PCJN and Child Support Registrar (Child support second review)

[2023] AATA 403

PCJN and Child Support Registrar (Child support second review) [2023] AATA 403 (17 March 2023)

Division:GENERAL DIVISION

File Number:2022/5905          

Re:PCJN  

APPLICANT

Child Support RegistrarAnd  

RESPONDENT

AndHPPG

OTHER PARTY

Decision

Tribunal:Senior Member A. Nikolic AM CSC

Date:17 March 2023

Place:Melbourne

The Tribunal sets aside the decision under review, which is remitted to the Respondent for reconsideration with the following directions:

(a)Special circumstances prevented the Applicant from objecting to the amended care percentage within the allowable timeframe. The Tribunal exercises the discretion at s 87AA(2) of the Child Support (Registration and Collection) Act 1988 (Cth) to extend the time for the Applicant to lodge her objection to 16 December 2021.

(b)There was no terminating event on 5 April 2016 to justify a change in care percentages. The Tribunal revokes the Respondent’s decision dated 6 February 2020, which amended the percentage of care as of 5 April 2016 to 0% for both the mother and father.

(c)Consistent with the care determination in place since 28 January 2010, the percentage of care has consistently remained at 100% care by the mother and 0% for the father.

(d)The date of effect of this decision is 5 April 2016.

.........................[sgd]............................................

Senior Member A. Nikolic AM CSC

Catchwords

CHILD SUPPORT – percentage of care – whether parent continues to provide care where child living with grandmother – whether parent has responsibility for making decisions in relation to the welfare of the child – whether parent continues to provide financial and emotional support – special circumstances in time taken to lodge objection– decision under review set aside

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth), ss 79D, 87A, 87AA, 89, 96A(b)
Child Support (Assessment) Act 1989 (Cth), ss 7B, 22, 51, 54A, 54F, 54G, 54H, 55C

Child Support (Assessment) Regulations 2018 (Cth)

Cases

Allman v Setford [2019] AATA 1197

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Minister for Home Affairs v G (2019) 164 ALD 103
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
P v Child Support Registrar [2013] FCA 1312
Polec & Staker (2011) 253 FLR 339

Shi v Migration Agent Review Authority [2008] 235 CLR 286

Secondary Materials

Child Support Guide Version 4.69 - Released 6 February 2023

Anonyms are used in this decision because the dispute involves the interests of a minor child, which merit protection. Any references appearing in square brackets indicate that information has been removed and replaced with generic information so as not to identify individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth) (“Collection Act”).

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

17 March 2023

INTRODUCTION

1. The parties and witnesses in this matter are set out in the following table:

Ms AA	17-year-old child of PCJN and HPPG
PCJN	Ms AA’s biological mother (also referred to as “the mother”)
HPPG	Ms AA’s biological father (also referred to as “the father”)
Ms GR1	PCJN’s mother and Ms AA’s maternal grandmother
Ms GR2	HPPG’s mother and Ms AA’s paternal grandmother
HPPG’s sister-in-law	Who submitted a statement dated 12 December 2022

1. PCJN and HPPG are the parents of Ms AA, who was born in 2005. They have been separated for most of Ms AA’s life and are parties to a child support case registered with Services Australia. Until 2019, a child support assessment was in place, by consent, to the effect that 100% care was provided by the mother and 0% by the father.[1]

   [1] Exhibit R1, 93.

2. This assessment changed after the father reported to Services Australia on 11 November 2019 that Ms AA had not lived with the mother ‘for at least 5 years’. He claimed that Ms AA had instead resided with her grandmother, Ms GR1,[2] which constituted a child support terminating event. The Respondent subsequently decided in February 2020 that the care percentages as of 15 April 2016 were 0% for both parents. This caused a debt to be raised against the mother for Family Tax Benefit and child support overpayments.

   [2] Ibid 46.

3. For reasons that will be discussed later, the mother did not formally object to the amended care percentage decision until 16 December 2021.[3] Her objection was subsequently disallowed on 4 March 2022.[4]

   [3] Ibid 72-73.

   [4] Ibid 92-96, pursuant to s 79D of the Collection Act.

