. 35 [24] as per the decision of the Social Services & Child Support Division of the Tribunal (AAT1).
Around December 2017, NLBD’s employment situation altered such that he was in a position to seek to have care of the Child for a greater period of time, which he has sought to do.
It should be noted that on occasions when the Child is in the care of his father, he may actually be physically spending nights in the home of his paternal grandmother (the Grandmother).
This is referred to as “delegated care” and is referenced in the Child Support Guide (the Guide) at 2.2.1.[2]
[2] Department of Social Services, 2.2.1 Basics of care (20 September 2018) Child Support Guide < Respondent’s Statement of Facts, Issues and Contentions dated 2 August 2019 (SFIC) at Annexure E. A similar reference to “delegated care” may be found in the Family Assistance Guide at 2.1.1.60 Change of care of an FBT child.
This matter is discussed in more detail below.
PREVIOUS DECISIONS
Prior to February 2018, the percentage of care for the Child allocated between NLBD and FRJL was 20% to the father and 80% to the mother (original care percentage decision).[3] This determination was made under the provisions of the Child Support (Assessment) Act 1989 (Cth) (the Act) and, in part, they are confirmed by advice from FRJL supplied on 14 March 2018.[4] They were the result of an agreement between the parties.
[3] This equates (under s 55C of the Child Support (Assessment) Act 1989 (Cth) (the Act)) to “cost percentages” of 24% and 76% respectively.
[4] T Documents at p. 99.
Following representations by NLBD to the Child Support Registrar (the Respondent) in February 2018 claiming that he now provided care for the Child at a greater level than previously,[5] the Respondent made a decision on 24 May 2018 to vary the percentage of care, as from 1 November 2017,[6] such that the father was allocated 44% and the mother 56% (new percentage of care decision).[7]
[5] Ibid at pp. 92 and 108.
[6] Ibid at pp. 128-129 and 130-131.
[7] This Tribunal has made its own calculations of the percentage of care which should have been awarded based on NLBD’s submission that he had care of the Child for 157 nights compared to the mother’s 208 nights in the relevant period. Under the formula set out in s 55C of the Act, the Tribunal would have come to a 41%/59% cost percentages determination for NLBD and FRJL respectively. This is on the basis that 157 nights constitutes 43% of the year. Under Item 3 of s 55C, the calculation would be a cost percentage of 25% for the initial 35% of care and then a cost percentage of 16% (being 2% for each percentage point over 35%) to give a total cost percentage of 41%.
This decision was contested by the mother (on 4 June 2018) but was affirmed on review by an objections officer on 30 July 2018 (objection decision).[8] The Tribunal notes that the objections officer came to his/her conclusion on the basis of extensive material supplied originally by both parties between 20 February 2018 and 26 April 2018.[9]
[8] T Documents at pp. 88-91 and 178-181. The objection decision was made on 30 July 2018 but the parties were notified on 31 July 2018 per T Documents at pp. 86-87 and 176-177.
[9] Ibid at pp. 88-89 and 178-179. This was confirmed as being correct in the hearing before the Tribunal.
This is an important point. Prior to the new percentage of care decision of 24 May 2018, the Respondent had received comprehensive submissions from both parties. After that date but prior to the affirmatory objection decision of 30 July 2018, FRJL supplied more material, although NLBD did not.[10] All of this material was before the objections officer when he/she made the affirmatory objection decision.
[10] Ibid at pp. 89 and 179.
Child support payments from the father to the mother commenced in March 2017 and are continuing. They were varied as of 20 February 2018 to reflect the change in the allocated percentage of care.[11]
[11] T Documents at pp. 128 and 130. Using the s 55C formula, the 44%/56% care percentages translate into cost percentages of 43%/57% for the father and mother, respectively. See T Documents at pp. 135-136.
CONSIDERATION BY THE TRIBUNAL
FRJL initially sought a review of the objection decision through the Respondent, but when advised that the Respondent did not have the authority to undertake such a review[12] she appealed to the Social Services and Child Support Division of this Tribunal (AAT1) on 18 September 2018 seeking a review of the objection decision of 30 July 2018.[13] Effectively, to overturn the percentage of care decision dated 24 May 2018 and to restore the original 20%/80% care percentage calculations.
[12] Ibid at p. 201.
[13] Ibid at p. 85.
On 30 January 2019, AAT1 heard evidence from both parties (by telephone) and considered material placed before it in writing, including material from the Respondent. AAT1 gave its decision on 6 February 2019.
