QWKW and Child Support Registrar (Child support second review)

[2021] AATA 2060

QWKW and Child Support Registrar (Child support second review) [2021] AATA 2060 (2 July 2021)

Division:General Division

File Number(s):               2020/3028

Re:               QWKW

APPLICANT

AndChild Support Registrar

RESPONDENT

And               VLJH

OTHER PARTY

DECISION

Tribunal:Senior Member P J Clauson AM

Date:2 July 2021

Place:Brisbane

The decision under review is set aside and in substitution, the Tribunal decides that for the assessment period from 9 August 2019 to 19 March 2020, that the Applicant had 85% and the Other Party had 15% of care of the children.

.....[SGD]...................................................................
Senior Member P J Clauson AM

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 Tribunal should approach assessment with retrospective approach – where parent alleged other parent had occasional missed care events – whether missed care events were established – where pattern of care established regular care – decision set aside and substituted

Legislation

Evidence Act1995 (Cth)

Acts Interpretation Act 1901 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Cases

Reddish and Civil Aviation Safety Authority [1999] AATA 721

Re Williams v. Australian Electoral Commission (1995) 38 ALD 366

Secondary Materials

Guides to Social Policy Law, Child Support Guide, Version 4.56, released 10 May 2021.

REASONS FOR DECISION

Senior Member P J Clauson AM

OVERVIEW

1. This matter concerns the care of three children of the Applicant and the Other Party who are the separated parents of child B, born in 2013, and children T & Z, twins born in 2015. The decision under review is a decision made by the Social Services & Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) on 4 May 2020 which set aside the decision of the Child Support Registrar (‘Respondent’) that the Applicant had 86% care of the children B, T & Z and that the Other Party had 14% care from 9 August 2019, and, in substitution found that the Applicant had 80% care of the children and that the Other Party had 20% care of the children from 9 August 2019.[1]

   [1] Exhibit 1, T2, 7-11.

2. A care arrangement was entered into by the Applicant and the Other Party on 3 June 2019 by way of an Order of the Federal Circuit Court of Australia (the ‘care arrangement’).[2]  Pursuant to the Care Arrangement, the Applicant was to have 93% of the care of the children and the Other Party 7% of the care from 15 June 2019.[3] Further, these Orders included an arrangement whereby the Other Party’s care was to increase to two nights per fortnight from 9 August 2019. On 8 August 2019, the Other Party informed the Department of Human Services (the Department) that the care for the children was to change on 11 August 2019 in accordance with the Court Order.

   [2] Exhibit 1, T4, 38-48.

   [3] Exhibit 1, T4, 40; T18, 230, 232, 234.

3. The Department revoked the care determination in place from 15 June 2019 and made a new care determination on 4 December 2019 operative from 9 August 2019, reflecting the pattern of care provided for in the care arrangement. 4 December 2019 was the same day that a pre-existing care determination was settled by an objection decision.[4] The Department calculated the care percentages to be 86% to the Applicant and 14% to the Other Party (the original decision).[5]

   [4] Exhibit 1, T10, 90-94.

   [5] Exhibit 1, T11, 95-98.

4. Records from the Respondent indicate that the Applicant, on 11 December 2019, objected to this decision on the basis the Other Party missed caring for the children on 31 August 2019, 1 September 2019 and 6 December 2019.[6]

   [6] Exhibit 1, T19, 264-5.

5. On 8 February 2020, an objections officer within the Department disallowed the objection on the basis that the Other Party had not missed the requisite care events in order for there to be a change in the pattern of care (the objection decision).[7]

   [7] Exhibit 1, T14, 118-122.

6. On 23 March 2020, the Applicant sought further review of that decision by the AAT1.[8]

   [8] Exhibit 1, T16, 149.

7. The AAT1, on 4 May 2020, set aside the decision under review and substituted a decision that the existing care percentages were revoked and, with effect from 9 August 2019, the Other Party had 20% care and the Applicant had 80% care of the children.[9]

   [9] Exhibit 1, T2, 7-11.

8. On 13 May 2020, the Applicant sought further review by the General Division of the Administrative Appeals Tribunal.[10]

   [10] Exhibit 1, T1, 1-6.

   PRELIMINARY MATTERS

9. The Tribunal considers that, in addition to the substantive issues to be considered in this matter as outlined and discussed later in this decision, there are some issues that can be dealt with on a preliminary basis.

10. The Tribunal considers that the following matters can be resolved at a preliminary stage:

    (a)Whether a change in care occurred on 9 August 2019 or 11 August 2019; and

    (b)Whether an order made by this Tribunal can have any effect at all.

    Did a Change in Care Occur on 9 August 2019 or 11 August 2019?

