PYVW and Child Support Registrar (Child support second review)

[2021] AATA 3978

PYVW and Child Support Registrar (Child support second review) [2021] AATA 3978 (29 October 2021)

Division:GENERAL DIVISION

File Number:          2020/2724

Re:PYVW

APPLICANT

AndChild Support Registrar

RESPONDENT

AndVBMK

JOINED PARTY

DECISION

Tribunal:Member Dr J Henderson

Date:29 October 2021

Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 9 April 2020, is set aside. In substitution the Tribunal decides:

(a)The existing percentage of care determination is revoked;

(b)From 17 December 2018 the Applicant is determined to have provided 94% care and the Other Party is determined to have provided 6% care of the child; and

(c)The application day is 17 December 2018.

............[Sgd]............................................................

Member Dr J Henderson

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 – percentage of care – whether there was a change in care – whether existing determination of care should be revoked – actual care – extent of care – inconsistent evidence – conflicting evidence – inconsistent dates provided by the Other Party – no pattern of care – decision under review set aside and substituted

LEGISLATION

Child Support (Assessment) Act 1989 (Cth) ss 5(2), 49, 50, 54B, 54F, 54FA, 54G, 54H

Child Support (Registration and Collection) Act 1988 (Cth) ss 16(2AB), 16(2AC)

CASES

P v Child Support Registrar [2012] FCA 1398

P v Child Support Registrar [2014] FCAFC 98

Parent A and Child Support Registrar and Anor [2013] AATA 562

Polec and Staker (2011) 253 FLR 339

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

SECONDARY MATERIALS

Guides to Social Policy Law: Child Support Guide – Chapter 2.2.1

REASONS FOR DECISION

Member Dr J Henderson

29 October 2021

THE APPLICATION

1. The Applicant is the mother and the Other Party (OP) is the father of a child born in 2003.

2. In this application the Applicant is seeking review of a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (Tribunal), made on 9 April 2020 (AAT1 Decision), in the General Division of the Tribunal (AAT2).

   BACKGROUND

3. The Applicant and the OP are the separated parents of the child.

4. A child support case was first registered on 17 February 2003, with the Applicant as the receiving parent and the OP as the paying parent (T24/213).

5. Subsequently, on 8 November 2018, the assessment was amended such that the OP was the receiving parent and the Applicant was the paying parent (T4/34). The Child Support Agency (Agency) determined on that date that each parent’s care of the child had changed from 22 August 2018, with the Applicant having 0% care of the child and the OP having 100% care (T5/35).

6. On 9 November 2018, following receipt of information from the Family Assistance Office (FAO), the Agency determined that:

   (a)the Applicant was no longer liable to pay child support to the OP from 8 October 2018 (T6/47); and

   (b)consistent with the earlier decision made by the FAO, that from 8 October 2018, the Applicant had 72% care of the child and the OP had 28% (T7/51).

7. On 27 February 2019, the Applicant contacted the Agency, advising that from 17 December 2018 she had 94% care of the child and the OP had 6% care (T23/188).

8. On 26 June 2019, the Agency decided not to change the percentages of care (T14/83) (Original Decision). Effectively, the existing care percentage determination remained unchanged, being that the Applicant had 72% care of the child and the OP had 28%.

9. The Applicant completed an ‘Objecting to a Child Support decision’ form dated 30 June 2019, which was received by the Agency electronically on 9 July 2019 and by post on 29 July 2019 (T15/85, Registrar’s Statement of Facts, Issues and Contentions para [10]).

10. On 2 January 2020, an objections officer allowed the objection and accepted the Applicant’s request to change the child support assessment from 17 December 2018 (T20/116). In effect, the objections officer revoked the existing care percentage determination and recorded the percentage of care for the child as 94% to the Applicant and 6% to the OP from 17 December 2018 (Objection Decision). The Objection Decision had effect for the purposes of the child support assessment from 17 December 2018 because the objections officer was satisfied that the Applicant notified the Agency within a reasonable timeframe that the OP’s care had ‘fallen below regular care’, despite the child being made available to him.

11. The OP sought review of the Objection Decision by the AAT1. On 9 April 2020, the AAT1 set aside the Objection Decision and substituted it with the decision that there was no change in care on 17 December 2018 (T2/10). In other words, the AAT1 reversed the Objection Decision and restored the existing care determination, and subsequently the Original Decision (AAT1 Decision). This is the Reviewable Decision before the Tribunal.

