RXRZ and Child Support Registrar (Child support second review) - [2024] AATA 3542

RXRZ and Child Support Registrar (Child support second review) [2024] AATA 3542 (7 October 2024)
Division:GENERAL DIVISION
File Number(s): 2023/7883
Re:RXRZ
APPLICANT

AndChild Support Registrar
RESPONDENT

AndXPKP
OTHER PARTY

DECISION
Tribunal:Member L M Gallagher
Date:7 October 2024
Place:Perth

The Reviewable Decision is set aside and substituted with a decision that:
(a)The care period commenced on 10 July 2022.
(b)The care period ended on 29 April 2023.
(c)During the care period, the Applicant had 79% care of the children and the Other Party had 21% care.
(d)The dates of effect of the new care percentage determination are:
(i)For the Applicant:
·     28 July 2022 for child L; and
·     14 August 2022 for child M.
(ii)For the Other Party:
·     9 July 2022 for child L and child M.

........................................................................
Member L M Gallagher
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 – whether there was a change in care – actual care – date of effect – evidence – decision under review set aside and substituted
LEGISLATION
Child Support (Assessment) Act (Cth) ss 5(a), 49, 49(1)(a)-(b), 50, 50(1)(a)-(b), 50(3), 51, 54A(1), 54A(3), 54F, 54F(1)(c), 54F(3)(a), 54F(3)(b)(i)-(ii), 54G, 54G(2)(b), 54H, 54H(1)(c), 54H(3)(b)(i)-(ii), 55C
Child Support (Registration and Collection) Act 1988 (Cth) ss 16(2AB)-16(2AC)
Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth)
CASES
Minister for Home Affairs v G and Another [2019] FCAFC 79
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
SECONDARY MATERIALS
Department of Social Services,
Guides to Social Policy Law: Child Support Guide,

para 2.2.1
REASONS FOR DECISION
Member L M Gallagher
7 October 2024
THE APPLICATION

The Applicant and the Other Party are the separated parents of two children, (child L and child M, together, the children).
The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) dated 28 July 2023, that the Applicant had 58% care of the children and the Other Party had 42% care, from 10 July 2022 (the Reviewable Decision).[1]
[1] R1, T2. As to date of effect, the AAT1 also found that pursuant to s 54F(3)(a) of the Child Support (Assessment) Act (Cth) (the Assessment Act), the existing care percentage determinations are revoked on the day before the change of care day (R1, T2, p 26).
ISSUE
The issue for determination by this Tribunal, being the General Division of the Administrative Appeals Tribunal (the Tribunal) is the Applicant’s and the Other Party’s respective percentages of care of the children from the relevant commencement date.[2]
[2] 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 below. As the care period is now in the past, these percentages must correspond to the actual care that took place during that period.
If the Tribunal finds that there was a change in the percentage of care from the relevant commencement date, the percentage of care determined by the AAT1 on 28 July 2023 should be revoked and replaced. If, and only if, this is the case, the following remaining issues fall for consideration:
(a)What is the new percentage of care determination?
(b)What is the date from which the new percentage of care determination should have effect for the purposes of child support? Generally speaking,[3] this date would be either:
[3] However, see further discussion at paras [30]–[31] below.
·
From the date the objection was lodged,[4] which was on