11. The Other Party notified the Respondent on 8 August 2019 that a change of care would take place on 11 August 2019. As the Respondent notes, that date is inconsistent with the terms of the Court Orders which were the basis of the change. The Court Orders properly reflect that a change in care was to occur on 9 August 2019.

12. Having noted the apparent discrepancy, the Respondent sought confirmation from the Applicant as to when care changed.[11]  The Applicant conceded that care had changed on 9 August 2019 but contended that the change had not been to the extent that the Other Party suggested.

    [11] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [44].

13. It was submitted by the Respondent that the date of the change in the care of the children was indeed 9 August 2019. The Tribunal agrees with that assessment and is satisfied that a change in the care of the children occurred on 9 August 2019.

    Can an Order Made by This Tribunal Have Any Effect at All?

14. This matter was not reserved at the close of the hearing. The Tribunal sought submissions from the Respondent in relation to the Applicant’s apparent lateness in filing an appeal to the AAT1. In short, the resulting submissions suggested that if the Tribunal considered that the Applicant was late in filing her application to the AAT1, then the effect of the Tribunal’s decision could only be backdated to 23 March 2021: see s 95N of the Child Support (Registration and Collection) Act 1988 (Cth) (the ‘Collection Act’).

15. Given that a new change in care decision has already been made by the Respondent, with a date of effect of 20 March 2021, there remained a possibility that any decision by the Tribunal in the Applicant’s favour may therefore be of no practical effect. It is well established that if that were the case, the Tribunal should not engage in a fruitless consideration of the Applicant’s merit: Reddish and Civil Aviation Safety Authority [1999] AATA 721 at [33] per DP Blow:

    “… an application to this Tribunal may be dismissed on the ground that it is frivolous if the Tribunal is unable to make a decision that would be of any practical benefit to the applicant. Plainly this Tribunal will not be able to make a decision that will be of any practical benefit to the applicant, and it would be a waste of everyone’s time and money for [the application for second review] to be allowed to remain on foot.”

16. Further, in Re Williams v. Australian Electoral Commission (1995) 38 ALD 366 at 374 (Beaumont and Hill JJ.), in the context of a dismissal under s42B of the Act stated:

    “It is difficult to categorise this case into any of the accepted heads of vexatiousness. Even the “collateral purpose” head does not sit easily with a situation where the applicant genuinely believes in the legitimacy of the collateral object which he is seeking. Perhaps this provides a good reason for not stultifying the situations in which proceedings will be found to be vexatious by requiring that they fall within preordained categories... In this case the outcome of the proceedings, whether successful to the applicant or otherwise will be devoid of any practical effect.” (Emphasis added)

17. The Tribunal is satisfied that the Applicant was not late in filing her application to the AAT1.

18. The Applicant contended that she did not receive the objection decision dated
    8 February 2020 until 6 March 2020. The Applicant sought a review before the AAT1 on
    23 March 2020. To substantiate her claim, the Applicant relies upon a letter signed by a service officer of Services Australia dated 6 October 2020 and addressed to the Applicant, in which confirmation was conveyed that:

    (a)On 8 February 2020, the Applicant’s objection to the care decision made on
    4 December 2019 was disallowed and that the Respondent’s records showed a letter conveying this information was mailed to the Applicant’s postal address on that date;

    (b)The Applicant had a telephone conversation with a service officer on
    28 February 2020 in which the Applicant advised the service officer that no objection letter had been received. It was noted further that the Applicant was advised verbally of the outcome of the objection review;

    (c)The Applicant had escalated her concerns to a complaints officer, and during the call advised that the decision of 8 February 2020 had not yet been received;

    (d)The Applicant held two further telephone calls with a complaints officer, while she was investigating the Applicant’s concerns. The calls were recorded as being conducted on 6 March 2020 and 11 March 2020 respectively;

    (e)The letter in conclusion noted that the complaints officer had received the available information from these last calls, but was, however, unable to locate details of the Applicant’s confirmation that she had subsequently received the objection decision letter.

19. The Respondent’s Statement of Facts, Issues and Contentions initially contended that
    

    [12] Exhibit 2, Respondent’s Statement of Facts Issues and Contentions, [50].

    8 February 2020 was the date of notification from which the Applicant’s 28 day window within which to file her application for review commenced.[12] The Respondent’s representative reiterated this position at the hearing but gave the Tribunal an undertaking to seek clarification from the Respondent as to the date that the letter of objection was dispatched. The hearing was adjourned and the Respondent filed supplementary submissions on 21 January 2021, together with two annexures which provided further information.

20. Attachment A was a copy of the letter that the Applicant had referred to, dated
    6 October 2020. Attachment B was an activity summary of the steps taken internally by the Respondent, which indicates that the objection decision letter was created on
    8 February 2020 (which was a Saturday) and, as conceded by the Respondent, was only printed on Monday 10 February 2020.