12. On 8 May 2020, the Applicant applied to the AAT2 for review of the AAT1 Decision (T1/1).

    ISSUES FOR DETERMINATION

13. The issues currently before the Tribunal are:

    (a)Firstly, should the existing care determination be revoked, that is the determination that was made on 9 November 2018, that the Applicant had 72% care of the child and VBMK had 28% care.

    (b)If the existing care determination is revoked, it will be necessary for the Tribunal to consider from what date the determination should be revoked and what percentage of care the Applicant and the OP each have, or had, of the child from that date. 

    (c)If the Tribunal varies or sets aside the decision under review, it will also need to consider the date from which its decision should have effect for the purposes of the child support assessment.

14. The Tribunal notes that if, and only if, it is established that the AAT1 Decision should be revoked and replaced, that the remaining issues fall for consideration.

    LEGISLATIVE FRAMEWORK

15. The relevant legislation is contained within the Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act).

16. The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). While the Tribunal is not bound by law to apply the Guide, it should have regard to it and follow it unless there are cogent reasons not to do so (see P v Child Support Registrar [2012] FCA 1398 at [3] and Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    Determination of percentage of care

17. Sections 49 and 50 of the Assessment Act set out when a determination of percentage of care must be made. In determining a percentage of care under these sections, the Registrar is to be satisfied that the person has no pattern of care or a pattern of care that the Registrar considers to be appropriate having regard to all the circumstances (ss 49(1)(a) and 50(1)(a)).

18. Where a percentage of care determination has been made under s 49 or s 50 of the Assessment Act in respect of a particular care period, a new percentage of care determination cannot be made unless the existing percentage determination is revoked (Subdivision C of Division 4 of Part 5 of the Assessment Act).

19. Subdivision C of Division 4 of Part 5 of the Assessment Act provides for the circumstances where the existing care determination must be revoked and where the existing care determination may be revoked. Relevantly:

    (a)Section 54F of the Assessment Act provides that the existing care determination must be revoked if there is a change to the responsible person’s costs percentage. Section 54F states:

    (1)The Registrar must revoke a determination of a responsible person’s percentage of care (the existing percentage of care) for a child made under section 49 or 50 if:

    (a)the Registrar or Secretary is notified, or otherwise becomes aware, that the care of the child that is actually taking place does not correspond with the responsible person’s existing percentage of care for the child; and

    (b) the Registrar is satisfied that the responsible person’s cost percentage for the child would change if the Registrar were to determine, under section 49 or 50, another percentage to be the person’s percentage of care for the child; and

    (c)       section 54G does not apply …

    (b)Section 54G of the Assessment Act provides that the existing care determination must be revoked where, under the new care percentage determination, one of the parents who was previously assessed to have at least regular care of the child is now determined to have less than regular care of the child despite the child being made available to them by the other parent. In this context, regular care is defined to be at least 14% of the care of the child (s 5(2) of the Assessment Act).

    (c)Section 54H of the Assessment Act provides that the existing care determination may be revoked if the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is actually taking place; the Registrar is satisfied that a new percentage of care determined under s 49 or s 50 would not be the same as the person’s existing percentage of care; and s 54F, 54FA and 54G of the Assessment Act do not apply.

20. If the Tribunal is not satisfied that any of the above sections apply, the existing care determination cannot be revoked and will continue to apply.

21. If the Tribunal is satisfied that the existing care determination should be revoked, a new care determination will need to be made in accordance with s 49 or s 50 of the Assessment Act. This requires the Tribunal to determine the respective percentages of care that each parent had of the child. The respective care percentages must correspond ‘with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period’ (ss 49(3) and 50(3) of the Assessment Act).

    Pattern of care

22. To make a determination of percentage of care in accordance with s 49 or s 50 of the Assessment Act, it is first necessary for the Tribunal to decide whether there is a ‘pattern of care’ within a care period.

23. The Tribunal considered the meaning of the term ‘pattern of care’ in Parent A and Child

    Support Registrar and Anor [2013] AATA 562 and said at [33]:

    The phrase ‘pattern of care’ is not given any special meaning for the purposes of the Assessment Act. Having regard to the text of ss 49 and 50 of that Act, and the content and purposes of Subdivision B of Division 4 of Part 5, the phrase can be interpreted according to its ordinary meaning. A pattern may be construed to mean a regular and intelligible form or sequence discernible in certain actions or situations, 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 the 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. This interpretation is consistent with the Guide, which provides that minor departures from the normal care of the child will not constitute a change to the pattern of care.