AAT1 came to the conclusion that the calculations of FRJL, in respect of the number of nights which the Child spent with each of the parties, revealed that a 28%/72% care allocation should be accepted for the father and mother, respectively[14] and that these percentages are “as close to a likely pattern of care as could be established on the evidence” before AAT1.[15] In other words, it preferred the evidence and calculations submitted by FRJL over those submitted by NLBD, despite the Respondent having found to the contrary in its objection decision.[16]
[14] Ibid at p. 34 [20].
[15] Ibid at p. 35 [26].
[16] Ibid at pp. 35-36.
Under the deeming provision of section 55C of the Act upon which child support financial determinations are made, AAT1 found that the minor adjustment from 20%/80% to 28%/72% would not lead to any alteration of the 24%/76% cost percentage split.[17]
[17] Ibid at p. 35 [28].
On 22 February 2019, NLBD applied to this Tribunal (the General Division of the Tribunal (AAT2)) for a review of the AAT1 decision[18] and also lodged an application for a stay of the decision (dated 19 February 2019).
[18] T Documents at pp. 1-30.
The stay application was heard by this Tribunal on 16 April 2019. On 18 April 2019, the Tribunal granted the stay, giving its reasons orally, with those reasons subsequently being provided in written form. The stay was granted until a decision is made following a full merits hearing of the review application, and its effect was to preserve the decision of the Respondent as made on 24 May 2018 and affirmed on review on 30 July 2018.
This stay decision was to the effect that the percentage of care between the parties was likely to be 44% to the father and 56% to the mother as determined by the Respondent before being varied by AAT1. That is the position as it pertains at of the date of this hearing.
The merits hearing was held on 8 January 2020, prior to which all parties had been directed to provide the Tribunal with such further information as they sought to rely upon at that hearing.
Between the date of the stay hearing and the merits hearing, NLBD filed additional material which included a number of statements from himself (some in response to material lodged by FRJL), a number of tables and calendars showing dates on which he had care of the Child together with photographs, and a statement by his current partner.[19]
[19] These appear as Applicant’s submissions A12-A21 and A44 in an index summarising the evidence filed by all parties that was supplied by the Tribunal to the parties during the hearing (evidence index).
FRLJ also filed a number of further statements, a calendar for the period December 2018 to December 2019 showing periods of care of the Child, screenshots of correspondence between herself and NLBD, NLBD’s mother and a friend of hers. In addition, statutory declarations from FRLJ’s friends were also submitted.[20]
[20] These appear as Other Party’s submissions O27-O33 and O41 of the evidence index.
The Respondent lodged a detailed statement of facts, issues and contentions (SFIC) setting out the relevant history of the Respondent’s decision-making in relation to the reviewable decision and the relevant legislation and, at the request of the Tribunal, details of the income assessments used by the Respondent in determining the calculations of child support payments to be made by NLBD.[21]
[21] These appear as Respondent’s submissions R35, R42 and R43 of the evidence index.
The Respondent has indicated that it takes a neutral position as between the parties on this application.[22]
THE LEGISLATIVE FRAMEWORK[23]
[22] Respondent’s SFIC at [3].
[23] The following section reproduces the material contained in [34] to [51] of the Respondent’s SFIC, for which the Tribunal is most indebted.
Part 5 of the Act provides for the administrative assessment of child support.
Section 35 sets out the basic formula (Formula 1), which applies to the present case, being a case in which neither parent has another child support assessment and only the parents provide care for the children.
Step 4 in Formula 1 is to work out each parent’s percentage of care for the child in accordance with Subdivision B of Division 4 of Part 5 of the Act.
Subdivision B, Division 4, Part 5 of the Act
Percentage of care determinations may be made under sections 49 or 50 of the Act, depending on the pattern of care provided by a ‘responsible person’. Subsection 5(1) defines ‘responsible person’ for a child to mean a parent or non-parent carer.
Relevantly to the decision under review, subsection 50(2) of the Act provides that the Registrar must determine the responsible person’s percentage of care for the child during the care period if, in accordance with subsection 50(1)(b):
the Registrar revokes, under Subdivision C of Division 4, a determination of a responsible person’s percentage of care for a child that was made under sections 49 or 50;
and 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 appropriate, having regard to all the circumstances.
