PTBM and Child Support Registrar (Child support second review)

PTBM and Child Support Registrar (Child support second review) [2020] AATA 4970 (9 December 2020)
Division:GENERAL DIVISION
File Number:2019/6909

Re:PTBM
APPLICANT

AndChild Support Registrar
RESPONDENT

AndMDKS
OTHER PARTY

DECISION
Tribunal:Member S Barton
Date:9 December 2020
Place:Perth

The Tribunal affirms the Reviewable Decision, being the decision of the AAT1 dated
2 September 2019.
….............................[SGD]................................
Member S Barton
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988.
CATCHWORDS
CHILD SUPPORT – child support assessment – determination of percentage of care – lack of corroborating evidence – decision affirmed
LEGISLATION
Child Support (Assessment Act) 1989 (Cth) – ss 49, 50, 54A, 54B
Child Support (Registration and Collection) Act 1988 (Cth)
CASES
Parent A and Child Support Registrar and Anor [2013] AATA 562
Polec and Staker [2011] FMCAfam 959
SECONDARY MATERIALS
Family Support Guide – 2.1.1, 2.2.1
REASONS FOR DECISION
Member S Barton
9 December 2020
BACKGROUND

This is a review of a decision made by the Administrative Appeals Tribunal, Social Services and Child Support Division (the AAT1) dated 2 September 2019 (Reviewable decision).
The AAT1 affirmed the decision of an objections officer of Services Australia (the Agency) in relation to the percentage of care the Applicant and the Other Party had of their son (the child).
AAT1 Found that from 8 August 2016, the Applicant had 28% care of the child and the Other Party had 72%. The decision had effect for child support purposes from 1 December 2016, the date the Other Party made the application for child support.
FACTS
The Applicant and the Other Party are the separated parents of two children, however only the assessment regarding the child is the subject of this review.
The Other Party lodged an application for child support for both children on

1 December 2016. On 4 January 2017, the Agency accepted the application and registered a child support case, recording that the care of the child was 72% to the Other Party and 28% to the Applicant from 3 August 2016, effective for the purpose of child support assessment from the date of application.
On 28 February 2017, the Applicant objected to the decision, stating that the pattern of care changed from the beginning of December 2016 stating the child would reside with him the majority of the time.
The objections officer affirmed the original decision on 17 May 2017, however that the care period commenced on 8 August not 3 August.
The Applicant sought of review of this decision with AAT1 on 30 May 2019 and,
on 2 September 2019, AAT1 affirmed the original decision.
On 23 October 2019, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for a review of the decision.
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Wednesday 2 September 2020. The Applicant appeared by teleconference and was self-represented.
The Respondent was represented by Ms L Hinwood, who appeared by telephone.
The Other Party did not appear. They also did not appear when the matter was listed in

July 2020, resulting in that hearing being vacated and rescheduled. The Tribunal was satisfied the Other Party’s details were correct and they reasonably had the opportunity to attend.
The Tribunal admitted the following documents into evidence at the hearing:
(a)email from the Applicant titled ‘Review #2019/PC016638’ dated 28 July 2020 (Exhibit A1);
(b)statutory Declaration of [Ms M], signed 20 February 2020 (Exhibit A2);
(c)statutory Declaration of [Ms M], signed 22 August 2019 (Exhibit A3);
(d)Respondent’s Statement of Facts, Issues and Contentions, dated 15 May 2020 (Exhibit R1); and
(e)section 37 documents (T documents) numbered T1 to T68, comprising 270 pages, dated 20 December 2019 (Exhibit R2).
ISSUES
The issue before the Tribunal is what percentage of care the Applicant and the Other Party had of the child from 8 August 2016 to 7 August 2017.
LEGISLATIVE FRAMEWORK
The relevant legislation for this application is the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act). The policy relevant to this application is titled the Child Support Guide (the Guide)
Sections 49 and 50 of the Assessment Act provide for the determination of a percentage of care. Section 49 applies when a parent does not have a pattern of care for the child; if satisfied that a person does not have a pattern of care for the child, the Registrar must determine the percentage of care to be zero.
Section 50 applies when the Registrar is satisfied that a person has, or is likely to have,