4. On 7 March 2022 the mother appealed to the Social Services and Child Support Division of this Tribunal (“AAT1”), which affirmed the Respondent’s decision on 20 June 2022.[5] AAT1 found that the mother’s overall level of responsibility for Ms AA, and the amount of financial support she provided, was ‘unclear’. AAT1 was satisfied that a new pattern of care was established from 15 April 2016 when Ms AA went to live with her grandmother.[6]

   [5] Ibid 7, pursuant to s 89 of the Collection Act.

   [6] Exhibit R1, 11 [19]-[21].

5. On 13 July 2022 the mother sought review of the AAT1 decision in the General Division of this Tribunal (“AAT2”).[7]

   [7] Ibid 1-6.

6. The hearing was held in person at the Tribunal’s Melbourne Registry on 16 February 2023. The mother was represented by Ms Val Stoilkovska of counsel, instructed by Victoria Legal Aid. The Respondent was represented by Mr Tim Noonan, a solicitor from Services Australia. The father was self-represented.

7. For the following reasons, the Tribunal has decided to set aside the decision under review.

   BACKGROUND AND PROCEDURAL HISTORY

8. In response to the father’s claim that Ms AA had not been cared for by the mother ‘for at least five years’, Services Australia asked him why he continued to pay child support and did not report the change in care much earlier? His response is recorded as follows:

   ‘…[The mother] is difficult and he wanted to keep the peace and he was allowed to visit his daughter regularly at her grandmother’s house. He stated that he has had enough, and he cannot agree with $2,048.75 to pay back to her when [Ms AA] is not being cared for by [the mother].[8]  

   [8] Ibid 24.

9. Even at this early stage, and prior to the mother or Ms GR1 responding to the father’s claim, Departmental records state that the ‘most likely decision type’ was to reduce the percentage of care of both the mother and father to ‘0%’:

   ‘*Based on the information obtained from [the father], the most likely decision type will be:

   Actual - actual care, where there is no court order, parenting plan, or written agreement.

   Below 14% Care - below regular determination is made when the current care is 14% or more and Child Support is notified that the care has not or has ceased to be in accordance with that care.

   Calculator summary for child: [Ms AA]

   --------------------------------------------------

   Care period start date: 01/01/2014

   Care period end date: 31/12/2014

   Care details

   Customer percentage: 0%

   Customer care level: Below regular care

   Other party percentage: 0%

10. There are references in the Departmental records to the father being asked to provide supporting evidence for his claims.[9] He subsequently lodged two statements from his mother and sister-in-law as follows:

    (a)A letter from Ms GR2 dated 12 November 2019,[10] which stated that the mother was receiving child support payments while Ms AA was living with and relying ‘on her grandmother to financially support her’.

    (b)A letter from HPPG’s sister-in-law dated 26 November 2019, which is in comparable terms to Ms GR2’s letter.[11] The author claimed she had built up ‘an online friendship’ with the mother, who purportedly admitted to her that: the father’s child support payments were used ‘to financially support herself’; and Ms AA was financially supported by her maternal grandmother. The sister-in-law further claimed she had text messages from Ms GR1 dated August 2016 confirming this arrangement. Finally, the sister-in-law stated she had ‘access to [Ms GR1’s] partner’s…social media’, with pictures posted of Ms AA attending venues in the vicinity of her grandparent’s residence. The sister-in-law was not called by the father to give evidence at this hearing and the 2016 text messages were not tendered.

    [9] Ibid 25.

    [10] Ibid 26.

    [11] Ibid 33-39.

    LEGISLATIVE FRAMEWORK AND PRINCIPLES

11. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), in conjunction with ss 87A and 96A(b) of the Collection Act, enliven the Tribunal’s jurisdiction in this matter.

12. The Tribunal must make ‘the correct or preferable decision’ on the material currently before it.[12] Executive policy can be considered in the interests of consistency and rationality in decision-making,[13] unless there is a cogent reason not to do so.[14] No submissions were made to disregard the available policy and the Tribunal has chosen to consider, but is not bound by, the Child Support Guide Version 4.69 - Released 6 February 2023.