17 November 2022;[5] or
·From the date that the change in care was notified, being:
o29 July 2022 for Child L;[6] and
o15 August 2022 for Child M.[7]
[4] Section 87AA(1) of the Child Support (Registration and Collection) Act 1988 (Cth) (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.
[5] R1, T25.
[6] R1, T4.
[7] R1, T5.
BACKGROUND
The current child support case commenced on 19 November 2018.[8] The Applicant is the receiving parent and the Other Party is the paying parent.
[8] R1, T50, p 206.
The existing care percentage determinations at 1 February 2022 were:
(a)In relation to child L, the Applicant had 32% care and the Other Party had 68% care.[9]
(b)In relation to child M, the Applicant had 33% care and the Other Party had 67% care,[10]
(together, the existing care percentage determinations).
[9] R1, T50, p 181.
[10] R1, T50, p 184.
On 29 July 2022, the Applicant notified Services Australia (the Agency) that from 1 July 2022, he had 86% care of child L and the Other Party had 14% care.[11]
[11] R1, T4.
On 15 August 2022, the Applicant notified the Agency that the notification of 29 July 2022 had been in error, and that from 10 July 2022 he had 85% care of the children and the Other Party had 15% care. On the same date, the Applicant provided to the Agency a timeline of his care of the children during July 2022 and August 2022.[12]
[12] R1, T6.
On 27 August 2022, the Other Party advised the Agency that she disagreed with the Applicant’s change of care notification on 15 August 2022.[13] The Agency’s record shows an outbound call to the Other Party with the following case note:[14]
I advised [the Other Party] that [the Applicant] reported that from 10/07/2022 he has had majority care, I explained that [the Applicant] is advising that [the Other Party] now has 1 night per week. [The Other Party] disagreed with this information and explained that there was approx 2 wks where the children were with [the Applicant] because he was moving house.
[The Other Party] advised that the care pattern changed from 11/08/2022 and she is having overnight care 3 nights per week (Thurs, Friday and Saturday), Mary and Lilly return to [the Applicant’s] on Sunday night. [The Other Party] advised there are no written arrangements in place.
[13] R1, T8.
[14] R1, T8.
On 30 September 2022, the Other Party advised the Agency that she had care of the children on three nights per week.[15]
[15] R1, T12.
On 4 October 2022, the Other Party provided a letter of support from a friend, stating that the children stayed with the Other Party ‘From Thursday afternoon until Sunday afternoon each & every week, it has been this way for approximately 4/5 weeks consistently’.[16]
[16] R1, T15.
On 5 November 2022, a delegate of the Respondent decided that there had been a change in the care arrangements for the children.[17] The delegate decided that, from 10 July 2022:
(a)In relation to child L, the Applicant had 86% care and the Other Party had 14% care; and
(b)In relation to child M, the Applicant had 85% care and the Other Party had 15% care
(the care percentage determination), (the original decision).
[17] R1, T17; T18. The Applicant and the Other Party were advised of the care percentage determination on the same date.
On 10 November 2022, the Other Party notified the Agency that she had care of the children two to three nights per week, every week, since 9 June 2022.[18]
[18] R1, T21.
On 17 November 2022, the Other Party objected to the original decision.[19] The Agency record of the Other Party’s objection notes she provided the following grounds for her objection:[20]
[19] R1, T25. The Other Party’s objection was lodged within time.
[20] R1, T25.
* She said that from 10 July 2022 the children go to her care from Thursday night, and [the Applicant] picks them up on Sunday evening (3 nights per week).
* She stated that she gets 100% of the mid term school holidays
* She stated that [the Applicant] gets 4 weeks in Christmas school holidays
* Generally there are 52 weeks in the year, equating to 40 weeks school term and 12 weeks school holidays
* She gets 40 x 3 = 120 nights over 12 months
* for mid term holidays, she gets 6 weeks so 6 x 7 = 42 nights over 12 months
* for Christmas holidays, she gets 2 weeks x 7 = 14
* In total, she get [sic] 176 nights over 12 months
No court orders or written arrangements
…
Additional information: She stated that around 6 weeks ago on 6/10/2022, [child L] started an apprenticeship.
She stated that the care changed and she lost the Thursday night, but still had Friday and Saturday nights
She stated that she still had 100% of the mid term holidays and 2 weeks of Christmas holidays
On 14 December 2022, the Other Party provided copies of rideshare receipts for trips taken on 6 July 2022, 15 July 2022, 1 October 2022 and 2 December 2022.[21]
[21] R1, T27.
On 5 January 2023, the Other Party provided a letter of support from a friend, who stated:[22]
[The Other Party] spends $50 every week on Friday to UBER her daughters to her as [the Applicant] refuses to drop them to her home and encourage their relationship. [The children] stay with her until Sunday evening. They also stay with her for school holidays & other times the girls have a break from school.
[22] R1, T35.
On 1 February 2023, a delegate of the Registrar disallowed the Other Party’s objection (the objection decision).[23]
[23] R1, T38-T41. The Applicant and the Other Party were advised of the objection decision on the same date.
On 22 February 2023, the Other Party applied to the AAT1 for a first review of the objection decision,[24] giving the reason:[25]
