RCBZ and Child Support Registrar (Child support second review)

[2021] AATA 4435

RCBZ and Child Support Registrar (Child support second review) [2021] AATA 4435 (26 November 2021)

Division:                  GENERAL DIVISION

File Number:          2020/1302

Re:RCBZ

APPLICANT

AndChild Support Registrar

RESPONDENT

Andm GJBG

OTHER PARTY

DECISION

Tribunal:L M Gallagher, Member

Date:26 November 2021

Place:Perth

The Reviewable Decision, being the AAT1 decision dated 23 May 2019, is:

a)affirmed, insofar as it determined that the relevant commencement date is 26 January 2018;

b)affirmed, insofar as it determined that the date of effect is 8 March 2019; and

c)set aside, insofar as it determined that the Applicant and the Other Party each had 50/50 care of the child for the duration of the care period, and substituted with the decision that the Applicant had 100% care of the child and the Other Party had 0% care of the child during the care period.

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

L M Gallagher, 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.

CATCHWORDS

CHILD SUPPORT – percentage of care – whether there was a change in care –
actual care – date of effect – evidence – decision under review affirmed in part

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 43(6)

Child Support (Assessment) Act 1989 (Cth) – ss 49(1)(a), 49(1)(b), 50(1)(a), 50(1)(b), 50(3), 54A(1), 54B, 54F, 54G, 54H, 55C

Child Support (Registration and Collection) Act 1988 (Cth) – ss 87AA(1), 87AA(2), 95N(1), 95N(2)

CASES

Afghani and Secretary, Department of Social Services [2017] AATA 410

Angelakos and Secretary, Department of Employment and Workplace Relations  [2007] FCA 25

Beadle and Director-General of Social Security (1984) 6 ALD 1

Boscolo v Secretary, Department of Social Security (1999) 90 FCR 531

Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114

Drainchnikov v Centrelink (2003) 75 ALD 134

Groth v Secretary, Department of Social Security (1995) 40 ALD 541

P v Child Support Registrar [2013] FCA 1312

P v Child Support Registrar [2014] FCAFC 98

Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562

Polec & Staker & Anor [2011] FMCAfam 959

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

Rodgers and Child Support Registrar (Child Support second Review) [2016] AATA 1064

Shanhun and Secretary, Department of Social Services [2016] AATA 675

Singleton and Secretary, Department of Social Services [2019] AATA 766

SECONDARY MATERIALS

Guides to Social Policy Law: Child Support Guide

REASONS FOR DECISION

L M Gallagher, Member

26 November 2021

BACKGROUND

1. The Applicant and the Other Party are the separated parents of two children. The present application relates to one of those children (the child), who is now 13 years of age.

2. On 9 December 2014, a child support case was registered in relation to the child.[1]

   [1]R1, T35, p 265.

3. Departmental records[2] show that from 1 July 2014, the Applicant was recorded as having 72% care of the child and the Other Party was recorded as having 28%.[3]

   [2]The Department of Human Services, as it was then known, was renamed Services Australia (the Agency) on 29 May 2019. For ease of reference, the term ‘Agency’ has been adopted throughout this decision, whether it be referring to a point in time where it was known as ‘Services Australia’ or, as it was previously known, as the ‘Department of Human Services’.

   [3]R1, T35, p 267.

4. On 14 February 2018, the Applicant advised Services Australia (the Agency) of a change in care and stated that the child had not been in the Other Party’s care since 1 December 2017.[4] 

   [4]R1, T34, p 259.  By notifying the Agency of the claimed change in the percentage of care, the Applicant effectively requested that there be a change to the assessment of child support on the basis that the care of the child had changed.

5. On 10 April 2018, the Agency decided that on the basis of updated information provided to it, there had been a change in care and that the Applicant had 100% care from 1 December 2017 (the Original Decision).[5]  The Original Decision had effect for the purposes of the child support assessment from 14 February 2018, being the date the Applicant advised the Agency that there had been a change in care.[6]

   [5]R1, T13.

   [6]R1, T13.

6. The Original Decision stated that the parties could request a review of the decision within 28 days from the date of receipt and provided further information on how to proceed with an objection.[7]

   [7]R1, T13.

