RDQD and Child Support Registrar (Child support second review)

RDQD and Child Support Registrar (Child support second review) [2020] AATA 4655 (20 November 2020)
Division: GENERAL DIVISION
File Number(s): 2018/6860
Re:RDQD
APPLICANT

AndChild Support Registrar
RESPONDENT

AndXVHS
OTHER PARTY

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:20 November 2020
Place:Sydney

The reviewable decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 5 November 2018 is set aside and in substitution it is decided that the mother provided 86% care for the children and the father 14% to take effect from 1 May 2018.
.......................[SGD].................................................
The Hon. John Pascoe AC CVO, Deputy President
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 determinations – whether each parent had pattern of care for the children – relevant care period – whether the existing percentage of care determination must or should be revoked and a new determination be made – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Child Support (Assessment) Act 1989 (Cth) ss 5, 49, 50, 51, 54A, 54B, 54F, 54G, 54H, 55C
Child Support (Registration and Collection) Act 1988 (Cth) (‘Collection Act’) ss 4, 96A(b) Family Amendment and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth)
A New Tax System (Family Assistance) Act 1999 (Cth)
Cases
Polec v Staker and Another [2011] FMCAfam 959; 253 FLR 339
P v Child Support Registrar [2012] FCA 1398
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Secondary Materials
Child Support Guide, version 4.46, 10 February 2020
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
20 November 2020