    [12] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (“Drake”) (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.

    [13] Minister for Home Affairs v G [2019] FCAFC 79; (2019) 164 ALD 103, [65], [70].

    [14] Drake, above n 12.

13. The other relevant law is the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), under which care percentages are determined using the methodology at ss 49 to 54L. Sections 49-50 require decision-makers to determine the percentage of care depending on whether the responsible person did or did not have a pattern of care for the child during a care period, which is generally 12 months from the date the actual care of the child began or changed. This care arrangement is assumed to continue unless and until the Respondent is advised of a change in the pattern of care, which may enliven a new care decision.

14. Sections 54F, 54G, and 54H of the Assessment Act are relevant to revoking an existing care percentage determination. The latter only applies if the preceding two provisions do not. Section 54F only applies if s 54G does not. Moreover, ss 54F and 54G mandate revocation of an existing care percentage determination subject to satisfaction of the relevant requirements, namely change in cost percentage or less than regular care from the responsible person, while revocation under s 54H is discretionary.

15. In the absence of a definition for ‘care’ in the Assessment Act, this is determined based on the specific circumstances of each case.[15] Factors set out at cl 2.2.1 of The Child Support Guide provide some assistance:

    [15] P v Child Support Registrar [2013] FCA 1312, [107] (Wigney J).

    Determining whether care exists

    An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

    In most cases, it will be relatively clear whether and to what extent a person is caring for a child. However, where there is doubt, the Registrar will consider whichever of the following are relevant to the particular case:

    ·To what extent the person has control of the child, including having overall responsibility for the child and making:

    ·major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

    ·arrangements 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

16. There is a discretion at s 54A(1) of the Assessment Act to work out ‘actual care’ based on the number of nights a decision-maker is satisfied the child was or was likely to be in the care of a parent during a care period. If actual care can’t be determined on this basis, then the Tribunal has discretion to apply the most appropriate methodology.

    EVIDENCE

17. In addition to the Applicant’s and Respondent’s Statements of Facts, Issues and Contentions,[16] the Tribunal has considered:

    (a)A 111-page bundle of documents lodged by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (“T-Documents”);[17]

    (b)An email from the father’s sister-in-law dated 12 December 2022; and

    (c)Material attached to the ASFIC, namely: medical evidence dated 2020; bank statements dated between 2017 and 2019; and a statement from Ms GR1 dated 7 October 2022.

    [16] Applicant’s Statement of Facts Issues and Contentions (“ASFIC”) dated 29 November 2022, and Respondent’s Statement of Facts Issues and Contentions (“RSFIC”) dated 31 January 2023.

    [17] Exhibit R1.

18. At the conclusion of the hearing, the Tribunal asked for additional medical evidence regarding conditions suffered by the mother, and the basis on which she was granted Disability Support Pension (“DSP”). This was provided on 27 February 2023.[18] The Respondent provided written submissions on 6 March 2023, and the father on 9 March 2023. The Applicant provided written submissions in reply on 14 March 2023.

    [18] Exhibit T1.

    ISSUES BEFORE THE TRIBUNAL

19. This application turns on whether the care arrangement for Ms AA changed from 5 April 2016 because she began residing with Ms GR1 during school weeks.[19] Consideration must also be given to the mother’s delay in lodging her objection within the permissible timeframe. and whether special circumstances prevented her from doing so.

    [19] The Father has been determined to have 0% care for the Child and has made no claim this determination is incorrect or needs to be varied.

    Mother’s Evidence

20. A central pillar of the mother’s oral evidence, and submissions on her behalf by Ms Stoilkovska, is that she retained decision-making power over Ms AA, irrespective of where the child lived, the amount of financial contribution made, or the effects of her illness. This includes having the ‘final say’ on issues such as Ms AA’s schooling, medical care, and general welfare. The Applicant contends that the circumstances did not justify a change in the care determination that had been in place since January 2010.