7. On 20 April 2018, the Other Party lodged an objection to the Original Decision.[8] 

   [8]R1, T34.

8. On 23 July 2018, an objections officer of the Agency partly allowed the objection and decided that the Applicant had 94% care and the Other Party had 6% care from 11 January 2018, with effect from 14 February 2018 (the Objection Decision).[9]

   [9]R1, T19.

9. On 8 March 2019, the Other Party applied to the Social Services & Child Support Decision of the Administrative Appeals Tribunal (AAT1) for a first review of the Objection Decision.[10] The Tribunal notes that this application was made over seven months after receiving notice of the Objection Decision.

   [10]R1, T28, T30.

10. On  23 May 2019, the AAT1 set aside the decision under review and, in substitution, decided that from 26 January 2018 the Applicant and Other Party each had 50/50 care of the child, with effect for child support purposes from the date the AAT1 application was lodged (8 March 2019) (the Reviewable Decision).[11] 

    [11]R1, T4.

11. The Tribunal notes that the Reviewable Decision made clear that the AAT1 was not persuaded that there were ‘special circumstances’[12] which prevented the Other Party from lodging his application to the AAT1 within the prescribed timeframe, hence the date of effect being 8 March 2019.[13]

    [12]See further discussion at [14] below.

    [13]As opposed to 14 February 2018, being the date that the change in care was notified, which would have been the date of effect had special circumstances been found to exist.  See R1, T4 [19]–[20]. 

    What is unclear to the Tribunal from the AAT1 decision, however, is whether the basis of the AAT1’s finding as to date of effect is that it:

    (1) declined to make a determination under s95N(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (the Collection Act) at all; or

    (2) did determine, under s95N(2) of the Collection Act, that it could not be satisfied that special circumstances under s95N(2) were made out of the evidence.

    The extent of the evidence and findings of the AAT1 on this point are (R1, T4 p 15 [20]): [GJBG] applied for the review nearly eight months after the original decision.  He said he has been suffering from mental health issues and this has impacted on [sic] his ability to deal with the care issue.  The tribunal did not consider there was enough evidence to find that [GJBG’s] health issues prevented him from applying for a review.  The tribunal therefore decided that the date of effect of this decision is 8 March 2019.

    Then, under the heading ‘Decision,’ the AAT1 states (R1, T4, p15): …as a result of the Tribunal’s determination under s95N of the (Collection Act)’ indicating that the AAT1 did in fact make a determination to the effect that special circumstances did not exist.  This is addressed further at n 57.

12. On 6 March 2020, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for review of the AAT1 decision.[14]

    [14]R1, T1.  The Applicant’s application was dated 12 December 2019 but not received by the Tribunal until 6 March 2020.

13. As the Applicant’s application to the Tribunal was lodged more than 28 days after the Applicant received notice of the AAT1 decision, an extension of time was required in accordance with section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth). This was granted by the Tribunal on 21 May 2020.[15]

    [15]R1, T2.

    ISSUES FOR DETERMINATION

14. The issue for determination by this Tribunal is the Applicant’s and the Other Party’s respective percentages of care of the child from the relevant commencement date.[16]  Specifically:

    [16]The relevant commencement date, being the date on which the change of care occurred (if indeed the Tribunal finds a change in care did occur), are findings of fact addressed by the Tribunal at [41]-[47] below. As the care period is now in the past, these percentages must correspond to the actual care that took place during that period. 

    (a)Whether the existing determination of percentage of care made by the AAT1 on 23 May 2019 should be revoked and replaced. This requires the Tribunal to determine what percentage of care the Applicant and the Other Party each had of the child from the relevant commencement date.

    (b)If so, that is, if the Tribunal finds that there was a change in the percentage of care from the relevant commencement date, such that a new determination of percentage of care should be made:

    (i)What is the new percentage of care determination?

    (ii)What is the date from which the new percentage of care determination should have effect for the purposes of child support?  Generally speaking,[17] this date would be either:

    ·     From the date the objection was lodged,[18] which was on 8 March 2019; or

    ·     From the date that the change in care was notified, being 14 February 2018.