Background

The applicant in this matter (‘the father’) and the other party in these proceedings (‘the mother’) are parents to two children, born in May 2010 and February 2013.
On 15 September 2017, a child support case was registered in respect of the children with the care percentages reflecting that the mother had 100% care of the children and the father 0%.
On 12 October 2017, the father notified the respondent (‘the Registrar’) that there had been a change in the actual care of the children from 6 October 2017. He reported that from 6 October 2017 he had care of the children on one Friday and Saturday night per fortnight, which was confirmed by the mother. Accordingly, the Registrar determined new care percentages from 6 October 2017 to reflect that the mother provided 85% care for the children and the father 15%.
On 25 October 2017, the mother objected to the Registrar’s determination on the basis that the father only cared for the children for one to two nights per fortnight and was not expected to provide care for them during school holidays.
On 10 January 2018, the mother informed the Registrar that the standard pattern of care provided by the father was on Friday and Saturday nights every other weekend and provided dates where the father had provided care or had missed providing care for the children.
On 24 January 2018, an objections officer, a delegate of the Registrar, allowed the mother’s objection in part. The objections officer found that the father had established a pattern of care, being two nights per fortnight, and that there had been a minor disruption which was made up by him the following week. Accordingly, the objections officer determined that from 6 October 2017, the mother provided 86% care for the children, and the father 14% to take effect from 6 October 2017.
On 1 May 2018, the mother applied to the Registrar to amend the child support assessment on the basis that the father had not had fortnightly care for the children over the school holidays as he had missed two occasions.
On 2 May 2018, the father advised the Registrar that there had been no change in care and that he had been denied access to the children on the two occasions in question. During this time, the father advised that there was a mediated agreement between the parents as to the care arrangements for their children.
On 12 May 2018, the Registrar determined new care percentages reflecting that from 1 May 2018 the mother had 90% care of the children and the father 10%.
On 29 May 2018, the father objected to the Registrar’s determination on the basis that the mother had denied him access to the children during the school holidays. He also provided the Registrar with a copy of an unsigned Shared Parenting Plan (‘the Agreement’) agreed in October 2017 but which was no longer being followed by the mother. The Agreement noted that the father would have the children on Friday and Saturday nights in week one, and Friday evening in week two. The father and mother had agreed to “text message each other regarding any intention [they] have to go on holiday with the boys, giving as much notice as possible” and to “share information with each other about any holiday destinations and plans prior to taking [the children] on vacation”.
On 26 June 2018, the mother informed the Registrar that care had been provided in accordance with the Agreement, other than during the school holidays where she had care of the children to visit her family. The mother requested that the May 2018 determination, namely 90% care percentage to the mother and 10% to the father, be backdated to the start of the “first missed event”, being approximately 21 April 2018.
On 3 September 2018, an objections officer allowed the father’s objection to this determination (‘the objection decision’). The objections officer determined that they were not satisfied that there had been a change to the pattern of care. Accordingly, the objections officer reinstated the care percentages as determined in the existing care percentage determination and applied them from 1 May 2018.
On 4 September 2018, the mother applied to the Social Services & Child Support Division of the Administrative Appeals Tribunal (‘AAT1’) for review of the objection decision.
On 5 November 2018, the AAT1 set aside the objection decision made on 3 September 2018. The AAT1 considered the care that was actually provided by the parents and found that a pattern of care had emerged in which the father provided care for the children for two nights per fortnight, rather than the three nights as specified in the Agreement. Accordingly, the AAT1 revoked the existing care percentage determination and decided that from 1 May 2018 the mother had 87% care of the children and the father had 13% care.
On 12 February 2020, the Administrative Appeals Tribunal differently constituted (‘AAT2’) set aside the AAT1’s decision.
The Federal Court set aside the decision of AAT2 and remitted the matter to the Administrative Appeals Tribunal (‘the Tribunal’) on 11 June 2020 to be heard and decided again.
Accordingly, the father is currently seeking review of the AAT1 decision dated 5 November 2018, which set aside the decision of the Registrar dated 3 September 2018 and determined that from 1 May 2018 the mother provided 87% care of the children and the father provided 13% of the care.
The law
The relevant legislative provisions are contained in the following Commonwealth Acts:
(a)Child Support (Assessment) Act 1989 (Cth) (‘Assessment Act’);
(b)Child Support (Registration and Collection) Act 1988 (Cth) (‘Collection Act’); and
(c)Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).
It is important to note that most of the relevant provisions in the Assessment Act were amended in 2018 by the Family Amendment and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (‘Amending Act’). Those amendments apply in relation to any change of care day occurring on or after 23 May 2018. As discussed in detail below, I have identified 1 May 2018 as the change of care day, and therefore the applicable version of the Assessment Act is that in force immediately before the amendments in 2018. I have therefore outlined and considered the pre-amendment versions of the relevant provisions where they differ from the current versions.
Further guidance is provided by the Child Support Guide, which is to be applied in the absence of compelling reasons not to do so (P v Child Support Registrar [2012] FCA 1398 at [3]; Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Tribunal’s jurisdiction to review the decision of AAT1 is found in section 4 and section 96A(b) of the Collection Act. All of the necessary pre-conditions for review have been met.
In firstly determining whether the existing care percentage determinations must or should be revoked, the followings sections of the Assessment Act are relevant, specifically sections 54F, 54G and 54H, which I have considered and outlined in full below.
The pre-amendment version of section 54F relevantly states as follows:
54F Determination must be revoked if there is a change to the responsible person’s cost percentage
If:
