QXPD and Child Support Registrar (Child support second review)
[2021] AATA 318
•26 February 2021
QXPD and Child Support Registrar (Child support second review) [2021] AATA 318 (26 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2638
Re:QXPD
APPLICANT
AndChild Support Registrar
RESPONDENT
AndQSGV
OTHER PARTY
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:26 February 2021
Place:Sydney
The decision under review is affirmed.
.........................[sgd].........................
Chris Puplick AM, Senior Member
Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)–16(2AC) of the Child Support (Registration and Collection) Act 1988 (Cth).
CATCHWORDS
CHILD SUPPORT – percentage of care – Court order – care period – actual care – regular care – cost percentages – revocation of percentage of care determination – decision under review affirmed
LEGISLATION
Child Support (Assessment) Act 1989 (Cth) ss 49, 50, 54F, 54G, 54H, 55C
Child Support (Registration and Collection) Act 1988 (Cth) s 96A
CASES
Polec v Staker (SSAT Appeal) [2011] FMCAfam 959
Shi v Migration Agents Registration Authority (2008) HCA 31
SECONDARY MATERIALS
Guides to Social Policy Law: Child Support Guide
REASONS FOR DECISION
Chris Puplick AM, Senior Member
26 February 2021
BACKGROUND
QXPD (Applicant) and QSGV (Other Party) are, respectively, the mother and father of Child A who is now 15 years of age. The couple were married in 1999 and divorced in 2005 shortly after the child’s birth.
The Respondent in this matter is the Child Support Registrar (Registrar) who takes a neutral position as to the dispute between the Applicant and Other Party.
The matter before the Tribunal concerns the percentage of care provided by the Applicant and Other Party in respect to Child A.
Previous decisions: March 2019 to April 2020[1]
[1] Details provided in the Respondent’s Statement of Facts, Issues and Contentions dated 16 November 2020 (Respondent’s SFIC) at [4]-[9].
After the separation/divorce of the parents in 2005 they registered a child support case with the Child Support Agency (CSA).[2]
[2] Registered on 15 March 2005: Section 37 documents (T documents) at 267.
The Federal Circuit Court of Australia made an order dated 20 February 2018[3] providing for the father to have care of Child A for the equivalent of 59 days of care per year (16% care).[4]
[3] Ibid 172.
[4] As calculated by the Social Services and Child Support Division of this Tribunal: T documents at 8 [13].
The CSA, on 25 July 2019,[5] determined that the Applicant had 85% care (and the Other Party had 15% care) backdated to 2 March 2019 (care percentage decision).[6]
[5] In the Child Support Agency’s (CSA) objection decision the date that the Applicant is noted to have reported a change in care was 17 June 2019: T documents 261. In the CSA’s care percentage decision of 25 July 2019 the date of notification is stated to be 9 May 2019: T documents at 106.
[6] Ibid 106.
On 30 July 2019 the Applicant lodged an objection to the CSA’s care percentage decision and claimed that the appropriate figure should be 87% in her care and 13% in the father’s care.[7] The Other Party responded to these objections and claimed that the appropriate figure was 84%/16% in favour of the mother[8] – that is the figure as calculated per the Federal Circuit Court’s order of February 2018.
[7] T documents at 261.
[8] Ibid 262.
There is something surreal about these proceedings in that they are concerned with events of the past which have been superseded by more recent care determinations. The Tribunal understands that since March 2020 the Other Party has provided no care for Child A and that, as a result, a separate determination (not currently under review by this Tribunal) was made by the CSA assessing him to have 0% child care. Thus, the father has now been required to pay child support at the highest level.[9]
[9] Email advice from the Other Party to the Tribunal dated 25 November 2020.
PROCEEDINGS
The objection application by the mother was assessed by the CSA, which disallowed that objection on 1 November 2019 (objection decision).[10]
[10] T documents at 260.
On 17 January 2020 the Applicant applied to the Social Services and Child Support Division of this Tribunal (AAT1) for a review of the objection decision. On 2 April 2020 the AAT1 upheld the Agency’s objection decision. On 5 May 2020 the Applicant applied to the General Division of the Tribunal (AAT2) for a review of the AAT1 decision.