21. In considering the situation as to the Applicant’s receipt of the decision relating to the objection that she had lodged, it is of assistance to examine the relevant section of the Evidence Act1995 (Cth) (Evidence Act), s163, which provides, inter alia:

    “Proof of letters having been sent by Commonwealth agencies

    (1)A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.

    (2)In this section:

    “business day” means a day that is not:

    (a)a Saturday or a Sunday; or

    (b)a public holiday or bank holiday in the place in which the letter was prepared.

    “letter” means any form of written communication that is directed to a particular person or address, and includes:

    (a)any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and

    (b)any envelope, packet, parcel, container or wrapper containing such a communication; and

    (c)any unenclosed written communication that is directed to a particular person or address.

    Note: Section 5 extends the operation of this section to proceedings in all Australian courts.”

    (Emphasis added).

22. Regard must also be had to s 29 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), which provides:

    29  Meaning of service by post

    (1)  Where an Act authorises or requires any document to be served by post, whether the expression “serve” or the expression “give” or “send” or any other expression is used, then the service shall be deemed to be effected by properly addressing, prepaying and posting the document as a letter and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

    (2) This section does not affect the operation of section 160 of the Evidence Act 1995.
    (Emphasis added).

23. It can be seen from both s 163 of the Evidence Act and s 29 of the Acts Interpretation Act that a statutory presumption exists to reflect when the Applicant was deemed to have received the letter. However, in both statutory provisions, the presumption can be overcome. The emphasis added by the Tribunal in both provisions shows that the Applicant can overcome the presumptions by reference to satisfying an evidentiary burden placed upon her.

24. In the Tribunal’s view, the Applicant has discharged her burden. The Tribunal considers that the facts outlined above, together with the oral evidence of the Applicant to the Tribunal, is supportive of the Applicant’s contention that she received the objection decision letter on 6 March 2020. It is the view of the Tribunal that it would be most improbable for a person to be continuing to contact the Department seeking such correspondence if they had already received it.

25. The actions of the Applicant in seeking information as to the whereabouts of the decision indicate an earnestness on her behalf. This would have been unnecessary had the decision been within her possession. It is clear to the Tribunal that the Applicant most probably received the document by 6 March 2020 when she called the complaints officer, and it would seem plausible that the objection decision was received by her on that date, as she has contended.  Accordingly, the Applicant’s application to the AAT1 was made within 28 days after notice of the objection decision was given.

    STATUTORY FRAMEWORK

26. The Tribunal is empowered under s96A(b) of the Collection Act to review the decision of the AAT1. That section provides:

    “Application for AAT second review

    An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:

    (a)a decision under section 92 to refuse an extension application;

    (b)a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;

    (c)a decision under subsection 95N(2) to make, or not to make, a determination.”

27. Section 55C of the Child Support (Assessment) Act 1989 (‘Assessment Act’) provides that:

    “Working out cost percentages

    A parent’s or non‑parent carer’s cost percentage for a child for a day in a child support period is the percentage worked out using the table based on the parent’s or non‑parent carer’s (as the case requires) percentage of care for the child for the day.”

Cost percentages
Item	Column 1 Percentage of care	Column 2 Cost percentage
1	0 to less than 14%	Nil
2	14% to less than 35%	24%
3	35% to less than 48%	25% plus 2% for each percentage point over 35%
4	48% to 52%	50%
5	more than 52% to 65%	51% plus 2% for each percentage point over 53%
6	more than 65% to 86%	76%
7	more than 86% to 100%	100%

1. The Tribunal notes that, in accordance with the Assessment Act, consequences attend a change in care of a child for whom an assessment is undertaken, including a potential change to the cost percentages for the care of Children B, T and Z as outlined above. The Tribunal must consider, in turn, the following provisions of that Act if it is satisfied that a change in care occurred:

   54GDetermination must be revoked if there is less than regular care etc.

   (1)If:

   (a)a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and

   (b)the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and

   (c)a determination of the other responsible person’s percentage of care for the child has been made under section 50; and

   (d)      the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;

   the Registrar must revoke both determinations.

   Note:The Registrar must make new determinations under section 49 or 50 to replace the revoked determinations: see paragraph 49(1)(b) or 50(1)(b).

   (2)The revocation of each determination takes effect:

   (a)if the first responsible person never established a pattern of care in accordance with the first care determination—at the beginning of the application day for that determination; or

   (b)if the first responsible person established a pattern of care in accordance with the first care determination but later ceased the established pattern of care—at the end of the day before the day on which the person ceased the previously established pattern of care.