    ·     As noted above,[19] this will be the case only if there were ‘special circumstances’ that prevented the objection from being lodged at the time it was required to be lodged, namely within 28 days of the original decision.[20] 

    ·     The period of time falling for consideration in the context of special circumstances is the period between 10 April 2018, when the original decision was made, and 8 March 2019, when the objection was lodged with the AAT1.  

    [17]However, see further discussion at paras [27]–[29] and [48] below.

    [18]Section 87AA(1) of the Collection Act provides that where an objection is not lodged within 28 days of a percentage of care determination, and the objection is allowed in a way that has the effect of varying the percentage of care determination or substituting a new care percentage determination, the objection decision will have effect from the date the objection was lodged.

    [19]See [8]-[10] above.

    [20]Section 87AA(2) of the Collection Act provides that the Registrar may determine that the 28-day objection period be extended to such longer period as the Registrar determines appropriate if the Registrar is satisfied that special circumstances prevented the objection being lodged within the stipulated timeframe. In that situation, the objection decision has effect as if the objection were lodged within the 28-day timeframe and therefore will have effect from the date that the original decision had effect (being 14 February 2018 in the present matter). See further [10] and n 57.

15. The Tribunal emphasises that if, and only if, it is established that the existing determination of percentage of care made by the AAT1 on 23 May 2019 should be revoked and replaced that the remaining issues fall for consideration.

16. For completeness, the Tribunal notes the Respondent’s comments in the SFIC[21] and at hearing,[22] to the effect that the AAT1 wrongly assessed percentage of care at the point of time of the initial notification to the Agency. 

    [21]R2 [37].

    [22]Transcript, p 13 [25]-[45]; p 14 [5].

17. The Respondent submitted,[23] and the Tribunal agrees, that through the inclusion of past tense in ss50 and 54A of the Assessment Act, care percentage decisions as to actual care in a care period may be made retrospectively.[24]

    [23]R1, T4, p 14.

    [24]See Rodgers and Child Support Registrar (Child Support second Review) [2016] AATA 1064 (21 December 2016).

    LEGISLATIVE FRAMEWORK

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

19. The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). While the Tribunal is not bound by law to apply the Guide, it should have regard to it and follow it unless there are cogent reasons not to do so.[25]

    [25]Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

20. The Assessment Act requires the Registrar to determine a person’s percentage of care where a person has had, or is likely to have:

    (a)no pattern of care for the child (s 49(1)(a) of the Assessment Act);[26] or

    (b)a pattern of care that corresponds with the actual care[27] of the child
    (ss 50(1)(a) and 50(3) of the Assessment Act),[28]

    during such period (the care period)[29] as the Registrar considers, having regard to all the circumstances.

    [26]The Tribunal notes in this context that the Applicant claims to have had 100% care of the child during the care period.

    [27]Section 54A(1) of the Assessment Act provides that the actual care of a child that a person has or is likely to have had may be worked out on the number of nights of care. The concept of ‘care,’ however, is broader than the provision of accommodation on any given night, and percentage of care does not necessarily need to be determined by reference to a time-based calculation (Polec & Staker & Anor [2011] FMCAfam 959 [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 [47]. See also Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 [33].

    [28]The Tribunal notes in this context that in the present matter, there is no dispute that the Applicant had a pattern of care during the care period.

    [29]A ‘care period’ does not have any fixed duration and is generally a 12-month period from the day on which the actual care of a child changed, however there are some circumstances in which a shorter or longer period may be more appropriate (the Guide at 2.2.1).

21. If there has been a change in the pattern of care subsequent to a percentage of care determination, a new percentage of care determination can be made only if the existing percentage determination that was made under ss 49 or 50 of the Assessment Act in respect of a particular care period is revoked, under Subdivision C of Division 4 of Part 5 of the Assessment Act (ss 49(1)(b) and 50(1)(b) of the Assessment Act).

22. An existing percentage of care determination must be revoked where the care of a child has changed pursuant to, relevantly:

    (a)Section 54F of the Assessment Act – there is a change to the person’s cost percentage, that is, the percentage of a child’s costs that the person meets through care.[30]

    (b)Section 54G of the Assessment Act – where, under the new percentage of care determination, a responsible person who was previously assessed to have at least ‘regular’ care of the child is now determined to have ‘less than regular care’[31] of the child, despite the child being made available by the other responsible person.