(a)       a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)       if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(c)       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
(d)       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
(e)       section 54G does not apply;
the Registrar must revoke the determination.
Note:         The Registrar must make a new determination under section 49
or 50 to replace the revoked determination: see
paragraph 49(1)(b) or 50(1)(b).
(2)       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)(c) within 28 days after the change of care day for the responsible person:
(i)        in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii)       otherwise—the day before that 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 but before the interim period for the determination has ended—the day on which the interim period ends; or
(c)       otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
Section 54G, which was not amended by the Amending Act, states as follows:
54G Determination must be revoked if there is less than regular care etc.
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.
Section 54H, being the pre-amendment version, provides:
54H Registrar may revoke a determination of a responsible person’s percentage of care
If:
(a)       a determination of a responsible person’s percentage of care (the existing percentage of care) for a child has been made under section 49 or 50; and
(b)       if section 51 or 52 applied in relation to the responsible person—the interim period for the determination has ended; and
(c)       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
(d)       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
(e)       sections 54F and 54G do not apply;
the Registrar may revoke the determination.
Note:         If the Registrar revokes the determination, the Registrar must make a new determination under section 49 or 50 to replace the revoked determination: see paragraph 49(1)(b) or 50(1)(b).
(2)       If the Registrar revokes the determination, the revocation 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)(c) within 28 days after the change of care day for the responsible person:
(i)        in a case where that change of care day occurs during the interim period for the determination—the day on which the interim period ends; or
(ii)       otherwise—the day before that 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 but before the interim period for the determination has ended—the day on which the interim period ends; or
(c)       otherwise—the day before the day on which the Registrar or the Secretary is notified, or otherwise becomes aware, of that matter.
The issueS
The Tribunal must determine:
(a)whether the existing care percentages, as determined by AAT1 in its decision dated 5 November 2018, must or should be revoked; and
(b)if so, what are the respective care percentages of the father and the mother during the care period.
The evidence
The Tribunal accepted into evidence all of the information previously provided by the parties in relation to the hearings conducted by AAT1 and AAT2. There were many volumes of material, including documentation of text messages, diary entries, after school care records and tables setting out each parties’ versions of events, much of it conflicting and often without corroborating material. Some of the material lodged with the Tribunal was not relevant to the current proceedings as it related to a period outside the ambit of the relevant care period in question.
There was a significant level of hostility between the parties which, whilst not unusual in such cases, can make it more difficult to determine issues, particularly when matters normally considered uncontentious cannot be agreed upon. I have read and considered all of the material submitted by both parties, but as much of the material was unsubstantiated, contested and/or conflicting, I have chosen not to go through that evidence in detail but rather to focus on the evidence and findings of fact relevant to the decision I have made.
I note that at the end of the hearing the mother made allegations against the father of domestic violence and said that she feared for her safety. No evidence was provided to support this allegation at the current hearing, although I note that the allegation has been previously made and there was some evidence including the father’s oral evidence of an Apprehended Violence Order (‘AVO’) having been in place which may have affected the father’s capacity to see the children. There was no objective evidence before the Tribunal that it had affected the father’s access during the relevant care period. The mother was urged to deal with any ongoing issues of domestic violence through the appropriate authorities.
The mother also claimed at the end of the hearing that the proceedings should have been confidential, although no such request was made prior to commencement of the hearing. The mother claimed that she had heard the father speaking to another person whom she said was in the room with him whilst he was participating in the hearing by phone. I am not aware that anyone else involved in the proceedings heard any third party voice. I did not hear such a voice. In any event, the mother was reminded that hearings of the Tribunal are generally public, and third parties may generally attend hearings of the Tribunal unless another decision is made on appropriate grounds. It is reasonable to assume, in light of previous litigation, that both parties were aware of the usual restrictions which apply to hearings of this kind. No reference was made by either party to any relevant directions.
Subsequent to the hearing, the mother emailed the Tribunal on 6 October 2020 and stated as follows:
I wish to raise my concern about my hearing dated today at 10am.
I raised in the last part of the hearing a concern about another party being present with [the father].
It is my understanding under These Directions are given under section 18B of the Administrative Appeals Tribunal Act 1975.
23. Adult persons who may be present at the hearing (1) At least 14 days before the hearing, you must tell us of any person (other than an interpreter or representative) whom you want to be present at the hearing.
This was not the case.
As stated above, it is not apparent that any other party to the telephone hearing heard a third person, although it may be that the mother is blessed with particularly acute hearing. Furthermore, it is not unheard of for another person to come into the room temporarily when a party to the proceeding is appearing by telephone or video link external to the Tribunal.
In the circumstances of this case, I am unable to make any determination as to whether any third party was in the room with the father at any time during the hearing. The mother requested the matter be heard as a telephone hearing given difficulties with her internet and is likely aware of the limitations of telephone hearings where it is not possible for the Tribunal to visually observe or check every person in every location. In any event, the judgement does not turn on this issue.
The father’s evidence