I do not agree with the CS decision. I provided hard evidence that was not taken into consideration.
[24] R1, T42. The application was made within time.
[25] R1, T42.
On 28 July 2023, the AAT1 made the Reviewable Decision.[26]
[26] R1, T2. See [2] above.
On 24 October 2023, the Applicant applied to the Tribunal for review of the Reviewable Decision.[27] The Application was made outside the prescribed time limit, however on 10 November 2023, the Applicant was granted an extension of time to apply for review.[28]
[27] R1, T1.
[28] R1, T49.
On 25 October 2023, a subsequent care determination was made, which recorded that the Applicant provides 100% care for the children from 30 April 2023.[29]
[29] R2, Attachment A.
LEGISLATIVE FRAMEWORK
The relevant legislation is contained within the:
(a)Assessment Act; the
(b)Collection Act; and the
(c)Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth) (the Amendment Act).[30]
[30] The Amendment Act came into effect on 23 May 2018. Relevantly, the Amendment Act amended some provisions of the Assessment Act.
The relevant policy is contained in the Guides to Social Policy Law: Child Support Guide (the Guide). As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[31]
[31] G at [57]-[62].
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;[32] or
(b)a pattern of care that corresponds with the actual care[33] of the child
(ss 50(1)(a) and 50(3) of the Assessment Act),[34]
during such period (the care period)[35] as the Registrar considers, having regard to all the circumstances.
[32] Assessment Act, s 49(1)(a).
[33] 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 at [56]; P v Child Support Registrar [2013] FCA 1312 at [107]; and P v Child Support Registrar [2014] FCAFC 98 at [47]. See also Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 at [33].
[34] Assessment Act, ss 49(1)(b), 50(1)(a)-(b). 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.
[35] 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). In any event, the relevant care period is now in the past and as such the Tribunal is required to determine the actual care that occurred during the relevant period.
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.
For completeness, s 51 of the Assessment Act may apply in circumstances where a care arrangement, such as a Court order, applies in relation to a child or children, but actual care does not or did not comply with the relevant care arrangement.
Revocation of existing care percentages
The revocation of care percentages is dealt with in Subdivision C of Division 4 of Part 5 of the Assessment Act.
The relevant provisions are ss 54F, 54G and 54H of the Assessment Act.
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 – where 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.[36] Section 54F can only apply if s 54G does not apply.[37]
(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’[38] of the child, despite the child being made available by the other responsible person.[39]
(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. Section 54H can only apply if ss 54F and 54G do not apply.[40]
[36] 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.
[37] Section 54F(1)(c) of the Assessment Act.
[38] 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.
[39] As s 54F of the Assessment Act can only apply if s 54G of the Assessment Act does not apply, and s 54H of the Assessment Act can only apply if ss 54F and 54G of the Assessment Act do not apply (see [29] and [30] and related footnotes, above), it is therefore necessary for the Tribunal to first consider the applicability of s 54G of the Assessment Act.
[40] Section 54H(1)(c) of the Assessment Act.
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.
Date of effect
If there was a change in care, and the Tribunal were to revoke the existing care percentage determinations under either ss 54F or 54H of the Assessment Act, the revocation would take effect as follows:
·For the parent whose care has increased – from the day before the notification of the change in care, the notification having taken place on 29 July 2022 for child L and 15 August 2022 for child M.[41]
·For the parent whose care has reduced – from the day before the change of care day, the change of care day being 10 July 2022.[42]
[41] Section 54F(3)(b)(i) or s54H(3)(b)(i) of the Assessment Act. See also fn 41.
[42] Section 54F(3)(b)(ii) or 54H(3)(b)(ii) of the Assessment Act. See also fn 41.
If the Tribunal makes a revocation decision under s 54G of the Assessment Act, that decision would take effect at the end of the day before the day on which the person ceased the previously established pattern of care.[43]
[43] Section 54G(2)(b) of the Assessment Act. In considering these matters, the Tribunal needs to determine the ‘change of care day’, and the date of notification of the change of care. The Tribunal considers that the change of care day was 10 July 2022 (see s 5(a) of the Assessment Act) and that the Applicant notified the Agency of a change of care for child L on 29 July 2022 and for child M on 15 August 2022. See [8], [13] and [15] in this regard.
EVIDENCE
The matter was heard on 18 July 2024. The Applicant and the Other Party were self-represented The Respondent was represented by Mr Andrew Summers from Services Australia. The parties appeared by telephone and no witnesses were called.
The Tribunal admitted the following documents into evidence:
(a)Section 37 T-Documents, labelled T1 - T50, pages 1 to 215, filed with the Tribunal on 16 January 2024 (Exhibit R1); and
(b)
Respondent’s Statement of Facts, Issues and Contentions (with Attachments A