The matter was heard in this Tribunal on 20 November 2020. The hearing was, given COVID-19 restrictions and on request by one of the parties not to appear before the other, conducted by telephone. It was also conducted, at the direction of the Tribunal, on the basis that the Applicant and Other Party were permitted to address each other only through the Tribunal Member. Apart from material lodged before the Tribunal prior to the hearing, the Tribunal directed that certain other submissions were to be made by the parties after the hearing but no later than 26 November 2020.
LEGISLATIVE FRAMEWORK
It may appear that issues of 84%, 85%, 86% or 87% care (corresponding to 16%, 15%, 14%, 13% care, respectively) are mere quibbles. However, it is a matter of some significance because of the way in which the child support scheme operates. The scheme is established in the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) and the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act).
The Acts themselves are models of complexity, and rather than attempt to summarise the relevant provisions or to reproduced them in the Tribunal’s own terminology, the Tribunal will, with acknowledgment and gratitude, hereafter reproduce the outline of the legislative framework as set out in the Respondent’s submission:[11]
[11] Respondent’s SFIC at [14]-[27]. Footnotes and citations omitted. Emphasis in original.
Jurisdiction and power
14. The Tribunal has jurisdiction, pursuant to ss 4 and 96A(b) of the Collection Act, to review the AAT1’s decision. The review application was lodged within the 28-day period prescribed by s 29(2) of the AAT Act.
15. On review, the Tribunal may affirm the AAT1’s decision if it considers it the correct and preferable decision. If the Tribunal sets aside the AAT1 decision, it would need to:
a. First, make a determination, relevantly under ss 54F, 54G, or 54H of the Assessment Act, as to whether the existing care percentage determination must or should be revoked.
b. Second, in the event the existing care percentage determination is revoked, make a new care percentage determination under ss 49 or 50 of the Assessment Act.
Date of effect if Tribunal substitutes AAT1 decision
16. In the event that the Tribunal decides to set aside the AAT1 decision and in its place makes a decision to vary or substitute the objection decision under review, s 95N of the Collection Act will be relevant. This is because the applicant applied to the AAT1 on 17 January 2020, being more than 28 days after notice was given of the objection decision made on 1 November 2019.
17. Section 95N is in the following terms:
Date of effect of AAT first review decision relating to care percentage decision
(1) If:
(a) on AAT first review, the AAT varies or substitutes a decision on an objection to a care percentage decision; and
(b) the application for AAT first review was made more than 28 days, or, if the applicant is a resident of a reciprocating jurisdiction, 90 days, after notice of the decision was given;
then, despite subsection 43(6) of the AAT Act, the decision as varied or substituted by the AAT has or is taken to have had effect on and from the day the application for AAT first review was made.
(2) If the AAT is satisfied that there are special circumstances that prevented the application for AAT first review being made within the period referred to in paragraph (1)(b), the AAT may determine that subsection (1) applies as if:
(a) for an applicant who is a resident of a reciprocating jurisdiction – the reference to 90 days in that paragraph were a reference to such longer period as the AAT determines to be appropriate; or
(b) otherwise – the reference to 28 days in that paragraph were a reference to such longer period as the AAT determines to be appropriate.
(3) The AAT must give written notice of a decision to make, or not to make, a determination under subsection (2) in relation to a person, to each person affected by the decision.
Note: The AAT's decision about the determination is reviewable (see paragraph 96A(c)).
The review is an AAT second review.
18. Accordingly, s 95N of the Collection Act governs the date of effect of an AAT1 decision where a person has applied to the AAT1 more than 28 days after they received the objection decision and the AAT1 varies or sets aside that objection decision. In such situations, s 95N(1) operates so that the date of effect of the AAT1 decision will be the date of application to the AAT1. However, the AAT1 (or this Tribunal on review) can consider if special circumstances existed that prevented the application being made within time, pursuant to s 95N(2). If the Tribunal is satisfied that s 95N(2) is met, then it may treat the application to the AAT1 as having been made within time.
Revocation of the existing care percentage determination
19. The revocation of care percentage determinations is dealt with in Subdivision C of Division 4 of Part 5 of the Assessment Act. As noted above, the relevant provisions are ss 54F, 54G and 54H.
20. Sections 54F and 54G of the Assessment Act deal with circumstances in which a care percentage determination must be revoked. Section 54F of the Assessment Act provides:
54F Determination 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.