Pattern of care
As for pattern of care, the Guide at 2.2.1 – Basics of care, states:
… the Registrar will require information about the pattern of care that each parent has of the children. Minor departures from the normal care of the child, such as a missing weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.
Subsection 50(3) provides that any percentage determined under subsection 50(2) must be a percentage that corresponds with the “actual care” of the child that the Registrar is satisfied that the responsible person had, or is likely to have, during the care period.
Actual care
As for actual care, subsection 54A(1) provides that the actual care 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. The Guide at 2.2.1 – Basics of care, states that the Registrar will consider the following:
·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.
It should be noted that in circumstances where ad hoc care is provided by a non-parent carer, such as the grandmother in this case, it is not possible to definitively state whether such care should be treated as care provided by the father or the mother, for the purposes of calculating their care percentage.
The question of what constitutes delegated care in such a context is a question of fact, to be determined for each day where such care is provided. This involves a number of factors, including who made the arrangements for the delegated care, which parent had responsibility for the child under the care arrangement, whether any financial support is provided by the delegated carer, and the frequency of the delegated care arrangements.
Care period
As for the care period, section 5 of the Act provides that a ‘care period’ has the meaning given by paragraph 49(1)(a), (b)(ii), 50(1)(a) or (b)(ii). While these sections do not specify any fixed duration, the care period is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child.
The Guide at 2.2.1 – Basics of care, states that:
A care period is generally a 12-month period from the day on which the actual care of the child began … The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.
The Respondent contends that the care period that is relevant to the decision under review is the period of 12 months from 20 February 2018.
Subsection 54B(1) relevantly provides that if a determination of a responsible person’s percentage of care is made under section 50, the percentage of care applies to each day from the application day, unless a revocation of the determination takes effect.
Revocation of existing care percentage determination
The circumstances in relation to whether the existing care determination is required to, or may, be revoked are set out in sections 54F, 54G and 54H of the Act, which are relevantly (in summary):
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
(1) If:
(a) a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b) if section 51 or 53 applied in relation to the responsible person—the interim period for the determination has ended; and
(c) the Registrar or the 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
(d) 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
(e) section 54G does not apply;
the Registrar must revoke the determination.
Note: The Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) The revocation of the determination takes effect at the end of:
(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii) otherwise—the day before that change of care day; or
(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
54G Determination must be revoked if there is less than regular care etc.
(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.
54H Registrar may revoke a determination of a responsible person’s percentage of care
(1) If:
(a) a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b) if section 51 or 53 applied in relation to the responsible person—the interim period for the determination has ended; and
(c) the Registrar or the 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
(d) 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; and
(e) sections 54F and 54G do not apply;
the Registrar may revoke the determination.
Note: If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2) If the Registrar revokes the determination, the revocation takes effect at the end of:
(a) if the Registrar or the Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(c) within 28 days after the change of care day for the responsible person:
(i) in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii) otherwise—the day before that change of care day; or
(b) if the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person but before the interim period for the determination has ended—the day on which the interim period ends; or
(c) otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
In summary:
·section 54F provides that the Registrar must revoke the existing care determination if there is a change in the percentage of care that would result in a change to a person’s cost percentage in relation to a child;
·section 54G provides that the Registrar must revoke the existing care determination if a parent’s percentage of care falls below 14% (52 nights per year); and
·section 54H provides a discretion to the Registrar to revoke the existing care determination if there is a change in the percentage of care that does not result in a change to the cost percentage.
Care terminology
The Guide at 2.2.1 – Basics of care, provides guidance on the terminology used in Part 5 of the Act, as follows:
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.
Term Percentage of Care Number of nights (in a year) 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 Cost percentages
To determine the relevant cost percentage for each parent, reference should be made to section 55C of the Act, which provides:
55C Working out cost percentages
A parent’s or non-parent carer’s cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent’s or non-parent carer’s (as the case requires) percentage of care for the child for the day.
Item Column 1 – Percentage of Care Column 2 – Cost percentage 1 0 to less than 14% Nil 2 14% to less than 35% 24% 3 35% to less than 48% 25% plus 2% for each percentage point over 35% 4 48% to 52% 50% 5 More than 52% to 65% 51% plus 2% for each percentage point over 53% 6 More than 65% to 86% 76% 7 More than 86% to 100% 100% DISCUSSION
In submissions to the Tribunal both parties have raised a variety of matters including questions related to arrangements involving overseas travel by the Child, issues of the Child’s potential citizenship in the United States (via his mother’s status as a dual Australian/United States citizen), payments by NLBD for items other than child support, the debts allegedly owed by both parties to a variety of sources and the provenance of rental payment receipts.