21. The mother’s evidence is summarised as follows:

    (a)There was a period where the father had court-ordered access when Ms AA was initially born, which expired long ago. The father’s contact with Ms AA since has been ‘pretty spontaneous’ and the mother estimated he ‘maybe had her ten to fifteen times throughout her whole life’. She claimed the father was largely uninvolved with Ms AA and had not seen her for several years. This is disputed by the father, although not much turns on this in circumstances where a 100% to 0% assessment had been in place in favour of the mother for almost a decade prior to the father seeking a percentage of care review.

    (b)The mother said she and Ms AA lived with Ms GR1 for most of their lives, except for a period when she rented a premises in a seaside town approximately 150 km from Melbourne (“the seaside rental”). There is no independent corroboration regarding the duration of the lease, but the mother said it expired in August 2019, after which she resumed living with Ms GR1. The mother said she was living at the seaside rental in April 2016, when Ms AA went to live with Ms GR1, predominantly for schooling purposes. The mother said she suffered periodic mental illness at this time and did not want Ms AA to see her when unwell. She said the intended duration of this arrangement was undefined and depended on her illness. The mother described the seaside rental as their ‘happy place’ and was grateful Ms GR1 assisted her with Ms AA’s care. The mother said Ms GR1 routinely brought Ms AA to stay with her at the seaside rental on weekends and public holidays. A bedroom in the house continued to be maintained exclusively for Ms AA’s use. On other occasions, the mother stayed with Ms AA at Ms GR1’s home.

    (c)In terms of decision-making, the mother said that even when her mental health was poor, ‘nothing happened [regarding Ms AA] without [her] say so’. She decided matters relating to Ms AA’s education, medical care, approval for camps or excursions, and who Ms AA spent time with after school hours. Both she and Ms GR1 attended parent-teacher meetings, because the mother has never held a driver’s licence and Ms GR1 drove her to appointments.

    (d)When asked about a report in evidence that legal guardianship for Ms AA passed to Ms GR1 at some stage in 2016, the mother explained she had to complete a Statutory Declaration for Ms AA’s school enrolment. The mother said Ms GR1 did many of the things a loving grandmother does, which included funding most of Ms AA’s $6000 annual school fees. The mother said she contributed to these fees as her financial situation allowed and paid for other costs such as uniforms and books. She routinely reimbursed Ms GR1 for expenditure relating to Ms AA. After moving in with Ms GR1 when the tenancy on the seaside rental ended, she made an even greater financial contribution.

    (e)The mother said she sometimes transferred money electronically to Ms GR1 and provided cash at other times. She did not keep records for this amicable family arrangement, because it had never occurred to her or Ms GR1 that this was necessary. The mother said she often took Ms AA shopping for clothes and shared the costs of food with Ms GR1 when they were under the same roof. When Ms AA stayed at the rental premises on ‘the majority of weekends’ and school holidays, the mother said she funded all their requirements.

    (f)When asked if she ever kept the father’s child support contributions for herself, the mother replied: ‘Never’.  When asked if she ever told any of the father’s relatives that she used child support money for herself, the mother responded: ‘No’.

    (g)When asked about her sources of income, the mother said she receives DSP as a result of her intellectual disability and other physical and psychological conditions. Her memory and ability to process information is consequently affected, and she has trouble engaging with bureaucratic or legal issues without assistance. She relies predominantly on Ms GR1 for this. The mother claimed to be suffering severe ill-health, feeling overwhelmed, and ‘backed into a corner’ when the Respondent initiated the percentage of care review in late 2019. This was exacerbated by difficulties in contacting the Department once the COVID-19 Pandemic struck in early 2020. She feared no one would believe her and was at a loss to understand how the father’s claims could be believed, when neither he nor his relatives had any personal knowledge of how Ms AA’s care was organised.

    Ms GR1’s Evidence

22. Ms GR1 adopted her latest statement dated 29 November 2022 as true and correct.[20] She said after the mother’s health deteriorated in 2016, they decided Ms AA would live with Ms GR1 during the week and attend a better school. This also allowed the mother to ‘prioritise her health’ when necessary.  Ms GR1 said the mother still lived at her residence with Ms AA for much of the time and she also drove Ms AA to the seaside rental for weekends and school holidays. There were times, however, where the mother stayed at the seaside rental by herself to recuperate. They did not record these dates because it was not apparent that they had to. Other aspects of Ms GR1’s oral evidence is summarised as follows:

    [20] Exhibit A1.