(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.
(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.
21. Section 54G of the Assessment Act is in the following terms:
54G Determination must be revoked if there is less than regular care etc.
(1) If:
(a) a responsible person (the first responsible person) for a child was to have at least regular care of the child during a care period under a determination (the first care determination) made under section 50; and
(b) the first responsible person has had no care of the child, or has had a pattern of care that is less than regular care of the child, despite another responsible person for the child making the child available to the first responsible person; and
(c) a determination of the other responsible person’s percentage of care for the child has been made under section 50; and
(d) the other responsible person notifies the Registrar or the Secretary of the matter referred to in paragraph (b) of this subsection within a period that the Registrar considers is reasonable in the circumstances;
the Registrar must revoke both determinations.
(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.
22. Section 54H of the Assessment Act is concerned with situations in which a decision-maker may revoke a care percentage determination. Section 54H is in the following terms:
54H Registrar 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.
(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.
(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.
23. Section 54H can only apply if ss 54F and 54G do not apply: s 54H(1)(c) of the Assessment Act. Further, s 54F can only apply if s 54G does not apply: s 54F(1)(c). It is therefore appropriate for the Tribunal to first consider whether s 54G of the Assessment Act applies.
24. With respect to s 54G of the Assessment Act and the question of whether a person who was to have at least regular care has had less than regular care or none at all, it should be noted that s 5(2) of the Assessment Act provides that a person will have “regular care” where that person’s “percentage of care for the child during a care period is at least 14% but less than 35%”: s 5(2).
25. Care is not defined in either the Assessment Act or the Collection Act. The level of care provided by a person for a child is a question of fact to be determined in each case by reference to the particular facts and circumstances.
26. The Guide[12] (at [2.2.1]) provides the following guidance for determining whether care exists:
[12] Child Support Guide published by the Registrar to assist decision-makers.
Determining whether care exists
An object of the CSA Act [i.e., 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:
omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
oarrangements for others to meet the needs of the child (delegated care).
·To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
·To what extent the person pays for the costs of meeting the needs of the child.
·To what extent the person otherwise provides financial support for the child.
·To what extent the child provides for his or her own needs or has those needs met from another source.
·To what extent the child is financially independent or financially supported from another source.
27. In Polec & Staker[13] the Federal Magistrates Court held that in determining whether and to what extent a person has care of a child for the purpose of child support legislation, the following non-exhaustive list of factors may provide guidance:
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?
[13] Polec v Staker (SSAT Appeal) [2011] FMCAfam 959, [56].
Once it is established whether care exists or is being provided, the Child Support Guide indicates:
The following table identifies the care terms for different care percentage ranges, also showing the number of nights in a year that equates to the care term where the care determination is based on nights.
Term Percentage of Care Number of nights Below regular 0 to less than 14% 0 to 51 Regular 14% to less than 35% 52 to 127 Shared 35% to 65% 128 to 237 Primary More than 65% to 86% 238 to 313 Above primary More than 86% to 100% 314 to 365
The significance of the 87%/13% rather than the 85%/15% split in care provided becomes apparent when considering the cost percentages as set out in section 55C of the Assessment Act which is the basis of child care payment determinations. Section 55C provides:
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%
If the Tribunal accepts the claim by the mother that the father had less than 14% of the care of Child A (below or less than regular care) from 2 March 2019, then the Tribunal would be required under section 54G to revoke the existing care percentages.
If, however, it does not accept that the percentage of the father’s care fell below 14% then it must turn to consider, under section 54F, whether the actual care provided corresponded with the existing care percentage and whether any new care percentage determination would result in a new cost percentage. Otherwise, the Tribunal needs to consider whether it would be appropriate to exercise its discretion under section 54H of the Assessment Act.
CONTENTIONS BY THE PARTIES
The toxicity of the relationship between Child A’s parents is evident in the fact that they arrange for the handover of Child A to take place at a police station (Green Valley[14]) where apparently there is no direct contact between the parties. Child A is delivered to the police station by one parent and collected separately by the other. Each appear to remain in their separate cars during the handover process.
[14] The Other Party has sought orders to change this to Penrith Police Station but it is unclear if this application was granted.