and B) dated and filed 22 May 2024 (Exhibit R2).
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.
The Parties’ evidence and submissions
The Applicant and the Other Party gave evidence and made submissions in support of their respective positions.[44]
[44] See R1 (various); R2, Attachment B; Transcript, pp 4 to 17.
The Applicant
The Applicant submitted that his records, including his journal records,[45] indicate that he had care of the children on 63 nights out of 283 nights, between 10 July 2022 and 29 April 2023, which he calculates at 78.5% care by himself and 21.5% care by the Other Party. The Applicant emphasised that this is vastly different to the conclusion reached by the AAT1.[46]
[45] R1, T1.
[46] R2, Attachment B.
At hearing the Applicant gave evidence that during the care period, the care arrangements changed and fluctuated, with the Other Party’s care of the children progressively declining during this time. The Applicant confirmed his evidence to the AAT1 that:[47]
[W]hile [child L] and [child M] did stay with [the Other Party] initially from Thursday to Sunday night every week, they soon stopped going on Thursday nights. [The Applicant] said then the girls stopped going on Friday nights, because [child L] got a job [The Applicant] added that he was uncertain of the exact dates, and would rely on the calendar of care he provided Child Support.
[47] Transcript, p 8.
The Applicant also gave evidence that child L commenced working on a Friday night on 29 September 2022.[48]
[48] Following the hearing, at the Tribunal’s request, the Applicant produced documentary evidence confirming child L’s employment commencement date was 29 September 2022.