24. Section 49 of the Assessment Act applies where a parent does not have a pattern of care for a child. This section requires that where the Registrar is satisfied that a person does not have a pattern of care during a care period for a child in relation to whom an assessment is to be made, the Registrar must determine the responsible person’s percentage of care for the child during the care period and that percentage of care must be determined to be 0% (unless s 51 applies). As the Applicant and the OP agree that both parents had some care of the child during the relevant period, s 49 will not apply in the present case.

25. Section 50 of the Assessment Act applies where a parent has a pattern of care for a child. This section requires that where the Registrar is satisfied that a person has a pattern of care during a care period for a child in relation to whom an assessment is to be made, the Registrar must determine the responsible person’s percentage of care for the child during the care period, based on the actual care of the child that the responsible person has had, or is likely to have, during the care period.

26. A ‘care period’ does not have any fixed duration. The Guide provides that ‘a care period is generally a 12-month period from the day on which the actual care of a child changed’ (at [2.2.1]). However, the Guide goes on to note that ‘there are some circumstances where determining the care over a shorter or longer care period may be more appropriate. The Registrar will consider the specific circumstances of each case to determine the appropriate care period’.

27. The Objection Decision found that care of the child changed from 17 December 2018, being the date identified by the Applicant as the date that care changed (T20/116). The Registrar does not make any contentions as to whether this is the appropriate commencement date of the care period in this matter.

28. Regardless of the length the Tribunal considers appropriate for the care period, the relevant care period is now in the past, and as such the Tribunal is required to determine the actual care that occurred during the relevant period. The relevant care period in this matter is from 17 December 2018 to 16 December 2019 (T20/121).

    Percentage of care

29. The Tribunal must determine the percentage of care that the Applicant and OP had of the

    child during the relevant care period, and this must correspond to actual care.

30. Chapter 2.2.1 of the Guide provides the following guidance on determining whether care exists:

    Determining whether care exists

    An object of the CSA [Child Support (Assessment)] 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:

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

    o    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.

31. Section 54A of the Assessment Act provides guidance on working out the actual care and extent of care of a child:

    (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. SOFIC/08/2020

    (2)The extent of care of a child that a person should have had, or is to have, under a care arrangement during a care period may be worked out based on the number of nights that the child should have been, or is to be, in the care of the person during the care period under the care arrangement.

    (3)For the purposes of this section, a child cannot be in the care of more than one person at the same time.

    (4)This section does not limit section 50, 51, 53B or 54.

32. The Registrar contends that an approach based on s 54A of the Assessment Act is open to the Tribunal in the present case. However, the Registrar noted that the courts have held that the concept of ‘care’ is broader than simply the provision of accommodation on any given night, and that percentage of care does not necessarily need to be determined by reference to a time based calculation: (see Polec and Staker (2011) 253 FLR 339, at [56]; and P v Child Support Registrar [2014] FCAFC 98, at [47]).

33. The Tribunal will be required to reach findings of fact on the percentages of care the Applicant and OP had of the child in the present case, on the basis of the evidence before it.

    Application of a determination to a child support period

34. Section 54B effectively provides that, if a determination is made in relation to percentage of care, the determination will apply to each day in a child support period on and from the ‘application day’ until the determination is revoked. In the context of this case, if the determination is revoked under s 54G, the application day refers to the day on which the parent ceased to have the previously established pattern of care. If the determination is revoked under a different provision, the application day refers to the day immediately after the revocation of the existing determination.

    PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL

35. The hearing was held on 12 August 2020 at the Tribunal Registry in Perth. The Applicant appeared by telephone and was self-represented before the Tribunal. The Registrar was represented by Ms L Hinwood, who also appeared by telephone. The Other Party did not participate in the hearing, with the Tribunal Registry’s attempts to contact him being unsuccessful.