   (3)       To avoid doubt, a responsible person never establishes a pattern of care if:

   (a)the responsible person could not have established the pattern of care until a particular period that occurs later in a child support period; and

   (b)the responsible person does not establish that pattern during that particular period.”

   54FDetermination must be revoked if there is a change to the responsible person’s cost percentage

   (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; and

   (d)subsection (2) applies in relation to the individual.

   Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

   (2)This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)all of the following apply:

   (i)section 51 did apply in relation to the responsible person;

   (ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;

   (iii)an interim period does not currently apply in relation to the earlier determination;

   (iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note:For when section 51 does not apply, see section 53.

   (3)The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)the responsible person’s care of the child has reduced—the day before the change of care day.”

   54HRegistrar may revoke a determination of a responsible person’s percentage of care

   (1)The Registrar may 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, if the Registrar were to determine, under section 49 or 50, another percentage to be the responsible person’s percentage of care for the child, the other percentage would not be the same as the person’s existing percentage of care for the child; and

   (c)sections 54F, 54FA and 54G do not apply; and

   (d)subsection (2) applies in relation to the individual.

   Note:The Registrar must make another determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).

   (2)This subsection applies in relation to a responsible person if:

   (a)disregarding paragraph 53(1)(c), section 51 did not apply in relation to the responsible person; or

   (b)section 51 did apply in relation to the responsible person but the maximum interim period for the determination has ended; or

   (c)all of the following apply:

   (i)section 51 did apply in relation to the responsible person;

   (ii)the maximum interim period for an earlier determination of the responsible person’s percentage of care for the child has not ended;

   (iii)an interim period for the earlier determination does not currently apply;

   (iv)the determination referred to in subsection (1) was made while the earlier determination was suspended under this Subdivision.

   Note:For when section 51 does not apply, see section 53.

   (3)The revocation of the determination takes effect at the end of:

   (a)if the Registrar or Secretary is notified, or otherwise becomes aware, of the matter referred to in paragraph (1)(a) within 28 days after the change of care day for the responsible person—the day before the change of care day; or

   (b)if the Registrar or Secretary is notified, or otherwise becomes aware, of that matter more than 28 days after the change of care day for the responsible person and:

   (i)the responsible person’s care of the child has increased—the day before the Registrar or Secretary is notified, or otherwise becomes aware, of that matter; or

   (ii)the responsible person’s care of the child has reduced—the day before the change of care day.”

   EVIDENCE

1. The Applicant and the Other Party agree that a care arrangement was in place pursuant to the Court Orders of the Federal Circuit Court made on 3 June 2019.[13]

   [13] Exhibit 1, T4, 38-48.

2. The parties agree that the care arrangement changed on 9 August 2019, as determined by the operation of those Orders and the effect of this change was to establish the period of care for the subject of this review.

3. The Applicant, however, has contended in her application and in oral evidence and submissions to the Tribunal that the AAT1 Decision is incorrect because the Other Party has had less care than the care arrangement requires and thus should be revoked and a new determination should be put in place to reflect the true pattern of care prevailing.[14]  The Applicant contends in this regard that the Other Party missed care on 31 August 2019, 1 September 2019 and 29 November 2019.[15]  Written material before the Tribunal also indicates the Applicant also took issue with missed care on other dates including 21 and 22 February 2020, as well as a range of dates beyond 20 March 2020.

   [14] Exhibit 1, T1, 4; Transcript of proceedings, P-7, P-11, P-12, P-15.

   [15] Exhibit 1, T19, 254-265.

   Evidence relating to 31 August 2019 and 1 September 2019

4. The Tribunal considers that the dates of 30 August 2019 and 31 August 2019 were, in fact, dates for which the Other Party was to have care of the children. Although not dates which were recurring fortnightly care dates, those dates were allocated under the Court Orders to the Other Party in recognition of Father’s Day. There appeared to be no dispute between the parties that care was intended to take place on that weekend. The Applicant agitated that the Tribunal should reflect upon these days as missed care events.

5. The written material before the Tribunal indicates that the Other Party attempted to gain possession of the children for this “special occasion” by waiting in the car near the agreed pick up point, whilst his partner at that time collected the children. He says, in an affidavit filed before another forum and provided to the Tribunal, that he feared an argument would break out between him and the Applicant and, impliedly, that he wished to avoid that. His attempts to receive the children into his care, by way of his partner (who the children were familiar with), was thwarted as the Applicant was not prepared to allow the Other Party’s partner to receive the children into her care.[16]

   [16] Exhibit 4.

   Evidence Relating to Night of 29 November 2019

6. In relation to the Applicant’s claim that the Other Party missed care on 29 November 2019, the Tribunal accepts that the children remained in the Applicant’s care that night, before being transferred to the Other Party on the morning of 30 November 2019.