In addition, FRJL has supplied a number of statements from her friends commenting on aspects of her relationship with NLBD and making various statements about aspects of the parenting arrangements. Neither of these is supported by independent verification but primarily reflect what FRJL has said to her friends. As such they are of limited value in the determinative process.[24]
[24] See [21] above.
The same may be said of a statement provided by NLBD from his current partner.[25]
[25] See [20] above.
None of those issues are relevant to the matter before the Tribunal, which is limited to the determination of the percentage of care to be allocated between the parties based on the evidence of when the Child was in the care of either of the parents. Moreover, as the Respondent rightly points out, this determination itself is limited to the time period from 20 February 2018.[26] That date (20 February 2018) is the date upon which NLBD notified the Respondent that his percentage of care for the Child had increased to 43% as from 12 November 2017.[27]
[26] Respondent’s SFIC at [5].
[27] T Documents at p. 92; See [8] above.
Consequently, none of these extraneous matters will be considered by this Tribunal.
For the sake of completeness, it should be noted that whilst the “care period” is not fixed by the legislation, as discussed in paragraph 35 above, it is generally 12 months. The Guide, however, does provide that “there are some circumstances where determining the care over a shorter or longer period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period … A care period of more than 12 months might be appropriate where the parents have an arrangement in which the care of the child follows a recurring cycle over a period greater than 12 months”. The Respondent appears to have determined that a 12-month period from 20 February 2018 should be the basis for the calculations,[28] but, in the absence of a clear legislated definition on this point, the Tribunal does not feel bound to be limited by such an assumption. However, it equally appears that nothing material turns upon this point.
[28] Respondent SFIC at [46].
There is a clear and sharp discrepancy between the versions of facts of the respective parties as to the percentage of care each has for the Child, with each relying on different records which they have kept and which they claim show details of when the Child was in their care. FRJL claims, in effect that she has had care of the Child for between 70% and 80% of the time while NLBD claims that his records show he has had care for approximately 43% of the time.
Each maintains separate records and the records are mutually contradictory. AAT1 in its determination noted the evidence before it from the parties was “inconsistent”.[29] Indeed, at that hearing, the divergence of evidence was such that FRJL claimed a percentage share of 72% for herself as against 28% for NLBD while his counter claim was of a 52% for himself and 48% for FRJL.
[29] T Documents at p. 34 [20].
Both parties are agreed upon the fact that FRJL is, and always has been, the “primary carer” of the Child. This, however, does not in itself materially affect the determination of percentages of care between the parties.
Care provided by the Grandmother
There is an added complication, namely, that for a limited number of nights, as stated above,[30] the Child has been in the care of his Grandmother.
[30] See [4] above.
In most instances where a child is cared for by a grandparent, such as the circumstances which appertain here, care time for that child is awarded to the parent who arranges such care of the child, undertakes payment of expenses associated with the care of the child, and is the effective decision-maker in relation to the child’s welfare. That is usually the parent whose parent is the grandparent providing the care.[31]
[31] Department of Social Services, 2.2.1 Basics of care (20 September 2018) Child Support Guide < Respondent’s SFIC at Annexure E; PYYM and Child Support Registrar (Child support second review) [2018] AATA 4670 at [27]-[28].
Such instances of delegated care in the present case would therefore typically be assigned to the credit of the father. However the evidence, agreed by both NLBD and FRJL, indicates that on some occasions it was the mother who made arrangements with the Grandmother to provide care for the Child. The mother indicated at the hearing that she has a close relationship with the Grandmother (her former mother-in-law) and they live in the same suburb which is also adjacent to where the Child goes to school and from where his Grandmother has collected him on some occasions. Apparently at an earlier date, NLBD and his mother were sharing the same residence.[32]
[32] T Documents at p. 89.
In these particular instances of delegated care, it may therefore be that such care should be counted in favour of FRJL. The Tribunal’s advice from the Respondent, which was requested after the stay hearing, was to the effect that where delegated care is provided, the determination of which of the parents should be credited with that period of care is a matter to be determined virtually on a day-by-day basis taking into account matters such as which parent made the arrangements, which had the responsibility for the Child that day and which was making any financial contribution to those care arrangements.[33]
[33] Advice from the Respondent to the Tribunal dated 17 April 2019, which is restated in the Respondent’s SFIC at [42] and [43] and reproduced above at [32] and [33].