    (a)Ms GR1 denied the father’s claim that Ms AA had not lived with the mother since 2014. She said both the mother and Ms AA lived with her ‘their whole lives’ except for when the mother had the seaside rental, but they moved frequently between both residences. Ms GR1 said the seaside rental was intended to be a ‘short-term temporary arrangement’ until the mother’s health improved. In terms of decision-making for Ms AA, Ms GR1 stated:

    ‘Even when [the mother] was unwell, all decisions were run by her. I wouldn’t make them myself. I would never make any decisions without running them past [the mother]…I’m just the taxi’.

    (b)Ms GR1 said the mother struggled to lodge her objections when the percentage of care review was initiated in late 2019. Ms GR1 was unable to assist her as she normally did, because she took up a job in Tasmania during 2020 and did not return to Melbourne until 2021. She said the mother has an intellectual disability and other conditions for which she receives a DSP, which impacts her ability to deal with administrative or bureaucratic matters. Ms GR1 said that after she returned from Tasmania, she helped the mother lodge an objection to the Respondent’s decision, including by seeking support from Victoria Legal Aid.

    (c)Ms GR1 said she has always worked fulltime, loves her grandchild, and is happy to pay for anything the mother cannot afford. She does not expect to be reimbursed for every purchase, such as buying Ms AA a piece of clothing. They all go shopping together for groceries and other items, and the mother ‘regularly’ transfers money to Ms GR1 or reimburses her in cash for expenditure related to Ms AA. This includes contributions for school expenses, dance classes, and other costs. Ms GR1 stated by way of example: ‘I’d tell her your child needs shoes or money for school camps and she’d put it in’. Ms GR1 did not keep transaction records because she did not think it was necessary. Ms GR1 said she has never applied for benefits regarding Ms AA’s care, because the mother already receives this and has primary responsibility for Ms AA’s needs. Ms GR1’s oral evidence reflected her documentary evidence, which stated:

    ‘I did not consider myself as [Ms AA’s] primary carer. It did not cross my mind to apply for benefits as I merely saw myself as a support person who was helping out my daughter and granddaughter out of love. As such I did not apply for any payments because [the mother] was primarily responsible for supporting her own daughter financially and emotionally. [The mother] also told me she went into the Centrelink office…in 2016 and told them that [Ms AA] was going to school in Melbourne. She told them that during this time she would be staying with…[her] grandmother…when possible and returning weekends and school holidays to [the seaside rental]. Centrelink told her that was fine, and nothing would change.

    …[The mother] and I have had strong influence of Aboriginal culture in our lives where caring for extended family is reinforced in our daily living as providing stability and support.

    [The mother] grew up understanding that she could rely on extended family support and kinship care. I love my daughter and granddaughter dearly and will continue to provide them whatever care I possibly can as this is the foundation of our family unit.     

    (d)When asked by Ms Stoilkovska about three indicative bank transactions,[21] Ms GR1 could not specifically recall what each was for due to the passage of time, being roughly six years ago, but thought one $400 payment was from the mother ‘probably for food for all of us and [Ms AA]. She said there were many other payments from the mother apart from these. When asked if the father ever contributed financially beyond child support, Ms GR1 recalled one occasion when he gave Ms AA some spending money for an overseas trip, or perhaps for her birthday, but said this was rare and limited to special occasions.

    (e)Ms GR1 said a Statutory Declaration, signed by the mother when Ms AA came to live with her, was a precondition for Ms AA’s school enrolment. She said the mother was ‘extremely mentally unwell’ at this time but was nevertheless ‘mainly’ responsible for decisions about Ms AA’s care. Ms GR1 said she assisted with Ms AA’s school fees because she was in a better financial position than the mother. She said Ms AA and the mother were together much of the time, whether at the seaside rental or her home, so Ms AA could ‘ask her mother herself’ for most things.

    (f)Ms GR1 said Ms AA remained on her mother’s Medicare card and the mother made all medical decisions. Ms GR1 described her role as the ‘family taxi’ because the mother does not drive.