    (c)Section 54H of the Assessment Act – where the Registrar is notified, or otherwise becomes aware, that the existing percentage of care determination does not reflect the care that is taking place. In these circumstances, the Registrar may exercise its discretion to revoke the existing percentage of care determination but is not required to.

    For a cost percentage to apply, s 55C of the Assessment Act provides that the minimum care percentage is 14%. Therefore, ss 54F and 54G of the Assessment Act are enlivened only if the Tribunal were to find that the Applicant had at least 14% of the care of the child.

    [31]In this context, ‘regular care’ is defined to be at least 14% to less than 35% of the care of the child (the Guide at 2.2.1).  As to determining whether care exists, further refer to the Guide at 2.2.1.

23. If ss 54F, 54G or 54H of the Assessment Act do not apply, the existing percentage of care determination cannot be revoked and will continue to apply.

24. Subsections 54F(3) and 54H(3) of the Assessment Act explain when a revocation of a care percentage determination made under those provisions takes effect:

    (a)If the Agency was advised of the change in the care arrangements within 28 days of that change occurring, the revocation takes effect on the day before the change in care.

    (b)However, if notification occurs more than 28 days after the change in care arrangements,[32] the revocation of the care determination takes effect on the day before the day the Agency was notified of the change in care.

    [32]As in the present application.

25. Similarly, ss 54G(2) of the Assessment Act similarly provides when a revocation of a care percentage determination made under that provision takes effect. If the parent who has less care never had regular care under the existing care determination, the revocation takes effect from the date of the existing care determination. Otherwise, the revocation has effect on the day before the parent ceased to have regular care.

26. Further, s 54B of the Assessment Act effectively provides that, if a determination is made in relation to percentage of care, the determination will apply to each day in the child support period on and from the ‘application day,’ unless the determination is revoked.[33]

    [33]In the present context, if the percentage of care determination is revoked under s54G of the Assessment Act, the ‘application day’ refers to the day on which the responsible person ceased to have the previously established pattern of care. If the determination is revoked under a different provisions in the Assessment Act, the ‘application day’ refers to the day immediately after the revocation of the existing determination.

    Date of effect

27. By s 43(6) of the Administrative Appeals Tribunal Act (1975) (Cth), if the Tribunal finds that the reviewable decision should be varied or set aside, the Tribunal’s decision becomes a decision of the Registrar, with effect from the date of effect of the decision under review.

28. However, if an application for review is made more than 28 days after notice of the objection decision was given, any decision made by the AAT1 which varies or substitutes the objection decision will only have effect on and from the day on which the application for review by the AAT1 was lodged.[34]

    [34]Section 95N(1) of the Collection Act.

29. The exception to this rule is if the Applicant satisfies the AAT1 that there were special circumstances which prevented them from applying for AAT1 review within the prescribed 28 day period.[35]

    [35]Section 95N(2) of the Collection Act.

30. Tribunal and judicial authorities regarding ‘special circumstances’ establish that they must objectively be ‘unusual’, ‘uncommon’ or ‘out of the ordinary’.[36]

    [36]Beadle and Director-General of Social Security (1984) 6 ALD 1, 3 (appeal to the Federal Court of Australia dismissed: [1984] AATA 176; (1985) 7 ALD 670); Groth v Secretary, Department of Social Security [1995] FCA 1708; (1995) 40 ALD 541, 545; Boscolo v Secretary, Department of Social Security [1999] FCA 106; (1999) 90 FCR 531 [18]; Drainchnikov v Centrelink [2003] FCAFC 133 [66]; [2003] FCAFC 133; (2003) 75 ALD 134, 148; Angelakos and Secretary, Department of Employment and Workplace Relations [2007] FCA 25 at [33]; and Davy and Secretary, Department of Employment and Workplace Relations [2007] AATA 1114.