This means that the nights spent by the Child with the Grandmother should, in some instances, be counted as accruing to NLBD and in others to FRJL. It is also agreed between the parties that while in most cases the initiating party was NLBD, there is no clear record of when the Grandmother was acting for one party rather than the other.
In the decision of the objections officer (dated 30 July 2018) it is clear that all nights where care was provided by the Grandmother were attributed as care provided by NLBD and indeed the decision-maker states: “IT (sic) is therefore unfair and unjust to use these nights in a calculation reflecting them as [FRJL’s] nights of care”[34] even when FRJL may have initiated some of those care arrangements.
[34] T Documents at pp. 90 and 180.
The Tribunal disagrees with this assessment of the objections officer as a matter of principle, but cannot, as already stated, determine from the material before it how the “Grandmother’s nights” should be allocated between NLBD and FRJL. This is unfortunate as the objection officer’s determination places considerable weight on assigning these nights to NLBD and is critical of FRJL for not counting them accordingly.[35]
[35] Ibid at pp. 89-90 and 178-179.
NLBD’s schedule / FRJL’s employment
NLBD is employed as a pilot by a major international airline and also spends some time as a member of the Royal Australian Air Force (RAAF) Reserve. He works on a 56-day roster which involves him being overseas between 18 and 21 days per 56-day roster. In addition, his RAAF Reserve commitments amount to something in the order of 60 days per annum. For the remainder of the time he is on stand-down mode and resident in Australia. Were he to be away for the minimum period of time indicated by these arrangements he would be in Australia and available to look after the Child for 51% of the year.[36] In his own submission to the Tribunal, NLBD states that “I do have on average 62% of my time at home and am capable and willing to care for [the Child] for anything up to this time.”[37]
[36] Calculated as: 38 days available in each 56-day roster multiplied by 6.5 (number of rosters in a 365-day period) minus 60 days Reserve time away = 187 days out of 365 days = 51.23%.
[37] Applicant’s submission dated 11 April 2019 at [11].
NLBD accepts that his schedule can be “erratic” and that his employment arrangements have, from time to time, caused schedules of care to be interrupted or displaced. He also accepts that FRJL has occasionally had to cope with changes brought about by alterations to his arrangements and that her working conditions mean that her time is much more “flexible” than his.
FRJL holds a senior management position at a leading telecommunications company and has been in full-time employment since 13 December 2017. She states that while her position accords her a degree of flexibility to manage child care arrangements, those responsibilities have restricted her further career development, and employment and study opportunities. The Tribunal has no doubt that this is the case.
Pattern of care
Despite the heartfelt and no doubt genuine statements made to the Tribunal by both parties that all they desire is to come to some sort of arrangement which is in the best interests of the Child, they have been, for whatever reason(s), unable to come to an agreed and stable pattern of care for that Child. There have been attempts at mediation, there has been lengthy engagement with solicitors on both sides and mediation efforts (as per section 60I of the Family Law Act 1975 (Cth)) have been discontinued by a family dispute resolution practitioner as it was determined to be “not … appropriate” in the particular circumstances.[38]
[38] T Documents at pp. 140-152.
Both parties have sought to cast blame on the other, either claiming a lack of response to initiatives or offers, or claiming that unreasonable financial demands have been made.
It is genuinely unfortunate – primarily in terms of the welfare of the Child – that the parties have not been able to resolve their differences but it has also led to a situation in which the Tribunal has had to proceed without there being any evident agreed pattern of care. Hence, there is a degree of incoherence in both the records maintained by NLBD and FRJL and their understanding of the mutual obligations allegedly entered into between the two.
Resolution of these issues lie in the hands of the parties exclusively.
Calculations
In the absence of any such agreed pattern of care, it falls to the Tribunal to attempt to determine the facts from the material before it.
In assessing the time spent by the Child with each parent, the starting date for such calculations must be, as explained above, 20 February 2018.
Material before the Tribunal, in several parts, persuades it to take this care period from 20 February 2018 to 8 January 2020. This is because there appears to be a clear record maintained by NLBD from 1 February 2019 to 31 December 2019 during which time the care arrangements can be ascertained.[39] The record is maintained in an application (Alimentor), details of which were examined at the Tribunal hearing and where the figures in question were not contested by either party.