36. The Tribunal admitted the following documents into evidence:

    (a)Applicant's Submissions attaching a bundle of evidence dated 28 June 2020 (Exhibit A1);          

    (b)Handwritten Statement of [name redacted] (undated) filed with the Tribunal on 29 June 2020 (Exhibit A2);

    (c)Two letters from the Applicant’s mother dated 12 September 2019 and 30 April 2020 (Exhibit A3); and

    (d)Section 37 T-Documents, labelled T1-T24, consisting of pages 1-231 (Exhibit R1).

    The Applicant’s evidence

37. At the hearing, the Applicant gave the following relevant evidence:

    (a)The child had been spending time with the OP on Wednesdays and every second weekend. 

    (b)The child went with the OP to Bali for a four-day holiday and stayed with his father overnight on his return to Perth. On 17 December 2018 the child returned to the Applicant and did not have further contact with the OP in person until 26 December 2018. The Applicant later revised her evidence to say that the child “did spend one day prior to, it would have been the 23^rd, with his father… Boxing day for sure” (transcript/19).

    (c)17 December 2018 was the last time the child had spent time with the OP pursuant to the regular agreed dates. 

    (d)After 26 December 2018, the parties did not go back to the regular pattern of Wednesdays and every second weekend. The Applicant made the following comment about attempts to resume the Wednesday visits (transcript/11):

    … there was a period where he did attempt to make some Wednesdays, however, it was sporadically. It was Wednesdays ‑ like, he could have had him any other day, which was fine, but he would choose Wednesdays when he was available. But in saying that, he was not available very often. It would be very sporadic. And he would go away to work a lot, which I understand, however, the evidence that he provided conflicted even with dates he said he had [the child], which his itinerary shows he was not even in the state. And at times in the country when he claimed to have him. To the best of the benefit for the tribunal, I’d say, yes. So it did cease dramatically until I think it ceased entirely sometime during the year when [the child] just did not even go to his father’s anymore.

1. During the hearing, the Tribunal took the Applicant to dates that the OP had provided to the Registrar on 15 April 2019, that the OP claimed the child had spent in his care. The Applicant was invited to provide evidence as to whether any of those dates were incorrect (transcript/13).

2. The Applicant took the Tribunal to itinerary evidence showing that the OP was in Queensland on dates that included 13, 16 and 20 March 2019 (transcript/18). The OP claimed that the child had spent the mentioned dates with him. The AAT1’s finding that the child did not spend 13, 16 or 20 March 2019 with the OP, is supported by that evidence. The Tribunal finds that the child did not spend 13, 16 or 20 March 2019 with the OP, contrary to his assertion to the Registrar.

3. The Applicant was unable to point to any further evidence of any particular days on which the OP had wrongfully claimed that the child was staying with him. It was apparent that she did not recall any of the events of the particular dates. The Tribunal does not draw any adverse inference from the Applicant not recalling events that occurred more than two years ago.

4. The Applicant did recall that the child had stopped spending time with the OP by April 2019. She described the child as a ‘home body’ who would ‘usually just be in his room’ and said that he was around the home in April 2019 (transcript/21). The Tribunal notes the certainty with which the Applicant recalled April 2019, as around this time she celebrated the life of her partner; it was his birthday in the first year after he committed suicide. The Tribunal finds it credible that the Applicant’s recollection of April 2019 is clearer than other times she was questioned about.

5. The Applicant conceded that after April 2019 there was a period when the OP was trying to have Wednesday nights with the child again, but on an irregular basis. She stated (transcript/21):

   There was a period where he was, perhaps, I’d say picking up, like, trying to do the Wednesday thing again. But he was, like, say a Wednesday and then maybe two Wednesdays go past, he’d go another Wednesday. And even sometimes he might mike [sic] it Thursday. So he did ‑ I do believe he did try, he made attempts to make for when he was gone. And there would be, like, a weekend. Because by this stage, there was ‑ see, [the OP] would not hand over [the child’s] passport, because [the child] was not staying there no more, and [the child] needed it to enable to get his licence. However, [the OP] had his birth certificate and would then go and get his licence without telling me actually had ID. However, he asked me for [the child’s] passport, which I proceeded to give him and to give them that chance, and he never returned it. So when it came to [the child] going onto studying, I needed some evidence of [the child’s] birth. So I proceeded to get the passport from him, and it would have been around, yes, around May. May/June. And we just couldn’t get it, and he didn’t see his dad in that period.