31. Secondly, those special circumstances must have ‘prevented’ the applicant from making its claim within time. The Tribunal has previously held that the word ‘prevented’ carries its ordinary, everyday meaning being ‘to “hinder, or stop”’.[37] In this regard, it is not sufficient for circumstances to make it difficult or challenging; the  special circumstances  ‘must have been such that they served as an insurmountable block, hindrance or impediment to the lodgement taking place within the required timeframe’.[38]

    [37]Afghani and Secretary, Department of Social Services [2017] AATA 410 [62]; Shanhun and Secretary, Department of Social Services [2016] AATA 675 at [38].

    [38]Singleton and Secretary, Department of Social Services [2019] AATA 766 [42].

    PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL

1. The matter was heard in Perth on 12 August 2021. The Applicant was self-represented.  The Registrar was represented by Mr A Burgess, Special Counsel, of Sparke Helmore Lawyers.[39] Both the Applicant and the Registrar’s representative appeared via telephone. There was no appearance from the Other Party at the hearing nor did the Other Party file any evidence with the Tribunal that did not form part of the T-documents.

   [39]Given the nature of the present application, the Registrar proceeds on the basis that its role should be confined to assisting the Tribunal in identifying and applying the relevant provisions to the evidence. Accordingly, the Registrar gave no evaluation of the available evidence, did not advance a position as to the findings of fact the Tribunal is called upon to make and made no submissions as to what the correct and preferable decision in this matter is.

2. The Tribunal admitted the following documents into evidence:

   (a)the Applicant’s email dated 24 June 2021 with relevant attachments (A1);

   (b)a portion of the Applicant’s police statement, filed 14 July 2021 (A2);

   (c)a letter from Huon Domestic Violence Service, dated 9 May 2018, filed 14 July 2021 (A3)

   (d)the Registrar’s section 37 T-documents (T1 to T35) consisting of pages 1-284 (R1); and

   (e)

   the Registrar’s Statement of Facts, Issues and Contentions dated

   
   

   21 January 2021 (R2).

3. The Tribunal is satisfied that all the relevant evidence was before the Tribunal and that the parties were provided an opportunity to address it, either orally or in writing.

   EVIDENCE AND PARTIES’ CONTENTIONS

   Documentary evidence

4. The Applicant has provided the following documentary evidence:

   ·     The Applicant’s email dated 24 June 2021 with relevant attachments (A1).

   ·     Email from the Applicant’s mother signed by the Applicant and dated 28 June 2018 enclosing bank statements (R1, T17);

   ·     Calendar for the period January 2018 to June 2018 (R1, T27);

   ·     Various photographs (R1, T31); and

   ·     Various screenshots of text messages (R1, T32).

5. The Other Party has provide the following documentary evidence:

   ·     Undated letter enclosing Objection to a Child Support Decision form and other attachments (R1, T33).

6. The Tribunal notes that the Respondent’s file notes of conversations with both parties are contained at R1, T34.

   The Applicant’s evidence

7. The Applicant gave the following evidence as to the care arrangements of the child between herself and the Other Party at the relevant time:[40]

   [40]The Tribunal notes the Applicant’s evidence that follows accords with her written statement in A1.

   (a)The care arrangement was never 50/50 (in actuality).[41]

   (b)The Other Party had spent the Christmas day of 2017 together with the child, the Applicant and the Applicant’s parents.[42]

   (c)After Christmas day of 2017, and for the remainder of the school holidays, the child stayed with the Applicant’s parents.[43]  The Applicant and the Other Party went their separate ways.[44]

   (d)The Other Party did not see the child from 27 December 2017, nor did he have any contact with the child until he returned to the Applicant’s house on 14 February 2018 to collect some items.[45]  At that time, the Applicant’s parents were at her home for a few days as they were helping her move.[46] 

   (e)The Other Party saw the child for a few hours on 14 February 2018.[47]   Then, the Other Party had care of the child for the three nights from 15 February 2018.[48]

   (f)The Other Party had care of the child for a total of 23 nights from 16 February 2018 to 31 March 2018.[49]

   (g)The Other Party has not seen the child since 31 March 2018[50] and has barely called him.[51]  Any telephone contact the Other Party has with the child is initiated by the Applicant.[52]

   (h)On 31 March 2018, the Applicant and the child went to visit the Applicant’s mother on her birthday.[53]  While they were visiting, the child indicated he wished to stay on there, so the Applicant enrolled him school there and they stayed.[54]

   (i)The Applicant and the child stayed with the Applicant’s parents until July 2019.[55]

   (j)After that, the Applicant, the Applicant’s mother and the child moved to Western Australia[56] and have resided there ever since.