a pattern of care during a care period. The Registrar must then determine the responsible person’s percentage of care for the child during the care period, which corresponds to the actual care the responsible person provided, or is likely to provide, to the child during the care period.
Section 54B of the Assessment Act provides that, if a determination of a responsible person’s percentage of care for a child is made, a percentage of care applies to each day in a child support period on and from the application day.
The Assessment Act uses phrases such as pattern of care, percentage of care and care period, which are discussed below.
PATTERN OF CARE
The Assessment Act does not give any special meaning to the phrase ‘pattern of care’. These terms have previously been considered by the Tribunal, notably by Member Webb in Parent A and Child Support Registrar and Anor [2013] AATA 562 at [33]
… A pattern of care may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situation, on which the prediction of successive or future events may be based. While these features may be necessary to establish a pattern of care, to my mind, in the wide variety of circumstances that may arise between parents in respect of care for children, especially where communication is afflicted by conflict and reason may be upset by emotional turmoil, room should be given for flexibility in the arrangement of care for children. In other words, the pattern looked for is not one characterised by precise conformation of detail, day by day, or by unbending regularity. Some accommodation may be expected for vicissitudes of circumstance in the care of a child, although the extent to which a pattern of care may bend or flex to accommodate variation is a matter to be determined in the facts and circumstances of each case.
A pattern of care is taken to be a regular rhythm of care provided by the responsible persons which, nonetheless can experience some occasional changes and variation due to the respective circumstances of the child and the responsible persons.
PERCENTAGE OF CARE
Section 54A provides guidance on working out actual care and extent of care, of a child.
It states that,
(1) The actual care of a child that a person has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period.
(2) The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, under the care of the person during the care period under the care arrangement.
(3) For the purposes of this section, a child cannot be in the care of more than one person at the same time…
The Guide, at 2.1.1, provides further guidance:
Determining whether care exists
…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.
The Tribunal is also mindful of the concept of care as discussed in the case of
Polec v Staker and Another [2011] FMCAfam 959 at [56]. In addressing the extent to which a person has care of a child, Hughes FM found it was necessary to consider the following:
(a)to what extent does the person meet the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extracurricular activities?
(b)to what extent does the person make arrangements for others to meet the needs of the child?
(c)to what extent does the person pay for the costs of meeting the needs of the child?
(d)to what extent does the person otherwise provide financial support for the child?
(e)to what extent does the child provide for his or her own needs or have those needs met from another source?
(f)to what extent is the child financially independent or financially supported from another source?
CARE PERIOD
At 2.2.1, the Guide states that:
A care period is the period over which care is assessed to determine the care percentages for each parent or non-parent carer. A care period is generally a
12-month period from the day on which the actual care of a child began or changed (the date of event).
The care period under consideration is 8 August 2016 to 7 August 2017.
BACKGROUND
As detailed above, the Other Party submitted an Application for Child Support Assessment on 1 December 2016. In the application she stated that her and the Applicant were divorced on 14 July 2016 and that their first date of separation after living together was 15 January 2015 (Exhibit R2, p 41).
With respect to the care arrangements for the child, she stated there was no parenting plan or court order for care and, that since 3 August 2016, the child was in her care 80% of the time and 20% in the care of the Applicant (Exhibit R2, p 46).
On 8 December 2016, the Applicant advised the Agency that he disputed the care and he was told to provide the Agency with what he believes the care arrangements were by

12 December 2016 (Exhibit R2, p 54). The Applicant did not provide that information by that date and, on 19 December 2016, the Agency sent him a letter requesting he provide evidence to support his claim regarding the level of care. The Agency gave a deadline of

2 January 2017 for the provision of that email or they would make a decision based on the information available (Exhibit R2, p 63).
The Agency file note records its discussions with the Applicant stating:
- up until two weeks prior to the application being made the care was 50/50 - one week on one week off. [The Applicant] advised that the care currently changes week to week and that there is no set arrangement in place, however he believes that he has at least 35% care of the boys. [The Applicant] was requested to provide evidence of the care by the 02/01/2017, however no care evidence was provided along with no confirmation of what he believed the actual care to be.
(Exhibit R2, p 68)
The file note further records,
There was NO evidence supplied by either parent resulting in the decision being made based on what information that had been provided by [the Other Party]. [The Applicant] has objection rights.
(Exhibit R2, p 68)
On 4 January 2017 both parties were advised of the child support assessments for the period 1 December 2016 to 28 February 2018 and the amount payable by the Applicant to the Other Party (Exhibit R2, p 69-71). The Child Support Assessment detailed a percentage of a care for the child of 72% for the Other Party and 28% to the Applicant (Exhibit R 2, p 74).
On 30 January 2017, the Agency wrote two letters to the Applicant regarding an acceptance of his income status and a request to reduce Child Support payments (Exhibit R2, p 83-84). The Tribunal notes this only insofar as it demonstrates the Applicant’s ability to communicate with the Agency in a timely fashion and to provide evidence to support a contention.
On 28 February, the Applicant objected to the Child Support Assessment, advising the Agency that there has been changes to the pattern of care provided since