The father gave evidence that the children were not made available by the mother on a number of occasions, involving overnight time. Examples he noted at the hearing included the 20, 21 and 22 April 2018, 27 April 2018, 14 July 2018, 18 and 19 August 2018, 5, 6 and 7 October 2018, 9, 10 and 11 October 2018, 7 December 2018, 24 December 2018 to 10 January 2019, 12 April 2019 and 19 to 22 April 2019.
The father said that he was ready and able to take the children on all of the above times but that the mother had nevertheless refused to make them available. These dates were set out in a table produced by the father detailing the care he said he had provided and the nights the children were not made available.
The parenting plan agreed to by the mother and father in October 2017, which was part of the evidence submitted by the parties, stated relevantly that the children would continue to live with the mother, and that the father would have the children on Friday and Saturday nights in Week One, and Friday evening in Week Two. The Agreement made no mention of school holidays but the parents agreed that they would “text message each other regarding any intention we have to go on holiday with the boys, giving as much notice as possible” and “share information with each other about any holiday destinations and plans prior to taking [the children] on vacation”. The father said that the parenting plan had never been signed and was generally not complied with by the children’s mother.
The father said that he finally went to court to seek proper parenting orders for the children because it was impossible to reach agreement with the mother. He provided evidence of this to the Tribunal.
The father disputed the finding of AAT1 that he had only cared for the children for 50 nights from the commencement of the agreement and said that he had cared for the children for at least 52 nights during this period. The father said that he had been able to have some make up time with the children for the nights where he said the mother did not make the children available. The father also gave evidence that he had time with the children which was not overnight time, but which occurred on a regular fortnightly basis. He also had some ad hoc time with the children, again usually only for a few hours but not overnight. The father provided a number of charts/tables setting out the details of his time with the children which were very detailed and ran for many pages.
The mother’s evidence
The mother agreed with the father that the care plan had not been signed. She said that despite the provisions of the plan, the arrangements for the children had to be negotiated on a week by week basis. She said that school holiday care in particular was subject to negotiation and that her only obligation in relation to school holiday periods was to inform the father about what was happening and whether or not the children could be available. The mother said in a text message in May 2018 “holidays are not normal routine & are with me as discussed at mediation”.
The mother said that she always kept the father informed when the children were going away for holidays or when they had sporting commitments. She said that the father was aware that the children would not be available on the occasions he claimed he was unable to see the children.
The mother also said that for the last four years the father had not had the children during the holiday period. The mother gave evidence that the father had the children over the Christmas period in 2019 and had refused to return the children. The mother said she had notified the police and had gone to very considerable effort to have the children returned.
The mother said that the times when the children were available had to be changed because they competed at a high level in competitive sports. There had also been other events where the children had been unavailable, such as the maternal grandfather’s illness and the necessity to visit him when this was possible.
In the mother’s opinion, the father had not taken reasonable action to negotiate alternative arrangements for care over the school holiday period. In particular, she said that the father only wanted the children on the weekends and that he did not look after them at other times during the week.
The mother also said it was relevant that the father had not sought court orders in relation to the care of the children.
The mother had previously given evidence that her decisions in relation to whether or not the children would be made available was not impacted by the knowledge that a care percentage below 14% would have a significant effect on the father’s child support payments and that this was not a factor in relation to her lodging an objection in May 2018.
The mother claimed that a number of the text messages that were produced to the Tribunal by the father were in fact not text messages from her. I note that the mother raised similar allegations after the previous AAT2 hearing, but again she produced no evidence to support such claims, nor did she give a detailed breakdown as to which particular messages were, in her opinion, not authentic.
The mother said that the father had care of the children for fewer than 52 nights.
Judgement
In this case, the issue before the Tribunal is in relation to the percentage of care determinations between the mother and the father for their two children during the relevant care period.
The facts of the case are set out in detail above, but briefly, in September 2017 a child support case was registered, reflecting 100% care of the children to the mother. In October 2017, there was a change in the percentage of care to 85% for the mother and 15% to the father.
Following an objection and an internal review by the mother, a decision was made on 24 January 2018 that the care percentage was 86% to the mother and 14% to the father with these changes in percentage to be given effect from 6 October 2017.
In October 2017, the parties entered into a parenting plan, which relevantly provided that the children would continue to live with the mother and that the father would have the children on Friday and Saturday nights in Week One, and Friday evening in Week Two. The Agreement made no mention of school holidays but the parents agreed that they would “text message each other regarding any intention we have to go on holiday with the boys, giving as much notice as possible” and “share information with each other about any holiday destinations and plans prior to taking [the children] on vacation”.