    (g)Ms GR1 denied she ever told the father, or the father’s relatives, that the mother kept child support payments for herself and that Ms GR1 was financially responsible for Ms AA’s care.

    [21] ASFIC, 10.

    The Father’s Evidence

1. The nub of the father’s evidence is that the mother ceased to be Ms AA’s carer[22] from 2014. He thought this was so because he never saw the mother when picking Ms AA up at Ms GR1’s home. Moreover, he does not believe the mother could have financially supported Ms AA after paying rent on the seaside rental and other living costs. He claimed Ms GR1 told him ‘on a number of occasions about receiving no financial support’ from the mother, including one time when she dropped Ms AA off at a family gathering. When asked what personal knowledge he had of the mother’s location over time, or the financial arrangements in place for the seaside rental, or care arrangements with Ms GR1, the father conceded he has ‘no knowledge’ of this.

   [22] The Assessment Act, s 7B(2).

2. The father’s documentary submissions dated 9 March 2023 are summarised as follows:

   (a)The father does not accept the mother was suffering a medical condition preventing her from seeking review of the AAT1 decision within the permissible timeframe. He contends that the location of the medical practice from where the mother sourced medical certificates and letters, supports a conclusion that she lived separately from Ms AA and was not supporting her ‘as the sole responsible guardian as she states’.

   (b)The father claims that the statutory declaration made by the mother for Ms AA’s school enrollment by Ms GR1, supports the conclusion that the mother was not Ms AA’s ‘legal guardian…and is not entitled to recoup [child support] payments’.

   (c)The father contends that, despite the mother’s and Ms GR1’s evidence at the hearing, the child support payments he made ‘dating back from 15/4/2016 have not gone to [Ms AA]’. He insists Ms GR1 was ‘sole guardian’ of [Ms AA].

   (d)The father contends that even if the mother ‘would sometimes give [Ms GR1] cash, this would not have contributed much to [Ms AA’s] private school education, textbooks and uniforms, clothing needs, extra-curricular activities, food, entertainment, transportation and accommodation’. He insists that Ms GR1 ‘has been the provider and responsible guardian for all of [Ms AA’s] needs. He further contends that the mother’s role as principal carer and primary point of contact for Ms AA, as detailed in a ‘Change of Details form’ dated 17/2/22, is relatively recent and ‘beyond the scope of the period to which the change of care decision regards [sic] (15/4/2016-6/2/2020)’.

   Evidence of Ms GR2

3. Ms GR2 said the father ‘never missed making a child support payment’ and claimed the mother and Ms GR1 had told ‘a lot of lies’. Ms GR2 said the basis of her claim that Ms AA was not living with or being supported by the mother is advice from her daughter in law, who works at a business near Ms GR1’s home and the school Ms AA attends. Ms GR2 claimed that Ms GR1 purportedly told this daughter-in-law, who was not called to give evidence at the hearing, that the mother did not contribute financially to Ms AA needs.

4. Ms GR2 claimed that she witnessed the father offering to pay his child support contributions to Ms GR1 instead of the mother at a family gathering. This was purportedly refused by Ms GR1 because the mother would ‘go off her head’. When asked whether she had any personal knowledge of when Ms AA was at the mother’s home or Ms GR1’s home, Ms GR2 said she did not, because she ceased any contact with Ms AA in approximately 2015, which is also the last time the father picked Ms AA up for visitation.

   CLOSING SUBMISSIONS

5. Closing submissions are summarised as follows:

   (a)Ms Stoilkovska said the mother continued to be the main decision-maker for Ms AA, irrespective of day-to-day living arrangements. She said no weight should be given to the claims made by the father and his relatives, because they had ‘no direct knowledge of what occurred’ between the mother, Ms GR1, and Ms AA. Ms Stoilkovska cited Allman v Setford[23] as apposite to this matter. She also emphasised that any delay in the mother formally objecting to the amended child support decision arose from special factors, including her intellectual disability and intermittent mental health issues, which made her feel overwhelmed. This was exacerbated by access issues during the COVID Pandemic and Ms GR1’s absence in Tasmania. It was only after Ms GR1 returned to the mainland, that the mother got the support she needed to lodge an objection. Ms Stoilkovska said denying the mother’s appeal because of this delay ‘would cause great hardship’, which was unwarranted.