1 December 2016, stating that he had the child for 21 nights in December 2016, 21 nights in January 2017 and 23 nights in February 2017.
It is noted that the Applicant lodged his objection more than 28 days after the decision on

4 January 2017. The Agency allows a 28-day period for objecting to an assessment from the date of the advice. The Tribunal notes that the correspondence to the Other Party outlined this requirement, however the letter to the Applicant did not (Exhibit R2, p 71, 69). In any event, the late objection made by the Applicant was accepted by the Agency.
On 17 May 2017, the Agency wrote to the Applicant detailing its decision regarding his objection. The Agency found that the care period commenced not on 3 August 2016, but on 8 August 2016, when the Other Party moved from her mother’s home into her own place (Exhibit R2, p 163). The care period was revised to 8 August 2016 to 7 August 2017.

The Agency made no changes to the percentage of care, stating that the Other Party provided 72% care and the Applicant 28% (Exhibit R2, p 157).
The objections officer, in the details of the objection decision provided to both parties, recorded that:
Both parties have provided dates of the care they provide from 1 December 2016 and some of those dates are in dispute. [The Applicant] has stated he had extra care over the school holiday period and [the Other Party] confirmed [the Applicant] did have extra care during the school holidays. However for the purposes of this objection I need to consider what was in place for the new care arrangement for [the Child] on 1 December 2016. If there were later changes to the care then a new care determination needs to be made.
From the information provided by both [the Applicant] and [the Other Party]
it appears there were no specific arrangements for school holiday care and it was dependent on whether [the Applicant] would be having time off over Christmas and January 2017. [the Applicant] confirmed he did have time off over Christmas and January so then kept [the Child] in his care. This information indicates there was no set arrangement for school holidays and this care occurred on an ad hoc basis.
[The Other Party] has consistently stated the care pattern was five nights to her and two nights to [the Applicant]. [The Applicant] has advised three different patterns/percentages of care and it is possible he could be at times referring to care that has occurred after 1 December 2016. [The Applicant] has confirmed there was a care arrangement of nights per week and two nights per week to him.
Therefore on the information available we are satisfied there was a pattern of care of five nights to [the Other Party] and two nights to [the Applicant]. We are not satisfied there was an arrangement for school holiday care. Therefore we calculate the care as follows:
52 weeks x 2 nights per week+ 104 nights care per year or 28%
Based on this information we are satisfied [the Other Party] provides 72% of care and [the Applicant] provides 28% care of [the Child] from 8 August 2016.
(Exhibit R2, p 164).
The Applicant sought of review of this decision by AAT1 nearly two years later on

30 May 2019. The Tribunal notes this is considerably greater than the 28 days allowed for an application for a review of a decision.
CONSIDERATION
In Child Support matters, there can be contradictory accounts put forward by both parties relating to care and scant evidence to support the various contentions. In this matter there are conflicting accounts and limited recourse to supporting evidence. The Tribunal was also not assisted by the Other Party, as detail above, by not attending the hearing.
In conversations with the Agency, the Applicant has stated he kept a record since

1 December 2016 and his dates are ‘100% accurate’ (Exhibit R2, p 148). He also made this point in his application for a review of AAT1 (Exhibit R2, p 2). These records are not available to the Tribunal nor does it seem they were provided to the objections officer.
The Applicant provided a statutory declaration from [Ms M] dated