The plan was, however, never signed. Under the provisions of section 51 of the Assessment Act, which refers back to the A New Tax System (Family Assistance) Act 1999 (Cth) (‘Family Assistance Act’), a parenting plan as defined must generally be signed. It is open to the Tribunal to find that a parenting plan exists even though there was not a written or signed document for the purposes of the Assessment Act. However, in this case, there is no evidence that the plan was followed by the parents other than in a general and rather haphazard manner.
In May 2018, the mother notified the respondent of a change in the pattern of care. The primary issued raised by the mother was that the father had missed care periods where he was meant to have care of the children during the school holidays. The father said that this was because of the mother’s actions in not making the children available. This was supported by text messages from both parties. I accept the father’s evidence in this regard.
On the 12 May 2018, a decision was made where the mother’s care percentage was 90% and the father 10%. The decision had effect from 12 May 2018.
In September 2018, a new objection decision was made, and the care percentages were changed to 86% for the mother and 14% for the father.
In November 2018, on appeal, AAT1 determined that from 1 May 2018 the percentage of care was 87% to the mother and 13% to the father.
It is important to note that the difference of one percent, although insignificant on its face, is significant in terms of the Assessment Act, where regular care is taken to be from 14% to 35% (section 5(2) of the Child Support Act). Accordingly, once care is below 14% it results in a material increase in child support liability.
The decision of AAT1 was appealed to AAT2, which revoked the care percentage determination and decided in substitution that from 1 May 2018 the mother had 87% of care of the children and the father had 13%.
On 11 June 2020, the decision of AAT2 was remitted by the Federal Court of Australia following an appeal by the mother on the basis that the AAT2 had misapplied the Assessment Act. In particular, AAT2 misapplied the statutory test by failing to consider whether section 54F of the Assessment Act applied to the facts before it.
As pointed out to the parties, the Tribunal must now consider the matter afresh and it is not limited in the evidence it may consider (Shi v Migration Agents Registration Authority (2008) 235 CLR 286). In other words, the Tribunal is not confined to the evidence previously presented to AAT1 or AAT2.
All of the evidence previously presented to the Tribunal before AAT1 and AAT2 was taken into evidence in the current hearing along with other material put on behalf of the parties at the hearing and the mother and father’s oral evidence.
In coming to a decision in relation to this matter, it is necessary for the Tribunal to follow what might be considered a rather winding and somewhat narrow path in determining the respective care percentages and whether the existing AAT1 care percentage determination must or should be revoked.
Relevant care period
In determining the relevant care period, guidance is given by the Child Support Policy Guide. Normally a care period is 12 months from the date it is determined that the relevant care period first commenced.
In the current case, I find that the new care percentage determination takes effect from 1 May 2018. This is consistent with the decision of AAT1. In this regard, I note that section 54B of the Assessment Act dictates the date from which any new care percentage determination made by the Tribunal under sections 49 or 50 of the Assessment Act must take effect. In accordance with section 54B(2)(c)(ii) of the Assessment Act, the date of effect of such a determination will be 1 May 2018, being the date beginning immediately after the revocation of the previous determination takes effect. The Tribunal has no power to order otherwise.
At the hearing, the mother said that the care period should in fact date from 3 September 2017, whereas the father agreed that the appropriate care date of effect should be from 1 May 2018. For the reasons outlined above, I find that the new care percentage determination takes effect from 1 May 2018.
The father and the mother working with the Family Relationship Centre agreed on a framework for a parenting plan including time in the school holidays, at least in relation to consultation, on 4 October 2017. Both AAT1 and AAT2 considered the care of the children by the father and mother from October 2017 to September 2018. I agree that this is appropriate, noting that this period includes school holiday time which is at the centre of the dispute between the parties.
Pattern of care and care percentages
In considering whether there was pattern of care during the care period and, if so, the percentages of care by the parents during that period, assistance in determining whether care exists is provided in the Guide at 2.2.1. The Guide provides:
Determining whether care exists
An object of the CSA 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: It should be noted that the above are the pre-amendment versions of all the relevant legislation.
•          To what extent the person has control of the child, including having overall responsibility for the child and making:
o         major decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and
o         arrangements for others to meet the needs of the child (delegated care).
•          To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.
•          To what extent the person pays for the costs of meeting the needs of the child.
•          To what extent the person otherwise provides financial support for the child.
•          To what extent the child provides for his or her own needs or has those needs met from another source.
•          To what extent the child is financially independent or financially supported from another source.
The parties seemed to agree that there was a pattern of care between the parents. The issue was rather the percentage of care of each parent and whether the existing care percentages as determined by AAT1 should or should not be revoked. In any event, I find that there was a pattern of care, based upon the parenting plan and the evidence of both parties including the tables submitted and the oral evidence at the hearing.
In determining the percentages of care between the parents, the Tribunal should consider:
(a)a determination, for an interim period, of a percentage of care based on a written agreement, parenting plan or court order in certain circumstances; or
(b)the actual care that each parent provides; or
(c)a below regular care determination, where a parent's care falls below 14% despite the child being made available to the person.
In considering the percentage of care, the first matter for the Tribunal to determine is whether or not there was a care agreement in place and, if so, whether the terms of that agreement were complied with, as a percentage of care determination may be based on a written agreement, parenting plan or court order in certain circumstances.
In the current circumstances, I find that there was not a care agreement for the purposes of determining care percentages in place during the relevant care period. The purported care agreement was not signed and both parties gave clear evidence that its provisions were not always complied with. In fact, the mother said that the agreement was meant to be a basis for discussion, and I find that her actions were in fact consistent with that approach. I am therefore not satisified that a percentage of care for the mother and father can be ascertained on the basis of the written agreement of the parties, as the agreement was not signed and does not appear to have been followed by either of the respective parents.
Having determined that there is no care agreement in place, it is now necessary to consider the actual care each parent provided.
The father gave evidence and provided a series of tables which indicated periods when he claimed he was willing and able to take care of the children, but they were not made available by the mother. The mother said that this was consistent with the idea that the care arrangements were meant to be fluid and negotiated. She said that the children were not made available because they had sporting commitments, she had planned to take them away or because it had been necessary to visit their maternal grandfather who was experiencing major health problems.
The mother said that the father should have sought alternative overnight time with the children and that he had failed to do so. In this regard, there are a series of messages between the father and the mother in relation to periods where, if the care arrangement was in place, the children would have been made available to the father, in which the father requested time with the children and the mother replies simply that the children are not available. For example, the text messages provided by the mother to the Tribunal contain various instances where the father asked for time to see the children over the school holidays and the mother stated: “[the children] are on holidays and are in my care for the holidays…”, “we have two week holidays and you are only prepared to do a weekend… or when you are not working. The parenting plan states that boys are with me and vacations are notified in advance” and “you have been notified in advance as stated in parenting plan. Please message someone else… we are busying have amazing holidays”.
From the evidence before the Tribunal, it appears that the mother does a lot to encourage the children in their sporting pursuits and other extra-curricular activities and is motivated to do the right thing for the development of the children. However, despite her opinion of the father, this must be balanced against the benefits of the children having a relationship with both parents.
The mother and father provided conflicting material individually detailing charts as to the time spent with the children. At the hearing, the mother raised concerns about the authenticity of some of the text messages produced as evidence by the father but did not produce any evidence that would substantiate such a claim.
In its decision, AAT1 included a calculation as to the number of nights the children had spent in the father’s care as follows:
October 2017             4
November 2017         4
December 2017         4
January 2018             4, 5, 6, 7, 19, 20 = 6
February 2018           2, 3, 16, 17 = 4
March 2018                9, 10, 23, 24 = 4
April 2018                   7, 8 = 2
May 2018                   4, 5, 18, 19, 26 = 5
June 2018                  15, 16, 29, 30 = 4
July 2018  27, 28 = 2
August 2018               3, 4, 5, 6, 10, 24, 25 = 7
September 2018        7, 8, 21, 22 = 4
AAT1 stated in the judgement that the parties had agreed on the calculation and that there was therefore 50 nights of care provided by the father. The calculation was not directly referred to by AAT2, where the decision was made on different grounds and so the calculation was less relevant.
In the hearing before me, the parties did not agree with the calculations set out in the judgement of AAT1. In particular, the father drew attention to additional days where he had had overnight care of the children to make up for times missed where the children were unavailable, in addition to make up time which was not overnight. I accept the father’s evidence in this regard.
For instance, the 23 and 24 February 2018 is additional overnight time detailed in the father’s tabulation which should be added to the number of nights calculated by AAT1. In the text messages before the Tribunal between the father and the mother, the father agreed to take care of the children over the weekend of 23 and 24 February 2018 on both nights, arranged a time for the children to be dropped off on 23 February 2018 and in the night the mother messaged asking to speak with the children, who were in the care of the father at this time. On Sunday, 25 February 2018, the children are dropped home to the mother, as evidenced by the text messages. I note that the mother acknowledged in her statement dated 5 June 2019 that the father had care of the children on the night of 24 February 2018 and that there was a conflicting text message about the 23^rd of February 2018, so she was uncertain about the care of the children on this date.
The mother disputed some of the nights in August 2018 included in the AAT1 calculation. Her calendar submitted to the Tribunal on 17 October 2019 shows only four nights of care of the children in August 2018, for instance, but I am of the opinion that the findings of AAT1 in relation to the 50 instances of overnight time were correct as they were supported by text messages between the parties submitted to the Tribunal. Accordingly, I find that the inclusion of those dates for the purposes of determining time spent in the father’s care is correct.