6. The Tribunal found the Applicant to be an honest witness, who was genuinely trying to recall the dates that the child had spent with the OP to the best of her ability. However, the Tribunal finds that, with the exception of April 2019, the Applicant’s memory is not reliable.

   Other Party’s Evidence

7. The OP provided the following written evidence:

   (a)Email dated 23 April 2019, with attachments (T11); and

   (b)Application for First Review dated 17 February 2020, with attachments (T22).

8. The OP did not appear at the hearing. The Tribunal has noted the evidence provided by the OP to the Tribunal in the AAT1 Decision.

   CONSIDERATION

9. Neither party contends that there was a written agreement, court order or parenting plan in the relevant period. The Tribunal is required to consider the percentage of care based on actual care.

10. The parties agree that there were changes to the usual care arrangement in December 2018 and February 2019. The Applicant says that there was a significant drop in care by the OP and the usual pattern did not resume. 

11. The OP’s position seems to be that there was a disruption to the usual pattern of care in February 2019, but that it initially applied to the time he spent in Queensland in February to March 2019. There were other work trips in 2019 that also disrupted the previous arrangement. The OP admits that he did not communicate with the Applicant about this disruption, its anticipated duration, or the possible need for future disruptions to the usual arrangement to accommodate his work trips.

12. The records reflect that:

    (a)On 13 March 2019, the OP advised the Registrar that he did not have records on hand of his precise care during the previous December, January or February (T20/119). 

    (b)On 10 April 2019, the Applicant advised the Registrar that the OP had only had care on 11 nights since December 2018, and provided the following dates (T20/119):

    (i)13, 14, 15, 16, 26 December 2018;

    (ii)2, 3, 18 January 2019;

    (iii)2, 3 February 2019;

    (iv)23, 27 March 2019; and

    (v)3, 10 April 2019.

    (c)On 15 April 2019, the OP advised that he had overnight care of the child on the following dates:

    (i)10, 11, 12, 13, 14, 15, 16, 17, 22, 23, 26 December 2018;

    (ii)2, 4, 5, 16, 18, 19, 23, 30 January 2019;

    (iii)1, 2, 6, 16, 22, 23 February 2019;

    (iv)1, 2, 6, 13, 15, 16, 20, 27, 29, 30 March 2019; and

    (v)3, 10, 12, 13 April 2019.

13. At stated above, the OP was in Queensland from late February to early March and it is not disputed that the child did not go with him, therefore, at least three of the dates in [49] above are not correct.

14. The Tribunal notes that the OP advised the Registrar on 15 April 2019 that the dates 10 to 16 December 2018 had comprised “8 nights as on holiday with dad” (T23/195). That assertion is not consistent with the itinerary contained in the evidence showing the duration of the trip was 13 to 17 December 2018. The itinerary is consistent with the Applicant’s evidence that the child spent five nights with the OP over that period, although the Tribunal notes that the Applicant was under the impression that only four of those nights were spent in Bali, and the final night was spent at the OP’s home.

15. It is not clear why the OP did not consult the itinerary to refresh his memory on the Bali dates before giving them to the Registrar. Nor is it clear why the OP provided incorrect dates of contact in March. The Tribunal finds it unlikely that the OP had genuinely forgotten his trip to Queensland only a month after his return. In the circumstances, the Tribunal is reluctant to accept the OP’s assertion that the child spent any of these dates in the care of the OP without some corroborating evidence.

16. The Tribunal notes the itinerary evidence showing that the OP travelled in and out of Queensland on the following dates (T22/161-173):

    (a)Perth to Brisbane departing at 12:50pm on Sunday 17 February 2019;

    (b)Brisbane to Perth arriving at 9:55pm on Friday 22 February 2019;

    (c)Perth to Brisbane departing at 12:50pm on Sunday 24 February 2019;

    (d)Brisbane to Perth arriving at 12.15am on Wednesday 27 February 2019;

    (e)Perth to Brisbane departing at 12:50pm on Sunday 3 March 2019;

    (f)Brisbane to Perth arriving at 11:55pm on Friday 8 March 2019;

    (g)Perth to Brisbane departing at 2:45pm on Tuesday 12 March 2019;

    (h)Brisbane to Perth arriving at 9:55pm on Friday 15 March 2019;

    (i)Perth to Brisbane departing at 2:45pm on Tuesday 19 March 2019; and

    (j)Brisbane to Perth arriving at 9:55pm on Friday 22 March.