22 August 2019, stating:
I have known [The Applicant] since February 10th 2016.
I see [The Applicant] three to four times a week and I can declare that [the Applicant] has [the Child] in his care every second week from Thursday to Wednesday.
[The Applicant] also has [the Child] during most school holidays. I have dinner quite often with [the Applicant] and [the Child] (Exhibit A3).
[Ms M] provided a further statement on 20 February 2020, reiterating the points made in her first statutory declaration (Exhibit A2).
The Tribunal notes there is also a statutory declaration from the Applicant’s brother dated 22 August 2019, which states that he has lived with the Applicant since September 2017 and that the Child stays from Thursday to Wednesday.
The Applicant did not take the opportunity to call as witnesses those individuals who had previously provided statements to the Agency. Moreover, it is unclear whether the patterns of care described in the statements falls substantially within the care period.
The Applicant also provided a number of undated text messages between him and the other Party (Exhibit R2, p 237-245). When asked if there were any particular text messages,
he wished to draw the Tribunal’s attention to, the Applicant responded,
Off the top off my head right now, I’m not quite sure but basically they were there to just show how inconsistent, you know – MDKS’s meant to be in [the Child’s] care but she’d say can you pick him up from school, you know, so I would and then, can you have him for the next couple of days and I’ll, you know, a lot of that was going on and it was always – so in the end instead of her having him, you know, for the week or 50 per cent, she’d probably only have him 30 per cent or 40 per cent of the time. So basically this is exactly what I was trying to do. To show you that the inconsistency of MDKS, what she’s saying, her dates, it’s all over the place.
She never kept proper dates and that what I was saying was true and correct.
That’s basically what it was all about. To get you guys just to get on my side and to see where I’m coming from. That’s what those text messages were all about.
The Applicant had difficulty in conveying the nature of the care he provided during the care period under discussion. He did not limit his discussion to the care period, but rather focused on the entire period following the breakdown of the marriage. He told the Tribunal,
Yes, look, there’s lots of dates flying around there and it’s hard to sort of keep a track of them all but basically I had my kid most of the time since the first date that you’ve received in 2016 and my ex - that’s - I mean she’s not here and this is the third time now that she hasn’t picked up the phone but she’s lied the whole time and tried to manipulate and change things around and it’s taken, you know, a long time, four years, in fact, for me - for me to get to this point and, hopefully, you know with all the stuff that’s going on you can - you can see through her lies and change of dates and trying to make it work to her favour that - basically I just want to say that, you know, I’ve sort of put down the 50 - 50 per cent but I’ve had my kids way more than that but it was just such a hard thing to - to get you guys to - to listen to what I had to say…
… It’s just not nice when you’ve had your children nearly 100 per cent of the time and then someone turns around and says you’ve only had them 28 per cent of the time…
…When MDKS left I had the kids 100 per cent of the time... Then all of a sudden, you know, six months down the track she’s decided that she’s going to, you know, she needs money or whatever so she’s put in these things to you guys. These false statements and that’s why she hasn’t picked up the phone….
…It’s always her that has changed the date. We’ve never agreed on a date.
We never wanted to go down that path of getting lawyers in and you have the child, this and that, we just said look, we’ll look after the kids as best we can and I’ve had them most of the time and I get my parents to vouch, I can get my family, you name it.

The Applicant’s fundamental contention is that he had more than 28% care of his Child during the period and there were inconsistencies with the dates provided by the Other Party.
The Other Party provided a statement from her sister, dated 5 January 2017, who stated that the Child resides with the Other Party and is picked up after school on Tuesdays by the Applicant and spends Wednesday night with him (Exhibit R2, p 80).
The Other Party’s mother provided a statement dated 5 January 2017, which said the Applicant and her two children stayed with her until 8 August 2016, when the three of them moved to a rental property. According to her statement, the Child stayed with the Applicant one night a week, a pattern in place for terms three and four in 2016 (Exhibit R2, p81).
As previously stated, the Other Party did not attend the hearing and so there was no opportunity to call witnesses or for them to be tested by the Tribunal. The Other Party’s failure to attend the hearing or to provide submissions was most unfortunate and undermined the Tribunal’s ability to gain a fuller picture of the percentage of care during the care period
There are substantial and irreconcilable conflicts in the statements made by both parties. Nevertheless, there are some points seemingly not in contention. It can be agreed that the parties do not have an agreed arrangement for the care of the Child, the care could be fluid and the Applicant had increased care during the holiday period. In dispute, is the percentage of care before and after those holidays during the care period.
It is possible that the Applicant had a greater percentage of care than 28% during the care period. However, aside from the Application’s assertions, there is no evidence before the Tribunal that would reasonably allow it to form that view. The witnesses who provided the statutory declarations were untested by the Tribunal and it is not clear if the pattern of care they described is in the relevant period.
It is clear that the Applicant takes an interest in the welfare of his children, however, aside from tangential references to school and tennis training, there was very little before the Tribunal that might assist in developing a picture of the broader context of care as outlined by Hughes FM in Polec v Staker and Another [2011] FMCAfam 959.
The Applicant has had amble opportunity, in both his dealings with the Agency and more later the Tribunal, to furnish evidence to support his contentions. He has not done so.
As noted by the objections officer,
[The Other Party] has consistently stated the care pattern was five nights to her and two nights to [the Applicant].
There were clear variations to this pattern, notably over the Christmas holiday period and in March. However, this is the only consistently stated pattern of care in the evidence provided to the Tribunal.
This consistency with respect to the pattern of care, must be given greater weight than imprecise assertions and contentions that are not accompanied by evidence.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 2 September 2019 is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member S Barton

..................................[SGD]..................................
Associate
Dated: 9 December 2020

Date of hearing:

2 September 2020

Applicant:

Representative for the Respondent:

Self-represented

L Hinwood

Solicitors for the Respondent:

Services Australia

[2020] AATA 4970

9 December 2020

Key Legal Topics

Areas of Law

Administrative Law

Family Law

Legal Concepts

Appeal

Procedural Fairness

Statutory Construction