[39] Applicant’s submission dated 25 December 2019 – Attachment C (Custody Calendar).
At paragraph 47 above, the Tribunal noted the approach taken by the Respondent to deal only with a 12-month care period from 20 February 2018 and the Tribunal explained its more expansive interpretation of the care period in question. Section 50(1)(b) of the Act provides that calculations should be made with reference to the pattern of care “during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances”. Given that AAT2 in this regards stands in the shoes of the Registrar as the decision-maker, the Tribunal finds it appropriate to have regard to the period 20 February 2018 to 8 January 2020.
The information maintained in Alimentor shows a month by month record of when the Child was in the care of either NLBD or the Grandmother as follows:
Date Hours (rounded) Nights Percentage 01.02.19 – 28.02.19 164 7 24.37 01.03.19 – 31.03.19 277 12 37.23 01.04.19 – 30.04.19 193 8 26.81 01.05.19 – 31.05.19 243 11 32.66 01.06.19 – 30.06.19 255 11 35.42 01.07.19 – 31.07.19 261 10 35.01 01.08.19 – 31.08.19 232 10 31.18 01.09.19 – 30.09.19 117 4 16.18 01.11.19 – 30.11.19 232 10 32.15 01.12.19 – 31.12.19 232 9 31.18
There are no figures provided for either January or October 2019.
The table shows that for ten months of calendar year 2019, the Child was in the care of NLBD or the Grandmother for 30.4% of the relevant time.
Both NLBD and FRJL agree that the time spent by the father (and the Grandmother) with the Child in 2019 was less than that in 2018.
NLBD’s submission to the Tribunal relating to time during which he had care of the Child in 2018 shows that from 1 March 2018 to 31 December 2018 this amounted to care for 39.5% of the time.[40] No evidence that clearly and reliably contradicts these calculations was placed before the Tribunal by FRJL.
[40] Annex E of Applicant’s submissions dated 5 February 2019, appear as A4 of the evidence index. A total of 121 nights out of 306.
The same document indicated that for January 2019 NLBD had care of the Child for 52% of the time (16 of 31 days), although there is some issue about the exact amount of time involved over one day in the Australia Day holiday period.
This leads to a summary as follows:
·1 March 2018 – 31 December 2018 39.5%
·1 January 2019 – 31 January 2019 52.0%
·1 February 2019 – 31 December 2019 30.4%.
The time unaccounted for is thus from 20 February 2018 to 28 February 2018, from 1 October to 30 October 2019 and 1 January to 8 January 2020, an effective total of six weeks.
However, in relation to February 2018 there was evidence presented at the hearing of the AAT1 which is described as “inconsistent” because NLBD claims to have had care of the child for 15 nights while FRJL claims that it was only 9 nights.[41] A subsequent submission by NLBD for the same period claims 12 nights rather than 15.[42] The Tribunal has adopted the figure of 12 as most likely to be the accurate statement.
[41] T Documents at p. 34 [19]-[20].
[42] Annex E of Applicant’s submissions dated 5 February 2019, (A4 of the evidence index).
Given that NLBD has submitted comprehensive and detailed records to the Tribunal, it must be inferred from these that he did not provide any level of care for the Child in the month of October 2019. Neither his custody calendar nor his custody summary nor his custody log contain any entries for that month.[43]
[43] Applicant’s submissions dated 25 December 2019 – Attachment C (Custody Calendar).
It is unfortunate that some of the early records (late 2017 and mid 2018) kept by FRJL are not of a particularly high quality nor are they easy to interpret. A number of them are hand written entries on a monthly calendar, some with deletions and amendments and others with limited annotations.[44] It was only at a later point that FRJL appears to have started recording the data on an Excel spreadsheet on her laptop.
[44] T Documents at pp. 161-164 and 220-229.
What confronts the Tribunal now is a series of varying calculations made by different decision-makers:
·Initially, a 20%/80% (NLBD/FRJL) percentage care split was agreed by the parties themselves on the basis of FRJL’s initial calculations.
·Thereafter, following notification from NLBD about a change in his care percentage, the Respondent (having reviewed all the data and having taken into account detailed submissions from both parties) made a variation of the care percentages to 44%/56% (NLBD/FRJL).
·That was challenged in the AAT1, which restored the original 20%/80% (NLBD/FRJL) care percentage decision.