The amended order of the then-Federal Magistrates Court of Australia dated 30 January 2008 specifies the arrangement for the handover to be “at the location outside the Green Valley Police Station”,[15] but it is clear that the parties are often inside the police station and interact with members of the Police Force while there. Indeed, it appears that on at least one occasion the police has actively conveyed messages between the parents and Child A related to the handover, including conveying the wishes of Child A not to go with his father.[16] Although, it appears that in consent orders previously made by the then-Federal Magistrates Court of Australia dated 2 April 2007, the Applicant and Other Party had originally come to terms of settlement including that “[n]o third parties shall be involved in the changeover unless mutually agreed in writing between the parties”.[17]
[15] Amended order of the Federal Magistrates Court of Australia between QPXD and QSGV dated 30 January 2008.
[16] COPS record filed by the Applicant to the Tribunal on 12 November 2020.
[17] Terms of settlement between QPXD and QSGV dated 2 April 2007 at [12.2].
In the course of these proceedings, summons were issued (at the request of a party) to Green Valley Police Station requesting details in either written or video format documenting any contact between the parents and Child A regarding these handover arrangements from 1 March 2019.[18] The Applicant had asserted to the Tribunal that such material existed. Green Valley Police Station indicated that it did not hold such material for the period requested.[19]
[18] Summons issued on 18 September 2020.
[19] Respondent’s Statement of Position dated 20 October 2020 at [2].
What the impact might be on Child A of being passed like a parcel through the strained atmosphere of a police station on a regular basis does not appear to have been considered by the Applicant and Other Party.
Apart from this arrangement, they have also been before the Federal Circuit Court of Australia whereby the Other Party has alleged breaches of the Court’s order of 20 February 2018 by the Applicant. These claims were dismissed.[20]
[20] Contravention application heard before Judge Dunkley on 30 October 2020.
The father alleges that the mother deliberately prevents or discourages Child A from spending time with him.[21] He alleges that the mother has caused damage to his motor vehicle[22] and deliberately avoided receiving documents from process servers.[23] The mother denies all such accusations.
[21] Contravention application filed by the Other Party on 10 June 2020; Letter of the Applicant’s Counsel who represented her at the contravention proceedings dated 30 October 2020; Affidavit of Other Party dated 9 June 2020; Exhibits MC1 – MC 9 attached to the Affidavit of the Other Party dated 9 June 2020.
[22] Affidavit of Other Party dated 9 June 2020 at [4.4]; Other Party’s statement dated 19 October 2020 at 3.
[23] Affidavit of process server dated 22 June 2020.
The Tribunal notes the problem which arises from the father’s apparent acquiescence in the decisions concerning his teenage son, so as to prioritise Child A’s preferences for where he spends his time which is otherwise allocated to the father. In doing so, the father faces the dilemma of respecting his son’s wishes but thereby risks facing claims that he has failed to provide care for Child A as allocated under the Court’s parenting arrangements. This in turn has potential implications on his level of child support payments.
The weaponization of the child’s choices, which no doubt will become ever more pronounced as Child A enters his late teens, is a most disturbing aspect of the claims and counter-claims of the Applicant and the Other Party’s.
The Other Party further states that he has been in contact with the father of the Applicant’s second child (Third Party) and that the Third Party “went on to tell me that the applicant is colluding with [Child A] to get my nights under 52 per year so she can maximise my child support. I asked if he had witnessed this. [The Third Party] told me he has seen this personally and on more than one occasion”.[24] There is an affidavit from the Third Party to this effect.[25]
[24] Affidavit of Other Party’s dated 19 October 2020 at [16].
[25] Affidavit of Third Party dated 17 October 2020.
The Third Party’s daughter (not the daughter by him with the Applicant) corresponds with the Other Party through SMS in which she states:
… my dads (sic) okay his (sic) a nice man when you get to know him but as you know your ex isn’t and it’s time to bring her down for everything wrong she’s done.
happy to sign anything for court for your upcoming court with [the Applicant] and dad said he will talk to you about it.
p.s she’s trying to get you for court costs just a head up
Heads up *
…
… it’s time she suffers abit (sic) hey she does so much to everyone and this time she’s just not getting away with it I’ve had it! Glad we could help.[26]
[26] Annexure A to the Affidavit of the Other Party dated 19 October 2020.