   [41]Transcript, p 7 [5], [10]; p 14 [15]–[25].

   [42]Transcript, p 9 [15].

   [43]Transcript, p 9 [25]–[30].

   [44]Transcript, p 9 [25].

   [45]

   [46]Transcript, p 9 [30].

   [47]Transcript, p 9 [30]–[35].

   [48]Transcript, p 9 [40].

   [49]

   [50]Transcript, p 10 [25].

   [51]Transcript, p7 [5]–[10], [30]; p 10 [30]–[35].  See R1, T27.

   [52]Transcript, p 10 [35]–[45].

   [53]Transcript, p 10 [5].

   [54]Transcript, p 10 [5]–[10].

   [55]Transcript, p 10 [10]–[15].

   [56]Transcript, p 10 [10]–[15].

   The Applicant’s submissions

8. The Applicant’s submission in this matter is straightforward.  Essentially, the Applicant submits that the Reviewable Decision is wrong because she and the Other Party simply never shared care of the child on a 50/50 basis, either from  26 January 2018 or at any point in time after this date.

   The Other Party’s submissions

9. The Other Party did not make any submissions in the present application.  For completeness, there is insufficient material before the Tribunal for it to deem or infer any such submissions.

   CONSIDERATION

   Whether the existing determination of percentage of care made on 23 May 2019 should be revoked and replaced

10. The first matter for the Tribunal’s consideration is whether, the existing determination of percentage of care made on 23 May 2019, being that from 26 January 2018, the Applicant and the Other Party each had 50/50 care of the child, with effect from 8 March 2019, should be revoked and replaced.  If not, then the existing percentage of care determination remains in place and that ends the Tribunal’s consideration of the matter.

11. This requires the Tribunal to determine what percentage of care the Applicant and the Other Party each had of the child during the care period[57], and, if there was a change in care, from what date that change in care occurred.

    [57]As the relevant care period has passed, the Tribunal must determine the percentage of care by, in turn, determining the pattern of care that occurred during the relevant period, being the 12-month period from the day on which the actual care of a child changed.  Refer to n 21.

    Was there a change in care?  If so, on what date did the change in care occur?

12. The Applicant and the Other Party agree that a change in care occurred, but disagree as to when it occurred. The point in time in which the change in care occurred, (if indeed the tribunal ultimately finds that a change in care did occur) is an essential finding of fact as the date of the change is the appropriate commencement date of the care period. 

13. As the relevant care period has passed, the Tribunal must determine the pattern of care that occurred during the 12-month period from the day on which the actual care of a child changed.[58] 

    [58]Refer to n 20.

14. The Applicant and the Other Party agree on the following matters in relation to percentage of care of the child:[59]

    (a)In late 2017 they agreed to move into their own homes when their rental lease expired on 25 January 2018.

    (b)On 30 November 2017, the Applicant left the family home and returned just before Christmas.

    (c)During this period, the Applicant’s mother moved into the family home.

    (d)The Applicant, the Other Party and the child spent the Christmas of 2017 with the Applicant’s parents.

    (e)The Applicant returned to her home from 29 December 2017 to 11 January 2018 and the child stayed with the Applicant’s parents.

    (f)On 25 January 2018, the Applicant and the Other Party both moved out of their family home and it was initially agreed they would have 50/50 care of the child.

    [59]R1, T4, p 13.

15. The Tribunal understands that the Applicant and the Other Party disagree as to the actual amount of care they each had of the child from December 2017 onward.

16. The evidence before the Tribunal in the present matter as to the pattern of care has been provided solely by the Applicant.  The Tribunal relies upon, in particular the Applicant’s calendar[60] and the Applicant’s evidence at hearing.  The Tribunal considered the Applicant to be a credible witness, who gave a detailed and clear historical account of her own recollection of the division of care between herself and the Other Party from late 2017. 