It is important to be clear exactly what the AAT1 determined. It was as follows:
On the evidence before it, the tribunal found that there was no agreed pattern of care for [the Child] on 12 November 2017, nor was one in place by late February 2018. Indeed although [FRJL] and [NLBD] have engaged in mediation about care during 2018, it appears that there is still no agreed pattern of care.
This absence of any agreed pattern of care means that care arrangements are always the subject of negotiation and potential disagreement. If one party does not make the child available or the other does not return the child as agreed, this cannot be represented as a failure to comply with a generally agreed arrangement, although it may be a breach of one-off agreement.
Even so, on [FRJL’s] evidence alone, [NLBD] had a 28% actual care percentage across the November 2017 to February 2018 period which is higher than the 20% care percentage in place for him on 20 February 2018. Similarly, [FRJL’s] actual care percentage of 72% across the November 2017 to February 2018 period was lower than the 80% care percentage in place for her on 20 February 2018. This is as close to a likely pattern of care as could be established on the evidence.[45] (emphasis added)
[45] Ibid at p. 35 [24]-[26].
Two things obviously stand out from the AAT1 determination: the care period considered was from November 2017 to February 2018 and the decision was based on the evidence before that Tribunal in February 2019.
By contrast, this Tribunal must make its determination as from 20 February 2018 and it must make that determination on the basis of the material before it in January 2020.[46] That evidence is substantially different from that which was before AAT1.
[46] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
The Tribunal notes that its responsibility is to determine simply the percentage of care allocation between the NLBD and FRJL. Calculations of actual child support payment, based upon financial information supplied by the parties, is the responsibility of the Respondent.
From the above, the following appears to be the case in relation to NLBD’s care of the Child:
Date Nights provided by NLBD Total nights Percentage of care 20 Feb – 28 Feb 2018 4 9 44.4* 1 Mar – 31 Dec 2018 121 306 39.5 1 Jan – 31 Jan 2018 16 31 52.0 1 Feb – 30 Sept 2019 73 242 30.1 1 Oct – 31 Oct 2019 Nil 31 0.0 1 Nov – 31 Dec 2019 19 61 31.1 1 Jan – 8 Jan 2020 No data / not included TOTAL 233 680 34.26 * a calculation made on the basis of a proportion of the month established by data discussed in paragraph 77 above.
It may well be that this calculation slightly overstates the position of NLBD as it assigns all the “Grandmother nights” to him whereas, as discussed above, some of those might, more correctly be assigned to FRJL.
CONCLUSION
After making its best endeavours to establish the facts about the relative nights of care provided by both NLBD and FRJL to the Child during the care period under consideration, based on the calculations exposed above, the Tribunal determines that NLBD has been responsible for the care of the Child for 34% of the time and FRJL for 66% of the time.
As such, variation of the care percentages of 20%/80% as determined by AAT1 on 6 February 2019 to 34%/66% as determined by this Tribunal for NLBD and FRJL, respectively, will not lead to a change in the cost percentages as set out in section 55C of the Act.
In light of the Tribunal concluding that the actual care does not correspond with the existing percentages of care, being 20% for NLBD and 80% for FRJL, the Tribunal finds it preferable to revoke the determination of AAT1[47] and make a new determination of 34% of care for NLBD and 66% for FRJL to replace the revoked determination.[48]
[47] The Act s 54H.
[48] Ibid s 50(1)(b) and (2).
Although the Tribunal’s decision does not lead to any practical outcome in terms of the cost percentages between NLBD and FRJL, the fact that 34% is right on the threshold of the point at which cost percentage(s) would be varied (that being 35%) does mean that, should NLBD increase his actual provision of care, a further recalculation of matters would be appropriate and both parties are entitled to know that any minor variation in this regard might be significant.
The Tribunal appreciates that this is yet another and different determination from those made by the Respondent and AAT1 but believes it reflects the correct and preferable decision based on the most contemporary material available to it. It also appreciates that it may have financial consequences for both parties, especially in the light of payments made as a result of this Tribunal’s stay order of 18 April 2019 – as was foreshadowed at that time.
DECISION
The decision under review is set aside and substituted with a decision that the percentage of care is 34% for NLBD and 66% for FRJL.
I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...........................[sgd]...........................
Associate
Dated: 17 January 2020
Date(s) of hearing: 8 January 2020 Applicant: In person Solicitors for the Respondent: Dr S Thompson, Department of Human Services Other Party: In person
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