The mother stated that, on occasions, Child A does not want to spend time with his father, especially as the father lives some distance away and this results in the separation of Child A from friends and family events.
The Applicant also states that the father is negligent in not insisting that Child A accompany him from the handover when Child A apparently refuses to accompany him. She stated that “[Other Party] choosing not to take [Child A]”,[27] “[Child A] said that he told his father he will not be going and his father left … his father left without him”,[28] and “I had made the child available each and every time. [The Other Party] chose not to take him”.[29]
[27] Applicant’s email submission to the Tribunal dated 6 August 2020.
[28] Applicant’s email submission to the Tribunal dated 10 August 2020.
[29] Applicant’s email submission to the Tribunal dated 12 November 2020.
Whether it was the Applicant’s expectation that the father forcibly remove his allegedly unwilling son from the police station is unclear.
There are screen shots of various conversations between the Other Party and Child A, and the Other Party and the Applicant, including those in which Child A is referred to not by his name but as “your son”.[30]
[30] Exhibit MC 3 to the Affidavit of the Other Party dated 7 August 2020; T documents at 71 and 317.
Documentary evidence
Both the Applicant and Other Party have provided calendars showing their versions of the nights which Child A has spent with each parent.[31]
[31] Calendars filed by the Applicant on 28 May 2020, 3 June 2020, 3 July 2020, 5 November 2020 and 20 November 2020. Calendars filed by the Other Party on 21 October 2020 and 25 November 2020.
The calendars of the Applicant and Other Party from the weekend commencing 2 March 2019 until 31 December 2019 are not in agreement. There are two versions of a calendar submitted by the mother, each of which records Child A being in the care of his father for a total of 38 nights in this period.[32]
[32] Calendars filed by the Applicant on 20 November 2020.
The father’s calendar shows that Child A was in his care for a total of 45 nights in that period.[33] Discrepancies between the Applicant’s and Other Party’s calendars occur in March, May, August and December.
[33] Calendars filed by Other Party on 21 October 2020 and 25 November 2020; T documents at 224.
There is a dispute as to two nights in May and in December. The father claims to have had care of Child A on 30 and 31 December whereas the mother asserts that Child A was with her as per the Federal Circuit Court’s order dated 20 February 2018 which provides that Child A be in her care “On New Year’s every year from
10:00am to5.30pm on 30 December 2018 and each even year thereafter to 10.00 am 1 January”.[34][34] T documents at 176.
In her written submission the Applicant states that “Dec 30th + 31st as per orders dated 20/2/2018 No: 2(b) HOME EACH YEAR”.[35]
[35] Calendars filed by the Applicant on 20 November 2020.
However, it is clear that the order states “from … 5:30pm on 30 December 2018 and each even year thereafter to 10:00am 1 January”. Presumably this means that every year on 30 December, Child A is to spend that night with his mother and every even year he is to spend the night of 30 December as well as the night of 31 December (until 10:00am 1 January) with his mother. As 2019 was not an “even year” as provided by the order, at most, it can only be assumed that he spent the night of 30 December 2019 with his mother. It cannot be assumed that Child A was with his mother that year on the night of 31 December 2019. in the absence of any specific and corroborative evidence (other than the testimony of each parent) as to the location of Child A on 30 and 31 December 2019, the Tribunal is in no position to be definitive about the matter, other than to say that on the balance of probabilities Child A was with his father.
Despite the existence and operation of the Court order, the Applicant’s own evidence filed with the Respondent for her objection application, as at 27 August 2019, anticipated that Child A would be in the care of the Other Party for a continuous holiday period from 23 December 2019 until 7 January 2020.[36] Furthermore, per the Applicant’s claims, Child A would have spent 23 December 2019 until 29 December 2019 with his father, 30 and 31 December with his mother, and then from 1 January 2020 would have been returned back for a resumed period with his father. The Tribunal is of the view that it is more likely than not that Child A spent a continuous holiday period with his father and such possibility is not so foreign. Although the February 2018 order was not yet in place, as per calendar evidence submitted by the Applicant, it indicates that Child A had previously spent a continuous period from approximately mid-December 2017 until early January 2018 in the care of the Other Party.[37]
[36] T documents at 190, 192 and 202-203.