7. The Tribunal notes that there is an apparent discrepancy between the material of both the Applicant and the Other Party, and the notes taken by delegates of the Respondent. Case notes entered into the Respondent’s systems appear to reflect that the Applicant complained that the Other Party did not care for the children on 6 December 2019, though the notes plainly refer to the events as described by the Applicant and Other Party relating to 29 November 2019.

8. The Tribunal notes that, according to the schedule set down by the Court Orders, the Other Party was due to care for the children on 29 and 30 November 2021. The consistency of the evidence of the Applicant and the Other Party leads the Tribunal to reject the date offered by the case notes of the Respondent.

9. The Tribunal has evidence before it which indicates that on 29 November 2019, the Other Party had a work event relating to clients of his employer to which he had been invited to attend.[17] The Tribunal further considered the material contained in the Applicant’s outline relating to this event and, in particular, the contention that care was missed on

   
   

   29 November 2019.[18] This material indicates that the Other Party had advised the Applicant on 18 November 2019 that he would be collecting the children on 30 November 2019 instead of 29 November 2019. The Applicant construes the Other Party as not abiding by the care arrangement because she alleges he did not advise her that the change was occurring as a result of his need to attend a work function. The Tribunal considers this not to be anything more than an argument over communication as the changeover apparently occurred as stated on 30 November 2019 without objection.  The Applicant, in her written material, also contended that the Other Party failed to request to make up time for the care period on 29 November 2019 until after the event.[19] 

   [17] Exhibit 1, T17, 168-169.

   [18] Exhibit 1, T17, 151-152.

   [19] Exhibit 1, T17, 151.

10. The Tribunal considers that as the Court Orders do not prescribe whether a request for a makeup should be made before or after the missed event, this contention is nothing more than a manifestation of the parties’ acrimonious relationship. It is noted that elsewhere in the communications between the Applicant and the Other Party, that when the Other Party has requested a makeup for the period of care for 13 and 14 December 2019, which was a period of care he surrendered to the Applicant, she advised that the Orders didn’t specify for makeup periods and she would not be acceding to his request.[20]

    [20] Exhibit 5, email entitled “Weekly communication W/C4/11”; Transcript of proceedings, P-15.

11. The vast majority of the care required under the Court Orders for that weekend was provided by the Other Party. The Tribunal has noted the view of the Objections Officer that this does not constitute a missed care event as care began on 30 November 2019 and continued for the remainder of the scheduled weekend for which the Other Party was to care for the children.

    Evidence Relating to 21 and 22 February 2020

12. The Applicant provided evidence that the Other Party did not care for the Children on
    21 and 22 February 2020, due to her requesting a period of holiday time under the Court Orders. The Tribunal accepts that the Other Party did not care for the children on those dates.

    Evidence relating to dates beyond 20 March 2020

13. The Tribunal notes that the Applicant further submitted in the documents that the Applicant had missed further care periods on or after 20 March 2020. Given, however, that a new percentage of care decision was entered into on 20 March 2020, it is unnecessary to address those dates.

    Evidence Relating to Holiday Arrangements

14. The Applicant and the Other Party are also in dispute as to the interpretation of the Court Orders which relate to the holiday periods outside of the regular care arrangement. The relevant sections of the Court Orders applicable to this review in that regard run from paragraph 3.2.4 to paragraph 3.3.3.

15. The Court Order at 3.2.4 marks the point at which the care arrangement was to change to the arrangement which is the subject of this review. The relevant date is 9 August 2019.

16. The Court Orders at 3.3 stipulate clearly:

    “That the children shall spend additional school holiday time with the Mother or Father at all times as can be agreed between the parties in writing, but failing agreement, the Mother or Father, on up to four (4) occasions per year, (sic) request a block period of up to seven (7) nights commencing at 8.00am on the first day and concluding at 6.00pm on the final day …”

17. The Court Orders further stipulate relevantly:

    “3.3.1Such holiday time has not previously been nominated by the other parent or includes any special occasions as set out in paragraph 4 or 5 of these Orders;

    3.3.3The parent requesting holiday time shall, with no less than twenty-eight (28) days’ notice, write to the other parent of the dates which they intend to spend holiday time with the children;”

18. The Orders then continue on to describe the special exceptions and the operation of the Orders for the purpose of international holiday travel.

19. The Applicant’s view, as expressed to the Tribunal, is that she did not agree with the AAT1’s interpretation as to how the Court Order at 3.3 was to operate. Her contention was that the Other Party had to request from her to have the children for certain days and that she also made the same request of him for certain days and both parties had done so. The Applicant contended that the four seven-night blocks were throughout the year not tied to specific school holidays or a specific week in each school holiday.