    [60]R1, T27.

17. As such, and without any responsive evidence from the Other Party, the Tribunal accepts the Applicant’s evidence as to the care of the child at the relevant time.  That is, the Tribunal finds that:

    (a)In terms of their living arrangements, the Applicant and the Other Party parted ways on 26 January 2018.  At this time, the child was staying with the Applicant’s parents for the remainder of the school holidays.

    (b)The Other Party had care of the child for 23 nights from 16 February 2018 to                 31 March 2018.

    (c)The Other Party has not seen the child since 31 March 2018 and the child has been in the Applicant’s care for 100% of the time since this date.

    (d)The child returned to the Applicant’s care on a 100% basis on 26 January 2018, the date that they moved into their new home.[61]

    (e)The care arrangements for the child from Christmas 2017 through to the end of March 2018 are temporary and do not accurately reflect the pattern of actual care for the duration of the care period.

    [61]See the Applicant’s calendar: R1, T27, p 143.

18. Therefore, applying these factual findings, the Tribunal also relevantly finds, for present purposes:

    (a)The existing determination of percentage of care made on 23 May 2019 should be revoked and replaced.

    (b)The new percentage of care determination is:

    (i)Applicant – 100% care of the child; and

    (ii)Other Party – 0% care of the child.

    (c)The relevant commencement date 26 January 2018, this being the date on which the Tribunal has found the change in care occurred.

    (d)The date from which the new percentage of care determination should have effect is 8 March 2019, being the date the objection was lodged.[62]

    [62]See above n 12 and paras [10], [13], [38]–[44] in this regard. 

19. As to date of effect, the Respondent submitted that as the parties did not specifically request review of the AAT1’s decision not to make a determination under s95N(2) of the Collection Act, the Tribunal does not have jurisdiction to review this aspect of the reviewable decision and any decision made by the Tribunal can only have effect from 8 March 2019, the day the AAT1 objection was lodged.[63]

    [63]See R2 [50]; the Tribunal has set out its related comments at n 13 above.

20. Given that, s 95N(2) of the Collection Act is couched in terms that requires the Tribunal to be satisfied that special circumstances either did or did not exist, in accordance with the requirements of that Act, the Tribunal need not make a finding as to jurisdiction.

21. This is because no submission or evidence has been put as to special circumstances to the Tribunal, and the outcome in either case, whether:

    (a)it was borne of a finding of no jurisdiction (if one adopts the Respondent’s approach), or

    (b)it was because the Tribunal was unable to satisfy itself of the requisite special circumstances,

    is that the date of effect is 8 March 2019, the date the objection was lodged.

    CONCLUSION

22. The Tribunal has found that there is sufficient evidence to disturb the existing percentage of care determination currently in place between the Applicant and the
    Other Party. As such, the Tribunal concludes that the existing care determination of percentage of care made on 23 May 2019 should be revoked and replaced with the decision set out at paragraph 54 below.

    DECISION

23. For the reasons outlined above, the correct or preferable decision is to:

    (a)Affirm the Reviewable Decision insofar as it determined that the relevant commencement date is 26 January 2018.

    (b)Affirm the Reviewable Decision insofar as it determined that the date of effect is 8 March 2019.

    (c)Set aside the Reviewable Decision insofar as it determined that the Applicant and the Other Party each had 50/50 care of the child for the duration of the care period and substitute the decision that the Applicant had 100% care of the child and the Other Party had 0% care of the child during that time.

I certify that the preceding  54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Member
L M Gallagher.

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

Associate

Dated: 26 November 2021

Date of hearing:	12 August 2021
Applicant:	Self-represented
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers

A child cannot be in the care of more than one person at the same time (s 54A(3) of the Assessment Act).

Transcript, p 7 [5]–[10].  The Tribunal notes this is reflected in the Applicant’s calendar.  See R1, T27. 

See also the Applicant’s mother’s statements at R1, T17, [8].

Transcript, p 7 [10], [35]; p 8 [15].  The Tribunal notes this is reflected in the Applicant’s calendar. 

See R1, T27.