   (b)Mr Noonan made closing submissions consistent with the RSFIC.

   (c)When invited to make closing submissions, the father re-stated his belief that PCJN gave ‘full custody’ of Ms AA to Ms GR1 in 2014 and ‘did not provide any financial assistance at all’. On that basis, he should not be expected to pay child support.        

   TRIBUNAL CONSIDERATION

   [23] Allman v Setford [2019] AATA 1197.

   Change in the care of the child? 

6. The Tribunal found Ms GR1 to be an honest, forthright, and persuasive witness. Aspects of the mother’s evidence, however, were inconsistent at times, resulting in the Tribunal warning her on several occasions about interjecting when others, including the father, gave evidence. The Tribunal accepts this may have been contributed to by conditions the mother suffers, as detailed in medical and other records. That said, key aspects of the mother’s evidence regarding the care of Ms AA were consistent with that of Ms GR1. In contrast, the basis of the father’s claim that Ms GR1 assumed full custody and financial responsibility for Ms AA since 2014 or 2015 came across as uncorroborated assertion at best. This is only reinforced by Departmental records where several requests for the father to provide evidence, did not elicit more than supportive assertions from his relatives.

7. The Tribunal accepts the father visited Ms GR1’s home to pick up Ms AA, but this was relatively infrequent. Neither he nor the relatives who support his version of events could have known where the mother was, or what financial and practical arrangements were agreed with Ms GR1 for Ms AA’s care. There is also no challenge to Ms GR1’s evidence that she never applied for benefits to support Ms AA, because the mother already received these and continued to perform the principal carer and decision-making roles. The father’s claim that both Ms GR1 and the mother told him and other relatives that child support funds were not being spent on Ms AA, was expressly denied by Ms GR1 and the mother. No reliable finding can be made about this.

8. The daily location of Ms AA or the extent to which the mother financially supported her is not determinative of level of care. As the Assessment Act makes clear at s 4(2)(a), ‘…the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support’. Ms GR1’s provision of school fees, for example, or the absence of financial transaction records between the mother and Ms GR1 to particularise who spent what on Ms AA, is frankly unexceptional. Keeping such records is not a normal feature of family interactions, particularly when the father’s claim about a change in the percentage of care was not made until approximately five years after Ms AA purportedly left the mother’s care.  In these circumstances, neither the mother nor Ms GR1 should be expected to recall, years later, where they or the child they cooperatively cared for spent their days of no marked significance during the preceding four years. The Tribunal is satisfied on the available evidence that the mother continued to make regular financial contributions for Ms AA’s care commensurate with her capacity to do so. In a financial or practical sense, there was no meaningful change in the care arrangements the mother provided – either from herself, or as she arranged with Ms GR1.

9. The persuasive weight of evidence supports a reliable conclusion that the predominant motivations for Ms AA residing at her grandmother’s home in 2016, rather than exclusively at the seaside rental, were two-fold: to best address Ms AA’s high school needs; and to give the mother space when she needed it to address her intermittent health issues. Ms AA nevertheless spent some weekends and school holidays from April 2016 at the seaside rental. On other occasions, when unwell, the mother stayed at the seaside rental by herself. At other times, the mother stayed with Ms AA at Ms GR1’s home. Throughout this period, and irrespective of location, the mother continued to be the primary decision-maker with overall responsibility for Ms AA’s needs. She provided an exclusive room for Ms AA’s use at the seaside rental and arranged accommodation with Ms GR1 for Ms AA during school weeks. She helped buy school uniforms and other clothing, organised or authorised health care services, contributed to school fees, and made the major supervisory decisions.

10. The Tribunal accepts the evidence of the mother and Ms GR1, that any legal authority provided to Ms GR1 in 2016 was as a prerequisite for Ms AA’s enrolment at a high school near Ms GR1’s home, rather than ceding the mother’s care responsibilities. Although Ms GR1 and her former partner routinely dropped off and picked Ms AA up from school, drove her to the doctor when required, and posted social media stories about their attendance at venues near Ms GR1’s home, this is unexceptional given that the mother does not drive and Ms GR1 was the ‘family taxi’.