[37] Calendars filed by the Applicant on 3 July 2020.
In his oral testimony before the Tribunal the father attested that he believed he had had care of the Child for 44 nights in 2019 but agreed that his recollection was “vague” as to some of the details. He later agreed, as he did before the AAT1, that he had missed the days of care allocated in May 2019.
Furthermore, the AAT1 stated:
On 25 June 2019, when she made her application, [the Applicant] stated that [Child A] had missed nights with his father on 2 March, 30 March, 4 May and 18 May; four occasions. This was not disputed by [the Other Party], but he submitted that [the Applicant] had withheld care in contravention of the court orders.[38]
[38] T documents at 8 [14].
As indicated in the CSA’s objection decision, the Other Party had also conceded that he had missed a care event in August 2019.[39]
[39] Ibid 263.
Both parties’ calendars are in agreement that Child A was in the care of the father for the period of 1 to 8 January 2020 (7 nights). There is then a further discrepancy as the calendar submitted by the father to the CSA shows him with anticipated care of his son from 8 to 11 January 2020, which is disputed by the mother. In his post-hearing calendar submissions to the Tribunal the father claimed 12 nights of care in the period from 1 January to 1 March 2020,[40] but in oral evidence to the Tribunal agreed that the figure of 10 nights was correct, of which only 7 were in January 2020.
[40] Calendar submissions filed by the Other Party on 25 November 2020.
The AAT1’s decision was, with respect, speculative in that it stated, in deciding that there had been no change in percentage of care on 2 March 2019:
The tribunal noted that [the Other Party] would need to miss eight nights of care during a 12-month period before his care percentage dropped below 14%. Given he was trying to arrange mediation and improve access to care, the tribunal decided that this was very unlikely as at 25 July 2019, when the original decision was made.[41]
[41] T documents at 9 [17].
The Tribunal did, however, go on to note that:
The pattern of care may have changed since then and it is open to the parents to seek a change from the date that change occurred.[42]
[42] Ibid [19].
The Respondent, in its Statement of Facts, Issues and Contentions dated 16 November 2020, made the submission that:
… the correct approach is to determine what actually occurred during the care period. This is contrary to the approach taken by the AAT1, which asked what the pattern of care was up to the date of the mother’s notification on 25 July 2019, and what was likely to occur thereafter.[43]
[43] Respondent’s SFIC at [52]. Citations omitted. Emphasis in original.
With respect to the AAT1, this seems to be correct and is the preferred course adopted by this Tribunal.
In making its objection decision not to alter the percentage of care following the Applicant’s request to do so (on 30 July 2019), which was based on five missed occasions of care, the CSA explained the basis of its decision in the following terms:
Minor departures from the normal care of the child, such as missing a weekend of care due to illness or work, will not constitute a change to the pattern of care, and will not result in a new care determination.[44]
[44] T documents at 263.
Such evidence as there is before the Tribunal indicates that the father had been earnest in his desire to spend time with Child A and that there had been obstacles placed in his path in fulfilling his obligations under the Court order, primarily when Child A himself indicated that he did not want to spend time with his father in lieu of spending it on family occasions arranged by, or centred upon, his mother, such as the celebration of her birthday, Child A’s step-sister’s birthday, or a desire to spend part of Christmas with her.[45]
[45] Exhibits MC 4 at 1, 3 & 4 and MC 5 at 2-3 to the Affidavit of the Other Party dated 7 August 2020.
THE DECISION FOR THE TRIBUNAL
The Tribunal must make its decision based on the material before it at the time of decision-making[46] and in this instance that includes material which was not before the original decision-maker.
[46] Shi v Migration Agents Registration Authority (2008) HCA 31, [37].
The first step is to identify a care period. That must start on 2 March 2019 when the current care period was determined by the Respondent on the basis of 85%/15% care between the Applicant (mother) and the Other Party (father).
In the view of the Tribunal, that care period should be taken to be from 2 March 2019 to 17 January 2020 (care period), being the date that the Applicant lodged her appeal with the AAT1.[47]
[47] T documents at 7.