20. The Applicant in her evidence claimed that the Respondent’s Statement of Facts, Issues and Contentions was incorrect where it referred to the change in the pattern of care as notified to the Department by the Other Party at paragraph 26 of that document. She quotes the Court Order at 3.2.4 and it appears in the Transcript of Proceedings as follows:

    “The care is from Friday 9th of August 2019 to 5.00pm Monday (should be Sunday), the 11th of August, 2019, and at each alternate week thereafter, provided, however, that when the children, [Children T & Z], attend school, the latter time will be extended to Monday mornings, such that the Father will return the children to their respective schools at the conclusion of his time with them.”

21. The Applicant then told the Tribunal in the following terms that:

    “So they don’t start school until next week, so the time they were spending with [the Other Party] from the 9th of August each fortnight was just Friday night and Saturday night, whereas [paragraph 26] of exhibit 2 states that their time was extended to Monday.”

22. The Applicant’s contention is in fact incorrect. The Tribunal has set out below paragraph 26 of the Respondent’s Statement of Facts, Issues and Contentions document for clarification.

    26.The Other Party advised the Department that the pattern of care had changed in accordance with the care arrangement, to him having care of the children for two nights a fortnight (being every Friday night to Sunday night on alternate weekends, extending to Monday mornings if the children have school, and extending to Monday evenings if the Monday is a public holiday.”

    (emphasis added)

23. The Other Party’s evidence to the Tribunal was that, in relation to the AAT1’s interpretation of the Court Order at 3.3 regarding the additional school holiday time, he agreed with that interpretation. He told the Tribunal that the Applicant had, in his opinion, consistently misinterpreted this part of the Orders and this had been a “contentious issue for many years”.[21]  He contended that the Orders provided for additional holiday time as agreed and failing agreement up to four seven-night blocks. His evidence was that he had previously requested additional holiday time from the Applicant as early as 12 months prior to the requested dates (notwithstanding the Orders only required 28 days written notice of such dates), but the Applicant had declined these. The Other Party told the Tribunal that the block dates of 13 and 14 December to which the Applicant had referred in her evidence as indicating that these were her block dates, were in fact a weekend of his under the standard care arrangements, which he had agreed to let the Applicant have for her block time. He said that the Applicant had simply used this time to try and reduce his care percentages because:

    “The children didn’t go anywhere, they didn’t do anything else in that regard.”

    [21] Transcript of proceedings. P-15, ln 39.

24. The Other Party told the Tribunal that he and the Applicant:

    “Can’t agree on the fact that the sky is blue … “[22]

    and had very differing views about the interpretation of the Orders for the period of four years.

    [22] Transcript of proceedings, P-16, ln 10.

    CONSIDERATION

25. The fundamental basis for this review by the Applicant was that the Other Party had, by his omissions, broken the pattern of care as formalised in the Court Orders of 3 June 2019 insofar as he had missed care on the occasions outlined above and thus had less than regular care.

    Outline of Issues

26. The substantive issues for the Tribunal’s consideration are as follows:

    (a)What is the appropriate care period for the Tribunal to consider in making its decision;

    (b)Whether the Tribunal may have regard to the actual care of the parties with the benefit of retrospect; or whether, alternatively, the Tribunal must have regard to the likely care of the parties at the time the original decision was made;

    (c)To what extent the Other Party had or was likely to have care of Children B, T and Z throughout the care assessment period; and

    (d)What consequences fall as a result of the Tribunal’s assessment of the percentage of care.

    What is the Appropriate Care Period for the Tribunal to Consider in Making its Decision?

27. In order to determine the whether the Other Party had at least regular care within the meaning of the Assessment Act, the Tribunal must first determine an appropriate care period. The Tribunal notes the submissions made on behalf of the Respondent at the hearing that on 20 March 2020 a new care determination regarding the children was made. This determination gave the Applicant 100% care of the children and the Other Party 0% care of the children.

28. The Registrar further submitted that the effect of the March 2020 determination would be to revoke any existing care determination which may have been in place prior to

    
    

    20 March 2020. This means that any determination made by this Tribunal would also be revoked as from the same date. Thus, for the purpose of this review, the appropriate care period for the Tribunal to consider is that from 9 August 2019 to 19 March 2020 (inclusive). This period is of 224 days duration and will be the period governing the decision of this Tribunal.

    Can the Tribunal Have Regard to the Actual Care of the Parties with the Benefit of Retrospect?

29. In order to establish the appropriate relative care percentage of the parties, it is necessary for the Tribunal to determine the method by which it should measure the parties’ care of the children. A question arises as to whether the Tribunal is entitled to look, with the benefit of hindsight, at the actual care provided by the parties; or whether the Tribunal is bound to objectively assess, at the point in time when the percentage of care assessment begins.