17. As has already been observed, the child did not spend 6, 13 or 20 March 2019 in the OP’s care. The Tribunal is also doubtful about the night of 15 March 2019, on which the OP could not have arrived home much before 11pm even if the flight had arrived on schedule.

18. In any event, the Tribunal has to take that evidence in the context of the OP having two dependent children of 12 years and under at the date of those itineraries (T16/93). If they were not with him on his work trip (and there is nothing in the itinerary to indicate that they were) then there were reasons other than the care of the child for the OP to return from Queensland each weekend. The itineraries therefore do not comprise compelling evidence that the child was actually in the care of the OP on those dates. The Tribunal does not accept the itineraries as evidence that the OP was returning from Queensland for the purpose of having care of the child, when he had a partner and two other dependent children living with him at the time.

19. The Tribunal notes that, according to the itineraries, the OP missed five Wednesdays and potentially one Friday with the child. That represents a substantial proportion of the time that he was expected to spend with the child over that period. 

20. It does not, however, explain why the Applicant formed the view on or before 27 February 2019 that the usual care arrangement had changed, and it is disingenuous of the OP to suggest that she misunderstood a temporary change arising out of his trip to Queensland. At the time of the Applicant reporting the change on 27 February 2019, there had only been one Wednesday that the OP had been away in Queensland. The 27 February 2019 date was itself a Wednesday, but according to the itineraries, the OP was back in the early hours of that day and in a position to have the child in his care. Notwithstanding his apparent availability, 27 February 2019 is not one of the days the OP claims the child was in his care. The Tribunal has not found any explanation of this inconsistency as the calendar which the OP provided to the Registrar shows 27 February 2019 marked with green highlighter, signifying that it was one of his nights with the child (Exhibit A1).

21. The OP’s reporting of time spent with the child is not the only occasion on which it appears that the OP misled the Registrar to obtain a financial advantage. The Tribunal makes the following observations about the death of the Applicant’s partner and the aftermath:

    (a)The letter from the Applicant’s mother dated 12 September 2019 contains a description of the night of 21 August 2018 and the death of [name redacted] (Exhibit A3). The Applicant’s mother recalls the Applicant calling her and saying that her partner had committed suicide by hanging and that she had been the one to find him. The Applicant was subsequently taken to hospital due to trauma and it was the Applicant’s mother who formally identified the body of the Applicant’s partner. 

    (b)In the aftermath of the suicide, whilst the Applicant was being treated for trauma, the child stayed with the OP.

    (c)On 5 September 2018, the OP notified the Registrar that as of 22 August 2018 he had had 100% care of the child. The discussions with the Registrar that followed were recorded in the following terms (T23/184):

    Discussions with the notifying carer:

    – 05/09/2018: care change lodged

    18/09/2018: disagreed care, requested evidence

    Queried the DOE [date of event] and [the OP] advised technically it was 2 weeks before that and the actual DOE 8/8/18 however [the OP] gave [the Applicant] a couple of weeks to notify of the care change and this is reason he at first provided 22/8/18. Advised we need the actual DOE and [the OP] confirmed it was 8/8/18

    Queried if [the Applicant] has had any care since DOE and [the OP] advised no overnight care as [the Applicant] is sorting out a house and [the OP] is unaware of the details of where and when she is moving.

    Queried if the child has returned to [the Applicant’s] care and [the OP] advised no and that there are no plans to as yet due to the current circumstances and safety issues at [the Applicant’s].

22. The evidence before the Tribunal is that the ongoing arrangement between the parties had not changed on an ongoing basis by agreement between the parties. The Applicant had suffered trauma as a result of finding the dead body of her partner, which was clearly a suicide, and the child had spent two weeks with the OP whilst the Applicant recovered. The OP’s reporting of the situation to the Registrar in those circumstances was not only grossly inaccurate, it was also grossly insensitive. The only motive that the Tribunal can see for the OP’s decision to report to the Registrar in those terms was to obtain the financial benefit of a 100% care decision in his favour. It seriously damages the OP’s credibility in these proceedings.