    Special Circumstances?

11. The Tribunal accepts, based on the medical evidence and other records, that any delay in the mother challenging the Respondent’s amended care determination arose from several factors. This includes her intellectual disability, episodic periods of mental ill health, access issues arising from COVID-19, and Ms GR1’s relocation to Tasmania for a work contract. This meant the Applicant could not easily access her usual assistance from Ms GR1 whilst also maintaining care for Ms AA.

    Conclusion

12. The Tribunal is satisfied that special circumstances prevented the mother from formally lodging an objection to the amended care determination.[24] She nevertheless continued to object informally in communications with the Respondent and did not rest on her rights. It was only after Ms GR1 returned from Tasmania, however, that the mother was able to garner the necessary support to formally express her objection. On balance, it is appropriate to exercise the discretion at s 87AA of the Collection Act to extend the period in which the mother could lodge her objection to 16 December 2021.

    [24] The Act, s 43(6), read in conjunction with s 87AA(2) of the Collection Act, and cl 4.1.8 of the Guide.

13. There has been no meaningful change in the ongoing pattern of care for Ms AA within the meaning of the relevant legislation. This includes because of the cooperative, kinship practices between the mother, Ms GR1, and other family members. There was certainly no terminating event in April 2016 justifying a reduction from 100% to 0% percentage of care for the mother. She was not required to provide constant overnight care of Ms AA, or be solely financially responsible for Ms AA’s needs, to maintain a child support assessment that had been in place since January 2010.

14. The Tribunal is satisfied the mother never relinquished her role as primary carer and decision-maker for Ms AA’s best interests. Even after Ms AA went to live with Ms GR1 from April 2016, Ms GR1 made no claim for benefits, because she acknowledged the mother’s sole entitlement to these payments based on her overall responsibility for Ms AA. A key reason for the change in Ms AA’s accommodation arrangements in 2016 was to provide her with access to better schooling, which the mother reported to the Respondent as required. Any cooperative arrangement existing between the mother, Ms GR, and Ms GR’s former partner, or any financial or practical contribution made by Ms GR1 as Ms AA’s grandmother, is unexceptional and a continuation of the family kinship practices since Ms AA’s birth.

15. The Tribunal is satisfied that any financial or practical contribution made by Ms GR1 to Ms AA’s care were the loving acts of someone who wants the best for their granddaughter. The mother’s financial contribution was commensurate with her financial capacity. This should not be seen as a zero-sum-game, where the contribution of a grandmother diminishes that of the mother. Family interactions are not like that. The essence of Ms GR1’s evidence, which the Tribunal accepts, is that she provided delegated care[25] for Ms AA, which the mother organised. Arranging delegated care is still credited to the mother.[26]

    [25] Polec & Staker (2011) 253 FLR 339.

    [26] The Assessment Act, s 54F(3).

    DECISION

16. The Tribunal sets aside the decision under review, which is remitted to the Respondent for reconsideration with the following directions:

    (a)Special circumstances prevented the Applicant from objecting to the amended care percentage within the allowable timeframe. The Tribunal exercises the discretion at s 87AA(2) of the Child Support (Registration and Collection) Act 1988 (Cth) to extend the time for the Applicant to lodge her objection to 16 December 2021.

    (b)There was no terminating event on 5 April 2016 to justify a change in care percentages. The Tribunal revokes the Respondent’s decision dated 6 February 2020, which amended the percentage of care as of 5 April 2016 to 0% for both the mother and father.

    (c)Consistent with the care determination in place since 28 January 2010, the percentage of care has consistently remained at 100% care by the mother and 0% for the father.

    (d)The date of effect of this decision is 5 April 2016.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate

Dated:  17 March 2023

Dates of hearing:	16 February 2023
Advocate for the Applicant:	Ms Val Stoilkovski
Solicitors for the Applicant:	Victoria Legal Aid
Advocate for the Respondent:	Mr Tim Noonan
Other Party:	HPPG (in person)