On the evidence before the Tribunal, I therefore find that there are two additional days, specifically the 23 and 24 February 2018, which should be added to the AAT1 calculation of 50 days. In relation to the additional days, they are supported either by the tables/calendar submitted by both parties or by the text messages between the mother and father submitted by the father, which make it clear that he had care of the children. Accordingly, I am satisified that the father has had overnight care of the children for at least 52 nights and therefore has 14% care of the children.
I consider it likely that there were times additional to 23 and 24 February 2018 when the father provided care overnight at times randomly agreed to make up for these school holiday times when the children were not available. I note the Guide states that if a care event is missed but substitute care occurs at another time, it is not considered as a missed event.[1] There was evidence of a number of occasions where the children had spent at least 19 hours with the father but I have not added additional nights to the AAT1 charts except for 23 and 24 February 2018, as the evidence either lacked specificity or was conflicted so that I could not be sufficiently satisified. In any event, I am satisified that the father had actual care of the children for 52 nights and therefore had 14% care of the children.
[1] Department of Social Services, Child Support Guide, ‘2.2.2 Care determinations & changes in care’, <>
On the basis of the evidence, including the amount of weekend time the father had care of the children outside of school holidays together with ad hoc make up time, I find that the father had at least 52 nights of care with the children and therefore I am satisified that the appropriate percentage of care percentage is 86% to the mother and 14% to the father.
Must or should the care percentage decision be revoked?
As I have outlined above, I am satisified that the appropriate percentage of care differed from the reviewable decision of AAT1 and should have reflected 86% percent of care to the mother and 14% to the father. In determining whether the reviewable decision must or should be revoked, I have considered whether section 54F, 54G and 54H of the Assessment Act are applicable revoking the percentages of care attributed to the mother and father from AAT1’s decision.
Revocation under section 54G
The Tribunal must firstly consider the applicability of section 54G in relation to the revocation of AAT1’s decision, as section 54H can only apply if sections 54F and 54G do not apply (section 54H(1)(e)) and section 54F can only apply if section 54G does not apply (section 54F(1)(e)).
In relation to section 54G 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 “regular care” is provided by a person if that person’s “percentage of care for the child during a care period is at least 14% but less than 35%” (section 5(2) of the Assessment Act).
As I have outlined above in my consideration of the percentages of care for both parents, I am satisified on the basis of the evidence that the appropriate percentage of care is 86% to the mother and 14% to the father. Accordingly, section 54G does not apply, because I am satisified that the father does have a regular pattern of care of 14%.
Revocation under section 54F
As section 54G of the Assessment Act does not apply, I have considered whether section 54F applies to revoke the previous care percentages as determined by AAT1. In doing so, I have considered whether the care of the children actually taking place did or did not correspond with the person’s existing care percentage, and if it did not, whether the person’s cost percentage would change if a new determination were made.
A person’s cost percentage for the purposes of section 54F is to be ascertained in accordance with the table in section 55C of the Assessment Act as follows:
As previously discussed, I have determined that the father’s care percentage should be 14% based on the evidence, as opposed to 13% percentage of care decided in the AAT1 decision under review. Accordingly, the father’s cost percentage has changed from ‘nil’ to ‘24%’ in accordance with the above table in section 55C of the Assessment Act.
Given the father’s change in cost percentages as a result of the actual care provided as I have discussed above, this engages the provisions of section 54F regarding mandatory revocation of the previous decision where there is a change to the responsible person’s cost percentage.
Revocation under section 54H
Having decided that section 54F applies to revoke the previous determination, it follows that section 54H does not apply (section 54H(e) of the Assessment Act).
Determining percentages of care
As I have decided to revoke the existing determination, I must now consider whether section 49, 50 or 51 of the Assessment Act is applicable to make a new care percentage determination.
The pre-amendment version of section 49 relevantly provided:
49 Determination of percentage of care—responsible person has had etc. no pattern of care for a child
(1)       This section applies if:
(a)       …
(b)       the Registrar:
(i)        revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under this section or section 50; and