23. Turning then to the available evidence that could be used to corroborate the OP’s claim that he cared for the child 28% of the time. The Tribunal notes the evidence that the OP has been involved in sports coaching (T22/149-151), and that he has had ongoing involvement in the child’s schooling, medical treatment, and work experience (T22/146-7). The Tribunal notes the evidence of longstanding family friends that the child spends time with the OP during the day at functions and during visits from those family friends (T22/144). Even if it were accepted by the Tribunal in its entirety, none of that evidence establishes that the OP has care of the child on anything other than an ad hoc basis. The described involvement in the child’s life is not inconsistent with the OP having care of the child as frequently as he claims, but neither is it inconsistent with a healthy adult relationship between a father and an almost adult child for whom he is not a carer. It is not evidence of a care relationship for the purpose of child support, but of a caring relationship. The trip to Busselton in September 2019 falls into the same category.

24. The OP’s partner appears to have written a letter in support of the OP’s claim (provided to the Tribunal by the Applicant) confirming that his “care for [the child] is every Wednesday night and every second Friday and Saturday night. This is the arrangement and is [sic] unchanged” (Exhibit A1, undated letter from the OP’s partner). The content of the letter is not consistent with the OP’s evidence. No mention is made in the letter to the new work arrangements that the OP says he made to accommodate his travel to Queensland or the disruptions that occurred in February 2019. The letter does not provide any actual dates on which the OP’s partner has witnessed the child being present in the OP’s home, nor any evidence from which the Tribunal could make findings about the likelihood that the OP’s version of events is more accurate than the Applicant’s. The Tribunal notes that the OP’s partner is the maternal aunt of the child and the sister of the Applicant. The brevity of her letter in support and the lack of information contained within it is particularly striking in that context. The OP’s partner was not called to give evidence in these proceedings. The Tribunal gives her letter no weight as evidence that the care arrangement had not changed.

25. The Applicant argues that the OP’s care of the child dropped to 6% in the relevant care period, meaning that the OP no longer had ‘regular care’ of the child. The Applicant has provided the Tribunal with a calendar showing the dates that she says that the child was in her care in the period 17 December 2018 through to 31 December 2019 (T1/9). There is no credible evidence to contradict her claim that the OP has had only 6% of care of the child.

26. The Tribunal finds that the OP did not have regular care of the child for the relevant care period being from 17 December 2018 to 16 December 2019. 

27. Section 54G(1) of the Assessment Act is engaged and the Tribunal must revoke the existing care percentage determination if satisfied that the Applicant provided notification of the change of care within a reasonable time.

28. The Tribunal accepts the Applicant’s evidence in determining that 17 December 2018 was the date on which the care percentage determination changed. The Tribunal also accepts that the date on which the care percentage changed could only be determined in retrospect in the circumstances as they existed at that time. It could not have been evident to the Applicant on 17 December 2018 that the care percentage had changed.

29. The Applicant contacted the Registrar on 27 February 2019 to report that there had been a change in care. The Tribunal finds that that was a reasonable time in which to do so, in the circumstances.

30. Pursuant to s 54G(1) of the Assessment Act, the Tribunal revokes the existing care percentage determination.

31. The backdating provisions of s 54G(1) apply and the determination will take effect from 17 December 2018.

    CONCLUSION

32. In summary, and for the reasons outlined above, the Tribunal has made the following findings regarding the issues before it:

    (a)There was a change in care on 17 December 2018 which was notified to the Agency on 27 February 2019.

    (b)The existing care determination should be revoked, that is the determination that was made on 9 November 2018, that the Applicant had 72% care of the child and the OP had 28% care.

    (c)The date from which the determination is revoked is 17 December 2018, from which time the Applicant had 94% care and the OP 6% care until the child turned 18.

    (d)The date from which the Tribunal’s decision should have effect for the purposes of the child support assessment is 17 December 2018.

    DECISION

33. The Reviewable Decision, being the decision of the AAT1 dated 9 April 2020, is set aside. In substitution the Tribunal decides:

    (a)The existing percentage of care determination is revoked;

    (b)From 17 December 2018 the Applicant is determined to have provided 94% care and the Other Party is determined to have provided 6% care of the child; and

    (c)The application day is 17 December 2018.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member Dr J Henderson

.............[Sgd].........................................................

Associate

Dated: 29 October 2021

Date of hearing:	12 August 2021
Applicant:	By telephone
Representative for the Respondent:	Ms L Hinwood, Services Australia
Other Party:	No appearance