The Tribunal appreciates that this is a somewhat arbitrary decision as to timing and is a period of less than 12 months, but the Act itself specifies no set period for a care period to be established and to go beyond 17 January 2020 would be to enter into a period which had not been subject to review prior to consideration in this forum. That, in itself, is not a fact precluding the Tribunal from considering more contemporaneous evidence before it[48] and the Tribunal accepts the Respondent’s submission that: “[f]irst, the Tribunal should identify an appropriate care period beginning on 2 March 2019”.[49] The Tribunal is reinforced in its view that this is “an appropriate care period” because it has been able to give more careful attention to the, albeit contested, written material before it from the parties and any clarifications given by the Applicant and Other Party in their oral evidence, and is able to come to a conclusion based on the evidence for the care period about the nights of care in issue, to a reasonable level of satisfaction.
[48] Shi v Migration Agents Registration Authority (2008) HCA 31.
[49] Respondent’s SFIC at [55].
Section 96A(b) of the Collection Act provides:
An application may be made to the AAT for review (AAT second review) of the following decisions of the AAT:
…
(b) a decision under subsection 43(1) of the AAT Act on AAT first review of a care percentage decision;
As this Tribunal understands the position to be, it means that it is authorised to review the same matter that was before the AAT1 although, as noted above, it may undertake this review cognisant of any new material which might be before it, but which was not before the AAT1.
There is no doubt that both parties had care of Child A from 2 March 2019 until 17 January 2020 and that the pattern of care was not fully in accordance with the order the Federal Circuit Court dated 20 February 2018.
There is disputed evidence about the pattern of care during the period but, considering and weighing the competing claims, the Tribunal finds that:
(a)from 2 March 2019 to 31 December 2019 Child A was in the care of the Other Party for a total of 40 nights; being the 45 recorded in the Other Party’s calendar less the two nights in each of May and December, and 1 night in August, which were missed.
(b)from 1 January 2020 to 17 January 2020 Child A was in the care of the Other Party for 7 nights.
(c)on several occasions the Other Party acceded to the request of either Child A or the Applicant to allow Child A to stay with her for family and other reasons. In these instances, the Other Party respected the wishes of Child A or, at least, the wishes as they were conveyed to the Other Party.
The Tribunal’s calculation is that this is a total of 47 days in a period of 323 days which equates to a percentage of care of 14.55%. The Tribunal finds that this is the actual level of care which occurred during the care period.[50]
[50] Assessment Act s 50(3).
CONSEQUENCES OF DECISION ON PERCENTAGE OF CARE
As the actual care figure exceeds 14% and hence does not fall below the “regular care” threshold, there is no case for revocation of the existing care determination under section 54G of the Assessment Act.
As 14.55% (found presently) and 15% (per the original care percentage decision and affirmed in the objection decision and by AAT1) care by the father both fall within the same cost percentage band, if a new determination of the Other Party’s percentage of care were to be made this would not result in a change in the cost percentage. Revocation under section 54F of the Assessment Act is not applicable.
The next consideration is then whether the Tribunal should invoke its discretionary power under section 54H to revoke the original care percentage determination of 15% and make a new determination of 14.55%.
The decision under review relates to a determination of care percentages at the level of 85%/15% in favour of the mother. The Tribunal notes the earlier decision of the Respondent to the effect that “minor departures … will not result in a new care determination”. The Tribunal takes the view that the difference between 14.55% is so minor as to not warrant the process of revocation under section 54H and the making of an entirely new care percentage determination.
Although this Tribunal has adopted a different set of reasoning to the AAT1 in coming to its decision, given that this Tribunal has determined it is not necessary to revoke the care percentage determination of 85%/15% in favour of the mother, and given that the effect of the AAT1’s decision was to affirm the care percentage which was upheld on objection by the Applicant (being 85%/15% in favour of the mother), the Tribunal considers it correct and preferable to affirm the AAT1’s decision.
DECISION
The decision under review is affirmed.
I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
................................[sgd]................................
Associate
Dated: 26 February 2021
Date(s) of hearing: 20 November 2020 Date final submissions received: 25 November 2020 Applicant: In person (by telephone) Solicitors for the Respondent: Mr T Hillyard, Sparke Helmore Lawyers Other Party: In person (by telephone)
Key Legal Topics
Areas of Law
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Family Law
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Administrative Law
Legal Concepts
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Jurisdiction
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Statutory Construction
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Procedural Fairness
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Appeal
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