(ii)       is satisfied that the responsible person has had, or is likely to have, no pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2)       The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)       The percentage of care determined under subsection (2) must be 0%, unless section 51 applies in relation to the responsible person.
I am satisified that section 49 does not apply in the current circumstances in determining the father and mother’s percentage of care, as I have already determined that the parties did have a pattern of care for the children during the relevant period. Section 49 is specifically about determinations where the responsible person(s) has had no pattern of care for a child.
The pre-amendment version of section 51 of the Assessment Act provides:
51 Percentage of care if action taken to ensure that a care arrangement in relation to a child is complied with
(1)       This section applies if:
(a)       the Registrar is required by section 49 or 50 to determine a responsible person’s percentage of care for a child during a care period; and
(b)       a care arrangement applies in relation to the child; and
(c)       the Registrar is satisfied that the actual care of the child that the responsible person has had, or is likely to have, during the care period does not comply with the extent of care of the child that the person should have had, or is to have, under the care arrangement during that period (which may be nil); and
(d)       a person who has reduced care of the child has taken reasonable action to ensure that the care arrangement is complied with.
Note:         This section does not apply in certain circumstances: see section 53.
The Guide provides some guidance when considering what constitutes a written agreement at [2.2.4], specifically:
A written agreement exists between separated parents (or a parent and another person who cares for the child) if:
• there is a document in writing;
• the document is signed and dated by both parties; and
• both parties agree on the care arrangements for the child, which are specified in the document.
The provisions of section 51, in my opinion, do not apply to the current circumstances, as I am not satisified that the mother and father had a care arrangement in place in relation to the children. I note that the agreement between the parties as to the care of the children has not been signed and secondly that the purported care arrangement was not always complied with and was rather used as a reference tool for consultation or, in some instances, a lack of consultation where the mother made a decision not to make the children available to the father.
The relevant provision is therefore section 50 of the Assessment Act in making a new determination on percentage of care where the parent(s) have had a pattern of care for the child. The pre-amendment version of section 50 relevantly provided:
50 Determination of percentage of care—responsible person has had etc. a pattern of care for a child
(1)       This section applies if:
(a)       …
(b)       the Registrar:
(i)        revokes, under Subdivision C of this Division, a determination of a responsible person’s percentage of care for a child that was made under section 49 or this section; and
(ii)       is satisfied that the responsible person has had, or is likely to have, a pattern of care for the child during such period (the care period) as the Registrar considers to be appropriate having regard to all the circumstances.
(2)       The Registrar must determine the responsible person’s percentage of care for the child during the care period.
(3)       The percentage determined under subsection (2) must 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.
(4)       Subsection (3) does not apply if section 51 or 52 applies in relation to the responsible person.
Accordingly, pursuant to section 50, I am satisified that the percentage of care should reflect 86% of care to the mother and 14% to the father, having regard to the actual care provided to the children and with the date of effect being 1 May 2018.
DECISION
On the basis of the evidence, I am satisified that the father did have 52 nights of actual care of the children so as to have 14% care of the children. In substitution for times missed during the holiday period or where the children were not made available, the father was able to have substitute overnight time with the children when they were available, plus other time that was not overnight time.
Accordingly, I am satisified that the reviewable decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal dated 5 November 2018 should be set aside and in substitution it is decided that the mother provided 86% care for the children and the father 14% to take effect from 1 May 2018.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of the Hon. John Pascoe AC CVO, Deputy President.

.............................[SGD]...........................................
Associate
Dated: 20 November 2020

Date of hearing: 6 October 2020

Applicant:
Other party:

In person (by telephone)

In person (by telephone)

Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore Lawyers

[2020] AATA 4655

20 November 2020

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