30. The Tribunal received submissions on this issue from the Respondent, which submitted that the Tribunal was indeed permitted to take a retrospective approach. The Applicant also contended for a retrospective approach. In its submissions, the Respondent referred the Tribunal to an unpublished decision of the Tribunal in 2015,[23] which in relevant part, stated:

    [57]Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review:  see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time.

    [58]Further, there is nothing in Division 4 Part 5 of the Assessment Act or in the Administrative Appeals Tribunal Act 1975 that suggests it is not appropriate for the Tribunal to take into account new evidence or evidence of actual events that have occurred after the Original Decision was made in circumstances where the dispute before the Tribunal relates to the percentage of care that each parent had in a single care period.

    (citations omitted)

    [23] See Exhibit 2, [22].

31. The Tribunal considers that the position outlined in that unpublished decision finds further support in the text of the Assessment Act. Section 50(3) of the Assessment Act requires that the percentage of care be a “percentage that corresponds with the actual care of the child that the Registrar is satisfied that the responsible person has had, or is likely to have, during the care period”.

32. The legislative text provides support for the proposition that the actual care that a person has had is relevant to the decision. Indeed, its primacy of position, rather than the alternative formulation of “or is likely to have” suggests that the preferred method, where available, is that of a retrospective consideration of the care as between the parties.

33. The Tribunal has noted the dissension between the parties as related to their differing interpretation as to how the Court Orders at clauses 3.3, 3.3.1, 3.3.2 and 3.3.3 are to operate in a practical sense. It is the view of the Tribunal that these sections are designed to operate in a prospective sense. That is, that they are designed to allow the parties the benefit of arranging additional care periods for school holidays outside of the regular care arrangement set out in the Order 3.2.4. The Tribunal considers that they provide a discretionary choice for the parties to make holiday arrangements for any period of time up to a total of 28 days each, provided the requesting party gives at least 28 days’ notice in writing to the other. Any such arrangement is to take into account that such a period has not been agreed to for the other parent for a like purpose or that special occasions are excluded from such a period of additional holiday time.

34. The Order 3.3 does not decree nor impute compulsion on either party that they must take the complete default block of four occasions of seven nights. It provides a declaration of certainty for the parties if no agreement can be reached between them at first instance. Given that the Tribunal views this Order as having the purpose and effect outlined, it would not be appropriate for the Tribunal to attempt to anticipate the forward intentions of the parties as they may relate to additional holiday time. The evidence before the Tribunal in fact indicates that neither the Applicant nor the Other Party has availed themselves of the full potential benefit of the Order.

35. Where a decision is made by the Respondent prospectively, it cannot know for certain what number of nights the parents will have in the care of the children. That is particularly the case with Court Orders like those in the present case. The Court Orders, at clause 3.3, allow each parent a right, up to four times per year, to care for the children for a period of up to a week at a time (subject to some exceptions). It is impossible for the Respondent to know, prospectively, what options will be exercised by each parent during the care period, and so the Respondent must determine the care which is likely to take place, consistently with the statutory language.

36. The Tribunal, however, is able to conduct a retrospective assessment of the number of nights of care, and it is appropriate to do so.

    To What Extent Did the Other Party Have Care of Children B, T and Z Throughout the Care Assessment Period?

37. The Tribunal has considered the evidence of the parties, the Court Orders made on 3 June 2019, together with the submissions made on behalf of the Respondent in coming to its decision as to whether the care arrangement had changed as contended by the Applicant to less than that percentage of care created by the Court Orders.

38. In assessing if a care determination has fallen below at least regular care of a child - that is, a care percentage of at least 14%, the Tribunal is assisted by reference to the Child Support Guide at 2.2.3 (the Guide)[24] which outlines what the Respondent generally considers to be the circumstances giving rise to the existing pattern of care ceasing.

    [24] Guides to Social Policy Law, Child Support Guide, Version 4.56, released 10 May 2021.

1. The Guide states, at section 2.2.3, that:

   “The Registrar will generally consider that a previously established pattern of care has ceased if the parent or non-parent carer has:

   ·     Missed 3 care events in a row

   ·     Missed 5 care events out of 8, or

   ·     Missed 20% of the expected nights of care over 12 months (when calculating 20%, the Registrar will not include an isolated even that is clearly not a change in the pattern).”

2. The care period in this matter is of 224 days duration and thus in order for the Other Party to have a care percentage of 14% as the minimum, it would require him to have had care of the children for 32 days within that period.

3. The following table outlines the number of nights of care undertaken by the Other Party (save for the contested missed care events, discussed below):[25]

   [25] Transcript of proceedings, P-15, Ln 12-26.