At hearing, the Applicant added:[49]
So July school holidays – they probably spent a bit of time with [the Other Party]. And then perhaps again in the September holidays. But July holidays and then it didn’t take very long at all. It was only a few weeks after that where it started going down from four nights to three nights to two nights. It was only a few weeks. Only a matter of weeks.
[49] Transcript, p 9.
The Other Party
When asked about the care arrangements for the children during the care period, the Other Party stated:[50]
Well, (indistinct) there was nothing wrong with our relationship at that point. My daughters had been living with me full-time for the previous six months. Happy days. And what happened was my daughter received an apprenticeship that (indistinct) closer to her father. So both the girls, they both went together and started residing there. From then, I saw the girls every Thursday for quite a few months, from Thursday to Sunday. They were here every week. A couple of times we had an argument, they went home, like, on the Sunday or something, you know, early. But for the most part, for about two to three months, they were here from Monday – sorry – Thursday to Sunday. Because my daughter – Monday to Thursday and my other daughter was at school Monday to Thursday. Then what eventually happened was my daughter started working on the Friday. So instead of them coming on a Thursday, they started coming on the Friday night. So that went on for a little while. And then maybe a month or so, and then my daughter started to work late on a Friday. So then again it decreased. They started coming on a Saturday, from Saturday to Sunday. Yes. That’s the – that happened over a slow period of time.
…
… my daughter started work on a Friday, but I think that was around October. And then it went, like I said, from – yes. It just slowly decreased, until they were coming from Saturday to Sunday, and then they got upset because, you know, they were coming, driving here, and just basically – you know, they were getting up at 1 or 2 o’clock in the afternoon on a Saturday, as teenagers do, and they were coming up here and then sleeping, and then basically, you know, going home the next day, and they got frustrated with that and said that it was too far to come for just one night. And that’s when all of a sudden I just – I haven’t seen them since.[51] So – yes.
[50] Transcript, p 11.
[51] The Other Party said that it was only in April 2023 that the children stopped coming to stay with her (transcript, p 13).
CONSIDERATION
The Reviewable Decision concerns the care of the children in the period 10 July 2022 (the date of the change in care) to 29 April 2023 (the day prior to the day the Applicant was determined to have 100% care of the children)[52] (the care period). This is uncontroversial.
[52] See subsequent care determination detailed at [21] above.
Whether the existing care percentage determination should be revoked and replaced
The task for the Tribunal is to determine what percentage of care the Applicant and the Other Party each had of the children during the care period, and if there was a change in care, from what date that change in care occurred.
If the Tribunal:
(a)is satisfied that the pattern of care was 58% to the Applicant and 42% to the Other Party, it should affirm the Reviewable Decision.
(b)is not satisfied there was a change in care, it should set aside the Reviewable Decision and restore the existing care percentage determinations.[53]
(c)is satisfied that the pattern of care was some other percentage between the Applicant and the Other Party, then the Tribunal should revoke the existing care percentage determination consistent with those findings.
Was there a change in care? If so, on what date did the change in care occur and what is the date of effect?
[53] See [6] above.
The Tribunal has considered the parties’ evidence and submissions and considers the parties have both been consistent over time regarding their claimed division of care and were credible and clear witnesses
The Tribunal has formed the view that the parties’ evidence, considered together, represents a broadly similar state of affairs as to the actual care of the children during the care period.
The parties agree that the Other Parties’ care of the children tapered in the months leading to April 2023, when it ceased entirely. The parties also agree that it was child L’s commencement of employment in September 2022 which resulted in her remaining in the Applicant’s care, and which led to the period of months that followed where the Other Party’s care of the children progressively declined.
In the absence of contemporaneous documentary evidence to the contrary, the Tribunal accepts that the Applicant’s journal entries[54] are a record of the actual care that took place and accord with the parties’ oral accounts.
[54] R1, T1.
On this basis, the Tribunal finds that during the care period:
(a)The Applicant had 79% care of the children.
(b)The Other Party had 21% care of the children.
(c)The dates of effect of the new care percentage determination are:
(i)For the Applicant (whose care has increased) – from the day before the notification of the change in care, the notification having taken place on 29 July 2022 for child L and 15 August 2022 for child M.
(ii)For the Other Party (whose care has reduced) – from the day before the change of care day, the change of care day being 10 July 2022.
CONCLUSION
The Tribunal has found that there is sufficient evidence to disturb the existing care percentage determinations currently in place between the Applicant and the Other Party. As such, the Tribunal concludes that the existing care percentage determinations should be revoked and replaced with the decision set out at paragraph 51 below.
DECISION
For the reasons outlined above, the correct or preferable decision is to set aside the Reviewable Decision and substitute it with a decision that:
(a)The care period commenced on 10 July 2022.
(b)The care period ended on 29 April 2023.
(c)During the care period, the Applicant had 79% care of the children and the Other Party had 21% care.
(d)The dates of effect of the new care percentage determination are:
(i)For the Applicant:
·     28 July 2022 for child L; and
·     14 August 2022 for child M.
(ii)For the Other Party:
·     9 July 2022 for child L and child M.

I certify that the preceding
fifty-one (51) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

........................................................................
Associate:
Dated: 7 October 2024

Date of hearing: 18 July 2024

Representative for the Applicant: Self-represented

Solicitors for the Respondent: Mr Andrew Summers, Services Australia

Representative for the Other Party Self-represented

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

Date of hearing:	18 July 2024
Representative for the Applicant:	Self-represented
Solicitors for the Respondent:	Mr Andrew Summers, Services Australia
Representative for the Other Party	Self-represented