Dates	Number of Nights in Care
9 August and 10 August 2019 (Regularly scheduled weekend)	2
23 August and 24 August 2019 (Regularly scheduled weekend)	2
30 August and 31 August 2019 (Father’s Day Weekend)	2
6 September and 7 September 2019 (Regularly scheduled weekend)	2
20 September and 21 September 2019 (Regularly scheduled weekend)	2
4 October and 5 October 2019 (Regularly scheduled weekend)	2
18 October and 19 October 2019 (Regularly scheduled weekend)	2
1 November and 2 November 2019 (Regularly scheduled weekend)	2
15 November and 16 November 2019 (Regularly scheduled weekend)	2
29 November and 30 November 2019 (Regularly scheduled weekend)	2
13 December and 14 December 2019 (Regularly scheduled weekend)	0 – Applicant had children for holiday time pursuant to Cl. 3.3 of the Court Orders
25 December 2019 (Special Occasion – Christmas)	1
26 December 2019 (Holiday period sought by Other Party)	1
27 December and 28 December 2019 (Regularly scheduled weekend)	2
29 December and 30 December 2019 (Holiday period sought by Other Party)	2
10 January and 11 January 2020 (Regularly scheduled weekend)	2
24 January and 25 January 2020 (Regularly scheduled weekend)	2
7 February and 8 February 2020 (Regularly scheduled weekend)	2
21 February and 22 February 2020 (Regularly scheduled weekend)	0 – Applicant had children for holiday time pursuant to Cl. 3.3 of the Court Orders
6 March and 7 March 2020 (Regularly scheduled weekend)	2

1. The total number of nights that care took place therefore totalled 34 nights, except for the missed care events as contended for by the Applicant.

2. The Applicant’s case was conducted on the basis that, for the relevant care period, the Other Party had missed care events on the Father’s Day weekend in 2019 (the Other Party, by the terms of the agreement, was to have care of the children on the nights of 30 August and 31 August 2019, and return the children to the Applicant on 1 September 2019).[26]  She also contended that the night of 29 November 2019 was a missed care event. Other than those dates within the relevant care period, the Applicant submitted that care occurred as according to the table above.

   [26] Transcript of Proceedings, P-15, Ln 12-26.

3. The Tribunal does not accept that the nights of 30 August and 31 August 2019 (the Father’s Day weekend) were a missed care event. The evidence demonstrates that the Applicant did not make the children available to the Other Party, by way of his partner at the time. Section 54G of the Assessment Act requires that account be taken of less than regular care in circumstances where care was missed “despite another responsible person for the child making the child available to the first responsible person”. The Tribunal does not accept that the children were made available to the Other Party on those days.

4. The other date cited by the Applicant, namely 29 November 2019, should also not be construed as a missed care event. The Tribunal accepts the view that, because care substantially occurred on that weekend, it should not be regarded as a missed care event, particularly in circumstances where the Other Party was required to attend a work function. Even if the Tribunal was wrong in that assessment, it would be appropriate to credit the Other Party with a one and a half days of care to reflect the actual care that took place on that particular weekend.

5. The Tribunal was satisfied that none of the missed care events cited by the Applicant constitute a departure from the Court ordered care arrangements such as to constitute a cessation of the pattern of care requiring the Tribunal to revoke the existing pattern of care and to substitute a new Care determination. The Tribunal therefore assesses the Other Party’s care as being 15% (34 nights out of 224).

   What Consequences Fall as a Result of the Tribunal’s Assessment of the Percentage of Care?

6. Having reached that conclusion, the Tribunal therefore considers that it is not mandatorily required to revoke the existing percentage of care determination, because the Other Party’s care does not fall below that of regular care (meaning that s 54G of the Assessment Act does not apply), and because the cost percentage for the parties has not changed (see s 54F of the Assessment Act).

7. Nonetheless, the Tribunal considers it appropriate to revoke the percentage of care decision of the AAT1, and in its place, issue a new care percentage. That is because, in the Tribunal’s view, it is appropriate to reflect the actual care arrangements that took place in the care period as far as is reasonably possible. That care should be assessed as 85% of care provided by the Applicant, and 15% of care provided by the Other Party.

8. It follows that there is to be no change in cost percentage under s 55C of the Assessment Act, because the care for each party remains within the same cost percentage range as that outlined by the AAT1.

   DECISION

9. The Tribunal decides that the Applicant’s percentage of care during the care assessment period, namely, from 9 August 2019 to 19 March 2020 was 85% and that of the Other Party was 15%. The decision under review is therefore set aside and substituted to reflect the change in the shared care percentages.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

....[SGD]....................................................................

Associate

Dated: 2 July 2021

Date(s) of hearing:

22 January 2021

Supplementary Written Submissions filed
28 January 2021.

Applicant:

By telephone

Solicitor for the Respondent:

Ms  Gillian Gehrke

Other Party:

By telephone